MODEL TEST OF INTERNATIONAL COMMERCIAL LAW Ⅰ. Filling Blanks (Fill the blanks with proper words, one word for each blank.)
1. Even if their places of business are both in non-contracting states, the parties to a contract for international sales of goods may make their contract be governed by CISG by a ___________________________ clause. 2. In determining the internationality of a contract, CISG takes into consideration only the _____________ of business of the parties to the contract. 3. A sufficiently definite proposal for concluding a contract addressed to one or more specific persons constitutes an _____________, and an agreement or assent to enter into such a contract constitutes an ________________. 4. A proposal other than one addressed to one or more specific persons is to be considered merely as an ________________ to make offers. 5. Under CISG, the remedies for the injured party are ________________. That is to say, the right to recover damages is not lost if he exercises any other available remedies. 6. The “F” in “FCA” is the abbreviation of _______________, and the “F” in “DAF” is the abbreviation of ___________________. 7. Under the term of ________, the buyer’s obligation is at its maximum, whereas the seller’s obligation is at its maximum under the term of _______________. 8. A bill of lading issued to a named consignee that is not negotiable is a _____________bill of lading, whereas a bill of lading that does not name a specific person as the consignee and thus is negotiable is an __________________ bill of lading. 9. The ___________________clause printed on the back-side of a bill of lading makes clear the applicable domestic laws or international conventions of the bill. 10. The clause in a bill of lading which purports to extend the defenses and liability limits of the carrier under the Hague Rules to his agents and servants is referred to as __________________Clause. 11. _________________ carrier means any person to whom the performance of the carriage of the goods, or of part of the carriage, has been entrusted by the carrier,
and includes any other person to whom such performance has been entrusted. 12. A _________________ charter party is a contract to hire an entire ship for a particular voyage and a ___________ charter party is a contract to hire an entire ship for a particular period of time. 13. Total loss can be either actual total loss or _______________ total loss, 14. In the carriage of goods at sea, the expense incurred or loss or damage deliberately inflicted in order to save the ship and its cargo is _________________ _______________.
Ⅱ. Multiple Choice (There are four possible answers to the following questions,
marked with A, B, C and D, from which you are to choose the best one and put its mark in the given blank.) 1. CISG apples to sales ________________________. A. on execution D. of electricity 2. ______________ applies to maritime and inland waterway transportation only. A. FAS A. it is mailed C. it is confirmed by the offeror B. CPT C. DAF D. DDP B. it reaches the offeror D. it is revoked by the offeree B. of stocks and shares C. of crude oil
3. An acceptance becomes effective when____________________.
4. Additional or different terms relating to ___________________ contained in an acceptance shall not be considered to alter the terms of the offer materially. A. the price and payment C. the place and time of delivery a sales contract. A. avoidance B. refusing early delivery C. refusing excess quantity D. reducing price 6. Under _____________________, the buyer is responsible for concluding insurance contract at his own expense.
B. the quality and quantity of the goods D. the packing and marking of the goods
5. The remedy of ___________________ is available for both the seller and the buyer of
A. DEQ 7.
Under a _______________, the goods will be transported by sea and one or more other modes of transport and the bill is issued by the ocean carrier. A. direct bill of lading C. through bill of lading B. transshipment bill of lading D. multimodal transport bill of lading
Under the Hague Rules, the carrier shall be liable for any loss of or damage to the goods _____________. A. from the moment the goods is loaded on board the vessel to the moment the goods is discharged from the vessel B. from the shipper’s warehouse to the consignee’s warehouse C. from the moment the goods is loaded on board the vessel to the moment the goods is handed over to the consignee D. from hook to hook
Under the Visby Rules, the bill of lading is the _____________ evidence of the terms of the contract of carriage once it is negotiated to a good-faith third party. A. prima facie B. conclusive C. exclusive D. exhaustive
Institute Cargo Insurance Clauses A covers ____________________. A. loss, damage or expense caused by inherent vice of the subject-matter insured B. loss, damage or expense attributable to willful misconduct of the Assured C. ordinary wear and tear of the subject-matter insured D. general average and salvage charges
Ⅲ. True or False Test (Determine whether each of the following statements is true or
wrong, and mark a “T” if it is true or a “F” if it is false in the brackets.) 1. CISG applies to contracts of sales of goods between parties whose places of business are in different States when the states are contracting states. ( 2. An irrevocable offer may be withdrawn before it reaches the offeree. ( the rejection would be the one given effect. ( )
