Answers to the Exercise of Chapter 5 – CISG

Auteur: H. Wevers
http://www.basicguidetointernationalbusinesslaw.noordhoff.nl/
isbn: 978-90-01-81554-7
© 2013 Noordhoff Uitgevers bv
Answers to the Exercise of Chapter 5
– CISG
Exercise 5.19
Question 1
Art. 2 EEX: the court of law of the place of residence of the defendant has
jurisdiction. The defendant is Gomez, the seller who is established in
Portugal. So, a Portuguese court of law has jurisdiction. In case of a general
provision there is an alternative jurisdiction. In this case Art. 5,1 EEX applies,
as this a matter related to a contract. The criterion of Art. 5, 1 EEX is that the
court of law of the place of performance of the obligation in question has
jurisdiction. The obligation in question is the delivery of the goods. The place
of delivery of the handbags is in Holland, so a Dutch court of law has
jurisdiction. Plaintiff Jansen gets to choose between these two alternatives.
Question 2
• Art. 3 ECO: no choice of law made by the parties, so opt for:
• Art. 4, 1, (a) ECO: the law of the country of the seller governs a
contract of sale, the seller is from Portugal, and so Portuguese law
governs this sales contract.
Question 3
• First: does the CISG apply to this case? According to 1,1 (a) CISG it
does not as Portugal is not a Contracting State of the CISG.
• So one has to look into Art. 1, 1 (b) CISG: again the CISG does not
apply as the rules of international private law i.e. ECO do not lead to
the application of a law of a Contracting State of the CISG, as
Portuguese law is the law applicable to the contract and Portugal is not
a Contracting State of the CISG.
• So Jansen can bring his claim against Gomez before a Dutch court of
law that has to judge his claim using Portuguese law.
Exercise 5.20
Question 1
• Art. 23 EEX states that an agreement on which court of law should
have jurisdiction has to be in writing and is therefore when made orally,
not valid. So turn to the general provisions.
• Art. 2 EEX: the court of law of the place of residence of the defendant
has jurisdiction. The defendant is Van Bemmel, so a Dutch court of law
has jurisdiction under this Article.
• Combine Art. 2 EEX with Art. 5,1 EEX (alternative jurisdiction) as the
matter is related to a contract. Look for place of performance of the
obligation in question, which is the place for payment. The parties did
not determine this place.
• Solution 1 applies: both parties are from countries that have signed the
CISG (Art. 1,1 (a) CISG). The place for payment is the place of
business of the Italian seller Picchi (Art. 57 CISG), which is in Italy. So
Italian law will determine what court of law has jurisdiction.
• The Italian plaintiff gets to choose between these two options.
A Basic Guide to International Business Law
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Auteur: H. Wevers
http://www.basicguidetointernationalbusinesslaw.noordhoff.nl/
isbn: 978-90-01-81554-7
© 2013 Noordhoff Uitgevers bv
-Question 2
Both contracting parties are from countries that have signed the CISG (Art.
1,1 (a) CISG): immediate application of the CISG in this case. Articles 53,60
CISG illustrate the breach of contract by Van Bemmel. Article 61 CISG gives
the options for the Italian seller: the options to be used here are in Articles 74
- 78 CISG, which is to claim damages with interest.
Exercise 5.21
Question 1
Art. 11 ECO on formal validity of a contract applies. According to French law
(the law that governs the contract chosen by the parties according to Art. 3
ECO) the contract is not formally valid, but under Spanish law (the contract
was closed in Spain) the contract does not have to be in writing. So the
contract is formally valid according to Spanish law.
Question 2
• Art. 23 EEX: the agreement on jurisdiction is not valid as it should have
been in writing, so turn to the general provisions
• Art. 2 EEX: the court of law of the place of residence of the defendant
has jurisdiction. The seller is the defendant; seller McCormick is from
the UK, so an UK court of law has jurisdiction.
• Alternative jurisdiction, combine Art. 2 EEX with Art. 5 EEX, in this case
5,1 EEX as the matter is related to a contract. Look for the place of
performance of the obligation in question, which is the place of delivery
that is agreed on by the parties. The place of delivery is in the UK, so a
UK court of law (again) has jurisdiction.
• French plaintiff Bourdon should have put the choice of a competent
court of law in writing (Art. 23 EEX) if he wanted to avoid an UK court
of law!
Question 3
• First: does the CISG apply in this case? Not under 1,1 (a) CISG as UK
is not a Contracting State.
• Art. 1,1 (b) CISG: we can use the CISG if the rules of private
international law (i.e. ECO) lead to the application of the law of a
Contracting State. Art. 3 ECO: French law is the law chosen by the
parties and France is a Contracting State of the CISG, so we can use
the CISG to solve this problem related to a sales contract according to
Art. 1,1 (b) CISG.
• Art. 35 CISG: breach of contract by the English seller (no delivery
made),
• Art. 45 CISG: options for the French buyer are in this case:
• First option: 49 CISG (which is to nullify the contract, as in that situation
there is the possibility for the buyer of receiving restitution of price paid
(Art. 81,2 CISG) with interest (Art. 84 CISG).
A Basic Guide to International Business Law
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Auteur: H. Wevers
http://www.basicguidetointernationalbusinesslaw.noordhoff.nl/
•
isbn: 978-90-01-81554-7
© 2013 Noordhoff Uitgevers bv
Second option: the French buyer Bourdon has the right to claim
damages (Art. 74 CISG).
Exercise 5.22
Question 1
• Art. 2 EEX: the court of law of the place of residence of the defendant
has jurisdiction. Defendant is Trapper Jeans B.V., which is established
in Holland, so a Dutch court of law has jurisdiction.
• Alternative jurisdiction: combine Art. 2 EEX with Art. 5,1 EEX as it is a
matter related to a sales contract. The court of law that has jurisdiction
is the court of law of the place of performance of the obligation in
question. This obligation is making delivery of the goods. As the
delivery of the jeans was not in order and the place for the delivery is in
Germany, a German court of law has jurisdiction.
• Plaintiff gets to choose between these two options.
Question 2
• Art. 3 ECO: there is no law chosen by the parties, so turn to Art. 4
ECO.
• Art. 4, 1, (a) ECO states that the law of the country of the seller
governs a contract of sale. As we have a Dutch seller, Dutch law
governs this contract.
Question 3
• Art. 1,1,(a) CISG: direct application of the CISG as both parties are
from countries that signed the CISG.
• Art. 35 CISG: there is breach of contract by seller Trapper Jeans B.V.,
so move to Art. 45 CISG for the options of buyer Sigmund:
• First option: Sigmund may reduce the price based on Art. 50 CISG and
• Second option: Sigmund then has to nullify the contract with Trapper
Jeans based on Art. 49,1,a CISG before he can claim compensation
for the extra costs he made in the substitute transaction based on Art.
75 CISG. In this case there is a fundamental breach of contract.
• Last option: Sigmund can claim damages on grounds of Art. 74 CISG
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