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NGUYEN TRONG DAN

11(113 HONG TIMING MAI


QUtit TE
Xueit bcin

lein this 6

International
Trade Contracts
6th Edition

NHA XUAT BAN LAO DONG


HA NOL 2007

Thu' tit g6p

y xin

GS.TS. Nguygn Trong Dan


DTDD: 0904 055 077
Email: dhannte,fpt.vn

Tac gi6 gilt bgn quye'n


Copyright by the author

Preface
This book is intended to provide commerce students of international
trade and other readers with guidelines to the language of international
trade contracts as the name of the book suggests.
Despite the difficulty and complexity of the subject matter, the language
used in the book is straightforward and readily understood.
The book contains 11 parts. The first eights parts deal with legal aspects
and give examples of authentic language used to illustrate them. At the
end of each part, there are comprehension questions so that the students
can check their understanding. In the footnote from Part 1 to Part 8, four
or five words and/or expressions are listed with their context meanings
in Vietnamese.
Part 10 gives examples of authentic contracts from various Vietnamese
and foreign trading corporations. All of these contracts are bilingual:
English and Vietnamese. Part 11 includes the ICC Model Sale contract
and the remarks made on each individual provision in the light of the
civil code of the SRVN regarding civil contracts.
Although every effort has been made to ensure the reliability of the
information in the book, for readers of the book, the author is not
responsible for any losses resulting from using this book or specimen
contract clauses taken from therein. Before signing a contract, business
persons should take appropriate legal advice.
As mentioned the subject matter is very difficult and complicated, errors
and mistakes might have been made here and there in the book.
Constructive suggestions and corrections are, therefore, highly
appreciated.

Prof. Dr. Nguyin Trong Dan


Hanoi, 2007

Acknowledgements
I would like to express my many thanks for Directing Board of the
Foreign Trade University for their help and assistance during the
preparation and production of this book.
I also would like to express my sincere thanks for my colleagues at the
English Department of the Foreign Trade University for their long and
kind co-operation in the making of this book.
I am deeply indebted to my Australian Collegue, Mr. Timothy Maxwell
Clemons for his valuable suggestions, comments, criticism and
correction during the development of this book.
I am also deeply indebted to all Vietnamese and foreign import and
export organizations and commercial services to their assistance and
permission for reproduction of their contracts and documents.
As always I wish to express my special thanks to my wife and my
children for their understanding and encouragement throughout the
preparation of this book.
I would like to thank Mr. Nguyen Van Chau, BMA, Researcher, at the
Foreign Trade University for his deligence shown in proofreading of the
book and for all other things that he has done on my behalf so that the
book would have been made possible for the first edition.
Finally, I also would like to thank all of my friends and former students
for their assistance in providing the contracts and their translation.

Prof. Dr. Nguyin Trong Dan

Contents
Page
PREFACE
ACKNOWLEDGEMENTS
CONTENTS
BIBLIOGRAPHY
HOW TO WORK WITH THE BOOK

Part 1

THE RELATIONSHIP BETWEEN THE LAW AND THE CONTRACT


1.
2.
3.
4.
5.
6.

Part 2

THE LANGUAGE OF CONTRACT IN ENGLISH


1.
2.
3.
4.
5.

Part 3

BRIEF INTRODUCTION TO THE LAW AND THE CONTRACT


THE RELATIONSHIP BETWEEN THE LAW AND THE CONTRACT
EUROPEAN (CONTINENTAL) LAW AND ANGLO - AMERICAN
LAW
THE APPLICABLE LAW
SOME SPECIMEN CLAUSES
COMPREHENSION QUESTION
THE CONTRACT SENTENCE
THE LANGUAGE OF ANGLO-AMERICAN CONTRACTS
THE CLAUSES PATTERN IN CONTRACT ENGLISH
THE PASSIVE FORM
COMPREHENSION QUESTIONS

11
11
11

13
17
21
22
25
25
31
33
37
38

INTERPRETATION OF THE CONTRACT

43

1. THE ENTIRE AGREEMENT AND THE CONTRACT DOCUMENTS


2. THE WHEREAS - RECITAL
3. DEFINITIONS
4. SOME SPECIMEN DEFINITIONS
5. COMPREHENSION QUESTIONS

43
45
47
49
50

Part 4 THE PARTIES TO A CONTRACT


I.

THE NAMES OF THE PARTIES TO A CONTRACT

2. THE SIGNATURE
3. THE ASSIGNMENT OF RIGHTS AND DUTIES
4. COMPREHENSION QUESTIONS

Part 5 GOODS AND DELIVERY, PRICE AND PAYMENT


I. SCOPE AND DELIVERY
2. PRICE AND PAYMENT
3. COMPREHENSION QUESTIONS

Part 6

3
4
5
7
9

THE DEFECT AND THE LIABILITY


I. WARRANTY AND GUARANTEE
2. THE DEFECTS LIABILITY PERIOD
3. REMEDY
4. THE TIMING OF THE DEFECTS LIABILITY PERIOD
5. WHO PAYS FOR CLAIMS UNDER WARRANTY?
6. DEFECTS LIABILITY AND MAINTENANCE

54
54
55
57
58
61
61
69
72
75
75
76
77
79
80
81

7 - COMPREHENSION QUESTIONS

82

Part 7 BREACH OF CONTRACT


I. LIQUIDATED DAMAGES AND PENALTIES

87
87
88
91
93
99

2.
3.
4.
5.

LIQUIDATED DAMAGE: PROBLEMS


TERMINATION
THE LIMITATION OF LIABILITY
COMPREHENSION QUESTIONS

Part 8 FORMATION OF CONTRACTS


I. SOME LEGAL ASPECTS
2.
3.
4.
5.
6.
7.
8.
9.

THE OFFER
THE PURCHASE ORDER
ACCEPTANCE OF ORDERS
GENERAL CONDITIONS
ECE GENERAL CONDITIONS
APPLICABILITY
GENERAL NOTE ON NEGOTIATION
COMPREHENSION QUESTIONS

Part 9 THE INDUSTRIAL PLANT CONSTRUCTION CONTRACT

UNPACKAGING, TENDERING AND NEGOTIATION



2. THE PARTIES

4. THE EMPLOYER'S DUTIES: PRICE AND PAYMENT

5. VARIATION

6. TEST AND INSPECTIONS
7. AN EXAMPLE OF A SUPPLY CONTRACT
TO DELIVER AND

INSTALL MACHINERY (BILINGUAL)
1.

Part 10 EXAMPLES OF CONTRACT


I. CONTRACT FOR RICE
2. CONTRACT FOR LUBRICANTS
3. ABC CORPORATION'S CONTRACT
4. CONTRACT FOR GARMENT PROCESSING
5. CONTRACT FOR DISTRIBUTORSHIP AGENCY
6. JOINT VENTURE CONTRACT
7. SALES AND PURCHASE CONTRACT 1
8. SALES AND PURCHASE CONTRACT 2

Part 11 ICC MODEL CONTRACT FOR THE SALE OF GOODS


I. THE ENGLISH VERSION OF THE CONTRACT
2. THE VIETNAMESE VERSION OF THE CONTRACT
3. MODEL CONTRACT FOR THE SALE OF GOODS AND THE CIVIL
CODE OF VIETNAM

APPENDIX
- CONG 1.fric VIEN 1980

104
104
108
109
109
109
110
110
111
111
114
114
117
122
123
126
129
231
231
241
249
260
273
306
322
334
340
340
354
369
385
385

2 HOP DOING MUA BAN TAI SAN THEO LUAT DAN SVCOA NUOC

CONG HOA XA HOI CHU NGHIA VIET NAM

428

BIBLIOGRAPHY
Anderson, Ronald A. Business Law. Cincinati: South Western 1980.
Black, H. C. Black's Law Dictionary. 5th ed. St Pault: West. 1979.
Dy, Nguyen Duc, et al. Tt? di en ngoai
thtrong, Ha NOi. 1985.

Throng Dai hoc Ngoui

Dy, Nguyen Dile. Tit dien gidi nghia kinh to kinh doanh, NXB Khoa
hoc va Ky thuat. 1996.
Dam, Nguyen H6ng. Van tdi ngoai thumg. Throng Dai hoc Ngoul
thtrang. 1987.
Dan, Nguyen Trong. Ngorr ngi? hop dong thu'ung mai Anh My. Sinh
hoat khoa hoc trubng Dal. hoc Ngoai thtrong. 1993.
Dan, Nguyen Trong. Cau, menh de va ngi? trong hop eking thuzing
mai quae re'. Ky y6u HOi nghi Khoa hoc 1c'T ni4rn 30 nam Vien ngOn ngir
hoc V* Nam. 1993.
Dan, Nguyen Trong. The language of business correspondence in
English. NXB Gido duc. Ha NO. 1992.
Groner, Sammel B. Modern Business Law. Reston. 1983
Mc (Draw Hill - 1992. Gifis, Steven H. Law Dictionary, Third Ed.
New York, 1992.
Nguyen Th6 et al. Ter dien Phap luat Anh Viet. NXB KHXH.
1992.
Federation Internationale des Ingenieurs (FIDIC): Conditions of
Contract 1987
-

International Chamber of Commerce:

+ Force Majeure and Hardship. Paris. ICC. 1984.


7

+ Guide to Penalty and Liquidated Damages Clauses. Paris


ICC. 1990.
+ Incoterms - Paris ICC. 2000.
+ Model forms for Issuing Contract guarantees Paris. ICC - 1992.
+ Rules of Concilliation and Arbitration. Paris. ICC. 1988.
Ma, Nguyen Thi va Thiet, Hoang Van. Phap ly dai cumig. TriOng
Dai hoc Ngoai thuong.
NOi. 1991
Ma, Nguyen Thi va
Hoang Van: Nhil'ng van
ngoai thumg. TrtOng Dai hoc Ngoai diming. 1996.

de phap li trong

Pinnels, James. International Procurement Contracts.


Helsinki. 1991.

Prodec.

Sanderson, Steve. Ed. Standard Legal Forms and Agreements for


Canadian business. Canada 1989.
Staple, James G. et al. "Know - how in the united States" in the know
- how contract in Germany, Japan and the United States
Ed. Herbert Stumpf Deventer: Kluwer. 1984.
Tixu, Vu Hiru. Tdchdc ky thugt Ngoai thurnig. Trtthng Dai hoc Ngoai
thuang. Ha NOi, 1991.
White, James, et al - Uniform Commercial Code. St Paul West. 1980.
Trinh, Dinh Xuan.
tay thank loan Quo .c
Trubng Dai hoc Ngoai
thtrong Ha NO. 1991

Bo

lugt Dan su' dia nu& Cong hoa xar 110i chi nghig Viet Nam.
Vietnam Law & Legal Forum. 1996.
Ludt thumig mai cua niffrc COng hoa xd hgi chi nghra Viet Nam.
1996.
Legal writings on Foreign Investment in Vietnam. SCCI. 1992.
COng uOc Vien 1980

ye Hop (long mua ban QuCic to Paris. 1980.

HOW TO WORK WITH THE BOOK


This book is, as mentioned, meant to be used, firstly by commerce
students at the Hanoi Foreign Trade University and otber business
persons. The focus of the book is on both the language and other legal
aspects of contracts.
Anyone who wishes to use the book effeciently should, first of all, attain
a fairly advanced level of English and then have a good understanding of
such key subjects as:
- Laws applied to international business operations
- Foreign Trade Organizations and Techniques
- International Payment
- Shipping, Transport and Insurance.
In order to understand, at the beginning, and be able to apply the contract
terms and conditions, the students, readers and users are required to work
through the book starting from Part I.
The working phases are recommended as follows:
Phase 1:
- Understanding technical terms
- Being able to analyze clause structure
- Understanding every single grammatical unit.
Phase 2:
- Understanding legal and technical aspects as explained in each
part
- Reading sample provisions

- Reading and understanding short contracts, and then long ones


Phase 3:
- Translating some simple short contracts into Vietnamese, and
comparing them with the ones provided in the book
- Drafting short provisions, and then long ones
- Drafting a contract
- Discussing it with someone who is an authority on the subject
matter.
In the course of using this book, it should be kept in mind that laws are
constantly changing and it is the drafter, not the author of this book, who is
responsible for the effectiveness of the drafted contract clauses or the
contract itself. It is, therefore, essential and vital that the students, users
and readers should have a good command of English and a comprehensive
knowledege and experience in international business.

Prof. Dr. NGUYEN TRONG DAN


2007

10

Part 1

THE RELATIONSHIP BETWEEN


THE LAW AND THE CONTRACT
1. BRIEF INTRODUCTION TO THE LAW AND THE CONTRACT
When negotiators from different countries contract, they create a legal
instrument. What is the relationship between this legal instrument and the law
of the two countries?
Two parties may agree to bind themselves in any way they choose, provided
their agreement does not come into conflict with the public law (including the
constitution) of their countries or with stringent provisions of the private law.
The constitution of a country embodies the generally accepted principles that
govern the country. In addition to a constitution, each country has laws. In
general, laws establish two kinds of rights and duties: (a) the rights and duties
that each citizen owes to and receives from the state, and (b) the rights to and
duties that citizens owe each other. The law that regulates the relationship
between state and citizen is called public law. Private law regulates the
relationship between citizens.
The public law of a country controls, for example, taxation, immigration, the
formation of companies and similar matters. Criminal law is also public law.
The private law looks at the behaviour of citizens (and companies) toward each
other. One branch of private law looks at agreements which citizens or
companies make with each other - this is the Contract Law.
2. THE RELATIONSHIP BETWEEN THE LAW AND CONTRACT
Business is based on agreements or Contracts. During the performance of a
contract, the parties may disagree on a particular matter and then the two parties
will study their contract and ask what it provides in such a situation. If there is
bind: rang buac
criminal law: luat hinh
legal instrument: cOng cu phap ly
private law: tv phap

provided: vdi diau kian la


public law: cong phap
stringent provisions: nhCing quy dinh nghiem ngat

11

no such provision, they must ask what, if anything, the law obliges them to do.
This raises the most basic question about contracts.
What is the relationship betweenc the contract and the law?
Example
BEC (British Export Co.) is an English company. It makes an offer to supply
the Power Co, (PC) of Vietnam with relays for 2 pounds each.
Under the English Contract Law, the English company has the right to cancel
its offer at any time before PC accepts it. Although BEC has this right, it may
agree with PC not to cancel its offer, say, before Sept. 30. In other words, BEC
can, if it wishes, give up or waive one of its rights under the Law of Contract.
The waivable rights are said to be disposive. Of course, BEC's waiver applies
to the offer it is making to PC only. It keeps its right to cancel offers made to
others.
Reinarks

- This example shows exactly the relationship between the contract and the
law: a contract sets out the rights and duties that apply between the two
parties. A contract sets aside rights and duties that exist under private law
(e.g. BEC's right to cancel its offer) and creates new rights and duties (e.g.
the duty to deliver goods or the right to payment).
- And the public law? The provisions of the public law are never disposive.
For example, public law in Vietnam forbids the use of certain plastics in
the manufature of insulation for cable. Can BEC agree with PC that this
law does not apply to their contracts? Obviously not. Public law is not
disposive - the parties to a contract cannot set it aside.
- The idea of "law" that we have discussed so far is, of course, the traditional
western view. This view stresses that law and morality are close partners:
The purpose of law is to provide order, stability and justice. Thus viewed,
the law consists of relatively fixed rules which regulate conduct according
to the morality of the community. Proper conduct, as determined by the
community, should be allowed or required. Improper conduct should be
prohibited. Law then is a social institution, it is not an end in itself but is an
instrumentality for obtaining social justice (Anderson, 1980 p.17).
contract law: luOt help clong
disposive: co the khutc ter
oblige: bat buiic

12

waive: khutc tit


waivable rights: quyen co the khuUc tir
waiver: nguti khutc to quygn cluvc hutng

- Nothing could be further from the traditional eastern view. In the extract
below, the long-standing Korean view of "Law" is presented:
The idea that law is an accumulation of collective experience never had an
existence in the Korean political tradition. Law was an instrument for
chastising the vicious and the depraved. It was sharply distinguished from
custom. It always signified a norm with physical force as a sanction behind
it. It was therefore synonymous with punishment, no more or less. It is little
wonder that the ruling elite considered law beneath its dignity. Indeed, the
concept that law applies only to the barbarians or to the ignorant masses
and never to the proper Chinese or to the rulers is strongly rooted in
Korean thought. When the present- day Koreans try to follow the AngloAmerican example, they have to depart so far from their traditional ways
of thinking that one cannot help wondering whether it is feasible, let alone
advisable to do so (Pyon-choon 1982 pp. 19 and 30).
If we accept this view as typically eastern, then clearly the gap between
easterner and westerner is wide. For a westerner, a contract is of the highest
significance. It put into words powerful moral forces as they apply to the case
in hand. Behind the contract stands a huge body of law and 3,000 years of
religious and moral tradition. For the easterner, the contract is a simple
agreement without such psychological and philosophical roots. Both sides
should be aware of this gap during contract negotiations. It is the source of
much misunderstanding.
3. EUROPEAN (CONTINENTAL) LAW AND ANGLO - AMERICAN LAW

"Continental" law
The so-called "continental" law prevails in most of continental Europe, in
France and Germany for example. This law derives from a code which the
Roman Emperor Justinian developed 1,50Q years ago. For this reason, lawyers
often call it "Roman law". The Code Napoleon of 1803 developed and updated
Justinian's code and influenced many legal systems around the world including
those of Japan and most South American countries. The essence of
"continental" law is Codification. A clear code expresses what is legal and what
is not. The German BGC (Civil code) is an excellent example. The continental
accumulation: tich luy
beneath one's dinity: kh6ng xerng vol pha'm cach cua...
chastising: trerng trq
conduct: qui t6c ung xer
depraved: suy doi, sa doe
forbid: cam

insulation: cach diOn, nhiOt


Justice: c6ng ly
morality: dao dim
norm: tiou chugn, nguyen thc
sanction: trirng phat
set aside: b6 qua, b6 ra ngoai
vicious: xali xa, deic c

13

family of law has well developed private law, especially the contract and the
commercial branches.
"Anglo American" law
-

Unlike Continental law, the Law of England, the United States (and many other
English - speaking countries) is not completely codified. The tradition of
uncodified law goes back to ancient kings who sat under oak trees and made
legal decisions case by case.
To achieve fairness, the king decided each case in line with earlier decisions in
similar cases, the so-called precedents. For this reason, lawyers often call
Anglo - American Law "case law".
Today, public law is generally codified, while private law remains largely case
law. The case - law system prevails in England, in the United States, and in
many ex - colonies of Britain such as Australia.
It is important to note that the USA has codified its commercial law - tidying up
the chaotic situation in which some fifty states followed often widely different
legal practices. The Uniform Commercial Code (UCC) was written between
1941 and 1952. A 1962 revision was adopted by 49 states. A 1972 revision was
also widely adapted, although different states and courts interpret the UCC
differently, it offers a vital guide to current American thinking.
Because England and the United States were predominant in world trade until
recently, Anglo - American legal thinking strongly influences international
practice. The Anglo - American family has a fully developed private law. In
particular, the big trading countries have developed a strong commercial and
contract law.
Anglo American and Continental Law: the Differences
-

Anglo - American contract law is largely case - law. Each decision on a new set
of facts or on the construction of a previously undisputed law by a judge creates
a precedent. This precedent may be binding, if so future judges will follow it.
The chart below compares how Continental and the Anglo - American law treat
the relationship between a case and the law.

