Źródła praw i obowiązków stron umowy międzynarodowej sprzedaży towarów

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1996

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Wydział Prawa i Administracji UAM

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Sources of rights and duties of parties to international contract relating to a sale of wares

Abstract

The present papers' subject are general remarks on the application scope of the Vienna Convention and on the character of other sources determining legal contents of rights and duties of parties involved. The Convention is to be applied d i r e c t l y only if both parties have their registered office in two different countries as understood in the Convention (art. 1, al. la). The Convention is applied i n d i r e c t l y if the rules of international private law indicate as being proper the law of the State-signatory of the Convention (art. 1, al. lb). In conformity with the art. 95 of the Convention every State may exclude the application of the latter. When analysing this compromising solution the attention has been drawn to situations more particular because of: a) localization of a court, b) State the law of which is indicated by collision rules. Special problems arise when there has been indicated as proper the law of such a State which excluded application of the art. 1 al. lb of the Convention. The Convention does not offer legal solutions for all problems involved with a contract of sale. The application scope of the Convention has been determined in two ways: positively and negatively. The exclusion of cases not subject to the Convention in not complete (conf.: "in particular"). So, there is a category of cases that concern matters regulated in the Convention which, however, have not been treated there expressively. Getting such a lacuna filled in takes place according to the dispositions of the art. 7 of the Convention, namely: a) taking into consideration "general principles" on which the Vienna Convention was based; b) only when it is impossible to reconstruct such a principle on a basis of the Convention, there is a possibility to consider some actual case as being situated beyond the application scope. Then the law indicated by international private law is involved - in its capacity of ultima ratio. The Convention finds also its application if parties make a choice of the law of a State obliged by the Convention, even independently on wheather such a law should otherwise by indicated by international private law of a State of the court or not. Since it is admitted that the principle of autonomy of a choice by parties to a contract is one of the "rules" of international private law as understood by the art. 1, al. lb of the Convention. This choice can be made in an implied way. In every situation the Convention can be refered to as non-normative pattern binding parties by virtue of their mutual consensus. Apart from dispositions of the Convention the contents of some concrete relation is determined as well by: a) home law, b) stipulations of the agreement (i.e. contents of the contract), c) commercial customs and practice, d) interpretation rules related to the application of the Convention.

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Digitalizacja i deponowanie archiwalnych zeszytów RPEiS sfinansowane przez MNiSW w ramach realizacji umowy nr 541/P-DUN/2016

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Ruch Prawniczy, Ekonomiczny i Socjologiczny, 58, 1996, z. 4, s. 61-76

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Uniwersytet im. Adama Mickiewicza w Poznaniu
Biblioteka Uniwersytetu im. Adama Mickiewicza w Poznaniu
Ministerstwo Nauki i Szkolnictwa Wyższego