CISG Flashcards
is the CISG self-executing or non-self executing? and what does that mean?
self-executing
it is fully incorporated into US law
also aligned with the laws of the state
Asante: How does the treaty compare with domestic and state law?
CISG preempts state laws addressing contract formation
Topp: what does art 25 say about breach
if a breach is fundamental the buyer may either require delivery of substitute goods or declare the K void and seek damages.
Asante: did parties exclude application of CISG? was there a choice of law provision?
no, yes. even though there was a choice of law provision, its not sufficient to opt out of the CISG because the parties chose California law and California is bound by the supremacy clause and thus the CISG. However, if the parties chose the CCC, then the selection could have created an exclusion from the CISG.
Asante: what determined the applicable law to the K between Asante and PMC-Sierra?
Ds acceptance of plaintiffs terms and conditions? or Defendants own Terms and Conditions of sale?
D contended sale order choice of law provision said Canada law. P contended purchase order choice of law provision said California law. However, both are preempted by CISG.
Asante: what is the procedural impact of the Court’s ruling that the CISG applies is this case?
P wanted to stay in state court and relied on the well-pleaded complaint rule because P did not mention the CISG in the complaint. However, removal is still available because the CISG preempts state law.
Asante: what was Unique’s role in the transaction?
a non-exclusive distributor in Oregon. not an agent.
Topp: did parties opt out of the CISG? did the K contain a choice of law provision?
the K contained a choice of law provision under Quebec law. and the parties did not opt out so CISG governs.
What does the CISG govern? and between whom in general?
sales of goods only. sales between parties from different contracting states (not validity, prop issues, interests, or tort liability)
obligations of contracting parties in general. seller and buyer
seller: delivery terms, conformity of goods, third party claims
buyer: payment (price, place, time) and delivery
Remedies for breach of K
inspection, notice and cure provisions
K avoidance, specific performance and damages
Asante: did canada and the US sign and ratify the CISG?
yes
Art 10 of the CISG governing place of business
if a party has more than one place of business, the place of business is that which has the closet relationship to the K and its performance. thus, Ds place of business for the purposes of the K, is in Canada.
Because D wanted to remove, this issue would now be heard in federal court which may not be biased in favor of Plaintiff.
What is the purpose of the CISG?
promote international trade
When does CISG govern?
when parties are from different countries and are signatories of the treaty