Anglo-American law: luat Anh-M2


case law: luOt an 10
codify: soap thanh luat
barbariaus: ke man rq
code: bq luOt
Continental law: luOt chau Au

14

oak tree: cay soi


precedent: tin la, an la
UCC: bQ luOt thu'ang mai th6ng nhat
philosophical: trial hoc, triet ly
psychological: tam ly
elite: tinh nhua, qui ph&

The Anglo - American and the Continental approaches to law produce different
styles of legal argument, and very different contract language. Much of the
material in the following chapter explores these differences. Let's take a single
example for now: the length and complexity of Anglo - American contracts.
You have probably noticed that English and American lawyers draft long
contracts in difficult language. Why is it? Perhaps lawyers are paid by the
word, and a long contract makes more money than a short one! Although it was
true in the past, it is not the heart of the problem at present.
In the Anglo - American legal world, as we have seen, nobody knows the result
in any given case until the judge reaches a decision. If the parties want to avoid
surprises, they must draft a detailed contract covering all future possibilities.
This makes contracts long and full of exceptions and conditions. Further,
judges must take binding precedents into account when making their decisions.
Each case may have dozens (even hundreds) of precedents. 'Contract language
has developed over the centuries to "force" the judge to arrive at the same result
whatever precedent(s) he or she uses. One example, if a judge once refused
damages because the plaintiff had incurred "costs" while the contract spoke
only of "expenses". Future contracts will tend to speak of "costs and expenses",
and thus avoiding the problem.

approach: phtrang phap tigp can



exception: ngoai le

incure: phat sinh

plaintiff: nguyOn dan


take st into account: tinh den...
tend: cO xu fluting.

15

CONTINENTAL

ANGLO-AMERICAN

Start with a clear legal code

Start with a case decided on its merits.

When a case occurs, the judge simple


applies the code. Sometimes the
judge must interpret the code to see
how it applies in a particular case

When a similar case occurs, the judge


decides the case on its merits and in line
with the precedent set by the first case.

Very difficult cases go to a higher


court. The higher court interprets the
code and decides how it applies in
the difficult case.

A huge body of case law develops with


many precedents in slightly different
cases.

PERHAPS
The legislature passes a statute (= law)
that tidies up a complicated situation, or
it may pass completely new laws.

Before applying a statute, a court may


evaluate its constitutionality . This
means that the courts may reject a
statute and refuse to apply it, if it is
found to be unconstitutional. Judges
also have wide powers to interpret
statutes; the court must decide what the
statute means. "The courrt's
interpretation is the law" (Groner, p.8)
constituonality: tinh, khth nang lap hian
interpret: then giai
legislature: co quan lap phap

16

merits: tinh fiat (cue vu kien)


occur: phat sinh, xay ra
statute: hanh vi lap phap, luat thanh van

4. THE APPLICABLE LAW

No contract is complete. When the contract does not answer a question, the
answer lies in the applicable law, the law of a particular state or country. In
principle the parties are free to choose the law which applies to the contract.
What is important in choosing an applicable law? What happens if the parties
cannot agree on an applicable law?
The parties should agree on the applicable law before drafting a contract.
Without a defined applicable law, the parties may write unenforceable
provisions. Further, some applicable laws require a more detailed contract than
others. If the parties simply cannot agree on a law, then they must write a very
long contract.
If a contract is a fish, it swims in water. In principle the parties are free to
decide which water their fish will swim in. A Chinese - German contract could
choose German, Chinese, English, or, to oversimplify a little, any other national
law.
You often find the Applicable Law clause at the end of a contract. Even so, you
should turn to it first before reading the rest of the contract. Some provisions of
a contract change their meaning radically under different legal systems.
An example of a carefully worded applicable law provision:

This contract, and all questions concerning its formation, validity, interpretation
and application shall be governed by the laws of the State of New York
Study this wording. It says that the laws of the State of New York govern the
contract. That is clear enough. The clause also mentions four questions
governed by these laws:

4.1. Formation
Was the contract correctly formed? That depends on the applicable law. But if
the contract was not correctly formed, it does not exist, and so there is no
applicable law. And if there is no applicable law, it is impossible to decide if
the contract is correctly formed or not! This legal knot is easy to untie if the
applicable law: luat ap dung
defined: dich danh
formation: hinh thanh

govern: chi ph6i


oversimplify: don gian h6a qua mut
unforceable: khOng c6 hieu lut
validity: thdi han hiau luc

17

parties agree that not only the contract itself but also the question of its
formation is subject to the laws of the State of New York.
4.2. Validity

Is the contract valid? If not, the same problem (and the same solution) arise as
with Question 1, Formation.
4.3. Interpretation

How is the contract to be interpreted? To understand this point we must


distinguish between substantive law and rules of procedure. Substantive law is
the law as it applies to the behavior of the parties. What does the law require
them to do? Rules of Procedure apply to the court and its way of conducting its
business. The rules of interpretation are procedural rules, not substantive laws.
This wording makes it clear that both the substantive laws and the rules of
interpretation are those of the State of New York.
4.4. Application

How will the parties carry out their duties? What rules apply to the performance
of the contract? As with interpretation, a dispute might arise about a substantive
law and procedural rules. Again the wording makes the situation absolutely
clear.
An applicable law clause not only states the law applicable to the contract, it
sometimes states what law is not applicable. This clause is from a subcontract
for space technology. The main contractor is American; the subcontractor is
German.

The contract shall be governed by, subject to, and construed in accordance
with the laws of the State of Florida; This Contract shall not include or
incorporate the provisions of the "United Nations Convention on Contracts
for the International Sale of Goods"

be subject to: re thu'ec vao



legal knot: chot phap ly
rules for procedure: quy tac ye thu tyc

18

substantive law: lust flux tai


untie: gO cal

This contract was written at a time when both the United States and Germany
were in the process of ratifying the United Nations Convention (the so-called
Vienna Sales Convention). The parties wished to exclude its provisions from
their agreement. Since the matter is disposive, they had every right to do so.
What happens if during negotiations the two parties cannot agree on an
applicable law? If a French company, for example, will not accept Chinese law,
and its Chinese counterpart will not accept French law? First, the parties could
decide on a neutral law, for example, English law, or Swiss law as applied in
their respective countries. Second, the parties might agree to the law of one
side, but write a very detailed and extensive contract leaving almost nothing for
the applicable law to decide. Accepting the law of "the other side" is not
particularly dangerous if you research carefully and write a clear, detailed and
fair contract. There is a third possibility. If two sides reach no agreement, you
sometimes see a provision such as this:

13.1 During the performance of the Contract, any dispute in connection


with the Contract shall be settled by both parties through consultation
in the spirit of friendliness; If no agreement can be reached after such
consultation, the dispute shall be submitted to arbitration

13.2 The arbitration shall be conducted in the Arbitration Institute of the


Stockholm Chamber of Commerce, Sweden
13.3 The law applicable to the arbitration shall be neutral and be decided by
the arbitration committee

arbitration: trong tai


construe: didn clich
consultation: hip thtrang
convention: cong vac

dispute: tranh chap


neutral: trung lap
ratify: phO chudn
respective: mOi, ttrng, rieng

19

Allowing the arbitration committee to decide the applicable law is dangerous.


Neither party knows what law to apply to the contract. The results of fairly
common actions become unpredictable, and the chances of an expensive
dispute increase.
The next clause, taken from a contract to supply German equipment to the
United States, illustrates a fourth possibility:

This Agreement shall be interpreted in accordance with the laws of the Federal
Republic of German. If, however, the German law conflicts with Texas or U.S.
federal laws regarding any dispute between the parties, then the parties agree to
use their best efforts to negotiate an equitable compromise acceptable to both
sides hereto; In the event that such a compromise cannot be reached in a timely
manner, then the dispute shall be settled in accordance with the separate
"Arbitration Agreement" between the parties

The parties were (apparently) unable to agree on one applicable law, so they
named three. The clause foresees trouble, disputes and arbitration ahead
because of this awkward arrangement. In the end, the arbitrator will decide
what law really applies.
A surprising number of international contracts use the weaker options, in effect
allowing the court or arbitration to decide the applicable law. How does the
court, if required, make its decision? What does it take into account? The ICC
Rules of Conciliation and Arbitration 1988, says:

In the absence of any indication by the parties as to the applicable law, the
arbitrator shall apply the law designated as the proper law by the rule of
conflict which he deems appropriate (Article 13.3)
This doesn't help much: the rules governing conflict of law are a study in
themselves, and so, for the parties to the contract, the arbitrator's decision is
unpredictable. As a rule of thumb, however, the court usually weighs four
factors, whatever conflict - of - law rules it is applying.

awkward: vung ve
clause: diet., khoan
compromise: nhuvng b6
conflict: xung d6t
equitable: cOng bang

20

foresee: luring trutt


ICC Rules of Conciliation and arbitration 1 986:
quy Mc h6a giai va trong tai 1988
unpredictable: khOng luring trutc duce

a. The place of performance of the contract (i.e. the place where most of
the work is actually done);
b. The place of execution (= signature) of the contract;
c. The language of the contract;
d. The currency or the weights and measures prescribed.
Taken together, these points show the gravity of a contract - it's "natural
weight". It practice, the place of performance, is often decisive. In an FOB
sales contract, this is the country of the seller. In a construction contract, that of
the buyer.
5. SOME SPECIMEN CLAUSES

Applicable law This contract shall in all respects be construed and interpreted
in accordance with the law of the People's Republic of Bangladesh including
any such Laws passed or made or coming into force during the period of the
Contract

Governing Law These General Conditions and the Contract are governed by
Italian Law

Applicable Law Regardless of the place of agreement, the place of


performance, or otherwise, this agreement and all amendments, modifications,
or supplements hereto, shall be construed under, governed by, and the legal
relations between the Parties hereto determined in accordance with, the laws of
the Republic of the Philippines

conflict - of - law rules: qui pham luat c xung dOt or otherwise: hoac khac di
regardless of: bat ke
designated: chi dinh
rule of thumb: qui tbc thvc nghiem
gravity: trong diem
specimen: mau

21

In each case, the water round the fish is labeled: Bangladeshi law, Italian law
the law of the Philippines. Even so, the third formulation is clearly better than
the other two: it takes into account most of the legal problems that arise in
disputes about the applicable law.
IMPORTANT REMINDER: The applicable law governs the disposive
provisions (or traditions) of the private law: things that the parties could decide
themselves but - for whatever reason - left unregulated. Public law always
applies, whatever the parties agree.
6. COMPREHENSION QUESTIONS

6.1. A Tax - Free Contract

BEC, an English company, is selling switchgear for power stations in Vietnam.


The parties agree that "English law applies". BEC, however, wants to ensure
that it is not liable for tax under Vietnam tax law. Therefore the lawyer drafts
this clause:
All income taxes or other tax obligations created as a result of this contract
shall be assessed and regulated exclusively according to the English tax law in
force at the time of assessment

I. Is BEC now free of Vietnam income taxes? (Choose one answer)


q YES
q NO - because tax law is public law and the parties cannot set it aside.
q NO - because the clause is worded too weakly.

ensure: bac, dam


hereto: 1. doi vUi hop clang nay
2. tham gia hop dong nay

22

liable for: clip trach nhiOni


tax-free: mien thue

2. Does the clause below create a "tax - free contract" for BEC?
The buyer shall compensate and save harmless the Seller from all taxes assessed
against the Seller by the government of the Buyer's country

q YES

q NO

q YES, UNLESS...

6.2. Restatement
The clause below is from a contract for the sale of mining equipment to South
Africa:
Before and during the execution of the work, the Contractor shall collaborate
with the Representative authorized by him to ensure that all work is being
carried out in accordance with the requirements of the Mine and Works Act,
1956, the Factories, Machinery and Building Works Act No. 22. of 1941 as
amended applicable, as well as all regulations made in pursuance thereof

1. Are the Mine and Works Act, 1956, and the Factories, Machinery and
Building Works Act No.22. of 1941 Public law or private law?

q PRIVATE
q PUBLIC
2. Are "as amended applicable" and "all regulations made in pursuance
thereof" public law or private law?
q PRIVATE
q PUBLIC
3. If the Contractor agrees to this clause, is he taking on any additional
duties or giving up any rights that would normally be his?
q YES

q NO

4. What do you think the purpose of such lause is?

act: luat, dao


collaborate: hop tac

in pursuance: theo, theo ducli


save harmless: mien trach...

23

6.3. A Law without a Family

These presents shall be governed by and constructed in accordance with British


Common Law

An international bank included this clause in a Performance Guarantee.

Unfortunately:
a. There is no "British Law", only English or Scottish Law. (Scottish law
is a member of the continental law family.)
b. Specifying "Common Law" seems to exclude Equity and Statute Law.
Questions:

If a contract is a fish swimming in water, in what water does this

fish swim?
q ENGLISH COMMON LAW
q ENGLISH LAW IN GENERAL
q SCOTTISH LAW
q NO LAW

common law: th6ng phap (luat tuc le va an le)


equity law: luet tong bring, c6ng chinh

24

presents: hop Jong


statute law: luet thanh van hay an le

Part 2

THE LANGUAGE OF CONTRACT IN ENGLISH


1. THE CONTRACT SENTENCE
The opening sections of an Anglo- American contracts are often puzzling: it is
hard to see how the whereas, the witnesseth, and the rest fit together. Sadly,
many international contracts are poorly drafted: the wording is often
ungrammatical and sometimes nonsense. What is the key to contract language?
Traditional English-language contracts are drafted as a single sentence: the
"contract sentence". In principle, all the parts of a contract fit into a single
grammatical unit .
Lawyers are conservative. Lawyers working in English today may still draft
contracts in the ancient style, even though these old forms internationally may
be a source of confusion. One tradition is the drafting of contracts as a single
sentence. This sentence pattern has three main variations.
1.1. "This Contract Witnesseth..." (Variation 1)
The lease on the next page illustrates the most common contract pattern. No
matter how long a contract is, it can still follow this one sentence pattern. Let's
look at the grammar of the sentence:
THIS LEASE...

This lease is the subject of the contract sentence. Many contracts begin
with a similar subject: This Licensing Agreement, This Technical
Assistance Agreement, and so on.
BETWEEN...

The. word between introduces the names of the two parties. Each party is
usually given a " hereinafter referred to" title: the buyer or the seller;
Employer or Contractor or whatever.

conservative: beo thu


lease: hop dung cho thud va thud
puzzling: rec roi, khO hieu

whereas: xet, vi rang


witnesseth: lam bang charg

25

THIS LEASE
Made the tenth day of August 2000
Between
Alan Quartermain hereinafter referred to as " the Landlord"
And
Elizabeth Jenkins hereinafter referred to as " the Tenant"
Witnesseth:
That the Landlord hereby leases to the Tenant and the Tenant hereby leases from
the Landlord on the conditions attached hereto the apartment known as
Apartment 4 on the fifth floor in the building known as 13 Greek Street for the
term of three years commencing the first day of September 2000 and ending the
thirty-first day of August 2002 at the annual rent of $5,000 payable in equal
monthly installments in advance on the first day of each month during the said
term
In Witness Whereof,
Landlord and Tenant have respectively signed and sealed this lease as of the day
and year first above written.

WITNESSE TH THAT ..

This is a main verb. "This lease witnesseth that..." simply means "This
document is proof that..." (The -eth is an antique ending for the third
person singular, present tense.)
WHEREAS...
This lease contains no "whereas" clauses. It is commonly understood that
a string of whereas clauses at this point gives, if necessary, the
background to the agreement.

commence: b6t dau

contractor cht) than

employer: chi.), chi.) dau ttr
whereof: vi0c nay
26

hereby: theo hop dung nay


hereinafter referred to: sau day goi la ...
instalment: Pea dan

...THAT...
After the word that comes a string of noun clauses- a list of the agreed
rights and duties of the parties. Grammatically, of course, a noun clause
looks exactly like a sentence; for example: He said that he loves dogs but
his wife prefers horses.
The two clauses in italics are noun clauses, they are direct objects of the verb
"said". In structure, however, they are exactly like sentences. In the same way,
the many "sentences" in a contracts are noun clauses, direct object of the verb
"witnesseth". This means, of course, that the periods (full stop) at the end of
each provision in the contract are grammatically wrong, but in a long contract
they are unavoidable. (This also explains why the provisions of a contract are
often called clauses and not sentences).
IN WITNESS WHEREOF ....
The two parties sign the contract to "witness" it, in other words to "give
proof of their agreement". This use of the word witness can cause
confusion because, in many documents, the signatures of the parties must
themselves be witnessed. In this case, however, the signature of the
"witness" simply confirms that the signature of the party is genuine.
1.2. "Know All Men ..." (Variation 2)
This variation occurs in short document as Bid Bonds, less often in contracts.
The document below is a transfer of ownership for a new car. Again the
contract is a single sentence.

a string of: mot loaf


bid bond: bao dam dot than
italic: in nghiOng

unavoidable: kh6ng the tranh duw


variation: bien cach

27

Know all Men by These Presents


That
The Albert Motor Company, the Seller, whose address is 3 Dry Boulevard,
Alton, New Hampshire, for and in consideration of the sum of $ 17,000 paid by
Joe Ditherspoon, the Buyer, whose address is 1983 Long Lane, Alton, New
Hampshire, has bargained, sold, granted and conveyed; and by these presents
does bargain, sell, grant and convey unto the Buyer, the Buyer's successors
(heirs, executors, administrator) one Ford Mustang
Model 2002
Factory No Ap 23840984762HX543
Motor No 72LK753
assigns forever the same unto the Buyer and Buyer's successors (heirs,
executors, administrators)
In Witness Whereof;
the Seller has set his hand and seal or caused these presents to be signed by its
proper corporate officers and caused its proper corporate seal to be hereto
affixed, on the eleventh day of October 20...

KNOW ALL MEN ...

This means "All men (people) are informed ..." know is main verb of the
contract sentence : it is in the command (imperative) form.
BY THESE PRESENTS ...

These presents means "these clauses present before you" or simply "this
contract".
THAT...

The rest of the contract is a list of noun clauses containing the information
that "all men should know." As with Variation 1, any number of "whereas"
clauses can follow the word "That".

bargain and sell: ban


by these presents: bai hop clang nay
for and in consideration of: nhan

28

grant and convey: chuyen


In witness whereof: de lam bang chirng cho vi0c nay
know all men: moi ngtrai duVc thOng bao (biet)

"K' THE SELLER ...

