Chapter 1: Negotiating Delivery

1. The five steps in Negotiating Delivery.

To deal with problems arising if there is a delay or if delivery is not as planned the Buyer
and the Seller should negotiate delivery systematically. That means making sure all
foreseeable problems are discussed and approaches to solving such problems are agreed. An
overview of the five negotiating steps is suggested to simplify discussion of the ideas and to
avoid problems: Timing, Location, Transport, Risk Title and Insurance, Terms of Trade.
2. Timing: When must Delivery take place?
- Good negotiators should mention a delivery date in negotiating the timing of an export deal
and then other issues relating to coming into force, delay and compensation for delay. Delay
might be classified into two categories, excusable and non-excusable. Excusable one
involves a grace period and is mostly subject to a force majeure provision. Any losses to the
buyer caused by non-excusable delay must be compensated. The amount of compensation is
usually set in advance and called liquidated damages
- Use a straightforward calendar date to name the delivery date: 15th September 2010, for
example. The parties often plan for the contract to come into existence in two steps: the
signature date and the date of coming into force. The date of coming into force is not usually
a calendar date, but the date on which the last precondition is met. Common preconditions
are:
+ Receipt of import and/ or export approval
+ Receipt of foreign exchange approval from a central bank
+ Issuance of a letter of credit or bank guarantee.
+ Making of a down-payment by the buyer
+ Issuance of an insurance policy
+ Issuance of a certificate of origin
+ Delivery by the buyer of plans, drawings or other documentation.
- Negotiators may agree on a cut-off date: if the contract has not come into
force within a certain time, then it becomes null and void.

Coming Into Force

This agreement shall come into force after execution by both parties on the date of the last
necessary approval by the competent authorities in the country of the Seller and the Buyer.
If the contract has not come into force within ninety days of execution, it shall become null and
void.
iu khon hiu lc

Tha thun ny s c hiu lc sau khi c thc hin bi c hai bn vo ngy ph duyt cn thit
cui cng ca c quan c thm quyn ti nc ngi bn v ngi mua.
Nu hp ng khng c hiu lc trong vng chn mi ngy k t ngy thc hin, n s tr nn
v hiu.

- The delivery date is normally fixed for a certain number of days after the contract has come
into force.
The date of delivery shall be twenty-eight days after the date of coming to force of the contract.
Ngy giao hng s l 28 ngy sau ngy hp ng c hiu lc .

- Time is of the essence of the contract. If the time is not kept, the buyer has the right to return
the goods and refuse payment.
Time is and shall be of the essence of the contract
Thi gian l v s l vn ct li ca hp ng.

- Excused Delay and Grace Period:

For each week of late delivery the Seller shall pay the Buyer 0.1 % of the contract price.
i vi mi tun giao hng chm ch ngi bn s phi tr ngi mua 0.1 % tr gi hp ng.

A grace period is the time exceeding the deadline for an obligation during which a late penalty
that would have been imposed is waived.
If delivery is not effected within one month of the agreed delivery date, then the Seller shall pay
the Buyer 0.1 % of the contract price.
Nu giao hng khng c thc hin trong vng 1 thng k t ngy giao hng c tha
thun th ngi bn s phi tr cho ngi mua 0.1% tr gi hp ng.

Sometimes the exporter cant deliver the goods on time because of natural disasters called acts
of God, which is unavoidable. It is the force majeure, which is negotiable. The parties can
decide what excuses and what does not excuse the performance in the contract.
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If either party is prevented from, or delayed in, performing any duty under this Contract by an
event beyond his reasonable control, then this event shall be deemed force majeure, and this
party shall not be considered in default and no remedy, be it under this Contract or otherwise,
shall be available to the other party. Force majeure events includes, but are not limited to: war
(whether war is declared or not), riots, insurrections, acts of sabotage, or similar occurrences, or
Government regulations, delay due to Government action or inaction, fire, explosion, or other
unavoidable accident, flood, storm, earthquake, or other abnormal natural event.
Nu mt trong hai bn b ngn cn, hoc chm tr trong thc hin bt k ngha v theo Hp ng
ny v mt s kin ngoi tm kim sot hp l ca mnh, th s kin ny c coi l bt kh
khng, v mc nh l bn ny s khng c xem xt v khng c bin php khc phc, c th
l theo Hp ng ny hoc cch khc, s c sn cho cc bn khc. S kin bt kh khng bao
gm, nhng khng gii hn: chin tranh (cho d l tuyn b chin tranh hay khng), bo lon,
ni dy, hnh vi ph hoi, hoc cc s c tng t, hoc quy nh ca Chnh ph, chm tr do
hnh ng hay khng hnh ng ca Chnh ph, chy, n, hoc khc khng th trnh khi: tai
nn, l lt, bo, ng t, hoc s kin t nhin bt thng khc..

Force majeure events do not include monsoon rains.

S kin bt kh khng khng bao gm ma gi ma.

If a force majeure condition continues for long time, contracts may regulate the force majeure
period, in particular the right of one or both parties to terminate the contract.
If either party is prevented from or delayed in, performing any duty under this Contract, then this
party shall immediately notify the other party of the event, of the duty affected, and of the
expected duration of the event.
If any force majeure event prevents or delays performance of any duty under this Contract for
more than sixty days, then either party may on due notification to the other party terminate this
Contract.
Nu mt trong hai bn b ngn cn hay chm tr trong thc hin bt k ngha v theo Hp ng
ny, th bn ny s ngay lp tc thng bo cho bn kia v s kin, cc ngha v b nh hng, v
thi gian ko di d kin ca s kin
Nu bt k s kin bt kh khng no ngn cn hoc tr hon vic thc hin cc ngha v no
theo Hp ng ny trong hn su mi ngy, th mt trong hai bn sau khi thng bo cho bn
khc c th chm dt Hp ng ny.
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Three outcomes of force majeure: resumption of delivery, termination of the Contract, unclear
and dangerous situation.
- Unexcused delay and Buyers Remedies: when delivery cannot take place as planned, this
causes some loss or damage to the Buyer. There are two remedies: a decree of specific
performance orders the exporter to deliver or an award of damages makes the exporter pay
compensation to the Buyer. In addition, the court may allow the Buyer to cancel the Contract.
- Liquidated Damages: is a lump sum to be paid per day, week or month of late delivery for
compensation. Payment of liquidated damages avoids expensive discussion. Even if the Buyers
losses are lower or higher than anticipated, nothing changes. The exporter pays the agreed sum,
and the matter is settled. Liquidated damages are enforceable everywhere but subject to increase
or decrease in some legal systems.
- Penalties: is the amount to be paid for late delivery. It is used as a threat of punishment to
achieve acceptable performance and is not enforceable in English law or other common law
systems.
- Quasi-indemnity: is to relieve the exporter of liability for delay in delivery. It is enforceable
everywhere but open to challenge as unconsionable.
Liquidated Damages
If the Seller fails to supply any of the Goods within the time period specified in the Contract, the
Buyer shall notify the Seller that a breach of contract has occurred and shall deduct from the
Contract price per week of delay, as liquidated damages, a sum equivalent to one half percent of
the delivered price of the delayed Goods until actual delivery up to a maximum deduction of
10% of the delivered price of the delayed Goods.
Thanh khon thit hi
Nu ngi bn khng cung cp bt k hng ha trong khong thi gian quy nh trong hp ng,
ngi mua phi thng bo cho ngi bn l mt s vi phm hp ng xy ra v s khu tr
gi hp ng trn mi tun tr hon, lm thit hi thanh khon, mt khon tin tng ng vi
mt na mt phn trm gi c giao ca hng ha b chm ch cho n khi hng thc t ln n
mt mc khu tr ti a l 10% gi c giao ca hng ha b chm ch.

3. Place of delivery: is the point at which the exporter passes responsibility for the Goods to the
Buyer. Delivery can take place at a number of places between manufacturers factory and the
Buyers warehouse. A contract for the sale of Goods abroad (transportation by ship) is normally
considered as an FOB (Free on board) contract: delivery takes place when the Goods cross the
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rail of the ship nominated by the Buyer. Another is CIF, the exporter pays the full costs plus the
freight charges plus insurance up to the named place of destination, usually a port.
Delivery of the Goods shall be made FOB (Mombasa)
Giao hng s c thc hin theo gi FOB Mombasa.

Delivery of the Goods shall be made CIF Durban.

Giao hng s c thc hin theo gi CIF Durban

Delivery of the Goods shall be made (Incoterm). The schedule date of Delivery shall be (date of
delivery). Risk and title to the Goods shall pass from the Seller to the Buyer on Delivery.
The place of Delivery under this Contract is (port of shipment)
Giao hng c thc hin (Incoterm). Ngy giao hng theo lch trnh s l (ngy giao hng). Ri
ro v quyn s hu cc hng ha c chuyn t ngi bn n
ngi mua khi giao hng.
a im giao hng theo Hp ng ny c (cng giao hng)
If the vessel named by the Buyer fails to arrive on or before the agreed delivery date, then the
seller may at his discretion deliver the Goods to a bonded warehouse in the port of Mombasa,
and shall be deemed to have fulfilled his delivery obligations under this Contract.
Nu tu c ch nh bi ngi mua khng n vo hoc trc ngy giao hng c tha thun,
th bn bn theo s suy xt ca mnh c th giao hng hng ha n kho ngoi quan ti cng
Mombasa, v c coi l hon thnh ngha v giao hng ca mnh theo hp ng. ny

4. Transport.
- Negotiators should mention the type of packaging and the shipping marks in the Contract.
Goods are to be packed in new, strong, wooden cases suitable for long-distance ocean transport
and are to be well protected against dampness, shock, rust or rough handling. The Seller shall be
liable for any damage to or loss of the Goods attributable to improper or defective packaging.
Hng ha s c ng gi trong thng g chc v mi thch hp cho vn ti bin ng di v
phi c bo v chng li m, va p, g hoc x l th. Ngi bn phi chu trch nhim
5

cho bt k h hng, mt mt ca cc hng ha do bao b khng ng hoc b li.

