外贸英文制单(第四版)
张爱玲 主编
WAIMAO YINGWEN ZHIDAN
责任编辑 田玉春
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成本尺寸 170 毫米×240 毫米 1 / 16
字 数 517 千字
印 张 23
版 次 2010 年 1 月第 1 版 2013 年 10 月第 2 版
2018 年 1 月第 3 版 2024 年 6 月第 4 版
2024 年 6 月总第 7 次印刷
书 号 ISBN 978-7-5638-3702-1
定 价 48. 00 元
图书印装若有质量问题,本社负责调换
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Contents
目 录
Chapter 1 Overview / 1
1. 1 Definition / 2
1. 2 Functions / 2
1. 3 Types / 4
1. 4 Quality Requirements / 6
1. 5 Key Documents and Procedures Involved in International Trade / 9
Questions and Problems / 15
Chapter 2 International Contract of Sale / 17
2. 1 Definitions / 17
2. 2 Governing Laws and Usual Practices / 18
2. 3 Types / 20
2. 4 Formation of Contract / 22
2. 5 Breach of Contract / 26
2. 6 Contents / 28
2. 7 Online Trading Related Model Laws / 31
Questions and Problems / 33
Appendix / 40
Chapter 3 Documentary Letter of Credit / 55
3. 1 Definition / 56
3. 2 Parties Concerned / 57
3. 3 Procedures / 58
3. 4 Types / 61
3. 5 Contents of a Letter of Credit / 67
3. 6 Checklists of Documentary Credit / 72
Questions and Problems / 80
Appendix / 88
1
Chapter 4 Delivery Documents / 90
4. 1 Commercial Invoice / 91
4. 2 Packing List / 101
4. 3 Weight List / 105
Questions and Problems / 108
Appendix / 114
Chapter 5 Transport Documents / 127
5. 1 Introduction / 128
5. 2 Bill of Lading / 133
5. 3 Charter Party Bill of Lading / 151
5. 4 Sea Waybill / 153
5. 5 Air Waybill / 163
5. 6 Road, Rail or Inland Waterway Transport Documents / 172
Questions and Problems / 176
Appendix / 182
Chapter 6 Insurance Documents / 191
6. 1 Marine Cargo Insurance: Essentials / 192
6. 2 Insurance Documents / 194
6. 3 Usual Customs and Practices / 199
Questions and Problems / 204
Appendix / 211
Chapter 7 Payment Documents / 213
7. 1 General Introduction / 214
7. 2 Bill of Exchange / 217
7. 3 Promissory Notes / 240
7. 4 Check / 245
Questions and Problems / 250
Chapter 8 Official Documents / 256
8. 1 Export License / 257
8. 2 Certificate of Origin / 261
2
8. 3 Certificate of Inspection / 267
8. 4 Customs Declaration Form / 269
8. 5 Import License / 282
Questions and Problems / 286
Appendix / 293
Chapter 9 Improving International Trade Documentation / 318
9. 1 Simplification / 319
9. 2 Standardization / 320
9. 3 Harmonization / 321
9. 4 Automation / 322
9. 5 Implementation Requirements / 324
References / 326
Key to Questions and Problems / 329
Postscript(1st Edition) / 350
Postscript(2nd Edition) / 354
Postscript(3rd Edition) / 356
Postscript(4th Edition) / 358
3
Chapter 1 Overview
Chapter 1 Overview
【本章提要】
鉴于对外贸易的国际性和复杂性,外贸单证的作用至关重要。 了解外贸单证的常见
种类、基本内容,以及有关国际惯例,无论是对进出口商、贸易促进机构还是政府相关部
门,都显得十分必要和重要。
在对外贸易实践中,外贸单证通常用作履约证明、物权证明、结算与融资工具等,极大
促进了国际贸易的顺利、有效进行,甚至被称为对外贸易的发动机。
外贸单证贯穿于对外贸易的各个阶段。 基于不同视角,外贸单证可分为进口单证/ 出
口单证,基本单证/ 附加单证,金融单证/ 商业单证,贸易商单证/ 专业机构单证/ 官方单证,
交货/ 运输/ 保险/ 支付/ 官方手续单证。
要做好外贸单证,需谨记三个 C(完整、正确、简明)和一个 T(及时)。
According to the statistics of OECD, an average overseas transaction needs 35 kinds of
documents with a total of 360 copies. Trade documentation and related procedures are an important component of international trade transactions and international trade facilitation system.
One key reason is that overseas trades are international. Sellers and buyers are typically located across borders, and hence they need something to evidence the performance of their main
obligations—the complying delivery of the contracted goods and the duly payment at the agreed
price. Particularly in the cases of sales under FOB, CFR and CIF trade terms, the international
trade is performed by symbolic delivery and documentary payment, i. e. the sellers tender the
trade documents in exchange for payment from the buyers①.
Another important reason is that overseas trades are complex. The smooth going of international trade usually demands close cooperation and effective coordination among many supporting sectors, which all demand a specific kind of document. For instance, the carrier or the
freight forwarder needs a document to witness the receipt of goods, the carriage contract and the
title of goods (if necessary). The insurance company needs a certificate to prove their contractual relationship with the insured. The inspection organization needs a document to certify the
results of inspection. The customs authority needs a customs invoice and other related documents to clear the customs procedures. The bank, particularly under a letter of credit, needs to
1
① UNCTAD secretariat. The Use of Transport Documents in International Trade. UNCTAD/ SDTE/ TLB,2003(03).
Foreign Trade Documentation
determine whether the documents presented by the beneficiary constitute a complying presentation and decides to honor/ negotiate it or not.
Consequently, it is of great necessity for dealers to get familiar with international trade
documentation, including essentials, facts, documentation techniques and tendencies, and for
government agencies and international trade facilitation organizations to improve trade documents
by simplification, standardization, harmonization and automation.
Although there is no substitute for practical experience, this book will provide the reader
with a solid foundation on which to build further knowledge of the documentary requirements of
international trade.
1. 1 Definition
The word document originated from the Latin word documentum. It can be used as a noun,
which means a piece of paper that provides an official record of something. It can also be used
as a verb, which means to support (a claim) with evidence①.
Professionally, “ documents” means financial documents and / or commercial documents,
where “financial documents” include bills of exchange, promissory notes, cheques, or other
similar instruments used for obtaining the payment of money, and “ commercial documents”
include invoices, transport documents, documents of title or other similar documents, or any
other documents whatsoever, not being financial documents②.
International trade documents here refers to the generally used documents in international
trade transaction, in paper or digital form. No matter what kind of payment technique is used,
the delivery of the goods and the payment of the contract value are usually based on the documents relating to the transaction. They are even more important in the case of L / C payment.
This book is to discuss the documents relating to letter of credit transactions, from the perspective of businessmen and banks respectively.
1. 2 Functions
Generally, trade documents play important roles in international trade payment. Under any
letter of credit, banks deal with documents but not goods, services or performance to which the
2
①
②
Collins Essential English Dictionary. 2nd Edition. HarperCollins Publishers 2004, 2006.
URC 522 (Uniform Rules for Documentary Collections, ICC Publication No. 522) Article 2. ICC ( International
Chamber of Commerce) is a non-profit, private international organization that works to promote and support global trade and
globalization. It serves as an advocate of some world businesses in the global economy, in the interests of economic growth,
job creation, and prosperity. As a global business organization, made up of member states, it helps the development of global
outlooks on business matters. ICC has direct access to national governments worldwide through its national committees among
others.
Chapter 1 Overview
documents may relate①, and the beneficiary can obtain the proceeds of goods from the bank
only when the stipulated documents are duly presented to the nominated bank, to the confirming
bank, or to the issuing bank and they constitute a complying presentation②. The significance of
documents in L / C based international trade can never be overstated. Similarly, the “ collection” means the handling of documents ( commercial documents and financial documents)③.
However, documents may have the following important functions in fields other than the payment.
1. 2. 1 Evidencing the Fulfillment of Obligations
Documents serve as the evidence that the exporter has fulfilled its obligations under a sales
contract. The importer effects payment against the documents submitted by the exporter, for the
documents describe the details of the transaction.
For example, commercial invoice, the seller’s bill of sale for the goods sold, specifies type
of goods, quantity and price of each type and terms of sale④. From the contents of commercial
invoice, the buyer can determine whether the goods purchased apparently comply with the sales
contract. A clean, shipped on board bill of lading implies that the seller has delivered the contracted goods on board the vessel at the port of shipment on the date or within the agreed period
and in sound condition. And a certificate of origin certifies the country of origin of the merchandise required by certain foreign countries for tariff and other non-tariff purposes. Therefore, providing necessary documents are usually one of the most important obligations of the seller.
Taking CFR for instance, according to Incoterms
®
2020⑤, in addition to providing the
goods in conformity with the contract of sale, the seller must provide the commercial invoice,
the usual transport document for the agreed port of destination, export license or other official
authorization,and any other evidence required by the contract. Where the seller and the buyer
have agreed to communicate electronically, the document mentioned above may be replaced by
an equivalent electronic data interchange (EDI) message⑥.
1. 2. 2 Representing the Title to the Ownership of the Goods
As for the buyer/ consignee, a document of title needs to be presented in order to obtain
delivery of the goods from the carrier. This type of document provides exclusive control over the
goods, that is, controlling the documents means controlling the goods. If the document is made
out in negotiable form, the rights inherent in the document may be transferred by delivery of the
3
①
②
③
④
⑤
⑥
UCP 600 (Uniform Customs and Practices for Documentary Credits, ICC Publication No. 600) Article 5.
UCP 600 Article 7 and 8.
URC 522 Article 2a.
http: / / www. lectlaw. com/ def / c062. htm.
International Rules for Interpretation of Trade Terms, ICC Publication No. 715. It took effect in the year 2020.
Incoterms
® 2020, CFR: A1, A2, A4, A8, A10.
Foreign Trade Documentation
document, with any necessary endorsement①. In this case, the seller delivers the goods by releasing the documents, transfer the title to the goods by delivering the documents.
This role that documents play makes it possible for the seller to sell the goods in transit, for
the carrier to deliver the goods to the bona fide owner of the goods; and for the banks to get
involved in international trade.
1. 2. 3 Instrument of Financing
Trade documents represent the title to the ownership of the goods, and thus they allow
for the trade finance in international trade practice. For example, in the case of L / C, the
beneficiary may discount / negotiate the trade documents with the negotiating bank before the
time of payment is due; in the case of documentary collection on D / P after sight basis, the
importer may borrow the documents with a “ trust receipt” from the collecting bank and improve their liquidity; in the case of open account transaction, the exporter may sell his trade
documents to a factor or forfeiter without recourse, and obtain proceeds of goods sold in advance.