The name of the seller is introduced


FOR AND IN CONSIDERATION OF...

The price is named


"Y" THE BUYER...

The name of the Buyer is introduced.


... HAS BARGAINED, SOLD...

The seller has sold ... Then the goods are named
IN WITNESS WHEREOF...

The formula is the same as for Variation 1. (The seal in the case of a
Transfer of Ownership like this is important; since only one party signs
the document, the seal makes it legally binding.)

1.3. "The Parties Hereby Agree That..."'


The agreement on the next page is a standard form for selling a second-hand
car in the United States. It contains a heading that is not integrated into the
contract sentence, and then a double wording. The rights and duties of each
party exactly balance, resulting in two mirror-image sentences.
This form is fairly common in short agreements or in a "one-page" contract to
which many contract documents are annexed.
ARTICLES OF AGREEMENT

The name of the agreement is, in this case, simply a title outside the
grammatical structure of the contract sentence.
BETWEEN...

The word between introduces the name of the two parties. This contract
illustrates a common but old-fashioned usage. The first name is said to be
"of the first part" and the second name "of the second part" and "the party
of the second part".

annex: kem, lam thanh phy lyc


integrate: gQp, nha't the

transfer of ownership: chuyen quyen so) hit

29

Articles of the Agreement


Between
Aland K. Whitbread, who resides at
12 Dogweed Lane
New York , NY of the first part
And
Elizabeth Dwell, who resides at
3 Catskill Drive
New York, NY of the second part.
The party of the first part in consideration of nine thousand dollars ($9,000)
covenants and agrees to sell to the party of the second part a 2003 black Ford
automobile including the transfer to the party of the second part of the
Certificate of the Title and any other documents necessary to effectuate a
complete transfer of title from the party of the first part to the party of the
second part
The party of the second part, in consideration of the complete transfer of title
of the 2003 black Ford automobile from the party of the first part to the party
of the second part convenants and agrees to tender payment of nine
thousand dollars ($9,000) to the party of the first part in the form of cash
with payment due on the date of delivery of the said automobile
In Witness Whereof,
the parties hereunto have set their hands and seals the seventh day January
in the year two thousand and three.

THE PARTY OF THE FIRST PART CONVENANTS AND AGREES...

This contract sets out the rights and duties of the first party in one
sentence, and the rights and duties of the second party in a second
sentence. In both cases, consideration is mentioned.
IN WITNESS WHEREOF...

The formula is the same as for Variation 1.


convenant and agree: dungy
effectuate: thut hiOn

30

old-pashioned usage: cach dung da cif


to tender payment: thanh toan

2. THE LANGUAGE OF ANGLO-AMERICAN CONTRACTS

The Anglo-American contract often seems lengthy, complicated and


repetitious. A negotiator may try to simplify the English wording. But this is
sometimes dangerous.
Anglo-American contract law is mostly case law, so lawyers draft contracts
with cases (precedents) in mind. If a judge in the past based a decision on the
precise wording of a contract, later contracts may try to avoid or embrace the
implications of that decision. Further, to compensate for the absence of a
codified law, lawyers try to cover all eventualities in the contract itself. The
result is "contract English" - a language with rules of its own.

The contractor shall be under no liability whatsoever by way of indemnity or


otherwise for or in respect of destruction of or damage to the Works or to the
Temporary works or any property whether of Government or third parties or for
or in respect of injury or loss of life which is the consequency, whether direct or
indirect, of the outbreak of war (whether war is declared or not) in which the
country shall be actively engaged, invasion of the country, act of foreign
enemies, rebellion, revolution or military or usurped power in the country, civil
war, or otherwise than amongst the contractor's own employees or the
employees of any subcontractor or a contractor executing any specialist works,
riot, commotion or disorder, (hereinafter comprehensively refereed to as "the
said special risks") and the government shall indemnity and save harmless the
contractor against and from the same and against and from all claims, demands,
proceedings and damages, costs, charges, and expenses whatsoever arising
therefrom or in connection therewith and shall compensate for contractor for any
loss damage to the property of the contractor used or intended to be used for the
purpose of the works, and occasioned either directly or indirectly by the said
special risks

codified law: luat thanh van


embrace: bao gom
eventualities: tinh huOng co the xay ra

lengthy: dai thing


repetitious: lap, trung lap
31

Anglo-American law is largely case-law: each decision by a judge may create a


precedent. If this precedent is binding, future judges always follow it. The
Anglo-American drafter knows this and writes the contract to avoid the
problems created by binding precedents in the past. Study. for example, the
language of the contract provision above. It is Clause 114 of the Conditions of
Contract of the Public Works Department of a country in East Asia within the
Anglo-American law family.
This clause uses the word or many times. In each case the drafter has a
particular problem in mind. Let's take three examples:
Example 1
The clause mentions "the outbreak of war". This seems clear enough, but the
drafter adds "whether war is declared or not" Why? The reference is probably
to the war in Vietnam. Officially the United States calls this a Conflict, not a
War, since war was not declared. During the 1970s, contracts that excluded
liability for problems caused by "war" ran into legal problem, and so drafters
adopted the habit of adding "whether war is declared or not".
Example 2
The drafter writes of "property... used for the purposes of the Works." The
wording here perhaps reflects a judgment in particular case where the judge
distinguished between property "used for the purposes of the Works" and
property delivered to the site but not yet in use. The drafter covers both
possibilities.
Example 3
One phrase here is typical of Anglo-American drafting: "all claims, demands,
proceedings, damages, costs, charges and expenses whatsoever". The drafter is
probably making no difference between claim, proceeding and demand or
between costs and charges and expenses. He used this list of terms for safety's
sake: whatever the situation, the contract covers it. This need for safety reflects
a major principle of case law: it is impossible to know the result until the case

foreign enemies: ke thei ngoai bang


all claims, demands, proceedings damages: tat ca
thief hai
all costs, charges and expenses: tat c chi phi
revolution: cach mang
in respect of: ve, co lien quan d6n
indemnify: b6i thutng

32

military or usurped power: th6 luc quen


su va ciao chinh
rebellion: not loan
riot: bao d6ng, not loan

commotion: huyen rick


therefrom: of nhCing rut ro dOc biet nay
therewith: c6 lion quan d6n nhimg rui ro
da:c bet nay

has been decided. So, don't simplify the language of an Anglo-American


contract until a lawyer has studied it carefully.
A case in point: Courts in the United State have trouble with know-how
contracts. Is know-how the same things as trade secrets? And do both mean the
same as confidential information? The position is unclear. Accordingly we find
in a lawbook this recommendation:
The following conclusion can be drawn from an analysis of the terminology
used by the courts: (a) the cases are not reconcilable if it is assumed that the
different phrases (know-how, trade secrets, confidential information) are
intended to define dissimilar legal concepts; (b) the contract drafter who
wishes to cover as many future contingencies as possible should use an
alternative expression [= an expression containing alternatives] on the
theory that subjects matter which might elude one label will surely be
covered by another. Thus an alternative phrase such as "confidential
information, Know-how, and/or trade secrets" should cover most
contingencies. The alternative "and/or" provides the projected enforcer with
maximum flexibility in selecting that specific characterization of the misused
property which appears best suited to the facts and the law of the forum
(Staples and Bertagnoly, p.264).
Two points emerge here: First, case-law leads to considerable confusion about
the meanings of words; it is often necessary to use several words rather than
one to ensure that the true meaning is covered. Secondly, using several words
rather than one gives the lawyer great flexibility if the contract becomes the
subject of a court case.
3. THE CLAUSES PATTERN IN CONTRACT ENGLISH

Long sentences quickly become confusing in English. Especially in the


international arena, the drafter must know, and work within, the limits of basic
English clause structure when combining ideas into longer sentences.
Four basic patterns of combination are effective in English. Without making it
into a religion, many drafters try to limit themselves to these patterns,
especially if English is not the first language of either party.

confidential information: th6ng tin bi mat


contingencies: cac tru'ang hgp bgt nga
distinguish: Oen bat
know-how: bi guy& alternative: co thg they the
creolize: hinh thanh ng6n ngir ti? 3 ter hai
ngOn ngt`r ban deu
emerge: not len

reconcilable: co thg h6a giai


trade secret: bi mat nhe nghe
blurred: nhat
elude: khuygt

33

English is a mix of French (from the Norman conquerors of 1066) and AngloSaxon (the German dialect of the invaders who filled the vacuum left by the
Roman withdrawal from England). When languages combine (or creolize), two
results are common:
- An oversize vocabulary with blurred distinctions of meaning;
- A simplified grammatical structure with usage and idiom replacing
"logical" rules.
Both results occurred in the case of English. Because English grammar is thin
on rules and rich in "illogical" usage, it is difficult to express complex, logical
relationships among ideas. As a basis for expression, try to work with the four
basic clause structures that underlie most well written contract provisions.
Structure 1: Main Clause Plus Main Clause
Two sentences (main clauses) joined by and (or a similar conjunction) - this is
the most frequently used structure in the English language. Because most
languages freely use and, but, or between main clauses, this construction
presents no problems internationally.

MAIN CLAUSE

MAIN CLAUSE

Example:
The stipulated prices are fixed, and they are to be understood delivered and
paid to the place of destination

The headings and marginal notes in these General Conditions shall not be
deemed part of this Contract, and they shall not be taken into consideration
in the interpretation thereof
Structure 2: Main Clause Plus One Subordinate Clause
The simplest relationship between two ideas is to make one into a main clause
and the other into an explanatory or subordinate clause. These simple sentences
are sometimes enough to express quite elaborate contract provisions.

conjunction: lien to
delivered paid to the place of destination:
ctrac van 6i a tra den nai den

34

marginal notes: ghi chO ben le


subordinate: menh de phy
thin on rules: lOng go ye qui tec

MAIN CLAUSE

SUBORDINATE CLAUSE

Example:

The Employer has the right to terminate this contract if construction work is
not carried out in accordance with local by-laws

You can also begin with the subordinate clause, especially when using the ifclause; the addition of the word then makes the relationship particularly clear.

SUBORDINATE CLAUSE

MAIN CLAUSE

If the construction work is not carried out in accordance with the local bylaw, then the employer has the right to terminate this contract

Structure 3: The Chain: Main clause plus more than one subordinate
clause
In contracts, a string of conditions is often attached to a main provision. Then
you must "chain" the clause:

MAIN CLAUSE

SUBORDINATE
CLAUSE
(TYPE A)

by-law : cac van ban chid lua't

SUBORDINATE
CLAUSE
(TYPE A)

SUBORDINATE
CLAUSE
(TYPE A)

if - clause : menh de bet deu bang "if"


terminate : ket thuc

35

Naturally, the main clause can also come after the daisy-chain. You should
repeat the conjunction, for example, if, at the start of each clause. A ood
example occurs in these Terms for. Deliveries Abroad:
The delivery time has been adhered to if the consignment is ready for
dispatch ex works within the agreed period and if notice to this effect is sent
to the purchaser
This structure is common in whereas-recitals: "whereas ... whereas...,
whereas..., and whereas..."
Structure 4: Main clause between subordinate clauses
Where a sentence contain clauses of several types (let's say an if-clause and a
because-clause), you should place these clauses on either side of the main
clause:
SUBORDINATE
CLAUSE
(TYPE A)

MAIN CLAUSE

SUBORDINATE
CLAUSE
(TYPE B)

Example:*

Where the contract provides for deliveries in lots or installments, penalties for
late delivery shall be calculated on the basis of the value of each lot or
installment, provided that the late delivery does not impede the general
performance of the contract

adhere to : tuan thu


consignment : chuyen hang
ex - work : tai )(clang
: ngan can, can tret
at one's discretion : dua vao su suy
)(et caa ai dO
36

muddle : Ion x6n


notice to this effect th6ng bao ye va'n de nay
penalties : phat
provided that : mien la, vdi dieu kin la
arbitrator : trong tai

4. THE PASSIVE FORM .

Contract English is rich in passive verbs. Unluckily for lawyers, modern


English is moving away from the passive. Further, many languages have no
passive; their speakers have no "feel" for this form.
Avoid using passive verbs where active verbs convey your meaning clearly.
Passive verbs test out badly, especially in instructions. Readers respond slowly
and less accurately when instructions use passives. For example:
Passive

For the watch to be set, both the command button and the recessed set button
must be used. If the set button is to be depressed, use should be made of a small
object such as paper clip. Damage could be incurred by the watch if a large
object is employed.
Active

When you set your watch, you'll have to use both the command-button and the
recessed set-button. Use something small, a paper clip for example, to depress
the set-button. If you use something bigger, you could damage your watch.
The passive is sometimes dangerous if you assign a duty but fail to say who
must perform it. Just compfare the following Examples :
A monthly progress report should be The Contractor should send a
sent to the Employer at his registered monthly progress report to the
Employer at his registered office
office
Or
Payment is required on or before 13th
of each month

The Licensee shall pay the Licensor


on or before 13th of each month

The problem is acute with oriental languages which often have no passive form.
A Chinese-speaker, for example, may miss the difference between:


defective : cO khigrn khuyet

loophole : ke ha c6 the trenh ne dtrac

purity : dq tinh khigt, thugn chgt

assign : giao (vigc)


inaccurately : khOng chinh xec
paper clip : kep gigy

37

The Licensee's personnel were given training (Passive) and


The Licensee's personnel were giving training (Active)
Where possible, therefore, try to avoid the passive.
5. COMPREHENSION QUESTIONS

5.1. Study the form of the contract sentence in this Memorandum of


Understanding. How would you reword the document so that it makes sense
grammatically? Omit "witnesseth" or omit "expresses" an understanding and
add that after witnesseth.

Memorandum of Understanding
This Memorandum of Understanding expresses an understanding between the
Moran Corporation (hereinafter called "Moran") and The Ministry of Public
Works of the Republic of Verbena (hereinafter called "the Ministry")
regarding development of a photovoltaic system of power generation for use
in the Republic of Verbena
Witnesseth:

Whereas Moran and the Ministry have cooperated on the development of a


prototype system
Now therefore the parties hereto agree as follows:

licensee : ngtrai thus


licensor : ngud cho thus
memorandum of understanding : biOn ban ghi nha

38

prototype : nguyen mau


registered : da clang ky

1. Moran and the Ministry shall cooperate in producing a plan for the
installation of a pilot project plant at a site to be designated by the Ministry
[Further provisions]
In Witness Whereof the parties hereto have caused this Memorandum to be
this day executed in Verbena City

5.2.
1. Study this extract from a warranty for advanced electronic equipment:

Any defects or faults detected or occurring must be notified by the Buyer to


the Seller within 30 days of the defect or fault being detected or occurring

a. Can a clear distinction be made between faults and defects in a


warranty?
No q
Yes q
If no, why do you think the drafter used both
terms?

c. Can a fault be detected unless it has occurred?
No
Yes q

b.

If no, why do you think the drafter used both


terms?
2. Study this extract from a contract for electrical parts in a shipbuilding
project:
d.

All components used in the manufacture of the Goods shall be new and
unused and not of an age which would impair their operation; Reconditioned
or refurbished components shall not be used

components : linh kien


execute : thut hien, ky ket

pilot project plant : nha may thut nghiOm cua du an


impair : lam ton thuttng den

39

a. Is there a clear distinction between the terms new, unused,


and not of
an age which would impair their performance?
Yes q

No q

b. If no, why do you think the drafter used all three terms ? same as C :
c. Is there a clear distinction between reconditioned
and refurbished
parts?.
Yes q
d.

If no,
terms?

No q

why do you think the drafter used both

e. The second sentence seems to repeat the idea expressed in the first
sentence. Is there really one idea or two here?
One q

Two q

f. Is one, why do you think the drafter decided to use two


sentences?
3.

a. Rephrase these sentences in the active form:


Corrections to drawings shall be discussed (Passive Verb) and agreed
(Passive Verb) by such members of the Consortium as are thereby affected
(Passive Verb)

b.
A unanimous decision is required (Passive Verb) on all technical questions
by which members of the Consortium are affected (Passive Verb), and, as far
as single members are concerned (Passive Verb), their express written
approval is required (Passive Verb)
consortium : c6ng xo6c xiom, tap doan
rephrase : viet lai cho r6 nghia

40

unanimous : nhat tri

5.4. In the two cases below, the sentences need restructuring


If delivery occurs late, and in the event that such late delivery causes idle time
on the site, should such idle time exceed one shift, the Supplier shall be liable
for liquidated damages in the sum of $1,200 per shift lost

If the Licensee becomes aware of any trade-mark infringements in the


territory, so that the Licensor may take appropriate legal action, the Licensee
shall notify him immediately

aware of : bigt
infringement : vi /Mani
liquidated damage : mot ton thgt dtrac xac doh

shift : ca
territory : lanh th6

41

S.S. Rewrite the following confused sentence

If any claim is raised by the Purchaser against a member in respect of any


matter concerning the Purchase contract for claim another Member, if or
Member (s) is (are) responsible whether the claim is attributable to his (their)
share(s) of supply or to a failure by him (them) to carry out his (their)
obligations under the Purchase contract in a timely and correct manner or to
any other reason, then the responsible Member(s) shall immediately save
harmless from all obligations the Member held liable by the Purchaser

An explanation of the test may help you there. Briefly this is the situation. A
group of three suppliers (a consortium) is selling to a Purchaser. Each member
of the consortium has his own "scope of supply". If the Purchaser has a claim
against the consortium, he can bring it against any member; the members are
said to be "jointly and severally liable". Among themselves, however, the
members make an agreement. If the Purchase makes a claim against the "wrong
guy", then, of course, the "wrong guy" will have to pay, but the guilty party will
compensate the "wrong guy" in full.
(As a purchaser, you may sometimes deal with consortium agreements. It is
common practice for the employer to have the right to see the relevant
consortium contract of his contractors).

guilty party: ben co 16i


to be held liable: chtu trech nhiem
jointly and severally liable: cung chung trech nhiem
be responsible: chw trach nhiem
scope of supply: pham vi cung cgp, d6i ttrang cua hop dong

42

Part 3

INTERPRETATION OF THE CONTRACT


1. THE ENTIRE AGREEMENT AND THE CONTRACT DOCUMENTS

Anglo - American contracts often list "contract documents ". Why? And what
problems does this list may cause?
If the contract is the entire agreement, then outside documents are normally
excluded from the contract. Some contracts, however, include documents by
naming them specifically. This creates a problem if the included documents
contradict each other. For this reason, the drafter must rank documents in order
of priority.
Anglo - American law takes the contract as the entire agreement. In other
words, nothing outside the contract unless it is specifically referred to and
included as part of the agreement. In international practice, parties often wish to
"incorporate" (= include) outside materials into the contract such as: general
conditions, special conditions, subcontracts, the Incoterms of the International
Chamber of Commerce, and so on. To do this, the contract names such
materials as Contract Documents. For example:

Contract and Contract Documents

"Contract" means this Purchase Agreement itself, and all applicable General
Conditions of Purchase, Special Conditions of Purchase, specifications, the
Statement of Works, and manufacturing drawings


contract documents: tai lieu hop deng

contradict: mat./ thu6n

entire agreement: hap clang Ong the
in order of priority: theo trot
tiOn.

interpretation: din giei


statement of work:: thuyet minh ye nha may
unless: trii phi (lieu khOng)

43

All contract documents and the clauses of this contract shall be read, if possible,
so as to be consistent. In the event of conflict, the order of precedence for the
provisions and documents which constitute this agreement is as follows:
I. Any alterations typed on the face of the printed Purchase Agreement
2. The printed text of the purchase agreement itself
3. Specifications
4. Statement of Works
5. Manufacturing Drawings
6. The Buyer's Special Conditions of Purchase
7. The Buyer's General Conditions of Purchase

This clause is well drafted. It lists specific documents that are parts of the
contract (Don't worry if you don't know what all these documents are!), and
it accepts that with so many documents, contradictions are likely. To resolve
contradictions, it gives an order of precedence, or "seniority" among the
documents. The higher its place on the list, the greater the authority a
document has.

