• 무역상무연구
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• 제23권
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• pp.71-91
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• 2004

The purpose of this paper is to examine the effects and problems of acceptance with modifications according to CISG Art. 19, comparing with UCC ${\S}2-207$. First of all this author raised two legal issues encountered when there is an acceptance with modifications. Scenario one is as follows : "Before either party has taken further action, there is a rise or a fall in the price of goods, was there a binding contract ?" The UCC rules provide for a contract if a purchaser sends out a purchase order and the seller sends back a sales acknowledgement form, and the items on the front(the price, description, and quantity) match up. The CISG on the other hand, is that most of the terms and conditions on the backs of the forms are important. Therefore, if they are different, there should not be a contract. Scenario two is as follows : "There has been performance, A disputes arises. What terms and conditions apply ?" The CISG and the UCC will probably lead to different results in the event the parties exchange conflicting forms and subsequently perform. Assuming that the offeree's reply contains terms that are materially different from the offer, the UCC provides that the resulting contract will include only those terms on which the writings of the parties agree, excluding conflicting terms. The CISG treats the material additions as a counter-offer and, in accordance with Art. 18, the offeree's performance may be regarded as an acceptance of a contract containing all of the offeror's terms ; or the offeror's performance may be regarded as an acceptance of a contract containing all of the offeree's terms. Second, this author raised three problems in the Art. 19 as follows ; 1) It is very difficult in practical application to decide what is material alterations even if the CISG lists material terms as an example. 2) There is a possibility for the offeror to speculate in the circumstance of market fluctuation as he has a change to object to the discrepancy in the offeree's reply. 3) There is also a possibility of inducement for the offeror or the offeree to send its own reply as a last shot.

• 한국건축시공학회:학술대회논문집
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• 한국건축시공학회 2021년도 봄 학술논문 발표대회
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• pp.155-156
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• 2021

Most of the construction works in domestic are not direct undertaking work, but by a contract method including subcontracting. Therefore, a general contractor for each project jointly carry out construction work with a specialty contractor for each engineering type. However, in terms of contract, this method is not a joint venture contract, but a subcontract. Accordingly, this system can cause various problems between the prime contractor and the subcontractor. Therefore, this study aims to extract and present the actual obstacle factors in terms of specialty contract company performing specialty construction work for construction project. The presented contents are expected to present the standard for the cooperation system that the prime contractor and the subcontractor can win-win.

• 대한가정학회지
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• 제40권2호
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• pp.101-114
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• 2002

This study analyzes the contract terms to explore whether the content has any improper and/or unfair clause, reviews the consumer-related laws, and examines the activities of the regulatory systems in the telecommunication service markets. The major resets of the stud\ulcorner are: first, the level of regulation to contract terms is inconsistent across the services areas and needs to be coordinated; second, the standard contract terms need to be developed; third, the policy implications with respect to regulatory policy making and public education are developed; and lastly establishment of consumer advisory board to advise the commission on consumer issues and the consumer information and education center is suggested.

• 무역상무연구
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• 제54권
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• pp.99-122
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• 2012

According to the United Nations Convention on the International Sale of Goods, the Seller must deliver the goods, hand over any documents relating to the them and transfer the property the to the goods as required by the contract, and buyer must pay the price for the goods and take delivery of them as required by the contract. In particular, the seller provides the documents is important. If the documents are discrepancies in credit, the beneficiary may not receive the payment. So It is important to study on conditions of documents in international trade. Documents provided by the seller shall be determined by express terms. If there is no agreement on the express terms, it shall be determined by the implied terms or governing law terms. In practice Seller shall provide the documents are as follows, For example, transport documents, commercial invoice, certificate of origin, insurance policy, packing list, inspection certificate etc. As stated above if it can not be determined by express terms, it is determined by the implied terms. In international trade, leading to the implied terms is incoterms(R) 2010 and UCP 600. Incoterms(R) 2010 define the seller must provide the goods and the commercial in conformity with the sales contract and any other evidence of conformity that may be required by the contract and UCP 600 are rules that apply to documentary credit. This paper, the practical utility between Incoterms(R) 2010 and UCP 600 is studied.

• 무역상무연구
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• 제64권
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• pp.155-185
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• 2014

Liability for the manufacture or supply of defective products can arise in two principle ways, in tort and in contract. English law has long regarded shipbuilding contract as agreement for the sale and purchase of goods. The consequence of which is that unless the Buyer and Builder agree otherwise, terms will automatically be implied into the contract between them as to the quality and performance of the completed vessel. The same principle applies to sub-contracts allied to the shipbuilding contract. On the other hand, one case decisions established that ".... a contract to build a ship, though a contract of sale of goods, has also some characteristics of a building contract", Recently the liability of a manufacturer in tort for physical damage i.e. personal injury and damage to property other than alleged to be defective is now well settled in most countries. Accordingly the Builder may face third party claims in tort more regularly than they have in the past, if the statutory implied terms have not been expressly excluded in contract. In such circumstances, it is necessary for the Builder to be prepared with counter measures to secure the stability of the vessel from its design development, building process, delivery and operation etc. The purpose of this paper is, from the case of "MSC Carla", to review product liability, jurisdiction and the initial date of extinctive prescription, then to suggest counter measures to the Builder.

