联合国销售合同公约考点[推荐5篇]

第一篇：联合国销售合同公约考点

《1980联合国国际货物销售合同公约》

1.公约的适用―――国际货物买卖合同

（1）“国际”买卖：

1）当事人营业地在不同缔约国，当事人如拥有一个以上的营业地，则采取与合同及合同的履行关系最密切的营业地为其营业地。

2）扩大适用（间接适用）―――非缔约国当事人的合同，但合同的准据法是缔约国如果非缔约国当事人未作法律或公约的选择，公约还可在下面情况下适用。公约第l条（1）款（B）项规定，对于当事人双方或一方营业所所在地国不是缔约国，如果国际私法规则导致适用某一缔约国的法律时，公约可以适用于他们之间订立的货物买卖合同法律教育网。在这种情况下适用公约，须具备3个条件：A、货物买卖合同具有国际性，即双方当事人的营业地分处在不同国家；B、双方当事人或一方当事人的营业地所在的国家不是公约缔约国；

C、受理纠纷的法院或仲裁机构根据国际私法规则认为该合同适用某一缔约国的法律。《公约》这一规定的目的旨在扩大公约的适用范围，但允许缔约国提出保留。

（2）“货物”买卖：技术、服务、劳务贸易不适用；

《公约》不适用于合同中的主要部分是为提供劳务和服务而成立的货物销售合同。公约

第3条还排除了对提供货物与提供服务相结合的合同的适用。依公约的规定，下列两种合同排除适用：

1.通过劳务合作方式进行的购买，如补偿贸易。

2.通过货物买卖方式进行的劳务合作，如技贸结合。

《公约》的标准是看该合同中的绝大部分义务是销售货物还是提供劳务或服务。如果销售货物是主要的，则应适用《公约》。反之，则不适用。

提供货物：适用（大型成套设备销售的交钥匙合同）

混合合同：卖方绝大部分义务是提供服务、劳务：不适用（来料加工）

――如果货物和劳务可以分开，则公约可以只适用于货物部分

（3）6种例外（不适用）

① 供私人、家人或家庭使用的货物（个人消费）。除非卖方在订立合同前任何时候或订立合同时不知道而且没有理由知道这些货物是作任何这种使用的；

② 经由拍卖销售的物品；

③ 根据法律执行令状或其他令状销售的货物；

④ 公债、股票、投资证券、流通票据或货币等有价证券；

⑤ 船舶、气垫船或飞机；

⑥ 电力；

（4）公约不涉及的三个问题

① 合同的效力，或其任何条款的效力，或任何惯例的效力。

② 合同对所售货物所有权可能产生的影响（所有权转移规则）

③ 卖方对于货物对任何人所造成的死亡或伤害的责任（产品质量侵权）

――注意：第③不包括财产侵权

（5）公约的任意性

① 缔约国当事人可以通过选择一个国家的法律来排除公约的适用。但是这种选择必须明示。其要点是：A、当事人可以通过选择一个国家的法律作准据法而排除80年公约的适用。B、当事人必须通过明示方式选择法律，主要指选择一个国家的国内法。C、对国际贸易术语的选择不构成对80年公约的排除。D、如果没作法律选择，则公约就当然适用于他们之间订立的买卖合同。

② 非缔约国当事人可以选择适用公约，可约定部分适用公约，可以改变公约内容，但有限制，当事人营业地所在国在加入公约时已经提出保留的内容，当事人必须遵守，不得排除或改变。

（6）我国的两个保留

① 扩大适用的保留：只能适用必须双方营业地所在国都是公约的缔约国

② 合同形式的保留：合同必须书面，排除口头和其他形式

2.要约承诺规则（按国内合同法掌握）

① 要约

（一）要约的概念及其构成要件一项有效的要约须具备以下条件：

（1）要约应向一个或一个以上特定的人提出。

（2）要约的内容必须十分确定。依《公约》第14条的规定，要约中应至少包含三个基本交易条件：A、货物的名称；B、货物的数量或确定数量的方法；C、价格或确定价格的方法。

（3）表明要约人在得到接受时承受约束的意旨。

4.要约必须传达到受要约人。

（二）要约的生效要约送达受要约人时生效。

（三）要约的撤回与撤销

（1）要约的撤回要约的撤回，是指要约人在要约生效之前阻止要约生效的行为。因为要约在到达受要约人之前尚未产生法律效力，因此要约人可以撤回要约。只要撤回要约的通知先于要约到达受要约人即可撤回要约。即要约人撤回要约的条件是，撤回要约的通知必须于要约到达受要约人之前或同时送达受要约人。

（2）要约的撤销要约人在要约送达受要约人后取消要约的行为称为要约的撤销。要约分为可撤销的要约和不可撤销的要约。对于不可撤销的要约，只有撤回的问题。依公约第16条的规定，在未成立合同之前，也就是受要约人没有承诺之前，要约可以撤销，但是撤销的通知必须在受要约人发出接受通知之前送达受要约人。

但在下列两种情况下，要约不得撤销：A、要约写明接受要约的期限或以其他方式表示要约是不可撤销的。B、受要约人有理由信赖该项要约是不可撤销的，而且受要约人已本着对该要约的信赖行事。

（四）要约的失效在要约失效后，无论是要约人或受要约人均不再受要约的拘束，要约失效的原因主要有以下几种情况：

（1）要约因有效期已过而失效，即要约因受要约人没有在要约规定的期间内做出有效的承诺而失去效力。

（2）要约因要约人的撤销而失效。

（3）要约因受要约人的拒绝而失效。拒绝要约有两种方式，一种是明确拒绝，即受要约人表示不接受要约的任何条件。另一种是反要约。这是指受要约人表示接受要约，但在接受通知中对要约的内容做了扩张、限制或变更，以致实质性地改变了要约的条件。这种实质性改变要约内容的接受在法律上称为反要约。如果原要约人不接受受要约人提出的反要约，那么，受要约人提出的反要约实际上就是对要约的拒绝。

② 承诺承诺是受要约人按照要约所规定的方式，对要约的内容表示同意的一种意思表示。要约一经承诺，合同即告成立。承诺又被称为“接受”。

（一）有效承诺须具备的条件

（1）须由受要约人做出，依公约第18条的规定，承诺的作出可以声明或行为表示，但缄默或不作为本身不等于承诺。

（2）承诺须在要约规定的有效期间或合理的期间内做出。理论上迟到的承诺或逾期的承诺，不是有效的承诺，而是新的要约，一般须经原要约人承诺后才能成立合同。

（3）承诺须与要约的内容一致。如果受要约人所表示的对要约的内容有变更即是反要约，或称为还价，反要约是对要约的拒绝，不能发生承诺的效力，它必须经原要约人承诺后才能成立合同。

（二）公约规定的“实质性变更”和“非实质性变更”公约将受要约人对要约内容的改变分为“实质性变更”和“非实质性变更”两种。如果对要约内容的改变属于非实质性变更，原则上

法律教育网可视为承诺，也就是说，只要要约人在合理时间内没有以口头或书面通知提出异议，那么对要约内容做了非实质性改变的接受即构成承诺。然而，如果承诺对要约内容做了实质性改变，则这种接受就不能构成承诺，而是一项反要约。《公约》规定，关于货物价格、付款、货物质量和数量、交货地点和时间、一方当事人对另一方当事人的赔偿责任及解决争端等的添加或不同条件，均视为在实质上变更要约的条件。——产生反要约

（三）逾期的承诺逾期承诺又称迟延的承诺，是指承诺通知到达要约人的时间已超过了要约规定的有效期或在要约未规定有效期的情况下而超过合理期时间。关于逾期承诺的效力，公约第21条并没有一概地否定，而是分两种情况，做了灵活的处理。

（1）因受要约人自己的迟延而造成的逾期承诺，该逾期承诺原则上无效。但如果要约人毫不迟延地用口头或书面通知受要约人其接受该项承诺，则该逾期的承诺仍为有效的承诺。合同成立。

（2）因为传递中的延误而使一项承诺逾期。该项逾期承诺产生法律上的效力，是一项有效的承诺，除非要约人毫不迟延地用口头或书面通知受要约人，他认为其要约已经失效。

（四）承诺生效的时间承诺一旦生效，合同即告成立，对于承诺生效的时间，英美法系国家和大陆法系国家分别采用不同的原则：

（1）发信主义（投邮生效主义）：英国法认为，在以书信、电报做出承诺时，承诺的通知一经投邮立即生效，合同即告成立。

（2）收信主义（到达生效主义）：大陆法律教育网法系认为，承诺的通知必须于到达相对人时才生效，合同才成立。

（3）公约的观点：公约采纳了收信主义。依公约第18条第（2）款的规定，对要约所作的承诺，应于表示同意的通知送达要约人时生效。

（五）承诺的撤回依公约第22条的规定，承诺可以撤回，只要撤回的通知应在承诺生效之前或与其同时送达要约人。

3.双方义务

（1）卖方的担保义务①符合产品的通常使用目的②符合特定使用目的（买方事先明示、默示）

A、质量上合格：有约定依约定，无约定 ③符合样品或样式（品质担保）④包装：通用方式——足以保全货物的方式例外：买方订约时明知有缺陷

所有权上无瑕疵：货物属卖方、未设定担保物权买方营业地国家B、权利上无瑕疵： 在约定的目的地国不侵权（权利担保）知识产权上无瑕疵 约定的转售第三国依目的地国法不侵权）在未约定的转售第三国例外 买方提供技术图样、图案、款式或其他规格买方订约时已知或不可能不知第三人权利

