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§ I Conditions (maintenance) of the international contract (a duty of the parties)

It is represented, that the international contract should include following imperative and facultative signs.

To the imperative signs necessarily reflected in each vneshyonetorgovom contract, the following concerns.

The first and major sign is the non-resident ost one of subjects of the foreign trade legal relation — a various state accessory of the exporter and the importer or a finding in various goyosudarstvah their commercial enterprises through which go shipment, priyoemka and payment of the export goods (presence in subject structure vneshneyotorgovogo legal relations foreign or equal to it eleyomenta).

Foreign participants of the foreign trade contract concern inoyostrannye a linden — the subjects of law who are legalised in established zakoyonodatelstvom of the Russian Federation an order and forms in quality uchastniyokov of economic activities and carrying out it in territory of Rosyosijsky Federation according to the current legislation:

The organisations, which civil legal personality opredeljayoetsja by the right of the foreign state in which they are founded or in which territory they carry out the basic part authorised dejayotelnosti.

The personal law of the legal person defines: 1) the status of the organisation as the legal person; 2) the organisation-legal form juriyodicheskogo persons; 3) requirements to the name of the legal person;

4) questions of creation, reorganisation and liquidation of the legal person, including assignment questions; 5) the legal capacity maintenance juridiyocheskogo persons; 6) an order of acquisition by the legal body of the civil rights and assumptions of civil duties; 7) internal otnosheyonija, including relations of the legal person with its participants; 8) spoyosobnost the legal person to answer under the obligations.

The legal body cannot refer to restriction of powers of its body or the representative on the fulfilment of the transaction unknown to the right strayony in which body or the representative of the legal person has made the transaction, except for cases when it will be proved, that other party in the transaction knew or obviously should know about the specified restriction [1]. According to item 1202 GK the Russian Federation (ch 3) is considered the personal law of the legal person the country right where the legal body is founded.

The personal law of the foreign organisation which are not juridicheyoskim the person by the foreign right, it is considered the country right where this organiyozatsija is founded

To activity of such organisation if applicable is rossijyoskoe the right, rules of the present Code are accordingly applied, kotoyoroe regulates activity of legal bodies if other does not follow from zayokona, other legal acts or a relation being (item 1203 GK the Russian Federation);

Physical persons — foreign subjects, civil pravoyosubektnost which it is defined by the right of the foreign state, citizens or which citizens they are. According to item 1195 GK the Russian Federation (ch. 3) the personal law of the physical person considers the country right, grazhyodanstvo which this person has. If the person along with Russian grazhyodanstvom has also foreign citizenship, its personal law is the Russian right. If the foreign subject takes place a residence in the Russian Federation, its personal law is the Russian right.

At presence at the person of several foreign grazhdanstv the personal law schitayoetsja the country right in which this person has residences. Personal zakoyonom the right of the country which have granted it a refuge is considered the refugee;

The stateless persons, which civil capacity opyoredeljaete by the right of the foreign state in which these persons have poyostojannoe residences. The personal law of the stateless person considers the country right in which this person takes place a residence.

The foreign states, their adyoministrativno-territorial units and the state bodies also are equated to foreign participants of foreign trade activities acting in economic circulation in territory RosYOsii as subjects of the civil rights; subyoekty foreign federative states; the international organisations.

nerezidentnost one of participants of the foreign trade contract zayokrepljaetsja in the prologue of the contract defining the parties of the contract.

The second imperative sign of the foreign trade contract — ispolzoyovanie international trading and other external economic customs at modelling of the maintenance of the transaction.

Third sign is reflected in section of the foreign trade contract "Currency clause" — use possibility at osushchestyovlenii calculations on export-import transactions of currencies foreign goyosudarstv or an estimation in these currencies of the obligations arising from the contract.

