This is an extract of our International Sale Of Goods document, which we sell as part of our Commercial and IP Notes collection written by the top tier of Cambridge And Oxilp And College Of Law students.
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International Sale of Goods (sgs 8/9) Delivery cl's Date Make sure not "estimated" - precision wanted Remedy for late - Make sure 'time is of the essence' delivery
- 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 Advs: cl's ('LDC')
- 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 Key legal issues
- 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 Legal issues 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
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