autoCâu hỏi lý thuyết TACN 2

Chapter 1
What are 5 steps in negotiating delivery?
Timing: the date of delivery, delay and results of delay
Location: place of delivery and alternatives
Transport: mode(s) of transport to be used
Risk, title and insurance: transfer of risk, transfer of ownership, and insurance
Terms of trade: incoterm to be used
When might delivery take place?
The time of delivery is:
The date of dispatch from factory: EXW (ngày hàng hóa được giao từ nhà máy)
The date of loading onto ship : FOB (ngày hàng xếp lên tàu)
The date when goods should arrive. (ngày hàng đến điểm đến)
What might the place of delivery be?
(up to the incoterm) P21
A: when the goods are handed over the carrier (khi hàng hóa được giao cho người chuyên
chở)
B: when the goods are shipped on board in the exporter’s country (khi hàng hóa được xếp lên
tàu người bán)
C: When the goods are offloaded in buyer’s country (dỡ xuống tàu người mua)
D: when the goods arrive at the buyer’s warehouse (được chuyển đến kho người mua)
What are modes of transport?
Inland transport (nội địa): by rail, by road, by barge (xà lan), by mail, or by a mixture
Oversea transport (quốc tế): by air, sea with containerization, to get economics of
containerization, …
Full container
Less container
Where do risk often pass from the exporter to the importer?
What point is there a transfer of risk from exporter to the importer?
Generally at the point of delivery
Risk and insurance go hand in hand
Those who face a risk shall arrange insurance
Where does the transfer of ownership take place?
Transfer of ownership/title can take place at any point btw signature of contract and final
payment for the goods. (có thể chuyển bất cứ thời điểm nào giữa thời điểm ký kết hợp đồng
và thanh toán cho lô hàng)
How many kinds of delay in delivery are there?
Excused delay :chậm giao có lý do chính đáng
Unexcused delay: Chậm giao không có lý do chính đáng
What is excused delay?
The excused delay often involves a grace period and is nearly always subject to a force
majeure provision
what events does the delivery date trigger? (ngày giao hàng sẽ dẫn đến sự kiện nào của hợp
đồng)
Three event:
Exporter fulfills his primary duties (thực hiện nghĩa vụ) under the contract
Payment normally becomes due (thanh toán đến hạn)
Risk and title pass to buyer
Delay – as well as any compensation to be paid by the exporter – is reckoned
How do we fix the delivery date?
To use a straightforward calendar date
A certain days after the date of coming into force of the Contract
(The date of delivery shall be…)
When does the contract come into the force?
The date of coming into force is the date on which the last precondition is met. Common
preconditions are:
Receipt of import and/or export approval
Receipt of foreign exchange approval from a central bank
Issuance (phát hành) of a letter of credit or bank guarantee
Issuance of an insurance policy
Issuance of a certificate of origin
Making a down-payment (tiền đặt cọc) by the Buyer
Delivery by the buyer of plans, drawings or other documentation. (người mua giao hoặc
chuyển cho người bán kế hoạch, tài liệu khác)
When is the contract binding?
On the signature date (date of execution) (vào ngày ký kết)
When the contract binding and effective?
On the date of coming into force of the Contract
What is cut-off date?
The day by which if the Contract has not come into force within a certain period of time, it
shall be deem no contract or null and void (vô hiệu).
What kind of contract is a cut-off date set?
In fixed-price contracts
A long delay may make the price unrealistic.
What is the grace period? (thời hạn miễn trách)
A grace period is a set length of time after the due date during which
payment may be made without penalty
What is the grace period used for?
Grace period is used to facilitate early delivery if early delivery is made, the buyer can get the
goods earlier and the seller can receipt payment earlier.
What can parties do if the force majeure event too long?
Have the right to terminate the contract
What are the 3 outcomes of FM?
Delivery resumes without penalty for the seller (tiếp tục giao hàng)
After the agreed period ends, the Buyer notifies the Exporter that the contract is terminated
(chấm dứt hợp đồng)
Unclear and dangerous situation (rơi vào tình huống rủi ro và không rõ ràng)
What are two remedies given to the buyer for any unexcused delay?
The court may order the exporter to fulfill his onligations, this means issuing a decree of
specific performance requiring the exporter to make delivery as agreed (giao hàng như thỏa
thuận).
The court may require the exporter to pay the buyer compensatory damages – a sum of
money that will fully and adequately compensate the buyer for any measurable loss (tiền bồi
thường).
Which law prefers to award damages?
Common – law countries (England, the US, most of the British Commonwealth and ex –
Commonwealth)
Which law enforces performance?
Civil law countries