Some specimen clauses


This clause from a shipbuilding contract incorporates the Incoterms into the
contract and establishes the precedence between the contract and the Incoterms.

"Incoterms 2000" means Incoterms 2000, the international rules for the

interpretation of its terms, published by the International Chamber of


Commerce. When a terms from Incoterms 2000 is used in the Contract, the
rules and definitions applicable to that term in Contract except insofar as they
may conflict with any other provisions of the Contract, in which case the
provisions of the Contract prevail


alteration: thay ddi

In the event of: neil c6

precedence: sv &Mg trtrdc
insofar as: MI mut

44

prevail: thong, dirdc xem xet truft tiOn


seniority: sv o trOn
specimen: mk

In Section (e), the following clause from a procurement contract for a power
station allows the purchaser to regulate priority. The supplier is likely to be
unhappy about that.
The term Contract Documents shall mean and include the following which
shall be deemed to form an integral part of the contract:
a. Invitation to Bid, Instructions to Bidders, Contract Agreement,
General Conditions of Contract, and Special Conditions of Contract
b. Specifications of the equipment/ goods to be supplied and erected
under the contract as detailed in the accompanying Technical
Specifications
c. Supplier's bid proposal including the letters of clarification thereto
between the supplier and the Purchaser prior to the Award of
Contract
d. All the materials, literature, data and information of any sort given by
the supplier along with his bid, subject to the approval of the
Purchaser
e. In the event of any conflict between the above mentioned documents,
the matter shall be referred to the Purchaser whose decision shall be
final
2. THE WHEREAS

RECITAL

Most Anglo - American contracts begin with a "whereas - recital"


Why? What should the "whereas - recital" include and exclude?
A contract states the rights and duties of the parties. It does not discuss the
motivation of the parties, the business situation, or other important background
information. Without such information, however, the judge cannot always
interpret the contract correctly. The Parol Evidence Rule forbids the Anglo award of contract: tuyen b6 trung theu
bid: On dv than final: cu6i ding
Parol Evidence Rule: qui rac khi chifp nhan
phan khau chimg doi vUi nhfing dieu khoan
da thoa thuan cua hop dung

motivation: Bong cc
parol evidence: khdu chum
procurement: mua sa'm
integral part: bo: phan hop thanh
whereas - recital: lief Ice cac can cu de
hai ben ki hdp clang.

45

American judge to use background materials not expressly named as contract


documents. Accordingly the parties include matters of fact, expectation and so
on in the form of a whereas-recital.
Traditionally the Anglo - American contract is an "entire agreement".
Unfortunately, however, the text of a contract does not answer many important
questions: Why did the parties sign the contract? What circumstances make the
deal attractive? How long have the parties known each other? What future
business do they hope for? If a contract runs into trouble, the judge/ arbitrator
asks such questions in order to interpret the contract. Often the parties give
different answers. To prevent this uncertainty, lawyers write the answers to
these background questions into the contract. How? Through the whereas recital. Contracts often begin after "witnesseth that":

This Procurement Contract


between
The Styropak Company of Nanamia:
and
Verbena Packaging LTD of Verbena
Witnesseth that

WHEREAS the parties have for many years successfully traded together
AND WHERWEAS Styropak has recently developed biodegradable
Styrofoam packaging

After this opening come the rights and duties agreed by the parties. The word
whereas means because or considering that. In other words, whereas - clauses
are not provisions, promises or conditions - they are explanations. file above
example is a typical whereas - recital. If you look at it quickly, you'll see that it
contains two types of background information. Such information is useful to an
biodegradable: c6 the phan hu3, ye met sinh hoc
circumstance: trutng hop
deal: vu (thu'ong), viec buon ben
expectation: mong mu6n
styrofoam: xcip ti-r6

46

Anglo - American judge/arbitrator if the contract runs into trouble.


In a contract written under a Continental Law, a recital (or preamble") is useful:
it prevents misunderstanding. In an Anglo - American contract that contains an
Entire Agreement clause, a recital is essential. Continental lawyers often avoid
the complicated grammar of the whereas - clause. They prefer simple sentences
under the heading Preamble. The legal result is, of course, exactly the same.
The body of the contract records the rights and duties of the parties; the recital
states their motivations, their goals, and other background information.
3. DEFINITIONS

Continental law - makers include a precise definition of many important terms


in the law itself Because Anglo - American law is based on cases, it offers
many conflicting definitions. This leads to uncertainty, how will the judge
interpret a particular term if the contract gets into trouble? The Anglo American drafter must overcome this uncertainty. But how?
Anglo - American contracts often begin by listing definitions. The list defines
problem terms. It records special meanings that the parties have agreed. In
principle, definitions belong to "up front" in a clause of their own.
Let's begin with an example: BEC is negotiating a contract in India. The parties
agree that BEC's technical advisers shall have "holidays" free. To BEC,
Christmas and Easter are holidays. To the Indian company, they are not. To
avoid the problem, the lawyer must draft a definition of holidays.
In this contract "holidays" shall mean all legal holidays in the State of Kerala,
and, in addition, 24 and 25 December, Good Friday, Easter, Saturday, and
Easter Sunday
In international contracts, both continental and Anglo - American lawyers are
careful to include such definitions.
Some words always cause trouble unless drafters carefully define them. For
instance, the Conditions of contract published in 1987 by the Federation
Internationale des Ingeniurs Conseils (FIDIC) for Electrical and Mechanical
preamble: phan mo dau
assignee: nguti &Ito chuyen nhutng
Easter: 0 phuc sinh
Easter Saturday: Thu bay Le phuc sinh
Easter Sunday: Chu nhat Le phuc sinh

up front: phan deu


Good Ftiday:thir turtle Phyc Sinh, tha 6 tuan Thanh
incorporate: gam, g6p
letter of acceptance: thtr chip nhan tre

47

Works begins with thirty - seven definitions. Some examples:


"Contractor" means the person whose tender has been accepted by the
Employer and the legal successors in title to the Contractor but not "except
with the consent of the Employer" any assignee of the Contractor

"Contract" means the agreement between the Employer and the Contractor
for the execution of the works incorporating the Conditions, Specification,
Employer's Drawings and Contractor's Drawings, Price and completed
Schedules, Tender, Letter of Acceptance and such further documents as may
be expressly incorporated by the Letter of Acceptance

"Foreign Currency" means a currency of a country other than that in which


the Plant is to be installed

"Plant" means machinery, apparatus, materials and all things to be provided


under the Contract for incorporation in the works
A definition, as you see, performs two different tasks:
Task 1. Choosing a Meaning

If a word has several meanings, a definition pinpoints the agreed meaning. The
FIDIC definition of foreign currency does this. (The word foreign changes its
meaning according to the nationality of the writer, so a single, agreed meaning
is essential).
Task 2. Assigning a Meaning

If the parties attach a special meaning to a term - if they go beyond its normal
dictionary meaning - then the definition explains this special meaning. The
FIDIC definitions of contractor and contract work in this way. (No dictionary
defines contract as "the agreement between the Employer and the Contractor
for the execution of the Works, etc"). This is a special meaning agreed by the
parties)
48

Any defined term is usually capitalized throughout the text of the contract,
either the whole word or simply the first letter is printed in capital letters. This
alerts the reader to the special definition.
As a general principle: every term that the parties discuss in detail during the
negotiation is defined under Definitions at the start of the contract.
4. SOME SPECIMEN DEFINITIONS

The most common wording at the start of the definitions section is like this:

1. Definitions
In this contract, the following terms shall be interpreted as indicated:
1.1. "The Contract" means the agreement entered into
The wording below is more careful:
1. Interpretations
The following interpretations of terms shall apply except where the context
otherwise indicates:
1.1. "Acceptance" means the issue of a Quality Assurance and Acceptance
Certificate by the Contractor subject to...
The purpose of writing "except where the context otherwise indicates" is to
avoid a common problem: the use of a defined word in a different context. For
example, some contracts define the word works:

f. "Works" means all plant to be provided and work to be done by the


Contractor under the Contract

alert: bao dQng


capitalize: vi6t hoa

enter into: giao


pinpoint: khu bi6t, chi doh

49

If the contract somewhere speaks of "Delivery ex works", then clearly the


defined meaning of works cannot apply. The drafter avoids this problem with
the words "except where the context otherwise indicates".
A full definition often includes more than direct, formal definition. Sometimes
it adds examples or a "negative definition": a statement of what the term does
not mean. The definition below uses both examples and a negative definition.

1.12. "TECHNICAL DATA" shall mean any information


directly related to the design, engineering, development,
production, processing, manufacture, use, operation, overhaul,
repair, maintenance, modification or reconstruction of the MP2
system, associated equipment or spare parts

Formal
Definition

Such data includes, for example, information in the form of


blueprints, drawings, photographs, plans, instructions, computer
software and documentation

Examples

It does not include information containing general scientific,


mathematical or engineering principles

Negative
Definition

5. COMPREHENSION QUESTIONS
5.1. The One - Page Contract

Look closely at Clause 2 of the following contract form. Does it conform with
what we have said in this section? If not, how does it differ?

delivery ex-work: giao hang tai xcrang


where the context otherwise indicates: khi ngOn
canh bleu it)i khac di
ancilliary: phu, kern theo
be desirous: mong mu6n

50

negative definition: JO nghia phu dinh


overhaul: kiem tra de clai to
remedy: sera china
their respective laws: Itiat rieng cue ho

CONTRACT FORM
This agreement is made on the sixth day of May, 20..... between [NAME OF
PURCHASER] of [MAILING ADDRESS OF PURCHASER] (hereinafter
"the Purchaser") of the one part and [NAME OF SUPPLIER] of [MAILING
ADDRESS OF SUPPLIER] (hereinafter "the Supplier") of the other part.
Whereas the purchaser is desirous, the goods and ancilliary services listed in
the Price Schedules and described in the Technical Specifications should be
provided by the Supplier and has accepted a bid by the Supplier for the
provision of those goods services in the sum of [CONTRACT PRICE IN
WORDS AND FIGURES] (hereinafter "the Contract Price").
Now this agreement witnesseth as follows:
1. In this Agreement, words and expressions shall have the same meanings
as are respectively assigned to them in the Conditions of Contract referred
to;
2. The following documents shall be deemed to form and be read and
construed as part of this agreement, viz.:
a) The Bid-Form and Price Schedules;
b) The Schedule of Requirements;
c) The Technical Specifications;
d) The General Conditions of Contract; and
e) The Special Conditions of Contract;
3. In consideration of the payments to be made by the purchaser to the
Supplier as hereinafter mentioned, the Supplier hereby covenants with the
purchaser to provide the goods and services and to remedy defects therein in
conformity in all respects with the provisions of the Contract;
4. The Purchaser hereby convenants to pay the Supplier in consideration of
the goods and services and the remedying of defects herein, the contract
price or other sums as may become payable under the provisions of the
Contract at the times and in the manner prescribed in the Contract.
IN WITNESS whereof the parties hereto have caused this contract to be
executed in accordance with their respective laws the day and the year first
above written.

51

5.2. In 20..., Verbena Storage bought from Northern Chipboard technology for
making warehouse shelves from chipboard planks. For a period of five years,
Verbena Storage agreed to purchase the board directly from Northern.
Unfortunately, in tropical humidity, the boards bend under the weight of stored
components. Verbena Storage asks for help, Northern refuses. Verbena Storage
re-reads the contract. The relevant clause says :

Northern warrants the suitability of the chipboard for the manufacture of


storage shelves without defects under normal conditions. This warranty does
not apply in the event of incorrect use of the Chipboard. Further, the
warranty is void if shelves are used under improper conditions

Northern says tropical heat and humidity are not "normal conditions" and
installing shelves in tropical warehouses is "improper use". Verbena Storage
disagrees. Obviously the words normal and improper need interpretation. The
recital helps here:

WHEREAS the Northern Chipboard Company has worldwide expertise in


the manufacture of chipboard for all types of storage.
AND WHEREAS the Chipboard has been successfully used in all parts of
the world for the manufacture of storage shelves...

1. Underline the words in the recital that help Verbena Storage.


2. Northern and Verbena Storage interpret normal and improper differently.
Which interpretation is supported by the recital?

5.3. Verbena Fan makes electric power fans for industrial applications. Verbena
Fan buys technology and hi-tech parts from BEC. A clause in the contract says:

bend: cong
humidity: de) dm
void: khOng cb gia tr!

52

warrant: bao dam


warranty: bao hanh

Modifications to Technical Data


For a period of five years after the coming into force of the contract, the
Supplier shall inform the Receiver of all modifications to technical data
without delay, and supply copies of modified technical data as necessary

The maintenance manual for the fans uses many photographs to help repairmen
who speak little English. Four years after the contract comes into force, the
maintenance manual is revised. BEC sends Verbena Fan the text of the new
manual but not the new photographs. When Verbena Fan asks for the
photographs, BEC says that the photographs are not "technical data" but merely
an aid to repairmen.
1. IF the contract contains no definition of technical data, who is probably
right?
q VERBENA FAN

q BEC

2. If the contract contains the definition below, who is probably right?

"TECHNICAL DATA" means any information directly related to the design,


engineering, production, operation, repair, or maintenance of the FANS. Such
data include, but are not limited to, information in the form of blueprints,
drawings, illustrations, photographs, instructions, computer software and its
documentation

q VERBENA FAN

q BEC

computer software: phen mem may tinh

manual: sach twang din


without delay: ngay, khOng cham tre

53

Part 4

THE PARTIES TO A CONTRACT


1. THE NAMES OF THE PARTIES TO A CONTRACT

International companies often have subsidiaries with similar names. This can
create confusion. Worse, it allows a deliberate "dirty trick" on the part of an
international company. What is this trick, and how can you prevent it?
It is essential to discover the exact name of the company with whom you sign a
contract. If you notice a difference between the name on the contract and the
name on the company's letterhead, start asking questions: you may be dealing
with an undercapitalized subsidiary.
On the first page of most contracts is the name of each party. When it first
appears, the name is normally the full, registered name of the company. Often a
few words of description follow, perhaps the state of registration or the place of
the company's head office.
Some companies have complex names, for example, The Smith, Jones,
Wrangel and Ironside Supply Company Inc. To avoid repeating this formula
during the contract, a short - form follows the first use of the name. The short form may be a specific name:
The Smith, Jones, Wrangel and Ironside Supply Company Inc., a corporation
organized and existing under the laws of the State of Delaware, USA, having
offices in San Francisco, California, hereinafter called "SMITH"
Or a generic description:

The Verbena Docklands Procurement Company, a corporation organized and


existing under the laws of the Republic of Verbena having offices in Port
Mary, Verbena hereinafter called "BUYER"
dirty trick: tro bgn thiu
hereinafter: sau day

54

subsidiary: cling ty con


undercapitalized: kh6ng du vdn

The use of short - forms saves space and reduces the risk of mistyping. If a
name appears in different forms in a contract, there can be legal problems.
Many contracts capitalize the short - form throughout the contract; this tells
readers that a short - form is used.
2. THE SIGNATURE

The formulas used to sign contracts are sometimes antiquated and hard to
understand. Although serious mistakes are unlikely, it helps to understand the
meaning behind the formulas.
In the Anglo - American tradition, the parties sign the contract to "witness" it,
that is, to prove that they reached this agreement.
Anglo - American contracts and it is always the case with Vietnamese
contracts, are sometimes "sealed", i.e., a company seal is fixed to the contract.
a company seal is fixed to the contract. The use of the seal sometimes changes
the way that the law applies to the contract.
Sometimes the signatures of the parties are themselves "witnessed". This means
that a third party states that the signature is genuine.
Under the Uniform Commercial Code (UCC), a "signature" is anything that a
party uses to authenticate the agreement.
The traditional formula at the end of a simple agreement says:
In Witness Whereof,
We have this 16 th day of March 2000 made and signed this Agreement

In Anglo - American contracts, the formula sometimes includes mention of a


seal:
In Witness Whereof,
The parties hereto have set their hands and seals this 16 th day of March 2000

antiquated: co to
authenticate: chimg thut

generic description: m6 6' dac tinh chung


mistyping: danh may sai

55

The seal was once a large disk of red wax with an impression on it. Mostly
today seal is replaced by the two letters L.S. (Latin Locus sigilli = the place of
the seal). What is the significance of the seal? Ever less. Under some laws
within the Anglo - American family, some ancient rules still apply, for
example:
- An offer under seal is not revocable;
The Statute of Limitations is longer on a sealed contract. (This means
the right to raise a legal action running for a longer time);
A contract under seal requires no consideration.
The UCC has radically changed the rules in the United States:
Seals inoperative
2.203. The affixing of a seal to a writing evidencing a contract for sale or an
offer to buy or sell goods does not constitute the writing, a sealed instrument
and the law with respect to sealed instruments does not apply to such a contract
or offer.
In plain language, a seal on an offer or a procurement contract has no major
significance.
You may see an even longer formula on some contracts:
Signed, Sealed and Delivered...
The meanings of Signed and Sealed are clear - but what is Delivered ? "Delivered"
means physically giving the signed and sealed contract to the other person. The
usage comes from the law of sealed instruments. Until a contract under seal has
been physically given - delivered - to the other person, it is not valid.
Sometimes when the parties sign a contract, the signatures are "witnessed" (the
genuineness of the signature is confirmed) by a third party - a marriage contract
is the classic case. In commercial contracts, the applicable law decides about
the witnessing of signatures. Consult your lawyer for the appropriate formula.
In the Anglo - American world, simpler formulas are gaining favour. For
example:
THE PARTIES, INTENDING TO BE LEGALLY BOUND, have executed
this agreement as of the date first set forth above
seal: con clau, (big dau
56

statute of limitation: 144 thai hle'u

Naturally international contracts written in English but under a Continental Law


also favour shorter, clearer formulas.
3. THE ASSIGNMENT OF RIGHTS AND DUTIES

A contract that allows assignment (= sale, gift, etc.) of rights and duties is
dangerous. It allows the parties to pass on their duties to third parties, perhaps
to subsidiaries or even total outsiders.
Most applicable laws allow assignment of rights but not of duties. Normally, do
not accept a contract that allows assignment of duties. A clause expressly
forbidding all assignment without the agreement of both parties is often useful.
Sometimes a contract contains a clause like this:
Assignment

Neither the rights and duties under this contract nor the contract itself may be
assigned by either party, either in whole or in part, without the prior written
approval of the other party
Assignment is a general word for transfer. Sale is a kind of assignment, as are
gift and exchange. Unless the parties agree otherwise, most legal systems allow
the assignment of rights but forbid the assignment of duties. In general, this is
fair. The assignment of a right (the right to collect payment, for example) hurts
no one. The assignment of a duty (for example, the duty to carry out research
and development into a new process) can change a contract completely.
In principle, try to forbid assignment without the consent of both parties.
Some specimen clauses

The clause below is a standard provision in tender documents; it simply restates


the normal legal position.
The supplier shall not assign, in whole or in part, its obligation to perform
under the Contract, except with the purchaser's prior written consent
The clause below carefully includes both positive and negative wording.
Special provision is made for assignment on bankruptcy.
assignment: chuyen nhuvng
consult: tham Mao
positive and negative wording:
viet theo 16i kh ng dinh va phu dmh

inure: thich nghi, Ong ph6


law of sealed instrument: luat van ben duvic d6ng dau
trustee: Om h6

57

This agreement on any rights or duties hereunder may not be


assigned or otherwise transferred by either party and shall not
inure to the benefit of any trustee in bankruptcy, receiver or
other successor to either party, whether by operation of the law
or otherwise, without the written consent of the other party;
And any assignment or transfer by either party without such
written consent of the other party shall be null and void

4,

Negative
Wording
Positive
Wording

4. COMPREHENSION QUESTIONS

4.1. An opening like this is not unusual in international contracts:

This Contract
is entered into as of the 7 th day of March 20...
by and between
The HURD COMMUNICATIONS CORPORATION
a Delaware corporation,
with offices at 4848 Main Street, Cardiff, California
(hereinafter called HCC or BUYER)
and
the VERBENA PARTS PROCUREMENT COMPANY
with facilities at 10 Francis Street, Verbena City
(hereinafter called VERBENA PARTS or SELLER).
1. What is the meaning of the expression "a Delaware corporation"?
2. If you had received letters from Hurd under the letterhead Hurd
Communication Inc., what action would you take?
3. In this contract, each company has two names (HCC or BUYER, and
CERBENA PARTS or SELLER). What is the reason for this double
wording?

