Hi everybody.

Thanks for today’s seminar. I especially appreciated your questions which I think were at a very good standard.

“the Machine Case” on page 70 in Lookofsky

The Seller provided information about a different machine with a better capacity which actually is a step further than showing a sample or a model (see Article 35 (2 c). However, due to the fact that the Buyer did not notify the Seller in reasonable time CISG remedies was not available for him. Lookofsky’s further discussion is about whether the Buyer can claim remedies under domestic law and the conclusion is that it is allowed in some countries and other not. The attitude that does not allow a claim for damages is called the pre-emption (excluding, non-cumul a French expression which means nonoverlapping, see footnote 59) Thus, you cannot claim damages under domestic law if you are not able to apply contractual remedies under CISG. On the contrary – the countries which allow the use of damages in such a situation have a “competition attitude”.
The student asked why the Buyer just couldn’t avoid the contract. Well, firstly he could not refer to non-conformity due to article 39. But the seller also loses the right to any remedial relief as to avoid and claim damages, see footnote 61 on page 68 and Lookofsky § 4.9page 78 in fine.
However it may also be considered that CISG is not concerned with validity such as fraud, duress, mistake or the unreasonableness of contract terms and that domestic law must resolve such issues, see Lookofsky p 21.

Italian Seller liable when the goods did not comply to  American public law

Another issue we discussed was whether it was fair that an Italian Seller of medical equipment was held liable for damages since the goods did not comply with American public law, see footnote 84 on page 74. If you google on Medical Marketing v Internazionale Medico Scentifica you will have access to the case and comments to it.
The issue was initially determined by an Arbitration tribunal, which decided that CISG was applicable. The seller argued that the Buyer was not entitled to avoid the contract under Article 49 since the breach was not fundamental under Article 25. In support of this the Seller referred to the New Zealand Mussels Case in which the German Federal Supreme Court made an interpretation of Article 35 in CISG and made the conclusion that under article 35 the Seller is normally not responsible for meeting the regulation in a Buyer’s country unless the Buyer stipulated that its own country requirements should be met.
However the German case also acknowledged tree exceptions of which the third exception was found applicable: if the seller knew or should have known about the regulations at issue. The Tribunal concluded that the Seller was aware of the federal regulations from prior sales in US and it was noted that the Seller had made prior statements to the Buyer that its equipment complies with all federal safety regulations in Buyer’s country.
The Medical Marketing Case has been described as “among the narrowest known to law” and there are many other Court cases that support that the compliance with specialized public law provisions of the Buyer’s country cannot be expected.

Other issues

A student asked me what the difference was between Articles12 and 96 in CISG – are both Articles necessary?

Article 12 says that a contract made in oral form   -which is possible under article 11, 29 or Part II – is not valid if not in writing if place of business is  in a State who has made a declaration under Article 96. This provision is mandatory.

Article 96 says that if a contract must be in writing under the laws of a contracting state  this State can make a declaration under Article 12 that contract etc has to be in writing.

Tus, Article 12 says that an oral contract is not valid when  a 96 declaration is made and Article 96 gives a contracting State the possibility to make a declaration provided the domestic law requires contract to be in written form.

If you have questions regarding the Seminar A please come forward.

Best regards
Inger

36 Responses to “Mälardalen University, Introduction To Commercial Law Seminar A”

  1. I have a little question regarding how to reference to the book, as an example:
    ”we can turn to §4.13 in Lookofsky ”

    do you want the page sides also when referring.

  2. Hi, me and my group have started to look at the topics that will be discussed in the written exam. However, we find the last four topics a bit diffuse.
    For example, ”Copy the missing pages and fasten the pages in 5 of the books”. Do you want us to search for relevant articles regarding this and discuss whether it’s allowed or not and possible sanctions, or what does the topic mean?

  3. Krister vill advise you on those topics since they concern intellectual poroperty issues. The other topics are about contract law.
    Inger

  4. You need to apoligise, say another statement that girls are entitled to have which job title they chose, and Tell the girls you didn’t thought so.

  5. Dear students! I am really surprised over this discussion. I don not understand what is going on. Krister has removed a rather aggressive comment that I have not read. What am I acccused of?
    During the todays lecture we were discussing von Colsen case. Two female workers applied for a job at a prison where only male individuals were internees. The case set the principle about indirect effect i.e. also horizontal between individuals. The directive could have direct vertical effect: State prison – Individual
    However, it did not include a sufficiently precise obligation. Thus, the MS had a discretion as to how give effect to the right which implied that the obligation under the directive , i.e. equal treatment, was not given direct effect. Thus, the two female applicants could not get work at the prisen BECAUSE THE DIRECTIVE WAS NOT CLEAR ENOGH AND DOMESTIC LAW DID NOT GIVE THEM THE RIGHT TO BE EMPLOYED. How could anyone draw the conclusion that ”the Girls are entitled to have which job title they chose” was something that came out of my mouth? I never said anything like that – it would never enter my mind to have such an opinion. It is just as unclear what you mean as the directive. I am sorry for the person that got upset about the lecture because it costed that person pain that was just out of the blue.
    Inger

  6. If you make a statement and say you are sorry

    • I have no problem to say that I am sorry and apologise but I think it would be fair if you tell me aplogise for what? What exactly do you allege that I shall apologise for?
      Of course it is calmer for everybody on the course that i say I am sorry and I apologise so I say that. But what is i t Worth if I don,t know what you are so upset about?
      Best regards
      Inger

  7. Hello Ingrid!

    This is not a question regarding the seminar but I’m wondering about article 31. (c). It says: If the seller is not bound to deliver the goods at any other particular place, his obligation to deliver consists: (if not (a) or (b)), in placing the goods at the buyer’s disposal at the place where the seller had his place of business at the time of the conclusion of the contract.