3. If an offeree were to dispatch both a rejection and an acceptance at the same time, 4. Official holidays or non-business days falling on the last day of the period for
acceptance are not included in calculating the period. (
5. Where a contract has been validly concluded but does not expressly or implicitly fix or make provision for determining the price, the parties are considered, in the absence of any indication to the contrary, to have impliedly made reference to the price generally charged in their last transaction or the current price for such goods sold at the time of conclusion of the contract. ( document of title. ( lading. ( ) ) ) 6. A bill of lading is the receipt of goods, evidence of contract of carriage and 7. According to the Hague Rules, only the carrier himself has the right to issue a bill of 8. According to the Hamburg Rules, even if it is proved that the loss, damage or delay in delivery is resulted from an act or omission of the carrier done with the intent to cause such loss, damage or delay, the carrier is still entitled to the benefit of the limitation of liability provided for in the convention. ( 9. ) In case a bill of lading is issued under a voyage charter party, the bill of lading will be the contract of carriage between the shipowner and the charterer or its evidence. ( 10. ) Constructive total loss usually includes losses exceeding one half of the value of the goods or losses where the cost of recovery exceeds the value of the cargo. ( )
Ⅳ. Comparative Interpretation (You are required to compare, in English, the
differences between the two concepts in each group.) 1. “Suspension of performance” vs. “Anticipatory avoidance” 2. “anticipatory breach of contract” vs. “actual breach of contract” 3. “straight bill of lading” vs. “order bill of lading” 4. “Clean bill of lading” vs. “Claused bill of lading” 5. CIF vs. FOB 6. “clean collection” vs. “documentary collection” 7. “general average” vs. “particular average”
8. “confirmed letter of credit” vs. “unconfirmed letter of credit”
Ⅴ. Answering questions (Answer the following questions in generalized words in
English.) 1. What are the elements for a proposal to conclude a contract to constitute an offer? 2. What are the legal requirements for an acceptance to be a valid one? 3. What are the main obligations of the seller under CISG? 4. What remedies are unique for the buyer in CISG? 5. What are the main rules for damages provided in CISG? 6. What functions does a bill of lading have? 7. What are the minimum obligations of the carrier under the Hague Rules? 8. What are the main modifications of the Visby Rules to the Hague Rules? 9. What risks are covered in insurance free from particular average? 10. What are the main procedures of the transaction of a letter of credit?
Ⅵ. Case analysis (You are required to analyze the following cases in English with
what you have learned.) 1. Company A in China and Company B in the United States have a long-time trade relationship. One day, A sent B a telegram: “CAN SUPPLY CHINESE BLACK TEA, A GRADE, 50MTS, 25000USD/MT, MAY SHIPMENT, VALID IN 30DAYS.” Can this telegram constitute an offer? 2. “A”，an ， I/E company of China, concluded an exclusive agency agreement with “B”, to sell goods C in that country. The annual sales
a company of another country,
volume is 600 MT; the term of trade used is C&F Shanghai seaport; the packing is either model A or model B; the price is to be determined in each order; and the effective period of the agreement is from Jan. 1 to Dec. 31 of the next year. On Feb. 14 of the next year, B sent a telegram to A:” DELIVER US 250MT, 650USD/MT, PAYABLE BY L/C, PACKING B IF POSSIBLE.” On Mar. 8, A sent a telegram to B: “670USD/MT, PACKING C
ACCEPTABLE? REPLY BY TELEGRAM BEFORE MAR. 13.” B sent a telegram to A on Mar. 11:” PACKING C ACCEPTABLE ORDER 250MT. ORDER PACKING A 150MT, 670USD.” Later, disputes arise between A and B. The question is whether the telegram of A to B on Mar. 8 constitutes an offer or not. 3. A sent an offer to B by airmail in the morning of Feb. 17, which indicates that it is irrevocable and requires B to reply before Feb.25. B received the offer on Feb. 19. On Feb. 20, A sent an notice of revocation to B by telegram which reached B in the morning of the next day.. On Feb. 21, B dipatched an acceptance to A before he received the revocation from A. Later, A and B disputed on whether a valid contract have been concluded between them. Is there a contract between A and B? 4. A sent an offer to B: “SUPPLY 50 TRACTORS, 100 HP, CIF HK 3500 USD EACH. SHIPMENT WITHIN TWO MONTHS AFTER CONCLUSION OF CONTRACT, PAYABLE BY IRREVOCABLE L/C. PLEASE REPLY BY TELEGRAMS.” B immediately replied: “SHIPMENT IMMEDIATELY AFTER CONCLUSION OF CONTRACT”. A did not respond. Disputes arose later between them on the formation of contract. Is there a valid contract between them? Why? 5. On December 1, Seller sent to Buyer an offer to sell 500 welding guns for $25 a piece. The offer stated: “THE OFFER WILL REMAIN OPEN UNTIL DECEMBER 31.” On December 10, Buyer answered: “THE PRICE IS TOO HIGH AND I DON'T ACCEPT YOUR OFFER.” Then, on December 15, Buyer changed his mind and sent a telegram stating: “I ACCEPT YOUR OFFER OF DECEMBER 1 AFTER ALL.” Seller replied: “YOUR ACCEPTANCE IS TOO LATE, SINCE YOU HAVE REJECTED MY OFFER ALREADY.” In turn, Buyer answered: “THE OFFER IS GOOD, SINCE YOU PROMISED TO KEEP IT OPEN UNTIL DECEMBER 31.” Is there a contract under CISG? Give your reasons. 6. On July 17, a Chinese export company A sent an offer to a Dutch company B. The offer reads: “QUOTE C514 300 TONS, SHIPMENT WITHIN ONE MONTH, PAYABLE BY