What are liquidated damages? (tiền bồi thường định trước)
A fair figure, a lump sum to be paid per day (week or month) of late delivery. The
compensation fixed in advance
To compensate the buyer fairly for any delay in delivery -> avoid expensive discussion
enforceable everywhere but subject to increase or decrease in some legal systems
What are penalties? (tiền phạt)
Penalties are very high figures set by the buyer to force the exporter to deliver the goods
punctually.
The purpose of penalties is to terrorize the exporter into punctual delivery -> to use the threat
of punishment to achieve acceptable performance
not enforceable in English law or other common law systems
Explain the difference between liquidated damages and penalties?
LD:
Purpose: to compensate the buyer fairly for any delay in delivery
Enforceable everywhere
Penalties:
Purpose: to terrorize the exporter into punctual delivery
Not enforceable in E law or other common law systems.
Compare:
Đinh nghĩa
Mục đích
Enforce
What is quasi – indemnity? (tiền bồi thường tượng trưng)
A compensation figure which is set to low by the exporter to relieve himself of responsibility
for late delivery.(thoát khỏi trách nhiệm giao hàng chậm)
Quasi – indemnity is enforceable everywhere.
Three main roles of Bill of Lading
Bill of lading acts as
Evidence of Contract of Carriage
Receipt of Goods
Document of title to the Goods
What notation must a marine B/L bear? / what is noted on Marine B/L so that it can be
acceptable as a shipping document under a letter of credit?
A marine bill of lading, to be acceptable as a shipping document under a letter of credit, must
bear the notation that the goods have been loaded/shipped on board a named vessel (hàng đã
xếp lên tàu đích danh).
How can a marine bill of lading be made into a negotiable document?
Typing the word “To Order” in the Consignee box. The shipper must endorse the bill (sign it
on the back)
What are clean shipping document?
There are no notes about defects in the bill.
List the case when a marine Bill of Lading is considered ‘claused/duty/unclean”
Some examples of those notes:
Contents leaking (hàng bên trong bị rò gỉ)
Packaging soiled by content (hàng bên trong bị vỡ dễn đến vỏ bẩn)
Packaging broken/holed/torn/damaged
Packaging contaminated (vỏ bị bẩn)
Packaging badly dented (hàng bị hỏng)
Packaging damaged – content exposed (hàng vỡ)
Goods damaged/scratched (bao bì bị bóp méo)
Goods chafed/torn/deformed (hàng bị lộ do bao bì bị hỏng)
Insufficient packaging (bao bì không đủ)
Not all note on B/L are considered to be claused (note không làm vận đơn bị ghi chú).
Give example.
Second-hand/reconditioned packaging materials used.
Packing repaired/mended/resewn/coopered
Unprotected
Unboxed
Insurance policy
It is a contract, a standard form contract (form hợp đồng chuẩn) , between the insurer and the
insured, known as the policyholder; which determines the claims which the insurer is legally
required to pay (quyết định vấn đề nào người bảo hiểm phải trả hợp pháp).
It is not always practicable to obtain actual policies of insurance. Buyers are accordingly in
the habit of accepting broker’s cover notes and certificates of insurance instead of insisting on
policies.
Certificate of insurance
States in outline the cover offered
Gives the details of the individual shipment
Letter insurance
This is simply a letter from exporter to buyer stating that the goods are insured.
It has no legal force except as evidence in a law suit (kiện tụng) against the exporter.
Type of insurance policy
Tailor – made policy : bảo hiểm theo yêu cầu
Floating policy: bảo hiểm bao
Open cover
Valued policy: BH có kê khai giá trị
Unvalued policy: BH không kê khai giá trị
Voyage policy: BH theo chặng
Time policy: BH theo thời gian
Compare Floating policy and open cover
What they have in common as follows:
They are identical in the insurance cover //
Both offer exporter insurance cover on all shipment over time period. (đều là BH cho
toàn bộ chuyến hàng)
A ceiling is set on the overall figure – for example, $1 million.
One shipment is made, and the ceiling is automatically reduced by the value of that
shipment.
They are different from each other as follow:
Floating policy automatically expires unless being renewed. Open cover is open –
ended.
Open – cover is not a policy, but a certificate of insurance is issued. If you want a
policy, you have to require.
Compare valued policy and unvalued policy
Value policy is the policy which the exporter states the value of the goods on the insurance
document. The pre-stated figure can include not only the cost of the goods but also the profit
the exporter hoped to make on them
Unvalued policy is the policy which the exporter don’t state the value of the goods on the
insurance document. The value can be established after a loss; naturally, the exporter must
prove his figures precisely. As long as the figure does not exceed the total cover under the
policy, the insurer will pay