58

4.2. The UCC contains three main provisions on signatures:

A contract for the sale of goods for the price of $500 or more is not
enforceable by way of action or defense unless there is some writing to
indicate that a contract for sale has been made between the parties and signed
by the party against whom enforcement is sought or by his authorized agent
or broker

"Signed" includes any symbol executed or adopted by a party with present


intention to authenticate a writing

Authentication may be printed, stamped or written. It may be by initials or


thumbprint. It may be on any part of the document, and in appropriate cases,
be found in a billhead or letterhead. No catalog of possible authentications
can be complete and the court must use common sense and commercial
experience in passing on these matters. The question is always whether the
symbol was executed by the party with the present intention to authenticate
the writing

In the eyes of the UCC, which of the following are properly authenticated
agreements?
1. A contract bearing two authorized signatures

q NO
q UNCLEAR
q YES
2. An unsigned Confirmation of Order on company stationery

q NO
q UNCLEAR
q YES
3. An agreement "signed" with an X
q YES

q UNCLEAR

q NO
59

4. An agreement bearing the initials of one of the parties and the note
"Still needs a couple of changes"

q NO
q YES
q UNCLEAR
5. The same agreement as in 4, but without the note

q NO
q YES
q UNCLEAR
6. A tape recording of one of the parties saying "I agree to the whole text
exactly as it stands"

q NO
q YES
q UNCLEAR

60

Part 5

GOODS AND DELIVERY, PRICE AND PAYMENT


The first question about a contract concern the exchange: "What am I giving?"
and "What am I getting?". This part studies the underlying "deal": what will the
seller deliver, how and when; what will the buyer pay, how and when. In more
formal terms, Scope and Delivery, Price and Payment.
1. SCOPE AND DELIVERY

A scope clause explains (often in outline only) what the seller must supply. The
delivery clause establishes how delivery is to be made, what counts as delivery,
the delivery date, and what counts as delay. It regulates the passage of risk and
title, and it states the consequences of non-excusable delay.
The scope provisions in a contract take so many forms and are so technical that
a full discussion is well beyond our present purposes. In fact, contracts often
recognize this fact: the scope clause can be very short, referring the reader to
technical specifications else where. For example:

Performance of the Contract and Technical Requirement


The requirements of the Contract and any amendments thereto shall be
performed in accordance with the Order issued by the Supplier to the Purchaser
The Supplier is required to deliver an Item or Items which meet the
requirements of the Specification shown in the Order in all respects

non-excusable: kh6ng the tha 1110' chtdc


order: Lenh, chi th!

scope: pham vi, d6i tucing ale hp (king

61

or
Scope of Services

The Contractor agrees to carry out a feasibility study according to the Statement
of Work (SoW) (Annex 2) prepared on the basic of the Ministry Requirement
(MR) (Annex 1)
This separation of obligations and specifications is valuable source of clarity:
the manager or risk analyst gains an overview of the contract without drowning
in technical detail.
Step 1. How will Delivery be made?

In a simple sales contract, a key provision explains how the seller will make
delivery. For example:
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 Hai Phong including
expenses for the stowing and packing, as well as expenses incurred before
loading the equipment on board the carrying vessel
The ways in which a seller delivers goods are few and standard. For this reason,
contracts often use a standard term: the Incoterms are best known. The 13
Incoterms have clearly established meanings; the ICC lays down exactly the
duties of the buyer and the seller for each term. The 13 terms are grouped in
four categories: E-term, F-terms, C-terms and D-terms.

clarity: sang saa


drown: chim, ch6t du6i
stowing: san x6p

62

Group

Term

Term in full

When Delivery made

E- Term

EXW

Ex Works

When goods are available at


the factory

F- Terms

FCA

Free Carrier

When goods are handed over


to the carrier

FAS

Free Alongside Ship

When goods are alongside the


ship

FOB

Free on Board

When goods pass the ship's


rail

CFR

Cost and Freight

When goods pass the ship's


rail

CIF

Cost Insurance and Freight

When goods pass the ship's


rail

CPT

Carriage Paid To

When goods are handed over


to the carrier

CIP

Carriage and Insurance Paid

When goods are handed over


to the carrier

DAF

Delivered at Frontier

When goods are cleared for


export at a named frontier

DES

Delivered ex Ship

When goods arrive on the ship


at the port of destination

DEQ

Delivered ex Quay

When goods are on the Quay


at the port of destination and
cleared for import

DDU

Delivered Duty Unpaid

When goods are available to


the buyer at a named
destination, duty unpaid

DDP

Delivered Duty Paid

When goods are available to


the buyer at a named
destination, duty paid

carriage paid to: cutc tra tOi


delivered at frontier: giao tai bran gidi
delivered ex ship: giao tai tau
delivered ex quay: giao tai cat.' cang
delivered duty unpaid: giao tai dich chtra nqp thu6

delivered duty paid: giao tai dich da Op thud


ex works: giao tai xveing
free carrier: giao cho nguti van tai
free alongside ship: giao doc man tau
free on board: giao lOn tau

C- Terms

D- Terms

63

Using the Incoterm FOB, the complicated delivery clause above reads:
The equipment listed in Annex 1 shall be delivered FOB Hai Phong (Incoterms
1990)

Step 2. What if the Goods are ready but Delivery is Impossible?


FOB delivery takes place when the goods cross the ship's rail. Payment is
usually tied to delivery. What happens, though, if the ship is late? The goods
are ready, but the seller, through no fault of his own, cannot deliver. The careful
seller makes a special provision to cover this problem:

If the vessel named by the buyer fails to arrive on or before the agreed delivery
date, then the seller may at his discretion deliver the goods to a bonded
warehouse in the port of Hai Phong, and shall be deemed to have fulfilled its
delivery obligations under this contract
This is only one example. If the parties foresee any kind of problem, they,
should regulate it in the contract.
Step 3. What is the Date of Delivery?
Normally a delivery date is clearly fixed - but there can be problems. "Delivery
shall be made on or before 11 April 20..." looks clear, but is delivery at thirty
seconds past midnight on 12 April also timely? In most cases, probably it is.
In some situations, however, exact timing is essential, for example `just in
time" delivery of components to a modern production line. In such cases,
lawyers say that "time is of the essence". Some contracts have time is of the
essence stamped on them to make the point clear. Buyers often add a clause
like the one below to a procurement contract:

at one's discretion: dkra vao sir suy xot


be tied to: On yen
bonded warehouse: kho ngoai quan
ship's rail: Ian can tau
64

Time is, and shall remain, of the essence of this agreement, and no acts of the
Buyer, including without limitation to, modification of this order or acceptance
of late deliveries, shall constitute waiver of this provision
The Seller shall immediately notify the Buyer of any actual or potential event,
including in particular any labor dispute, which is delaying or threatens to delay
the timely performance of this agreement

Step 4. When do Risk and Title Pass?

Risk means legal responsibility for goods; title means ownership of goods. In
theory at least, the two problems are entirely separate. First then, assuming the
use of Incoterms, let's look at risk.
Transfer of Risk

The risk for loss of or damage to the goods... passes from the seller to the
buyer when the seller has fulfilled his obligation to deliver the goods
(Incoterms 1990, p.117.)
That is the general principle: risk passes not with physical delivery, but when
the seller has fulfilled his obligations to deliver. This can be earlier than
physical delivery if the buyer "does not take delivery as agreed or fails to give
such instruction... as the seller may require in order to fulfill his obligation to
deliver the goods "(p.117). At what point, then, does risk normally pass? The
chart below shows the point for each of the Incoterms. It's important to note
that risk passes for the three most common terms (FOB, CFR, and CIF) at the
ship's rail.

assuming: gia SCI, cho rang


physical delivery: giao hang mang tinh vat chat
risk: rui ro
title: sa hitu

65

E- Term

EXW

When goods are at the disposal of the buyer at the place


of manufacture

F- Terms

FCA

When goods are given to the carrier

FAS

Alongside the vessel at port of loading

FOB

At the ship's rail at port of loading

CFR

At the ship's rail at port of loading

CIF

At the ship's rail at port of loading

CPT

When goods are given to the carrier

CIP

When goods are given to the carrier

DAF

When goods are at the disposal of the buyer at the place of


delivery (frontier)

DES

When goods are at the disposal of the buyer at the place of


delivery (ship at destination)

DEQ

When goods are at the disposal of the buyer at the place of


delivery (quay at destination)

DDU

When goods are at the disposa of the buyer at the place of


destination

DDP

When goods are at the disposal of the buyer at the place of


destination

C- Terms

D- Terms

Transfer of Title
The problem of title
ownership) is more complicated. An example: an
aircraft engine is ordered from England by a French shipping company on
behalf of a Nepalese buyer who wants to take delivery in Bangladesh. Half the
price is paid in advance. The ship stops in Portugal where its cargo is
impounded by a court order issued in Germany for a debt contracted by the
ship-owner in Norway. Who owns the engine? Heaven knows!
impounded: ttch thu

66

Many sellers want to retain ownership of their goods until the buyer has paid
for them. Problems in retaining ownership arise when goods are partly paid for,
when the buyer goes bankrupt and has many creditors, and in many other
situations. What are the ground- rule? In 1989, the ICC published Retention of
Title: A Practical Guide to 19 National Legislations. As the name of this book
suggests, this question is still a matter of national rather than international
practice.
Step 5. What Delay is Excusable?
A seller who agrees to deliver on a particular date must accept that late delivery
will be "punished" in some way. Accordingly sellers try to add provisions to a
contract that soften the delivery date, while buyers resist such softening. You
have probably met two softeners: (a) the grace period and (b) the force majeure
provision.
Grace Period
The grace period is usually expressed at the beginning of the clause dealing
with the consequences of delay:

If delivery is not effected within two weeks of the agreed delivery date for
reasons other than Force Majeure, then the seller shall pay...
In other words, problems begin only when delivery is two weeks late. The
effect of this two-week grace period is not quite the same as a delivery date two
weeks later, the seller has an early good-faith target to meet: the buyer can exert
a great deal of moral pressure before the mechanism of the "penalty" takes
over. Even so, grace periods are not common.

Force Majeure
The force majeure provision is normal practice. The seller says: "I'll do my
part, but if something happens that is beyond my control, you can't expect me
to pay a "penalty"


excusable: co the tha tht? duvc

grace period: an han

ground-rules: quy thc can ban
good faith: thin chi, tinh ngay that

national legislations: quyen lap phap cOa cac quOc gia


retention of the title: quyen so him
retain: gill' duvc

67

Force Majeure

If either party is prevented from, or delayed in performing any obligation under


this contract by reason of a force majeure event, then this party is not
considered to be in default and no remedy, be it under this contract or
otherwise, is available to the other party
Force majeure events include, but are not limited to: wars, riots, insurrections,
acts of sabotage, or similar occurrences; strikes, lockouts, or other labor unrest;
newly introduced laws or government regulations; fire, explosion, or other
unavoidable accident; flood, storm, earthquake, or other abnormal natural
events
Some items on the list are controversial: strikes and lockouts, for example.
Since the term "force majeure" is not a traditional Anglo- American term and
has no generally accepted definition, international contracts often agree a list of
force majeure events.
The ICC has developed an alternative strategy. It has drafted a detailed
comprehensive force majeure provision of nine clauses. In summary:
1. The principle of force majeure: some events are simply beyond the
control of the parties;
2. A list of such events;
3. A list of events that are not force majeure events;
4. The duty to notify the other party of the event;
5. The time at which the duty to perform is suspended;
6. What duties are suspended;
7. How long the suspension may continue;
8. The right of termination after a certain time;
9. Financial settlement if the contract is terminated.
Few contracts contain such detailed and valuable stipulation. If force majeure is
likely to be a problem in your own contracts, you should study the ICC
provision in detail. If you like it, you can incorporate the provision into the
by reason of: vi
default: CO 161
force majeure: bat kha khang

68

contract by using the reference clause. For example:


The Force Majeure (Exemption) clause of the International Chamber of
Commerce (ICC Publication No 421) is hereby incorporated in this contract
Close to the issue of force majeure is the issue of hardship - frustration and
impossibility. This subject is discussed as part of the legal framework of the
contract.
Step 6. What are the consequences of Non- Excusable Delay?
The consequences of a failure to perform any of the major duties under the
contract - in particular delivery, payment and making good of defects - are
much the same: the party at fault can pay money, or the party not at fault can
end the contract. This is a complicated issue involving at least three major
contract provisions. Accordingly you will find a full - length discussion of
consequences in the following parts.
2. PRICE AND PAYMENT

Payment follows much the same pattern as delivery: how payment must be
made; what counts as payment; when payment is due; what counts as delay;
and the consequences of delay.
Deciding the right price for goods and services is a commercial problem, not a
legal one; lawyers are more interested in payment. Construction contracts,
however, involve complex pricing strategies.
Payment is often a simple enough procedure, but unfortunately payment
provisions in many contracts lack important detail, for example, this clause was
part of an international contract:
The price payable for the equipment specified in Annex 3 is USD500,000 (five
hundred thousand US dollars); The full contract price is payable within thirty
days of receipt of invoice

frustration: kh6ng the thur hien duvc (hqp dOng)


frustration and impossibility: kh6ng the trait hien duvc (hqp dOng)
make good: 1)0 dap
reference clause: dieu khan tham khao, hOi chi

suspend: glen doer?, treo


suspension: su glen doan
terminate: k6t thOc
termination: stf Vet thuc
the party at fault: ben c6 loi

69

If payment is delayed in such a case, the seller is unsure of his rights, and the
buyer does not know what claims can be made against him - a dangerous
situation for both sides. Careful drafting of a price and payment clause follows
five steps:
Step 1. How will payment be made?
Trade within a country is based on a mixture of trust and the close proximity of
courts of law. International business is not so blessed: Trust is rare, and the
courts are far away and unpredictable. Payment is, therefore, tightly controlled.
The most common type of payment is the confirmed, irrevocable letter of
credit. Typically a contract stipulates:

The Buyer, on receipt of the Confirmation of Order from the Seller, shall at
least 20 days prior to the date of delivery open a confirmed, irrevocable letter of
credit with a first class international bank; 20% of credit shall be available
against the Seller's draft accompanied by invoice; the remaining 80% shall be
available against the Seller's draft accompwlied by the shipping documents
If the buyer is to pay by normal "inland" means s'ich as a check or bank
transfer, then a bank guarantee or a stand-by letter of credit removes the seller's
risk - and these instruments are cheaper for the buyer. The seller usually wants
to specify the currency of payment.
Step 2. What counts as Payment?
When Ali Aziz instructs his bank in sunny Verbena to pay BEC in rainy
Europe, he begins a chain of events that often takes months to complete.
Perhaps the National Bank of Verbena has no funds to make foreign transfers;
perhaps inefficiency delays payment. Of course, the Letter of Credit avoids
such problems, but payment against invoice is still common and buyers must
prefer to pay in this way. To avoid the dangers of late payment, sellers try to
protect themselves with a clause like this:
Payment shall be deemed to have been made only when the contract sum is
paid into the Seller's bank account and is at the Seller's full disposal

confirmed irrevocable letter of credit: tin dung thtr khong the h6y ngang durfc xac nhan
due: den han thank toan
proximity: svgan, la can

70

Step 3. What is the Date of Payment?


