Unit 4
CISG
Text I An Introduction to the Convention
-To get to know the history and
development of the CISG and how to apply the
Convention to international transactions
Text II Formation of the Contract
-To read part of the Convention and
distinguish the key elements in the formation of
contracts under this Convention
Typical Sentence Patterns: Legislative Text (IV)
Text I An Introduction to the Convention
Useful expressions: place of business, under (the
contract), prevail over, bring an action for,
defective merchandise, multinational corporation,
be excluded from, negotiable instrument, in
preponderant part, opt out of, derogate from,
accede to
Terms: conflict of law, assembly contract
Proper names: UNIDROIT, the League of Nations,
UNCITRAL, CISG, UCC, the Chinese Foreign
Economic Law
Questions based on Part I
1. What international organ took the
initiative to draft the CISG?
2. What is the legal effect of the CISG upon
member countries of the Convention?
3. When to apply the CISG and when to
apply the Chinese Foreign Economic
Contract Law in China?
Terms and proper names
• CISG （联合国）国际货物销售合同公约
• (see both versions of the CISG texts at http://www.cisg.law.pace.edu/)
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UNIDROIT （罗马）国际统一私法协会
the League of Nations 国际联盟
UNCITRAL 联合国国际贸易法委员会
place of business 营业地
the Chinese Foreign Economic Contract Law
中国对外经济合同法
UCC （美国）统一商法典
• (see “UCC Articles” at
http://www.law.cornell.edu/ucc/ucc.table.html)
Terms and proper names
• conflict of laws 冲突法
-section in a country’s legal statute which deals with
disputes between that country’s laws and those of
another country
structure of a conflict rule
– 2 parts: category / class （范围）and attribution（系
属包括连接点connecting point / factor和准据法proper
law）
– E.g. Ownership to immovables is governed by the law
of the place where the property is situated.
不动产依不动产所在地法。
Questions based on Part II
• 1. When to apply the UCC and when to apply
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the CISG in the U.S.?
2. How to define the place of business when the
commercial transaction concerns a multinational
corporation?
3. What kinds of sales fall outside the scope of
the CISG?
4. Why are consumer sales excluded from the
CISG?
5. How can a contracting state opt out of the
Convention?
Terms and proper names
• negotiable - an instrument is negotiable when
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the rules of law allow it to be traded between
parties
consumer protection - actions taken
(sometimes in the form of laws) to protect
consumers from defective goods and services
opt out of - to choose not to participate in
something
derogation- the partial abrogation of a law. To
derogate from a law is to enact something which
is contrary to it, while to abrogate a law is to
abolish it entirely
Text II Formation of the Contract
• Preamble
• THE STATES PARTIES TO THIS CONVENTION,
• BEARING IN MIND the broad objectives in the resolutions adopted
by the sixth special session of the General Assembly of the United
Nations on the establishment of a New International Economic Order,
• CONSIDERING that the development of international trade on the
basis of equality and mutual benefit is an important element in
promoting friendly relations among States,
• BEING OF THE OPINION that the adoption of uniform rules which
govern contracts for the international sale of goods and take into
account the different social, economic and legal systems would
contribute to the removal of legal barriers in international trade and
promote the development of international trade,
• HAVE DECREED as follows:
Text II Formation of the Contract
• 联合国国际货物销售合同公约
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（1980年4月11日订于维也纳）
本公约各缔约国，铭记联合国大会第六届特别会议通过的关于建
立新的国际经济秩序的各项决议的广泛目标，考虑到在平等互利基础
上发展国际贸易是促进各国间友好关系的一个重要因素，认为采用照
顾到不同的社会、经济和法律制度的国际货物销售合同统一规则，将
有助于减少国际贸易的法律障碍，促进国际贸易的发展，兹协议如下：
第一部分 适用范围和总则 第一章 适用范围 第二章 总则
第二部分 合同的订立
第三部分 货物销售
第一章 总则
第二章 卖方的义务
第三章 买方的义务
第四章 风险转移 第五章 卖方和买方义务的一般规定
第四部分 最后条款
Text II Formation of the Contract
• CISG PART II -- FORMATION OF THE CONTRACT
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[Criteria for an offer]
[When offer becomes effective; prior withdrawal]
[Revocability of offer]
[Rejection of offer followed by acceptance]
[Acceptance: time and manner for indicating assent]
[“Acceptance” with modifications]
[Interpretation of offeror’s time-limits for acceptance]
[Late acceptances: response by offeror]
[Withdrawal of acceptance]
[Effect of acceptance: time of conclusion of contract]
[When communication “reaches” addressee]
Terms
residence 居所
• -the place of general abode; principal, actual dwelling place
in fact, without regard to intent
• There is a difference between a man's residence and his
domicile. He may have his domicile in Philadelphia, and still
he may have a residence in New York; for although a man
can have but one domicile, he may have several residences.
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domicile 住所
• -the principal place of residence of an individual. This is
determined primarily by intent. A good indication of
domicile is where a person registers to vote. （habitual
residence：有些国家以“惯常居住地”为“住所”）
• “住所”的两个构成要素：
– 某人在某地有居住的事实存在；
– 在某地有久住的意思
Terms
• “mirror image” rule 镜像规则
• –An acceptance which added qualifications or
conditions or which in any way varied from the
terms of the original offer was treated as a
rejection and counter offer. This was true no
matter how trivial the qualification or condition.
This was known as the "Mirror Image Rule." The
underlying rationale is that the making of a
counteroffer communicates to the offeror that
the offeree does not wish to accept the offer.
Terms
• mailbox rule 邮箱规则、投邮主义、发信主义
• - Although revocation and rejection of an offer are
effective when received, the general rule is that a
contract is made when the acceptance is dispatched,
even though the letter of acceptance is lost and never
reaches the offeror. Consent is deemed to be fully
communicated when the offeree has placed his
acceptance in the course of transmission to the offeror.
In other words, acceptance is effective upon dispatch.
(关于承诺之生效时间：，又称“postal rule”与“到达主
义”相对.)
Terms
• invitation to offer/invitation to treat
要约引诱