IRREVOCABLE L/C, FOB SHANGHAI 900USD PER TON, VALID BEFORE JULY 25.” B replies on July 22 by telex: “WE ACCEPT YOUR OFFER OF JULY 17: C514 300 TONS, SHIPMENT WITHIN ONE MONTH, PAYABLE BY IRREVOCABLE L/C, FOB SHANGHAI 900USD PER TON. IN ADDITION WITH USUAL DOCUMENTS, CERTIFICATE OF ORIGIN REQUIRED.” After receiving B’s telex, A didn’t respond. Later, the parties disputed on the formation of contract. Is there a contract between them under CISG? Why? 7. The shipper concluded a contract with the carrier to carry 10000 cartons of candles from Shanghai to London. Because candles will deform under high temperature, the shipper told the carrier to keep the ship holds under 40℃. After loading the candles on ℃ board the vessel, the carrier issued a clean bill of lading to the shipper. During the voyage, the vessel first caught on fire because of thunder shock in Taiwan Strait and 1000 cartons of candles were burnt. Then in South China Sea, the vessel struck a rock and stranded, the captain ordered to throw 1000 cartons of candles into the sea in order to get the vessel afloat. While the vessel reached Persian Gulf, it encountered a group of pirates and 2000 cartons of candles were robbed away. When the vessel arrived at London, the consignee found that all the remaining candles were deformed or melted because of the high temperature in the ship holds. Suppose the bill of lading is governed by the Hague Rules, shall the carrier be liable for the losses? Why? 8. The shipper concluded a contract with the carrier to carry 10000 cartons of candles from Shanghai to London. Then the shipper contracted with PICC for insurance Free From Particular Average. After loading the candles on board the vessel, the carrier issued a clean bill of lading to the shipper. During the voyage, the vessel first caught on fire because of thunder shock in Taiwan Strait and 1000 cartons of candles were burnt. Then in South China Sea, the vessel struck a rock and stranded, the captain ordered to throw 1000 cartons of candles into the sea in order to get the vessel afloat. While the vessel reached Persian Gulf, it encountered a group of pirates and 2000 cartons of candles were robbed away. When the vessel arrived at London, the consignee found that all the remaining candles were deformed or melted because of the high temperature
in the ship holds. Shall PICC be liable for the losses? Why? Answer to case 4 There is no valid contract between A and B. B’s reply to A contains a modification to the term of delivery of A’s offer, which constitutes a material modification to A’s offer. In accordance with CISG, an acceptance containing material modifications is not a valid acceptance and a contract cannot be concluded, unless the offeror accepts it without undue delay. but in this case, A didn’t make any response after he received B’s reply. Answer to case 5 There is a valid contract between A and B. B’s reply to A contains a modification to the term of delivery of A’s offer, but this modification is not material. In accordance with CISG, an acceptance containing non-material modifications is a valid acceptance and a contract can be concluded, unless the offeror objects it without undue delay. Answers to case 6 (1) The carrier shall not be liable for the loss of the burnt candles, because under the Hague Rules, the carrier is immune from the loss caused by fire, unless the fire is caused by the actual fault or privity of the carrier. In this case the fire is cause by thunder. (2) The carrier shall not be liable for the loss of the candles thrown into the sea, because under the Hague Rules, the carrier is immune from the loss caused by act, neglect, or default of the master, mariner, pilot, or the servants of the carrier in the navigation or in the management of the ship. (3) The carrier shall not be liable for the loss of the candles robbed away by pirates, because under the Hague Rules, the carrier is immune from the loss caused by act of public enemies, and pirate is a kind of public enemy. (4) The carrier shall be liable for the loss of the candles deformed or melted under high temperature, because under the Hague Rules, the carrier has the duty to properly and carefully load, handle, stow, carry, keep, care for, and discharge the goods carried. Answers to case 7 (1) PICC shall not be liable for the loss of the burnt candles, because insurance free
from particular average does not cover partial loss caused by natural disasters. (2) PICC shall be liable for the loss of the candles thrown into the sea, because it is done for the common safety of both the ship and the goods so that it is general average, which is covered by insurance free from particular average. (3) PICC shall not be liable for the loss of the candles robbed away by pirates, because insurance free from particular average does not cover losses caused by such special extraneous risks as war and pirates. (4) PICC shall not be liable for the loss of the candles deformed or melted under high temperature, because insurance free from particular average does not cover losses caused by such genral extraneous risks as high temperature.