The date of payment for a single sale is simply regulated, in an ongoing
contract - a construction contract, a patent licence or a spare parts supply
contract, for example - the parties must agree a chain of dates. These are either
calendar dates (for example, 30 th June) or interval times (for example, within 30
days of the date of invoice). When work is carried out over a long period, the
parties agree an elaborate system of stage payments (often called "milestone
payment").
Step 4. What Delay is Excusable?
As with delivery, delay in payment might be excused during a grace period,
though this is very unusual. More commonly, a force majeure event excuses
delay. (One wording of a force majeure provision was given in the previous
section). In fact, the force majeure excuse for delay seldom makes sense in the
context of payment; most sellers try to resist it.
Step 5. What are the Consequences of Non Excusable Delay?
-

The cost of late payment is easily assessed: the buyer must pay interest on the
outstanding sum. Typically, the rate of interest is geared to interest rates in the
seller's country. The Federation Internationale des Ingenieurs - Conseils
(FIDIC) suggest in the 1987 version of their Conditions of Contract for
Electrical and Mechanical Works the following provision:

Delayed Payment 33.6


If payment of any sum payable... is delayed, the Contractor shall be entitled to
receive interest on the amount unpaid during the period of delay. Unless
otherwise stated in Part II the interest shall be at an annual rate three percentage
points above the discount rate of the central bank in the Contractor's country;
The Contractor shall be entitled to such payment without formal notice and
without prejudice to any other right or remedy

at one's disposal: do ai d6 doh doat


draft: ho'i phi6u
stand-by letter of credit: tin dung thy dt..v phOng
at annual rate: theo 4%10 thuting nien

elaborate: chi tiet h6a


gear: dik chinh theo...
make sense: c6 nghia
outstanding sum: khoan tien chua tra
without prejudice: khOng bat) In
(trach nhi0m)

71

An earlier version of these Conditions was, arguable, more favorable to the


buyer:
...the Contractor shall be entitled... to receive interest calculated at the rate or
rates which the Contractor's bank, named in the Appendix to the Tender, would
have charged the Contractor to borrow the amount of the delayed payment
during the period of delay
The principle is clear: the seller is entitled to compensation for losses due to
late payment.
3. COMPREHENSION QUESTIONS

3.1. The clause below is typical of the terms dictated by a strong seller to a
weak buyer
Delay in Delivery

1. Dates of delivery are the date of despatch ex the supplying works


2. The delivery dates apply only on condition that all details of the Order are
promptly and completely clarified and any domestic and foreign certificates
required are promptly submitted
3. In the event of the Seller being unable to despatch the goods in due time for
reasons beyond the Seller's control, the delivery dates shall be deemed
complied with upon the Seller notifying the Buyer that the goods are ready
for despatch
1. Clause 2 mentions four things the buyer must do in order to make the
seller keep the delivery dates. What are these four things?
a
c

2. Of these four things, how many are objective conditions? In other words,
is it possible for both sides, or an outsider, to agree on the exact meaning
of the words?
q 0

q 1

q2

q 3

q 4 conditions is fully objective.

Appendix to the tender: phy lyc cue clan *that.'


Beyond the seller's control: yuvt qua sy* khcing ch6 cua nguti ban

72

3. Delivery is fixed as "the date of despatch ex the supplying works." Is this


the same thing as the Incoterm EXW?
q

YES

q NO

4. Clause 3 specifies reasons for delay "beyond the Seller's control". Who
decides what is "beyond the Seller's control"?
q

BUYER

q SELLER

q NOT REGULATED

3.2. Study the payment provision below, and then answer the questions.
1. All payments made by the Buyer to the Seller shall be denominated and
made in Deutsche Mark and effected by telegraphic transfer by the Buyer's
bank to the Seller's bank; The Buyer shall bear all the costs of making the
payment
2. With the Coming Into Force of the contract, the Buyer shall furnish the
Seller with an unconditional bank guarantee issued by a first class bank for
fifteen percent of the contract sum. The guarantee shall conform with the
specimen guarantee in Annex G
3. Within twenty days of receiving the Seller's shipping advice, the Buyer shall
open with a first class bank an Irrevocable Letter of Credit in favor of the
Seller and valid for one year. The Letter of Credit shall be for seventy - five
percent of the contract sum and shall conform with the specimen letter of
credit in Annex H
4. The full contract price shall be paid in the following stages:
v Fifteen percent shall be paid within thirty days of the Buyer receiving
a photocopy of the Export License issued by the Seller's government
v

Seventy- five percent shall be paid within thirty days of the Buyer's
bank receiving a complete set of shipping documents as listed in
Annex F

v Ten percent shall be paid within thirty days of the delivery of the
goods DDP


furnish: cung cap
bank guarantee: bao lenh ngan hang

telegraphic transfer: On h6i


DDP: (delivery duty paid): giao tai dich da nQp thu6

73

1. Is the way in which the Buyer is to make payments completely clear in


this clause?
q

YES

NO

2. Is it completely clear what counts as payment? (Is it action by the buyer,


by the buyer's bank, or receipt by the seller?)
q

YES

q NO

3. Is it completely clear when payment must be made?


q

YES

q NO

4. Is any part of the payment "insecure" (not guarantee)?


q

YES

q NO

5. If "yes", does it matter? Is more security needed?


q

YES

q NO

6. The contract says this about force majeure and nothing more.

The Seller shall not be responsible for delay in the shipment of the Goods due
to the occurrence of any Force Majeure event. In case the occurrence lasts more
than ten weeks, the Buyer shall have the right to cancel the contract.

It is clear whether late payment is, under certain circumstances, excusable?


q

YES

q NO

7. Are the consequences of non- excusable delay clear?


q

YES

q NO

8. If "no", is this omission important in this case?



q YES
q SOMEWHAT
q NO

74

Part 6

THE DEFECT AND THE LIABILITY


1. WARRANTY AND GUARANTEE
A guarantee is a promise about somebody else's performance. A warranty is a
promise about your own. When businessmen speak of the "seller's guarantee"
or "warranty" they mean the seller's liability for defects. To avoid confusion,
many drafters today use the term Defects Liability Provision.
A warranty is a promise you make about your own performance. The word is
used in several contexts. A warranty of title, for example, is a promise to a
buyer that the seller really owns the goods he is selling. A product warranty is a
promise by the seller to make good any defects in his products. And there are
two parties to warranty: the buyer and the seller
A guarantee, on the other hand, involves three parties. The guarantor makes a
promise to one party on behalf of another
Internationally, the distinction between warranty and guarantee is not so clear.
First, businessmen loosely use the two words as though they mean the same
thing. This is confusing. Others believe that a warranty covers materials and
workmanship, while a guarantee covers specifications. This is a mistaken idea.
Does it matter? In fact, yes. Confusion between warranty and guarantee
could be dangerous. Let's say a contract is written in English, but German law
applies. German law makes a clear distinction between a "warranty"
(guarantee) The seller's obligations are different under a "guarantee". So loose
English could get you into trouble!
-


guarantee: bao lanh, bao hanh

guarantee and warranty: = defect liabilities:

trach nhiOm d6i vdri khiem khuye't

product warranty: bao hanh san pha'm


warranty: bao dam, bao hanh
warranty of title: bao dam quyen so hCru

75

As a general rule, incorrect use of "guarantee" causes trouble: use the word
only if you mean a third - party guarantee.
Many contracts avoid the problem by speaking of defects liability rather than of
warranty. This is exactly the right concept, as we shall see in the next section.
2. THE DEFECTS LIABILITY PERIOD

A warranty protects both seller and buyer. The seller is protected against the
accusation that he has breached the contract if some goods are defective. The
buyer is protected against defects in the goods he buys. Some defects are
apparent when the goods are delivered, but this is unusual. Most defects are
latent. Defects are of three kinds: workmanship, materials, and design. Failure
to meet specifications is a design defect. Problems caused by misuse or wear
and tear are not defects.
A defects liability provision (or warranty) puts into words what everyone
accepts: not all products are perfect on delivery. This provision covers defects
that are present at the moment of delivery. Normally quality control prevents
products with obvious defects from leaving the factory, so "defects" normally
means hidden or latent defects. Defects may be in workmanship, in materials,
or in design.
The defects liability period (or warranty period) is the period during which the
seller is liable for, and must make good any defects that are apparent on
delivery or that come to light later.
A defects - liability provision, then, covers defective workmanship, materials
and design. Just as important is what it does not cover. The two most common
exclusions are (a) fair wear and tear and (b) misuse by the buyer.
A specimen clause
The defects liability provision below is taken from a standard procurement
contract for a major aircraft project.

hidden:

an

latent: Sn
76

Warranty
The Supplier warrants that each Item supplied under this contract (and each
part thereof) shall at the date of its acceptance:
(i) be free from defects in material
(ii) be free from defects in workmanship including but not limited to
all manufacturing processes
(iii) be free from defects inherent in design including but not limited to
selection of materials, and
(iv) be fit for the purpose for which the Item is normally used
If it is discovered in the Item or in any part thereof any defect or deficiency,
then the Supplier shall either repair or replace such item or rectify such
deficiency
The warranty above is subject to the purchaser having adhered to the
procedures or instructions applicable to the use, storage, installation or
operation of the Item and expressly excludes all damage arising from wear
and tear to the Item in normal use

3. REMEDY

The seller normally wants to control over how he will correct defects. If the
buyer is allowed to repair the goods, the contract must specify the
circumstances exactly.
The defects liability provision allows the seller to put problems right. Usually
the seller can either repair or replace a defective product. Who decides? The
seller likes to include the words "at his discretion"; buyers normally resist this:

If, during the defects liability period, any defect comes to light in any item of
supply, then the seller shall, at his discretion, repair or replace the item
Another common choice, especially for superficial defects is reduction of the
price, with the consent of the buyer, of course.

inherent: a bOn trong/ an


wear and fear: hao mem tin nhiOn

rectify: seta china


at one's discretion: theo su suy xet cCia ai db

77

Some contracts allow the buyer to repair the product, perhaps at the seller's
expense. If the repair simply involves replacing a throw - away module, the
seller is probably with this procedure.
Two specimen clauses
The provision below makes the seller's responsibilities particularly clear:

Defects Liability
The Seller shall warrant that the goods are made of the best materials, with
first class workmanship, are brand new, unused, and comply in all respects
with the quality and performance specifications given in Annex B. The seller
shall warrant that the goods, when correctly mounted and properly operated
and maintained, shall give satisfactory performance for a period of twelve
months
If any defect in materials, workmanship or design or any discrepancy with
specifications comes to light during the warranty period, and if the Buyer
makes the defect or discrepancy the subjects of a claim, the Seller shall at his
own cost and expense satisfy the claim, subjects to the agreement of the
buyer, in one of the following ways:
a. Agree to the rejection of the goods and refund to the Buyer the value
of the goods rejected
b. Reduce the price of the goods according to the degree of inferiority,
to extent of damage, or amount of loss suffered by the buyer
c. Replace the defective goods with new goods which conform to the
quality and performance specifications given in Annex B
d. Repair the defective goods to bring them in conformity with the
quality and performance specifications given in Annex B
e. Allow the Buyer or a third party appointed by the Buyer to repair
the defective goods and to bring them in conformity with the quality
and performance specifications given in Annex B at the Seller's risk
and cost

consent: them th4n, dung }"/


superficial: ben ngoai, hien till
mount: hip rap

78

Such a clause is tough on the seller. Some contracts go even further especially
in a "Buyer's market". The following clause (from a spare - parts supply
contract) imposes an onerous duty on the seller:
When a latent defect or other warranty claim in the supplies occurs to the
same item of supply more than once, the Supplier shall, at its own expense,
correct or replace all like items already delivered or to be delivered
Sellers are unhappy about such unusual demands; they carefully price the risk
involved and increase the contract price accordingly. This is, of course, a
general rule: the tougher the warranty, the higher the contract price.
4. THE TIMING OF TIIE DEFECTS LIABILITY PERIOD
The defects liability period presents four separate timing problems. Many
contracts regulate only one. What are the other problems, should you regulate
them, and, if so, how?
The parties always fix the length of the defects liability period. Also important,
however, are (a) the time allowed to the buyer to notify the seller of a defect,
(b), the time the seller has to correct the defect, and (c) the period during which
the buyer can raise a legal action. Because national laws differ widely, the
parties often regulate these matters.

4.1. The Notification Period


In practice, many contracts do not put a precise time limit on the Notification
Period. Two examples:

The buyer shall notify the Seller of defects without undue delay
or
If any such defect appears or damage occurs, the Employer of the Engineer
shall forthwith notify the Contractor thereof

onerous duty: b6n phan Ong ne


at the seller's risk and cost: ngutri ban chiu moi rui ro ye phi ton

extent: mCrc db
79

If both parties act in good faith, this "soft - edged" timeframe works well. If a
legal problem arises, the Anglo - American judge makes a fair estimate of
"undue delay", a :'reasonable time" or "forthwith". Such concepts are well
known to the law.
4.2. The Rectification Period
Rectification is similar to notification: the making good of defect without undue
delay" or "within a reasonable time" is a fair and normal contract requirement.
FIDIC (1987) says:
The Contractor shall make good the defect or damage as soon as practicable
and at his own cost @ 30.2).
4.3. The Legal action Period
After a lapse of time, legal claims become unenforceable. This "legal action
period" differs with the applicable law. In Germany, for example the Civil
Code (BGB) defines a legal action period equal to and concurrent with the
defects liability period.
5. WHO PAYS FOR CLAIMS UNDER WARRANTY?

Who pays for making defects good? Normally the seller, but there are
exceptions. Further, if a machine breaks down, the buyer can face enormous
consequential losses. How does the contract handle this problem?
There are no standard defects liability provisions. The parties must negotiate
carefully. The stronger the buyer, the heavier the seller's liability.
A product warranty usually requires the seller to make good defects "at his own
expense". Some warranties, as we shall see in the Comprehension Questions,
are less generous to the buyer. Sometimes, the buyer must share the costs of
repair, must pay for shipping defective parts, or must pay the cost of sending a
repairman to the site. There are no standard clauses - The parties must negotiate
carefully every provision of a warranty.
The real risk for the seller is not, in fact, the cost of repairing and replacing
defective goods. That risk is in the price. The big risk is that he has to
compensate the buyer for "consequential damage" or "consequential loss".
Consequential losses (often called indirect loss) are dangerous. Most sellers try
to include a clause that limits their responsibility to direct losses only, for
example: .
forthwith: tut thi, trong vOng 24 giet
concurrent: 00 hop vai
rectification: diet, chinh, sera chira
lapse: qua di
consequential loss: ton thgt gian tigp (tOn thgt 0 hau qua cem vigc gi dO)

80

The Contractor shall not be liable to the Employer by way of compensation


for any loss of use of the works (whether complete or partial) or for any loss
of any profit or for any indirect or consequential damage that may be suffered
by the Employer
On the other hand, a strong buyer makes the seller accept such risks:
The Seller shall indemnify and hold harmless the Buyer against any loss or
damage whether direct or indirect suffered by the Buyer as the result of
defective or faulty goods delivered by the Seller

6. DEFECTS LIABILITY AND MAINTENANCE

A strict line must be drawn between defects liability and maintenance. The
danger of a poorly drafted defects liability provision is that it shades over into a
maintenance clause.
The seller usually words the defects liability provision so that his only duty is
the making good of defects. If the buyer wants maintenance, then the parties
normally conclude a separate maintenance contract.
We have seen that a defects liability provision is normally limited "hidden"
defects in workmanship, materials or design. Sometimes, however, the supplier
agrees to keep equipment running despite fair wear and tear, misuse, accident,
and even force majeure events. This is not a defects liability provision - it is a
maintenance clause.
Under a maintenance clause, the seller says: "Whatever the cause of the
problem, I will keep your machine in working order". Normally the buyer pays
extra for this expensive service. For this reason, maintenance is often the
subject of a separate contract. For the seller, the danger is that: he writes a
warranty so badly that he accidentally adds maintenance to his normal duty to
repair and replace. It is also dangerous for the buyer. If maintenance is
important, then the supplier must carry it out faultlessly merely fulfilling
warranty obligations is not good enough for example.

misuse: lam dung


shade over into: a mau thanh
hold harmless = save harmless: lam cho ai clO khOng phai chiu (trach nhiam) ve...

81

Maintenance Period
a. The maintenance Period is a period of one year starting from the date
of the take - over of the works by the Purchaser
b. To the extent that the Works shall comply in all respects with the
contract, the Seller shall execute all such work of repair, amendment,
reconstruction, rectification and making good of defects,
imperfections, or other faults as may be required by the Engineer

7. COMPREHENSION QUESTIONS
7.1. BEC delivers 200 sets of electronic scales for weighing chemicals. For

each problem below, decide what kind of defect is involved.


Defect in
workman - ship

Defect in
materials

Defect in
design

No defect

1. The scales are delivered with


pans that hold only 1 kilo of
most chemicals though the
scales weight up to 8 kilos.

2. Two scales have no rubber


feet.

3. One scale cannot be set to


zero.

4. Five scales are badly


painted.

q
q

5. Twenty scales arrive late.

6. The scales are designed to


be accurate within 001 grams;
tests give figures closer to 02
grams.

7.2. These provisions are taken from a contract to provide a key electrical
intent: el& vgi, k doh
imperfection: CO khiam khuy6t
interaction: using haat dOng, phoi hop
associated documentation: tai li6u co lien quan

82

take - over: ban giao


fully compatible with...: hoan toan tvang thich
invalidate: lam mat hiau ItiC
defect of workmanship: khi6m khuy6t tay nghe

component for a rapid transit system (subway) in a country in the Far East. The
seller was unhappy about both provisions. Can you see why?

If, in the opinion of the Project Manager, it becomes necessary within the
Defects Liability Period to correct a defect in respect of Train design, design
of software or component parts of the Train, or in respect of the interaction
of the various elements of the Train, including the updating of all the
associated Documentation, the Project Manager may instruct the Contractor
within a time specified to correct such defect, free of charge, to the Employer
to the satisfaction of the Project Manager

In the event that the Employer procures spare parts from sources other than
the Contractor, provided such spare parts are fully compatible with the Train
and Works supplied by the Contractor, then the use of such spare parts shall
not invalidate the Defects' Liability provisions of this Agreement
7.3. Compare the two extracts below, and then answer the questions.
Warranty
The Supplier warrants that the Goods supplied under this contract are free of
defects of any kind. The Supplier will repair or replace any Goods of his
supply that are found to be defective during the warranty period

Defects Liability Period


The Supplier warrants that the Goods supplied under this contract are, on the
date of delivery, free from any defect of workmanship, materials or design. If
the Purchaser notifies the supplier during the defects' liability period that any
of the said Goods were provably defective on the date of delivery, then the
Supplier shall, at his discretion, repair or replace the Goods
Assume that the law of Verbena applies to the contract. With which of these
statements do you agree?

83

Agree

Disagree

1. Provision 2 is not a warranty because it is headed "Defects'


Liability Period".

2. Provision 2 makes the supplier's rights clearer because it


specifies a date when the products were free of defects: the
date of delivery.

3. Provision 2 makes the supplier's rights clearer because it


limits the defects to three types: workmanship, materials and
design. This excludes defects caused by dab shipping, theft,
misuse by the purchaser, etc.

4. Provision 2 makes the supplier's rights clearer because it


forces the purchaser to prove the defect was present in the
goods on the date of delivery.
5. Provision 2 makes the supplier's rights clearer because it
allows him to choose whether to repair or replace the goods.