（2）买方的接收货物的义务

1）正常情况：买方应按时间按地点提取货物（如FOB，买方应及时派船到装港）

2）卖方有违约：先接收再索赔（注意保全、防损扩大）（接收不等于接受）

4.风险转移（依国内合同法掌握）

（1）卖方安排运输，货交承运人时

（2）在途货物，自合同成立时（不是提单交付时）

（3）买方安排运输时，货交买方支配时

（4）特定化（划拨）是风险发生转移的前提条件。

（5）从交货时间起，风险从卖方移于买方。这一原则的适用前提是卖方无违约行为。假若卖方发生违约行为，则风险不由卖方转给买方，货物灭失和损坏的风险还是由卖方承担。

5.违约补救宣告合同无效（解除合同）：对方根本违约；或者宽限期内仍不履行合同买方要求交付替代物：卖方交货不符合同，且构成根本违约重点 一方采取其他补救措施，不妨碍其同时提出损害赔偿损法律教谕罔害赔偿 数额：等于损失额（包括利润）

第二篇：《联合国国际货物销售合同公约》

（一）、《联合国国际货物销售合同公约》

通过国际立法协调和统一各国在国际货物买卖领域的法律是第二次世界大战后国际贸易法发展的一个显著特点。１９６４年在海牙外交会议上通过了由罗马统一国际私法研究所起草的《国际货物买卖统一法公约》（简称海牙第一公约）和《国际货物买卖合同成立统一法公约》（简称海牙第二公约）。

海牙第一公约是关于国际货物买卖双方当事人权利、义务和风险转移的公约，海牙第二公约是关于签订隔地合同的要约和承诺的公约。这两个公约主要反映了以欧洲为主的立法与习惯，在地区和内容上有很大的局限性，基本上属于区域性的多边条约，因此，需要有一个国际普遍适用的新的公约来代替这两个公约。联合国国际贸易法委员会从１９６４年开始将海牙第一公约与海牙第二公约的内容予以合并，并进行修改补充，目的是为了使更多的国家能接受。委员会于１９７８年完成了《联合国国际货物销售合同公约》的起草工作，１９８０年在维也纳外交会议上讨论并通过了此项公约，包括中国在内的６２个国家的代表参加了会议，公约共１０１条，主要内容为公约的适用范围、合同的成立、货物销售及最后条款；公约已对中国、美国、意大利、赞比亚、南斯拉夫、阿根廷、匈牙利、埃及、叙利亚、法国等３４个国家生效。

１、公约的适用范围。公约第１条规定：“本公约适用于营业地在不同国家的当事人之间订立的货物销售合同”。

公约强调当事人营业地位于不同国家的事实，并规定“在确定本公约的适用时，当事人的国籍和当事人或合同的民事或商业性质，应不予考虑。”

公约第２条列举了六类不适用公约的销售：

（１）购买供私人、家人或家庭使用的货物的销售；

（２）经由拍卖的销售；

（３）根据法律执行令状或其他令状的销售；

（４）公债、股票、投资证券、流通票据或货币的销售；

（５）船舶、船只、气垫船或飞机的销售；

（６）电力的销售。

鉴于这六种买卖交易性质、交易方法及标的物的特殊性，不在公约适用范围之内.此外，公约第４条规定，其适用范围只限于合同的订立及买卖双方因合同而产生的权利和义务。

2、合同的形式与成立

（１）合同的形式。公约第１１条规定：“销售合同无须以书面订立或书面证明，在形式方面也不受任何其他条件的限制，销售合同可以用包括人证在内的任何方法证明。”但是公约允许缔约国对这一条提出保留。

（２）合同的成立。公约第二部分对于要约和承诺的有关问题作了详细的规定，其具体内容与本章“国际货物买卖合同的订立”所述相同，但在对待承诺是否必须无条件地接受要约所提出的交易条件这一问题上，公约第１９条作了一些变通的规定，公约将对要约条件的添加、修改划分为实质性修改和非实质性修改两类。凡是有关货物的价格、付款、货物质量和数量、交货地点和时间、一方当事人对另一方当事人的赔偿责任范围或争议的解决等等内容的添加或修改，均被视为实质性的变更。除此以外的其他次要条件的添加或修改则被视作非实质性修改；只有实质性的修改才构成对原要约的拒绝并构成新要约，而非实质性修改不影响承诺的有效性。

３、买卖双方的义务。从法律上讲，国际货物买卖合同是一种双务、有偿合同，买卖双方当事人都应严格按照合同规定履行义务。公约对买卖双方的义务作了如下明确的规定.（１）卖方的义务。公约第３０条规定：“卖方必须按照合同和本公约的规定，交付货物，移交一切与货物有关的单据并转移货物所有权。”根据这一规定，卖方的义务主要有以

下三项：

第一，交付货物。卖方必须按照合同规定的时间、地点、方式完成交付货物的义务。如果合同没有规定交货的具体时间，卖方应在订立合同后一段合理时间内交货，卖方所交付的货物必须与合同所规定的货物数量、质量和规格相符，并且必须按照合同所规定的方式装箱或包装，卖方交付的货物还必须是任何第三方不能提出权利和要求的货物，即卖方对其出售的货物享有合法的权利。

第二，移交单据。公约规定：如果卖方有义务移交与货物有关的单据，必须按照合同所规定的时间、地点和方式移交这些单据；如果卖方在这个时间以前已移交这些单据，他可以在这个时间到达前纠正单据中任何不符合合同规定的内容。但是，这一权利的行使不得使买方遭受不合理的不便或承担不合理的开支，但买方保留本公约所规定的要求损害赔偿的任何权利。

第三，转移货物的所有权。这是买卖合同主要的法律特征，也是买卖双方订立买卖合同的直接目的。

（２）买方的义务。按照公约的规定，买方必须按照合同与公约的规定支付货物价款和收取货物，根据这一规定，买方主要有以下两项义务：

第一，支付价款。公约规定，买方必须严格根据合同或有关法律规定的步骤和手续支付价款。如果合同已有效地订立，但没有明示或默示地规定价格或规定如何确定价格，在没有任何相反表示的情况下，双方当事人应视为已默示地引用订立合同时此种货物在有关贸易的类似情况下销售的通常价格，如果价格是按货物的重量规定的，如有疑问，应按净重确定。

第二，收取货物。公约第６０条规定了买方有关收取货物的两项义务：①采取一切理应采取的行动，以期卖方能交付货物；②接受货物。

４、违约救济方法。违约的救济方法是指一方当事人违约而使另一方当事人的权利受到损害时，受损害一方为了取得补偿依照法律所采取的措施。公约对买卖双方违约的救济方法作了明确规定：

（１）卖方违约的救济方法。公约对卖方违约的救济方法作了详尽的规定，按照公约规定：一方当事人违反合同的行为，只有构成“根本违反合同”，买方才有权撤销合同，并依法得到补偿。公约对以下几种卖方违约行为分别规定了不同的救济方法：

第一，卖方拒不交货。公约根据卖方拒不交货所造成的损失的程度，对拒不交货的卖方采取以下几种救济方法：①要求卖方履行合同义务。公约规定，卖方拒不交货时，买方可以要求卖方履行合同义务，除非买方已采取与此一要求相抵触的某种补救办法；如买方已宣告撤销合同，就不能再要求卖方履行义务；②撤销合同。公约规定，当卖方的行为构成根本违约时，买方可以撤销合同，宣告原合同无效。但撤销合同时必须向卖方发出通知；③请求损害赔偿。公约规定，对于卖方违约所造成的损失，买方有权要求卖方予以赔偿，即使买方已经采取了其他救济方法，但对于因卖方违反合同所遭受的损失，仍有权要求卖方赔偿损失。

第二，卖方迟延交货。公约规定，卖方迟延交货构成根本违反合同时，买方有权撤销合同，但卖方迟延交货的行为尚未构成根本违反合同时，买方可以规定一段合理时限的额外时间，让卖方履行义务，如卖方在这一时间仍不交货，买方即可撤销合同，并要求卖方赔偿因迟延交货所造成的损失。

第三，卖方所交货物与合同不符。公约规定，卖方所交货物的品质、规格、数量或包装等方面与合同不符时，买方可以要求卖方另行交付一批符合合同要求的货物，以替代不符合合同的货物，也可以要求卖方对不符合合同的货物进行修补，或者根据具体情况减低货物的价格，当卖方所交货物不符合合同而构成根本违反合同时，买方还可以撤销合同，并要

求卖方赔偿损失。

（２）买方违约的救济方法。公约第三章第三节对买方违约的救济方式作了详尽规定：第一，要求买方履行合同义务。公约规定，当买方违反合同拒付货款、拒收货物或不履行其他义务时，卖方可以要求买方支付货款、收取货物或履行其他义务，除非卖方已采取与此一要求相抵触的某种补救办法。

第二，撤销合同。公约规定，当买方不履行合同构成根本违反合同时，卖方可以立即撤销合同，但尚未构成根本违反合同时，卖方可以规定一段合理的额外时间让买方履行义务，如时间届满买方仍不履行义务，卖方即可撤销合同。