    But it does not feel like the goods are at the buyer’s disposal if the goods are at the place where the seller had his place of business. I thought we’ve been told that the last resort were to deliver the goods at the buyer’s place of business?

    • Hi Christopher,
      You make a distinction between sales that involve transport in the contract and sale of goods that are to be picked up by the buyer under 31b) and c). However, they are less common. In general the Place of delivery is specified in the contract. But if the Seller is going to deliver at Buyers Place of business that has to specified in the contract. 31 (c) says the goods are available for the Buyer at the Sellers Place of business. If S does not have a Place of business art 10 it is his habitual abode that applies. Under art 60 the buyer has an obligation to take delivery and the S has an obligation to preserve the goods § 4.14. I hope this helps clarifying the issue.
      Best regards
      Inger

  8. Hello Krister!

    I am wondering about the IP part in the written exam. Are we to to look at, and refer to, the national copyright acts or to the Berne convention, or both? I mean, in an international lawsuit for example, which would you use?

    I am thinking that one should use the national acts in the country the infringement of copyright is made and the berne convention isn’t used in lawsuits but implemented in the national acts, correct me if I’m wrong.

    • Hi

      You are right, in reality you use national law were the infringement is made.

      For the purpose of the exam it is ok to use Berne Convention and make a remark if The Convention allow different solutions.

      Best regards,
      Krister

  9. Hello Krister,

    both you and Inger have talked about summaries at the end of the course. I know we have 2 lectures for those summaries, but will you be writing a summary and posting it as well or is that just wishful thinking on my part? 🙂

  10. Hi everybody!

    If Adam moves to Poland. He needs to pay taxes i Poland. Even if he’s just there for a little while. There are taxes like tourist taxes, class of F tax. How do we work with them?

    • Hello, yes of course there are other taxes. I don’t knew what you mean by Tourist tax. Or F tax. But you have for example VAT tax. Byt I have told several times during the lecture today that we focus on employment income tax, this a tax you pay to the State for the income you earn which is paid by your employer. And it refers to Article 15 and therefore it is a private employment income and not an income from the State or a Municipality that is referred to in article 18 and 19.
      Inger

    • The coursce focus on employment income
      Inger

  11. Hi Ingrid!

    I am wondering about lectures 11-13, are there any complementary reading in the books, or just those mentioned in the powerpoint?

    • You ask for complementary Reading in EU Law. I have published a compendium regarding EU law for those lectures and in that compendium you have references to TC Hartleys book.
      Inger

  12. Hi!

    If person A has decided to move permantly to example Thailand, isn’t that informed to the authorites and competent authorities so they has that information. Can not the Thai competent authorities charge him on the first day?

  13. I you move out on a permant basis from Sweden to Thailand you report ”Utlyttning” and it will be registered with the Swedish Tax Agency.
    The compentens authority is a totally different body, see article 24 about the Mutal agreement procedure between the Contracting States.
    The question if the Thai Tax Agency (the competent authority does not levy tax only negotiate with the other State on the taxing right) is an issue for Thai Tax law. You have to investigate the domestic law in Thailand in order to answer if the levy tax from the first day. In Thai Tax law the concept unlimited tax liability differs from the Swedish law.
    Inger

  14. We only talk about if a person, person A, moves abroad to work? Not if he does anything else whatsoever?

    • Tax Law Individual targets tax consequences for an individual from an international perspective. You are right it is about a physical person who has an employment income from personal independent services – see article 15. It does not involved an income like directors’ fee, pensions, annuities and income from government services. The intention is that you shall learn to apply domestic law and set it in relation with a DTT.
      It is unclear to me what you mean by ”if he does anything else whatsoever”. What did you have in mind?
      Inger

  15. Inger, can you tell us one more time about a R-state?

    I think what you said about Dubai was incredible crazy and it’s sad that they treat people like that !

    • I do not know what you refer to. A lot of things go on in our world that makes you sad to think of.

      Regarding R-state it refers to the state that under a DTT is the State under article 4 is to be decided as the Residence state for a certain taxpayer. If any income from work exercised in another State we refer to that state as the S state, i,e, the Source state. OK?
      Inger

  16. Hi!

    About our written assignment exam, is the frontpage included in the 4 pages?

  17. About our written exam, are you supporting us to use a list of content? Do we have to include that? If we do have a list of content, is that included in the 4 pages?

  18. Hi!

    What are the reading instruction in the book for European Union Law lectures?

  19. You find it on the cource home page under EU law lecture nr 11. It is called PM EU law on the cource home page but on the first page it says EU law – Main topics, Reading Instructions to TC Hartley.
    Inger

  20. Hello Sir!

    Is it possible to explain why Sweden have longer copyright protection time compared to Berne Convention?

  21. Hi
    Inger promised to upload the answer for the tax law questions. Where are they?

    Best Regards

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