7.4. Read this defects liability provision, and then answer the questions.

Defects' Liability Period


The Defects' Liability Period shall be a period of twelve months calculated
from the date of delivery of the Goods; If any defect occurs during the
Defects' Liability period, the Buyer shall forthwith inform the Seller stating in
writing the nature of the defect
The Contractor shall be responsible for making good with all possible speed,
of any defect so notified which arises from defective materials, workmanship
or design (other than a design furnished or specified by the Buyer)
The provisions of this clause shall apply to any Goods repaired, replaced or
otherwise made good by the Seller, but not so as to extend the Defects'
Liability Period for more than twenty - four months from the date of first
delivery of the repaired or replaced Goods

specify: cu the 'Oa


furnish: cung cap

84

The Defects' Liability Period shall be extended by a period equal to the period
during which the Goods cannot be used by reason of the aforementioned
defect, but not so as to extend the Defects' Liability Period for more than
twenty - four months from the date of first delivery of the repaired or replaced
Goods
1. How long is the defects' liability period?
2. When does the defects' liability period begin?
3. When must defects be notified?
4. When must defects be made goods?
5. Is the defects' liability period increased by the period when the goods
cannot be used?
q YES

q NO

6. Does the defects' liability period begin again when the goods are repaired
or replaced?
q YES

q NO

7. Is there a danger here of an "eternal warranty"?


q YES

q NO

8. If "No", why not?


7.5. In November 2006 you take delivery of a plant for filling and capping
mineral - water bottles. The plant is manufactured in the USA. The law of the
State of Wisconsin applies. In March 2007, the plant begins to go wrong: a belt
becomes worn causing bottles to break, about 5% of bottles are only half filled due to a sticking valve, and the poor hydraulic control caps some bottles
so tightly that the glass cracks. Operation of the plant is dangerous, and you
shut it down. You look at your warranty:

to be extended: duvc gia han


aforementioned: da" nOi trOn tri.r6c

capping: d6ng nut chai

85

The Defects' Liability Period shall be twelve months from the date certified
in the Taking - Over Certificate. The Seller shall make good with all possible
speed and at his own expense, any defect in or damage to any part of the
works which may appear or occur during the Defects liability Period.
Transportation costs and the cost of accommodation for the Seller's
personnel will be borne by the Buyer; Any increases in the price for repair or
for replacement parts that may have arisen in the period since the execution
of the contract will be charged to the Buyer; All further rights, and especially
the right to ask for ensuing damages, be it under this contract or otherwise,
are expressly excluded
Which of the following rights do you have? The right to:
q YES

q NO

1. Ask for a replacement belt, a replacement valve, and for


inspection of the hydraulic control system.

q YES

q NO

2. Ask that all systems are made to function correctly.

q YES

q NO

3. Ask for compensation for damaged bottles.

q YES

q NO

4. Ask for compensation for loss of profit and other damages.

q YES

q NO

5. Ask for replacement of the entire plant.

q YES

q NO

6. Return the plant and get your money back.

q YES

q NO

7. Ask for the repair of a hole torn in the machine by the


careless use of a fork - lift truck (Read carefully)

q YES

q NO

8. Other (Specify).

Taking - Over Certificate: gig)/ chimg nhan ban giao


accommodation: ch6
ensue: keo theo

86

Part 7

BREACH OF CONTRACT

1. LIQUIDATED DAMAGES AND PENALTIES


Many international contracts strengthen their provisions with penalties,
especially the provisions concerning delivery, payment and defects liability.
The value of the penalty is in terrorem (Latin for "as a means to terrorize").
Anglo - American courts, however, do not enforce penalties. Your contracts
may need rethinking if an Anglo - American law applies.
If one party suffers a loss because the other party fails to perform, then the
party at fault, must pay compensation. Some losses are exact. If exact
prediction is impossible, the contract often stipulates lump-sum compensation
for liquidated damages. This sum is normally payable regardless of the actual
loss incurred. If the lump - sum figure is far too high and if its purpose is to
force (or "terrorize") one party into performance, then it is a penalty.
We have talked about non-excusable delay: delivery is late and there are no
excuses, the seller has breached the contract. What happens in such cases of
non-performance?
If the contract says nothing, then the innocent party (in the case of late delivery,
the buyer; in the case of late payment, the seller) goes to law to obtain a
remedy- compensation for the loss he has suffered.
To avoid the expense and uncertainty of legal proceedings, most international
contracts specify the consequences of certain breaches, particularly late
payment, late delivery, and failure to repair under warranty.
If the buyer pays late, he must pay interest to the seller. The thinking is clear: if
the seller must borrow money from a bank because the buyer has not paid, tie
must pay interest to the bank. The bank interest is the harm the seller suffers. It
non performance: kh6ng thur hien
-

breach of contract: vi pharn hop d6ng

87

is easy to give a figure for the harm, and so the contract specifies compensation
equal to the harm:

Delayed Payment

If payment of any sum payable is delayed, the contractor shall be entitled to


receive interest on the amount unpaid during the period of delay
The interest shall be at an annual rate three percentage points above the
discount rate of the central bank in the Contractor's country
(FIDIC, 1987, @336)
2. LIQUIDATED DAMAGE: PROBLEMS

National laws differ widely in their treatment of damages. Few generalizations


are possible. Most questions relating to damages are normally, however,
disposive. The parties can make whatever arrangements they wish. Clear
contracts regulate all potential problems.
Let's look at this typical liquidated damages clause:

Liquidated Damages

If the Seller fails to supply any or all of the Goods within the time period
specified in the Contract, the buyers shall notify the Seller that a breach of
contract has occurred and shall deduct from the Contract Price per week of
delay, as liquidated damages, a sum equivalent to one half percent of the
delivered price of the delayed Goods until actual delivery up to a maximum
deduction of 10% of the delivered price of the delayed Goods

This clause covers the basic points: the breach of contract that triggers payment
of liquidated damages. It is required at that the buyer notify the seller that the
breach has occurred and of the amount of the damages and the ceilling. Many
contracts go no further than this. Unfortunately, however, several questions still
lack answers.

disposive: khOng bAt buOc typical: dien hinh

88

Are Liquidated Damages Payable When There is No Loss?


The principle behind liquidated damages is this: if an objective condition
occurs (for example, delivery is a week late) the party at fault will compensate
the injured party, usually by paying money.
One immediate question arises. It is a principle of Anglo - American justice that
if you have suffered no loss you can claim no compensation. How does this
apply to late delivery? Often delivery a week late is a problem but sometimes
the delivered goods sit unused in a warehouse for weeks after delivery. There is
no loss at all. If there is no loss, are damages still payable? National attitudes
vary on this problem. In the U.S., for example, a court usually enforces the
Damages clause if the figure is a fair estimate, with or without loss (Groner,
p.326) Judges applying Swedish law might reach a different conclusion (ICC,
1990, p.40). For the contract drafter, the answer is to regulate the matter in the
contract:
Payment of liquidated damages is contingent exclusively upon late delivery
of the goods; in no case shall the buyer be required to substantiate any claim
for payment of liquidated damages with proof of loss or damage
Are Liquidated Damages Payable When There is No Fault?
A second problem: fault. If late delivery (or whatever) occurs but is not the
fault of the supplier, must the supplier still pay liquidated damages? The
question of force majeure was discussed in Part 4. Does force majeure excuse
payment of liquidated damages?
Normally, yes. But "normally" is not good enough for the careful drafter. Let's
modify an earlier example to clarify the issue of fault:

Liquidated Damages
If the Seller fails to supply any or all of the Goods within the time period
specified in the Contract for reasons for which he is at fault, then the Buyer
shall deduct from the Contract price per week of delay, as liquidated
damages, a sum equivalent to one half percent of the delivered price of the
delayed Goods

triger: lam ph& sinh


ceilling: gia tran, gia cao nhal

contingent upon: le thueic


substantiate: an chCrng

89

Or, more favorably for the buyer: "whether or not the Seller is at fault".

Is Payment an Alternative to Performance?


Sometimes a seller treats the liquidated damaged clause as an option - either
deliver on time or pay. Sometimes the seller may find it more convenient to
pay! To prevent this, the courts in many countries give the buyer a Decree of
Specific Performance; this forces the seller to deliver the goods.
Specific performance or an injunction may be granted to enforce a duty even
though there is a provision for liquidated damages for breach of that duty
Again national laws differ. Under Swiss law, "the exclusive penalty clause is a
special case which allows the promisor, if he so chooses, to pay the amount of
the penalty instead of performing the principal obligation" (ICC, 1990, p.42).
The promisor has the duty, however, of proving that the penalty clause in
question expressly allowed him that right.
The practical answer, once again, is careful contract drafting:

The payment of liquidated damages shall not excuse the Seller from full
performance of any of his obligations under this Contract

Is Compensation Allowed Beyond Liquidated Damages?


Under most laws, payment of liquidated damages satisfies the buyer's claim
against the seller. In the U.S., for example, "Enforceable liquidated damages
clauses take the place of judicial determination of damages" (Hoeber, p.345).
The situation under German law is, however, somewhat different: "In principle
the payment of the penalty does not stop the promise from proving the existence
of greater damage and claiming full compensation" (ICC, 1990, p.333). Paying
a penalty does not cut of further claims. In this case the naming of the clause is
all important. The matter, like most aspects of damages, is disposive under
most laws: the parties can agree to any arrangement they wish. Generally, the
seller prefers wording like this:

to the exclusion: loai frit


cancellation: hay b3
at law: theo luat
in equity: theo le
full and complete satisfaction: thaa man day dei ye hoan town

90

The payment of liquidated damages shall comprise the full and complete
satisfaction of any claim the Buyer may have against the Seller; Any further
remedy, be it under this contract, at law or in equity, is expressly excluded
This is the basic Anglo - American understanding. The buyer, on the other
hand, prefers wording that follows the German line of thought:

The payment of liquidated damages shall not limit the Buyer's right to seek
other remedies under this contract or otherwise; In particular, the right to seek
compensation for consequential damage shall not be excluded
Interestingly, the FIDIC Conditions make no direct reference at all to damages,
or to penalties. The result of late delivery is simply a reduction of the contract
price for each day of delay. The key wordir g is this:

Delay in Completion
... Such reduction shall be to the exclusion of any other remedy of the
Employer in respect of the Contractor's failure to complete within the Time
for Completion
3. TERMINATION
When delay becomes intolerable, the buyer may wish to end the contract.
quick, clean death is better than a long, messy one. How is it achieved?
A full termination -fir - cause provision specifies exactly when the buyer can
end the contract; often it also protects the seller's rights.
According to at:: UCC, cancellation occurs when one party asks a court to end
a contract because the other has breached it. Cancellation is expensive, mesry
and unpredictable. For the seller, the danger is that he/she may receive no
payment for services rendered or goods delivered.
Termination (as the UCC conceives it) is an altogether tidier procedure:
to tt3 exclusion: d6i v6i viec loci trig
intolerable: khong the tha tin? duvc
conceive: nghi ra, tvang tuvng
termination - for - cause: k6t thQc co nguyOn cd

outstanding sum: khoan chits thanh Oar)

91

contract provision states the circumstances under which the buyer can end or
terminate the contract. Such termination is often "for convenience": in this case,
the contract includes a winding - up procedure for final deliveries, final
payments, and so on. An example:
Termination for Convenience
1. The Purchaser may, by written notice to the Supplier, terminate the
contract in whole or in part, at any time for its convenience; The notice
of termination shall specify the extent to which performance of the work
under the Contract is terminated, and the date upon which such
termination becomes effective
2. The Goods that are complete and ready for shipment within 30 days after
the Supplier's receipt of the notice of termination shall be purchased by
the Purchaser at the Contract terms and prices
Termination 'for default" means that, under closely specified circumstances,
the buyer can end the contract:
Termination for Default
The Purchaser may, by written notice of default sent to the supplier, terminate
this contract in whole or in part:
a. If any delay in delivery due to force majeure exceeds 75 days; or
b. If any delay in delivery for reasons other than force majeure exceeds
30 days
This clause states two events that can trigger termination, but (at least) two
problems remain: (a) how does the buyer obtain the goods he contracted for and
urgently needs, and (b) how is the seller compensated for deliveries made so
far? The clause might go on to specify:
If the Purchaser terminates the Contract in whole or in part, then the
Purchaser may procure, upon such terms and in such a manner as it deems
termination "for default" : ke't th6c vi kh6ng c6 kith 'fang
the Wan
expire: het han

92

buyer - oriented: hutng toi ngtrai mua

appropriate, goods similar to those undelivered, and the Supplier shall be


liable to the Purchaser for the excess cost of goods so procured over their
Contract price
If the Purchaser terminates the Contract, in whole or in part, then the
Purchaser shall pay the Seller all outstanding sums due for goods delivered
under this Contract, less any sums due to the Purchaser as liquidated damages
or for any other purpose; Payment of such sums shall be made only when all
warranties made by the supplier have fully expired
Such a clause, though it seems buyer - oriented, protects the rights of the seller
too. Cancellation of the contract and a court settlement are sometimes rather
less generous.
4. THE LIMITATION OF LIABILITY

It is easy to stipulate a clause refusing to accept any liability whatsoever for


anything. But it is difficult to persuade the other party to accept it and to avoid
overstepping the limit of what the courts are ready to enforce.
With a few exceptions, the courts allow businessmen freely to allocate between
them the risks of doing business. Your contract can limit your risks as long as
the other side agrees to the limitation.
Openness and clarity are the keys; the courts do not enforce tricky wordings.
There are briefly four ways each side can limit its liability. Since many business
risks are taken by the seller, he or she normally adds limitation of liability
clauses to the contract. The buyer, on the other hand, tries to reduce their
impact. The four ways are as follows:
1. Ceilling
2. Roadblock
3. Iron curtain
4. Buck passing

overstep: vtigt qua (gidi hen)


allocate: phan bo
tricky: bip bgm

pinpoint: c6 dinh, an dinh


exposure: rdi ro ca the c6
impact: anh twang, tac dOng

The worst comes to the worst: dieu xau nhat xay ra

93

4.1. The Ceiling


In analyzing the risks of a contract, the seller pinpoints his "exposure" (= his
possible loss) if the worst comes to the worst. In this process, he tries to set a
ceilling on payments for which he is liable:

Delay
For each week of delay, the Seller shall pay 1% of the contract price up to a
maximum of 10% of the contract price
This wording puts a money ceilling on the seller's liability for delay. Another
common ceilling is the extent of insurance cover.

Compensation
The Seller shall be obliged to compensate and save harmless the Buyer for
personal injury and property damage to the extent that the damage concerned
is covered by the Seller's insurance. On the Buyer's request, the Seller shall
hand over for inspection to the Buyer a copy of all relevant insurance policies
Similarly the seller often tries to limit his total liability under the contract:

Total Liability
The total liability of the Seller for all claims for damages made against him
by the Buyer under this Contract or otherwise shall not exceed 10% of the
Contract price
Or

Aggregate Damages
The aggregate amount of all damages (excluding liquidated damages as
referred to in @ 23 of this Contract) costs and expenses recoverable from the
money ceilling: s6 tion 161 da
insurance cover: pham vi bao hiem
total liability: trach nhiem t6i da
aggregate damage: ton that tong hop

94

recoverable: cO the hoar) tra


to be restricted to: hen the den (mire)

Contractor is restricted to and in no case may exceed 3% of the Contract


value
In both these examples, the sum payable is fixed as a percentage of the contract
price; this is normal. Sometimes a money ceilling is set (for example,
"$50,000"). Sometimes, the calculation is more complicated (for example "$10
for every meter of cable delivered"). The parties agree whatever is appropriate
to their situation.
Ceillings are often set for a particular time; in this case guillotine is perhaps a
better word:

Liabilities after Expiration of Defects Liability Period


The Contractor shall have no liability to the Employer for any loss of or
damage to the Employer's physical property which occurs after the expiration
of the Defects Liability Period unless caused by Gross Misconduct of the
Contractor (FIDIC, 1987, @42.3)
The "fiction" of delivery in accordance with the contract is a time - ceilling
favored by many sellers:

Notification of Defects
If within twenty - one days of receipt of any consignment from the Seller, the
Buyer does not notify the Seller that the consignment is defective and submit
samples as evidence of defect, then the consignment shall be deemed to
comply in all respects with the specifications and the Buyer shall forego all
rights to reject the consignment
Such provision are usually enforceable provided they are not hidden or
obscurely worded * .

physical property: tai san vat chat


gross misconduct: pham loi re' rang Ong tivn)
fiction: tuVng tuvng, hu'clu

thoroughgoing: thang than, haan toan, dirt khoat

95

4.2. The Roadblock

For the seller, risk attacks down many roads. The seller tries to block of as
many of these roads as possible. One ocmmon roadblock was discussed in Part
4: the force majeure provision.

Force Majeure

If either party is prevented from. or delayed in, performing any obligation


under this contract by reason of a force majeure event, then this party is not
considered to be in default and no remedy, be it under this contract or
otherwise, is available to the other party
An especially dangerous road for the seller is his liability for consequential loss
or damage. In Part 5, we saw the danger of a warranty claim going beyond the
simple duty to repair or replace. Sellers usually try to add a thoroughgoing
rejection of liability for consequential loss:

Consequential Loss or Damage

Performance of the said duty to repair or replace defective items or to pay


liquidated damages in the agreed amount shall constitute full and complete
satisfaction of any claim of the Buyer under this warranty. The Seller shall
not be liable to the Buyer, by way of compensation, for any loss of profit or
for any loss or consequential damage that may be suffered by the Buyer, or
for any other loss, injury, harm or damage however arising
As we have already seen, the buyer's interests are directly opposed:

Seller's Liability

The Seller shall indemnify and save harmless the Buyer against any loss or
damage whether direct or indirect suffered by the Buyer as the result of
defective or faulty goods delivered by the Seller
Unusual roads are open in many contract situations; again the seller tries to
block them off. In the clause below, for example, a contractor working on a
power plant in South Africa tries to limit his liability for sabotage: he says, in
effect, that sabotage by his workers is not breach of contract:

96

Contractor's Liability
The Contractor shall be liable for all acts and omissions of his servants,
agents, workmen and personnel. However, damage caused by the willful
intent of Contractor's servants, agents, workmen and personnel shall not give
rise to any claim for compensation for the Contractor
A common problem in international contracts is patent rights. If a French
supplier sells a machine to Verbena and a law suit begins in Verbena because a
local company claims patent rights over part of the machine, then who is liable
and who pays? Both the seller and the buyer have an interest in blocking off
this road. The clause below is from a contract between a Chinese importer and
a German supplier of steel-making machinery. The clause favors the Chinese
buyer:
Settlement of Claims by Third Parties
The Seller shall be responsible for taking up and settling all challenges,
claims or law suits brought by individuals, manufacturers, companies and
authorities of any country in connection with the know - how transferred to
the Buyer under this Contract. The Buyer shall take no responsibility, legal,
financial or otherwise, for such challenges, claims or law suits
The general rule: Wherever you foresee a risk in the contract, draft a roadblock
clause to reduce the risk or exclude it altogether.
4.3. The Iron Curtain

"Everything that is not allowed is forbidden". This principle is helpful,


especially to the seller. Like the iron curtain of the post - war years, it blocks
off all avenues of approach apart from those deliberately kept open. Three
examples of iron - curtain clauses:
Comprehensiveness
The rights and duties provided for in this Contract are the only rights and
duties in case and in consequence of a breach of this contract by either party
and all further rights and duties, be they under this contract or otherwise, are
hereby expressly excluded

sabotage: su pha hoai


omission: be) sOt

to give rise to: lam phat sinh


challenge: tranh chgp, thach thitc

willful: c6 .}"/

97

Limitation of Liability
The Buyer's sole remedies for claims of any kind with respect to the products
furnished under this Agreement and with respect to all other performancs by
the Seller, under or in connection with this agreement or with respect to or in
any way connected with the manufacture, sale, handling use, repair,
maintenance or replacement of the products including liability arising out of
contract, strict liability, negligence, or any other tort shall be limited to those
remedies prescribed in the warranty section of this Agreement

Exclusive Remedies
The Employer and the Contractor intend that their respective rights,
obligation and liabilities as provided for in these Conditions shall alone
govern their rights under the Contract and in relation to the Works.

