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LPC Law Notes Commercial and IP Notes

International Sale Of Goods Notes

Updated International Sale Of Goods Notes

Commercial and IP Notes

Commercial and IP

Approximately 100 pages

A collection of the best LPC Commercial and IP notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through twenty-nine LPC samples from outstanding students with the highest results in England and carefully evaluating each on accuracy, formatting, logical structure, spelling/grammar, conciseness and "wow-factor".

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The following is a more accessible plain text extract of the PDF sample above, taken from our Commercial and IP Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

International Sale of Goods (sgs 8/9)

Delivery cl’s

Date

 Make sure not “estimated” - precision wanted

Remedy for late delivery

  • Make sure ‘time is of the essence’

  • If time is of the essence then late delivery is breach of cond

  • If time isn’t of the essence then late delivery is breach of W

Place of delivery

 B will want it to be their premises, S will want it to be theirs

Acceptance of goods

 B will want time specified and right to inspect goods

Liquidated Damages cl’s:

Liquidated Damages cl’s (‘LDC’)

Advs:

  • When it comes to enforcement, all cl needs to prove is the date of actual delivery and if this was after the agreed Delivery Date. LDCs obviate the need to prove damage, remoteness and mitigation. Commercial advantage is that it puts pressure on the other party to deliver in time

  • For the other party, the benefit may be certainty and the ability to insure vs potential liability for fixed amount

  • purpose of damage for breach of contract under English law is compensatory

  • A cl will be deemed unenforceable if it is deemed to impose a penalty which acts as a deterrent (or would over-compensate innocent party).

  • A distinction has been made between a penalty and a liability to pay a specified genuine pre estimate of loss, the latter being enforceable

  • Apply these principles in exam - is purpose to punish or to avoid/minimise loss

Accrual in LCDs

  • accruing weekly - probably ok as easy-ish to administer

  • Accruing by the week/part week - ie. One day extra into a second week = another whole wk of damages is probably overcompensation and will render the LCD vulnerable

  • Accruing by the working day: a daily fraction could be commercially accurate and as long as it’s r’able would be allowed

Force Majeure Cl’s (‘FMCs’)

Definition

 Suspense/delay commercial cl for when something happens outside S and B’s control -> usually protects S
Check if the subject matter of the ag are governed by special laws

Negotiated topics

  • notice periods

  • Period of suspension

  • Termination if event continues - when?

  • B wants S to mitigate delay ‘take every step possible’

  • Notification ‘immediately’ or ‘r’ably becoming aware of’

ISCs

Important terms in an international sale contract (‘ISC’)

  • applicable law

  • Jurisdiction

  • Price/delivery/terms

  • Payment

  • Most issues will be dealt w/expressly but there are also implied terms

Exclusions and limitations of liab in an ‘ISC’ - do not apply s.26 UCTA

ISC’ defined in ss.26(3) and (4) UCTA. 2 x elements:

  1. it involves a sale of goods between parties whose place of business is in different countries; and

  2. One or more of the following applies:

  • the goods are to be carried from 1 country to another

  • The contractual offer and acceptance have taken place in different countries and/or

  • The goods are to be contractually delivered to a country other than that in which offer or acceptance took place

Significantly, under s.26 UCTA, the limitations on a party seeking to limit/exclude liab (including r’abless requirements) will not apply to an ISC

W/ISC - 2 x areas of uncertainty:

  1. Jurisdiction - Brussels I

Does B1 apply?

 Yes - if “civil and commercial matter”

Which courts have J?

 Basically parties should be sued in their home courts, list which courts this could be

Will courts accept J?

 Where courts of 2 different MSs have equal jurisdiction, the cl will have a choice of forum. See following key provisions:

GR - Art 2

persons domiciled in a MC, shall, whatever their nationality, be sued in the courts of that MS’

Domicile individual = self explanatory

Domicile company = where co has its stat seat (aka reg’d office in UK) or its place of central admin or principle place of business (Art 60)

GR is subject to certain exceptions:

Exclusive J - Art 22

 Art 22 gives excl J (regardless of domicile) to courts of an MS in which immoveable property is situated and in certain proceedings relating to cos, entries in public registers, registration or validity of IPRs or enforcement of judgings. This will override any other rules.

Express choice of the parties - Art 23

 Ie. Expressly in the contract

Contracts w/a ‘weaker party’ - Arts 8-14, 16 and 18-21

 Protect weaker parties to certain types of contract

Place of contractual performance - Art 5

 Art 5 gives J to the courts of the place of performance of contractual obligation which gives rise to dispute. In sale of goods contract, the place of performance is presumed to be the place of contractual delivery (art 5(1)(b)). Rule subject to ‘express choice’ provision of Art 23

Submission

 Subject to Art 22, if a D voluntarily submits to the J of a court other than his home court, that court will have J under Art 24. This rule overrides Art 23 express choice rule.

  1. governing law Rome I (‘R1’)

Scope - Art 1

  1. all cases involving a ‘conflict of laws’

  2. To contractual obligations

  3. Applies to ‘civil and commercial matters’

GR: freedom of choice - Art 3

“a contract shall be governed by the law chosen by the parties”

Not every contract contains an express law provision

If there is no (express or implied) choice ....

Art.4(1)(a) Sale of goods

Sale of goods

Law of country where S has habitual residence; OR

Art.4(1)(a) provision of services

Provision of services

Law of country where service provider has its habitual residence

Art.4(1)(f) distribution contract

Distribution contracts

Law of the place where distributor has its habitual residence

Price and delivery terms (delivery here = transfer of possession)

Terms of a contract should reflect:

  1. agreed price and whether the costs of delivery and insurance have been factored into the price

  2. Who is assuming the risk of loss or damage to the goods until actual receipt by B; and

  3. Who is bearing all the associated obligations for and costs of transport, insurance, customs clearance and import duties

Customary trade terms @ CL

  • over yrs, traders have developed standard...

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