scholarly journals The Danger of Domestic Pre-Conceived Views with Respect to the Uniform Interpretation of the CISG: The Question of Avoidance In the Case of Non-Conforming Goods and Documents

2019 ◽  
Vol 36 (4) ◽  
pp. 795
Author(s):  
Ingeborg Schwenzer
Keyword(s):  
Common Law ◽  
Case Law ◽  
International Sale Of Goods ◽  
International Sales ◽  
Sales Practice

Professor Schwenzer compares common law notions about a party's ability to avoid a sales contract with the position under article 49 of the Convention on the International Sale of Goods.  Having noted that the approach of the CSIG has given rise to criticism, she then argues that such criticism is unfounded and that, moreover, the CSIG's provisions reflect the reality of international sales practice and case law.

Formation of contracts for the international sale of goods under Korean law and the CISG

2017 ◽  
Vol 21 (3) ◽  
pp. 208-223
Author(s):  
Byung Mun Lee
Keyword(s):  
Comparative Study ◽  
Design Methodology ◽  
Case Law ◽  
The Other ◽  
Basic Question ◽  
Content Type ◽  
International Sale Of Goods ◽  
The Comparative Study ◽  
International Sales ◽  
Insight Into

Purpose The purpose of this paper is to describe and analyze the rules on the formation of contracts under Korean law and the Contracts for the International Sale of Goods (CISG) in a comparative way and introduce the relevant proposed rules under the Amendment Draft of the Korean Civil Code (KCC). In addition, it attempts to compare and evaluate them in light of the discipline of comparative law. Design/methodology/approach In order to achieve the purposes of the study, it executes a comparative study of the rules as to the formation of contracts of the CISG, Korean law and the Amendment Draft of the KCC. The basic question for this comparative study is placed on whether a solution from one jurisdiction is more logical than the others and to what extent each jurisdiction has responded to protect the reasonable expectations of the parties in the rules as to the formation of contracts. Findings The comparative study finds that most of the rules under the CISG are quite plausible and logical and they are more or less well reflected in the proposals advanced by the KCC amendment committee. On the other hand, the other rules under the CISG which have brought criticisms in terms of their complexity and inconsistent case law invite us their revision or consistent interpretation. The drawbacks of the CISG have also been well responded in the Amendment Draft of the KCC. Nevertheless, it is quite unfortunate that the Amendment Draft of the KCC still has a rule that regards any purported performance with non-material alteration of the terms of an offer as an acceptance. Originality/value This study may provide legal and practical advice to both the seller and the buyer when they enter into a contract for international sales of goods. In addition, it may render us an insight into newly developed or developing rules in this area and show us how they interact with each other. Furthermore, it may be particularly useful in Korea where there is an ongoing discussion for revision of the KCC.

Part I International Sales Governed by English Law, 9 Remedies: Termination and Damages

2017 ◽  
Author(s):  
Bridge MG
Keyword(s):  
Common Law ◽  
Standard Form ◽  
Breach Of Contract ◽  
The Common ◽  
Penalty Clauses ◽  
English Law ◽  
International Sale Of Goods ◽  
International Sales ◽  
Statutory Basis

This chapter deals with remedies for breach of contract to the extent that they have a particular application to international sale of goods agreements. Attention is given to termination for breach and damages. Even here, however, certain aspects (for example, penalty clauses) are left to general works on contract and sale of goods. This chapter also examines clauses in standard form contracts dealing with the quantification of money awards; they commonly depart from the common law and statutory basis for assessing damages. In addition, though they fall outside breach of contract, the chapter also looks to certain settlement clauses, operative in the event of an insolvency or of a circle appearing in the sales string.

scholarly journals The United Nations convention on contracts for the international sale of goods (cisg) and the Common Law: the challenge of interpreting Article 7

IUSTA ◽  
2015 ◽  
Vol 1 (40) ◽  
Author(s):  
Isabel Cristina Salinas Alcaraz
Keyword(s):  
United Nations ◽  
Common Law ◽  
Case Law ◽  
The Common ◽  
United Nations Convention ◽  
The United Nations ◽  
International Sale Of Goods ◽  
International Character

The interpretative methodology applied in Common Law CISG jurisprudence has driven a disparity of reasoning that hinders a uniform application of its provisions. This result is inconsistent with CISG Article 7 which mandates interpretation of the convention in accordance with its international character and the need to promote uniformity. This paper discusses the multiple aspects that have affected the uniform interpretation of CISG norms, including a reference to the case law in USA, Australia and Italy. Finally, the Unidroit principles are presented as an aid to overcome the difficulties in the application of CISG article 7.

