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A Legal Economic Analysis Of Remedial System For Breach Of Contract Under CISG

Posted on:2011-02-10Degree:MasterType:Thesis
Country:ChinaCandidate:Q X XiaoFull Text:PDF
GTID:2166360305481479Subject:International Law
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The United Nations Convention on Contracts of International Sale of Goods(referred to as CISG), as the great result of Unity International Sale of Goods Act, is the product of coordinated between the civil law countries and the common law countries, which has a considerable universality in the field of international trade in goods. CISG also plays an important role in promoting the development of international trade in goods."No relief is tantamount to no rights". Remedies for breach of contract are not only the strength of maintaining the successful completion of contract and the guarantee of parties who achieve their contractual rights, but also is the basis of the legal system for existence and development. The paper is systematically debated the major relief systems of declaring the contract avoided, price reduction, specific performance and damages in the CISG. China is a party of the Convention, and her level of openness will be higher in the context of economic globalization. For the timely and adequately legal remedies, it is very great significant to comprehensively and profoundly grasp the breach of contract relief system in CISG in the field of international trade in goods.Justice and order is an important objective that breach of contract law is in pursuit of. However, legal as an important mechanism for resource allocation, especially in the international commercial practice, its economic goals should not be overlooked. Combining with legal analysis, the paper will apply economic theory to description the contract avoided, price reduction, specific performance and damages of CISG from legal economics perspective.By theoretical analysis, case analysis and comparative research methods, the paper is about 30 000 words, which consists of five parts, except the introduction and conclusion.The first part"The United Nations Convention on Contracts for International Sales of Goods and the breach of contract relief system". This section firstly explains the basis connotation of breach of contract and remedies for breach of contract. Also it focuses on the value of remedies for breach of contract, including the value of right, justice and economics. Finally, it gives a concise analysis of remedies for breach of contract relief system in CISG, primarily including declare the contract avoided, price reduction, specific performance, damages and so on.The second part"the legal economic analysis of declaring the contract avoided in CISG". This section compares the differences between CISG and the national law in declaring the contract avoided, contract revocation and termination of contract. It points out that we should base on internationality and specificity of CISG to understand the law system of declaring the contract avoided. It also discusses the components and legal effect of declaring the contract avoided. In the legal economic analysis, it mainly combines efficiency and transaction cost to analysis the system of declaring the contract avoided. It considers that because of the ambiguity of criteria in judging a fundamental breach of contract, the right of non-defaulting party to declare the contract voided is filled with uncertainty and risk.The third part"the legal economic analysis of price reduction in CISG". This part focuses on the history of origin of the reduction, the applicable conditions and calculation standard. The economic role of CISG's price reduction is that it can follow the principle of fixing price according to quality and the principle of equivalent exchange and construct a re-pricing mechanism so that it can maintain the relationship between buyers and sellers in transactions and facilitate transactions, even achieve realization of an alternative transaction under certain conditions.The fourth part"the legal economic analysis of specific performance in CISG."This part mainly introduces the differences of provisions and idea between the civil law and common law on the system of specific performance. It also focuses on the applicable provisions and limitations of the system of CISG's specific performance. The system of CISG's specific performance is the result of compromise between the civil law countries and common law countries. This section mainly carries out the legal economic analysis for specific performance from the view of the cost-benefit and co-distribution of surplus.The fifth part"the legal economic analysis of damages in CISG". This section discusses damages claims, criterion of liability, the scope of damages, foreseeable rule, mitigation rule and exemption rule in the system of CISG's damages. The part also discusses the economic meanings of complete damages and foreseeable rule from the perspective of legal economics. Cmplete damages reflect the principles of equal status and equivalent exchange between the parties, but which may give rise to improper incentives of excessive trust investment. The foreseeable rule is necessary regulation for complete damages rule.
Keywords/Search Tags:United Nations Convention on Contracts of International Sales of Goods, Remedy for Breach of Contract, Declare the Contract Avoided, Reduce the Price, Specific Performance, Damages
PDF Full Text Request
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