On the surface of each package delivered under this Contract shall be marked: the package
number, the measurements of the package, gross weight, net weight, the lifting position, the letter
of credit number, the words RIGHT SIDE UP, HANDLE WITH CARE, KEEP DRY, and the
mark: DNP/36/Q
Trn b mt ca mi kin hang c giao theo Hp ng ny s c nh du: s gi, cc kch
thc ca gi, trng lng, trng lng tnh, v tr mc cu, s th tn dng, cc t xp theo
chiu ny, xp d nh tay, gi hang kh, v nh du: DNP/36/Q
- On delivery, the exporter receives from the carrier the most important of all the shipping
documents, the bill of lading (consignment note). Each mode of transport has a characteristic
shipping of document: the marine bill of lading, the airway bill, the rail consignment note,
the road consignment note. Combined transport uses a combined transport bill of lading
- The Marine bill of lading is the special document used for shipment by sea. It can be made
negotiable, which means it can be bought or sold. The word Order makes the bill of lading
negotiable. That means the shipper must endorse the bill by signing it on the back. To be
acceptable as a shipping document under a letter of credit, it must bear the notation that the
goods have been shipped on board a named vessel.
- Payment under a letter of credit depends largely on the correctness of the shipping
documents. To be acceptable under a letter of credit, all shipping documents must be clean,
free notes about defects. It is the carrier who notes any defects in packaging, weight, or
general appearance of the goods on accepting them from the Exporter.
5. Risk, Title and Insurance
Risk passes on delivery. Two risks are involved in the sale of goods: the risk of the goods
injuring a third party and the risk of loss or damage. These risks are covered by insurance. In
international trade, ownership (title) is of doubtful value and passes from exporter to buyer.
Title to the goods passes with risk.
Quyn s hu hng ha gn lin vi ri ro.

- Since merchandise is at risk at all times during its journey, it is advisable to insure the goods. It
is easier for the exporter to arrange insurance. Minimum coverage is Cargo clause C. In CIF and
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CIP contracts, the exporter normally assigns the insurance agreement to the buyer. Exporters
have an agreement with an insurance company covering the shipments over a period of time.
Each is covered by a certificate of insurance, which states in outline the cover offered and gives
the details of the individual shipment. There is a so-called letter of insurance. This is a letter from
the exporter to the buyer stating that the goods are insured and it has no legal force but as
evidence in a law suit against the exporter.
- In some situation the exporter negotiates special insurance policies: floating policy and open
policy. Both offer the exporter insurance cover on all shipment over a period of time. Open cover
is not a policy, the insurer will write a policy if required. The normal insurance document under
an open cover is the Certificate of Insurance, which is, in principle, the equivalent of a policy.
- If the exporter insures the Goods and states on the insurance document (valued policy), he has
some decisive advantages: the prestated figure can include not only the cost of the goods but
also the profit the exporter hoped to make on them. If the value is not stated (unvalued policy),
then the value can be established after a loss, the exporter must prove his figures precisely.
- A marine insurance policy has three variant clauses: Cargo Clause A, B and C. Clause A covers
anything not excluded, Clause B and C exclude anything not expressly covered. Even an all
risks policy (Clause A) excludes many risks.
- Goods must be correctly and fully describe on the insurance document or cover may be
withdrawn and a held cover clause offers some protection against innocent misdescription:
under given conditions the goods are held to be covered. The main principle of insurance is
utmost good faith
6. Terms of Trade
- The ICC publication, Incoterms 1990, gives full and clear information about the rights and
duties of buyer and exporter in Incoterm contract. The 13 terms are classified in 4 groups: Eterms, F-terms, C-terms, and D-terms. The E-terms deals with deliveries at the exporters
factory. The F-terms all concern delivery within the exporters country. The C-terms involve
delivery in the exporters country, with extra costs for exporter after delivery. D-terms take
care of delivery outside the exporters country.
The equipment listed in Annex 1 shall be delivered FOB (Beira) (Incoterms 1990)
Cc thit b lit k trong Ph lc 1 c giao theo iu kin FOB (Beira) (Incoterms 1990)

For the equipment listed in Annex 1 the price is for delivery free on board carrying vessel
designated by the Buyer at the port of Beira including the cost of packing, as well as expenses
7

incurred before loading the equipment on board the carrying vessel.

i vi cc thit b c lit k trong Ph lc 1 gi l gi giao hng min ph trn boong tu ch
theo ch nh ca ngi mua ti cng Beira bao gm chi ph ng gi, cng nh cc chi ph pht
sinh trc khi ti cc trang thit b ln boong tu ch.

The contract should always specify that terms such as FOB, CIF and so on are Incoterms
under the rules set out in Incoterms 1990. The contract should regulate what happens if
Incoterms 1990 and the terms of the contract conflict. Normally, the contract prevails.
Incoterms apply only to international trade, for trade within a country, Incoterms are not
appropriate.
Incoterms 1990 as used in this contract means the publication Incoterms 1990, being the
international rules for the interpretation of their terms published by the International Chamber of
Commerce. When a term from Incoterms 1990 is used in this Contract, the rules and definitions
applicable to that term in Incoterms 1990 shall be deemed to have been incorporated in the
Contract except insofar as they may conflict with any other provision of the Contract, in which
case the Contract provisions shall prevail.
Incoterms 1990 nh c s dng trong hp ng ny l n bn Incoterms nm 1990, l cc quy
tc quc t cho vic din gii cc iu khon ca chng do Phng Thng mi quc t xut
bn. Khi mt iu khon t "Incoterms 1990" c s dng trong Hp ng ny, cc quy tc v
nh ngha p dng cho thut ng trong Incoterms 1990 s c coi l c kt hp trong
hp ng ngoi tr trng hp chng c th xung t vi bt k iu khon khc ca Hp ng,
trong trng hp quy nh ca hp ng s c p dng.

CHAPTER 2: NEGOTIATING PRICE AND PAYMENT

1. EXPORT PRICING STRATEGIES

THE PROBLEM

How can the exporter avoid the price trap occured in many negotiations when the buyer
demands concessions about delivery time, method of payment,etc?

THE PRINCIPLE

The exporter should guarantee that the contract price reflects any change in a set of
assumptions about delivery, payment and warranty terms.

IN MORE DEPTH

Any terms of a contract relate to each other. Therefore, as items in the contract are
negotiated, the exporter should assess the influence of each factor on price, and adjust the
price accordingly. For example, a longer warranty period creates higher costs, it should be
reflected in the contract price. In fact, the most common term negotiated with the two sides is
on price.

Scenario: Verbena Electric hopes to export its best-selling product, small domestic electric
fans, from Verbena to Esperanza. Royalstone, the manager of Verbena Electric, begins
discussions with the purchasing manager of Esperanza Electrical Importing, Alice Smart.
Negotiations begins. Royalstone offers a unit price of $22 based on some main following
assumptions:
-

The size of the order is 3000 items.

Delivery is FOB.

The warranty period on the fans is three months from the date of delivery.

Order Size: 3000 units is one container load, the unit price will increase on a smaller order.
An order of 1000 fans, for example, would cost $25 each not $22.
Incoterm: the cost of insurance and freight between Port Verbena and Esperanza City is $520
on an order of 3000 items.
Warranty Period: Royalstone knows that a three-month warranty on an FOB delivery
produces very few claims for defects. If Smart asks for a six-month warranty, it will add 30
cents per fan to Royalstones costs.

This example shows that the negotiating decisions bear directly on the price of the product.
And a good manager knows that almost every decision made during a negotiation incluences
price.

2. THE FIVE STPES IN NEGOTIATING PAYMENT

In negotiating payment, the exporter should follow these five steps:
Step 1: Mode of Payment
This determines how payment will be made. There are four common mode of payment:

payment on open account with no security: this type is seriously risky to the exporter

payment on open account secured by export credit insurance: the exporter pays money to
an insurance company to buy an export credit insurance

payment on open account secured by a paymenr guarantee: the buyer pays money to a
bank to receive a bank guarantee.

payment by letter of credit.: the buyer must position the money with a bank in the coutry
of the exporter and the exporter can collect that money when the goods are delivered.

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Step 2: Timing
This step determines the date of payment. The importer often wants to delay the time of payment
but the exporter suffers from delay because late payment is subject to payment of interest so
mosts sellers offer discount for early payment. This helps the buyer save on the invoce price and
the seller qickly collect his money.
The date of payment may be regulated date or a chain of dates. It is also calendar dates or
interval times.

Step 3: Place of payment

This step determines where the money must be before payment is to be completed

Step 4: Delay - what delay in payment is excusable?

Delay in payment may be excused during a grace period (not common) or a force majeure event
(more common). But most exporters do not want to excuse these delays and any payment made
after the agreed date of payment is in delay.

Step 5: Results of delay

When delay in payment happens the exporter is usually compensated for losses due to late
payment. The exporter may ask for a payment guarantee which makes sure payment be made on
time.
The best solution to get risk of delay is to create a payment article in the sale contract which
makes late payment is impossible.
Cu trong sch - trang79

Cu dch

Payment shall be deemed to have been Vic thanh ton c cho l hon thnh
made only when the contract sum is paid ch khi s tin hp ng c chuyn
11

into the Sellers bank account and is at the n ti khon ngn hng ca ngi Bn v
Sellers full disposal.

do ngi Bn ton quyn nh ot

Cu trong sch -trang 80

Cu dch

If payment of any sum payable is delayed, Thanh ton chm

the Buyer shall be entitled to receive Nu chm thanh ton bt c khon tin no
interest on the amount unpaid during the theo hp ng, bn Mua s phi chu trch
period of delay. The interest shall be at an nhim vi khon tin li tnh trn khon
annual rate three percentage points above tin cha thanh ton trong sut khong thi
the discount rate of the central bank in the gian tr hon . Li sut s c tnh cao
Sellercountry.
hn 3 % so vi li sut chit khu do Ngn
hng Trung ng nc ngi bn quy nh

3. THIRD-PARTY SECURITY FOR PAYMENT

In the international trade, the exporter may face a lot of risks and one of the significant ones
is non-payment. There are two main way that the exporter can use to reduce this risk. One is
export credit insurance and the other is bank guarantee.

Export credit insurance

Export credit insurance allows exporter to recover the major part of the contract price if the
buyer fails to pay after six months. To buy such insurance, the exporter must explain the
detail of the busineess to an insurance company and receive a quotation. If the insurer refuses
to pay, its may mean that there are some problems in the exporter or importer. The exporter
has to pay export insurance premiums which depends on many factors, such as: the type of
goods exported, the creditworthiness of the buyer, the political stability of the importer
country.
Although this way is attractive, it has some limitations: the exporter has to wait for a long
time to be compensated and the compensation is unlikely to cover 100% of the invoce price.

Payment guarantee

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In this method, the buyer may ask for a bank guarantee which means that the bank will pay
the contract price if the buyer fails to do so.
Guarantees are comonly used in four business situations, as the following:
Risk 1: Non-payment =>Payment guarantee
A payment guarantee makes sure that the exporter will receive payment. It commits the bank
which issuses the payment guarantee to pay if the buyer defaults. The payment guarantee is
ussually for 100% of the contract price.

Risk 2: Revocation => Tender guarantee

This type of guarantee is used in case that the exporter who bids on a contract to supply
goods or materials to a goverment department or agency is withdrawn. A normal figure for
tender guarantee is usuallly between 1.5% to 5% of the contract price

Risk 3: Non-performance=>Performance guarantee

Performance guarantee makes sure that if the exporter works badly or not at all, the guarantor
will pay, within stated limits, the costs of the exporters failure to perform. A figure for
performance guarantee is between 5% to 10% of the contract price.

