timing in delivery

8/10/2019 Timing in Delivery

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Group 1:

inhVnHong

L Duy Hong

Hong ThNam PhngNguynVitThng

VngTrnHuynThi

1211110248

1211110251

12111105241211110584

1211110624


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TIMING

In negotiating delivery


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CONTENTS

Delivery time

Theory

Naming thedate

Delay

Result ofdelay

Practice


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THEORY

+Naming the date

+Timing and Time is of the Essence Clauses

+ Excused Delay and the Grace Period+ Excused delay and Force Majeure

+ Unexecused Delay and the buyer's Remedies

+ Liquidated Damages and Penalties


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NAMING THE DATE

The date of coming into force is the date on which thelast precondition is met.

Common preconditions are:

+ Receipt of import and/or export approval.+ Receipt of foreign exchange approval from a central

bank.

+ Issuance of a letter of credit or bank guarantee.

+ Issuance of an insurance policy.

+ Issuance of a certificate of origin.


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.

THE METHODS TO DEFINE THE DELIVERY TIME

Specific time of delivery:

+ On a specific date: On May 5th, 2012.

+ No later than/Before a specific date:Before May 5th.

+ In a specific period of time: Within 2 months since the

contract date/ From 1stto 20thof August.

Unspecific time of delivery:+ Prompt delivery:Immediate delivery.

+ Conditional delivery: Subject to the opening of L/C.


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TIMING AND TIME IS OF THE ESSENCECLAUSES

+ A judge may decide that time is not of the essence.

+ Late delivery can be bad for the exporter.+ Delivery takes place on the working day after the agreed

delivery time.

+ Seller has to notify Buyer of the delivery.


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EXCUSED DELAY AND THE GRACE PERIOD

Definition: The action of waiving the penalty for a time

period of late delivery.

Advantages:

For exporter: receive payment earlier.

For importer: get the goods on expected time.


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EXCUSED DELAY AND FORCE MAJEURE

The exporter may be unable to deliver on time, or at all.

+Natural disasters hurricane, earthquake+ Other unavoidable eventswar, fire or new

government regulations.

+Strikes, lockouts and labor unrest

All unavoidable circumstances are called forcemajeure


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EXCUSED DELAY AND FORCE MAJEURE

The principle behind force majeure is clear

+ The force majeure clause is negotiable: the parties can

decide what excuses and what does not excuseperformance.

+ Any problems the two sides foresee can be mentioned

in the contract.

+ Contracts often regulate the force majeure period


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UNEXECUSED DELAY AND THE BUYERS REMEDIES

+ Legal systems cope with the problem of giving the

buyer some remedies for any unexcused delays he

suffers from.+ If one causes harm or loss to the other, the law will

find a way to mitigate this harm or loss.


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LIQUIDATED DAMAGES AND PENALTIES CLAUSES

+ Every contract is subject to some national law.

+National law fall into two families

+ Commonlaw countries prefer to award damages.E.g: Dunlop Pneumatic Tyre Co Ltd & New Garage and

Motor Co Ltd (1915) in Singapore

+ Civillaw countries usually enforce performance.


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Liquidated damages

+ To compensate the buyer fairly for any delays in delivery

+ Enforceable everywhere but increase in some legalsystems

A liquidated damages provision will beenforceable only if, at the time of drafting:

+ Difficultly determine the damages that would accrueif a contemplated breach occurred; and

+ The amount of the liquidated damages provision wasa reasonable estimate.


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Penalties

+ To terrorize the exporter into punctual delivery

+Not enforceable in English law or other common lawsystems


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Quasi- Indemnity

+ To relieve the exporter of liability for delay in

delivery+ Enforceable everywhere but open to challenge as

"unconscionable"


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TRANSLATION

1.Translate into Vietnamese:

The following shall not be a Force Majeure event:

the failure for whatever reason of a computer or otherelectronic facility to accept a notification made by a

Seller or a Buyer (other than the CSP) as required by

these terms and the Administrative Procedures.


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TRANSLATION

2.Translate into English

Trong trng hp giao chm khng phi do btkhkhng cnhnghatrong hpngny, ngi

bn s tr mt khon tin coi nh l bi thng tntht ch khng phi l pht tng s l 0.1% gi trhng giao chmtrn 1 ngy chmv lnnhtl 10%giphitrtheo iu10 diy.


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1.The following shall not be a Fore Majeure event : the failure forwhatever reason of a computer or other electronic facility to accept a

notification made by a Seller or a Buyer (other than the CSP) as required bythese terms and the Administrative Procedures.

=>Nhng s kin sau s khng c coi l mt skinbtkhkhng: scgy rabibtk l do no

khin cho my tnh hoc cc thitb in t khckhng nhnc thng bo cangibn hocmtngi mua (ngoi CSP) nh c qui nh trongnhngiukhonhpngny v cc th tchnh

chnh.


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2. Trong trng hp giao chm khng phi do bt kh khng c nhnghatrong hpngny, ngibn s trmtkhon tincoi nh l bithng tn thtch khng phi l pht tngs l 0.1% gi trhng giao

chm trn 1 ngy chmv lnnhtl 10% gi phi tr theo iu10 diy.

=>In case of late delivery for the reasons other than

force majeure as defined in this contract, the sellershall pay as liquidated damages and not as penalty the

sum of 0.1 percent of the value of the late

(undelivered) part per day of late delivery up to a

maximum of 10% of the contract price under Clause10 here under.


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Task 2: Clarify True or False and explain.

1.All late deliveries are considered breaking the contract

and must be compensated.=>False, in case of excusable delays, it can be acceptable

and not considered breaking the contract.

2. If you order a birthday cake on your birthday 28th

Juneand the cake arrives on the 29thand you no longerwant the cake, you can legitimately refuse to accept it

whether the contract requires absolute punctuality or not.

=> False. If the contract doesnt require absolute

punctuality, a judge may decide that time is not of theessence and that the buyer cannot terminate the contract.


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Task 3:

Company A, which based in Manila, Philippines,

signed a contract to buy 20000 MT of rice with

company B, which based in Ho Chi Minh City,

Vietnam on 1st December 2013 for sale at Philippines

market in storm season. Which following deliverytime is beneficial for both parties:

A. 10/1/2014

B. 26/2/2014

C. 1/4/2014

D. 20/6/2014


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A- Company B does not have enough time to collect a

large amount of rice like 20000 MT.

B- The delivery time is shortly after Lunar New Year

Festival in Vietnam, so it is hard for company B to

deliver in time.

C- Good for both parties. Company A has enough

time to prepare and storm season also does not startyet.

D- Storm season usually start in May, so the delivery

time is too late for company A.


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