Remedies under the Vienna Convention

Remedies under the Vienna convention

This post will briefly consider the remedies available under the Vienna Convention. It says very little about the conventions itself.

The Vienna Convention, properly known as the United Nations Convention on Contracts for the International sale of goods 1980 was drafted with the aim of harmonizing the law in relation to international sale of goods

The remedies available under the convention include:

Avoidance of contract (Art 25)
Fixing additional time for performance and curing the breach (Art37, 47 48, 49 63)
Specific performance (Art 39, 45, 46 61 and 62)
Reduction in price (Art 50)
Damages (Art 74 and 77)
These remedies are all intended to promote compliance with contractual obligations.

A. Avoidance of the contract. (Art25)
Avoiding the contract under Art 25 will only be available in following circumstance.
1. The party seeking to avoid the contract should suffer a detriment, example, non-payment
2. The detriment must be substantial to deprive the party of his benefit. It is suggested that non- acceptance of the goods will be sufficient.
3. The result must be foreseeable.
Academics such as Indira Carr assert that avoidance of contract as a remedy will only be available in exceptional circumstances.



B. Fixing additional time for performance and curing the breach (Art 37,47,48,49 and 63)
This remedy is not found in common law jurisdictions, it essentially gives, both the buyer and seller of goods the opportunity to cure a potential breach on their part with the result of preventing a possible right of the other party to avoid the contract.


C. Specific performance (Art39, 45, 46, 61 and 62)
Specific performance, for the purposes of the convention allows one party to compel the other to fulfill his obligation under the contract. Unlike common law specific performance the remedy is not conditional upon damages being inadequate. Further, the Convention follows the civil law tradition in allowing specific performance where the seller faces difficulty in acquiring goods to meet the contract stipulation in dispute situations. This has the result of cushioning the harshness of the English courts approach evident in Societe des industries metellargiques SA v Bronx Engineering Co Ltd.

D. Reduction in Price (Art 50)
Under this article the buyer may reduce the price in the same proportion as the value of the goods actually delivered had at the time of delivery bears to the value that conforming goods would have had at that time.

E. Damages (Art 74 and 77)
The party who suffers from a breach is entitled to damages. Damage includes a sum which is equal to any loss, which includes any loss of profit. This does not include foreseeable damages provided that the party who intends to claim took steps to mitigate his loss. Predicting how article 74 will be interpreted is not certain. IndIra Carr seems to suggest that the court in different jurisdictions have not consistently applied the article.


There are other remedies available to the parties that have not be considered in this post, however readers who may wish to consult ‘international Trade Law’ 4th edn by Indira Carr for further details.

Haiti : One year later

One year after the deadly earthquake in Haiti cholera threatens the life of thousands of Haitians. The United   Nations on the 12th November 2010, reports that (UN office for the Coordination of Humanitarian Affairs) over 8,000 people have died and another 12,000 treated at hospital. http://www.un.org/apps/news/story.asp?NewsID=36740&Cr=Haiti&Cr1=.this raises Several questions ; How effective was the relief efforts immediately following the earthquake? Is it true that the  United States and Others were more interested in a public relations campaign than setting up a sustained effort to help the Haitian people? How much blame must the Haitian people accept for thier situation? Whatever the answer may be one thing remains true,the Haitian people desperately needs help.
 If  G20 Countries are serious about reducing world poverty and promoting the dignity of the Human then Haiti's state of desperation represents a Jewel of an opportunity to demonstrate their commitment. Perhaps the situation in Haiti can be used as an opportunity for G20 Nations to heed the call by the United Nations Secretary General, Ban Ki-Moon to invest in developing countries, http://www.un.org/apps/news/story.asp?NewsID=36742&Cr=g20&Cr1=. In his rather interesting address at the recent Soul meeting of the G20, Ban reminded members of their commitment to fighting poverty, "promises made must be promises kept. Our word must translate into action on the ground".
Haiti has long been neglected by the developed world. After the defeat of the French many years ago by the Haitian people led by Toussaint L'ouverture it seems that Haiti is still paying for its "sin". If the bible is correct and forgiveness it true then France would do well by leading the effort to fight the current cholera outbreak in Haiti and also assist in the long term development of Haiti by Investing in the Small Caribbean Nation.

Caribbean Politics and St. Vincent

Prime Minister of St. Vincent and the Grenadines, Dr. Ralph Gonsalves has defended estimates of damage caused to his country by Hurricane Tomas against accusation of exaggeration by his opposition, New Democratic Party. Anyone reading the article on antiguaobserver.com,  http://www.antiguaobserver.com/?p=47287, may wonder if the opposition is making a genuine attempt to protect St Vincent's image or playing dirty politics. Other people, including myself would be peeved at the what seems to have become a practice of political parties in the Caribbean of criticizing their governments at every possible opportunity. Unfortunately  political parties seems to forget that we all suffer from negative press.The Ruling Party, Opposition and the entire Nation, we all suffer.

In a world where information is no longer golden and available for all on the internet its imperative that politician develop an attitude of Country first and politics second. Just twenty years ago what was said on the political platform traveled no further than those gathered. Today political utterances live on forever and is read and  sometimes replayed for generation. A quick look at You Tube would prove the point, political speeches  of American President, Barrack Obama and those as old as  Mohatma Ghandi's can be retrieved. Therefore if we are serious about presenting ourselves as an  intelligent and politically mature people we must put away selfishness and promote our Caribbean  as first in everything we do and say and our individual political ambitions second.