Risk 4: Losing Prepayment=>Prepayment guarantee

This guarantee promises the buyer that the bank will return advance payments if the exporter
fails to deliver. The guarantee is often for 100% of the prepayment.
4. THE LETTER OF CREDIT
Letters of credit are issued in many forms for many purposes. Some letters of credit offer first
class security for the exporters, some are little better than a personal check
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The most ideal type of letter of credit from the exporters point of view is irrevocable,
comfirmed, at sight letter of credit.
The Uniform Customs and Practice for Documentary Credits (UCP) by the International
Chamber of Commerce is the most universal set of practices rulling over payment by letter of
credit. Besides, parties to a contract can also use the rules of the United States.

Letter of credit: The Ground Rules

Documents are exchanged for money.
Firstly, the letter of credit is issued by an issuing bank at the request of the buyer. The
issuing bank, then, istructs the advising bank to advise the exporter that the letter of
credit has been opened. Normally, the issuing bank is in the buyers country and the
advising bank is in the country of the exporter.
Next, the exporter ships the goods, passes them to the carrier and receives shipping
documents from the carrier.
Then, presents these documents to the bank as evidence that the goods have been
shipped. The bank checks the correctness of the documents and sets the payment
procedure in motion.

Two principles that make a letter of credit watertight:

Principle 1: Autonomy
The letter of credit is an agreement by a bank to pay money against documents; It is a separate
agreement from the sale contract and is unconnected with it. This means the bank is obliged to
pay whatever the disputes between the buyer and the exporter are.

Princile 2: Strict compliance

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The bank will pay only if the shipping documents are exactly in line with the buyers
instructions. In case of discrepancies in one or some aspects of the documents presented, the
bank will refuse to pay.
In this situation, to proceed payment, the exporter can:
-

Provide missing payper or correct errors.

Ask the buyer to instruct the bank to change the terms of the letter of credit.

Ask the bank to process the letter of credit with the discrepancies but to pay only when and if
the issuing bank permits payment.

If the letter of credit is near its expiry date and there may be no time for the exporter to provide
the missing pieces, he (or the advising bank) must contact the buyer asking the buyer to instruct
the issuing bank to extend the date of credit.
The exporter should provide scrupulous care in providing the documentation called for by
the letter of credit.
Page 87: The Buyer, on receipt of the Ngi mua, khi nhn c Chp nhn n
Confirmation of Order from the Seller, shall hng t pha ngi bn, phi m mt th tn
at least 20 days prior to the date of delivery dng xc nhn, khng th hy ngang mun
open a confirmed, irrevocable letter of credit. nht l 20 ngy trc ngy giao hng. Th tn
This credit shall be subject to Uniform dng ny c iu chnh bi Cc Qui tc v
Customs and Practice for Documentary Thc hnh thng nht v Tn dng Chng t
Credits, 1993 Revision, ICC Publication No S 500 ca ICC, bn sa i nm 1993. 20%
500. 20% of the credit shall be available gi tr th tn dng ny phi c thanh ton
against the Sellers draft accompanied by khi ngi bn xut trnh hi phiu v ha
invoice; the remaining 80% shall be available n; 80% cn li phi c thanh ton khi
against the Sellers draft accompanied by the ngi bn xut trnh hi phiu v cc chng
shipping documents.

t vn ti.

Page 90: Credits, by their nature, are separate V bn cht, tn dng l mt giao dch ring
transactions from the sales or other contracts bit vi cc hp ng mua bn hoc cc hp
on which they may be based and banks are in ng khc m cc hp ng ny c th l c
no way concerned with or bound by such s ca tn dng. Cc ngn hng khng lin
15

contracts, even if any reference whatsoever to quan ti hoc b rng buc bi cc hp ng

such contracts is included in the creditIn nh th, thm ch ngay c c trong tn dng c
credit operation all parties concerned deal in bt c s dn chiu no n cc hp ng nh
documents and not in goods, services and/or th.Trong thanh ton bng tn dng, cc
other performances to which the documents bn ch chp nhn chng t ch khng phi l
may relate.

hng ha, dch v hay bt k nghip v no

khc c lin quan n cc chng t ny.

Page 90: A letter of credit is like a bill of Mt th tn dng cng ging nh mt t hi

exchange given for the price of goods. It phiu c k pht tr tin hng. N cng
ranks as cash and must be honored. No set off l tin v phi c thanh ton. N khng th
or counterclaim is allowed to detract from it.

b lm gim gi tr bi bt k yu cu tr tin
hay vic phn i tr tin ca bt k bn no.

Letter of Credit: Revocable and Irrevocable

A revocable letter of credit can be canceled at any time by the buyer or by the issuing bank.
Few exporters will accept such an arrangement, so the plain expression letter of credit
generally means the irrevocable kind. UCP600 says that the letter of credit will be taken as
irrevocable if nothing is mentioned in the credit.

Letter of credit: Confirmed and Unconfirmed

A confirmed Letter of Credit is understood as the letter of credit to which a confirmation is added
by a nominated confirming bank. Confirming bank means the bank that is asked to confirm the
credit by an issuing bank. By adding its confirmation to an L/C, it has an absolute obligation to
pay the exporter according to the terms of credit. The payment are made without recourse, which
means that if the issuing bank finds a problem with the documents and refuses to send funds to
cover the payment, the confirming bank has no way of recovering the money it has paid to the
exporter. It is different from an advising bank which always makes payment with recourse if it

16

agrees to pay the value of the credit over the counter. This helps the advising bank get its money
back from the exporter if the problems occur.
Sometimes, problems can arise when very small banks or banks in countries with severe foreign
currency shortages try to instruct a bank in exporters country to confirm a letter of credit. The
issuing banks may delay in sending funds to cover the payment.
The sign of a confirmed letter of credit is usually the cross in the confirmation box.

The At-sight Letter of Credit and the Alternatives

Settlement by sight Payment
Under this method of payment, if the documents the exporter presents are in order, the paying
bank immediately pays the full face value of the letter of credit.

Settlement by Deferred Payment

In settlement by deferred payment, the letter of credit is not payable until a number of days after
delivery. The seller presents the documents to the paying bank, and the paying bank agrees to
pay the seller the face value of the credit when it matures. If the exporter needs ready money, he
can exchange the letter of credit for cash (at a discount) with any agreeable bank.

Settlement by Acceptance
The seller presents to the accepting bank the documents and a bill of exchange (time draft) drawn
usually on the buyer, and the bank will accept the bill of exchange and agree to pay it at full face
value when falls due. This is obviously a danger for the seller.
A bill of exchange that is accepted can be sold at a discount to an agreeable bank if the seller
needs money immediately.
17

Settlement by Negotiation
Negotiation means the selling of a financial instrument to a bank for (usually) less than its face
value. In this method of settlement, the seller presents to the negotiating bank the documents and
a bill of exchange drawn usually on the buyer, and the negotiating bank negotiates the bill.

The Letter of Credit and its Associated Documentation

I. The letter of credit contains a list of the documents which must be presented and is also the
basis for bank checking that the documents are in perfect order and correct or not.
II. Associated Documentation
1. Commercial invoice must be made out to the applicant for the L/C about the description
and the amount of the goods, and specific demands.
2. Transport documentation is the document issued by the carrier to the exporter, and
includes five types: sea transport, air transport, rail transport, road transport and
combined transport. The type required is stated in the L/C.

Special problems related to transport document.

There are some problems arising in specific circumstances when transport document is used as
follows:

Shipment by sea: The carrier could issued a marine bill of lading, or a sea waybill to the exporter.
And in some case some types of sea transport are not allowable without the agreement by the
paties and being worded in the L/C. when the parties use this method of transportation, a sea
waybill can be the alternative of a marine bill of lading.

18

Shipment by air: The carrier could issued an Air waybill, which must be issued in 3 originals and
9 copies. That the L/C calls for a full set of original air waybill is a mistake because it is an
impossible demand. Also, a correctly completed waybill can not show the date of the flight.

Shipment by rail: The carrier could issued a Rail consignment note. L/C, in this method of
transportation, must not demand the original of a rail consignment note, otherwise it can delay
the payment.
3. The Insurance Document: is usually required when the shipment is made on CIF or CIP
terms. If the L/C does not stated otherwise, insurance coverage must be for 110% of the
CIF or CIP value of the goods.
4. Other Documents includes Certificate of Origin, Certificate of Inspection and Special
Requirements.

Certificate of Origin(C/O) is required for import to the buyers country under a preferential tariff
or other agreement.

Certificate of Inspection can make importing easier. The parties should make a note in their
contract if this document is required. The parties must clear that details in inspection certificate
must correspond exactly with the details in the transport document and the commercial invoice.
Special Requirements should be agreed exactly about what and who should issue and shown
clearly in the L/C. When wording in the L/C, the parties should not use unspecific words such as
appropriate, it could make difficulty in satisfying the bank for the payment.

Negotiating the Terms of a Letter of Credit

19

- Agreement: the exporter and the buyer discuss and list all required documentation. The two
parties may have to talk to their Chambers of Commerce, to their bank or to the carrier to
establish the complete list.
- Incorporation: the list is incorporated into the contract.
- Specification: the buyer applies for the letter of credit specifying the agreed documentation.
ICC form can be used to apply for a letter of credit. The exporter and the buyer can complete this
application form during their negotiations and append a copy of the form to their contract, then
passsing it to the bank. This is to make sure that the credit once issued should be exactly as
agreed by the parties with no nasty surprise for the exporter.
- Verification: the exporters checks the credit as soon as he receives the advice of the L/C being
opened to make sure it complies with the agreement negotiated with the buyer. Immediate
discussion with the advising/confirming bank is essential since amendments are always time
consuming, which can lead to the delay in payment.
- Compliance: the exporter rigorously checks documentation and submits it to the bank.
Remember that timely payment depends on the compliance by the exporter with the terms of
credit.

Documentary Credit Application Form

Segment 1: Applicant: full name, address, account number with issuing bank of the buyer.
Segment 2: Issuing bank: name (can be left blank)
Segment 3: Application date: the date on which the application form is submitted to the bank
(can be left blank)
20

Segment 4: Date and place of expiry:

+ The last date for presentation of documents to the bank
+ The place of expiry: often at the counter of the confirming bank
Segment 5: Beneficiary: full name, address (the exporter in most cases)
Segment 6: Method of issue:
+Issue by mail: slower
+Issue by teletransmission (normally telex)
+ Issue by mail and brief advice by teletransmission.
Segment 7: Transfer of the Credit
- In case the exporter wants to hide the actual supplier.
- In principle, a L/C is not transferable unless it is permitted.
Segment 8: Confirmation: Exporters prefer confirmation.
Segment 9: Amount
+the amount of the credit is expressed both in figures and in words.
+The currency of the credit: using the ISO currency code. Eg: USD, DEM, GBP
+ About, Approximately: the actual payment can be +/- 10% the stated amount.
+Mixed payment: must state what percentage of the invoice price is covered by the credit.
Segment 10: Partial Shipment
In principle, partial shipments are allowed unless the not allowed box is crossed.
Distinguish carefully between partial shipments and shipment in installments.

