• 무역상무연구
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• 제69권
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• pp.85-105
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• 2016

The fact that one of the parties to the sale contract has had to pay demurrage to the shipowner under LD clauses in the charterparty does not of itself mean that he can recover that loss from his sale counter party under the sale contract: the route to such recovery is through express clauses in the sale contract itself. LD clauses in a sale contract stand free and independent of their counterparts in the relevant charterparty. LD clauses in a sale contract should be construed and applied as clauses in sale contracts, not as adjuncts to charterparties. Their interpretation should therefore be coloured not by decisions on laytime and demurrage in charterparties, but by their relationship to the contractual duties of CIF and FOB sellers and buyers. The results discussed here have implications for the drafting of LD clauses in sale contracts. If unwelcome surprises are to be avoided, it seems to advisable to start from the principle: what exactly do traders want or need in LD clauses. They need a clause which covers them against charterparty losses where those losses are the result of dealy caused by the counterparty to the sale contract. The parties to the sale contracts are well advised to prepare LD clauses concentrating on that purpose and bearing in mind the followiing questions. First, should the loading and discharge code in the sale contract appear in traders' or trade associations' standard terms and conditions or should they be left to ad hoc negotiation in contract sheets? Second, should that code be as complete as possible, covering loading or discharge periods or rates, demurrage and despatch, or is it enough for only some of those matters to be covered explicitly, leaving other matters to be governed" as per charterparty"? Third, does the introduction or incorporation of a stipulation for the giving of a notice of readiness make the start of laytime more or less predictable as between seller and buyer? Finally should a loading and discharge code in a sale contract actully be called a "laytime and demmurrage clauses"?

• 무역상무연구
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• 제39권
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• pp.3-26
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• 2008

CISG provides the Convention's default provisions on anticipatory breach. Article 71 permits the aggrieved party to suspend the performance of his obligations if it becomes apparent that the other party will not perform a substantial part of his obligations after the conclusion of the contract. The aggrieved party must give notice of the suspension to the other party and if he provides adequate assurance of his performance, the party must continue with performance. Article 72 authorizes the aggrieved party to avoid the contract to the date of performance when it is clear that the other party will commit a fundamental breach. The aggrieved party is also required to give the other party notice of his intent to avoid the contract if time allows. The requirements for avoidance under Article 72 are more stringent than those for suspension under Article 71. Article 72 requires reasonable prior notice only if time allows, while article 71 requires immediate notice with no exceptions.

• 무역상무연구
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• 제37권
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• pp.3-33
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• 2008

This study primarily concerns the seller's duty to deliver the goods in conformity with the contract under the United Nations Convention on International Sale of Goods(1980) in comparison with the Draft Principles of European Sales Law. It describes and analyzes the provisions of the CISG as to the seller's duty, focusing on main controversial issues among scholars in their application. It also attempts to compare the rules of the CISG with those of the Draft PESL and to evaluate them in light of the discipline of comparative law. This is for the purpose of facilitating the systematic development and reform of one jurisdiction by any solution from the other jurisdiction found by the comparative study. In addition, this study provides legal and practical advice to the contracting parties when they intends to insert the CISG or the Draft PESL in their contract as a governing law. The comparative study particularly focuses on the following aspects; first, requirements for conformity with the contract which deals with the concept of conformity with the contract, contractual requirements agreed between contractual parties, and implied requirements otherwise not agreed between contractual parties, second, the time when the goods must be in conformity with the contract, third, exclusions of the seller's duty to deliver the goods in conformity with the contract.

• 무역학회지
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• 제42권1호
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• pp.27-45
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• 2017

기술무역은 기술지식 및 기술서비스와 직접적으로 연관된 국제적·상업적 거래로 정의된다. 기술무역은 물품과 다르게 기술만이 가지는 무형성, 이질성, 가치의 누적성, 권리의 소멸성과 같은 고유한 특징으로 일반적인 매매 이외에도 라이선싱, 제휴 및 협력, 합작투자 등 상업적 목적에 따라 다양한 방식으로 거래될 수 있다. 이러한 다양한 형태를 포함하는 의미로 실무에서는 기술이전(Technology Transfer)이라는 용어가 일반적으로 사용된다. 본고에서는 기술이전이 이처럼 다양한 형태로 이루어질 수 있는 배경을 기술이 가진 성격으로 이해하고자 하며 특별히 전통적인 무역의 대상인 물품과의 비교를 통해 명확히 하고자 한다.

• 무역상무연구
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• 제55권
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• pp.3-32
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• 2012

CISG article 74 establishes the general formula applicable in all cases where an aggrieved party is entitled to recover damages. It provides that damages for breach of contract comprise all losses, including loss of profits, caused by the breach, to the extent that these losses were foreseeable by the breaching party at the time the contract was concluded. An aggrieved party may claim under article 74 even if entitled to claim under article 75 or 76. The latter articles explicitly provide that an aggrieved party may recover additional damages under article 74. Articles 75 and 76 apply only in cases where the contract has been avoided. Article 75 measures damages concretely by reference to the price in a substitute transactions, while article 76 measures damages abstractly by reference to the current market price. Article 76 (1) provides that an aggrieved party may not calculate damages under article 76 if it has concluded a substitute transaction under article 75. If however, an aggrieved party concludes a substitute transaction for less than the contract quantity, both articles 75 and 76 may apply. Pursuant to article 77, damages recoverable under articles 74, 75 or 76 are reduced if it is established that the aggrieved party failed to mitigate losses. The reduction is the amount by which the loss should have been mitigated. Article 78 entitles a party to interest on the price and any other sum that is in arrears.