Interpreting merger clauses in contracts governed by the CISG: delineating the scope for the use of extrinsic evidence

2021 ◽  
Author(s):  
Aditya Suresh
Keyword(s):  
United Nations ◽  
Common Law ◽  
Advisory Council ◽  
Sales Contracts ◽  
Opt Out ◽  
United Nations Convention ◽  
The United Nations ◽  
International Sale Of Goods ◽  
International Sales

Abstract Under Article 8(3) of the United Nations Convention on Contracts for the International Sale of Goods (CISG), parties’ statements, prior negotiations and other external circumstances may be used to assess the presence of subjective or objective intent that can, in turn, be used to interpret contractual terms in international sales contracts governed by the CISG. However, parties to the contract can, through the adoption of an ‘entire agreement’ or ‘merger’ clause, opt out of this rule under Article 8(3) and restrict these interpretative tools in any manner as they see fit, depending on the requirements of their contract. Since the CISG does not explicitly address merger clauses and their effects, the CISG Advisory Council, in its Opinion no. 3, has provided a test to determine how the scope of a merger clause is to be determined. However, this test presents certain conceptual and practical limitations that render it inadequate for use in international commercial contracts. This article aims to analyse this test and the methods that have been used to interpret merger clauses under other uniform legal instruments and cases in common law jurisdictions. On this basis, the article proposes a test that attempts to fully capture the conceptual intent behind including merger clauses while ensuring that the parties are in the driver’s seat while determining their scope and effect.

scholarly journals The CISG and Common Law Courts: Is There Really a Problem?

2004 ◽  
Vol 35 (3) ◽  
pp. 711
Author(s):  
Henning Lutz
Keyword(s):  
United Nations ◽  
Common Law ◽  
Case Law ◽  
Sources Of Information ◽  
Related Case ◽  
United Nations Convention ◽  
The United Nations ◽  
International Sale Of Goods ◽  
Law Courts

The United Nations Convention on Contracts for the International Sale of Goods (CISG) is generally perceived as a successful example of unified law with 62 contracting states so far. However, this impressive number has not resulted in an evenly-spread acceptance of the CISG worldwide. The scarcity of CISG-related case law from common law countries has led to the assumption that common law jurisdictions have specific issues with the application of the CISG. This article examines the various explanations for this phenomenon that have been put forward so far, primarily through an analysis of case law. The article disproves the contention that common law jurisdictions, when interpreting the CISG, employ a narrow approach, persistently adhere to common law specific concepts, or are generally reluctant to refer to scholarly writings. It emerges that the CISG is a well-known feature in most common law courtrooms, applied by judges with growing skill and prudence. The article concludes that often common law lawyers are more ignorant and unfamiliar with the CISG than judges and appeals to them to improve their knowledge by taking advantage of the numerous sources of information about the CISG.

scholarly journals CODIFICATION, CONSOLIDATION, RESTATEMENT? HOW BEST TO SYSTEMISE THE MODERN LAW OF TORT

2021 ◽  
Vol 70 (2) ◽  
pp. 271-305
Author(s):  
Paula Giliker
Keyword(s):  
Comparative Study ◽  
Common Law ◽  
Civil Law ◽  
Tort Law ◽  
Case Law ◽  
Legal Scholarship ◽  
Legal Rules ◽  
The Law ◽  
Codal Provisions ◽  
Code Civil

AbstractThe law of tort (or extra or non-contractual liability) has been criticised for being imprecise and lacking coherence. Legal systems have sought to systemise its rules in a number of ways. While civil law systems generally place tort law in a civil code, common law systems have favoured case-law development supported by limited statutory intervention consolidating existing legal rules. In both systems, case law plays a significant role in maintaining the flexibility and adaptability of the law. This article will examine, comparatively, different means of systemising the law of tort, contrasting civil law codification (taking the example of recent French proposals to update the tort provisions of the Code civil) with common law statutory consolidation and case-law intervention (using examples taken from English and Australian law). In examining the degree to which these formal means of systemisation are capable of improving the accessibility, intelligibility, clarity and predictability of the law of tort, it will also address the role played by informal sources, be they ambitious restatements of law or other means. It will be argued that given the nature of tort law, at best, any form of systemisation (be it formal or informal) can only seek to minimise any lack of precision and coherence. However, as this comparative study shows, further steps are needed, both in updating outdated codal provisions and rethinking the type of legal scholarship that might best assist the courts.