21

Segment 11: Transshipment

Transshipment means moving the goods from one conveyance to another. Normally
transshipment is allowed except for goods travel by sea under a sea waybill or marine B/L or
some other special reasons for prohibition.

Segment 12: Availability

Credit available with this is sometimes followed by the name of the advising bank chosen
by the exporter or left blank, and the issuing bank is free to decide a bank will act for it in the
exporters country
The various types of payment are by sight payment, by acceptance,etc.

Segment 13: Insurance covered by the Buyer

The box is normally checked when the delivery term is FOB, CFR.

Segment 14: Transport Information

Shipment from (precise places habors, airports)
To (precise places habors, airports)

22

CHAPTER 3
Negotiating Inspection and Defects Liability
1.

EXPORTING AND THE PROBLEM OF QUALITY

- The Problem:
When things go wrong with the exported products, repair and replacement can be

ruinously expensive. There are some special steps that the exporters can take to minimize the risk
of the goods being rejected or of heavy defects liability claims.
- The Principle:
+ The exporter should ensure that all exported goods meet or exceed the quality
specified, that marking and packaging are correct and that delivery is on time.
+ The agreement between the parties should contain specific quality specifications.
- In more depth:
The quality of the product is a key issue, and customer satisfaction is essential to
successful business. Many companies have qualities assurance programs to ensure that customers
get what they pay for. Until things are going well in the local market, it makes little sense to
export, because quality assurance and customer satisfaction are much tougher when the customer
is in another country, and distance makes communication, transport, inspection, payment and
verification of claims expensive and time-consuming.
+ Specification.
Negotiation of specifications can be a difficult process.
A well-designed set a specifications offers vital protection the both sides. The importer
is protected against inferior products- it can reject any equipment that fails to meet specification.
Moreover, the seller is protected also-through more subtly. If the products are fully specified and
the consignment meets the specifications, the buyer will be unable to find any excused for
rejection or for exaggerated defects liability.
23

+ Pre-delivery Inspection
Many importers require inspection of their goods in the manufactures factory before
delivery. With sophisticated items or capital equipment, the buyer may also want to inspect the
goods at pre-agreed times during manufacture.
Some countries, Indonesia for example, require that all imported goods are inspected by
an inspections service immediately before shipment. This inspection prevents exporter and buyer
agreeing an unrealistically low invoice price in order to avoid customs duties in the buyers
country. This also prevents shipments of patently defective goods.
The next step, assuming FOB delivery, is examination of the goods by the carrier. The
carrier does not unpack the goods or check their quality, although leaks and obvious damage as
well as incorrect shipping marks, defective packaging or discrepancies in weight and size are
noted on the shipping documents.
+ Inspection and Acceptance
The principle is clear- the buyer has the right to inspect the goods when they arrive and to
reject them if they are incorrect. At this point, exact specification is of great value to exporter if
the goods conform to specifications, the buyer is obligated to accept them.
+ Defects Liability Period
Once the goods are accepted by the buyers as apparently correct, they must jump to the
final hurdle the defect liability period. The manufacturer accepts liability for defects the come
to light after acceptance: if anything is wrong with any item, they will repair or replace it. Such
defects are called latent defects.
The defects liability period is negotiable, this is likely to be several months from the date
of delivery or the date of arrival.
Protection against dishonest claims or excessive demands should be written into the
contract.
To sum up, in negotiating the terms of the contract, we can look at the process in steps.
24

Step 1. Inspection: When are the goods inspected? And when can the buyer to reject

them?

Step 2. Terms: Warranty or guarantee?

Step 3. Definitions: What is, and what is not, a defect?

Step 4. Timing: How long is the defects liability period? When does it begin? What about

other timings?

Step 5. Corrective action: What must the seller do to cure defects?

2.

INSPECTION, ACCEPTANCE AND REJECTION

n a contract, both the parties, the buyer and the exporter run risks. Obviously, the goods
delivered are not always perfect. Thus, the buyer stands the risk of receiving inferior goods
when inspecting the goods on arrival. The exporter may have a disaster when the buyer

decides to cancel the contract if the deviation amounts to a fundamental breach of contract. The
defects liability provision gives double protection. This warranty protects the buyer from
receiving inferior goods and the exporter from losing the contract right away. Delivery can be
rejected from two kinds of defects: the patent one ( which can be found when being inspected),
the latent one (which only comes to light during usage).
Under most laws, a buyer can make certain assumptions about goods even if the exporter
gives no express warranty. These assumptions are legally called implied warranties, which come
in three types:
+ Implied warranty of Conformity with Contract:
Most laws provide a way to grade non-conformity: while major discrepancies allow the
buyer the right to reject the goods and cancel the contract, minor discrepancies do not. The
Vienna Sales Convention (Article 49) says:

25

The buyer may declare the contract advoided (=canceled) if the failure by the seller
to perform any of his obligations under the contractamounts to a fundamental breach of
contract.
+ Implied warranty of Merchantable Quality:
Goods can well conform with the contract but they can be of serious inferior quality
which make them inappropriate for sale. Most laws have a provision on this warranty of
merchantability which allows the buyer to reiect goods and cancel the contract
+ Implied warranty of Fitness for Intended Purpose:
Goods can conform with the contract, be merchantable but useless to the buyer. In the
case when the exporter knew the buyers intented purpose and the buyer trusted the seller with
the correct goods then the buyer has the legal right to reject unusual items.
+ Rejection: Total or Partial:
The buyer can reject the consignment wholly or partially. National laws take one of three
choices. While English law requires rejection of all contract goods, German law and Vienna
Sales Convention (Article 51) both allow total and partial rejection. When goods are rejected, the
buyer most notify the seller within a reasonable period. Then, on assuming that the rejection is
justified, the exporter has the additional cost to dispose the unwanted goods.
+ The Exporters Right to cure:
Does the exporter have the right to cure? Or it is simply a duty requested by the buyer?
The Vienna Sales Convention says the following:
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.
If the seller wants the right to cure, the contract should contain the necessary provision.

26

3. WARRANTY AND GUARANTEE: TERMINOLOGY

re a warranty and a guarantee the same thing? Why do some contracts replace a warranty
with a defects liability provision?.

A warranty is a promise you make about your own perfomance. A product warranty is a promise
by the exporter to cure defects in his products. There are two parties to a warranty: buyer and
seller. A guarrantee is a promise about somebody elses performance. It involves three parties:
principal, beneficiary and guarantor. The guarantor makes a promise to one party at the request
of another.
In strict legal usage, a warranty is an absolute undertaking on the part of the warrantor,
and the contract is void unless it is strictly and literally perfomed, while a guarantee is a promise
() not imposing any primary liability on the guarantor, but binding him to be answerable for
the failure or default of another.
Internationally, the distinction between warranty and guarantee is often blurred. Many
contracts avoid the problem by speaking of defects liability rather than warranty; this is the right
concept.
4. THE DEFECTS LIABILITY PERIOD: A CHANCE TO PUT THINGS RIGHT

he exporter is liable for defects in his products. What is a defect? And what liability for
defects must the exporter accept?

There is one thing that everyone knows: not all products are perfect on delivery. So the warranty
covers defects that are present at the moment of delivery. The defects that give rise to the most
serious problems between exporter and buyer are hidden or latent defects. There are three kinds
of defects: workmanship, materials and design.
+ Three types of Defect:
A product with defective workmanship is incorrectly built. Faults are often hidden and
do not come to light until the product is used.

27

Defective materials are materials or parts of a product that are inferior or somehow
incorrect. Many such hidden defects take time to come to light.
Defective design means that a product does not meet specifications. The design is
defective, again, is not apparent until the product is used.
+ What is Not a Defect:
A defects liability provision does not cover: two common exclusions are fair wear and
tear and misuse by the buyer. Fair wear and tear is the result of normal use. Misuse is seriously
incorrect handling by the buyer. Sometimes misuse is expressly defined in the contract: opening
a sophisticated machine.
+ Faults Not Present on Delivery:
The defects liability period is the period during which the exporter is liable for and
must make good defects that are apparent on delivery or that come to light later. The buyer
must prove that the defects was present in the goods at the date of delivery. When two sides
negotiate contract, both sides must understand that a defect is a fault provably present in the
goods on delivery.
+ Specimen Warranty Clauses:
A standard provision mentions the three types of defect, it states a date on which the
products were free of defects, it excludes problems caused by misuse or wear and tear, and it
establishes the exporters duty to cure the fault.
Sometimes, the parties decide on a totally different kind of obligation. An interesting
example is the Disclaimer of Warranty common in software contracts. Such a disclaimer is often
printed in capital letters because it is unusual and because it denies the purchaser some of his
normal rights.
Any attempt to hide or subordinate such a disclaimer makes it invalid under most laws.
The purchaser has given up certain rights: but in exchange for what? What is the justification of
this whole proceeding? The answer is: without such a Disclaimer of Warranty, the contract price
would be far higher.
28

5. TIMING OF THE DEFECTS LIABILITY PERIOD

he defects liability period presents four separate timing problems. Many contracts
regulate only one. What are the other problems, should the exporter regulate them, and
if so, how? Lets now look at each timing problem in more detail.

+ Timeframe 1: The Defects Liability Period

The parties first agree the length of the defects liability period. We can note that many
legal systems allow a six-month period if the two sides agree nothing. The exporter should know
how many defects liability claims does he generally experience within a three-month, a sixmonthperiod, in order to calculate the cost of extending (or reducing) the defects liability
period.
Having agreed the length of the defects liability period, the two sides then ask: When
does it start? The contract must regulate this problem. It is generally accepted as fair that the
period is extended by the down-time.
+ Timeframe 2: The Notification Period
If a defect occurs, the buyer must notify the exporter. If both parties act in good faith,
such a soft-edged timeframe works well. If a problem arises, the judge sets a fair period for
undue delay, a reasonable time, or forthwith.
+ Timeframe 3: The Rectification Period
Once the exporter has learned of the defect, he must cure it as soon as practicable and at
his own cost.
+ Timeframe 4: The Legal Action Period
If the exporter has failed to repair under warranty, the buyer must start a legal action. This
legal action period differs under applicable laws (Civil law or Continental law). This period
also varies greatly from country to country and from one type of contract and/or duty to another.
In practice, contracts rarely regulate the legal action period, leaving the matter to the applicable
law. If you foresee a problem, take legal advice.
29

6. CORRECTIVE ACTION
+ The Problem:
Some contracts do not point out corrective action that the exporter must take, which is
dangerous for both exporter and importer.
+ The Principle:
The exporter used to correct the defects. In case the buyer has this right, it must be
indicate exactly in the contract.
+ In more depth:
The defects liability provision allows the exporter to correct problems without losing the
contract. There are five steps that the manufacturer of goods can normally take to cure defects:
+ 5 options for curing defects:

Option 1: Repair.