Time policy – Voyage policy

Time policy: goods can be insured between two dates.
A voyage policy: goods can be insured between two places.
What does a Marine Insurance policy cover?
A marine insurance policy has three variant clauses: Cargo Clause A, B and C.
Clause A covers anything not excluded
Clause B and C exclude anything not expressly covered.
Which risk are generally excluded from cargo clause A?
Willful misconduct of the insured
Ordinary leakage, loss of weight, normal wear and tear
Poor packaging
Inherent vice in the goods
Delay
Insolvency of carrier
Use of nuclear weapon
War risk
Strike risk
Name three new features of incoterms 2010
11 terms instead of 13 terms
2 group i/o 4 groups
On board i/o ship’s rail
Used for both domestic and international trade
Officially recognize e – commerce
Compare the 2 version of the delivery clause below:
“The equipment listed in Annex 1 shall be delivered FOB (Osaka) (incoterm 2010)”
“For the equipment listed in Annex 1 the price is for delivery free on board the carrying
vessel designated by the Buyer at the port of Osaka including the cost of packing, as well as
expenses incurred before loading the equipment on board the carrying vessel.”
The first wording using an Incoterm--is more than simple shorthand:- it incorporates six
pages of the ICC booklet Incoterms 1990 specifying numerous duties of both buyer and
exporter. The exporter, for example, must "Deliver the goods on board the vessel named by
the buyer..." and "pay all costs relating to the goods until such time as they have passed the
ship's rail.
Insured Value and Insured Amount
Insured value is the maximum amount that an insurance policy can cover.
Insured amount is the part of the value.

Chapter 2
What are the factors affecting the price?
Order size
Specification
Packaging
Incoterm
Terms of payment
Date of delivery
Warranty period
Give 3 examples of the changes that lead to increases in the price of the export’s goods
More sophisticated specifications like a wider ranger of color, or more flavor etc.
More packaging and labeling.
Change in terms of trade like from FOB to CIF or EXW to FOB etc.
Change in terms of payment like from letter of credit to open account
Sooner date of delivery.
Longer warranty period/defects liability period.
What are 5 steps in negotiating payment?
Mode of payment: How will payment be made?
Timing: What is the date of payment?
Place of payment: Where must the money be before payment is considered complete?
 Delay – what delay in payment is excusable?
Results of delay: What are the results of non – excusable delay in payment?
Why is payment in international trade tightly controlled?
Trust is rare
Courts are far away and unpredictable
What are the common methods of payment in international trade?
Payment on open account (ghi sổ) with no security
Payment on open account secured by export credit insurance
Payment on open account secured by payment guarantee (bảo lãnh thanh toán)
Payment by letter of credit
What is payment on open account? An open account transaction is a sale where the goods
are shipped and delivered before the payment is due.
Most advantageous to the importer in terms of cash flow and cost
Normally, the exporter only accepts open account method of payment if he has known the
buyer quite well and they have established a long – term and trustworthy business
relationship.
What are the risks for exporter if he accepts payment on open account?
The biggest risk for the exporter in open account payment is non – payment. If anything goes
wrong – if the check is not honored by bank for example, or if the buyer files for bankruptcy or
simply disappears – the exporter is in a poor position to claim payment
The exporter can offer competitive open account terms while substantially mitigating the risk of
non – payment by persuading a third party to pay the exporter if the buyer fails to do so or
positioning the money with a bank in the country of the exporter by means of a letter of credit,
and to allow the exporter to collect the money when the goods are delivered
Which method of payment is most favoured by the buyer? Why?
Open account
Because the buyer doesn’t have to pay immediately after receiving the goods.
Which method of payment is most favoured by the seller? Why?
Advance payment
Because its is safe and the seller can receive money before delivering the goods to the buyer.
How do we fix the date of payment?
We use calendar dates and interval time.
Compare export credit insurance and payment guarantee
Both of them are guarantee of payment from a third party, providing the exporter with some
level of security in terms of payment.
For export credit insurance, the exporter has to pay for that guarantee while it is the buyer
who pays for a payment guarantee. The third party offering export credit insurance is the
insurance company while the bank offers a payment guarantee.
How does export credit insurance work?
Export credit insurance insures the exporter against the risk of non – payment. To buy such
insurance, the exporter explains the details of the business to an insurance company and
receives a quotation. (sometimes the insurer refuses to quote.)
After the insurance is issued, if the buyer fails to pay, the exporter makes claim to the
insurance company for compensation.
What is the advantage and disadvantage of export credit insurance?
Advantage:
Reduce the risk of non – payment by foreign buyer.
Offer open account terms safely in the global market.
Disadvantage
A long wait between the time when the buyer fails to pay and the time when insurance
company compensates the exporter (6 months is typical)
Unlikely to cover 100% of the original invoice price
What does the insurance premium depend on?
Types of Goods exported
Creditworthiness of Importer
Political stability of the importer’s country
What are some common guarantees in business? Explain each of them briefly
Payment guarantee bảo lãnh thanh toán
Tender guarantee/Bid bond: bảo lãnh dự thầu
Performance Guarantee: bảo lãnh thực hiện hợp đồng
Prepayment guarantee: bảo lãnh trả trước

