Sale of goods (solution)
Research Strategy
1) Does the United Nations Convention on Contracts for the International Sale of Goods (CISG) apply to construction agreements?
Visual search engines
In performing legal English research on specific topics, clustering tools (see task 6) and meta-searches (see task 8) can be very helpful. In addition, breaking down a broad research topic such as the Convention on the International Sale of Goods into smaller topics such as applicability, electronic agreements, etc. may be made easier by using what are referred to as visual or graphical search engines.
Like the clustering and meta strategies, a visual guide can help you quickly identify the English vocabulary you need in order to carry out further research and describe legal concepts.
Using the Mooter search engine (www.mooter.com), enter the following search query:
convention on the international sale of goods
Clicking the Search button returns a visual display of the topics associated with the search query. This allows you to get a quick overview of related topics. Up to three pages of clusters will be returned.
Although the first page will often feature the most relevant links, it is also useful to check the following pages. Click on the next clusters image to see the next page of associated topics.
In the resulting visual display, click on contracts. When choosing a point on the visual display, the results are presented in text form with a cluster menu appearing on the left-hand side of the page for easy reference.
Now use the documents returned by your search query to answer question 1.
Answer
Yes.
For more details, see:
http://cisgw3.law.pace.edu/cisg/biblio/schlechtriem.html
2) Does the CISG apply to agreements for the supply of electricity?
Let us refine our search to determine whether the CISG applies to sales of electricity. Using the Mooter search engine, enter the following search query:
electricity cisg
Click on the next clusters image to see the next page of associated topics.
The resulting visual display includes electricity as one of the points of reference. Click on this point.
Now use the documents returned by your search query to answer question 2.
Answer
It is possible that the CISG may not apply for two reasons:
Supply contracts
The CISG covers the sale of goods, and may not apply to contracts that include services.
However, where a contract includes both goods and services elements, the CISG will apply unless "the preponderant part of the obligations of the party who furnishes the goods consists in the supply of labour or other services".
Sales of electricity
Sales of electricity are expressly excluded from the CISG. Although the CISG does not define contracts of sale, it does provide that the seller must “deliver the goods, hand over any documents relating to them and transfer the property in the goods,” while the buyer must “pay the price for the goods and take delivery of them”. The key point is that the CISG covers the contractual aspects of a sale and not the property aspects. Questions about distinctions between a sale and other transactions (e.g. leases) will be similar to those that arise under domestic law. In these transactions attorneys should include explicit statements about whether the CISG is or is not to govern.
For more details, see:
http://cisgw3.law.pace.edu/cisg/guides.html
http://www.corpuschristi-lawyers.com/publication/wc/1r001.htm
http://www.osec.doc.gov/ogc/occic/cisg.htm
3) Does the fact that the contract for the supply of electricity was electronic affect
the application of the CISG?
Using the Grokker search engine (www.grokker.com), enter the following query:
"electronic agreements"
Click the GROK button. The resulting page is presented in a clustering format. Clicking any of the clustered menu items will display a summary of the links in a window on the right-hand side of the screen.
It is possible to see how the clustered menu items are grouped by clicking on the Map View tab at the top of the cluster menu. Moving your cursor over the various circles will display the name of the subject categories. Clicking on one of the categories will zoom in to the sub-categories and display a summary of the links in the right-hand window.
Choosing the Electronic Commerce circle and clicking on it zooms in on that circle and makes it easier to review. Clicking on the Electronic Signatures circle provides links to a variety of online resources that will help you find the solution to your research problem.
Now use the documents returned by your search query to answer question 3.
Answer
As we have seen, it is uncertain whether or not the CISG will govern the supply of electricity. If it can be shown that the CISG does indeed cover this part of the contract, the fact that it was in electronic form will probably not affect its application.
The following summary details current conditions for general e-commerce and electronic contract validity.
The UNCITRAL Model Law on Electronic Commerce, approved in 1996, sets the general conditions for e-commerce contract validity. UNCITRAL is the United Nations Commission on International Trade Law, established to harmonize international trade law by creating accessible, predictable and unified commercial laws.
The Model Law provides that, unless the parties agree otherwise, an offer or acceptance of an offer can be expressed in electronic form.
It falls to each individual country to enact the Model Law into its own national law. E-commerce statutes throughout North and South America, Europe, Africa and Asia have all followed the same standard.
For more details, see:
http://www.tradeforum.org/news/fullstory.php/aid/501/What_Does_It_Mean_When_You_Click_%93I_Agree%94_.html
Recent developments in the validity of electronic contracts under the CISG
On September 26, 2003, the CISG-AC (Advisory Council on the United Nations Convention on Contracts for the International Sale of Goods (CISG)) announced its first opinion, ‘Electronic Communications under the CISG’. Its Secretary, Dr. Loukas Mistelis (Centre for Commercial Law Studies, Queen Mary, University of London), has described the CISG-AC as a private initiative to respond to the need to address some controversial, unresolved issues relating to the CISG which merit interpretative guidance, and to promote a uniform interpretation of the CISG. Dr. Mistelis has said: "The primary purpose of the CISG-AC is to issue opinions relating to the interpretation and application of the Convention on request or on its own initiative. Requests may be submitted to the CISG-AC, in particular, by international organizations, professional associations and adjudication bodies. The first opinion is a response to an informal request by the International Chamber of Commerce for the Council to reflect on the issue of electronic communications and the ability of the CISG to respond to such challenges."
For more details, see:
http://cisgw3.law.pace.edu/cisg/guides.html
http://www.law.northwestern.edu/journals/njtip/v2/n1/1/
Further Reading
For more details on the CISG, see The Pace database on the CISG and International Commercial Law: http://cisgw3.law.pace.edu/