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案例2商品数量短缺买方拒收案[案情]我某出口公司与匈牙利商人订立了一份出口水果合同,支付方式为货到验收后付款。但货到经买方验收后发现水果总重量缺少10%,而且每个水果的重...
案例2 商品数量短缺买方拒收案
[案情]
我某出口公司与匈牙利商人订立了一份出口水果合同,支付方式为货到验收后付款。但货到经买方验收后发现水果总重量缺少10%,而且每个水果的重量也低于合同规定,匈商既拒绝付款,也拒绝提货。后来水果全部腐烂,匈海关向中方收取仓储费和处理水果费用5万美元。我出口公司陷于被动。
[分析]
商品的数量是国际货物买卖合同中不可缺少的主要条件之一。按照某些国家的法律规定,卖方交货数量必须与合同规定相符,否则,买方有权提出索赔,甚至拒收货物。此案中显然我方陷于被动,但仍可据理力争,挽回损失。首先应查明短重是属于正常途耗还是我方违约没有交足合同规定数量,如属我方违约,则应分清是属于根本性违约还是非根本性违约一。如不属根本性违约,匈方无权退货和拒付货款,只能要求减价或赔偿损失;如属根本性违约,匈方可退货,但应妥善保管货物,对鲜活商品可代为转售,尽量减轻损失。《联合国国际货物销售合同公约》(以下简称《公约》)第86条第一款明确规定:“如果买方已收到货物,但打算行使合同或本公约任何权利,把货物退回,他必须按情况采取合理措施,以保全货物,他有权保有这些货物,直至卖方把他所付的合理费用偿还给他为止”。而匈方未尽到妥善保管和减轻损失的义务,须对此承担责任。因此,我公司可与匈牙利商人就商品的损失及支出的费用进行交涉尽可能挽回损失。
(《国际贸易实务案例评析》,湖北人民出版社,1999年)
请不要直接用网上的翻译工具,因为语法真的不通。非常感谢 展开
[案情]
我某出口公司与匈牙利商人订立了一份出口水果合同,支付方式为货到验收后付款。但货到经买方验收后发现水果总重量缺少10%,而且每个水果的重量也低于合同规定,匈商既拒绝付款,也拒绝提货。后来水果全部腐烂,匈海关向中方收取仓储费和处理水果费用5万美元。我出口公司陷于被动。
[分析]
商品的数量是国际货物买卖合同中不可缺少的主要条件之一。按照某些国家的法律规定,卖方交货数量必须与合同规定相符,否则,买方有权提出索赔,甚至拒收货物。此案中显然我方陷于被动,但仍可据理力争,挽回损失。首先应查明短重是属于正常途耗还是我方违约没有交足合同规定数量,如属我方违约,则应分清是属于根本性违约还是非根本性违约一。如不属根本性违约,匈方无权退货和拒付货款,只能要求减价或赔偿损失;如属根本性违约,匈方可退货,但应妥善保管货物,对鲜活商品可代为转售,尽量减轻损失。《联合国国际货物销售合同公约》(以下简称《公约》)第86条第一款明确规定:“如果买方已收到货物,但打算行使合同或本公约任何权利,把货物退回,他必须按情况采取合理措施,以保全货物,他有权保有这些货物,直至卖方把他所付的合理费用偿还给他为止”。而匈方未尽到妥善保管和减轻损失的义务,须对此承担责任。因此,我公司可与匈牙利商人就商品的损失及支出的费用进行交涉尽可能挽回损失。
(《国际贸易实务案例评析》,湖北人民出版社,1999年)
请不要直接用网上的翻译工具,因为语法真的不通。非常感谢 展开
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Case 2 the number of goods the buyer rejected the case of a shortage of
[Case]
I am a businessman exporting companies and Hungary entered into a fruit export contracts to the acceptance of payment for the goods after payment. But the cargo to the acceptance by the buyer found that the lack of 10% of the total weight of fruit, and each fruit weight is also lower than the contract, both companies refused to pay and Hungary also refused to pick up the goods. Later, all the rotten fruit, Hungary customs warehousing and handling charge to the Chinese side of fruit costs 5 million dollars. I caught a passive export companies.
[Analysis]
The quantity of goods in the International Sale of Goods, one of the main conditions are indispensable. In accordance with the legal requirements in some countries, the number of delivery by the seller must be consistent with the contract, otherwise, the buyer the right to claim, or even reject the goods. The case was apparently caught in the passive side, but still argue, to recover damages. Should first identify the short-weight consumption of belonging to a normal passer-by, or our breach of contract does not pay the full contract amount, in the case of our breach of contract, it should distinguish between belonging to a fundamental breach of contract or non-fundamental breach of contract 1. If not a fundamental breach of contract, Hungary has no right to return and refused to pay the purchase price, only requested a price reduction or compensation losses; in the case of a fundamental breach of contract, Hungary may return, but should also keep the goods on behalf of the fresh product can be transferred sale to minimize the loss. "United Nations Convention on Contracts for International Sale of Goods" (hereinafter referred to as "the Convention"), first paragraph of Article 86 clearly stipulates: "If the buyer has received the goods, but it intends to exercise any of the contract or this Convention, the right to return the goods, he must be of take reasonable steps to preserve the goods, he is entitled to retain the goods until he paid the seller the reasonable costs of giving him his due date. " The Hungarian side deficiencies to the proper custody and the duty of mitigation to be held accountable. Therefore, our company with the Hungarian businessmen commodities losses and expenses to conduct negotiations to recover damages as much as possible.