The Privilege of Information—An Examination of the Defence of Therapeutic Privilege and its Implications for Pregnant Women

2021 ◽  
Author(s):  
Aoife M Finnerty
Keyword(s):  
Pregnant Women ◽  
Postpartum Period ◽  
Patient Autonomy ◽  
Common Law ◽  
Case Law ◽  
England And Wales ◽  
Judicial Scrutiny ◽  
Therapeutic Privilege ◽  
Professional Guidelines ◽  
In Pregnancy

Abstract Though apparently in existence across common law countries, the defence of ‘therapeutic privilege’ receives scant judicial analysis in case law. The extent of its reach is unclear and its underpinning justification is shaky. Often it forms a throwaway remark or poorly explored caveat when the duty of a physician to disclose information is being examined, rather than receiving any detailed judicial scrutiny in its own right. Furthermore, despite references to it in case law, it is questionable if it has ever successfully been invoked as a defence in either England and Wales or Ireland. This piece examines this lack of clarity and the often-vague references to the existence of therapeutic privilege in both case law and professional guidelines, followed by a consideration of why the defence may be particularly problematic and unjustified in the context of childbirth and the immediate postpartum period. Considering the dangers of therapeutic privilege in pregnancy presents a timely opportunity to examine the issues with the use of the defence in all other healthcare contexts, focusing particularly on its impact on individual patient autonomy. Finally, this piece concludes by contending that therapeutic privilege ought to be abolished, if it truly exists at all.

English Foundations of American Law, 1500s–1776

2018 ◽  
pp. 48-74
Author(s):  
John B. Nann ◽  
Morris L. Cohen
Keyword(s):  
Eighteenth Century ◽  
Common Law ◽  
Case Law ◽  
Case Finding ◽  
Colonial Period ◽  
Legal Issue ◽  
Good Case ◽  
American Law ◽  
English Law ◽  
The Law

This chapter describes current sources and techniques useful for finding seventeenth- and eighteenth-century laws of England and introduces some methods an attorney in England in the seventeenth and eighteenth centuries might have used. Before researchers can find the law, they must know what was considered to be the source of law in the period being investigated. Reporting, publishing, and finding cases has been important in English law for centuries. Parliamentary enactments during the colonial period also play an important part in the framework surrounding any particular legal issue. Meanwhile, English law is built on a foundation of common law, which is built on case law. As such, finding cases that relate to a particular topic is critical in research. A good case-finding option is a digest of cases; these have been written over the centuries, as have abridgments and treatises on particular areas of law.

scholarly journals ROLE OF FICTIONS IN REGULATION OF PROPERTY RELATIONS IN THE MEDIEVAL ENGLISH LAW

2016 ◽  
pp. 0-0
Author(s):  
Роман Рыбаков ◽  
Roman Rybakov
Keyword(s):  
Common Law ◽  
Case Law ◽  
Historical Method ◽  
Property Relations ◽  
Legal Method ◽  
The Common ◽  
Legal Fictions ◽  
Interpretation Method

The article is devoted to legal fictions in regulating property relations in the English medieval common law (XIII—XVII centuries). Fictions are explained as features influencing the development of law, means of expansion of courts’ jurisdiction and mechanisms of the development of remedies protecting property relations. The article focuses on the role of fiction during the appellate review stage. Relevant case law is analyzed in this article. In this research the author uses the following set of methods of scientific cognition: dialectical method, historical method as well as special scientific research methods, such as technical legal method, comparative law method, formal legal method and legal interpretation method. This research results in better understanding of the role of fictions during the appellate review stage and provides analysis of differences between legal fictions used in the medieval civil law and the common law. In conclusion, the author suggests a classification of legal fictions’ functions in the medieval English common law.

scholarly journals Let Them Learn

2021 ◽  
Vol 7 (2) ◽  
pp. 230-260
Author(s):  
Christian Martinez
Keyword(s):  
Critical Analysis ◽  
Oil And Gas ◽  
Common Law ◽  
Case Law ◽  
The Self ◽  
Self Assessment ◽  
Proposed Model ◽  
Design Build ◽  
Free Flow Of Information ◽  
Flow Of Information

Organizations often conduct probing self-studies to review internally existing policies, procedures, and business methods. Yet, despite an increasing social need for these studies, the Texas legislature has yet to construct a privilege designed to protect an organization from being harmed from these studies by adverse litigants. The self-critical analysis privilege, or SCAP, is an alluring, common law doctrine that protects the free flow of information sharing through an organization’s self-assessment. This Comment proposes a model statute for the codification of the SCAP for the consideration of the Texas legislature. This model statute is not a general codification of the privilege. Instead, the statute is meant to apply only to Texas’s Design-Build industry. This Comment discusses the significant policy considerations supporting the SCAP and analyzes case law to derive proper drafting language. Although this proposed model statute narrowly applies to Texas’s Design-Build industry, the hope is to have a workable statute that could apply to general products, oil and gas, and other property related industries.

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