第三，请求损害赔偿。公约规定，买方违约造成卖方损失时，卖方可请求损害赔偿。赔偿额应与卖方因买方违约而遭受的包括利润在内的损失额相等，对于买方拖欠的货款以及其他金额，卖方还有权收取利息。

５、风险的转移。公约第四章根据各种货物不同的运输与交付情况，对货物风险转移的时间和地点作了规定：

第一，规定特定地点交货的，风险于该地点转移，公约规定，如果卖方有义务在某一特定地点把货物交付给承运人，在货物于该地点交付给承运人之前，风险不转移给买方；卖方受权保留控制货物处置权的单据，并不影响风险的转移。

第二，涉及运输的货物，未规定特定地点交货的，风险于货物交付给第一承运人时转移。

第三，运输途中出售的货物，风险于订立合同时转移。

第四，在其他情况下，风险自买方接受货物时转移。公约规定，在不属于上述几种情况下，从买方接受货物时起，或如果买方不在适当时间内收受货物，则从货物交给他处置但他不收取货物而违反合同时起，风险转移到买方。

６、赔偿额的计算。根据公约规定，一方当事人违反合同应负的损害赔偿额，应与另一方当事人因他违反合同而遭受的包括利润在内的损失额相等。这种损害赔偿不得超过违反合同一方在订立合同时，依照他当时已知道或理应知道的事实和情况，对违反合同预料到或理应预料到的损失。如果卖方的行为已构成根本违反合同时，买方可以撤销合同，宣布合同无效，并在宣告无效后一段合理时期内，以合理的方式购买替代货物。在此情况下，买方可以取得原定合同价格和替代货物交易价格之间的差价。当合同被宣告无效，而货物又有时价时，如果受损的买方没有购买替代货物，则可以取得合同规定的价格和宣告无效合同时的时价之间的差价以及其他任何损害赔偿，但是，如果要求损害赔偿的一方在接受货物之后宣告合同无效，则应适用接收货物时的时价，而不是宣告合同无效时的时价。公约还规定，遭受损失的一方必须根据情况采取合理措施，减轻由于违约行为而引起的损失，否则，违约一方可以要求从损害赔偿中扣除原可以减轻的损失数额。

７、根本违反合同与预期违反合同公约将当事人的违约分为根本违反合同与预期违反合同两类。公约第２５条规定：“一方当事人违反合同的结果，如使另一方当事人蒙受损害，以致于实际上剥夺了他根据合同规定有权期待得到的东西，即为根本违反合同。”公约规定，只有一方的行为构成根本违反合同时，另一方才可以撤销合同，宣告原合同无效.根据公约第７１条的规定，如果订立合同以后，一方当事人明显地预见到，另一方当事人履行合同义务的能力或信用有严重缺陷，或者其准备履行合同或履行合同中的行为显然不能履行其在合同中承担的大部分重要义务，这一不能履行合同的行为即为预期违反合同，公约规定，一方当事人预期违反合同时，另一方当事人可以中止履行合同义务并立即通知违约方，如果预期违约方对履行义务提出充分保证，则不能中止履行合同义务。

８、免责有关免责的根据，公约第７９条提出了“非所能控制的障碍”（ＡｎＩｍｐｅｄｉｍｅｎｔｂｅｙｏｎｄｏｎｅ′ｓＣｏｎｔｒｏｌ）的概念。公约规定，当事人由于

某种非他所能控制的障碍而无法履行合同义务，则不负责任，构成“非所能控制的障碍”的条件是：不履行合同义务的一方没有理由在订立合同时预期能考虑到这种障碍；没有理由能预期避免这种障碍或其后果；没有理由能预期克服这种障碍或其后果，公约规定只有在“非所能控制的障碍存在期间”，才能免除不履行合同义务一方当事人的责任，但该当事人应将所发生的这种障碍及其对履行合同义务的影响通知另一方当事人，否则该方当事人应对损害负赔偿责任。

（二）、《国际货物买卖时效期限公约》

１９７４年６月１４日，英、美、法、日、联邦德国、印度等六十六个国家的外交代表在纽约举行外交代表会议，讨论通过了《联合国国际货物买卖时效期限公约》。

１９８０年在维也纳召开外交代表会议讨论制定《联合国国际货物销售合同公约》时，为了使它与时效公约在适用范围上保持一致，对时效公约的适用范围作了修订，于是通过了《国际货物销售时效期限公约的议定书》。

１、时效期限的期间和起始。公约规定，时效期限应为４年。时效期限应自请求权产生之日起算，公约对于下述几种请求权的起始作了具体规定：

（１）因违约而引起的请求权应在违约行为发生之日产生；

（２）因货物有瑕疵或不符契约规定而引起的请求权，应在货物实际交付买方或买方拒绝接受之日产生；

（３）因欺诈行为而提出的请求权，应在该项欺诈被发现或理应被发现之日产生；（４）因保证期而产生的请求权，应在保证期内买方将事实通知卖方之日产生；（５）因声明终止合同而产生的请求权，应在作出此项声明之日产生：

（６）因违背分期交货或分期付款契约而引起的请求权，自每期违约行为发生之日起，计算请求权的时效期限。

２、时效期限的停止和延长。公约规定在下列情况下，时效期限应停止计算：

（１）债权人依法向法院提起了诉讼；

（２）债权人依仲裁协议提起了仲裁；

（３）债务人死亡或丧失权利能力；

（４）债务人破产或无清偿能力：

（５）作为债务人的公司、商号、合伙、会社或团体的解散或清算。公约规定，如债务人在时效期限届满之前以书面向债权人承认其所负的债务，一个新的４年时效期限应自此种承认之日起算；公约第２１条规定：“如由于债权人无法控制或不能避免或克服的情况，债权人不应使时效期限停止计算，时效期限应予延长，使之不致在有关情况消失之日起一年期满之前即行届满”

３、时效期限的计算。公约规定，时效期限的计算，应在与该期限起算之日的对应日期终结时届满；如无此种对应日期，该期限应在时效期限的最后一个月的最末一日终结时届满；如时效期限的最后一日恰逢法定假日或休闲日，可以顺延。公约规定，时效期限应依照法律程序地点的日期计算。

第三篇：联合国国际货物销售合同公约主要内容

联合国国际货物销售合同公约主要内容

1.公约的基本原则。建立国际经济新秩序的原则、平等互利原则与兼顾不同社会、经济和法律制度的原则。这些基本原则是执行、解释和修订公约的依据，也是处理国际货物买卖关系和发展国际贸易关系的准绳。

2.适用范围。第一，公约只适用于国际货物买卖合同，即营业地在不同国家的双方当事人之间所订立的货物买卖合同，但对某些货物的国际买卖不能适用该公约作了明确规定。第二，公约适用于当事人在缔约国内有营业地的合同，但如果根据适用于“合同”的冲突规范，该“合同”应适用某一缔约国的法律，在这种情况下也应适用“销售合同公约”，而不管合同当事人在该缔约国有无营业所。对此规定，缔约国在批准或者加入时可以声明保留。第三，双方当事人可以在合同中明确规定不适用该公约。（适用范围不允许缔约国保留）

3.合同的订立。包括合同的形式和发盘（要约）与接受（承诺）的法律效力。

4.买方和卖方的权利义务。第一，卖方责任主要表现为三项义

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务：交付货物；移交一切与货物有关的单据；移转货物的所有权。第二，买方的责任主要表现为两项义务：支付货物价款；收取货物。第三，详细规定卖方和买方违反合同时的补救办法。第四，规定了风险转移的几种情况。第五，明确了根本违反合同和预期违反合同的含义以及当这种情况发生时，当事人双方所应履行的义务。第六，对免责根据的条件作了明确的规定。

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第四篇：cisj联合国销售合同公约(英文)

UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS(1980)

[CISG] For U.S.citation purposes, the UN-certified English text is published in 52 Federal Register 6262, 6264-6280(March 2, 1987);United States Code Annotated, Title 15, Appendix(Supp.1987).Linked Table of Treaty Sections THE STATES PARTIES TO THIS CONVENTION, BEARING IN MIND the broad objectives in the resolutions adopted by the sixth special session of the General Assembly of the United Nations on the establishment of a New International Economic Order, CONSIDERING that the development of international trade on the basis of equality and mutual benefit is an important element in promoting friendly relations among States, BEING OF THE OPINION that the adoption of uniform rules which govern contracts for the international sale of goods and take into account the different social, economic and legal systems would contribute to the removal of legal barriers in international trade and promote the development of international trade, HAVE AGREED as follows:

PART I SPHERE OF APPLICATION AND GENERAL PROVISIONS

Chapter I

SPHERE OF APPLICATION

Article 1(1)This Convention applies to contracts of sale of goods between parties whose places of business are in different States:(a)when the States are Contracting States;or(b)when the rules of private international law lead to the application of the law of a Contracting State.(2)The fact that the parties have their places of business in different States is to be disregarded whenever this fact does not appear either from the contract or from any dealings between, or from information disclosed by, the parties at any time before or at the conclusion of the contract.(3)Neither the nationality of the parties nor the civil or commercial character of the parties or of the contract is to be taken into consideration in determining the application of this Convention.Article 2 This Convention does not apply to sales:(a)of goods bought for personal, family or household use, unless the seller, at any time before or at the conclusion of the contract, neither knew nor ought to have known that the goods were bought for any such use;(b)by auction;(c)on execution or otherwise by authority of law;(d)of stocks, shares, investment securities, negotiable instruments or money;(e)of ships, vessels, hovercraft or aircraft;(f)of electricity.Article 3(1)Contracts for the supply of goods to be manufactured or produced are to be considered sales unless the party who orders the goods undertakes to supply a substantial part of the materials necessary for such manufacture or production.(2)This Convention does not apply to contracts in which the preponderant part of the obligations of the party who furnishes the goods consists in the supply of labour or other services.Article 4 This Convention governs only the formation of the contract of sale and the rights and obligations of the seller and the buyer arising from such a contract.In particular, except as otherwise expressly provided in this Convention, it is not concerned with:(a)the validity of the contract or of any of its provisions or of any usage;(b)the effect which the contract may have on the property in the goods sold.Article 5 This Convention does not apply to the liability of the seller for death or personal injury caused by the goods to any person.Article 6 The parties may exclude the application of this Convention or, subject to article 12, derogate from or vary the effect of any of its provisions.Chapter II GENERAL PROVISIONS

Article 7(1)In the interpretation of this Convention, regard is to be had to its international character and to the need to promote uniformity in its application and the observance of good faith in international trade.(2)Questions concerning matters governed by this Convention which are not expressly settled in it are to be settled in conformity with the general principles on which it is based or, in the absence of such principles, in conformity with the law applicable by virtue of the rules of private international law.Article 8(1)For the purposes of this Convention statements made by and other conduct of a party are to be interpreted according to his intent where the other party knew or could not have been unaware what that intent was.(2)If the preceding paragraph is not applicable, statements made by and other conduct of a party are to be interpreted according to the understanding that a reasonable person of the same kind as the other party would have had in the same circumstances.(3)In determining the intent of a party or the understanding a reasonable person would have had, due consideration is to be given to all relevant circumstances of the case including the negotiations, any practices which the parties have established between themselves, usages and any subsequent conduct of the parties.Article 9(1)The parties are bound by any usage to which they have agreed and by any practices which they have established between themselves.(2)The parties are considered, unless otherwise agreed, to have impliedly made applicable to their contract or its formation a usage of which the parties knew or ought to have known and which in international trade is widely known to, and regularly observed by, parties to contracts of the type involved in the particular trade concerned.Article 10 For the purposes of this Convention:(a)if a party has more than one place of business, the place of business is that which has the closest relationship to the contract and its performance, having regard to the circumstances known to or contemplated by the parties at any time before or at the conclusion of the contract;(b)if a party does not have a place of business, reference is to be made to his habitual residence.Article 11 A contract of sale need not be concluded in or evidenced by writing and is not subject to any other requirement as to form.It may be proved by any means, including witnesses.Article 12 Any provision of article 11, article 29 or Part II of this Convention that allows a contract of sale or its modification or termination by agreement or any offer, acceptance or other indication of intention to be made in any form other than in writing does not apply where any party has his place of business in a Contracting State which has made a declaration under article 96 of this Convention.The parties may not derogate from or vary the effect or this article.Article 13 For the purposes of this Convention “writing” includes telegram and telex.PART II

FORMATION OF THE CONTRACT

Article 14(1)A proposal for concluding a contract addressed to one or more specific persons constitutes an offer if it is sufficiently definite and indicates the intention of the offeror to be bound in case of acceptance.A proposal is sufficiently definite if it indicates the goods and expressly or implicitly fixes or makes provision for determining the quantity and the price.(2)A proposal other than one addressed to one or more specific persons is to be considered merely as an invitation to make offers, unless the contrary is clearly indicated by the person making the proposal.Article 15(1)An offer becomes effective when it reaches the offeree.(2)An offer, even if it is irrevocable, may be withdrawn if the withdrawal reaches the offeree before or at the same time as the offer.Article 16(1)Until a contract is concluded an offer may be revoked if the revocation reaches the offeree before he has dispatched an acceptance.(2)However, an offer cannot be revoked:(a)if it indicates, whether by stating a fixed time for acceptance or otherwise, that it is irrevocable;or(b)if it was reasonable for the offeree to rely on the offer as being irrevocable and the offeree has acted in reliance on the offer.Article 17 An offer, even if it is irrevocable, is terminated when a rejection reaches the offeror.Article 18(1)A statement made by or other conduct of the offeree indicating assent to an offer is an acceptance.Silence or inactivity does not in itself amount to acceptance.(2)An acceptance of an offer becomes effective at the moment the indication of assent reaches the offeror.An acceptance is not effective if the indication of assent does not reach the offeror within the time he has fixed or, if no time is fixed, within a reasonable time, due account being taken of the circumstances of the transaction, including the rapidity of the means of communication employed by the offeror.An oral offer must be accepted immediately unless the circumstances indicate otherwise.(3)However, if, by virtue of the offer or as a result of practices which the parties have established between themselves or of usage, the offeree may indicate assent by performing an act, such as one relating to the dispatch of the goods or payment of the price, without notice to the offeror, the acceptance is effective at the moment the act is performed, provided that the act is performed within the period of time laid down in the preceding paragraph.Article 19(1)A reply to an offer which purports to be an acceptance but contains additions, limitations or other modifications is a rejection of the offer and constitutes a counter-offer.(2)However, a reply to an offer which purports to be an acceptance but contains additional or different terms which do not materially alter the terms of the offer constitutes an acceptance, unless the offeror, without undue delay, objects orally to the discrepancy or dispatches a notice to that effect.If he does not so object, the terms of the contract are the terms of the offer with the modifications contained in the acceptance.(3)Additional or different terms relating, among other things, to the price, payment, quality and quantity of the goods, place and time of delivery, extent of one party's liability to the other or the settlement of disputes are considered to alter the terms of the offer materially.Article 20(1)A period of time for acceptance fixed by the offeror in a telegram or a letter begins to run from the moment the telegram is handed in for dispatch or from the date shown on the letter or, if no such date is shown, from the date shown on the envelope.A period of time for acceptance fixed by the offeror by telephone, telex or other means of instantaneous communication, begins to run from the moment that the offer reaches the offeree.(2)Official holidays or non-business days occurring during the period for acceptance are included in calculating the period.However, if a notice of acceptance cannot be delivered at the address of the offeror on the last day of the period because that day falls on an official holiday or a non-business day at the place of business of the offeror, the period is extended until the first business day which follows.Article 21(1)A late acceptance is nevertheless effective as an acceptance if without delay the offeror orally so informs the offeree or dispatches a notice to that effect.(2)If a letter or other writing containing a late acceptance shows that it has been sent in such circumstances that if its transmission had been normal it would have reached the offeror in due time, the late acceptance is effective as an acceptance unless, without delay, the offeror orally informs the offeree that he considers his offer as having lapsed or dispatches a notice to that effect.Article 22 An acceptance may be withdrawn if the withdrawal reaches the offeror before or at the same time as the acceptance would have become effective.Article 23 A contract is concluded at the moment when an acceptance of an offer becomes effective in accordance with the provisions of this Convention.Article 24 For the purposes of this Part of the Convention, an offer, declaration of acceptance or any other indication of intention “reaches” the addressee when it is made orally to him or delivered by any other means to him personally, to his place of business or mailing address or, if he does not have a place of business or mailing address, to his habitual residence.PART III SALE OF GOODS Chapter I GENERAL PROVISIONS

Article 25 A breach of contract committed by one of the parties is fundamental if it results in such detriment to the other party as substantially to deprive him of what he is entitled to expect under the contract, unless the party in breach did not foresee and a reasonable person of the same kind in the same circumstances would not have foreseen such a result.Article 26 A declaration of avoidance of the contract is effective only if made by notice to the other party.Article 27 Unless otherwise expressly provided in this Part of the Convention, if any notice, request or other communication is given or made by a party in accordance with this Part and by means appropriate in the circumstances, a delay or error in the transmission of the communication or its failure to arrive does not deprive that party of the right to rely on the communication.Article 28 If, in accordance with the provisions of this Convention, one party is entitled to require performance of any obligation by the other party, a court is not bound to enter a judgement for specific performance unless the court would do so under its own law in respect of similar contracts of sale not governed by this Convention.Article 29(1)A contract may be modified or terminated by the mere agreement of the parties.(2)A contract in writing which contains a provision requiring any modification or termination by agreement to be in writing may not be otherwise modified or terminated by agreement.However, a party may be precluded by his conduct from asserting such a provision to the extent that the other party has relied on that conduct.Chapter II

OBLIGATIONS OF THE SELLER

Article 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.Section I.Delivery of the goods and handing over of documents

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 goodsin 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.Article 32(1)If the seller, in accordance with the contract or this Convention, hands the goods over to a carrier and if the goods are not clearly identified to the contract by markings on the goods, by shipping documents or otherwise, the seller must give the buyer notice of the consignment specifying the goods.(2)If the seller is bound to arrange for carriage of the goods, he must make such contracts as are necessary for carriage to the place fixed by means of transportation appropriate in the circumstances and according to the usual terms for such transportation.(3)If the seller is not bound to effect insurance in respect of the carriage of the goods, he must, at the buyer's request, provide him with all available information necessary to enable him to effect such insurance.Article 33 The seller must deliver the goods:(a)if a date is fixed by or determinable from the contract, on that date;(b)if a period of time is fixed by or determinable from the contract, at any time within that period unless circumstances indicate that the buyer is to choose a date;or(c)in any other case, within a reasonable time after the conclusion of the contract.Article 34 If the seller is bound to hand over documents relating to the goods, he must hand them over at the time and place and in the form required by the contract.If the seller has handed over documents before that time, he may, up to that time, cure any lack of conformity in the documents, if the exercise of this right does not cause the buyer unreasonable inconvenience or unreasonable expense.However, the buyer retains any right to claim damages as provided for in this Convention.Section II.Conformity of the goods and third party claims