1. 2. 4 Facilitating International Trade
Trade documents can help identify the import and export items in terms of description,
value and ownership for trade and control purposes. They allow for the tracking of cargo so that
the importers and exporters know where their shipments are and when they will arrive at the final destination. Trade documents are also important evidence of goods clearance. They can be
used for trade finance and payment for the goods in the case of L / C②.
While trade documents are an integral and necessary part of international trade, trade
documentation and related procedures are an important component of the trade facilitation system. Efforts have been made to simplify and improve trade documentation to facilitate international trade.
Accordingly, documents are the engine of international trade. Errorless documents, to a
great extent, can facilitate the movement of goods, the transfer of goods title, the processing of
payment, the customs clearance, and the healthy development of international trade.
1. 3 Types
Using different criterion, trade documents can be categorized into different types.
1. 3. 1 Importation / Exportation Documents
According to the direction of goods movements, trade documents can be grouped into
4
①
②
UNCTAD secretariat. The Use of Transport Documents in International Trade. UNCTAD/ SDTE/ TLB,2003(03).
http: / / www. unescap. org / tid / publication / chap4_2224. pdf.
Chapter 1 Overview
importation documents and exportation documents. The former includes import permit / license
(if necessary), letter of credit under L / C based transaction, import customs declaration under
trade terms other than DDP, etc. The latter includes export permit / license (if necessary), certificate of inspection, export customs declaration under trade terms other than EXW, commercial invoice, packing list, certificate of origin (if necessary), insurance policy under CIF and
CIP trade terms, bill of exchange, etc.
1. 3. 2 Basic / Additional Documents
According to the roles that documents play in international trade, trade documents can be
divided into basic documents and additional ones. Basic documents are usually required in
every typical trade transaction, for instance, under CIF trade term, commercial invoices, bills
of lading, insurance policies are the basic documents provided by the exporter. While additional
documents are not necessarily required in every trade transaction, such as customs invoices,
consular invoices, certificates of origin, certificates of inspection, etc.
1. 3. 3 Financial / Commercial Documents
According to the nature and function of documents in international trade, trade documents
can be classified into financial documents and commercial documents. Financial documents
refer to negotiable documents of unconditional order or unconditional promise to pay, including
drafts, promissory notes, cheques, or other similar instruments in international payment.
Commercial documents are usually called shipping documents, including commercial invoices,
transportation documents, or other non-financial documents.
1. 3. 4 Trader/ Professional Organization / Official Documents
According to the issuer of documents, trade documents can be categorized into trader’ s
documents, professional organizations’documents, and official documents. Drafts, commercial
invoices and packing lists are usually made and issued by the exporter under a sales contract.
Bills of lading are usually prepared by the exporter and signed by the carrier. Insurance policies/ certificates are issued by insurance company. While customs invoices, consular invoices,
import / export licenses, certificates of origin, and certificates of inspection are issued by governmental institutions or NGOs.
1. 3. 5 Delivery / Transportation / Insurance / Payment / Formality
Documents
According to the international trade procedures to which the documents may relate, trade
documents may be sorted into delivery documents, transportation documents, insurance documents, payment documents, and formality documents.
Specifically, delivery documents are closely related to the goods delivery, including
commercial invoice, packing list, and weight list. Transportation documents evidence goods
5
Foreign Trade Documentation
receipts, carriage contract, and title of goods sold, consisting of negotiable bill of lading,
non-negotiable bill of lading, other transport documents and their electronic alternatives. Insurance documents are issued by the insurer to the insured, covering insurance policy, insurance
certificate, and a declaration under an open cover. Payment documents are drafts, promissory
notes and checks. Formality documents are required for the sake of formality, such as import
and export permits/ license, certificate of origin, certificate of inspection, customs invoice, and
consular invoice.
Moreover, according to the relationship of trade documents and their status in international
trade, trade documents may be labeled as original documents and derivative documents. For
instance, sales contract is usually the original and underlying document of many derivative
documents, including commercial invoice, and L / C.
Due to its high frequency of practical use, letter of credit itself is often regarded as one of
the international trade documents.
To sum up, a document may belong to more than two types of trade documents. For example, an original clean on board bill of lading is a basic exportation document, signed by carrier
as a transportation document and goods title, and it is a kind of commercial document. Hereinafter, this book will present the trade documents in detail according to the international trade
procedure.
1. 4 Quality Requirements
Trade documents with good quality are the key to effective and efficient international trade
and payment. Generally, verification of the documents includes checking the following:
completeness, correctness, timeliness, and conciseness.
1. 4. 1 Completeness
Completeness here has three meanings.
(1) The types of trade documents must be complete. The type requirement of trade
documents depends on the specific trade term, payment term, statutory requirements, and
international usual customs and practices. In addition to the basic documents, some
additional documents ( if necessary) must be presented completely and duly. For example,
in the case of an L / C based transaction under CIF trade term, the complete set of trade
documents usually include commercial invoice, bill of lading, certificate of inspection,
insurance policy, bill of exchange, packing list, general certificate of origin, manufacturer’ s
certificate, shipping advice, beneficiary’s statement, GSP(generalized system of preference)certificate of origin, and certificate of shipping company.
(2) The number of documents required must be complete. Transport document must
6
Chapter 1 Overview
indicate the number of originals that has been issued, “be the sole original transport document
or, if issued in more than one original, be the full set as indicated on the transport document”①. For instance, an L / C term as “full set of 3 / 3 original Bill of Lading” implies that the
number of the full set of original B / L is three, and the beneficiary is required to submit the
original B / L in triplicate. Omitted or redundant number of documents must be avoided.
(3) The contents of trade documents must be complete. As for the financial documents, all
rights and obligations of negotiable instruments must be literally determined, and thus they must
be in the form of a document containing certain requisite items. For instance, a bill of exchange
(B / E) must be in writing, signed by the maker or drawer, be an unconditional order to pay,
state a fixed amount of money, not require any undertaking in addition to the payment of
money, be payable on demand or at a definite time, and be payable to order or to bearer②. A
B / E with one of the above-mentioned items omitted will be null. As for the commercial documents, all rights and obligations of parties concerned must subject to the contents of relevant
document. For example, commercial invoice usually include the word “ invoice”, the invoice
number, date, beneficiary’ s name and address, consignee’ s name and address, shipping
mark, article number, specification, quantity, packing, unit price, total value, and the required signature. Incomplete documents will be void and not be accepted by banks.
1. 4. 2 Correctness
Correctness is the most important quality requirement for trade documentation and trade
payment settlement. Correct documents are the basis of complying presentation and duly payment from the bank or the buyer. The so called correctness here has seven meanings:
•Conformity with all the terms and conditions of the sales contract.
•Conformity with all the terms and conditions of the Letter of Credit.
•Consistency of the documents.
•Consistency of the goods delivered.
•Compliance with the International Chamber of Commerce (ICC) Uniform Customs and
Practice for Documentary Credits, ICC Publication No. 600 (UCP 600) and subsequent revisions.
•Compliance with the International Standard Banking Practice [e. g. International Standard
Banking Practices for Documents Examinations, ICC Publication No. 821(ISBP 821) and subsequent revisions].
•Compliance with the trade rules, statutory requirements and administrative regulations of
the importing / exporting countries.
7
①
②
UCP 600 Article 19.
UCC (Uniform Commercial Code) 3 - 104(a).
Foreign Trade Documentation
1. 4. 3 Timeliness
Timeliness of trade documents is the basic requirement of trade documentation and important guarantee of timely payment. For instance, an L / C usually stipulates time of shipment,
validity of L / C, validity for presentation and negotiation. Tardy documentation may prevent
from the smooth going of shipment, inspection, customs declaration, loading, shipment and
payment. As for the timeliness of trade documents, there are two aspects.
(1) The documents must be dated logically. For instance, a document may be dated prior
to the issuance date of the letter of credit, but must not be dated later than its date of presentation①; the date of commercial invoice can not be later than that of B / L and insurance policy;
the date of B / L can not be earlier than the L / C stipulated earliest date of shipment, and not be
later than the L / C stipulated latest time of shipment; the date of insurance policy / certificate
can not be later than the date of B / L; the date of packing list should be later than the date of
commercial invoice and earlier than the date of B / L; the date of certificate of origin can not be
earlier than the date of commercial invoice, but not later than the date of B / L; the date of shipping advice cannot be earlier than the date of B / L.
(2) The documents must be presented to the related party in due time. A presentation
including one or more original transport documents must be made by or on behalf of the beneficiary no later than 21 calendar days after the date of shipment as described in these rules, but
in any event not later than the expiry date of the credit②. Later presentation of documents will
constitute stale documents, which will not be accepted by banks, and thus payment cannot be
obtained duly.
1. 4. 4 Conciseness
Conciseness of trade documents refers to simplified and clear content, standard and reasonable format, and tidy appearance. All these requirements aim at avoiding unnecessary errors
and omissions, improving the quality of trade documents and thus increasing their operation
efficiency.
(1) Contents simplification. For instance, the description of the goods, services or performance in a commercial invoice must correspond with that appear in the credit③, while the
description of the goods, services or performance, if stated, in documents other than the commercial invoice, may be in general terms not conflicting with their description in the credit④.
(2) Format standardization. In order to avoid the complexities and cumbersomeness for
8
①
②
③
④
UCP 600 Article 19.
UCP 600 Article 14.
UCP 600 Article 18 (c).
UCP 600 Article 14(e).
Chapter 1 Overview
traders to complete and for authorities to verify the trade documents, some standardized and
harmonized document layouts are strongly recommended by some international or governmental
organizations and NGOs, including the SWIFT ( Society for Worldwide Inter-bank Financial
Telecommunication), the ISO ( International Organization for Standardization ), the UN/
CEFACT (United Nations Centre for the Trade Facilitation and Electronic Business), the UNTDED (United Nations Trade Data Elements Directory), the UN/ EDIFACT (United Nations Electronic Data Interchange for Administration, Commerce and Transport), and the SITPRO of
U. K. , etc. ①Moreover, some international usual customs and practices as UCP 600, ISBP 821
for UCP 600, URC 522, Incoterms
®
2020 and the like may provide useful governance for trade
documents completion and verification.
(3) Appearance tidiness. A tidy-looking document may indicate the precise working style
of the document makers, the professional image and high efficiency of the company. In order to
guarantee the tidiness of the documents, some international standards mentioned above should
be adopted. Furthermore, some unnecessary corrections and alterations must be precluded.