As facultative signs of the foreign trade contract serve sleyodujushchie to feature of the external economic trade relations which legal form is the foreign trade contract:

— The signs reflecting transboundary character vneshnetorgoyovyh of operations (the fact of crossing by the goods of customs border of the Russian Federation), voznikyonovenie abroad Russia the property right or other title on imuyoshchestvo, showing object of the import transaction; execution out of the customs territory of the Russian Federation of the obligation which have arisen from the contract, or its element;

— Financially-legal sign — reflected in section vneshneyotorgovogo the contract "Applicable law" an application admissibility inoyostrannogo international law to regulation of relations, voznikajuyoshchih from the contract;

— Remedially-legal sign — reference possibility stoyoron contracts to international jurisdiction means at protection of the nayorushennyh the rights and interests protected by the law (contract section «ArbitYOrazhnaja the reservation»).

International treaty subject are first of all mateyorialnye things (movable or immovable), characterised individuyoalnymi or generic characteristics. Them can be and things not existing at the moment of making deal, i.e. future — item 2 of item 455 GK the Russian Federation, FranYOtsija — item 1130 FGK; England — item 5 of the law on sale of the goods; the USA — ITEM 2-105 ETK; the Viennese convention — item 3 etc.).

Many countries a contract subject admit also nemayoterialnye objects («incorporeal property»): objects industrial and copyrights, securities and negotiable documents (for example, item 454 GK the Russian Federation) etc.

Definition of a subject of the transaction assumes not only it naimenovayonie, but also the characteristic of its property with quantity instructions. Potrebitelesky properties of the goods are defined by its transfer specific osoyobennostej by the goods description, or instructions on applied the sample, or the reference to the operating standard, or an establishment of characteristic lines in the specification etc.

The quantity of the goods is defined or is direct — number of those or other units of measure (in pieces, weight units and so forth), or indirectly — ukayozaniem for a way of an establishment (for example, «purchase and sale of all finished goods»). Concerning some goods, for example oil, grain and other, the instructions of approximate quantity by word addition "nearby" are supposed, and the admissible size of a deviation varies in predeyolah from 1,5 to 10 %.

The goods price is expressed in money — currency of this or that country.

The goods price can be defined or definable, that is ustayonavlivatsja is direct — in the form of the flat fee or indirectly — by a condition about an order of its calculation by the payment moment. Other way is characterised by instructions in the contract on the help prices published in periodicals (price-lists, bulletins and so forth), exchange quotations in world trade centres, the prices of auctions etc.

In the Anglo-American right at absence in the instructions contract on the price or a way of its establishment it is considered, that a condition about the price nevertheless vyyopolneno — the parties silently meant «the reasonable price» at the moment of goods delivery (England — item 2 of item 8 of the law on sale of the goods; the USA — item 2-305 ETK). The similar rule contains in st 55 Viennese conventions according to which in the absence of instructions concerning the price that which at the moment of making contract «was usually levied for such goods» is meant.

Nevertheless courts far not always resort to positions of given article in case of absence of the agreement of the parties about the price of the goods or a way of its definition. In particular when the parties have expressed intention to adjust in the future the price, but do not assume at the moment of the conclusion dogoyovora on any concrete price, its any order ustanovleyonija [2].

Laws do not contain positions about conformity of the price of cost of a thing. However, in Germany probably recognition of the contract void at obvious disproportion of mutual obligations (§ 139 GTU). In France ubytochyonost is the basis of contest of the validity of the contract only in some cases and for certain persons (item 1305,1306, 1308, 1657 FGK). In the Anglo-American right discrepancy of the obligation to the passer udovyoletvoreniju does not influence the contract validity.

Sale of the goods under the prices, much lower in comparison with averages market on the similar goods (the dumping prices), can lead to opening against the seller special administrative protseyodury investigations and to an establishment of sanctions. It is provided noryomami the national legislation: antimonopoly or antitrestovyoskogo (in the USA, Japan, Canada, etc.) or on struggle with restrictive hoyozjajstvennoj practice (in EUROPEAN ECONOMIC COMMUNITY member countries. The Scandinavian countries, Austria, etc.). Corresponding norms are available in the Roman contract on EUROPEAN ECONOMIC COMMUNITY (item 91 item 1) and in the General agreement under tariffs and trade — GATT (item VI)

In contracts quality of the goods is usually defined. It harakterizuyoetsja resulted data or a different way, for example instructions on «good average quality», or goods delivery «such is what», or «with all lacks» and so forth

In case of absence in the contract of instructions on quality the goods should be, according to the law, suitable for usual use or naznacheyonija, that is have average quality (France — item 1246 FGK; Germany — § 243 GGU; England — item 14 of the law on suitability for trade or sale proyodavaemogo the goods; the USA — item 2-314 ETK). In item 2 of item 35 of the Viennese convention the goods of the same description usually ispolzuegsja »are spoken about suitability of the goods« for those purposes, for which.