To the domestic manufacturer, this is the most saving; but this is very expensive to the
exporter because he has to send a mechanic together with many tools and spare parts to the
buyers country.

Option 2: Allow the Buyer to repair at Exporters cost.

The risk that the exporter may easily encounter can be an expensive repair bill or the
repair may not properly be carried out which make the exporter has to fix under the warranty.
Almost every exporters try to avoid this or allow it only in exceptional cases and then only with
the exporters express approval.

Option 3: Replace (Part or Whole Item)

By this way, the exporter can keep the goodwill of the customer. However, it is very
expensive especially, when the customer want to send back the defective item, which leads to the
30

same problems as option 1: 2 sets of customs, air mail or air freight. Sometimes, skilled
technican must be at hand, gi th n nc NK lp t thit b. And the exporters expense is
much more higher than the local trader.

Option 4: Reduce the price.

This is the replacement of option 1 and option 3. If the buyer pay by L/C, the seller must
reduce price directly. If payment is on open account, and the invoice has not yet been settled, the
payment due is simply reduced. Moreover, complex item include retainer provision (normally
5%) which is kept by the buyer until the end of the defects liability period to negotiate price
reductions.

Option 5: Return the Goods and Refund the Price.

The exporter do not want to use this option; this is the same as lose the contract. The
value of defective goods is not as high as the cost of return shipment to the exporters country.
This means the deal is a total loss for the exporter. So, if the buyer insists on including a return
and refund clause in the contract. The exporter must protect himself by allowing this option
only in exceptional cases and with his express agreement.
+ Who chooses?
Mainly exporter depends on what kinds of defects that the exporter must be flexible in
repairing to save money.
Let us look at a clause that mentions all five options, but still allows the exporter the
necessary freedom:

Trang

Cu gc

Cu dch

31

143

In the event of a defect coming to Trong trng hp sai st c tm thy v

light and being notified to the Seller, thng bo n ngi bn, ngi bn ngay
the Seller shall, without undue dalay, lp tc v khng chm tr chu mi ri ro v
make good the defect at his own risk chi ph sa cha sai st mt cch ty
and cost and at his discretion in one theo nhng cch sau:
of the following ways:
a. Repair the defective item;

a. Sa cha hng ha khim khuyt;

b. Cho php ngi mua hoc bn th ba

b. Allow the Buyer or a third party c ngi mua y quyn sa cha hng
appointed by the Buyer to repair the ha khim khuyt v tnh chi ph cho ngi
defective item at the sellers cost;

bn;

c. Replace the defective item;

c. Thay th hng khim khuyt;

d. Reduce the contract price;

d. Gim gi hp ng;

e. Allow the Buyer to return the e. Cho php ngi mua gi tr hng khim
defective goods and refund all sums khuyt v hon ton b s tin hng
paid for the goods.
Many exporters like option 1 or 3 because the rests need the negotiation of both the
exporter and importer. In this case, the clause runs:
Trang
143

Cu gc

Cu dch

In the event of a defect coming to Trng hp sai st c tm thy v thng

light and being notified to the Seller, bo n ngi bn, ngi bn phi ngay lp
the Seller shall, at his discretion and tc la chn phng n sa cha hoc thay
without undue dalay, repair or th hng ha sai st, chu mi ri ro v chi
replace the defective item at his own ph.
risk and cost.
+ Liquidated damages: A different kind of cure
The exporter, sometimes, cures a defect by offering a reduction. The size of the discount

is clearly open to negotiation and more complex deals benefit from this area.
32

+ Costs, Defects, and the Results of defects

The defects liability provision usually requires the exporter to cure defects at his own risk
and cost. In fact, the major risk for the seller is not the cost of repairing and replacing defective
goods. The biggest risk that the exporter has to compensate for the importer is consequential
damage orconsequential loss.
Given the wording, the exporter must take responsibility for the repair cost. Another cost
is not mentioned. This means the exporter has no duty. This is not true. Whenever the contract
says nothing about a problem, we look for the answer in the applicable law, which has a close
connection to the contract. Nearly all applicable laws divide the buyers losses from defects into
two categories: direct losses and indirect (often called consequential) losses.
National laws differ in their approach to consequential loss. In Germany, the BGB allows
a claim for all direct costs including uncovering, making good, and so on.
In America, the UCC allows recovery of all losses including incidential and
consequential damages. On the other hand, the loss must closely result from defect. Courts have
made decisions in many thousands of cases.
However, like all relationship of all deals, the exporters liability for the buyers loss is
disposive. Consequently, most exporters try to reduce their responsibility to direct loss only. For
an example please refer to table 10 on page 29.
Conversely, the exporter is required to accept such risks clearly stated in table 11 on page
29.

LIST OF TABLES AND THEIR TRANSLATIONS:

Table 1 (page 117):
Cu trong sch - trang 117

Cu dch
33

Inspection before Delivery

Kim tra trc khi vn chuyn

The Buyer may, at the Buyers option,

Ngi mua c quyn, trong s la chn

inspect the Goods prior to shipment. At

ca mnh, kim tra hng ha trc khi cht

least fourteen days before the actual

hng ln tu. Ngi bn phi thng bo cho

delivery date, the Seller shall give the

ngi mua hoc bt k mt i l no do

notice to the Buyer, or to any agent

ngi mua ch nh v vic hng ha sn

nominated by the Buyer, that the Goods

sang kim tra, t nht 14 ngy trc ngy

are available for inspection. The Seller

giao hng thc t. Ngi bn s cho php

shall permit access to the Goods for

hng ha c kim tra vo thi im hp l

purposes of inspection at a reasonable

m hai bn tha thun.

time agreed by the parties.

Table 2(page 123):

34

THM TRA V IU KIN

BO HNH SUY DIN

Hng
Hngc
cgiao
giao

Ngi mua
c kim tra
hng ha
khng?

Hng ha
c ph hp
vi hp
ng
khng?

Hng ha
c cht
lng
thng mi
khng?

Hng ha
c ph hp
vi mc
ch s
dng
khng?

KHNG

S sai lch
c b coi l
vi phm c
bn
khng?

Ngi bn
c th hay
ng sa
cha vi
phm
khng?

Ngi mua c
chp nhn
hng ha giao
theo b phn
khng?

Chp nhn

Chp nhn giao

hng tng phn

T chi

KHNG
35

Table 3 (page 125):

Cu trong sch Trang 125

Cu dch

What you should know

Nhng iu cn bit

1. The buyer has the right (in some legal

systems, the duty) to inspect delivered goods.
2. Three implied warranties apply to
most delivered goods, even if the exporter has
given no express warranty: (a) warranty of
conformity with the contract; (b) warranty of
merchantability; (c) warranty of suitability for
an intended purpose.
3. Warranty of Conformity with the
Contract: In principle, the buyer can reject
goods if they do not conform with the contract.
4. Warranty of Merchantability: The
buyer can reject goods that are not of
merchantable quality.
5. Warranty of Suitability for an Intended
Purpose: If the exporter knew the intended
purpose, and if the buyer relied on the
exporters judgment, the buyer can reject
goods that are not suitable for their intended
purpose.
6. The question of warranty is disposive:
exporters can exclude all warranties.
7. Systems vary in their thinking about
whether rejection of contract goods must be
total or can be partial.
8. The right of the exporter to cure any
defects in his delivery is controversial; if an
exporter wants this right, the contract should
contain the necessary provision.

1. Ngi mua c quyn (trong mt vi h

thng php lut, ngha v) thm tra hng ha nhn
c.
2. Ba iu kin bo hnh suy din p dng
cho hu ht hng ha c giao, ngay c khi nh
xut khu khng a ra bt c iu kin bo hnh
tc thi no. (a) bo hnh cho vic thc hin hp
ng; (b) bo hnh v cht lng thng mi; (c)
bo hnh v s thch hp cho mc ch s dng.
3. Bo hnh cho vic thc hin hp ng: V
nguyn tc, ngi mua c th t chi hng nu
hng ha khng ph hp vi mc ch s dng.
4. Bo hnh v cht lng thng mi:
Ngi mua c th t chi hng ha khng p
ng yu cu v cht lng thng mi.
5. Bo hnh v s thch hp cho mc ch s
dng: Nu ngi bn bit v mc ch s dng, v
nu ngi mua tin tng ngi bn, ngi mua c
th t chi hng ha khng ph hp vi mc ch
s dng ca chng.
6. Vn bo hnh l ty chn: nh xut
khu c th loi b vic ny.
7. Cc h thng a dng trong vic xem xt
nu vic t chi hng ha phi l tng th hay mt
phn.
8. Quyn ca ngi bn sa cha bt c
khim khuyt no trong vic giao hng vn l vn
gy tranh ci; nu nh xut khu mun c
36

quyn ny, hp ng phi cung cp iu khon

cn thit.

Table 4 (page 127):

Cu trong sch trang 127

Cu dch

Guarantee

Bo lnh

All material, equipment and perfomance of Tt c cc vt liu, thit b v cch hot ng ca

goods supplied shall be guaranteed by the hng ha c cung cp s c bo lnh bi cc
Supplier against any defect or failure for the nh cung cp vi bt k khuyt tt hay sai st no
period of one year from the date of delivery. trong thi gian mt nm k t ngy giao hng.
The Supplier must replace defective parts as Nh cung cp phi thay th phn b li cng nhanh
quickly as possible. Replaced parts will be cng tt. Cc phn c thay th s c bo lnh
guaranteed by the Supplier for six months bi ngi cung cp trong 6 thng k t ngy thay
beginning from the date of replacement, and th, v c hon li ton b chi ph cc b phn
the whole expense of returning and replacing thay th.
the parts will be at his cost

Table 5 (page 128):

Cu trong sch trang 128
What you should know
1.
Most contracts

Cu dch
an

Nhng iu cn bit
1. Hu ht cc hp ng c mt m bo

assurance that the exporter will make good

rng ngi xut khu s sa cha tt bt k mt

any defects in his products: the assurance is

khim khuyt no trong cc sn phm ca mnh:

variously know as a warranty, a defects

bo m c bit nh l mt s bo hnh, mt

liability

trch nhim cung cp cc khim khuyt, hoc

provision,

or

contain

incorrectlya

37

guarantee.
2.
The term guarantee, in strict

khng hon ton chnh xc mt s bo lnh.

2. Vic bo lnh, trong vic p dng php

legal usage, means a promise about

lut nghim ngt, c ngha l mt li ha v hot

somebody elses perfomance;

ng ca ngi khc, do , khng phi khng

therefore, not incorrect in the context of

ng trong ni dung l trch nhim cho sn phm

defects liability.
3.
The word

li.

it is

guarantee might

3. T bo lnh c th gy ra mt kt qu

produce a dangerous result for the exporter

nguy him cho cc nc xut khu theo quy lut

under certain applicable laws.