However, you can make some necessary corrections and alterations with authentication. For
instance, if there are any corrections and alterations need to be made on a draft, they must have
been authenticated by the drawer. It is worthy of noting that, in some countries a draft showing
corrections or alterations will not be acceptable even with the drawer’ s authentication. Issuing
banks in such countries should make a statement in the credit to the effect that no correction or
alteration should appear in the draft②. Similarly, corrections and alterations on a bill of lading
must be authenticated. Such authentication should be made by the carrier, master (captain) or
any of their agents (if different from the agent issued / signed it), provided that they are identified as an agent of the carrier or the master (captain). Non-negotiable copies of bills of lading
do not need to include any signature or authentication when there is alteration or correction
made on the original③.
1. 5 Key Documents and Procedures Involved in International
Trade
1. 5. 1 Registration
In most countries, the company engaged in imports and exports is required to register④
9
①
②
③
④
UNCTAD Trust Fund for Trade Facilitation Negotiations Technical Note No. 13, Simplification of Trade Documentation
using International Standards.
ISBP 821 for UCP 600 Article 55-56.
ISBP 821 for UCP 600 Article 109-110.
There are professional agency specializing the registration for charging commissions.
Foreign Trade Documentation
with a government authority such as the Ministry of Commerce or the Registry of Companies①.
Generally the registration has three important functions: to identify the importing and
exporting companies; to collect their trade statistics; and to exercise some control over their activities. In order to reduce the costs of starting an import / export business and facilitate trade, most
countries including China have been making efforts to simplify the procedure of the registration.
A digital or paper application form of registration is firstly required to complete by the company.
The application form typically require the following information: name and address of company; date of
incorporation; authorized and paid up capital; particulars of shareholders and shareholding; business
activity of company; name and address of auditors; names of key officers.
In China, the last two items, name and address of auditors and names of key officers, are
usually not required. However, the name and address of company must be filled bilingually,
both in Chinese and English; the authorized and paid up capital should be in terms of both
Chinese Yuan (CNY) and United States Dollar (USD); and the number of the effective identification certificate of the company’s representative is required.
After registration, each company will obtain a personal and unique registration number
from the authority agency. This unique number is for all its future transactions with various government agencies for trade documentation purposes.
In practice, a company may misuse the registration number of another company for its
trade documents such as customs permits, import and export permits, licenses and certificates
of origin. However, a company should always keep the following points in mind.
•The registration number is not transferable. A company should not use the registration
number of another for its own import and export purpose.
•Duly notification of information change is required. When there is any change in the
particulars of the application form, such as the change of address and directors, the company
should inform the agency issuing registration number in due time.
• A bank guarantee may be provided. Where the registration number is to be used to
import dutiable goods, the Customs and Excise Department may require a bank guarantee to be
lodged before it allows the registration number to be used to import and export goods.
•Penalties will be imposed on those who misused the registration number.
1. 5. 2 Import and Export Permits
As their names implied, export / import permits are permits to export / import issued by an
authority permit officer. In some cases, export / import permits are interchangeably used with
such terminologies as customs declaration, bills of export / import or shipping bills②.
10
①
②
http: / / iecms. ec. com. cn / iecms/ index. jsp.
http: / / www. unescap. org / tid / publication / chap4_2224. pdf, improving trade documentation.
Chapter 1 Overview
The major functions of export / import permits are listed as below:
•To ensure that an individual or organization intending to export / import goods conform to
the export / import specifications and compliance with the provisions of international agreements①.
•To serve as an instrument of control by the governmental agencies. Specifically, they can
be used to help customs and other relevant authorities to identify and clear the goods, and to
control the outflow/ inflow of goods of strategic nature or of smuggled and stolen goods. Hence,
effective import and export permits should allow quick and accurate identification② of the goods.
•To enforce the health, safety, security and other environmental requirements. For example, food imported must be tested by the relevant Ministry to ensure that they are fit for human
consumption. Again, trade with certain countries may be banned because of political or security
reasons.
•To help the Department of Statistics and the relevant agencies to compile trade statistics③. It can not only provide data on the trade flows to the government and the private sector,
but also inform trade and customs enforcement units of the pattern of its bilateral trade. By
collecting and analyzing the reliable and efficient trade data, enforcement officers can monitor
trade flows, detect any irregularities in trade patterns, and develop a risk management system to
determine non-compliance of trade laws.
In practice, the export / import permits usually involve the following key documents, procedures, parties and agencies:
• With the export permit, the freight forwarder will exchange for the shipping order and
be able to lodge the goods with the shipping agency for export.
• When the goods are loaded on board the vessel, the ship’s captain will issue a mate’s
receipt.
• The freight forwarder will exchange the mate’s receipt with the shipping agency for the
bill of lading as evidence that the goods have been shipped, and the title of goods.
• With the bill of lading, the exporter will be able to negotiate with the bank for payment
of the goods against the letter of credit.
11
①
②
③
For instance, export and import of endangered wild animals, plants and their products.
Identification should be based on the HS codes and should distinguish between dutiable and non-dutiable goods and
controlled and non-controlled goods.
For instances, in Hong Kong, China, the Import and Export (Registration) Regulations, Chapter 60, require traders
to lodge with the Hong Kong, China, Customs and Excise Department an import / export declaration within 14 days after the
importation / exportation of the goods. To ensure accurate collection of trade statistics, the Commissioner of Customs and Excise
Department authorizes specific officers of the Census and Statistics Department to enforce the regulations relating to the lodgment
of accurate and complete import / export declarations.
Foreign Trade Documentation
• With the import permit, the freight forwarder will exchange with the shipping agencies
for the delivery order.
• With the delivery order, the freight forwarder will be able to obtain the release of the
goods from the port authority for delivery to the importer.
The flow of application process of the import and export permits usually involves several
parties and agencies. Specifically, the importer, exporter or freight forwarder (the declarant)
prepare and submit his inward or outward declarations application to the relevant agency such as
the Customs and Excise Department①, Ministry of Health or the Ministry of Environment for
processing and approval.
In general, for non-dutiable and non-controlled goods, the processing and approval of the
import and export permits is quite simple. However, for dutiable or controlled goods, additional
steps are required. The same applies to goods subject to quota control, such as textiles and
garments exported to the quota countries.
A simple schema on the flow of import and export permits is shown in figure 1. 1②.
Figure 1. 1 Import and export permits flow (simplified)
1. 5. 3 Certificate of Origin
(1)Rules of origin. Given today’s growing trade in raw material and intermediate inputs,
it is a more complex task to determine the origin status of a finished product. Appropriate Rules
of Origin (ROs) are thus required.
Usually, the ROs are the rules of determining the origin of the product. The ROs may be
based on the percentage criterion or the process criterion, and vary according to the importing
country’s scheme of preference. They can be classified into Non-preferential Rules of Origin
and Preferential Rules of Origin. Non-preferential rules of origin are merely used to determine
the origin status of the goods. It does not confer any tariff benefits for the goods, but applies in
12
①
②
If duty is payable for imports, the Customs and Excise Department will require that payment be made before the permit
is approved.
http: / / www. unescap. org / tid / publication / chap4_2224. pdf, improving trade documentation.
Chapter 1 Overview
the cases of tariffs for quota control, anti-dumping measures and satisfies the needs of the buyer
for an originating product. And preferential rules of origin are used to determine which goods
enter a country under preferential treatment, i. e. they are used to establish whether the goods
are eligible for special treatment under a trading arrangement between two or more economies.
Preferential tariffs at zero or reduced rates of duty are applied to goods that are the products or
manufacture of a preference or recipient country. The principal objective of preferential rules of
origin is to ensure that benefits of the donor country are restricted to only those selected trading
partners that qualify.
(2)Certificate of origin and related procedures. A certificate of origin (CO) certifies that
the products being exported originate and are manufactured in the country of the seller. It is an
essential document in international trade required for duty and import control purposes.
With the CO, the importer is assured that the products being purchased indeed originate
and are manufactured in the country of the exporter. Importing countries consider the origin of
imported goods when determining the duty assessed on the goods imported and their original
status. Some imports are given preferential access. Other considerations are whether the goods
imported are subject to quota and whether the goods come from an embargoed nation. In this
case, the goods will not be allowed entry.
The CO issuing unit will register the manufacturers and set up a system to ensure that the
manufacturers comply with the ROs. The unit will inspect and verify that the manufacturer has
the necessary machinery and manpower to make the products and that it maintains proper
records as stipulated under CO issuing regulations. For textiles and garments, the unit will also
verify that the manufacturer’s products meet the processing criteria of quota countries. Before a
CO can be issued, a manufacturer is required to submit a Manufacturing Cost Statement for each
product. This is to confirm that product complies with the ROs.
To facilitate trade and for effective administration of the COs system, the relevant ministry
may authorize organizations such as the Chambers of Commerce or Trade Associations ( or
authorized organizations) to issue non-preferential certificates of origin. In this way, the exporters may choose the organizations to obtain the COs for their convenience. In issuing the COs,
the authorized organizations are subject to the same Regulations and are required to exercise due
diligence to ensure the COs is properly issued.
1. 5. 4 Procedures and documents flow of typical transaction
To summarize, the documents required and procedures involved in international trade depend
on the terms and conditions of sales contract, letter of credit, statutory regulations of importing /
exporting country, and usual customs and practices. Besides some key steps and procedures in import / export preparation, business negotiation, Figure 1. 2 and 1. 3 show us a general picture of
13
Foreign Trade Documentation
Figure 1. 2 Flow of documents and procedures of a typical L/ C based exporting under CIF
procedures and documents flow of typical export ( L / C based trade under CIF trade term and
seaway transportation) and import transaction (L / C based trade under FOB trade term and seaway transportation) respectively.
14
Chapter 1 Overview
Figure 1. 3 Flow of documents and procedures of a typical L/ C based importing under FOB
Questions and Problems
Ⅰ. Choose the best answer to fill in the blank.
1. Among the following documents, the buyer can determine from whether the
goods purchased apparently comply with the purchase contract.
15
Foreign Trade Documentation
A. bill of lading B. commercial invoice
C. letter of credit D. insurance policy
2. Among the following documents, can be used as the title to the ownership of
the goods sold.