Payment Tender Performance Prepayment

guarantee guarantee Guarantee guarantee

Risk Non – Revocation (hủy Non – Losing

payment of
 the importer ngang) performance prepayment

Purpose The bank Protects the Pay the Ensure

commits to Employer costs if the prepayment to
pay if the against the risk contractor the Importer of
buyer of a project fails to an agreed
defaults falling behind as perform percentage of
(người mua a tender is the contract
không thực withdrawn amount
hiện)

Value of 100% of the 1.5% - 5% of 5-10% of 100% of the

Guarant contract the contract the contract prepayment,
ee price price price decreasing as
deliveries are
made

Compare payment guarantee and advance payment guarantee

Payment guarantee Pre – payment guarantee

Risks Exporter’s losing payment Importer’s losing prepayment amount

involved

Principal Importer Exporter

Beneficiary Exporter Importer

Guarantor Importer’s Bank Exporter’s bank

In terms of guarantee, what does it mean by “without demur or objection” (không từ

chối, phản đối)? What is a “conditional guarantee” (bảo lãnh có điều kiện)?
It means “on first demand” (demand guarantee) (bảo lãnh ngay khi yêu cầu). The moment
that the beneficiary demands payment under the guarantee, the bank will pay.
A conditional guarantee is a guarantee from a bank but with serious, objective conditions that
must be met before payment by the bank is possible.
3 objective conditions:
A decision of the court of first instance (a decision by a judge)
 An arbitral award (a decision by a court of arbitration)
The approval of the principal in writing to the claim (Đồng ý khiếu nại bằng văn bản
của bên ủy thác)
What is a Letter of credit? Why it is also called Documentary Credits?
A letter of credit is a binding agreement by a bank to pay a certain sum of money when the
exporter presents the necessary documents to the bank. In a letter of credit transaction,
documents are exchanged for money so they are formally called Documentary Credits.
What are steps in issuing an L/C?
Exporter and importer sign a contract
The buyer asks the local bank (the issuing bank) to open L/C.
The issuing bank asks a bank in the exporter’s country to advise the exporter that an L/ has
been opened
The advising bank advises the exporter that an L/C has been opened.
What are the steps in presenting a Letter of Credit?
The seller ships the goods and gets the shipping documents
The exporter presents the shipping documents to the advising bank
The advising bank checks the documents and (if appropriate) pays the exporter
The advising bank notifies the issuing bank that a credit has been presented and forwards the
shipping documents.
The issuing bank transfers necessary funds to the advising bank.
Explain the two principles that make letters of credit safe for both exporter and buyer?
What make a L/C safe?
What make a L/C watertight?
What are the principle of the L/C?
“Autonomy”(độc lập) and “strict compliance” (tuân thủ nghiêm ngặt)
Autonomy means that the L/C is a contract in its own right, entirely separate from the
contract for the sale of goods. The bank is obliged to pay whatever the disputes between the
buyer and the exporter.
Strict compliance means that the exporter must present to the bank shipping documents that
comply in all respects with the terms of the credit. Small deviations will result in refusal by
the bank to pay.
What are the most common problems with L/C that cause discrepancies?
Documents requires by the credit are missing.
Documents required to be signed are not signed.
Documents are not presented within the required time.
The credit amount is exceeded.
The credit has expired.
Shipment was short. (giao hang bi thieu)
Shipment was late.
Problems with Bill of Landing
The B/L is “unclean” – it has comments on it relating to damage to or other deficiencies
(khiếm khuyết) in the goods.
a marine B/L is required, but the bill does not state that the goods were “shipped on board a
named vessel”.
The B/L shows shipments between ports other than those specified in the credit.
The B/L shows that the goods were shipped in deck. This is normally forbidden unless the
credit expressly allow it.
The B/L offer no evidence that freight was paid by the exporter (if this was required)
There is no endorsement (ký hậu) (if endorsement is necessary).
Problem with insurance
The insurance documents (chứng từ bảo hiểm) is not of the type specified in the credit (e.g., a
certificate of insurance is produced while the credit calls for a policy).
The insurance risks are not those specified in the credit.(rủi ro không phải loại được quy định
trong tín dụng)
Insurance cover is expressed in currency other than that of the credit (mua không phải bằng
đơn vị tiền tệ trong tín dụng). This is normally forbidden unless the credit expressly allows it.
The sum insured is below the figure required. (mua thấp hơn giá trị yêu cầu)
Insurance cover does not begin on or before than date of transport document. (mua sau ngày
ghi trên chứng từ vận tải)