4.
The term warranty is (correctly)

p dng.
4. S bo hnh l (chnh xc) c s dng

used in many other contexts than the

trong nhiu ng cnh khc hn bo hnh sn

product warranty.
5.
Probably

is

phm.
5. C th iu khon tt nht l trch nhim

defects liability since this is the only term

cho khuyt tt v y l iu khon duy nht vi

with

ngha c quyn v khng th nhm ln.

an

exclusive

the

best

and

term

unmistakable

meaning.

Table 6 (page 130):

Cu trong sch trang 130
The Supplier warrants that each Item supplied

Cu dch
Ngi cung cp m bo cho mi mn hng

under this contract ( and each part thereof) c cung cp chiu theo hp ng ti thi im
shall at the date of its acceptance:
(i)

Be free from defects in material

(ii) Be free from defects in workmanship

including but not limited to all
manufacturing processes

chp nhn:
(i)

Min tr khim khuyt nguyn liu

(ii)

Min tr khim khuyt tay ngh nhng

khng hn ch cho tt c qu trnh sn xut

(iii) Min tr khim khuyt v thit k nhng

(iii) Be free from defects inherent in design

khng hn ch n vic la chn nguyn

including but not limited to selection of

liu v phi ng nht vi cc khon thng

materials, and be fit for the purpose for

thng
38

which the Item is normally used.

If any defect or deficiency is discovered in
the Item or in any part thereof, then the
Supplier shall either repair or replace such
Item or rectify such deficiency.
The warranty above is subject to the
Purchaser having adhered to the procedures
or instructions applicable to the use, storage,
installation or operation of the Itemand

Nu c khim khuyt hay thiu ht c tm ra

trong cc mn hng hay ca ci, th bn cung cp
s sa cha, thay th nhng mn hng hoc b
p hng thiu ht.
iu khon trn l mc cho ngi mua tn thnh
vi ngi sn xut hoc ch dn chi tit khi s
dng, lu kho, lp t hoc qu trnh hat ng
ca hng ha v ngn chn nhng tn tht pht
sinh t vic hao mn t nhin khi s dng.

expressly excludes all damage arising from

wear and tear to the Item in normal use.

Table 7 (page 131):

A.

Cu trong sch trang 131

Cu dch

Disclaimer of Warranty

iu khon t b

The software provided under this

A.

Phn mm c cung cp di s ng

Agreement is furnished as is and without

ny cung cp ging ht v khng km theo bt k

support of any kind whatsoever.

s h tr no.

B.

B.

The supplier disclaims all warranties

Ngi cung cp t b ton b nhng iu

with regard to any software licensed to the

khan vi s quan tm n cc loi giy php

purchaser under this agreement, including all

mua bn di s ng , bao gm ton b cc

implied warranties of merchantability and

iu khon ca kh nng thng mi v ph hp

fitness for a particular purpose. In no event

vi nhng yu cu c bit. Khng c vic nh

shall the supplierbe liable for any special,

cung cp c trch nhim vi bt k tn tht c

indirect or consequential damages whatsoever

bit hay gin tip no khi m l kt qu ca

resulting from loss of use, data or profits,

vic mt mt d liu hay li nhun, d trong cc

39

whether in an actionof contract, negligence or

hnh ng c lin quan, s sut hay hnh ng

other tortious action, arising out of or in

c hi khc pht sinh t vic kt ni vi s dng

connection with use or performance of any

hay hiu qu ca bt k giy php s dng no

software licensed under this agreement.

di s cho php.

C.

The Suppliers prices are based in

material part upon this limitation of the

C.

Gi ngi bn da theo nguyn liu m

ngi bn s dng

Suppliers liability.

Table 8 (a collection of chapter 5 tables):

Trang

Cu trong sch
1

36

The

Defects

Cu dch

Liability

Thi hn trch nhim php l v sai st s

Period shall be extended by a

c gia hn thm mt khong thi gian bng

period equal to the period

vi thi gian m hng ha khng th s dng do

during

Goods

nhng sai st gy ra, nhng khng gia hn

cannot be used by reason of

qu 24 thng k t ngy giao hng u tin ca

any defect, but not so as to

s hng ha c sa cha hay thay th theo

extend the Defects Liability

iu khon ny.

which

the

Period for more than twentyfour months from the date of

first delivery of the Goods
40

repaired or replaced under this

provision.
Any Supplies furnished by

Bt c hng ha no c cung cp bng

way of replacement under

phng thc thay th trong thi hn bo hnh s

warranty shall be subject to

phi tun theo iu khon ny vi cng mt

the provisions of this Clause

mc nh nhng hng ha m ngi k kt

to the same extent as Supplies

hp ng chp thun lc u trong mt thi

initially

hn bo hnh y na.

accepted

by

the

Contractor for a full further

period of warranty.
Any parts replaced under

Bt c phn no c thay th trong thi

this waranty shall be subject

hn bo hnh s phi tun theo iu khon ny,

to the provisions of this clause

phi chu mt Thi hn bo hnh y na; tuy

for a full further period of

nhin, tng thi hn bo hnh trong bt c

warranty; however, the total

trng hp no cng khng c vt qu 3

warranty period shall in no

nm.

case exceed three years.

Notice of Defects

Thng bo v Sai st

The Buyer shall notify the

Ngi Mua s thng bo cho Ngi Bn v

Seller

of

defects

without

nhng sai st m khng c tr hon qu mc.

undue delay.
1
37

Making Good of Defects

Sa cha sai st

The Seller shall make

Ngi Bn s sa cha sai st hay thit hi

good of the defect or damage

ngay khi c th thc hin c v phi t chu

as soon as practicable and at

mi chi ph.

his own cost.

1

Defects Liability Period

Thi hn trch nhim php l v sai st

39
41

The

Defects

Liability

Period shall be a period of six

months.

Thi hn trch nhim php l v sai st l 6

thng.
Nu bt c li no xy ra trong khong thi

If any defect occurs during

gian trn, Ngi Mua phi ngay lp tc thng

the Defects Liability Period,

bo cho Ngi Bn bng vn bn v nguyn

the

trng ca sai st .

Buyer

shall

forthwith

inform the Seller stating in

writing the nature of the
defect.
The

li trong thi gian nhanh nht c th v phi

thng bo li pht sinh do nguyn liu km

Seller

shall

be

responsible for making good

with all possible speed any
defect so notified which arises
from

Ngi Bn phi c trch nhim sa cha

defective

materials,

workmanship or design.
The provisions of this

phm cht, do tay ngh hay do li thit k.

Cc iu khon ny c p dng cho bt
c hng ha no c sa cha, thay th hay
lm cho tt hn bi ngi Bn, nhng khng
phi m rng thi hn bo hnh sai st nhiu
hn 12 thng k t ngy bt u thi hn theo
nh hp ng quy nh.

clause shall apply to any

Goods repaired, replaced or
otherwise made good by the
Seller, but not so as to extend
the Defects Liability Period
for more than twelve months
from the commencement date
of original defets liability
period.

42

Table 9 (page 143):

Trang

Cu gc

143

Cu dch

In the event of a defect coming to Trong trng hp sai st c tm thy v

light and being notified to the thng bo n ngi bn, ngi bn ngay
Seller, the Seller shall, without lp tc phi bi thng mi ri ro v chi ph,
undue dalay, make good the sau t do la chn 1 trong nhng cch
defect at his own risk and cost sau:
and at his discretion in one of the
following ways:
a. Repair the defective item;
b. Allow the Buyer or a third
party appointed by the Buyer to
repair the defective item at the
sellers cost;
c. Replace the defective item;
d. Reduce the contract price;
e. Allow the Buyer to return the
defective goods and refund all

a. Sa cha hng ha khim khuyt;

b. Cho php ngi mua hoc bn th ba
c ngi mua y quyn sa cha hng
ha khim khuyt v tnh chi ph cho ngi
bn;
c. Thay th hng khim khuyt;
d. Gim gi hp ng;
e. Cho php ngi mua gi tr hng khim
khuyt v hon ton b s tin hng

sums paid for the goods.

Table 10 (page 143)
Trang
143

Cu gc

Cu dch

In the event of a defect coming to Trng hp sai st c tm thy v thng

light and being notified to the Seller, bo n ngi bn, ngi bn phi ngay lp
the Seller shall, at his discretion and tc la chn phng n sa cha hoc thay
without undue dalay, repair or replace th hng ha sai st, chu mi ri ro v chi
the defective item at his own risk and ph.
cost.
43

Table 11 (page 146)

Trang
146

Cu gc

Cu dch

The duty of the Seller to repair or Ngha v sa cha hoc thay th hng ha
replace defective items is the Sellers khim khuyt ca ngi bn l ngha v duy
only duty under this contract or nht ca ngi bn c trong hp ng; mt
otherwise, and the Seller shall not be khc, ngi bn s khng phi bi thng
liable to compensate the Buyer for any cho ngi mua bt c tn tht no pht sinh
loss of use of any works beloing to the khi ngi mua t sa cha (d ton b hay
Buyer (whether complete or partial) or b phn), hoc bt c s thm ht li nhun
for any loss of any profit or for any no, bt c thit hi gin tip hay thit hi v
direct or consequential damage that sau ca ngi mua.
may be suffered by the Buyer.

Table 12 (page 146)

Trang
146

Cu gc

Cu dch

The Seller shall indemnify and hold Ngi bn phi n b v chu nhng thit
harmless the Buyer against any los of hi hay tn tht gy ra cho ngi mua, d
damge whether direct of indirect l trc tip hay gin tip, l kt qu ca hng
suffered by the Buyer as the result of ha b sai st hay thiu ht do ngi bn vn
44

defective or faulty goods delivered by chuyn.

the Seller.