• 무역상무연구
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• 제13권
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• pp.235-253
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• 2000

As to the sphere of application, Article 78 CISG undoubtedly applies to interest on the purchase price. Furthermore, the provision also applies to "any other sum that is in arrears". This language has been interpreted to encompass expenses that one party had on behalf of the other as well as reimbursements when the purchase price is reduced according to Article 50 CISG. However, it is questionable whether this language also extends to claims for damages. Legal scholars seem to agree that one has a right to interest on damage claims under Article 78 if the amount in question has been liquidated vis-a-vis the other party. Whether this right to interest also applies to unliquidated sums, is controversial, however. In this study, as a result of taking into account the puspose of Article 78, we could find the fact that regardless of whether the exact amount of damages has been specified yet, the breaching party still owes compensation to the other party from the time of the breach and, accordingly, the non-breaching party should be entitled to interest payments on the loss from that time. Consequently, Article 78 applies not only to liquidated but also to unliquidated damages.

• 무역상무연구
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• 제13권
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• pp.193-213
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• 2000

The CISG has been legislated for playing roles as uniform rules which govern international sale of goods. The job of getting unification of the diverse domestic legal systems required almost half century of work. In the process of making the Convention some rules resulted from compromises of nation's relevant interests. The Convention, however, promoted both the legal certainty and harmonization in international trade in that the uniform rules suggest the appropriate resolution to the legal problems in the course of concluding a contract as well as in remedies for breach of contract. This paper focuses systematically on the scope of applicability of the CISG. The Convention deals with contracts for the international sale of goods. However, it does not apply to all kinds of the international sale of goods. The CISG confines the sphere of applicability to a certain type of sales. First of all, the CISG is limited to those contracts having been concluded between a particular group of persons, which is called a personal aspect of applicability. Secondly, the CISG covers a specific category of sales, which is called a material aspect of applicability. Thirdly, the CISG are concluded within a particular period of time, which is called a temporal aspect of applicability. Lastly, the CISG is limited to contracts falling within a given territorial sphere, which is called a territorial aspect of applicability.

• 무역상무연구
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• 제53권
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• pp.31-48
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• 2012

If see CISG's passing of risk and altered regulations first, when sales contract accompanies transport of goods and seller does not have duty to deliver goods at particular place, when deliver to the first carter to send to purchaser according to sales contract risk passes to purchaser, and when there is duty that seller must deliver goods to carter at specification place, when goods are delivered to carter at same place, risk does not pass to purchaser. Second, risk about transporting goods passes to purchaser at signing a contract. But, when there is special assessment, risk passes to purchaser when goods are delivered to carter who publish document that embody contract of carriage. Nevertheless, it is loss if seller did not notify this truth to occasion purchaser who could knew loss or damage of goods or know justly at sales contract conclusion defamation danger seller of be burdensome. Third, seller has responsibility about damage or loss as long as hide in own artificiality or forbearance after risk passes to purchaser. Regulation about risk in Incoterms 2010 was separated into 11 condition, and move time of risk differs in angle condition. It is appeared that the substance handles relatively comprehensively because compare in Incoterms 2010 although it is because it becomes if it examines regulation about deliver and passing of risk of goods setting in CISG relatively concise. Also, segments that can become posibility of analysis controversy exist.

• 무역상무연구
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• 제17권
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• pp.37-69
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• 2002

This study sumed up general rules for measuring damages based on SGA, UCC, CISG, PICC legislated by on the base of English decision of Hadley v. Baxendale Concluding marks as follows : (1) General rule for measuring damages is a standard rule that is developed to place the aggrieved party in as good a position as if the party in breach performed the contract. (2) Damages may also be accompanied by other remedies (3) Damages has alternative character (4) Damages give the aggrieved party full compensation (5) It is enough for the aggrieved party simply to prove the non-performance for damages (6) Occurence of harm must be reasonably certain and a direct consequence of non-performance (7) while Rule for measuring damages an UCC is concrete CISG is comprehensive. (8) Although rule of UCC and CISG for damages measurement is a similar in many aspect but there are in expression and range of damage between them. (9) the result of this study will give researchers the opportunity to develope in depth and their report of research also contribute chance to perform business their effective oversea's trade

• 무역상무연구
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• 제47권
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• pp.49-78
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• 2010

The seller has to deliver goods and hand over documents as required by the contract. It is very important that ownership of goods shall be transferred by the documents from the seller to the buyer. Where terms of payments is made under documentary payment such as negotiable order Bill of lading or any transport documents for symbolic delivery of goods shall be more important between the parties concerned. The buyer may withdraw or cancel the contract where the buyer accept the foul Bill of Lading and demand damages where the buyer accept the other documents which are not in accordance with requirements by the buyer. Withdraw or cancel of contract can be made where discrepancy of documents comes into fundamental breach of contract. In conclusion transport documents by the seller will be used to determine appropriation of transport document to the contract. Therefore the seller has to deliver the proper shipping documents to the buyer. Where the breach of the seller's obligations to deliver documents the buyer has the right of requiring performance, contract avoided, claiming damage to recover the contract under CISG. The significance of transport documents has been focused in this study and careful examination of documents shall be needed to prevent any dispute or differences between the parties.