Inconsistencies (sự không nhất quán) among the documents. (không thi)
Description of the goods on the invoice and in the credit are different.
Weights differ between two documents.
Marks and numbers differ between two documents.
When does “discrepancy” (sự sai khác, sai lệch) occur in payment? What are the
possible outcomes of discrepant documents?
Discrepancy occurs when documents presented under an L/C do not conform with L/C
requirements or do not conform with one another.
Outcomes:
Issuing bank refuses to pay.
Beneficiary contacts applicant to amend L/C (sửa đổi tín dụng).
Beneficiary alters documents to comply with L/C requirement.
Distinguish irrevocable and Revocable Letter of Credit
A revocable L/C is the L/C that can be cancelled at any time by the buyer or by issuing bank.
An Irrevocable L/C is a letter of credit that cannot be cancelled nor amended without
agreement of all parties involved.
Amend of L/C: sửa đổi thư tín dụng
Distinguish the Confirmed(tín dụng xác nhận) and Unconfirmed L/C(không xác nhận)
A confirmed L/C is a letter of credit in which the Exporter has payment guarantee from a
second bank or a confirming bank. In case the first bank (issuing bank) fail to bank then the
payment will be done by the second bank (the confirming bank).
A confirmed L/C is used when the issuing bank of the first L/C may have questionable
creditworthiness (khả năng tín dụng đáng ngờ) and the Exporter seeks to get a second
guarantee to assure payment.
Unconfirmed L/C is a letter of credit which has not been guaranteed or confirmed by any
bank other than the bank that opened it. The advising bank merely informs the beneficiary of
the letter of credit terms and conditions.
What are the associated documents (chứng từ đính kèm) with the L/C?
Commercial invoice
Transport document
Insurance document
Other documents such as: C/O, certificate of analysis, packing list, weight list, phytosanitary
certificate, etc,.
What are steps in negotiating the terms of a Letter of Credit?
Agreement (Thỏa thuận): the exporter and the Buyer discuss and list all required
documentation.
Incorporation (Soạn hợp đồng): The list incorporated into the contract.
Specification (Nêu rõ, nói rõ): the Buyer applies for the letter of credit specifying the agreed
documentation.
Verification (xác thực): the exporter checks the credit to see that required documentation is as
agreed.
Compliance (Thực hiện, thực thi): the exporter checks documentations and submits it to the
bank.
What are different segments in a L/C?
Applicant: nguời xin mở L/C
Issuing bank
Application Date
Date and place of expiry of the credit
Beneficiary: bên thụ hưởng
Method of issue: phương thức phát hành
Transfer of the credit: chuyển nhượng tín dụng
Confirmation
Amount: giá trị
Partial shipment: giao hàng từng phần
Transshipment: truyền tải
Availability: được thanh toán
Insurance covered by the buyer
Transport information
Description of the Goods
Incoterm
Documents
Presentation period
Additional instructions
Authorization to debit:
Signature
About the expiry date of L/C, why does buyer want an early date while exporter wants a later
date?
The buyer wants an early date to save bank charges while the exporter wants later date so that
he can have enough time after delivery to present documents and to correct discrepancies if
any dis covered by the issuing bank.
Distinguish partial shipments (giao hàng từng phần) and shipment in installments(giao hàng
nhiều chuyến).
Shipment in installments means that an agreed schedule has been set up, for example, three
equal shipments in March, August and October 2019.
A partial shipment is simply an incomplete shipment (giao hàng chưa hoàn thành) with some
part of the goods to follow later.

