A B

Claimant Respondent

Buyer Seller

Korea Hongkong

1. The applicable legal sources are as follows:

- CISG: because both of them are members of CISG so this convention could be
used in this case.
- Domestic law: Vietnamese Law
2. Defense arguments for the claimant
- Was the Machine “fit for purpose and without any defect” as required under the
Contract?
Fit for purpose:
According to Points b, Clause 2, Article 35 CISG, except where the parties have
agreed otherwise, the goods do not conform with the contract unless theyare fit
for any particular purpose expressly or impliedly made known to the seller at
the time of the conclusion of the contract, except where the circumstances show
that the buyer did not rely, or that it was unreasonable for him to rely, on the
seller’s skill and judgement.
In this case, The Seller was well-aware that the Machine was to be used in
maritime conditions. This is particularly evident from the delivery location, which
was to the Buyer’s barge in the middle of the sea. It means that the Seller knew
indirectly the Machine was to be used in maritime conditions at the time of the
conclusion of the contract. Therefore, the Machine is not fit for the purpose as
required under the Contract.
It can be seen that the Seller indirectly knows clearly that the Machine will be used
in maritime conditions through the delivery location to the Buyer's barge in the
middle of the sea. Therefore, according to Article 35.2.b CISG: Except where the
parties have agreed otherwise, the goods do not conform with the contract unless
they are fit for any particular purpose expressly or impliedly made known to the
seller at the time of the conclusion of the contract, except where the circumstances
show that the buyer did not rely, or that it was unreasonable for him to rely, on the
seller’s skill and judgment. We can conclude that the Machine is not suitable for
the intended use required in the Contract.
 Without any defect:
There is overwhelming evidence that the Machine did not work. The Machine was
deployed on 10 March 2014, and from that first day, problems were encountered
with the automatic spooling function. The Claimant’s witness, Mr Tony Kim, gave
extensive evidence of the problems encountered with operating the Machine. The
Claimant attempted to address these issues by switching from rope chains to
manila chains, but the “jamming” problems continued, which required work to be
stopped frequently. This caused significant delay to the progress of the work. The
Respondent’s own specialist mechanics were unable to fix the problems.
Therefore, we can conclude that the Machine has some defects.
According to Clause 3 Article 35 of CISG, The seller is liable for any lack of
conformity of the goods because the Buyer did not know of such lack of
conformity. The Buyer only discovered that the Machine was not suitable for use
at sea when it approached Dr Jenssen to investigate the cause of the problems
encountered with the Machine.
- For the Defendant to assert that the Machine was not defective (đối với việc bị
đơn phủ nhận máy bị hỏng).
First, from the first day of use after the defendant delivered the product, the device
was defective. There was a witness to the use of the faulty machine - Mr. Tony
Kim. Besides, the Plaintiff (buyer) also seriously tried to fix the error and even the
defendant's professional staff could not fix the error.
Respondent relies on the testimonials from several customers using the ASM S600
and the report of Professor Winston Wu to assert that the ASM S600 brings
satisfaction to most of the users and it is a very effective automatic spooling
machine and its effectiveness as between “good and excellent”.
It can be seen that this evidence is not really convincing, because the customer's
opinion and the professor's report only mention the working efficiency of the
machine but do not specifically mention the environmental conditions in which
this machine is used. It is possible that the customer survey results as well as the
Professor's report are based on the effectiveness of the ASM S600 when used on
land, not at sea. Therefore, these respondents' evidence cannot prove that ASM is
not defective when used at sea.
According to Points a and c, Clause 2, Article 35 CISG, the fact that the
machinery that the defendant delivered to the plaintiff is damaged and cannot be
used as normal proves that it is not suitable for the normal use purpose of the same
goods. type; not of the same quality as the sample of goods that the seller
delivered to the buyer.
 Thus, the goods delivered by the defendant were not in accordance with the
contract and the defendant (seller) violated his obligations in Clause 1, Article 35
CISG.
- For the defendant to argue that they are not liable even if the goods are truly
damaged ( đối với việc bị đơn cho rằng họ không cần chịu trách nhiệm ngay cả
khi hàng hóa bị hỏng).
In this situation, the defendant argued that they should not be held responsible for
any damage to the product. Because the product the defendant delivered to the
plaintiff was inherently inconsistent in terms of product quality in the contract.
This is contrary to CISG regulations. According to Clause 1, Article 36 CISG, the
seller should be responsible for any non-conformity of the goods if it existed at the
time transferring the risk to the buyer, even if the non-conformity is only
discovered after the transfer of risk.
With the above arguments, it can be seen that right from the time of delivery, the
ASM machine was not suitable in terms of product quality. This is the time when
the risk has not been transferred, although this problem was discovered at the time
Dr. Jenseen conducted an investigation of the cause, which was the time when the
risk had been transferred, but in Article 36.1 CISG when the mismatch appeared.
existing before the time of risk transfer, the Seller is responsible according to the
provisions of the contract and the provisions of CISG