Article 35(1)The seller must deliver goods which are of the quantity, quality and description required by the contract and which are contained or packaged in the manner required by the contract.(2)Except where the parties have agreed otherwise, the goods do not conform with the contract unless they:(a)are fit for the purposes for which goods of the same description would ordinarily be used;(b)are fit for any particular purpose expressly or impliedly made known to the seller at the time of the conclusion of the contract, except where the circumstances show that the buyer did not rely, or that it was unreasonable for him to rely, on the seller's skill and judgement;(c)possess the qualities of goods which the seller has held out to the buyer as a sample or model;(d)are contained or packaged in the manner usual for such goods or, where there is no such manner, in a manner adequate to preserve and protect the goods.(3)The seller is not liable under subparagraphs(a)to(d)of the preceding paragraph for any lack of conformity of the goods if at the time of the conclusion of the contract the buyer knew or could not have been unaware of such lack of conformity.Article 36(1)The seller is liable in accordance with the contract and this Convention for any lack of conformity which exists at the time when the risk passes to the buyer, even though the lack of conformity becomes apparent only after that time.(2)The seller is also liable for any lack of conformity which occurs after the time indicated in the preceding paragraph and which is due to a breach of any of his obligations, including a breach of any guarantee that for a period of time the goods will remain fit for their ordinary purpose or for some particular purpose or will retain specified qualities or characteristics.Article 37 If the seller has delivered goods before the date for delivery, he may, up to that date, deliver any missing part or make up any deficiency in the quantity of the goods delivered, or deliver goods in replacement of any non-conforming goods delivered or remedy any lack of conformity in the goods delivered, provided that the exercise of this right does not cause the buyer unreasonable inconvenience or unreasonable expense.However, the buyer retains any right to claim damages as provided for in this Convention.Article 38(1)The buyer must examine the goods, or cause them to be examined, within as short a period as is practicable in the circumstances.(2)If the contract involves carriage of the goods, examination may be deferred until after the goods have arrived at their destination.(3)If the goods are redirected in transit or redispatched by the buyer without a reasonable opportunity for examination by him and at the time of the conclusion of the contract the seller knew or ought to have known of the possibility of such redirection or redispatch, examination may be deferred until after the goods have arrived at the new destination.Article 39(1)The buyer loses the right to rely on a lack of conformity of the goods if he does not give notice to the seller specifying the nature of the lack of conformity within a reasonable time after he has discovered it or ought to have discovered it.(2)In any event, the buyer loses the right to rely on a lack of conformity of the goods if he does not give the seller notice thereof at the latest within a period of two years from the date on which the goods were actually handed over to the buyer, unless this time-limit is inconsistent with a contractual period of guarantee.Article 40 The seller is not entitled to rely on the provisions of articles 38 and 39 if the lack of conformity relates to facts of which he knew or could not have been unaware and which he did not disclose to the buyer.Article 41 The seller must deliver goods which are free from any right or claim of a third party, unless the buyer agreed to take the goods subject to that right or claim.However, if such right or claim is based on industrial property or other intellectual property, the seller's obligation is governed by article 42.Article 42(1)The seller must deliver goods which are free from any right or claim of a third party based on industrial property or other intellectual property, of which at the time of the conclusion of the contract the seller knew or could not have been unaware, provided that the right or claim is based on industrial property or other intellectual property:(a)under the law of the State where the goods will be resold or otherwise used, if it was contemplated by the parties at the time of the conclusion of the contract that the goods would be resold or otherwise used in that State;or(b)in any other case, under the law of the State where the buyer has his place of business.(2)The obligation of the seller under the preceding paragraph does not extend to cases where:(a)at the time of the conclusion of the contract the buyer knew or could not have been unaware of the right or claim;or(b)the right or claim results from the seller's compliance with technical drawings, designs, formulae or other such specifications furnished by the buyer.Article 43(1)The buyer loses the right to rely on the provisions of article 41 or article 42 if he does not give notice to the seller specifying the nature of the right or claim of the third party within a reasonable time after he has become aware or ought to have become aware of the right or claim.(2)The seller is not entitled to rely on the provisions of the preceding paragraph if he knew of the right or claim of the third party and the nature of it.Article 44 Notwithstanding the provisions of paragraph(1)of article 39 and paragraph(1)of article 43, the buyer may reduce the price in accordance with article 50 or claim damages, except for loss of profit, if he has a reasonable excuse for his failure to give the required notice.Section III.Remedies for breach of contract by the seller

Article 45(1)If the seller fails to perform any of his obligations under the contract or this Convention, the buyer may:(a)exercise the rights provided in articles 46 to 52;(b)claim damages as provided in articles 74 to 77.(2)The buyer is not deprived of any right he may have to claim damages by exercising his right to other remedies.(3)No period of grace may be granted to the seller by a court or arbitral tribunal when the buyer resorts to a remedy for breach of contract.Article 46(1)The buyer may require performance by the seller of his obligations unless the buyer has resorted to a remedy which is inconsistent with this requirement.(2)If the goods do not conform with the contract, the buyer may require delivery of substitute goods only if the lack of conformity constitutes a fundamental breach of contract and a request for substitute goods is made either in conjunction with notice given under article 39 or within a reasonable time thereafter.(3)If the goods do not conform with the contract, the buyer may require the seller to remedy the lack of conformity by repair, unless this is unreasonable having regard to all the circumstances.A request for repair must be made either in conjunction with notice given under article 39 or within a reasonable time thereafter.Article 47(1)The buyer may fix an additional period of time of reasonable length for performance by the seller of his obligations.(2)Unless the buyer has received notice from the seller that he will not perform within the period so fixed, the buyer may not, during that period, resort to any remedy for breach of contract.However, the buyer is not deprived thereby of any right he may have to claim damages for delay in performance.Article 48(1)Subject to article 49, the seller may, even after the date for delivery, remedy at his own expense any failure to perform his obligations, if he can do so without unreasonable delay and without causing the buyer unreasonable inconvenience or uncertainty of reimbursement by the seller of expenses advanced by the buyer.However, the buyer retains any right to claim damages as provided for in this Convention.(2)If the seller requests the buyer to make known whether he will accept performance and the buyer does not comply with the request within a reasonable time, the seller may perform within the time indicated in his request.The buyer may not, during that period of time, resort to any remedy which is inconsistent with performance by the seller.(3)A notice by the seller that he will perform within a specified period of time is assumed to include a request, under the preceding paragraph, that the buyer make known his decision.(4)A request or notice by the seller under paragraph(2)or(3)of this article is not effective unless received by the buyer.Article 49(1)The buyer may declare the contract avoided:(a)if the failure by the seller to perform any of his obligations under the contract or this Convention amounts to a fundamental breach of contract;or(b)in case of non-delivery, if the seller does not deliver the goods within the additional period of time fixed by the buyer in accordance with paragraph(1)of article 47 or declares that he will not deliver within the period so fixed.(2)However, in cases where the seller has delivered the goods, the buyer loses the right to declare the contract avoided unless he does so:(a)in respect of late delivery, within a reasonable time after he has become aware that delivery has been made;(b)in respect of any breach other than late delivery, within a reasonable time:(i)after he knew or ought to have known of the breach;(ii)after the expiration of any additional period of time fixed by the buyer in accordance with paragraph(1)of article 47, or after the seller has declared that he will not perform his obligations within such an additional period;or(iii)after the expiration of any additional period of time indicated by the seller in accordance with paragraph(2)of article 48, or after the buyer has declared that he will not accept performance.Article 50 If the goods do not conform with the contract and whether or not the price has already been paid, the buyer may reduce the price in the same proportion as the value that the goods actually delivered had at the time of the delivery bears to the value that conforming goods would have had at that time.However, if the seller remedies any failure to perform his obligations in accordance with article 37 or article 48 or if the buyer refuses to accept performance by the seller in accordance with those articles, the buyer may not reduce the price.Article 51(1)If the seller delivers only a part of the goods or if only a part of the goods delivered is in conformity with the contract, articles 46 to 50 apply in respect of the part which is missing or which does not conform.(2)The buyer may declare the contract avoided in its entirety only if the failure to make delivery completely or in conformity with the contract amounts to a fundamental breach of the contract.Article 52(1)If the seller delivers the goods before the date fixed, the buyer may take delivery or refuse to take delivery.(2)If the seller delivers a quantity of goods greater than that provided for in the contract, the buyer may take delivery or refuse to take delivery of the excess quantity.If the buyer takes delivery of all or part of the excess quantity, he must pay for it at the contract rate.Chapter III

OBLIGATIONS OF THE BUYER

Article 53 The buyer must pay the price for the goods and take delivery of them as required by the contract and this Convention.Section I.Payment of the price