Chapter 3: Negotiating inspection (kiểm định) and defects liability

(trách nhiệm lỗi)
Why do companies have quality assurance (đảm bảo chất lượng) program?
To ensure that customers get what they pay for/to ensure customer satisfaction (đảm bảo là
khách hàng nhận được hàng tương đương với số tiền bỏ ra).
Why may conflicts arise (xung đột phát sinh) in negotiating specifications?
Because it’s a difficult process. The manufacture is often tempted to (dễ bị làm gì…) be over-
optimistic and to agree to impossible specifications, which is very risky in business. Conflicts
can arise even within the exporter’s own team: the marketing manager is eager to sell (quảng
cáo) brilliant products, but the production department knows that it cannot make them.
What is the benefit of a well – designed set of specifications (bộ quy cách phẩm chất được
xây dựng kỹ lưỡng)?
It protects both the buyer and seller: the buyer is protected against inferior products (poor
quality product) as it can reject any products that fail to meet specification; the seller can
avoid excuses for rejection or for exaggerated defects liability claims and many lines of
arguments
What is pre – delivery (trước khi giao hàng) inspection?
Inspection of the goods in the manufacturer’s factory before delivery
What kind of goods needs pre – delivery inspection? Give example (ktra gk)
All kinds of goods need pre – delivery inspection, especially sophisticated items or capital
equipment (tư liệu sản xuất).
What are the functions of independent inspections? Why is there independent inspection
(kiểm định độc lập) ?
It reports on the weight, size and most importantly, the value of the goods. It prevents
exporter and importer agreeing an unrealistically low invoice price in order to avoid customs
duties (trốn thuế) in the buyer’s country. Such inspection also prevents shipment of patently
defectives (lỗi hiển thị rõ) goods.
What is the real inspection for goods?
That is inspection by the buyer, or “open package inspection” (kiểm định bang cách mở hàng)
How long is the defects liability period?
The defects liability period is negotiable this is likely to be several months from date of
delivery or the date of arrival.
What are 5 steps in negotiating the Defects Liability Period? (ko thi)
Step1: inspections: When are the goods inspected? And when can the buyer reject them?
2: Terms (thuật ngữ): warranty or guarantee (bảo hành/ bảo lãnh) or defects liability
3: Definitions: what is, and what is not, a defect?
4: timing: how long is the defects liability period? When does it begin? What about other
timings?
5: Corrective action (biện pháp khắc phục): what must the seller do to cure defects (khắc phục
lỗi)?
What counts as patent defect (opened defect)? Give example
Defects that are apparent, e.g., wrong items, broken or missing parts, scratches, etc
What counts as a latent defect (lỗi ẩn tỳ)? give example
Defects that only come to light after buyer’s acceptance, or hidden defects, e.g., structural
weaknesses, failure to operate at high or low temp, high fuel consumption.
What are the 3 type of latent defects?
Defects may be in workmanship, in materials, or in design.
Defective workmanship (lỗi trình độ tay nghề): a product with defective workmanship is
incorrectly built.
Defective materials (lỗi nguyên vật liệu): defective materials are materials or parts of a
product that are inferior (poor quality) or somehow incorrect (không đúng nguyên vật liệu).
Defective design (lỗi thiết kế): defective design means that a product does not meet
specifications.
What are implied warranties (bảo hành mặc nhiên)?
Assumption about goods made by the buyer, even if the exporter gives no express warranty.
What are 3 types of Implied Warranties? Give example?
Implied warranty of conformity with the Contract (bảo hành mặc nhiên đối với hợp đồng):
the Buyer can reject the goods if they do not conform with the Contract. (phủ định của cụm
sau of)
Implied warranty of merchantability (bảo hành mặc nhiên về khả năng tiêu thụ của hàng hóa):
the Buyer can reject the goods if the goods are of seriously inferior quality. (hàng không tiêu
thụ được thì bị từ chối)
Implied warranty of fitness for intended purposes (bảo hành mặc định với mục đích hàng
hóa): The Buyer can reject the goods if the goods are not suitable for their intended purposes.
(từ chối nếu khác mục đích)
What is a Product warranty (bảo hành sản phẩm)?
A promise by the exporter to cure defect in his products. There are two parties: the buyer and
the seller.
What is a Guarantee?
A promise by the guarantor to pay the beneficiary, made out at the request of the principal.
There are three parties: guarantor, principal and beneficiary.
What are the similarities and differences between a guarantee and a warranty?
Similar: Both are promise(cam kết) about performance, payment is only made when there is
non – performance of product or of parties involved.
Differences:

Guarantee Warranty

Content Contract to perform the promise or State of the subject of contract

discharge liability (hợp đồng thực
hiện trách nhiệm)

Parties Tripartite (3 bên)/ three part Bilateral (song phương)/two

parties

Essence Promise about somebody else Commitment of Seller to make

(bản performance good defects in products or
chất) service in a fixed period.

Purpose To obtain loan (vay tiền) To enhance their value (tăng giá
trị sản phẩm)
Credit purchase/sales (mua bán tín
 dụng) Show of quality (thể hiện chất
lượng)
For good conduct or honest of
person (thể hiện tính trung thực bên Assurance of product performance
bảo lãnh) (đảm bảo tính năng của sp)

What are the common exclusions of defects? What are not called a defect? (loại nào không
được coi là lỗi)
Fair/normal/nature wear and tear (hao mòn tự nhiên) – the result of normal use.
Misuse (sử dụng sai cách) – seriously incorrect handling by the buyer.
What is defects liability period?
The period during which the exporter is liable for and must make good (=cure) defects that
are apparent on delivery (patent defects) or that come to light later (latent defects).
What is disclaimer of warranty (từ chối/khước từ bảo hành)?
Disclaimer of warranty means the items are supplied as they are and without support of any
kind.
Ex: software is often delivered with a disclaimer of warranty.
What types of Information are usually contained in a Defects Liability Provision (điều khoản
này được quy định như thế nào)?
It states the length of the defects liability period and its starting point.
It regulates the period during which the buyer must notify the seller of the defects
(Notification Period)
It regulates the amount of time the exporter has to cure the defects (Rectification Period) (thời
hạn khắc phục)
It seldom regulates the legal action period (thời hạn kiện tụng).
What is Notification period?
The time allow for the buyer to notify the Seller of the defects
What is the Rectification Period?
The time allow for the exporter to cure the defects.
What is “Eternal warranty” (bảo hành vô thời hạn)? how to avoid problems of an Eternal
warranty?
An endlessly renewed liability for defects.
The problem can be avoided with a cut – off clause (điều khoản chấm dứt) such as: the total
warranty period shall in no case exceed three years.
What are the 5 options for curing defects? In what ways can defects be made good?
Repair
Allow the buyer to repair at the exporter’s cost.
+ Danger for the exporter:
Incur an expensive repair bill
Not sure the repair is properly carried out
The repair may cause new problems which the exporter must fix under the warranty
 Not preferred by the exporter. If it is included, the exporter protects himself by allowing
the clause only in exceptional cases
Replace
Advantage: it helps to keep the goodwill of the customer
Disadvantage: it is expensive for the exporter
+ The replacement must pass two sets of customs
Air mail or air freight is normally required
A competent technician must be at hand
Reduce the price
Return the goods and refund the price.
- Least desirable by the exporter
- + It amounts to cancellation of the contract
+ Defective goods are not worth the cost of return shipment to the exporter’s country
 If it is included, the exporter protects himself by allowing the clause only in exceptional
cases