A. bill of lading B. commercial invoice
C. seaway bill D. insurance policy
3. Among the following documents, is a basic document.
A. consular invoice B. customs invoice
C. commercial invoice D. certificate of origin
4. Commercial documents include the following documents EXCEPT .
A. bill of lading B. bill of exchange
C. commercial invoice D. insurance policy
5. Among the following documents, is NOT a trader document.
A. bill of lading B. bill of exchange
C. commercial invoice D. packing list
6. Among the following documents, is an official document.
A. bill of lading B. bill of exchange
C. customs invoice D. commercial invoice
7. Among the following documents, is the original and underlying document.
A. letter of credit B. bill of exchange
C. sales contract D. commercial invoice
8. Among the following documents, is a formality document.
A. bill of lading B. bill of exchange
C. consular invoice D. commercial invoice
Ⅱ. Relative to domestic trade, foreign trade should pay more attention to documentation. Please discuss it.
Ⅲ. Compare “financial documents” and “commercial documents”.
Ⅳ. Define “ completeness” “ correctness” “ conciseness” and “ timeliness” in the case of
documents quality requirements.
16
Chapter 2 International Contract of Sale
Chapter 2 International Contract of Sale
【本章提要】
相比较国内贸易,对外贸易伙伴之间的商业文化、习俗和语言差异显著,因此,买卖双
方签订一份正式的载明双方一致意思的详尽的书面合同,显得更为必要和重要。
基于不同视角,外贸合同可分为进口/ 出口合同,明示/ 默示合同,格式合同,双边/ 单
边合同,装运/ 到达合同等。
合同成立必须经过要约和接受两个阶段,必要时还会经过要约邀请和反要约。 因此,
买卖双方必须理解要约邀请和要约的区别,能根据要约的生效、撤回与撤销条件,及要约
的变更等来判断要约的效力,能根据有效接受的构成条件判定双方契约关系的成立等。
只有正确理解贸易伙伴的真实意图,才能有效促进交易的达成和合同的顺利履行。
合同履行中一旦出现一方违约,另一方可根据适用法律和国际惯例、合同条款和违约
程度,主张适当的损害赔偿权利。 由于国与国之间有关合同的法律和惯例各有不同,进出
口双方需要在合同中明确规定适用的法律和国际惯例。
合同内容事关买卖双方切身利益,合同条款要在遵循适用法律和国际惯例的前提下,
尽可能做到完整、准确,做到合同条款之间不矛盾、不冲突。一项有效的国际货物销售合
同一般应包括:品质条款、价格条款、支付条款、数量条款、包装条款、违约条款、不可抗力
条款等。
另外,随着电子商务的日益流行,贸易双方有必要及时了解有关电子商务的法律和国
际惯例。
Different countries have different business cultures and even languages. In order to
minimize the risk of misunderstandings, it is advisable for the importer and the exporter to have
a clear written formal understanding, that is, an international contract of sale in writing.
This chapter covers the essentials of contracts in international transactions, containing the
definition, the types, the formation and creation, the contents, the breach of contract and
remedies, and the relevant governing laws and usual practices.
2. 1 Definitions
A contract is an exchange of promises between two or more parties to do or refrain from
17
Foreign Trade Documentation
doing an act which is enforceable in a court of law①.
According to legal scholar Sir John William Salmond, a contract is “an agreement creating
and defining the obligations between two or more parties”.
A sales contract is a formal contract by which a seller agrees to sell and a buyer agrees to
buy, under certain terms and conditions spelled out in writing in the document signed by both
parties. It can also be called agreement of sale, contract for sale, sale agreement, or sale contract②.
When the buyer and the seller are located across borders, the sales contract becomes an international contract of sale.
The significance of sales contract lies in many aspects.
Firstly, it identifies what is being sold to whom and for how much, and thus defines the
most important obligations of both the seller and the buyer.
Secondly, it takes into account the specific terms and conditions of sale (such as delivery
dates, currency and payment terms), and constitutes the most important underlying and original
document for the derivative documents (such as letter of credit, commercial invoice, transportation document). Consequently, sales contract acts as the cornerstone for both the international
trade transaction and this particular book titled “Foreign Trade Documentation”.
Finally, it stipulates the country under whose law the contract is governed. This is particularly important for international trade contracts.
2. 2 Governing Laws and Usual Practices
There are quite a lot of laws and usual practices governing international contract of sale.
2. 2. 1 UNCISG (1980)
The UNCISG③ was established in 1980 and recognizes the rules for commercial contracts.
It establishes uniform-rules for drafting international sales contracts, and sets the legal rights
and obligations of the seller and the buyer under such contracts. the UNCISG rules apply automatically to the sales contracts between the countries having ratified the convention.
The majority of international trade contracts are governed by the UNCISG. As of July
2008, the UNCISG had been ratified by 71 countries that account for a significant proportion of
world trade, making it one of the most successful international uniform laws④. Unless they
specify that UNCISG rules do not apply, exporters and importers from signatory countries are
18
①
②
③
④
http: / / en. wikipedia. org / wiki / Contract.
http: / / www. businessdictionary. com/ definition / contract-of-sale. html.
The United Nations Commission on International Trade Law (UNCITRAL) Convention on Contracts for the International Sale of Goods (1980).
Outlined in 2. 4-2. 7 are some of the very basic principles of international contract law, which will provide a useful
foundation for further reading.
Chapter 2 International Contract of Sale
bound by the Convention’s terms.
2. 2. 2 ICC Incoterms
The contract should set out where the goods is to be delivered, who arranges transport,
who is responsible for insuring the goods, who pays for insurance, who handles customs procedures, and who pays any duties and taxes. To avoid confusion and transaction cost, ICC Incoterms
®
2020 should be used.
ICC Incoterms ( International Rules for the Interpretation of Trade Terms by International
Chamber of Commerce) is internationally agreed standard trade terms. Since 1936, Incoterms
has been revised eight times(1953, 1967, 1976, 1980, 1990, 2000, 2010, and 2020) .
The latest edition, Incoterms
®
2020, contains 4 groups,11 trade terms in total, features an
in-depth introduction to help users select the appropriate Incoterms rule for their sale transaction.
Incoterms
®
2020 incorporates expanded explanatory notes for users at the start of each Incoterms
®
rule and assist users with accurately interpreting the latest edition of the Incoterms
rules to avoid costly misinterpretations or misapplications. On the release of Incoterms
®
2020,
ICC Secretary General John W. H. Denton AO said: “ Incoterms
®
2020 rules make business
work for everyone by facilitating trillions of dollars in global trade annually. Because they help
importers and exporters around the world to understand their responsibilities and avoid costly
misunderstandings, the rules form the language of international sales transactions, and help
build confidence in our valuable global trading system. ” ①
To be noted, various versions of Incoterms are parallel. However, the later edition usually
has more detailed agreements and explanations than the earlier one. It is thus recommended to
use the new edition of Incoterms, and to include the edition number when signing the contract
so as to avoid any disagreements or misinterpretation.
2. 2. 3 Others
In addition to the UNCISG 1980 and ICC Incoterms
®
2020, the following laws and related
international trade usual customs and practices may be applicable to the import / export contracts
with China:
•The Contract Law of the People’ s Republic of China, March 15, 1999 (Chapter 1 to
Chapter 9, Chapter 18 Technology Contract).
•The Uniform Commercial Code (UCC) (Article 2) in most United States and Canadian
jurisdictions.
•Sale of Goods Act ( 1979) and English contract law in England, Wales, and other
19
① https: / / iccwbo. org / news-publications/ news/ icc-releases-incoterms-2020 / .
Foreign Trade Documentation
countries across the Commonwealth.
•ICC Uniform Customs and Practice for Documentary Credit, 2006 Revision, in force on
July 1, 2007 (UCP 600).
•Institute Cargo Clauses (ICC) by U. K.
•China Insurance Clauses (CIC) by PICC.
•Uniform Rules for Collection by ICC (URC 522), etc.
2. 3 Types
There are various kinds of sales contract ( S / C). Different type of S / C implies different
obligations to different parties concerned, applies to different contract laws, involves different
procedures of operation, determines different modes of payment, and requires different kinds of
trade documents. It is thus important for the involved parties to understand the frequently used
types of S / C.
2. 3. 1 Import / Export Contract
According to the flow direction of the contracted subject goods, S / C may be grouped into
import contract and export contract. The former is also called purchase contract, while the latter
is often called sales contract. They are actually of the same contents and formats, but of different
perspectives.
2. 3. 2 Verbal / Non-verbal Contract
According to the formality of contract conclusion and evidence, S / C may be classified into
verbal contract and non-verbal contract.
Any contract that uses words, spoken or written, is a verbal contract. Thus, all oral contracts and written contracts are verbal contracts. This is in contrast to a “non-verbal contract”,
also known as “a contract implied by the acts of the parties”, which can be either implied in
fact or implied in law.
According to the UNCISG article 11, a contract of sale need not necessarily be concluded
in or evidenced by writing and is not subject to any other requirement as to form. It may be
proved by any means, including witnesses.
However, as one of the contracting parties of the UNCISG, China insisted that all the contracts concluded with China be in written form and that they be applicable to only the contracts
concluded between the parties of the different signatories in their places of operation. The terminology “writing” here includes letter, fax, e-mail, telegram, telex, and EDI.
2. 3. 3 Standard form Contract
A standard form contract (sometimes referred to as an adhesion contract or boilerplate contract) is a contract between two parties that does not allow for negotiation, i. e. take it or leave
20
Chapter 2 International Contract of Sale
it①. It is often a contract concluded between unequal bargaining partners.
In international trade, difficulties may arise when both the exporter and the importer have
standard form contract and try to gain the upper hand. This is often referred to as the “battle of
the forms” and the two parties must negotiate to agree on common ground and the exact terms
that will constitute the contract.
As international contracts of sale tend to rely on the exchange of a lot of paperwork and
most of these documentations are prepared by the seller, the exporter is advised to prepare some
standard terms and conditions of sale that can be incorporated into the documentation in addition
to the specific terms of the contract. The exporter is recommended to set out clearly the standard
terms and conditions and attach them to all documentation sent out to the importer, and to ask
the importer to sign and return a copy of the terms and conditions to acknowledge them and
agree to their incorporation in the contract. Once the terms and conditions have been agreed,
the contract can be formed and signed.
2. 3. 4 Bilateral / Unilateral Contract
Contracts may be bilateral or unilateral. A bilateral contract, the more common of the two,
is an agreement in which each of the parties to the contract makes a promise or promises to the
other party. International contract of sale is a typical bilateral contract, including the exporter
and the importer.
A unilateral contract is an agreement in which one party to the contract makes a promise or
promises to another party. The most common type of unilateral contract is the insurance contract, in which the insurance company promises to pay the insured a stated amount of money if
a covered event occurs for which the insured paid premiums.