Article 54 The buyer's obligation to pay the price includes taking such steps and complying with such formalities as may be required under the contract or any laws and regulations to enable payment to be made.Article 55 Where a contract has been validly concluded but does not expressly or implicitly fix or make provision for determining the price, the parties are considered, in the absence of any indication to the contrary, to have impliedly made reference to the price generally charged at the time of the conclusion of the contract for such goods sold under comparable circumstances in the trade concerned.Article 56 If the price is fixed according to the weight of the goods, in case of doubt it is to be determined by the net weight.Article 57(1)If the buyer is not bound to pay the price at any other particular place, he must pay it to the seller:(a)at the seller's place of business;or(b)if the payment is to be made against the handing over of the goods or of documents, at the place where the handing over takes place.(2)The seller must bear any increases in the expenses incidental to payment which is caused by a change in his place of business subsequent to the conclusion of the contract.Article 58(1)If the buyer is not bound to pay the price at any other specific time, he must pay it when the seller places either the goods or documents controlling their disposition at the buyer's disposal in accordance with the contract and this Convention.The seller may make such payment a condition for handing over the goods or documents.(2)If the contract involves carriage of the goods, the seller may dispatch the goods on terms whereby the goods, or documents controlling their disposition, will not be handed over to the buyer except against payment of the price.(3)The buyer is not bound to pay the price until he has had an opportunity to examine the goods, unless the procedures for delivery or payment agreed upon by the parties are inconsistent with his having such an opportunity.Article 59 The buyer must pay the price on the date fixed by or determinable from the contract and this Convention without the need for any request or compliance with any formality on the part of the seller.Section II.Taking delivery

Article 60 The buyer's obligation to take delivery consists:(a)in doing all the acts which could reasonably be expected of him in order to enable the seller to make delivery;and(b)in taking over the goods.Section III.Remedies for breach of contract by the buyer

Article 61(1)If the buyer fails to perform any of his obligations under the contract or this Convention, the seller may:(a)exercise the rights provided in articles 62 to 65;(b)claim damages as provided in articles 74 to 77.(2)The seller is not deprived of any right he may have to claim damages by exercising his right to other remedies.(3)No period of grace may be granted to the buyer by a court or arbitral tribunal when the seller resorts to a remedy for breach of contract.Article 62 The seller may require the buyer to pay the price, take delivery or perform his other obligations, unless the seller has resorted to a remedy which is inconsistent with this requirement.Article 63(1)The seller may fix an additional period of time of reasonable length for performance by the buyer of his obligations.(2)Unless the seller has received notice from the buyer that he will not perform within the period so fixed, the seller may not, during that period, resort to any remedy for breach of contract.However, the seller is not deprived thereby of any right he may have to claim damages for delay in performance.Article 64(1)The seller may declare the contract avoided:(a)if the failure by the buyer to perform any of his obligations under the contract or this Convention amounts to a fundamental breach of contract;or(b)if the buyer does not, within the additional period of time fixed by the seller in accordance with paragraph(1)of article 63, perform his obligation to pay the price or take delivery of the goods, or if he declares that he will not do so within the period so fixed.(2)However, in cases where the buyer has paid the price, the seller loses the right to declare the contract avoided unless he does so:(a)in respect of late performance by the buyer, before the seller has become aware that performance has been rendered;or(b)in respect of any breach other than late performance by the buyer, within a reasonable time:(i)after the seller knew or ought to have known of the breach;or(ii)after the expiration of any additional period of time fixed by the seller in accordance with paragraph(1)of article 63, or after the buyer has declared that he will not perform his obligations within such an additional period.Article 65(1)If under the contract the buyer is to specify the form, measurement or other features of the goods and he fails to make such specification either on the date agreed upon or within a reasonable time after receipt of a request from the seller, the seller may, without prejudice to any other rights he may have, make the specification himself in accordance with the requirements of the buyer that may be known to him.(2)If the seller makes the specification himself, he must inform the buyer of the details thereof and must fix a reasonable time within which the buyer may make a different specification.If, after receipt of such a communication, the buyer fails to do so within the time so fixed, the specification made by the seller is binding.Chapter IV PASSING OF RISK

Article 66 Loss of or damage to the goods after the risk has passed to the buyer does not discharge him from his obligation to pay the price, unless the loss or damage is due to an act or omission of the seller.Article 67(1)If the contract of sale involves carriage of the goods and the seller is not bound to hand them over at a particular place, the risk passes to the buyer when the goods are handed over to the first carrier for transmission to the buyer in accordance with the contract of sale.If the seller is bound to hand the goods over to a carrier at a particular place, the risk does not pass to the buyer until the goods are handed over to the carrier at that place.The fact that the seller is authorized to retain documents controlling the disposition of the goods does not affect the passage of the risk.(2)Nevertheless, the risk does not pass to the buyer until the goods are clearly identified to the contract, whether by markings on the goods, by shipping documents, by notice given to the buyer or otherwise.Article 68 The risk in respect of goods sold in transit passes to the buyer from the time of the conclusion of the contract.However, if the circumstances so indicate, the risk is assumed by the buyer from the time the goods were handed over to the carrier who issued the documents embodying the contract of carriage.Nevertheless, if at the time of the conclusion of the contract of sale the seller knew or ought to have known that the goods had been lost or damaged and did not disclose this to the buyer, the loss or damage is at the risk of the seller.Article 69(1)In cases not within articles 67 and 68, the risk passes to the buyer when he takes over the goods or, if he does not do so in due time, from the time when the goods are placed at his disposal and he commits a breach of contract by failing to take delivery.(2)However, if the buyer is bound to take over the goods at a place other than a place of business of the seller, the risk passes when delivery is due and the buyer is aware of the fact that the goods are placed at his disposal at that place.(3)If the contract relates to goods not then identified, the goods are considered not to be placed at the disposal of the buyer until they are clearly identified to the contract.Article 70 If the seller has committed a fundamental breach of contract, articles 67, 68 and 69 do not impair the remedies available to the buyer on account of the breach.Chapter V PROVISIONS COMMON TO THE OBLIGATIONS OF THE SELLER AND OF THE BUYER Section I.Anticipatory breach and instalment contracts

Article 71(1)A party may suspend the performance of his obligations if, after the conclusion of the contract, it becomes apparent that the other party will not perform a substantial part of his obligations as a result of:(a)a serious deficiency in his ability to perform or in his creditworthiness;or(b)his conduct in preparing to perform or in performing the contract.(2)If the seller has already dispatched the goods before the grounds described in the preceding paragraph become evident, he may prevent the handing over of the goods to the buyer even though the buyer holds a document which entitles him to obtain them.The present paragraph relates only to the rights in the goods as between the buyer and the seller.(3)A party suspending performance, whether before or after dispatch of the goods, must immediately give notice of the suspension to the other party and must continue with performance if the other party provides adequate assurance of his performance.Article 72(1)If prior to the date for performance of the contract it is clear that one of the parties will commit a fundamental breach of contract, the other party may declare the contract avoided.(2)If time allows, the party intending to declare the contract avoided must give reasonable notice to the other party in order to permit him to provide adequate assurance of his performance.(3)The requirements of the preceding paragraph do not apply if the other party has declared that he will not perform his obligations.Article 73(1)In the case of a contract for delivery of goods by instalments, if the failure of one party to perform any of his obligations in respect of any instalment constitutes a fundamental breach of contract with respect to that instalment, the other party may declare the contract avoided with respect to that instalment.(2)If one party's failure to perform any of his obligations in respect of any instalment gives the other party good grounds to conclude that a fundamental breach of contract will occur with respect to future instalments, he may declare the contract avoided for the future, provided that he does so within a reasonable time.(3)A buyer who declares the contract avoided in respect of any delivery may, at the same time, declare it avoided in respect of deliveries already made or of future deliveries if, by reason of their interdependence, those deliveries could not be used for the purpose contemplated by the parties at the time of the conclusion of the contract.Section II.Damages

Article 74 Damages for breach of contract by one party consist of a sum equal to the loss, including loss of profit, suffered by the other party as a consequence of the breach.Such damages may not exceed the loss which the party in breach foresaw or ought to have foreseen at the time of the conclusion of the contract, in the light of the facts and matters of which he then knew or ought to have known, as a possible consequence of the breach of contract.Article 75 If the contract is avoided and if, in a reasonable manner and within a reasonable time after avoidance, the buyer has bought goods in replacement or the seller has resold the goods, the party claiming damages may recover the difference between the contract price and the price in the substitute transaction as well as any further damages recoverable under article 74.Article 76(1)If the contract is avoided and there is a current price for the goods, the party claiming damages may, if he has not made a purchase or resale under article 75, recover the difference between the price fixed by the contract and the current price at the time of avoidance as well as any further damages recoverable under article 74.If, however, the party claiming damages has avoided the contract after taking over the goods, the current price at the time of such taking over shall be applied instead of the current price at the time of avoidance.(2)For the purposes of the preceding paragraph, the current price is the price prevailing at the place where delivery of the goods should have been made or, if there is no current price at that place, the price at such other place as serves as a reasonable substitute, making due allowance for differences in the cost of transporting the goods.Article 77 A party who relies on a breach of contract must take such measures as are reasonable in the circumstances to mitigate the loss, including loss of profit, resulting from the breach.If he fails to take such measures, the party in breach may claim a reduction in the damages in the amount by which the loss should have been mitigated.Section III.Interest

Article 78 If a party fails to pay the price or any other sum that is in arrears, the other party is entitled to interest on it, without prejudice to any claim for damages recoverable under article 74.Section IV.Exemptions

