Droits et obligations fondamentaux du vendeur en vertu de la CVIM (document en anglais)

INTERNATIONAL BUSINESS CONTRACTS

Basic rights and obligations of the Seller under the CISG.

INTRODUCTION:

With the phenomenon that we hear every day, which is globalization, with the improvement of communication systems in the era of transnational and multinational corporations, international trade are becoming more and more important. So the international contract of sales is now a paramount of an essential importance.

The international business contract, by its nature, cannot find its origin in legal laws of a single country. So, there are international conventions, which treat about its existence.

The first one is the Vienna Convention of 1980. It follows previous attempts to regulate international sales law. Today, this convention has been endorsed by more than 70 states (the last one is Benin in 2012), despite the notable absence of some countries such as U.K.

The second source of international law for sales is the Rome Convention (19 June 1980) and La Haye Conventions (15 June 1955 and 22 December 1986). These conventions are particular to settle the question of conflicts of law.

The third major source is in the INCOTERMS or International Terms Commercials. They provide, through the International Chamber of Commerce, which has codified a list of uses for different types of sales, the parties may choose to use.

We will focus in this essay only on the Vienna Convention (CISG). It was developed under the auspices of the United Nations. This agreement was signed for the first time on 19 April 1980.

It gives a standard definition. Indeed, as the convention wants, we can talk about international sale of goods when the seller's and the buyer’s place of sale are situated in different States. Therefore, it is easy to characterize the international aspect of the sale as a sale across national borders.

CISG provides a set of autonomous rules that can be applied independently of any national legislation. In particular, there are general provisions of the Convention Articles 1 to 13. Then, is treated the rules of contract formation in Articles 14 to 24.

But in this essay, we will be more interested in the sale of goods under the influence of the CISG and especially the rights and obligations of the seller.

Then, we will be able to answer to the following question: How and by which seller's obligations, the agreement protects the buyer in international transactions. But also, what are seller’s remedies in case of breach by the buyer.

In the first part, we will see the seller's obligations relating to Articles 30 to 44.

Then, in a second part, we see the means available to the seller in case of contraventions by the buyer, relating between articles 61 and 70.

I: Obligations of the Seller

The seller’s obligations are very diverse. They are the essential phase of the contract of international sale. In fact, the seller involvement in international sales is the most important because it has a more active and central role than the buyer.

Seller’s obligations are treated in accordance with the chapter 2 of the Convention.

The article 30 gives the general dispositions.

Art 30: “The seller must deliver the goods, hand over any documents relating to them and transfer the property in the goods, as required by the contract and this Convention.”

• The seller must deliver the goods.

• Transferring the property and if it is included, documents relating to the sale.

• The seller has to deliver the thing physically and legally in accordance to the provided contract.

• If an INCOTERM was selected, the seller must provide and transport the goods under the terms chosen.

If the seller failed to his obligations, the Vienna Convention offers many possibilities for the buyer.

A. Obligation of delivery.

The main obligation for the seller under the CISG is his responsibility to deliver the goods. The obligation of delivery has many effects such as transfer of risk and property.

The CISG deals with the obligation of delivery in Articles 30 to 34.

Definition: It can be concluded on this point that the delivery is the operation which consists in putting the good at the disposal of the purchaser, or to the person who has the right on it.

We can add that the terms "deliver" should not be literally interpreted. The seller must not provide the goods to the purchaser him self. The answer to this question depends more on how the execution of delivery is done.

So we will see two important points here; the place of delivery (1) and then, the time of delivery (2).

• Place of delivery.

The article 31 of the CISG governs this obligation.

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Article 31

If the seller is not bound to deliver the goods at any other particular place, his obligation to deliver consists:

(a) If the contract of sale involves carriage of the goods - in handing the goods over to the first carrier for transmission to the buyer;

(b) If, in cases not within the preceding subparagraph, the contract relates to specific goods, or unidentified goods to be drawn from a specific stock or to be manufactured or produced, and at the time of the conclusion of the contract the parties knew that the goods were at, or were to be manufactured or produced at, a particular place - in placing the goods at the buyer's disposal at that place;

(c) In other cases - in placing the goods at the buyer's disposal at the place where the seller had his place of business at the time of the conclusion of the contract.

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CISG

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