2. 3. 5 Shipment / Arrival Contract
According to the delivery terms used and the nature of the sales contract, S / C can be
divided into shipment contract and arrival contract. Shipment contract is usually based on such
trade terms as FAS, FOB, FCA,CFR, CIF, CPT and CIP, while arrival contract is based on
such trade terms as DAP,DAT,DDU, DDP.
Under shipment contract, the seller is bound to pay the normal transport cost for the carriage
of the goods by a usual route and in a customary manner to the agreed place, while the buyer is
responsible for the risk of loss of or damage to the goods and additional costs resulting from
events occurring subsequent to shipment and dispatch.
Under arrival contracts, the seller would bear all risks and costs until the goods have actually
arrived at the agreed point.
21
① http: / / en. wikipedia. org / wiki / Standard_form_contract.
Foreign Trade Documentation
Moreover, in practice of international trade,S / C may take the form of informal contract,
including sales confirmation, sales agreement, memorandum, order from the buyer, or intent
from the agent of the buyer. If material terms and conditions of potential transaction are stated
in the informal contracts, unconditionally agreed upon by the seller and the buyer, and countersigned by them, the informal contracts are of same legal effects as formal contracts.
In international trade, the most commonly used type of S / C is bilateral shipment contract
in writing, with standard terms and conditions incorporated.
2. 4 Formation of Contract
Formation of a contract may contain several steps. Every sales contract contains an offer, and
an acceptance. Some sales contract contains an invitation to make offers①, and a counter-offer.
2. 4. 1 Invitation to Make Offers
In the UNCISG (article 14), a proposal which is not addressed to one or more specific
persons is to be considered merely as an invitation to make offers, unless the contrary is clearly
indicated by the person making the proposal.
An invitation to make offers is an action by one party which may appear to be a contractual
offer but which is actually inviting others to make an offer of their own. It may be regarded as a
request for expressions of interest.
For instance, promotional brochures and other forms of advertising where goods are marketed to potential buyers are usually considered an “invitation to make offers”. That is to say, the
promotional materials are designed to generate enquiries from which an offer may subsequently
be made and consequently they cannot be used as the basis of a contract.
2. 4. 2 Offer
Offer is required by every sales contract. In the UNCISG ( article 14) , 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.
(1) Sufficiently definite contents. 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.
Specifically, an offer sets out clearly the nature of the goods to be sold and the monetary
value that the seller expects to receive for them. The offer must contain details of the type,
quantity and quality of the goods to be sold, and may also include a description to the
22
① It is called invitation to treat in the U. K. , and invitation to bargain in the U. S.
Chapter 2 International Contract of Sale
component parts to demonstrate “origin” or to comply with the buyer’s specific requirements.
When stating the price of the goods in the offer, the exporter should explain how the price
has been reached and in which currency it is listed, as well as setting out the invoicing and payment terms. Reference to the Incoterm① to be used in the contract should also be made at this
stage in order to clarify which party will be responsible for the shipping, insurance and other
costs.
Ideally, the offer should also contain details of the method of transportation, the ports of
shipment and destination and the delivery dates at each location. It must be stated clearly as
well which party is to bear the responsibility for organizing the carriers.
In summary, the offer should contain every conceivable detail of the transaction in an unambiguous way so that the terms are instantly understandable to the buyer.
(2) Reaching rule. Contrary to the Mail Box Rule in the common law of contracts, the
UNCISG insists on the Reaching Rule. That is, an offer becomes effective when it reaches the
offeree. Here “reaches” means the offer reaches the addressee when it is made orally to the offeree or delivered by any other means to him personally, to his place of business or mailing
address or, if he does not have a place of business or mailing address, to his habitual residence
(UNCISG article 15, 24).
(3) Withdrawal, revocation and termination. Even if it is irrevocable, an offer may be
withdrawn if the withdrawal reaches the offeree before or at the same time as the offer. However, the e-commerce makes it impossible and constitutes a challenge for the traditional contract
law.
Until a contract is concluded an offer may be revoked if the revocation reaches the offeree
before he has dispatched an acceptance. However, an offer cannot be revoked: (a) if it indicates, whether by stating a fixed time for acceptance or otherwise, that it is irrevocable;(b) if
it was reasonable for the offeree to rely on the offer as being irrevocable and the offeree has
acted in reliance on the offer.
An offer, even if it is irrevocable, is terminated when a rejection reaches the offeror, or
when the stated validity in the offer is overdue.
(4) Defining irrevocable. Despite of the fact that the UNCISG use the term “irrevocable”
in several cases, it does not define it in detail. Alternatively, the UCC ( § 2-205) states the
requirements for a firm and irrevocable offer as follows:
•It is an offer to buy or sell goods.
•It is made by a merchant.
•It is a signed writing (“authenticated record” instead in the new version of UCC).
23
① See appendix,sales contract specimen 1,A3.
Foreign Trade Documentation
•It states a no-longer-than-three-months period of irrevocability.
2. 4. 3 Counter-offer
Once the offer is made by the seller to the buyer, one of three scenarios may occur:(a)the
offer may be accepted and the contract agreed①; ( b) the offer may be rejected for whatever
reasons the buyer may have; or (c) the offer may be agreed in principle but modified with further terms, conditions or qualifying statements by the buyer. The third scenario is considered to
be a counter-offer of the original offer.
In the common law of contracts, the Mirror Image Rule states that an offer must be accepted
exactly without modifications. An attempt to accept the offer on different terms instead creates a
counter-offer, and this constitutes a rejection of the original offer②.
In the UNCISG (article 19), a reply to an offer which purports to be an acceptance but
contains additions, limitations or other modifications is a rejection of the offer and constitutes a
counter-offer. However, only material alterations to the original offer constitute a counter-offer.
Among other things, additional or different terms relating to the price, payment, quality and
quantity of the goods, place and time of delivery, extent of one party?s liability to the other or
the settlement of disputes are considered to alter the terms of the offer materially.
A counter-offer can be considered a new offer. Responsibility is then passed back to the
exporter, who must decide whether or not to accept the counter-offer or to insist that the original
offer is the only one under consideration. The battle of the forms then begins, with both sides
negotiating the exact terms and conditions of the contract.
Alternatively, the exporter may decide to accept the counter-offer but should do so only
when wholly aware of all the financial and legal obligations contained in the new offer.
2. 4. 4 Acceptance
Every S / C has an acceptance. An effective acceptance of the offer commits both the seller
and the buyer to the specific terms of the sale and forms a legally binding contract that cannot
be amended unless the two parties agree in writing.
(1) Effective acceptance. An effective acceptance has some characteristics:
•An effective acceptance should be made by the person (the offeree) to whom the offer
was made.
•An effective acceptance should refer to the terms of the offer and indicate assent to the
offer by a statement or by other conduct. Since silence or inactivity does not in itself amount to
acceptance (UNCISG article 18, 23).
However, if, by virtue of the offer or as a result of practices which the parties have estab24
①
②
See 2. 4. 4 for details.
Source: Wikipedia, the free encyclopedia.
Chapter 2 International Contract of Sale
lished between themselves or of usage, the offeree may indicate assent by performing an act,
such as one relating to the dispatch of the goods or payment of the price, without notice to the
offeror, the acceptance is effective at the moment the act is performed, provided that the act is
performed within the stated or reasonable period of time. This does not apply in China.
•An effective acceptance should reach the offeror within the stated time or within a reasonable time.
An acceptance of an offer becomes effective at the moment the indication of assent reaches
the offeror. Same as the case of an offer, the declaration of acceptance must “ reach” the
addressee when it is made orally to the offeror or delivered by any other means to him personally, to his place of business or mailing address or, if he does not have a place of business or
mailing address, to his habitual residence.
An acceptance is not effective if the indication of assent does not reach the offeror within
the time he has fixed or, if no time is fixed, within a reasonable time, due account being taken
of the circumstances of the transaction, including the rapidity of the means of communication
employed by the offeror. An oral offer must be accepted immediately unless the circumstances
indicate otherwise.
(2) Validity for acceptance. A period of time for acceptance may be fixed by the offeror in
a telegram or a letter. Here the validity for acceptance begins to run from the moment the telegram is handed in for dispatch or from the date shown on the letter or, if no such date is shown,
from the date shown on the envelope.
A period of time for acceptance may also be fixed by the offeror by telephone, telex or
other means of instantaneous communication. And the validity for acceptance begins to run from
the moment that the offer reaches the offeree.
Official holidays or non-business days occurring during the period for acceptance are included in calculating the period. However, if a notice of acceptance cannot be delivered at the
address of the offeror on the last day of the period because that day falls on an official holiday or
a non-business day at the place of business of the offeror, the period is extended until the first
business day which follows (UNCISG article 20).
(3) Conditional acceptance. A reply to an offer which purports to be an acceptance but
contains additional or different terms which do not materially alter the terms of the offer constitutes an acceptance, unless the offeror, without undue delay, objects orally to the discrepancy or dispatches a notice to that effect. If he does not so object, the terms of the contract are the terms of the offer with the modifications contained in the acceptance (UNCISG
article 19) .
(4) Late acceptance. A late acceptance is nevertheless effective as an acceptance if without delay the offeror orally so informs the offeree or dispatches a notice to that effect.
25
Foreign Trade Documentation
If a letter or other writing containing a late acceptance shows that it has been sent in such
circumstances that if its transmission had been normal it would have reached the offeror in due
time, the late acceptance is effective as an acceptance unless, without delay, the offeror orally
informs the offeree that he considers his offer as having lapsed or dispatches a notice to that
effect (UNCISG article 21).
(5) Withdrawal of acceptance. An acceptance may be withdrawn if the withdrawal reaches
the offeror before or at the same time as the acceptance would have become effective (UNCISG
article 22). However, the e-commerce makes it more difficult and constitutes a challenge for
the traditional contract law.
Although offers can be accepted verbally, orally or in writing, the acceptance should be
made in writing to provide both the buyer and seller with the security of having documented
proof of the contract.
A contract is concluded at the moment when an acceptance of an offer becomes effective,
even though a formal contract in writing is not yet signed.
2. 5 Breach of Contract
As acceptance of the offer creates a legally binding contract, the agreed terms and conditions must be fulfilled if the contract is not to be breached.
Breach of contract is a legal concept in which a binding agreement or bargained-for
exchange is not honored by one or more of the parties to the contract by non-performance or
interference with the other party?s performance①.
Different laws of contract define breach of contract into different types. According to the
U. S. law of contracts, breach of contract may be minor breach or material breach. According
to the U. K. common law of contracts, breach of contract may be breach of warranty and breach
of condition. According to the UNCISG, breach of contract may be non-fundamental breach of
contract and fundamental breach of contract.