Which corrective method is least favourable for the seller? Why?

Returning the goods and refunding the price seems to be the least favourable for the exporter
because this can be considered a cancellation of the contract. Often defective goods are not
worth the cost of return shipment to the exporter’s country. That means the deal is a total loss
for the exporter.

Chapter 4: the legal framework

Most laws belong to one of two families: Anglo – American (luật anh mĩ) or Continental (luật
châu Âu lục địa)
What are the main differences between Anglo – American Law and Continental Law?
 Continental law is fully codified (v của code, continental law is based legal code: bộ luật);
Anglo – American Law relies on cases (án lệ) and precedents (tiền lệ)
Give the main characteristics of continental law and Anglo – American law

Anglo – American system Continental system

Goal Justice in the individual case Consistency ad uniformity

of enforcement

Predictability and Unless matters are carefully Decisions in all but the
consistency of court decision regulated in the contract, the most difficult cases are
decision of the judge is not fully predictable with some
predictable. Different judges may accuracy. Decisions are
give widely different judgements generally consistent from
court to court

Length and detail of contract To be clear, contracts must Because the law regulates
regulate many issues, so they most problems, contracts
tend to be long and detailed can be short and lacking in
detail

International acceptance English and American law have Continental

been relined over the centuries to
cope with issue of international
trade. The principles are widely
understood and respected

What does the applicable law govern? (luật áp dụng điều chỉnh gì trong hợp đồng)
The contract and all questions concerning the validity (thời hạn hiệu lực), interpretation (diễn
giải) and performance of the contract.
When a contract does not specify an applicable law, what can decide the law to apply?
(khi hợp đồng không quy định luật áp dụng, lấy luật nào áp dụng)
The rule of international private law comes into play and decides the law of the contract
What are principles of an enforceable contract? (nguyên tắc của một hợp đồng ràng buộc
thực hiện)
Under most legal systems:
 The parties achieve a “meeting of minds”(đồng thuận) through a process of offer and
acceptance.
The parties are capable of entering a contract (có năng lực ký kết hợp đồng).
The purpose of a contract is legal (hợp pháp).
Anglo – American law: the contract must give both sides rights and duties
What creates no meeting of mind? (trường hợp nào dẫn đến không đồng thuận)
Duress (ép buộc)
Mistakes (nhầm lẫn)
Fraud (gian lận) => Fraudulent (a)
Failure to follow the rules of offer and acceptane
Who are unable to sign contracts? (những người nào không có đủ năng lục ký kết)
Those who lack contractual capacity; e.g. Children (không đủ tuổi), the feeble – minded
(thiểu năng) and drunks.
What does “ultra vires” (ngoài thẩm quyền) means?
Beyond its powers. (ngoài thẩm quyền) - powers of a company—or rather its lack of powers
—to enter contracts.
Under the public law (company law) of many countries, a company only sign a contract that
is within its powers. (các công ty chỉ được ký kết trong thẩm quyền của mình)
A contract that is ultra vires is unenforceable.
Legality of purpose (tính hợp pháp mục đích của hợp đồng)
A contract is unenforceable if it has an illegal purpose.
To avoid problems with contracts that might infringe government regulations, most contracts
include a partial invalidity provision (điều khoản vô hiệu từng phần).
What does the partial invalidity provision say?
This says that the invalidity of one part of the contract does not invalidate the rest, and that, if
one part of the contract is invalid, the parties will try restore the original purpose of the
contract by drafting a new clause
Give example of what is called “one – sided agreement” (thỏa thuận 1 bên)
“One – sided agreement” means an agreement in which one party has only duties and the
other party has only rights. (hợp đồng 1 bên là 1 bên chỉ có nghĩa vụ, bên cón lại chỉ có
quyền). Rather it is governed by a special branch of Anglo-American law: the law of sealed
instruments—well beyond the. of our present discussion
Release from an obligation (thoát khỏi một nghĩa vụ): example: one party should have paid
some interest in the other party due to their late payment for the goods: however, the seller
sends a letter to the buyer saying that they do not have to pay any interest at all. That letter
releases the buyer from an obligation of paying interest due on late payment. The buyer in
this case has got only right and the Seller in this case has got only duty. Such a letter is a one
– sided agreement.