Original (Page)
This contract, and all questions relating to its
validity , interpretation or performance shall be
governed by the law of The Republic of
Verbena
P154
This contract, and all questions relating to its
validity , interpretation or performance shall be
governed by the law of The Republic of
Verbena. This contract shall not include,
incorporate or be subject to the provisions of
the United Nations Convention on Contracts
for the International Sale of Goods
P155
Cancellation If a merchant sells goods of such
poor quality that the number of claims under
the warranty is clearly excessive, then the
Buyer may return all the delivered goods to the
Seller and receive back all sums of money paid
for the goods; on cancellation, only those
provisions of the contract concerning litigation,
arbitration, and/or the payment of damages
shall survive
P156
The Seller reserves the right to withdraw this
offer at any time before acceptance by the
Buyer
P161

Cu dch (Trang)
Hp ng ny, cng nh nhng vn lin quan
ti hiu lc, cch din gii v vic thc hin hp
ng c iu chnh theo lut ca nc Cng ha
Verbena
Trang 154
Hp ng ny, cng nh nhng vn lin quan
ti hiu lc, cch din gii v vic thc hin hp
ng c iu chnh theo lut ca nc Cng ha
Verbena. Hp ng ny khng bao gm, lin quan
hay s dng cc iu khon ca Cng c lin
hp quc v hp ng mua bn hng ha quc t
lm tiu chun.
Trang 155
Hy hp ng
Khi Bn bn giao hng qu km phm cht n
mc vt qu hn mc bo hnh th Bn mua
c quyn tr li ton b hng nhn t Bn
bn v i li tt c cc khon tr cho hng ha;
khi hy, ch nhng iu khon trong hp ng
cp ti vic kin ra ta n, kin ra trng ti,
v/hoc bi thng thit hi l cn hiu lc.
Trang 156
Bn bn c quyn rt li li cho hng bt c lc
no trc khi Bn mua ng mua hng.
Trang 161
45

This order is subject to the Buyers General

Conditions of Purchase, as printed on the
reverse
P161
This order is subject to the Sellers General
Conditions of Sale, as printed on the reverse
P161
Partial Invalidity
If any provision or provisions of this contract
are invalid or become invalid, then this shall
have no effect on the remaining provisions.
Further, the parties agree to replace any invalid
provision with a new, valid provision having,
as far as possible, the same intent as the
provision replaced
P163
Severability
In the event that any provision of this
Agreement is held to be illegal or otherwise
unenforceable, such provision shall be deemed
to have been deleted from this Agreement,
while the remaining provisions of this
Agreement shall be unaffected and shall
continue in full force and effect
P166
Partial Invalidity
If any provision or provisions of this contract
are invalid or become invalid, this has no effect
on the validity of the remaining provisions.
If any provision of this contract is invalid or
become invalid, the parties have the duty to
replace the invalid provision with a new valid
provision that fulfills the original intent of the
invalid provision
P166
Will you please change our order to 131
cartons of pineapple juice, 110 cartons of
pineapple chucks, and 200 cartons of pineapple
rings. According to the price list you sent us,
the total invoice price is now exactly the same
as the original price. Please confirm the new
agreement immediately
P167

n t hng ny da trn iu khon chung v

Mua hng ca bn mua, c in mt sau ca n
hng ny.
Trang 161
n t hng ny da trn Nhng iu khon
chung v bn hng ca Bn bn, c in mt sau
ca n hng ny.
Trang 161
Ht hiu lc mt phn
Khi mt hoc mt vi iu khon trong Hp ng
v hiu hoc tr nn v hiu, th chng khng nh
hng g n cc iu khon cn li. Ngoi ra, cc
bn ng thay th khon v hiu bng iu
khon mi c hiu lc th iu khon mi ny c
ngha tng ng vi iu khon c thay th.
Trang 163
Ct gim iu khon
Nu nh bt c iu khon no ca Hip nh ny
c hiu l bt hp php hoc bt kh thi, th
iu khon s b xa b, cn cc iu khon
khc vn c hiu lc hon ton v khng h b nh
hng.

Trang 166
Ht hiu lc mt phn
Nu mt hoc mt vi iu khon trong Hp ng
v hiu hoc tr nn v hiu, th chng khng nh
hng g n cc iu khon cn li.
Nu bt k iu khon no ca Hp ng ny v
hiu hoc tr nn v hiu, cc bn phi c trch
nhim thay th iu khon v hiu bng mt iu
khon mi, c hiu lc; m bo nguyn vn
ngha ban u ca iu khon v hiu m n thay
th.
Trang 166
Chng ti mun thay i n t hng thnh 131
thng cc-tng nc da p, 110 thng cc-tng
bnh da v 200 thng cc-tng da khoanh. Theo
nh bng gi qu cng ty gi th tng gi tr ca
n hng hin ti ng bng gi tr n hng c.
Knh mong qu cng ty xem xt v xc nhn n
hng mi ngay lp tc.
46

We hereby confirm your change of order. We

shall now sent 131 cartons of pineapple juice,
110 cartons of pineapple chucks, and 200
cartons of pineapple rings. There is no change
in the price
P167
Entire Agreement
This Contract constitutes the entire agreement
and understanding between the parties. There
are no agreements, agreements, conditions,
reservations or representations, oral or written,
that are not embodied in this contract or that
have not been superseded by this contract
P170
This Procurement Contract
between
The Styropak Company of Nonamia
and
Verbena Packaging Ltd. Of Verbena
Witnesseth that
Whereas the parties have for many years
successfully traded together
And whereas Styropak has recently developed
biodegradable Styrofoam packaging
The parties hereby agree
P170

Chng ti xc nhn vic thay i n hng ca

qu cng ty. Chng ti s gi ngay 131 thng cctng nc da, 110 thng cc-tng bnh da v
200 thng cc-tng da khoanh. Gi c khng c
g thay i.
Trang 167
Tha thun y
Bn hp ng ny cu thnh ton b tha thun
gia cc bn. Khng c tha thun, iu kin, vic
bo lu hay i din, bng ming hoc bng vn
bn, l khng c cp n hoc b loi b
trong bn hp ng ny.
Trang 170
Bn Hp ng gii thiu ny c lp gia:
Cng ty Styropak Nonamia v Cng ty TNHH
ng gi Verbena
Xc nhn rng:
V cc bn c giao thng tt p trong nhiu
nm
V bi v Styropak gn y pht trin cng
ngh ng gi sn phm Styrofoam bng vt liu
c th tiu hy c
Cc bn, do , thng nht rng
Trang 170

Whereas the parties have successfully

cooperated in a number of projects in the
Republic of Verbena during the last ten years;
Whereas the Supplier has wide experience in
supply of electronic products for use in tropical
conditions;
Whereas the parties concluded on 28 May
1995 a Memorandum of Understanding and
intent to develop products for Verbena;

V cc bn c s hp tc tt p trong rt nhiu
d n ti nc Cng ha Verbena 10 nm qua;

Whereas the Supplier has developed and

patented an electronic relay under the
registered trade name Hair Trigger;
Whereas both parties are interested in
introducing this new technology into the East
Asian region;
Whereas the Purchaser wishes to incorporate

V Bn bn pht trin v c cp bng sng

ch cho thit b in t rle di tn ng k Hair
Trigger;

V Bn bn c nhiu kinh nghim trong vic

cung cp cc sn phm in t dng trong iu
kin kh hu nhit i;
V cc bn k kt Bn ghi nh v Hp tc v s
pht trin sn phm ca Verbana ngy 28 thng 5
nm 1995;

V c hai bn u quan tm n vic gii thiu

cng ngh mi ny ti vng ng ;
47

the latest relay manufacturing technology in

its own products;
And whereas the government of the Republic
Of Verbena actively supports the introduction
of pioneer technology
It is hereby agreed that
P171
Contract Documents
All contract documents and the clauses of this
contract shall be read, if possible, so as to be
consistent. In the event of conflict, the order of
precedence this agreement is as follow :
1. Any alterations typed on the face of the
printed Purchase Agreement
2. The printed text of the Purchase
Agreement itself
3. Specifications
4. Statement of Work
5. Manufacturing Drawings
6. The Buyers Special Conditions of
Purchase
7. The Buyers General Conditions of
Purchase
P172
P.S By the way, we assume that Christmas and
Easter are holidays in Esperanza. And they?
The reply
No. We are a Moslem country so we dont
celebrate Christmas or Easter. But theres no
reason why your consultants shouldnt have
those day off.
An exchange of notes like this has no validity
once the contract is signed : a formal definition
is the best way of clarifying what exactly the
two sides have agreed :
In this contract holiday shall mean all legal
holidays in Esperanza, and in addition, 24th and
25th December, Good Friday, Easter Saturday,
and Easter Sunday
P173
Definitions
In this contract the words below have the

V Bn mua mong mun c tch hp sn phm

rle mi nht dng cho vic ch to sn phm k
thut vo cc sn phm ca h;
V v chnh ph nc Cng ha Verbena ng h v
vic ra mt cc sn phm ki thut i tin phong
V th, ti y cc bn thng nht rng
Trang 171
Cc chng t lin quan
Mi chng t lin quan v cc iu khon ca hp
ng ny phi c xem xt c th nht qun
vi nhau. Trong trng hp c tranh chp, th t
u tin xem xt gii quyt s l:
1. Bt c s sa i no trn b mt ca bn
in H mua hng.
2.
3.
4.
5.
6.

Bn thn cu ch ca H mua hng

Nhng ch dn trong H
Bo co cng vic
Cc bn v sn xut
Nhng iu kin mua hng c bit ca
ngi mua
7. Nhng iu kin chung v mua hng ca
ngi mua
Trang 172
Nhn y, chng ti cng cho rng ti Esperanza,
L Ging sinh v L Phc sinh c tnh l ngy
ngh. C phi vy khng?
Tr li:
Khng. Chng ti l t nc Hi Gio nn chng
ti khng k nim L Ging sinh hay Phc sinh.
Tuy nhin, chng c l do g chuyn vin ca
cc ngi khng c ngh vo nhng ngy ny.
S trao i v ch thch nh trn y khng c gi
tr mt khi hp ng c k: Mt nh ngha
chnh thc l cch tt nht xc nh chnh xc
iu m hai bn ng :
Trong H ny k ngh nn c hiu l tt c
nhng ngy ngh theo php lut ca Esperanza,
thm vo l ngy 24 v 25 thng Mi Hai, v
cc ngy th Su, th By, Ch Nht ca l Phc
sinh
Trang 173
nh ngha
Trong hp ng ny, nhng t ng di y, tr
48

meanings ascribed to them unless the context

otherwise clearly dictates :
2.1 Unless expressly modified by the parties,
FOB, CIF and other trade term have the
meanings and obligations ascribed to the in
Incoterms 1990, Publication 460 of the
International Chamber of Commerce, Paris.
2.2 Contract mean this Contract, its
preamble and appendices, as well as
documents expressly listed as Contract
documents or otherwise expressly mentioned
in this contract.
And so on
P173
Whereas Verbena Leather has a highly trained
workforce and the most modern leather
making machinery;
And whereas Verbena Leather has wide
experience is supplying products to all parts of
the world;
And whereas Verbena Leather is fully familiar
with regulations regarding import of leather
goods into the United States;
The parties hereby agree
P174

phi c ch gii r rng no khc, c hiu l:

2.1 Tr phi c s tha thun r rng gia cc bn,
FOB, CIF v cc iu khon thng mi khc
s c ngha nh trong Incoterms 1990, n bn s
460 ca phng thng mi quc t, Paris.
2.2 Khi nim hp ng bao gm thn hp
ng ny, phn m u v ch gii lin quan, cng
nh nhng chng t c lit k l chng t hp
ng hoc c dn chiu r rng trong hp ng,
.v..v
Trang 173
Bi v Verbena Leather c i ng lao ng tay
ngh cao v my mc ch to thuc da hin i
nht;
V bi v Verbena Leather c nhiu kinh nghim
trong vic cung cp sn phm thuc da trn khp
th gii;
V bi v Verbena Leather hon ton thng tho
cc quy nh v nhp khu hng thuc da vo Hoa
K;