Breach of contract occurs either unintentionally or deliberately. If it is apparent that one of
the parties to the contract has no intention of meeting their obligations, this is seen as a deliberate breach of contract and may be considered theft or fraud, which will go beyond the control of
contract law. If it occurs unintentionally, the injured party may claim different remedies based
on different circumstances.
2. 5. 1 Circumstances
As for the seller and the buyer, a contract may be breached under different circumstances.
26
① http: / / en. wikipedia. org / wiki / Breach_of_contract.
Chapter 2 International Contract of Sale
(1) Seller’s breach of contract. The seller must deliver the goods, hand over any related
documents and transfer the property in the goods, as required by the contract and the UNCISG.
However, the seller may fail to perform any of his obligations under the circumstances listed below:
•Non-delivery of goods.
•Late delivery of goods.
•Non-complying delivery of goods (in quality, quantity, packing, or a third party related
industrial property or other intellectual property).
•Non-complying delivery of documents.
•Non-performance of shipment liability when the contract requires (e. g. under group C
trade terms).
•Non-performance of insurance liability when the contract requires ( e. g. under CIF or
CIP trade terms) .
(2) Buyer’ s breach of contract. The buyer must pay the price for the goods and take
delivery of them as required by the contract and the UNCISG. However, the buyer may fail to
perform any of his obligations under the following circumstances:
•Reject to pick up goods.
•Reject to make payment.
•Non-performance of relevant liabilities under specified terms of delivery (e. g. shipment
arrangement under FOB).
•Non-performance of relevant liabilities under specified mode of payment ( e. g. duly
establishment of L / C).
2. 5. 2 Remedies
As regards the remedies, there are different legal recourses for different parties in different
situations.
(1) Remedies for breach of contract by the seller. According to the UNCISG①, in the case
of the seller’s breach of contract, the buyer may claim remedies as listed below:
•Require specific performance by the seller of his obligations.
•Require delivery of substitute goods only if the lack of conformity constitutes a fundamental breach of contract.
•Require the seller to remedy the lack of conformity by repair.
•Claim liquidated damages of a specific percentage of the price of such goods or a specific
amount.
27
① See article 45-52 for details.
Foreign Trade Documentation
•Reduce the price when the goods do not conform to the contract, and no other remedies
are made by the seller.
•Declare the contract avoided if the failure to make delivery completely or in conformity
with the contract amounts to a fundamental breach of the contract. A breach of contract committed by one of the parties is fundamental if it results in such detriment to the other party as to
deprive him substantially of what he is entitled to expect under the contract, unless the party in
breach did not foresee and a reasonable person of the same kind in the same circumstances
would not have foreseen such a result (UNCISG article 29).
(2) Remedies for breach of contract by the buyer. According to the UNCISG①, in the case
of the buyer’s breach of contract, the seller may claim the following remedies:
•Require the buyer to pay the price, take delivery or perform his other obligations, unless
the seller has resorted to a remedy which is inconsistent with this requirement.
•Claim damages for delay in performance.
•Declare the contract avoided if the failure by the buyer to perform any of his obligations
amounts to a fundamental breach of contract, or if the buyer does not perform his obligation to
pay the price or take delivery of the goods within the additional period of time fixed by the
seller, or if he declares that he will not do so within the period so fixed. Usually, in cases
where the buyer has paid the price, the seller loses the right to declare the contract avoided.
To avoid the above-mentioned potential breach of contract and subsequent troubles and
difficulties, both the seller and the buyer thus strongly demand a complete and very detailed
sales contract in written form, stipulating their specific obligations, binding their performances,
and providing contingent alternatives for the potential breach of contract.
2. 6 Contents
Despite of the varied models and different wordings of sales contract, their contents are
quite similar. Several commonly used specimens of sales contract are introduced in this section.
2. 6. 1 ICC Model International Sales Contract
ICC Model International Sales Contract ( Manufactured Goods for Resale) is a flexible
and clear model contract providing directions to sellers and buyers of manufactured goods. It
allows users either to incorporate only the general conditions or to include the specific conditions, which set out standard terms common to all contracts with the ICC General Conditions of
Sale.
28
① See article 61-65 for details.
Chapter 2 International Contract of Sale
ICC Model International Sales Contract consists of two parts, specific conditions (Part A)
and general conditions (Part B).
(1)Part A. Specific Conditions. These specific conditions have been prepared in order to
permit the parties to agree with the particular terms of their sales contract by completing the
spaces left open or choosing ( as the case may be) between the alternatives provided in this
document. It is quite easy-to-use for first-time traders.
In addition to the detailed information of the contract itself (name and address of the seller
and the buyer; contract number, date and place of signing contract), there are 16 specific
conditions (A1~A16):
A1 Goods sold: description of the goods.
A2 Contract price: including currency, amount in numbers and amount in letters.
A3 Delivery terms: 11 terms ( according to Incoterms
®
2020) are recommended, and
carrier related information.
A4 Time of delivery: the date or period (e. g. week or month) on which or within which
the seller must perform his delivery obligations according to clause A4 of the respective Incoterm.
A5 Inspection of the goods by buyer: time and place.
A6 Retention of title.
A7 Payment conditions: four alternatives provided, covering payment on open account,
payment in advance, documentary collection, and irrevocable documentary credit. In the case
of open account, the most risky mode of payment for the seller, it recommends the seller to
back open account by demand guarantee or standby letter of credit. In the case of irrevocable
documentary credit, the very commonly used mode of payment in international trade practice, it
recommends the seller and the buyer to make sure of the type of credit ( confirmed or unconfirmed), the place of issue and confirmation ( if applicable), the method of availability ( by
payment at sight, by deferred payment, by acceptance of a time draft, and by negotiation),
and the allowance of partial shipments and transshipment.
A8 Documents: indicate documents to be provided by seller. Parties are advised to
check the Incoterm they have selected under A3 of these specific conditions, alternative documents listed here are: transport documents ( indicate type of transport document required),
commercial invoice, certificate of origin, packing list, certificate of inspection, insurance document, and etc.
A9 Cancellation date.
A10 Liability for delay.
A11 Limitation of liability for lack of conformity.
A12 Limitation of liability where non-conforming goods are retained by the buyer.
29
Foreign Trade Documentation
A13 Time-bar.
A14 Applicable law.
A15 Resolution of disputes.
A16 Other: this indicates that the ICC Model does not prevent the parties from agreeing
on other terms.
(2)Part B. General Conditions. These general conditions have been prepared in order to
provide the legal protection demanded by traders, including both first-time trader and experienced
practitioners.
There are 14 articles in total. In addition to the explanation of general principles, these
articles cover aspects as characteristics of the goods, inspections of the goods before shipment,
price, payment conditions, interests in case of delayed payment, retention of title, contractual
term of delivery, documents, late-delivery, non-delivery and remedies therefore, non-conformity of the goods, cooperation between the parties, force majeure, and resolutions of disputes.
These complete and complementary general conditions do provide legal protections to
parties to the contract. Obviously, all these legal protections come from the terms and conditions agreed by the buyer and the seller to the contract, the UNCISG, the law of exporting
country, the ICC Incoterms
®
2020, and the like.
In view of its easy-to-use and high degree of legal protection for all traders, the ICC
Model International Contract of Sale is strongly recommended to prospective and established
traders.
For its detailed contents, please refer to sales contract specimen 1 in the appendix of this
chapter.
2. 6. 2 China’s Export Contract Model
Typically, a written sales contract in China contains three parts of contents: preamble /
heading, body, and witness.
(1) Preamble / Heading. The heading part of a contract mainly introduces essentials of the
contract itself, covering:
•Name of contract.
•Reference number of contract.
•Place of contract being signed.
•Date of contract being signed.
•Name and address of the seller and its contact person (if any).
•Name and address of the buyer and its contact person (if any).
30
Chapter 2 International Contract of Sale
(2) Body. The body is the most important part of a contract, usually contains the following
terms and conditions:
•Name of the commodity / goods descriptions.
•Quantity.
•Price or trade term.
•Quality of goods.
•Packing.
•Payment.
•Shipment.
•Commodity inspection.
•Insurance.
•Claim.
•Dispute settlement / breach clause.
•Force majeure.
According to the UNCISG, price, quality and quantity of goods, time and place of delivery,
and payment are essential or indispensable for a contract to take force.
(3) Witness. The witness, constituting the ending part of a contract, usually states languages used in the contract and their effects, number of the original contract and copies, the enclosures and their legal force seal and / or signatures of legal representative or agent.
For the detailed contents, please refer to sales contract specimen 2 and specimen 3 in the
appendix of this chapter.
Specimen 2 and specimen 3 are both exporting contract frequently used in China. Specimen 2 uses English as its contract language, whereas specimen 3 is bilingual, both in Chinese
and in English. The readers are strongly recommended to read them with care, compare the
similarities and dissimilarities, and understand the practical meaning and legal implication of
each term and condition setting forth in them.
2. 7 Online Trading Related Model Laws
With the development of information technology and internet, every company with a website
has the potential to generate international enquiries through the global nature of the World Wide
Web (www). Admittedly, the proportion of business-to-business trading (B2B), including importing and exporting, is not as great as the amount of trade from business-to-consumer (B2C).
However, more and more business is being conducted online, and businesses must be aware of
the legal and contractual implications of buying and selling via the internet.
However, there are no real issues on online offers and counter-offers as their communication differs only in format. The main issue regarding contracts agreed over the internet is that of
31
Foreign Trade Documentation
acceptance. The traditional written acceptance of the offer provides both buyer and seller with
documented proof of the contract, but this does little to clarify the position with e-commerce. In
particular, how can the seller determine when the contract has been accepted and how the
buyer’s signature is obtained?
In order to promote the electronic commerce, the UNCITRAL① has successively published
three key Model Laws that are of relevance to online trading since 1996.
2. 7. 1 UNMLEC 1996
UNMLEC 1996 (UNCITRAL Model Law on Electronic Commerce) was adopted by the
UNCITRAL on 12 June 1996. The Model Law is intended to facilitate the use of modern means
of communications and storage of information. It is based on the establishment of a functional
equivalent in electronic media of paper-based concepts such as “writing”,“signature”and“original”. By providing standards by which the legal value of electronic messages can be assessed,
the Model Law should play a significant role in enhancing the use of paperless communication.
The Model Law also contains rules for electronic commerce in specific areas, such as carriage of
goods②.
