Dissertation > Excellent graduate degree dissertation topics show

Research on Damages Calculation of CISG

Author: LiuHaiSheng
Tutor: JiangZuoLi
School: Shandong University
Course: Legal
Keywords: Damages Declaring the Contract Avoided Substitutive Transaction Time Price
CLC: D997.1
Type: Master's thesis
Year: 2011
Downloads: 39
Quote: 0
Read: Download Dissertation

Abstract

The United Nations Convention on Contracts for the International Sale of Goods 1980 (hereinafter referred to as CISG) is an uniform international trade substantive rules and also is the first time to be established in the worldwide which commonly acknowledged by the different countries throughout the world in human history. One of great achievements of CISG is that the default damages system has been established, and the calculation of damages shall be deemed to the core of the system. The damages are set forth in a separate section which covers four articles (art.74 to 77) under CISG.Though CISG has provided a relatively reasonable and complete damage system, but because of the default damages in the international commercial contract which involved in lots of problems such as fairness, morality and the benefits of the commercial trade, and it is very complicated both in the area of theory and practice, particularly in the matters that which loss shall be compensated and how calculates such loss and the time price and the price of the substitute transaction. Therefore, this Paper mainly based on the provisions of CISG (art.74 to 77), and combined with other articles, to analysis the methods of calculation damages by both of the interrelated aspects of the whole and the part. The Paper has divided the damages of CISG into two different situations:one is the calculation rules in general situation. In this circumstance, the parties shall claim damages in accordance with the Principle of Full Compensation which implicitly ruled in the article 74 under CISG, but this method should be bound and limited by the Rule of Foreseeability and Rule of Mitigation of Damages. According to the Principle of Full Compensation, the aggrieved party is entitled to obtain the damages which consist of a sum equal to the loss, including loss of profit, suffered by the other party as a consequence of the breach. Based on the above mentioned and combined with the practice in trade and relevant cases, the Paper has concluded the loss to be nine types which the aggrieved party may claim under such circumstance; the other is the calculation methods on particular situation. It means that the damage calculation when declaring the contract avoided. According to the provisions of CISG, there are two calculation methods of damages under this circumstance, one is the calculation method on the situation that the aggrieved party has completed the substitutive transaction, for this method, the aggrieved party can be entitled to obtain the difference compensation between the contract price and the price of the substitutive transaction; and the other is the calculation method on the situation without the substitutive transaction, for this method, the aggrieved party can be entitled to obtain the difference compensation between the contract price and the time price. However, with respect to the substitutive transaction and time price, the provisions under CISG are not sufficient and explicit, and thus, the Paper has conducted a detailed discussing towards the applicable conditions of the substitutive transaction and the determination standards of the time price. Meanwhile, the Paper would also analysis the relevant provisions on damages in domestic laws and the practical methods of the main trade countries worldwide, adopted the way of comparative analysis and combined with the provisions of CISG, to assist the different countries’parties for understanding the different provisions in related domestic laws, so that the parties can select the properly applicable law to resolve the contract disputes. In addition, the Paper also combined the most controversial problems on calculation damages with relevant cases for analyzing and researching, thereof obtained the relatively reasonable calculation methods. Finally, on the basis of the above analysis, the author advises that it will be better that the parties shall make an agreement about the method for calculating damages when conclude the contract for international sale of goods, and as one of contract terms for being abided by. Thus, even if a dispute happened, the parties also can require the default party to bear relevant responsibilities by quoted such terms which agreed in advance or request the court or arbitral tribunal to confirm it. And according to the principle of autonomy of will, the agreement of parties is prior, and can exclude the application of CISG.

Related Dissertations

CLC: > Political, legal > Legal > International law > Private international law > International Civil
© 2012 www.DissertationTopic.Net Mobile