Let me hope this post is taken as a call for political maturity in the Caribbean and not an attack on New Democratic Party.

Sale of Goods and pasage of property

In any commercial contract it is of paramount importance that each party is clear as to who bears the risk of damage to the goods subject to the contract and at what point property in them passes. The general rule is that he who has property in the goods also bears the risk, however determining when property passes it not always easy.

This post will look at Section 18, rule5  of The Sale of Goods Act 1979 which deals with the passage of property in unascertained goods. For purposes of space, the wording or the section is not repeated but the important issues raised under the section will be discussed. The importance of the rule is the presumtion that no property in the goods can pass until he goods are unconditinally appropriated to the contract. Most litigation has arisen  under the rule relates to  the interpretation of unconditional appropriation. Professors Sealey and Hooley in their book, Commercial law Text Cases and Materials (fourth edn pg 326) notes that the better interpretation of unconditional is the one adapted by professor Benjamin; 'unconitional' means 'not subject to any condition upon which the fulfillment of which the passing of the property depends'. On the other hand appropriation is best determined by looking at the approach taken by the courts.

Several cases are important in this regard. In Wait v Baker it was noted that appropriation may mean several things. for example it may mean the vendor making a selection, it is also noted to mean an agreement by both parties that  certain articles deliver in accordance with the contract. Sealey and Hooley says that determining when sufficient appropriation for the purposes of the Act is problematic. Even placing a persons name on a product may not be sufficient. In Carlos Federspiel & Co SA v Carles Twigg & Co Ltd, therefore the act of marking bicycles with the intended purchasers name and taking it to the expected point of delivery was not sufficient. the reasoning of the court was that the seller could always change his mind and deliver other bicycles. Logically this seems appropriate but a bit harsh on the expected purchaser.In an Earlier case, however the position was taken that handing bottles to a manufacturer of vegetable old and asking him to pour quantities of oil into the containers was sufficient.

It seems that from the cases examined that appropriation of unascertained goods for the purposes of The Sale of Goods Act 1979 will continue to be a problem for the carefree. In order to be certain that there has been  sufficient appropriation the parties will have to display the clearest of intention that the goods in question are clearly identified, and perhaps  actually placed in the possession of the intended buyer.

 

Caribbean devision or integration ?

Not surprisingly the comments made by the Trinidad and Tobago Primes Minister continues to making headline around the Caribbean. The T&T PM said in a press conference following the passage of hurricane Tomas that any assistance given to other Caribbean countries must be of some benefit benefit to Trinidad. This time its reported on the Antigua news portal www.Caribarena.com that the Opposition Leader in Antigua has become her latest critic.

Readers of the article will find comments from regional politicians and even the Opposition Leader in Trinidad. Interestingly, one St Lucian national said she has stopped consuming food produced in Trinidad. Is it necessary to take such a drastic position? maybe its not but whatever reaction is taken the fact remains that what was said by the Trinidad and Tobago PM was surely out of place and threatens the process of Caribbean integration. If readers wish to follow this issue any further the link is posted below.


 http://caribarena.com/antigua/news/latest/bird-joins-critics-of-trinidad-issue-2010110610624.html

Six Shut Prisons and Sentencing

The British Government intends to reduce the  number of prison cells  by 5,000 and cut up to 10,000 Staff. This is according to the The Times front page Story of today. Sentencing  overhaul  is the conduit the Government intends to use to achieve its objective. The plan seems to be all apart of the governments intention to reduce public spending. Interestingly, according to the report apart of this plan includes sending mentally ill inmates to NHS unit and sending foreign offender home to serve their sentence.

Wisdom would suggest that mentally ill patients  should never spend a day in prison in the first place. On the other hand it seems unfair that persons who may have become new to a life of crime in Britain to be sent home. Perhaps what is needed is investment in social programs that seek to develop stable families, promote positive community activities and a radical reform of the type of music and television programs youngsters are exposed to.

In the mean time it seems that there must be a quick fix to the Governments financial situation. Whatever the Government finally decides it would be wise if it recognizes that  reforming sentencing alone will not solve the problem of crime, much less effectively reduce expense.








 





 

Trinidad and Tobago

The recent remarks of  Kamla Persad-Bissessor, Prime Minister of Trinidad and Tobago should be condemned by all civilized and intelligent people in the Caribbean. The Trinidad PM found it necessary to publicly state that any support it will lend to other Caribbean Islands affected by the the passage of Hurricane Tomas must be of benefit to Trinidad. Perhaps her judgment may have been clouded by the fact that her country has never been hit by any serious hurricane. In St Lucia it is estimated that five people died and several others missing. the damage exceed millions of US dollars. Yet, such a senseless utterance.

Trinidad enjoys the wealth of its Oil and other natural resources but it must not forget that not long ago Guyana and Jamaica enjoyed the same blessings. However, years later, citizens in those country flee to other smaller Caribbean nations to seek a better standard of living. The very simple point is that the Caribbean's survival depends upon its people seeing themselves as one and being ready to come to the aid of each other in times of disaster.

Written in support of Caribbean integration