2. 7. 2 UNMLES 2001
UNMLES 2001 (UNCITRAL Model Law on Electronic Signatures) was adopted by the
UNCITRAL on 5 July 2001. The Model Law aims at bringing additional legal certainty to the
use of electronic signatures. Building on the flexible principle contained in article 7 of the UNCITRAL Model Law on Electronic Commerce, it establishes criteria of technical reliability for
the equivalence between electronic and hand-written signatures. The Model Law follows a technology-neutral approach, which avoids favoring the use of any specific technical product. The
Model Law further establishes basic rules of conduct that may serve as guidelines for assessing
possible responsibilities and liabilities for the signatory, the relying party and trusted third parties intervening in the signature process③.
2. 7. 3 UNCECIC 2005
UNCECIC 2005 ( UNCITRAL Convention of Electronic Communication in International
Contract) was adopted by the UNCITRAL on 23 November 2005. The Convention aims to en32
①
②
③
United Nations Commission on International Trade Law, core legal body of the United Nations system in the field of
international trade law. It is a legal body with universal membership specializing in commercial law reform worldwide for over 40
years. UNCITRAL?s business is the modernization and harmonization of rules on international business. These include: conventions, model laws and rules which are acceptable worldwide; legal and legislative guides and recommendations of great practical
value;updated information on case law and enactments of uniform commercial law; technical assistance in law reform projects;
and regional and national seminars on uniform commercial law.
http: / / www. uncitral. org / uncitral / en / uncitral_texts/ electronic_commerce / 1996Model. html.
http: / / www. uncitral. org / uncitral / en / uncitral_texts/ electronic_commerce / 2001Model_signatures. html.
Chapter 2 International Contract of Sale
hance legal certainty and commercial predictability where electronic communications are used in
relation to international contracts. It addresses the determination of a party?s location in an electronic environment; the time and place of dispatch and receipt of electronic communications;
the use of automated message systems for contract formation; and the criteria to be used for establishing functional equivalence between electronic communications and paper documents—including “original” paper documents—as well as between electronic authentication methods and
hand-written signatures①.
For the purpose of this chapter, the legal implications of contracts agreed via e-mail or
website trading will be examined, although exporters and importers should also seek additional
legal advice before entering into any form of online international trade agreement.
Questions and Problems
Ⅰ. Choose the best answer to fill in the blank.
1. A message bearing the content as “ … have the intention to purchase 1, 000 gross
‘Black Girl’ toothpaste, please quote us the best price and the earliest shipment time” is
called .
A. an offer B. an invitation to make offer
C. a counter-offer D. an acceptance
2. If the CIF price of a product is USD 100 / set, freight charge USD 10 / set, insurance
premium USD 0. 01 / set, commission rate 2%, the commission payment based on CIF price
should be .
A. USD 1. 6 / set B. USD 1. 63 / set
C. USD 2. 0 / set D. USD 2. 04 / set
3. Which one of the following exporting prices is correctly expressed? .
A. CNY 3. 50 CIF Shanghai B. USD 3. 50 / piece CIF
C. RMB 3. 50 / piece CIFC London D. USD 3. 50 / piece CIFC2 London
4. According to UNCISG, a contract can be established when .
A. an acceptance becomes effective B. the seller and buyer sign on a written contract
C. the contract is approved by authorities D. an offer reaches the offeree
5. When the offeree makes modification to the following items other than , his reply will be seen as a counter-offer.
A. the price B. the payment term
C. the packing D. the quality and quantity
33
① http: / / www. uncitral. org / uncitral / en / uncitral_texts/ electronic_commerce / 2005Convention. html.
Foreign Trade Documentation
6. An offer will be terminated when .
A. it is rejected B. it is counter-offered
C. it is legally revoked D. all of the above
7. A cabled offer reached the offeree on Dec. 12. However on Dec. 11 the offeror had informed
the offeree by fax that the offer had been invalid. This act can be considered as .
A. a withdrawal of an offer B. an amendment of an offer
C. a new offer D. a revocation of an offer
8. A foreign buyer cabled that “ offer dated 10 Aug. accepted, if 5% commission included”. This is .
A. an acceptance B. a counter-offer
C. an inquiry D. an offer
9. Company A made an offer to Company B. Under which condition can the two parties
establish a deal? .
A. Company C which is recognized by Company A accepted the offer within validity period
B. Based on previous experience, Company B indicated acceptance without receiving the offer
C. Company B accepted the offer within validity period, but suggested earlier shipment
D. Within the validity period,Company B accepted the offer completely
10. There are altogether terms defined by the Incoterms
®
2020.
A. 6 B. 9 C. 13 D. 11
11. Among all the Incoterms
®
2020 imposes the minimum obligation and cost to the
seller.
A. EXW B. CIF C. DAP D. DDP
12. Among all the Incoterms
®
2020 imposes the minimum obligation and cost to
the buyer.
A. EXW B. CIF C. DAP D. DDP
13. The term CIF should be followed by .
A. named port of shipment B. named place of destination
C. named place of loading D. named port of destination
14. FOB and CFR share one thing that .
A. risk is transferred when the goods shipped on board the carrying vessel
B. they can be used in any mode of transport
C. the seller will be responsible for the unloading at the port of destination
D. none of the above
15. The Incoterms
®
2020 requires the buyer to handle the import customs clearance except
under .
A. EXW B. FCA C. DAP D. DDP
34
Chapter 2 International Contract of Sale
Ⅱ. Case analysis.
1. On Nov. 20th, Lee Co. offered to sell goods to Dee Inc. at USD 500 per case CIF London, “Offer valid if reply here 11 / 27. ” On Nov. 22nd Dee cabled back, “Offer accepted if
USD 480 per case. ” As Lee was considering the bid, the market price went over USD 500. On
Nov. 25th, Dee cabled an unconditional acceptance of Lee’ s initial offer. Could Lee reject
Dee’s acceptance? Why or why not?
2. Company X offered to sell goods to Company Y, “ Shipment within 2 months after receipt of L / C, offer valid if reply here 5 days. ” Two days later, Company Y cabled back,
“Accept your offer shipment immediately. ” Company X didn’ t reply. Two more days later,
Company X received Company Y’ s L / C requiring immediate shipment. At this time, the
market price of the goods went up by 20%. What options did Company X have to deal with
Company Y?
Ⅲ. Fill in the blank form contact in English with the following particulars.
?卖方:北京轻工产品进出口公司
?买方:纽约贸易公司
?商品名称:永久牌自行车
?规格:RE110 型
?数量:1 000 辆
?单价:CIF 纽约每辆 100 美元
?包装:木箱装
?装运期:2024 年 3 月 31 日前自中国港口至纽约,不允许分批装运和转船
?付款条件:凭不可撤销即期信用证付款,于装运期前一个月开到卖方,并于上述装运
期后 15 天内在中国议付有效
?保险:由卖方根据中国人民保险公司 1981 年 1 月 1 日中国保险条款按发票金额的
110%投保一切险和战争险
?签约日期和地点:2023 年 10 月 11 日于北京
?合同号码:AC4789
35
Foreign Trade Documentation
CONTRACT No.
Sellers:
Buyers:
The undersigned Sellers and Buyers have agreed to close the following transaction according to the terms and conditions stipulated below:
Commodity:
Specifications:
Quantity:
Unit Price:
Total Value:
Packing:
Shipping Mark:
Insurance:
Time of Shipment:
Port of Shipment:
Port of Destination:
Terms of Payment:
The sellers The buyers
Done and signed in Beijing on this day of , 20 .
36
Chapter 2 International Contract of Sale
Ⅳ. Calculations and sales contract drafting.
?Seller:DESHENG TRADING CO. , LTD. 29TH FLOOR KINGSTAR MANSION, 123
JINLIN RD. , SHANGHAI CHINA
?Buyer: NFO GENERAL TRADING CO. , 521 JALAN STREET, TORONTO, CANADA
?Terms of sale:CIF5% TORONTO
?Goods descriptions:CHINESE CERAMIC DINNERWARE
•542 Sets of DS1511 30-Piece Dinnerware and Tea Set @ USD23. 50 / SET
•800 Sets of DS2201 20-Piece Dinnerware Set @ USD20. 40 / SET
•443 Sets of DS4504 45-Piece Dinnerware Set @ USD23. 20 / SET
•254 Sets of DS5120 95-Piece Dinnerware Set @ USD30. 10 / SET
?More or less clause:With 10% more or less of shipment allowed at the sellers’ option
?Packing: PACKED IN CARTONS
•DS2201: 2 SETS TO A CARTON
•DS1151,DS4504,DS5120: ONE SET TO A CARTON
?Shipping Marks: AT BUYER’s OPTION BEFORE GOODS TO BE SHIPPED
?Time of Shipment & Means of Transportation: TO BE SHIPPED IN MAY, 2024,
ALLOWING PARTIAL SHIPMENTS AND TRANSSHIPMENT
?Port of Loading & Destination: FROM SHANGHAI TO TORONTO
?Insurance: TO BE EFFECTED BY THE SELLER FOR 110% OF CONTRACTED CIF
VALUE, AGAINST WPA, BREAKAGES AND DAMAGES, AND WAR RISKS OF C. I. C
DATED 1981-01-01.
?Terms of Payment: IRREVOCABLE LETTER OF CREDIT PAYABLE BY DRAFT AT
SIGHT, TO RAECH THE SELLER BEFORE APRIL 5 AND TO REMAIN VALID FOR NEGOTIATION IN CHINA UNTIL 15 DAYS AFTER THE TIME OF SHIPMENT.
?DATE: 2024-03-05
?SIGNED IN: SHANGHAI, CHINA
?S / CNO. : SHDS13007
1. Calculate the total commission to be paid to the middle businessman.
2. Calculate the net CIF-based amount for the seller.
3. Fill in the following blank form sales contract.
37
Foreign Trade Documentation
销售合同
SALES CONTRACT
卖方 SELLER: 编号 NO. :
日期 DATE:
地点 SIGNED IN:
买方 BUYER:
买卖双方同意以下条款达成交易:
This contract is made by and agreed between the BUYER and SELLER, in accordance with the terms and conditions
stipulated below.