Cc bn do ng rng
Trang 174
Contract Documents mean collectively the
Cc chng t hp ng c hiu l ton b
completed Tender Documents with possible
nhng ti liu u thu v cc ph lc, bn Hp
supplements, the Contract Agreement, Tender
ng, bn v u thu, thng bo trng thu, cam
Drawing, the Notice of Award, the
kt thi hnh hp ng, bo lnh thanh ton tr
Performance Bond, the Guarantee for Advance trc, t mu bo lnh, bn sao hp ng bo
Payment, the Form of Retention Guarantee, the him cho bn th ba, giy y quyn v hp ng
Copy of Policy for Third Party Insurance, the
lin doanh (nu c) cng vi nhng ph lc km
Letter of Power of Attorney and the Joint
theo v bt k b sung, thay th n hng hay b
Venture Agreement (if any) with annexures and sung n hng (nu c).
appendices included therein and any additions,
supplemental, change orders and extra work
orders (if any)
P174
Trang 174
The Amaryllis Docklands and Harbor Supply
Cng ty TNHH Amaryllis Docklands v Harbor
Company Ltd., a company organized and
Supply, thnh lp v hot ng theo php lut
existing under the law of the Republic of
nc Cng ha Verbena, c tr s ti Port Mary,
Verbena, having offices in Port Mary, Verbena, Verbena, sau y gi l AMARYLLIS
hereinafter call AMARYLLIS
P177
Trang 177
49

The Amaryllis Docklands and Harbor Supply

Company Ltd., a company organized and
existing under the law of the Republic of
Verbena, having offices in Port Mary, Verbena,
hereinafter call SELLER
P177
Notices
Notices served by one party to the other under
the contract are valid only if sent by registered
mail and signed.
Such notices are to be sent to following
address:
Seller : [ADDRESS]
Buyer : [ADDRESS]
P178
Assignment of Rights, Delegation of Duties
The rights under this Contract may not be
assigned nor the duties delegated by either
party without the prior written consent of the
other party
P178

Cng ty TNHH Amaryllis Docklands v Harbor

Supply, thnh lp v hot ng theo php lut
nc Cng ha Verbena, c tr s ti Port Mary,
Verbena, sau y gi l BN BN
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Thng bo
Thng bo a ra bi mt bn cho bn kia theo
hp ng ny c gi tr ch khi c k v gi
bng th m bo.
Thng bo s c gi theo a ch di y:
Ngi bn: [A CH]
Ngi mua: [A CH]
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Trch nhim v quyn hn ca cc bn

Quyn li v ngha v ca cc bn trong hp ng

ny s khng c ch nh hoc u quyn m
khng c s ng thun nht tr bng vn bn ca
bn cn li.
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Dear Sir,
Tha qu cng ty,
We have pleasure in informing you that we are Chng ti ly lm vinh d thng bo cho qu cng
transferring the right to take delivery of the
ty rng chng ti s u quyn vic giao l hng
latest consignment of goods to one of our
sp ti y cho mt trong s cc i l ca chng
subsidiaries, Allpart Michigan. Delivery details ti, Allpart Michigan. Chi tit ca vic giao hng
will be sent to you in the next few days. Futher, s c gi ti qu cng ty trong vi ngy ti.
we are transferring the duty to pay the contract Ngoi ra, chng ti s u thc ngha v thanh ton
price to our subsidiary in Nonamia Fudge and
gi hp ng cho i l ca chng ti Nonamia,
Gurgle. If you will send your invoice to them,
Fudge and Gurgle. Nu qu cng ty gi ho n
we are confident that you will receive payment cho h, chng ti tin rng qu cng ty s nhn
from them in due time.
c tin thanh ton ng hn.
Yours faithfully
Knh th.
P179
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Termination for convenience of the Buyer
Vic chm dt hp ng v quyn li ca Bn mua
The delivery of Goods under this contract may Theo hp ng ny, Bn mua c th chm dt ton
be terminated by the Buyer in accordance with b hoc mt phn ngha v giao hng bt c khi
this clause in whole, or in part, whenever the
no Bn mua cho rng vic chm dt ny l c li
Buyer shall determine that such termination is
nht. Vic chm dt ny phi c gi cho Bn
in his best interest. Any such termination shall bn thng bo ng thi ch r phm vi v thi
be effected by delivery to the Seller of a Notice im vic chm dt c hiu lc.
of Termination specifying the extent to which
supply of Goods under the contract is
terminated, and the date upon which such
termination becomes effective
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P183
In the event of termination for whatever
reason, the Seller shall be entitled to receive
full payment for all goods and services
delivered by the Seller at the date of
termination
P183
Termination for Default

Trang 183
Trong trng hp chm dt hp ng v bt c l
do no, Bn bn c quyn nhn ton b s tin
thanh ton cho tt c hng ho v dch v Bn bn
thc hin trong ngy chm dt hp ng.
Trang 183
V hiu hp ng

The Buyer may be written notice of default to

the Seller, terminate the whole or any part of
this Contract in any one of the following
circumstances;
(i)
If the Seller fails to make delivery
of the Good within the time
specified herein;
(ii)
If the Seller fails to perform any of
the other provisions of this contract,
or so fails to make progress as to
endanger performance of this
contract in accordance with its
terms, and in either of these two
circumstances does not cure such
failure within a period of 10 days
P184

Bn mua c th thng bo vic v hiu hp ng

bng vn bn ti Bn bn, chm dt ton b hoc
mt phn ca hp ng ny trong bt k trng
hp no di y:

Language

Ngn ng:

This agreement is written in English and in

Swahili. In the event of a discrepancy, the
English language version shall prevail
P185

Tha thun ny c vit bng ting Anh v ting

Swahili. Trong trng hp c s khc bit, vn
bn bng ting Anh s c p dng.

Language

Ngn ng:

This agreement is made in both Swahili and

English. The Swahili and English versions
have equal legal status

Tha thun ny c vit bng c ting Swahili v

ting Anh. Cc vn bn ting Swahili v ting Anh
c t cch php l nh nhau.

P185
This contract and the contract documents are
written in English. Any translation into another
language is for information only and has no
legal status.

(i)

Nu Bn bn khng thc hin giao

hng trong thi gian quy nh;

(ii)

Nu Bn bn khng thc hin bt k

iu khon no khc ca hp ng,
hoc khng t c tin hp ng,
gy nguy hi n vic thc hin cc
iu kin ca hp ng; v trong c hai
trng hp nu khng khc phc sai st
trong thi hn 10 ngy.

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Trang 185
Hp ng ny v cc chng t ca hp ng u
c vit bng ting Anh. Bt k bn dch sang
ngn ng khc ch mang tnh thng tin ch dn v
khng c t cch php l.
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Correspondence between the parties shall be

conducted exclusively in English.

Th tn gia cc bn ch s dng ngn ng duy

nht l ting Anh.

The language of all designs, drawings, plans,

specifications, and all other documentation
provided by the Seller under this contract shall
be English; however, the training materials and
the maintenance manuals specified in Article
11 shall be supplied in both an English
language version and an Arabic version. In the
event of discrepancy between the two version,
the English language version shall prevail
P186

Ngn ng ca tt c cc thit k, bn v, k hoch,

ch dn, v tt c cc ti liu c cung cp bi
ngi bn theo hp ng ny c vit bng ting
Anh; tuy nhin, cc ti liu o to v hng dn
bo tr c quy nh ti iu 11 c cung cp c
hai phin bn ting Anh v ting Rp. Trong
trng hp c s khc nhau gia hai phin bn,
phin bn ting Anh s c p dng.

Copies of the Contract

Two copies of this contract, one in English and
one in Swahili, have been signed by both
parties. Each party retains one copy in each
language
P186
Revolution of Disputes
The Buyer and the Seller shall make every
effort to resolve amicably by direct, informal
negotiation any disagreement or dispute arising
between them under or in connection with the
contract
P190
Procedure for amicable settlement shall be as
follow:
a. The parties shall agree a date and place
for amicable settlement meeting;
b. Attending the meeting shall be one
executive representing each party and
one lawyer representing each party;
c. The lawyer shall not be allowed to
speak at the meeting;
d. The meeting shall take place in three
sessions. In the first session, each party
shall state its position on the subject of
the disagreement. In the second session
the parties shall suggest ways of
resolving the disagreement. In the third
session the parties shall attempt finally
to resolve the disagreement.
In the event that the parties fail to resolve their

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Bn sao ca hp ng
Hai bn sao ca hp ng ny, mt ting Anh v
mt ting Swahili, c k bi c hai bn. Mi
bn gi mt bn vi ngn ng tng ng.
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Tranh chp
Bn mua v Bn bn s thc hin mi n lc
gii quyt cc tranh chp ny sinh gia hai bn
trong hoc lin quan n hp ng bng ha gii
thng qua m phn trc tip v thn thin.
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Th tc ha gii c thc hin nh sau:
a. Cc bn thng nht thi gian v a im
cho cuc hp ha gii;
b. Tham gia cuc hp gm 1 ngi i din
v 1 lut s ca mi bn;
c. Lut s khng c quyn pht ngn ti
cuc hp;
d. Cuc hp din ra trong ba phin. Phin
u tin, mi bn a ra quan im ca
ca mnh v vn bt ng. Trong phin
th hai, cc bn s xut cc cch gii
quyt vn . Phin th ba, cc bn s
thc hin n lc cui cng nhm gii
quyt bt ng.
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disagreement amicably, they shall proceed to

arbitration on the terms specified here below
P190

Settlement of Disputes
All disputes arising in connection with the
present contract shall be finally settled under
the Rule of Conciliation and Arbitration of the
International Chamber of Commerce by one or
more arbitrators appointed in accordance with
the said Rules
P191
The number of arbitrators shall be three. The
place of settlement of dispute shall be Verbena
City. The language used by the court in the
settlement of dispute shall be English. In the
event of arbitration, each party shall bear its
own costs
P192
Both parties agree to accept the decision of the
court of arbitration as final and binding on
them both, to the exclusion of all other
remedies
P192

Trong trng hp cc bn khng th gii quyt bt

ng bng ha gii, trng ti s c mi xt x
da trn nhng iu khon di y.
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Gii quyt tranh chp
Tt c nhng tranh chp ny sinh lin quan n
hp ng hin ti c phn quyt cui cng da
trn Lut Ha gii v Xt x ca Phng Thng
mi Quc t bi mt hoc cc trng ti c ch
nh v ph hp vi quy nh ca lut ny.
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S lng trng ti l ba ngi. a im xt x l
Thnh ph Verbena. Ngn ng c s dng ti
phin ta gii quyt tranh chp l ting Anh. Trong
trng hp nh trng ti, mi bn phi chu khon
ph ca mnh.
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C hai bn ng rng quyt nh ca hi ng
trng ti l quyt nh cui cng v c hiu lc vi
c hai bn, khng k n cc n lc gii quyt
khc.
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