Article 79(1)A party is not liable for a failure to perform any of his obligations if he proves that the failure was due to an impediment beyond his control and that he could not reasonably be expected to have taken the impediment into account at the time of the conclusion of the contract or to have avoided or overcome it or its consequences.(2)If the party's failure is due to the failure by a third person whom he has engaged to perform the whole or a part of the contract, that party is exempt from liability only if:(a)he is exempt under the preceding paragraph;and(b)the person whom he has so engaged would be so exempt if the provisions of that paragraph were applied to him.(3)The exemption provided by this article has effect for the period during which the impediment exists.(4)The party who fails to perform must give notice to the other party of the impediment and its effect on his ability to perform.If the notice is not received by the other party within a reasonable time after the party who fails to perform knew or ought to have known of the impediment, he is liable for damages resulting from such non-receipt.(5)Nothing in this article prevents either party from exercising any right other than to claim damages under this Convention.Article 80 A party may not rely on a failure of the other party to perform, to the extent that such failure was caused by the first party's act or omission.Section V.Effects of avoidance

Article 81(1)Avoidance of the contract releases both parties from their obligations under it, subject to any damages which may be due.Avoidance does not affect any provision of the contract for the settlement of disputes or any other provision of the contract governing the rights and obligations of the parties consequent upon the avoidance of the contract.(2)A party who has performed the contract either wholly or in part may claim restitution from the other party of whatever the first party has supplied or paid under the contract.If both parties are bound to make restitution, they must do so concurrently.Article 82(1)The buyer loses the right to declare the contract avoided or to require the seller to deliver substitute goods if it is impossible for him to make restitution of the goods substantially in the condition in which he received them.(2)The preceding paragraph does not apply:(a)if the impossibility of making restitution of the goods or of making restitution of the goods substantially in the condition in which the buyer received them is not due to his act or omission;(b)if the goods or part of the goods have perished or deteriorated as a result of the examination provided for in article 38;or(c)if the goods or part of the goods have been sold in the normal course of business or have been consumed or transformed by the buyer in the course of normal use before he discovered or ought to have discovered the lack of conformity.Article 83 A buyer who has lost the right to declare the contract avoided or to require the seller to deliver substitute goods in accordance with article 82 retains all other remedies under the contract and this Convention.Article 84(1)If the seller is bound to refund the price, he must also pay interest on it, from the date on which the price was paid.(2)The buyer must account to the seller for all benefits which he has derived from the goods or part of them:(a)if he must make restitution of the goods or part of them;or(b)if it is impossible for him to make restitution of all or part of the goods or to make restitution of all or part of the goods substantially in the condition in which he received them, but he has nevertheless declared the contract avoided or required the seller to deliver substitute goods.Section VI.Preservation of the goods

Article 85 If the buyer is in delay in taking delivery of the goods or, where payment of the price and delivery of the goods are to be made concurrently, if he fails to pay the price, and the seller is either in possession of the goods or otherwise able to control their disposition, the seller must take such steps as are reasonable in the circumstances to preserve them.He is entitled to retain them until he has been reimbursed his reasonable expenses by the buyer.Article 86(1)If the buyer has received the goods and intends to exercise any right under the contract or this Convention to reject them, he must take such steps to preserve them as are reasonable in the circumstances.He is entitled to retain them until he has been reimbursed his reasonable expenses by the seller.(2)If goods dispatched to the buyer have been placed at his disposal at their destination and he exercises the right to reject them, he must take possession of them on behalf of the seller, provided that this can be done without payment of the price and without unreasonable inconvenience or unreasonable expense.This provision does not apply if the seller or a person authorized to take charge of the goods on his behalf is present at the destination.If the buyer takes possession of the goods under this paragraph, his rights and obligations are governed by the preceding paragraph.Article 87 A party who is bound to take steps to preserve the goods may deposit them in a warehouse of a third person at the expense of the other party provided that the expense incurred is not unreasonable.Article 88(1)A party who is bound to preserve the goods in accordance with article 85 or 86 may sell them by any appropriate means if there has been an unreasonable delay by the other party in taking possession of the goods or in taking them back or in paying the price or the cost of preservation, provided that reasonable notice of the intention to sell has been given to the other party.(2)If the goods are subject to rapid deterioration or their preservation would involve unreasonable expense, a party who is bound to preserve the goods in accordance with article 85 or 86 must take reasonable measures to sell them.To the extent possible he must give notice to the other party of his intention to sell.(3)A party selling the goods has the right to retain out of the proceeds of sale an amount equal to the reasonable expenses of preserving the goods and of selling them.He must account to the other party for the balance.PART IV FINAL PROVISIONS

Article 89 The Secretary-General of the United Nations is hereby designated as the depositary for this Convention.Article 90 This Convention does not prevail over any international agreement which has already been or may be entered into and which contains provisions concerning the matters governed by this Convention, provided that the parties have their places of business in States parties to such agreement.Article 91(1)This Convention is open for signature at the concluding meeting of the United Nations Conference on Contracts for the International Sale of Goods and will remain open for signature by all States at the Headquarters of the United Nations, New York until 30 September 1981.(2)This Convention is subject to ratification, acceptance or approval by the signatory States.(3)This Convention is open for accession by all States which are not signatory States as from the date it is open for signature.(4)Instruments of ratification, acceptance, approval and accession are to be deposited with the Secretary-General of the United Nations.Article 92(1)A Contracting State may declare at the time of signature, ratification, acceptance, approval or accession that it will not be bound by Part II of this Convention or that it will not be bound by Part III of this Convention.(2)A Contracting State which makes a declaration in accordance with the preceding paragraph in respect of Part II or Part III of this Convention is not to be considered a Contracting State within paragraph(1)of article 1 of this Convention in respect of matters governed by the Part to which the declaration applies.Article 93(1)If a Contracting State has two or more territorial units in which, according to its constitution, different systems of law are applicable in relation to the matters dealt with in this Convention, it may, at the time of signature, ratification, acceptance, approval or accession, declare that this Convention is to extend to all its territorial units or only to one or more of them, and may amend its declaration by submitting another declaration at any time.(2)These declarations are to be notified to the depositary and are to state expressly the territorial units to which the Convention extends.(3)If, by virtue of a declaration under this article, this Convention extends to one or more but not all of the territorial units of a Contracting State, and if the place of business of a party is located in that State, this place of business, for the purposes of this Convention, is considered not to be in a Contracting State, unless it is in a territorial unit to which the Convention extends.(4)If a Contracting State makes no declaration under paragraph(1)of this article, the Convention is to extend to all territorial units of that State.Article 94(1)Two or more Contracting States which have the same or closely related legal rules on matters governed by this Convention may at any time declare that the Convention is not to apply to contracts of sale or to their formation where the parties have their places of business in those States.Such declarations may be made jointly or by reciprocal unilateral declarations.(2)A Contracting State which has the same or closely related legal rules on matters governed by this Convention as one or more non-Contracting States may at any time declare that the Convention is not to apply to contracts of sale or to their formation where the parties have their places of business in those States.(3)If a State which is the object of a declaration under the preceding paragraph subsequently becomes a Contracting State, the declaration made will, as from the date on which the Convention enters into force in respect of the new Contracting State, have the effect of a declaration made under paragraph(1), provided that the new Contracting State joins in such declaration or makes a reciprocal unilateral declaration.Article 95 Any State may declare at the time of the deposit of its instrument of ratification, acceptance, approval or accession that it will not be bound by subparagraph(1)(b)of article 1 of this Convention.Article 96 A Contracting State whose legislation requires contracts of sale to be concluded in or evidenced by writing may at any time make a declaration in accordance with article 12 that any provision of article 11, article 29, or Part II of this Convention, that allows a contract of sale or its modification or termination by agreement or any offer, acceptance, or other indication of intention to be made in any form other than in writing, does not apply where any party has his place of business in that State.Article 97(1)Declarations made under this Convention at the time of signature are subject to confirmation upon ratification, acceptance or approval.(2)Declarations and confirmations of declarations are to be in writing and be formally notified to the depositary.(3)A declaration takes effect simultaneously with the entry into force of this Convention in respect of the State concerned.However, a declaration of which the depositary receives formal notification after such entry into force takes effect on the first day of the month following the expiration of six months after the date of its receipt by the depositary.Reciprocal unilateral declarations under article 94 take effect on the first day of the month following the expiration of six months after the receipt of the latest declaration by the depositary.(4)Any State which makes a declaration under this Convention may withdraw it at any time by a formal notification in writing addressed to the depositary.Such withdrawal is to take effect on the first day of the month following the expiration of six months after the date of the receipt of the notification by the depositary.(5)A withdrawal of a declaration made under article 94 renders inoperative, as from the date on which the withdrawal takes effect, any reciprocal declaration made by another State under that article.Article 98 No reservations are permitted except those expressly authorized in this Convention.Article 99(1)This Convention enters into force, subject to the provisions of paragraph(6)of this article, on the first day of the month following the expiration of twelve months after the date of deposit of the tenth instrument of ratification, acceptance, approval or accession, including an instrument which contains a declaration made under article 92.(2)When a State ratifies, accepts, approves or accedes to this Convention after the deposit of the tenth instrument of ratification, acceptance, approval or accession, this Convention, with the exception of the Part excluded, enters into force in respect of that State, subject to the provisions of paragraph(6)of this article, on the first day of the month following the expiration of twelve months after the date of the deposit of its instrument of ratification, acceptance, approval or accession.(3)A State which ratifies, accepts, approves or accedes to this Convention and is a party to either or both the Convention relating to a Uniform Law on the Formation of Contracts for the International Sale of Goods done at The Hague on 1 July 1964(1964 Hague Formation Convention)and the Convention relating to a Uniform Law on the International Sale of Goods done at The Hague on 1 July 1964(1964 Hague Sales Convention)shall at the same time denounce, as the case may be, either or both the 1964 Hague Sales Convention and the 1964 Hague Formation Convention by notifying the Government of the Netherlands to that effect.(4)A State party to the 1964 Hague Sales Convention which ratifies, accepts, approves or accedes to the present Convention and declares or has declared under article 52 that it will not be bound by Part II of this Convention shall at the time of ratification, acceptance, approval or accession denounce the 1964 Hague Sales Convention by notifying the Government of the Netherlands to that effect.(5)A State party to the 1964 Hague Formation Convention which ratifies, accepts, approves or accedes to the present Convention and declares or has declared under article 92 that it will not be bound by Part III of this Convention shall at the time of ratification, acceptance, approval or accession denounce the 1964 Hague Formation Convention by notifying the Government of the Netherlands to that effect.(6)For the purpose of this article, ratifications, acceptances, approvals and accessions in respect of this Convention by States parties to the 1964 Hague Formation Convention or to the 1964 Hague Sales Convention shall not be effective until such denunciations as may be required on the part of those States in respect of the latter two Conventions have themselves become effective.The depositary of this Convention shall consult with the Government of the Netherlands, as the depositary of the 1964 Conventions, so as to ensure necessary co-ordination in this respect.Article 100(1)This Convention applies to the formation of a contract only when the proposal for concluding the contract is made on or after the date when the Convention enters into force in respect of the Contracting States referred to in subparagraph(1)(a)or the Contracting State referred to in subparagraph(1)(b)of article 1.(2)This Convention applies only to contracts concluded on or after the date when the Convention enters into force in respect of the Contracting States referred to in subparagraph(1)(a)or the Contracting State referred to in subparagraph(1)(b)of article 1.Article 101(1)A Contracting State may denounce this Convention, or Part II or Part III of the Convention, by a formal notification in writing addressed to the depositary.(2)The denunciation takes effect on the first day of the month following the expiration of twelve months after the notification is received by the depositary.Where a longer period for the denunciation to take effect is specified in the notification, the denunciation takes effect upon the expiration of such longer period after the notification is received by the depositary.DONE at Vienna, this day of eleventh day of April, one thousand nine hundred and eighty, in a single original, of which the Arabic, Chinese, English, French, Russian and Spanish texts are equally authentic.IN WITNESS WHEREOF the undersigned plenipotentiaries, being duly authorized by their respective Governments, have signed this Convention.

