Data

Date:
20-04-2017
Country:
China
Number:
(2017) Jin Min Zhong No. 21
Court:
Tianjin High People’s Court
Parties:
Youlchonchemicalco v. Tianjin Gaosheng Scientific and Technological Development Co. Ltd.

Keywords

DELIVERY OF GOODS - ARRANGEMENTS FOR CARRIAGE OF GOODS (ART. 32(2) CISG)

Abstract

[CLOUT Case no. 1767]

The Chinese buyer and the Korean seller signed a contract for sale of goods. The
seller shipped the goods by means of FOB Busan and delivered them to Hong Kong,
and asked for payment. The buyer claimed that it did not receive the goods and refused
to pay, because the port of destination in the order was Xingang, China. The seller
argued that the buyer changed the port of destination by phone subsequently but the
argument was rejected by the court as there was no evidence.
The issue before the court was whether the contract had been performed by delivering
goods to a port different from the port of destination designated in the contract.

The court of first instance held that the law applicable to this contract should be the
Contract Law of the People’s Republic of China, because it was a foreign-related case
and there was a choice of Chinese law agreement between the parties. Applying the
Contract Law of the People’s Republic of China, the court held that the delivery of
goods to Hong Kong, which was not the designated port of destination in the order,
was not performance of the contract. Accordingly, the court dismissed the claim of
the seller.

The seller appealed. The Tianjin High People’s Court confirmed the facts found by
the court of first instance. The High People’s Court, however, held that the applicable
law should be the CISG, as China and Republic of Korea are both parties to the
Convention and the buyer and the seller did not exclude its application. The CISG
should thus have priority in this case. Applying Article 32(2) CISG, the court held
that the delivery of goods to Hong Kong amounted to non-performance of the
contract, and therefore, the court dismissed the appeal.

Fulltext

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Source

[Case law on UNCITRAL texts, A/CN.9/SER.C/ABSTRACTS/192]}}