Instructions concern special ways of definition of quality on svojyostva the goods, specially guaranteed by the seller. Contractual guarantees are given more often concerning mashinno-technical oborudoyovanija. Guarantees of the general high technological level of a subject of purchase and sale when the seller guarantees «high quality izyogotovlenija and assemblages» concern them, conformity of a subject «to the higher achievements miroyovoj technicians and to the highest norms» etc. Other kind of quality assurances concerns terms of normal operation of the goods.

Rather extended in practice became also opposite tenyodentsija — inclusion in dogovory the conditions cancelling or reducing responsibility of the seller for delivery of the goods of inadequate quality. GoYOsudarstva have followed a way of an interdiction of such conditions. In the countries of their romano-German legal system qualify as misuse of right, and in the countries of the Anglo-American right - as «unjustified conditions».

Indispensable condition of the transaction of the purchase and sale issued vneshneyotorgovym by the contract, transition of the property right to the goods from the seller to the buyer is. It essentially distinguishes the contract mezhdunayorodnoj purchase and sale from other kinds of contracts in sphere vneshneekonomiyocheskoj activity. The purchase and sale contract in foreign trade, as well as in the country, in the conditions of contractual relations of subjects of the market vypolyonjaet three basic functions:

- Legally fixes relations between the parties, giving to them character of the obligations which performance is protected by the law;

- Defines an order, sequence and ways of fulfilment of actions of partners;

- Provides measures on maintenance of meeting commitment with the parties.

Contracts applied in foreign trade contain various usyolovija, characterising the goods serving by a subject of purchase and sale, opreyodeljajushchie commercial features of the transaction, the right and a duty of the parties, mutual obligations of the parties on the operations providing execution of the contract.

Delivery terms are established in article 33. They follow from treaty provisions: the goods or documents should be transferred in the specified term or through the certain period, during the specified term or the certain period of time for delivery or if date or the period vremeyoni are not specified, in «reasonable term». «Reasonable term» is not defined and depends on commercial customs, but at least it does not suppose the requirement immediate poyostavki.

Compulsory conditions;

The name of the parties of participants of the transaction;

Contract subject;

Quality and quantity;

Basic conditions of delivery;

The price;

Terms of payment;

Sanctions and claims (penalties and claims);

Legal addresses and signatures of the parties.

If one of the parties does not satisfy the conditions falling under points, "in", "g" or "d" other party has the right to terminate the contract and treyobovat the indemnification. Absence of the conditions which are meeting the requirements of points "and" and "z", testify that the contract is not concluded.

Additionals:

Delivery-acceptance of the goods;

The insurance;

Shipping documents;

Guarantees;

Packing and marks;

Circumstances of force majeure;

Arbitration;

Other conditions.

At infringement of one of the parties of additionals another stoyorona has not the right to terminate the transaction, and can demand execution konyotraktnyh obligations and collect penal actions, if it predusmotreyono contract conditions.

Taking into account features of production which is a subject of the contract can in addition it is entered sections about:

Conventional penalties;

Engineering specifications;

Inspection and tests;

Export licences;

Special and other conditions.

The most essential conditions of transactions defining the obligations and the rights of the parties, have received the name «basic conditions of contrast». Them ediyonoobraznoe the understanding, interpretation and application is provided with the help "Inkoterms". Basic conditions of the contract - the basic treaty provisions meyozhdunarodnoj the purchase and sale, providing accurate differentiation of obligations and risks of the partner.

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A source: UGRIN Timothy Stepanovich. the CONTRACT of the INTERNATIONAL PURCHASE AND SALE of the GOODS. The DISSERTATION on competition of a scientific degree of the master of laws. Moscow -. 2002

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