Agreement to modify a contract: example: Buyer wants to change some specifications of the
Contract and Seller sends a letter to Buyer to agree with such a change without charging any
money for that change. Such a letter is a one – sided agreement in which seller has only duty
and buyer has only right.

What is the Entire Agreement (thỏa thuận tổng thể)? (ko hoi)
The final written version of the contract replacing all previous agreements between the
parties.
Anglo – American law: signing a contract amount to saying: everything we the discussed so
far now dead (tất cả nhưng gì đã thỏa thuận trước đó đều bị hủy)
Continental law: a letter that predates the contract, a memorandum, the minutes of the
meeting might have some bearing on the contract.
What is the whereas recital (=preamble: lời mở đầu)? Why is it necessary?
The word “whereas” means “because” or “considering that”. Whereas – clauses are not
provisions promises or conditions – they are explanations.
A typical whereas – recital contains many types of background information.
When the dispute arises, the judge must ask some background questions.
Should the exporter treat the recital as a chance to promote his skill and the excellence
of his products?
No, he shouldn’t. If the contract gets into trouble, the buyer will have a “big stick” with chich
to beat the exporter: “you told me told me you were the best – and I acted on that belief.” If
big claims are rechal(?) in black and white, the exporter is trapped.
When is contract discharged by performance (khi nào thì hợp đồng được thực hiện
xong)?
Both parties perform their duties exactly according to the contract and the last duty is fully
performed.
What is termination (chấm dứt hợp đồng)? Nam the two types of termination?
Termination: one side may have the right under the contract to end contract
Two types:
Termination for convenience. (chấm dứt vì sự thuận tiện)
Terminate for default. (chấm dứt vì có lỗi)
What is termination for convenience?
Termination for convenience: occurs when one party (usually buyer) simply decides to drop
the contract. No reason is required. The buyer must pay for all work performed or partly
performed.
What is termination for default?
Termination for default: occurs when the contract names certain defaults which allow one
side (usually buyer) to terminate.
What is Cancellation?
When one party breaches a contract, the other has the right to demand cancellation of the
contract.
What is difference between termination and cancellation?
The contract is terminated under a provision of the contract.
The contract is cancelled when one side has breached and the other simply refuses to proceed.
What is Rescission (từ bỏ hợp đồng)?
The two parties may simply agree to end their contractual relationship.
(It is a kind of two – sided termination. Both Parties see the continuing of the contract is
useless for them.)
Distinguish termination, cancellation, rescission

Termination Cancellation Rescission

Defini The contract allows one One side breaches Both parties agree to
tion side to end the contract. the contract. end the contract.

One sides procedures Two – sided

procedures.

Impossibility(không thể thực hiện được) and frustration (thực hiện hợp đồng cũng
không mang lại lợi ích gì)
Impossibility and Frustration occur when a contracts discharged because it is impossible or
totally pointless to continue with it.
Status of the contract: four cases when a contract can be discharged(chọn 4 cái để làm)
Discharge by performance: Both parties perform their duties exactly according to the contract
and the last duty is fully performed.
Termination: one side may have the right under the contract to end contract
Termination for convenience: occurs when one party (usually buyer) simply decides
to drop the contract. No reason is required. The buyer must pay for all work
performed or partly performed.
Termination for default: occurs when the contract names certain defaults which allow
one side (usually buyer) to terminate.
Cancellation: When one party breaches a contract, the other has the right to demand
cancellation of the contract.
Rescission: The two parties may simply agree to end their contractual relationship
Impossibility
Frustration
What are the ways of settling disputes?
Conciliation/mediation (Hoà giải): an amicable settlement
Arbitration: (Trọng tài): a panel of arbitrator
Litigation (Kiện): settlement by the court
What are characteristics of litigation?
Litigation before the courts is internationally the least attractive:
It is public (công khai)
It is expensive
It is time – consuming
The results are often legalistic rather than business like (phán quyết mang tính ràng
buộc về pháp lý hơn)
What are the advantages of using a panel of arbitrators? => compare with litigation
Private
Costs are predictable
Quick
Decision is business – oriented
What does the arbitration clause specify (điều khoản trọng tài quy định những gì)?
The number of the arbitrator: how many arbitrators sit in the court?
Venue of the court: where does the court sit?
Language of court
Who pays court costs?