案例分析题【国际商法】

一.Is there any contract between X and Y? ?On April 4, Company X, with its place of business in China, sent an offer by e-mail to Company Y, with its place of business in Australia. The offer concerned 50,000 meters hand-printed cotton cloth and said it would remain open until April 30. On April 10, Company Y answered by e-mail : “The price is too high, and we are not interested in the offer.” But on April 20, the manager of Company Y changed his mind and sent another e-mail to accept the April 4 offer. ?Question: Is there any contract between company X and Company Y? ?Answer and Analysis ?No. Since both China and Australia are Contracting States to the CISG, according to Article 1 would apply here. After receiving the offer of 50,000 meters hand-printed cotton cloth, on April 10, Company Y stated that they were not interested in the offer, which rejected the offer. On April 20, the e-mail sent to accept the April 4 offer should be regarded as a new offer instead of acceptance. Therefore, there was no contract between Company X and Company Y. 二.WORLD-WIDE VOLKSEAGEN V.WOODSON ?United States Supreme Court,1980 ?FACTS: The Robinsons bought a new Audi from Seaway Volkswagen in New York state. While traveling through the State of Oklahoma, the Audi was rearended, causing a fire which severely burned Mrs. Robinson and her two children. ?The Robinsons sued in tort侵权行为in Oklahoma versus retailer Seaway and wholesaler World-Wide Volkswagen, both New York corporations that did no business in Oklahonma. Both defendants entered special appearances to contest the trial court’s assertion of personal jurisdiction over them; Woodson was the trial judge. ?ISSUE: Does the State of Oklahoma have personal jurisdiction over an auto retailer and wholesaler who so not sell cars in the state? ?HOLDING: NO. ?LAW :Under the U.S. Constitution, Fourteenth Amendment’s Due Process Clause, there must be minimum contacts among the defendants, the forum, and the claim being made by plaintiffs in order for the state court to exercise personal jurisdiction属人管辖权 ?EXPLANATION: Petitioners carried on no activities in Oklahoma , performed no sales or services there, and did not solicit business there through advertising or agents. The “foreseeability”of their cars being driven in Oklahoma is not enough to hale them into court there. ?ORDER: Case against the retailer and distributor is dismissed. 三. ?FACTS:A US foreign trade zone(FTZ) subzone was set up at Nissan Motor’s plant in Smyrna, Tennessee. Nissan then imported production machinery into the zone to assemble parts that were manufactured in Japan for sale in cars in the US.The US Customs Service charged Nissan customs tariffs on the machinery Nissan appealed to the courts to …of the tariffs. ?LAW:US law provides that goods may be brought into an FTZ subzone without the payment of customs duties for the purpose of being ”stored, sold, exhibited, broken up, repacked, assembled, distributed, sorted, graded, cleaned, mixed with foreign or domestic merchandise ,or otherwise manipulated, or…manufactured. ?EXPLANATION: The US law does not say that imported equipment may be “installed”, ”used”, ”operated”, or ”consumed”in the zone ,which are the kinds of operations Nissan performs in the zone with its production equipment. To infer this from the law is unreasonable. ?Court ruled that equipment is outside the definition of merchandise if it is installed and operated as opposed to “stored, sold, distributed, graded, cleaned, mixed with foreign or domestic merchandise, or otherwise manipulated, or…manufactured,” as defined in section 3 of the Foreign Trade Zones Act. ?ORDER: Nissan must pay duty on the production equipment. 四.Hungary, Metropolitan Court of Budapest, 1992 ?FACTS:Pratt and Whitney (P&W) offered to sell Málev Hungarian Airlines (MHA) either two or three PW4000 series engines for installation in a Boeing aircraft or two or three PW4100 series engines for installation in an Airbus aircraft. The offer stated different prices for the different series engines. It also said that it was subject to Hungarian and US government approval. One week later, MHA sent a letter accepting the offer for the PW4000 series engines. When MHA reneged on going forward with the purchase, P&W sued to obtain a declaratory judgment that a contract existed. ?ISSUES: (1) Was there an offer? (2) Was there an acceptance? (3) Was the requirement of governmental approval meant to be a condition precedent? ?HOLDINGS:(1)Yes(2)Yes(3)NO ?LAW:CISG Art.14(1) provides that ”A proposal for concluding a contract addressed to one or more specific persons constitutes an offer if it is sufficiently definite and indicates the intention of the offeror to be bound in case of acceptance.” And “A proposal is sufficiently definite if it indicates the goods and expressly or implicitly fixes or makes provision for determining the quantity and the price.”Art.18 (1)defines an acceptance as “a statement …indicating assent to an offer.” Art.23:”A contract is concluded at the moment when an acceptance of an offer becomes effective.” ?EXPLANATION: (1) The offer described the goods, and the fact the buyer had the right to choose between the listed engines does not affect the description of the engines. The offer stated a quantity, even though the buyer could choose between two or three engines. The offer stated a price and the offer stated a time for delivery. Thus, there was a valid offer. (2) MHA’s letter unambiguously stated its acceptance. A contract was therefore concluded at the time of acceptance. (3) The offeror did not mean for the proposed government approval to function as a condition precedent, but as only the need to obtain appropriate export and import licenses. ?ORDER: The parties entered into a contract. 五.The Natural Gas Case ?FACTS:The plaintiff, a Germany company, negotiated to buy natural gas from an Austrian partnership. The defendant was to ship the propane from the US to the plaintiff in Belgium. The plaintiff was to obtain a letter of credit once the defendant told it where the propane was to be loaded. But the defendant failed to deliver ...... to Belgium. ?ISSUE: Had the defendant (Seller) breached the contract by failing to deliver the propane or was its duty to perform excused by the plaintiff not obtaining a letter of credit? ?LAW: A defendant cannot complain that a plaintiff failed to fulfill its obligations when the defendant’s own failure to act caused the plaintiff’s inaction. CISG Art.41 says that a seller must deliver goods free from any right or claim of third parties. ?EXPLANATION:The buyer was excused from opening a letter of credit because the defendant never provided the necessary information for the letter. The breach was due to the seller’s failure to make proper arrangements to ship the gas.. 六.GREAT CHINA METAL INDUSTRIES CO.LTD.V.MALAYSIAN ?High Court of Australia, 1998. ?FACTS: Forty cases of aluminum can stock was consigned aboard the MV Bunga Seroja from Sydney to Keelung, Taiwan. The vessel encountered heavy weather that had been forecast and some of the consigned goods were damaged. ?LAW: Determining if a loss is due to a peril of the sea is primarily a factual inquiry. Did the loss result from “want of proper stowing”? Did it arise from the “act, neglect , or default of the master or of the servants of the carrier in the management of the ship”? Or, did it result from “some other cause peculiar to the sea”? This last is a peril of the sea. ?EXPLANATION:The trial court found that the ship was properly stowed. The trial court, having heard the evidence of the experts, also found that there were no deficiencies in the management of the ship. This being so, the loss has to be attributed to a peril of the sea. ?ORDER: The carrier is not liable for the loss.