1. 品名及规格
Commodity & Specification
2. 数量
Quantity
3. 单价及价格条款
Unit Price & Trade Terms
4. 金额
Amount
Total
允许
With
溢短装,由卖方决定
More or less of shipment allowed at the sellers’ option
5. 总值
Total Value
6. 包装
Packing
7. 唛头
Shipping Marks
8. 装运期及运输方式
Time of Shipment & Means of Transportation
38
Chapter 2 International Contract of Sale
续表
9. 装运港及目的地
Port of Loading & Destination
10. 保险
Insurance
11. 付款方式
Terms of Payment
12. 备注
Remarks
The Buyer The Seller
(signature) (signature)
39
Foreign Trade Documentation
Appendix
Sales Contract Specimen 1
International Sale Contract
(Manufactured Goods Intended for Resale)
(ICC Model)
A. Specific Conditions
These specific conditions have been prepared in order to permit the parties to agree the
particular terms of their sale contract by completing the spaces left open or choosing ( as the
case may be) between the alternatives provided in this document. Obviously this does not
prevent the parties from agreeing other terms or further details in box A16 or in one or more
annexes.
Seller Contact Person Buyer Contact Person
name and address name and address name and address name and address
The present contract of sale will be governed by these specific conditions ( to the extent
that the relevant boxes have been completed) and by the ICC General Conditions of Sale
(Manufactured Goods Intended for Resale) which constitute part B of this document.
Seller Buyer
Signature signature
place: date: place: date:
A1 Goods Sold
Description of the goods
If there is insufficient space parties may use an annex.
A2 Contract Price (Art. 4)
Currency:
40
Chapter 2 International Contract of Sale
amount in numbers: amount in letters:
A3 Delivery Terms
Recommended terms (according to Incoterms
®
2020)
□ EXW Ex Works named place:
□ FCA Free Carrier named place:
□ CPT Carriage Paid to named place of destination:
□ CIP Carriage and Insurance Paid to named place of destination:
□ DAP Delivered at Place named place:
□ DPU Delivered at Place Unloaded named place of destination:
□ DDP Delivered Duty Paid named place of destination:
Other terms (according to Incoterms
®
2020)
□ FAS Free alongside Ship named port of shipment:
□ FOB Free on Board named port of shipment:
□ CFR Cost and Freight named port of destination:
□ CIF Cost Insurance and Freight named port of destination:
Other delivery terms
□
Carrier (where applicable)
Name and Address Contact Person
A4 Time of Delivery
Indicate here the date or period (e. g. week or month) at which or within which the Seller
must perform his delivery obligations according to clause A4 of the respective Incoterm.
A5 Inspection of the Goods by Buyer (Art. 3)
□ Before shipment place of inspection:
□ Other:
A6 Retention of Title (Art. 7)
□ Yes □ No
A7 Payment Conditions (Art. 5)
□ Payment on open account (Art. 5. 1)
Time for payment (if different from Art. 5. 1) days from date of invoice.
41
Foreign Trade Documentation
Other:
□ Open account backed by demand guarantee or standby letter of credit (Art. 5. 5)
□ Payment in advance (Art. 5. 2)
Date (if different from Art. 5. 2):
□ Total price □ % of the price
□ Documentary collection (Art. 5. 5)
□ D/ P Documents against payment □ D/ A Documents against acceptance
□ Irrevocable documentary credit (Art. 5. 3)
□ Confirmed □ Unconfirmed
Place of issue (if applicable): Place of confirmation (if applicable):
Credit available: Partial shipments: Transshipment:
□ By payment at sight □ Allowed □ Allowed
□ By deferred payment at: days □ Not allowed □ Not allowed
□ By acceptance of drafts at: days
□ By negotiation
Date on which the documentary credit must be notified to seller (if different from Art. 5. 3).
□ days before date of delivery □ other:
Other:
(e. g. cheque, bank draft, electronic funds transfer to designated bank account of seller)
A8 Documents
Indicate here documents to be provided by Seller. Parties are advised to check the Incoterm they have selected under A3 of these Specific Conditions.
□ Transport documents: indicate type of transport document required
□ Commercial invoice □ Certificate of origin
□ Packing list □ Certificate of inspection
□ Insurance document □ Other:
A9 Cancellation Date
To be completed only if the parties wish to modify Art. 10. 3.
If the goods are not delivered for any reason whatsoever ( including force majeure) by
(date) the buyer will be entitled to cancel the contract immediately by notification
of the seller.
A10 Liability for Delay (Art. 10. 1, 10. 4 and 11. 3)
To be completed only if the parties wish to modify Art 10. 1, 10. 4 or 11. 3.
Liquidated damages for delay in delivery shall be:
□ % (of price of delayed goods) per week, with a maximum of
% (of price of delayed goods) or:
42
Chapter 2 International Contract of Sale
□ (specify amount)
In case of termination for delay, Seller’ s liability for damages for delay is limited to
% of the price of the non-delivered goods.
A11 Limitation of Liability for Lack of Conformity (Art. 11. 5)
To be completed only if the parties wish to modify Art. 11. 5.
Seller’s liability for damages arising from lack of conformity of the goods shall be:
□ limited to proven loss (including consequential loss, loss of profit, etc. ) not exceeding
% of the contract price;or:
□ as follows (specify):
A12 Limitation of Liability Where Non-conforming Goods Are Retained by the
Buyer (Art. 11. 6)
To be completed only if the parties wish to modify Art. 11. 6.
The price abatement for retained non-conforming goods shall not exceed:
□ % of the price of such goods or:
□ (specify amount)
A13 Time-bar (Art. 11. 8)
To be completed only if the parties wish to modify Art. 11. 8.
Any action for non-conformity of the goods (as defined in Art. 11. 8) must be taken by the
buyer not later than from the date of arrival of the goods at destination.
A14(a), A14(b) Applicable Law (Art. 1. 2)
To be completed only if the parties wish to submit the sale contract to a national law
instead of UNCISG. The solution hereunder is not recommended:
(a) This sales contract is governed by the domestic law of (country).
To be completed only if the parties wish to choose a law other than that of the seller for
questions not covered by UNCISG.
(b) Any questions not covered by UNCISG will be governed by the law of
(country).
A15 Resolution of Disputes (Art. 14)
The two solutions hereunder ( arbitration or litigation before ordinary courts) are alternatives: parties cannot choose both of them. If no choice is made, ICC arbitration will apply,
according to Art. 14.
□ Arbitration □ Litigation (ordinary courts)
□ ICC (according to art. 14. 1) in case of dispute the courts of
Place of arbitration (place)
□ Other (specify) shall have jurisdiction
43
Foreign Trade Documentation
A16 Other
B. General Conditions
Art. 1 General
1. 1 These General Conditions are intended to be applied together with the Specific
Conditions ( part A) of the International Sale Contract ( Manufactured Goods Intended for
Resale) , but they may also be incorporated on their own into any sale contract. Where these
General Conditions ( Part B) are used independently of the said Specific Conditions (Part
A) , any reference in Part B to Part A will be interpreted as a reference to any relevant specific conditions agreed by the parties. In case of contradiction between these General Conditions
and any specific conditions agreed upon between the parties, the specific conditions shall
prevail.
1. 2 Any questions relating to this Contract which are not expressly or implicitly settled by
the provisions contained in the Contract itself (i. e. these General Conditions and any specific
conditions agreed upon by the parties) shall be governed:
A. by the United Nations Convention on Contracts for the International Sale of Goods
(Vienna Convention of 1980, hereafter referred to as UNCISG), and
B. to the extent that such questions are not covered by UNCISG, by reference to the law of
the country where the Seller has his place of business.
1. 3 Any reference made to trade terms ( such as EXW, FCA, etc. ) is deemed to be
made to the relevant term of Incoterms published by the International Chamber of Commerce.
1. 4 Any reference made to a publication of the International Chamber of Commerce is
deemed to be made to the version current at the date of conclusion of the Contract.
1. 5 No modification of the Contract is valid unless agreed or evidenced in writing.
However, a party may be precluded by his conduct from asserting this provision to the extent
that the other party has relied on that conduct.
Art. 2 Characteristics of the Goods
2. 1 It is agreed that any information relating to the goods and their use, such as weights,
dimensions, capacities, prices, colors and other data contained in catalogues, prospectuses,
circulars, advertisements, illustrations, price-lists of the Seller, shall not take effect as terms of
the Contract unless expressly referred to in the Contract.
2. 2 Unless otherwise agreed, the Buyer does not acquire any property rights in software,
drawings, etc. which may have been made available to him. The Seller also remains the exclusive owner of any intellectual or industrial property rights relating to the goods.
Art. 3 Inspection of the Goods before Shipment
If the parties have agreed that the Buyer is entitled to inspect the goods before shipment,
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Chapter 2 International Contract of Sale
the Seller must notify the Buyer within a reasonable time before the shipment that the goods are
ready for inspection at the agreed place.
Art. 4 Price
4. 1 If no price has been agreed, the Seller’s current list price at the time of the conclusion of the Contract shall apply. In the absence of such a current list price, the price generally
charged for such goods at the time of the conclusion of the Contract shall apply.
4. 2 Unless otherwise agreed in writing, the price does not include VAT, and is not subject to price adjustment.
4. 3 The price indicated under A2 ( contract price) includes any costs which are at the
Seller’s charge according to this Contract. However, should the Seller bear any costs which,
according to this Contract, are for the Buyer’ s account ( e. g. for transportation or insurance
under EXW or FCA), such sums shall not be considered as having been included in the price
under A2 and shall be reimbursed by the Buyer.
Art. 5 Payment Conditions
5. 1 Unless otherwise agreed in writing, or implied from a prior course of dealing between
the parties, payment of the price and of any other sums due by the Buyer to the Seller shall be
on open account and time of payment shall be 30 days from the date of invoice. The amounts
due shall be transferred, unless otherwise agreed, by teletransmission to the Seller’ s bank in
the Seller’s country for the account of the Seller and the Buyer shall be deemed to have performed his payment obligations when the respective sums due have been received by the Seller’s
bank in immediately available funds.
5. 2 If the parties have agreed on payment in advance, without further indication, it will
be assumed that such advance payment, unless otherwise agreed, refers to the full price, and that
the advance payment must be received by the Seller’ s bank in immediately available funds at
least 30 days before the agreed date of delivery or the earliest date within the agreed delivery period. If advance payment has been agreed only for a part of the contract price, the payment conditions of the remaining amount will be determined according to the rules set forth in this article.
5. 3 If the parties have agreed on payment by documentary credit, then, unless otherwise
agreed, the Buyer must arrange for a documentary credit in favour of the Seller to be issued by
a reputable bank, subject to the Uniform Customs and Practice for Documentary Credits published by the International Chamber of Commerce, and to be notified at least 30 days before the
agreed date of delivery or at least 30 days before the earliest date within the agreed delivery
period. Unless otherwise agreed, the documentary credit shall be payable at sight and allow
partial shipments and transshipments.
5. 4 If the parties have agreed on payment by documentary collection, then, unless otherwise agreed, documents will be tendered against payment (D/ P) and the tender will in any
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