第五篇：解读《联合国国际货物销售合同公约》

解读《联合国国际货物销售合同公约》

中国质量新闻网2008-04-21 16:17:00

《联合国国际货物销售合同公约》（以下简称《公约》）共计101条，分为四部分：适用范围；合同的成立；货物买卖；最后条款。该公约于1980年3月在维也纳召开的外交会议上获得通过，1988年1月1日起生效。截止到2005年上半年，核准和参加该公约的国家已有65个。该公约成员国已包括了美国、法国、德国、意大利、挪威、瑞典和瑞士等世界主要的贸易国。我国是此公约的最早成员国之一，在1986年12月向联合国秘书长递交了关于该公约的核准书，成为该公约缔约国。《联合国国际货物销售合同公约》专门调整国际货物买卖合同关系。它充分考虑了国际国物买卖合同关系的特征，加之为世界上主要贸易大国所接受。因此，它是国际货物买卖相关法律的重要代表，对此加以解读有一定的现实意义。本文对《公约》的适用范围和合同的成立进行解读。

一、《公约》的适用范围

关于《公约》的适用范围，根据《公约》第1条第（1）款a项的规定，公约适用于营业地在不同国家的当事人之间所订立的货物销售合同。也就是说，如果合同双方当事人的营业地是处于不同的国家，而且这些国家都是该公约的缔约国，该公约就适用于他们之间订立的合同。该款中的b项又规定，只要双方当事人的营业地是处于不同的国家，即使他们的营业地所在国不是《公约》的缔约国，但如果按照国际司法的规则导致适用某一缔约国的法律，则该公约也将适用于这些当事人之间订立的国际货物买卖合同。《公约》这项规定的目的是为了扩大《公约》的适用范围，使该公约不仅适用于营业地处在缔约国的当事人之间订立的买卖合同，而且还有可以适用于营业地处于非缔约国的当事人之间所订立的买卖合同。只要依据国际司法的规则导致该合同适用某一缔约国的法律（如合同的订立地法或履行地法或者因当事方的国籍而导致适用某一缔约国的法律）即可。我国对于b项在加入《公约》时提出了保留，认为《公约》的适用范围仅限于双方的营业地处于不同缔约国的当事人订立的货物买卖合同。

《公约》在第2条明确规定不适用以下的销售：

1.购供私人、家人或家庭使用的货物的销售，除非卖方在订立合同前任何时候或订立合同时不知道而且没有理由知道这些货物是购供任何这种使用；

2.经由拍卖的销售；

3.根据法律执行令状或其他令状的销售；

4.公债、股票、投资证券、流通票据或货币的销售；

5.船舶、船只、气垫船或飞机的销售；

6.电力的销售。

《公约》对上述商品的买卖之所以不适用，是因为很多国家的法律都认为上述对象的销售行为属于特殊的买卖，对此各国根据自己国家的情况均已做出了不同的规定。由于很难将这些规定进行统一，同时也为了能够有更多的国家参加进来。《公约》明确将以上商品的买卖排除在自己的适用范围。

二、合同的成立

《公约》的第二部分规定了“合同的成立”。由于各国的法律规定特别是英、美法律和大陆法律在意思表示一致问题上存在的分歧，《公约》采取折衷的方法试图调和各国立法的不同。

1.发价（offer）

《公约》的14条明确规定了何谓发价：向一个或一个以上特定的人提出的订立合同的建议，如果十分确定并且表明发价人在得到接受时承受约束的意旨，即构成发价。从中可以看出，发价应符合以下要求：①发价应向一个或一个以上的特定人发出；②发价的内容必须十分确定；③发价人应当表明一旦对方接受即与对方成立国际货物买卖合同的意思。《公约》规定发价到达被发价人时生效。

《公约》分别在15条和16条对发价的撤回与撤销作了明确规定。发价的撤回是指在发出发价之后，在其尚未生效之前，即尚未到达被发价人之前，将该项发价收回，使其不发生效力。而撤销是指发价人在其发价已生效之后将其取消，使之不发生效力。一项发价，即使是不可撤销的，得予撤回，如果撤回通知于发价送达被发价人之前或同时送达被发价人，即如果发价尚未生效，应允许其撤回。而对于撤销，《公约》16条第1款规定原则上允许，只要撤销通知于被发价人发出接受通知之前送达被发价人。但毕竟撤销与撤回不同。于是《公约》在第2款规定了不能撤销的两种情况：发价写明接受发价的期限或以其他方式表示发价是不可撤销的；被发价人有理由信赖该项发价是不可撤销的，而且被发价人已本着对该项发价的信赖行事。这是为了避免被发价人出于合理信赖为履行合同采取了行动，如果认定发价可以撤销，对其显然是不公平的，可能会使其受到一定的经济损失。《公约》关于撤销的规定是采取折衷方式调和大陆法系与英、美法系分歧的一个典型例子，第1款采用了英、美法系的原则，而第2款则主要反映了大陆法系的原则。

2.接受（acceptance）

《公约》的18条规定：被发价人声明或做出其他行为表示同意一项发价，即是接受。根据《公约》的规定，被发价人只能采取积极的方式，比如做出声明（statement）或者行为（conduct）来表示接受，而不能采取缄默或者是不行动这样的消极方式。

关于接受的规定如下：①接受必须由被发价人做出。②接受应与发价的内容一致。如何理解内容一致？《公约》引入了“实质性变更”来加以阐述。在19条采用列举方式来说明以下情况构成实质性变更：有关货物价格、付款、货物质量和数量、交货地点和时间、一方当事人对另一方当事人的赔偿责任范围或解决争端等等的添加或不同条件，均视为在实质上变更发价的条件。而这种答复只能构成还价，未经发价人的确认，不能成立合同。③接受必须在发价规定的期限内做出。如未在合理期间内做出，则视为逾期接受，原则上为一项新发价。但是根据《公约》21条逾期接受可以成为一项有效的接受。逾期接受仍有接受的效力，如果发价人毫不迟延地用口头或书面将此种意见通知被发价人。如果载有逾期接受的信件或其他书面文件表明，它是在传递正常、能及时送达发价人的情况下寄发的，则该项逾期接受具有接受的效力，除非发价人毫不迟延地用口头或书面通知被发价人。他认为他的发价已经失效。④关于接受生效的时间，《公约》原则上采取到达生效。如18条第2款规定，对发价所作的接受，应于接受的通知到达被发价人时才生效。但是《公约》同时又规定，如根据发价或依照当事人之间的惯例或习惯做法，被发价人可以做出某种行为来表示接受，接受于做出该项行为时即告生效。