( "Case Analysis of International Trade Practice", Hubei People's Publishing House, 1999)
[Case]
I am a businessman exporting companies and Hungary entered into a fruit export contracts to the acceptance of payment for the goods after payment. But the cargo to the acceptance by the buyer found that the lack of 10% of the total weight of fruit, and each fruit weight is also lower than the contract, both companies refused to pay and Hungary also refused to pick up the goods. Later, all the rotten fruit, Hungary customs warehousing and handling charge to the Chinese side of fruit costs 5 million dollars. I caught a passive export companies.
[Analysis]
The quantity of goods in the International Sale of Goods, one of the main conditions are indispensable. In accordance with the legal requirements in some countries, the number of delivery by the seller must be consistent with the contract, otherwise, the buyer the right to claim, or even reject the goods. The case was apparently caught in the passive side, but still argue, to recover damages. Should first identify the short-weight consumption of belonging to a normal passer-by, or our breach of contract does not pay the full contract amount, in the case of our breach of contract, it should distinguish between belonging to a fundamental breach of contract or non-fundamental breach of contract 1. If not a fundamental breach of contract, Hungary has no right to return and refused to pay the purchase price, only requested a price reduction or compensation losses; in the case of a fundamental breach of contract, Hungary may return, but should also keep the goods on behalf of the fresh product can be transferred sale to minimize the loss. "United Nations Convention on Contracts for International Sale of Goods" (hereinafter referred to as "the Convention"), first paragraph of Article 86 clearly stipulates: "If the buyer has received the goods, but it intends to exercise any of the contract or this Convention, the right to return the goods, he must be of take reasonable steps to preserve the goods, he is entitled to retain the goods until he paid the seller the reasonable costs of giving him his due date. " The Hungarian side deficiencies to the proper custody and the duty of mitigation to be held accountable. Therefore, our company with the Hungarian businessmen commodities losses and expenses to conduct negotiations to recover damages as much as possible.
( "Case Analysis of International Trade Practice", Hubei People's Publishing House, 1999)
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[case]
I an exporting company with a Hungarian businessman conclude the contract, pay export fruit for goods to the acceptance of the payment. But after the acceptance of the goods by the buyer discovered fruit total weight 10%, and lack of every fruit weight is under contract, the austro-hungarian contractor is refused to pay, also refused to take delivery. Then all the fruit rot, whom to Chinese customs and handling fees charged exceeding $50,000 fruit. I export company into a passive position.
[analysis]
The quantity of a commodity is the international sale of goods, the main conditions of the indispensable one. According to some national laws, the number of delivery must be in conformity with the contract stipulations, otherwise, the buyer is entitled to claim, or rejection of the goods. In the case of passive, but obviously we can still be argued that, a loss. Should first found shortweight belongs to the normal way without our breach or consumption amount paid, as stipulated in the contract, we should distinguish the default, fundamental breach or not belong to a fundamental breach. If do not belong to the fundamental breach, whom no refunds and dishonored payment party, can ask for a reduction or compensation for losses, As fundamental breach, may return, but should whom goods for safekeeping, fresh goods for resale, can reduce losses as far as possible. The United Nations convention on the international sale of goods (hereinafter referred to as the convention) article 86 first specified: "if the buyer has received the goods, but intends to exercise any right to contract or this convention, the goods returned, he must take proper measures according to the circumstance, to preserve goods, he is entitled to retain them until he had to pay the seller of the reasonable cost pay him." While not care whom square and reduce the loss of the safekeeping, it shall bear liability obligations. Therefore, our company can with Hungary businessman goods loss and the expenses claim back as soon as possible.
(《the international trade practice case analysis》 hubei province, people's press, 1999),
I an exporting company with a Hungarian businessman conclude the contract, pay export fruit for goods to the acceptance of the payment. But after the acceptance of the goods by the buyer discovered fruit total weight 10%, and lack of every fruit weight is under contract, the austro-hungarian contractor is refused to pay, also refused to take delivery. Then all the fruit rot, whom to Chinese customs and handling fees charged exceeding $50,000 fruit. I export company into a passive position.
[analysis]
The quantity of a commodity is the international sale of goods, the main conditions of the indispensable one. According to some national laws, the number of delivery must be in conformity with the contract stipulations, otherwise, the buyer is entitled to claim, or rejection of the goods. In the case of passive, but obviously we can still be argued that, a loss. Should first found shortweight belongs to the normal way without our breach or consumption amount paid, as stipulated in the contract, we should distinguish the default, fundamental breach or not belong to a fundamental breach. If do not belong to the fundamental breach, whom no refunds and dishonored payment party, can ask for a reduction or compensation for losses, As fundamental breach, may return, but should whom goods for safekeeping, fresh goods for resale, can reduce losses as far as possible. The United Nations convention on the international sale of goods (hereinafter referred to as the convention) article 86 first specified: "if the buyer has received the goods, but intends to exercise any right to contract or this convention, the goods returned, he must take proper measures according to the circumstance, to preserve goods, he is entitled to retain them until he had to pay the seller of the reasonable cost pay him." While not care whom square and reduce the loss of the safekeeping, it shall bear liability obligations. Therefore, our company can with Hungary businessman goods loss and the expenses claim back as soon as possible.
(《the international trade practice case analysis》 hubei province, people's press, 1999),
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