法律英语期末论文--国际商事仲裁代理词

专业：2014级法律硕士（非法学）

课程名称：法律英语 指导老师：*** 学生：陈怡良 学号：*************

法律英语代理词

Arbitration representation for Equapack, Inc for contract disputes in Equapack, Inc v.

Medi-Machines, S.A

Distinguished presiding judge, the judicial officers,

In accordance with the law ,I accept consignation of equapack company ,namely the accuser, as the agent of this case. Now I state the following agent opinions .

I.About time questions of the established contract

In this case, my litigant showed interest to the defendant to buy 6 sets of packing machines with reasonable price and on time deliver in the contract so as to pack various products. The defendant MEDI company responded to provide 2 kinds of packing machines with type 16 and type 14 ,and suggested my litigant to purchase the type 14 on 3rd,July,2002.My litigant promised to the defendant on 12th,July,2002 that he was willing to purchase 6 sets of packing machines with type 14.At that time, the contract was established. On 23th,July,2002,my litigant mentioned to the defendant during the phone conversation that the products which would be packed by the subject matter in the contract contained salt, but the opposite party didn’t make any responses at that time. What’s more, the defendant didn’t mention the specificity of salt in two sides’ faxes. When the packing machines of type 14 were brought to production, they were corroded by the salt and could not work, so the production had to be stopped. For this, my litigant suffered huge lose .

II. About questions of sellers ‘ obligations in Contracts for the International Sale of Goods. 1.the defendant provided commodities which did not conform to the contract.

Our legal basis is the b article of the second regulation in the 35th provision of the United Nations Convention on Contracts for the International Sale of Goods. This article is composed with 4 parts. The a article and d article of the second regulation in the 35th provision can be applied to all contracts unless both parties have another agreements. the b article and c article of the second regulation in the 35th provision can be applied only in the particular situation. Standards regulated

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法律英语代理词

by these parts are being accumulated, namely, unless commodities conform to all applied standards, then they don’t conform to the contract’s requests.

The b article of the second regulation in the 35th provision requires that commodities should be suitable in any particular purposes that the buyer told or implied to the seller when they established contract.

In this case, firstly, my litigant stated to the defendant that the machine would pack various products which contain detailed products and rough products. Although salt is not be expressed as one of the products to be packed, in reality, it is known that salt is contained in the detailed products according to common social experience. It is classified as the implied range. Secondly, during the phone conversation between the engineer swan of my litigant equapack company and the seller Drake of the opposite party, it was mentioned that A2Z company want my litigant to pack various products in which salt is contained. During the phone conversation on 23th,July,2002,my litigant clearly expressed to the opposite party that the packed products contained salt. This showed that my litigant also told the defendant this particular purpose. My litigant implied the particular purpose when the contract was established, and expressed clearly this purpose to the defendant in the reasonable period after the contract was established. So this provision is suitable to my litigant’s situation.

What’s more, the provision also requires that if the buyer doesn’t need to reply on the seller’s skills and judgment, or this dependence is unreasonable, then the seller’s commodities conform to the contract’s requests. But in this case, the seller’s commodities didn’t conform to the contract’s requests. Reasons are listed as following:

Firstly, based on the command of products’ properties, the defendant, as the professional manufacturer of packing machine, should know that salt has extremely strong corrosion, and it will corrode the type 14 packing machine. Secondly, my litigant had never packed salt, and doesn’t know or have reasons to know that the salt is different from any other products. Therefore ,my litigant needs to rely on the defendant’s skills and judgment, and this dependence is reasonable.

In sum, based on the b article of the second regulation in the 35th provision in CISG, the defendant’s commodities don’t conform to the contract’s requests, so the defendant breaches the contract.

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法律英语代理词

2.The defendant breaches the article of commodity’s special purpose which belongs to the quality guarantee obligations.

In Contracts for the International Sale of Goods, sellers’ obligations include delivery, quality guarantee obligations, rights guarantee obligations and so on .About the seller’s quality guarantee obligations, the 36th provision in GISG requires that(1)the seller should obey requirements of this contract and agreement, should be responsible to any situations that don’t conform to the contract and caused by the risk transfer from the seller to the buyer. Although these situations are gradually obvious after the time, the seller is also responsible .(2)the seller is also responsible to any situations that don’t conform to the contract after the time stated in last provision. If these situations are caused by the breach of other obligations, including the breach of guarantees that goods can be applied to the common use or some particular purposes in a period, or goods can maintain some particular quality or characteristic, the seller is also accountable.

This provision states clearly the relation between the seller’s responsibility caused by the disagreement of the contract and risk transfer :namely in some situations, the seller should take responsibility when any disagreement of the contract occurred after the risk transferred to the buyer. If the disagreement is caused by the breach of any obligations, including guarantees that goods can be applied to the common use or some particular purposes in a period, the seller is still accountable.

In this case, the type 14 packing machines of my litigant need to pack products which include salt, but these machines don’t have salt anticorrosion function which made our machines corroded and can’t work after the application for some time.

According to FOB, the risk has been transferred to my litigant ,but this doesn’t mean that the defendant is not responsible for the packing machine problems after the risk transfer. The defendant still needs to take responsibility of the disagreement of the contract though the risk has been transferred. Here the disagreement of the contract means that the seller, namely the defendant, breaches the quality guarantee obligation. In this case, the defendant’s quality guarantee obligations mainly relate to the special purposes of packing machines. As to the type 14 packing machines in this case, they don’t possess the special purpose of salt anticorrosion .The defendant

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法律英语代理词

has obligations to state this situation, and tell my litigant that these machines can be corroded by salt. The defendant of this case should take responsibility for his non-fulfillment of this obligation.

III. About questions of fundamental breach of contract

According to the 25th provision in CISG, because of one party’s breach of contract, the other party suffers loss, and is deprived of what is belonged to him according to the contract, this is called fundamental breach of contract. Unless the party who breach the contract doesn’t predict this situation, then it is called fundamental breach of contract. But a amenable person on an equal footing has no reason to predict this result.

We concluded that the fundamental breach of contract should conform to the following points:1.one party breaches the contract.2.the breach brings loss to the other party.3.the breach made the other party deprived of what is belonged to him according to the contract4.the breach results can be predicted by the defaulting party.

In this case, first: according to the second point of my agent, namely the 35th and 36th in the convention, the seller, namely the defendant, breached the contract. Second: the breach of the defendant brought huge loss to my litigant .Firstly the subject matter in the contract was damaged, type 14 machines were corroded by salt, and they couldn’t finish the production task normally which directly caused the non-fulfillment execution of packing contract between my litigant and A2Z company. We couldn’t deliver goods on regular time in regular quantity. All these made my litigant breach another contract. Next my litigant suffered the loss of commercial benefits and commercial opportunities. Thirdly, in fact, these damages have deprived the benefits that belong to my litigant according to the contract. The basic purpose of my litigant to make this contract is to fulfill the contract signed with A2Z company. The disagreement of packing machines directly deprives the benefits of my litigant in the contract. Fourthly, to the defendant, the breach results are totally predictable. The defendant know that products which need to be packed include salt, he can totally predicts the salt corrosion to packing machines. all these make my litigant suffer huge loss. The defendant can completely predict results.

According to the above 4 points, the defendant can be defined as the fundamental breach of contract

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法律英语代理词

Therefore, my litigant requests to declare that the contract is invalid, and demand the court to ask the defendant to refund payment and all fees that my litigant cost in this transaction, and ask the defendant to pay all losses my litigant suffered in this transaction.

The above agent opinions are for collegial panel’s reference. With best wishes!

Attorney：Yiliang Chen December 1th，2015

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