• 무역상무연구
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• 제53권
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• pp.135-153
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• 2012

Incoterms is a standard transaction terms and conditions which is established to provide goods delivery, cost and risks between the seller and the buyer as a principle concerned. Incoterms is made of international rules about regular uses of transaction terms and condition. It removes uncertainty of misunderstanding and applying rules, commercial customs and etc, between nations. Incoterms does not have an enforcement like an unified rules or an agreements established between different nations. Therefore, it is just considered as a standard formal terms and conditions from International Chamber of Commerce. For those reasons, validity of Incoterms applies only when parties of contract come to an agreement not by officially adopted or applied by law in each nation. Incoterms 2010 contains specific and clear articles which is fixed version of incoterms 2000, it has insufficient points on insurance contract article. Though, insurance contract belongs to sales contract, it sustains independence itself. It is difficult to sustain perfection until establishment of insurance contract and expiration by fixing the articles. As a result, it is necessary for sellers and buyers take a full responsibility of making complete insurance contract. This paper is written for those reasons in this filed.

• 한국중재학회지:중재연구
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• 제31권1호
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• pp.83-105
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• 2021

If aggrieving consumers or employees cannot prove both substantive and procedural unconscionability, many U.S. state courts will enforce arbitration agreements. Additionally, U.S. courts weigh a variety of factors to determine whether an arbitration agreement is substantively unconscionable. For example, U.S. courts have considered one or a combination of the following factors: (1) the fairness of contractual terms; (2) the severity of contractual terms' deviation from prevailing standards, customs, or practices within a particular industry; (3) the reasonableness of goods-and-services contract prices; (4) the commercial reasonableness of the contract terms; (5) the purpose and effect of the terms and (6) "the allocation of risks between the parties." Further, procedural unconscionability characterized by surprise or lack of knowledge focuses on terms that are deceptively hidden in a mass of contract language, the object of another concealment, or imposed in the circumstances involving haste or high-pressure tactics so that they are not likely to be read or understood. This unconscionability doctrine can be applied to a situation where an alcoholic dementia-afflicted older adult is admitted to a nursing home. At that time, because she had alcoholic dementia, which precluded her reading, comprehending, writing, negotiating, or signing of any legal document, her son, who did not understand the adhesion contract, signed the standardized residential contract and the arbitration agreement.

• 무역상무연구
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• 제42권
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• pp.67-85
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• 2009

In English Law it seems that it is essential to apply the principle of equilibrium in the contract, however, it does not seemed to apply as the general rule of the principle of contract. Especially it seems that English Court didn't pay attention to the principle of equilibrium in 18th century. If one of the party do not appeal the equilibrium of the contract, it does not make any difference even today. However the Court may cancel or withdraw the construction of contract between the parties where the principle of equilibrium is damaged by fundamental problems like just-price. In French Law it seems that they have more wide definition of the principle of equilibrium. The French Court may consider that the application of good faith is the performance of condition of the contract between the parties and has no power to relieve of one party of his expressed obligations or warranty. In German Law, it seems that the principle of good faith is fundamental to take into account interest of the parties. They may agree to supply information or not to interfere with a commercial agent regarding performance and maintenance of the contract.

• Journal of Korea Trade
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• 제25권1호
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• pp.203-219
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• 2021

Purpose - The purpose of this study is to review and analyzes the contract of carriage and delivery/transport document in light of the major changes made to the Incoterms^® 2020 rules forced into effect on January 1st, 2020. Design/methodology - This study analyzed responsibility for the loading and unloading of goods under the contract of carriage in Incoterms 2020^® rules forced into effect by the ICC from January 1, 2020, and what document must be presented as evidence of delivery by the seller. Findings - A review revealed that in Rule C, the costs of unloading at the place of destination are determined by the terms of the contract of carriage, and in the DAP and DDP rules, if the seller bears the unloading costs, such unloading costs cannot be recovered from the buyer. To settle this issue, the seller needs to make a contract of carriage by sea with the carrier on FI terms. Furthermore, in the case of containerized goods that the FCA should be used, FOB was misused because the seller could not present an on-board bill of lading in the L/C transaction. However, it was confirmed that in FCA, the parties can use an optional mechanism to issue an on-board bill of lading. Originality/value - Incoterms 2020^® rules are still widely used in international trade by parties to contract sales around the world, just like Incoterms 2010^® rules. This study attempts to reduce or eliminate disputes that may arise from interpretative misunderstandings between the parties in the contract of sales concluded by the seller and the buyer.

• 무역상무연구
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• 제75권
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• pp.49-69
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• 2017

Making a international contract of sale is not a simple work. International Trade parties(seller and buyer) may choose trade terms such as FOB or CIF to simplify their contracts and avoid misunderstanding of international commercial practice. Incoterms is the international rules for the interpretation of the trade terms, and firstly regulated by the ICC in 1936. The latest version is Incoterms 2010. Incoterms 2010 governs certain responsibilities between the seller and the buyer under the international contract of sale. Moreover, Incoterms 2010 provides the standard of division of costs relating to contract of carriage. But we should note that Incoterms 2010 is not the part of contract of carriage. The writer points out that there is no consistence principle in distributing the special costs under the contract of carriage like unloading cost from the transport vehicle. To avoid the dispute between the parties, it is more safe for international traders to fully and completely understand on the customs and practice of carriage of goods. Incoterms 2010 provides more detailed method of delivery of goods than CISG and RAFTD. Concerning the method of delivery of goods, CISG and RAFTD simply provide that the seller shall place the goods at the discharge of buyers. The writer suggests the basic principles to allocate the special costs of delivery of goods according to the trade terms under Incoterms 2010.