Accordingly, the remedies provided under the contract in respect of or in


consequence of:
a. any breach of contract, or
b. any negligent act or omission, or
c. death or personal injury, or
d. loss or damage to any property
are, save in the case of Gross Misconduct, to be the exclusion of any other
remedy that either may have against the other under the law governing the
Contract or otherwise. (FIDIC. 1987, @42.4)
In other words, "Everything that is not allowed is forbidden".
4.4. Passing the Buck
An indemnity passes your responsibilities to somebody else. This is fine, as
iron curtain: mau thap
sole/ exclusive: riong, rieng bi6t, dOc nhgt
save: trer (giUi tit)
possession: chigm him
ownership: sa hCru
buck: do la

98

deliberately: c6k
tort: t6n hai
patent licence: Gigy phep sef dung bang sang chg.
licensee: Nguti dutc cap gigy phap
licensor: Nguti cap gigy phap

long as the other side agrees to it. An indemnity simply says: "If anyone makes
me pay, then I will pass the bill to you, and you can pay it". The example below
comes from the procurement contract for an aircraft project:

Product Liability

The Supplier shall fully indemnify and hold harmless the Purchaser from and
against any loss, liability or claim in respect of personal injury to, or the
death of, any person or any loss of or damage to any property of any kind
whatsoever arising out of or in connection with the possession, ownership,
use and operation of the Item by the Purchaser or any third party approved
by the Purchaser whether such Item is installed in an Aircraft or not

Similar clauses occur in contracts where local taxation is a problem for a


foreign company: the local company agrees to "compensate and save harmless"
the foreigner.
Patent license agreements often indemnify the patent holder: If a lawsuit is
brought against him in the licensee's country, the licensee must "compensate
and save harmless" the licensor.
Indemnity clauses are, by their nature, unbalanced. They are usually a sign that
one side, buyer or seller, has the upper hand.
5. COMPREHENSION QUESTIONS
5.1. A Fine Contract

The following clause is (lightly) adapted from a contract for the construction of
a hydroelectric project.

Fine Payable

If the Contractor fails to complete the work at the fixed date, a fine shall be
imposed upon him for the period of delay until the work is completed. The
fins shall be as follows:
2% for the first week, or any part of it;
4% for the second week, or any part of it;
6% for the third week, or any part of it;

99

8% per week for the fourth week, or part of it, and for all succeeding
weeks.
The fine shall be calculated on the total contract value.
1. The clause uses the word "fine". Does that tell you with certainty what
kind of clause your are looking at/ (Penalty clause or liquidated damages
clause?)
q YES

q NO

2. How long after a delay does the contractor lose 100% of the contract
price?
... Weeks
3. Do you think this clause is a penalty clause or a liquidated damages
clause?
q PENALTY

q LIQUIDATED

q DAMAGES

4. If the applicable law is the law of the State of New York, would the judge
enforce this clause?
q YES

q NO

5.2. Damages
Is the clause below a liquidated damages clause? If no, what is it 9
Damages for Delay in Delivery or Supply
Should the contractor delay delivery of any item of supply beyond its
specified due delivery date under the contract, the Contractor acknowledges
that, as a result, the Employer will suffer loss and damage, and the Contractor
agrees to pay to the Employer an amount in damages to compensate for such
loss and damage for each day by which actual delivery exceeds the specified
due delivery date under the Contract
5.3. Without Prejudice
How do you think a seller would try to modify the following clause

without prejudice: Kh6ng phuvng ton d6n...,

100

If the seller fails to deliver the goods on the date specified in the contract, the
buyer shall, without prejudice to its other remedies under the contract, impose
as liquidated damages a sum of 1 per cent of value of the delayed goods per
week up to a total of 10 per cent of the total value of the delayed good
5.4. Material Breach

Study the provision below and then answer the question:


In the event of a material breach of any condition of the c,ontract, the
Purchaser shall give the Supplier written notice of such breach, and the
Supplier shall have four weeks from the receipt of such notice in which to
rectify the breach. Should the Supplier fail to rectify the breach within such
period, the Purchaser shall have the right forthwith to terminate the Contract
in whole or in part
In the event of termination, the Supplier shall refund any advance payments
made against undelivered items
In the event of termination, the supplier shall not be entitled to payment of
any amount by way of compensation or otherwise in respect of such
termination
The price to be paid by the Purchaser for work carried out under the Contract
prior to the date of the termination shall take into account the shortfall
between the work actually performed and the complete work as specified in
the Contract
1. Does the use of "termination" here follow UCC usage?
q YES

q NO

2. What is a "material breach"?


q a. Supply of defective material.
q b. A breach that causes a significant loss to the buyer.
3. Is the provision about notification and rectification in four weeks fair
to the supplier?
q YES
material breach: vi pham nghiem trong
refund: tra lai tien

q NO
prior to: fru&
advance: tien Cmg trutc

101

4. This clause is taken from a contract for the supply of goods and
services. How were the goods apparently paid for under this contract?
5. The clause speaks of "compensation". Is this:
q a. Compensation for the loss of the contract?
q b. Compensation for goods and services supplied so far?
6. Will the Supplier be compensated in full for the work he has done so
far?
q YES

q NO

S.S. Penalty Spot

Study this clause from a consultancy contract. The consultant examined the
heavy electrical equipment requirements of a government department.
Penalty

1. If the Consultant falls to fulfill the contract, in whole or in part, he


shall pay a penalty to the Ministry. For each full week of delay, the
penalty shall be 0,5% of the value of the outstanding portion of the
performance; the total, however, shall not exceed 8%
2. If the Ministry is entitled to claim damages due to the delay, and
penalties paid under this clause shall be taken into account

1. Is there a ceilling on the penalty to be paid by the Consultant if he is in


delay?
q YES

q NO

2. If the Consultant pays the penalty, can the Ministry also sue him for
compensatory damages?
q YES

q NO

3. If the answer to (h) is "Yes" can the Ministry claim payment in full
apparently: rO rang
consultancy: hi van
portion: Wien, xult

102

both of the penalty and of the compensatory damages.


q NO

q YES

4. Is this clause dictated by a strong Consultant (Seller) or by a strong


Ministry (Buyer)?
q MINISTRY

q CONSULTANT
5.6. Contract Terms Inc

Over a period of years, Smith hired equipment from South Wales Switchgear.
Each rental was the subject of a simple form contract provided by South Wales
Swithchgear. The contract stated that General Conditions of hire were available
"on request". In fact, South Wales had produced three editions of these
"General Conditions", the most recent in March 1990.
In 1987, a machine hired by Smith broke down and Smith lost a lot of money as
the result. Smith demanded compensation from South Wales. South Wales
pointed to their current (1990) General Conditions which disclaimed all
liability. Smith sued. The issue was this: Was South Wales' disclaimed all
liability part of their agreement or not?
Smith had never requested a copy of the 1990 General Conditions; however, he
had had a dispute in 1989 with South Wales Swichgear, and he had received at
the time a copy of the 1989 General Conditions (Smith v. South Wales
Switchagear / All ER 18, 1988, modified).
1. What suggests that South Wales' General Conditions are part of the
contract:
2. If the Conditions are part of the contract, which version?
q 1989

q 1990

compensatory damage: ton thit phai b6i thutng


disclaim: thoai thac

103

Part 8

FORMATION OF CONTRACTS
1. SOME LEGAL ASPECTS

The package of rules governing business relationships is a very complex one.


Some rules are enforceable and some are only applicable if not otherwise
agreed. A certain practice may have developed in a certain field of business.
This section is not meant to be complete. It only gives the reader a general
introduction to the subject by explaining the fundamental rules of trade.
Whenever money is involved, disputes can arise even between best friends. A
written contract stating all agreements as detailed as possible is therefore
recommended for all purchases from local as well as from foreign sources.
A contract is binding whether it is written or oral. In the event an oral contract
between a supplier and a buyer is later confirmed in writing. The written
confirmation is binding on both parties if no objection is raised within a
reasonable time.
It is important to note that when a contract is reduced to writing, the written
evidence supersedes all prior oral evidence. This means that a buyer cannot
legally rely upon a vendor's oral statements concerning a material's
performance or warranty, unless the statements have been included in the
written agreement.
Consequently, from a legal standpoint, a buyer should consider carefully the
content of his oral negotiations with a vendor and ensure that he has reduced to
writing the relevant date which he wants to include as part of the contract. The
buyer should also be aware of the fact that courts have rules that written or
typed statements take precedence over printed statements on the contract form,
should conflicting statements appear in the document.

package of rules: chon b6 cac quy tac


enforceable: cteng cha, bat bu6c
applicable: c6 the ap dung

104

oral: bang miang


supersede: v6 hiau h6a
vendor: nguti ban hang

Almost every action a buyer takes has some legal significance, so he does need
to know the consequences of his actions, and must be able to recognize
problems requiring expert legal assistance.
Many orders are preceded by several meetings between the Buyer and the
Seller, settling specifications, approving samples, establishing prices, etc.
Unless these discussions negotiations are conducted with care, the parties could
find themselves contracted orally so the subsequent order becomes merely a
document for accountancy purposes. There is a real danger during these
meetings of creating a legally binding contract with the enthusiasm of
concluding the deal. Remember, as we said before, contracts for the supply of
goods and services do not have to be in writing to be legally enforceable.
Another important point to bear in mind in respect of oral contracts is that any
limitation placed on an individual's power to commit his organization is purely
an administrative device and will not affect the validity of the oral contract
unless the other party knews of the limitation. Unless care is taken during the
negotiation, binding oral contracts in excess of one's limits of authority - either
on the part of the Buyer or, as is equally important, on the part of the Seller can easily be created.
On the other hand many orders, especially for standard components, are placed
without any prior negotiation. They are acknowledged by the Seller. The goods
are delivered, the invoice is passed for payment, and then something is
discovered with respect to the goods which was not quite as expected the Buyer
on questioning the Seller is referred to Seller's Conditions of Sales. Someone
forgot to study the Acknowledgement of Order and the Buyer finds himself
faced with a conflict of conditions.
It is thought that this does not happen in business organisations but it is
surprising how many times it does happen with the pressures Buyers find
themselves under today.
To create a contract there must be an "offer" and an unqualified "acceptance" of
that "offer". The "offer" can be either the Seller's Quotation or the Buyer's
Order depending on which document is the initial one. The "acceptance" can be
either the Buyer's Order or the Seller's Acknowledgement issued in
consequence of an "offer". This is the most common way to conclude a
contract. Unfortunately, in practice, many transactions take place without these
formalities having been completed. However, big contracts are often signed in
to take precedence over: tinh trtrOc den
preced: di trutc, thing trutc
merely: chi la

purely: thuan ttly


device: phuvng tin

105

two identical copies by both parties. Every clause has been discussed and
negotiated upon. The risks for conflicting statements in the documents have
been carefully examined but the risks for interpretation disputes can not be
eliminated.
According to the general conditions ECE 188 there are only two situations
when a contract is considered to have been formed.
1.1. Paragraph 2.1. says

"The Contract shall be deemed to have been entered into when, upon receipt of
an order, the Vendor has sent an acceptance in writing within the timelimit (if
any) fixed by the Purchaser".
This says that a contract has been formed when the buyer has issued an order
and the Seller has accepted or acknowledged it. The Seller's written acceptance
or acknowledgment shall be sent by the Buyer within the stipulated time. If
there is no such time limit the Seller is obliged to have sent his acceptance
within a"reasonable" time.
1.2. The other situation is described in paragraph 2.2

"If the Vendor in drawing up his tender has fixed a timelimit for acceptance, the
Contract shall be deemed to have been entered into when the Purchaser has sent
an acceptance in writing before the expiration of such timelimit, provided that
there shall be no binding Contract unless the acceptance to reache the Vendor
not later than one week after the expiration of such timelimit".
The Seller has sent his quotation in which he has stated a timelimit within
which the Buyer must have acceptance to reach the Vendor not later than one
week after the expiration of such timelimit".
The Seller has sent his quotation in which he has stated a timelimit within
which the Buyer must have accepted the offer. The contract is here entered into
when.
- the Purchaser has sent an acceptance in writing
- the acceptance - Order - has been sent within the timelimit.
- the acceptance is received by the Seller not later than one week after the
expiration of such a timelimit.
conflict of conditions: xung dOt giva cac diet' ken
initial: ban deli
identical: giong het nhau
eliminate: /001)6

106

enter into... giao k6t


passivity: tinh thy eking
counter offer: hoen gia

The two rules require activity from the party which has received the order or
the quotation. This stresses the fundamental rule: never to think a party's
passivity binds him.
When the Buyer's Order is the Offer, the Seller's Acknowledgment, if
unqualified i.e. it does not differ in any essential point from the details of the
Order, is the acceptance and a contract exists between the parties. However, if
the Acknowledgement of Order shows that the Seller intends his own
conditions to apply then this constitutes a counter - offer and no contract exists
at that point. A statement on the Order excluding the Seller's Conditions is no
protection for the Buyer and does not legally affect the counter - offer situation.
Always check for a possible conflict of conditions.
An offer may be accepted by conduct, e. g. by dispatching goods in response to
an offer to purchase (an Order) without prior acknowledgement of the order.
Similarly, an offer to supply goods made by the Seller, (this offer may be in the
form of a counter - offer to the Buyer's Order) can be accepted by the Buyer by
the latter taking delivery of, and using, the goods. Where a contract has been
formed by conduct, it is often difficult to say exactly what terms have been
agreed. The Buyer may find himself bound to the Seller's conditions.
Post contract negotiations cannot affect the terms of the contract unless those
negotiations themselves result in an offer and an acceptance constituting a
contract, the intention of which being to amend the previous contract.
The existence of the contract does not necessarily mean that all of the
obligations of the Buyer and the Seller have been fully specified at the time of
forming the contract. There are instances such as variation of orders where,
under the terms of the contract themselves, the subject matter of the contract
may be changed according to procedures set out in the contract.
There is a situation, however, where the roles of Seller and Buyer are, to a
degree, reversed. This is where an inquiry and a tender are involved. An inquiry
is not an offer, it is an invitation to do business (in legal terms "to treat"). The
Seller's tender is the offer and the Buyer's order, the acceptance. Providing the
terms of the tender and the order agree there is a contract, and an
acknowledgement of such an order is merely a courtesy and cannot affect the
contract. Therefore, where a tender and an order have been exchanged and a
contract formed, neither party can introduce any new terms.
The order in which a contract document shall take precedence over other

conduct: cir chi, ti6n hanh


post contract negotiations: dam phan trutc khi ky k6t hap dong

107

documents should normally be stated in the contract. Such a clause could have
the following wording:
"The folowing documents shall be deemed to form and be read and construed
as part of this Agreement, viz:
a. The Special conditions
b. The Tender
c. The Tender Invitation
d. Technical specifications
e. General conditions;
The conditions of The Contract shall prevail over any of the referred
documents. The above contract documents are to be taken as mutually
explanatory of one another but in case of ambiguities or discrepancies the same
shall taken precedence in the same order they are listed in".
2. THE OFFER

An offer is usually defined as an act on the part of one person whereby he gives
to another the legal power of creating the obligation called contract.
The offer must be carefully distinguished from preliminary negotiation. An
offer can be accepted and can thereby become a contract. Preliminary
negotiations may lead to the making of an offer.
The offer begins to run at the time it is received by the person to whom the
offer is made, unless otherwise stated in the offer. It continues in effect until it
accepted or rejected by the recipient, until it is withdrawn by the offerer, or
until it lapses.
Once an offer is terminated, by whatever means and for whatever reason, it
cannot be revived.
The form of the offer is also important. All documents intended to be
incorporated must be expressly referenced and made a part of the offer. Mere
attachment to or enclosure with the offer will not be sufficient.
An offer if made by a vendor can be equally valid, either in writing or verbally.

prevail over: clutc xem xet truUc, th,ing


referred documents: cac tai lieu dutc dan
ambiguilty: toi nghia
discrepancy: su khac nhau

108

3. THE PURCHASE ORDER


Generally, the purchase order is regarded as containing the buyer's offer and
becomes a legal contract when accepted by the vendor. Many purchase order
forms have a copy that includes provision for acknowledgement or acceptance.
Some companies' forms use the reverse side for printing their standard
conditions of purchase. Other companies may include a separate printed sheet
stating their terms and conditions.
4. ACCEPTANCE OF ORDERS
Having placed an order with a vendor, the purchasing officer wishes to assure
that the order has been accepted. It is customary to insist upon a definite vendor
acknowledgement, usually in written form.
The acceptance may conflict with some of the conditions stated in the purchase
order.
If a careful comparison is not made of all conditions stated in the offer with all
conditions stated in the acceptance, the result will be an unclean acceptance. If
the buyer does not make any claim against the conditions within a reasonable
be time period, the contract will get legal status and he binding on both parties.
Please keep in mind that advertisements and price lists do not constitute legal
offers unless specifically directed to the buyer.
5. GENERAL CONDITIONS
General conditions can, be grouped in 4 different groups depending on how you
categorize the issues:
- international organizations
- business associations
- individual companies
The first three categories represent a thorough evaluation of both buyer's and
seller's risks in a certain business situation. Their general conditions reflect the
will of both parties in a common wording. General conditions issued by
individual companies are more detailed and specific in their wording and are
most often written to protect the seller's interests...
The problem in international trading is that only one party's national law can
govern a contract. The other party is very often unfamiliar with that law.
General conditions are most often written by qualified experts. By referring to a
certain set of general conditions the parties can protect themselves from many
verbally: bang Idri, bang miOng
reverseside: mat sau, trang sau

categorize: phan logi

109

conflict situations. Therefore you should avoid making any changes in the
"system".
6. ECE GENERAL CONDITIONS

The most common general conditions used in international trading are issued
by the United Nations Economic Commission for Europe (ECE) in cooperation
with the International. Institute for the Unification of Private Law (Unidroit)
and the International Chamber of Commerce (ICC).
They are referred to as "General Conditions for the Supply of Plant and
Machinery for Export", ECE 188 for Western European countries and ECE 574
for Eastern Europe. (See Appendix on Page 440).
The main differences between the two are:
- the transfer of risks of damage to the goods, in case ECE 574 does not
refer to Incoterms.
- reliefs (force majeure), in case ECE 574 does not include any examples
of cases of reliefs.
- the arbitral proceedings shall according to ECE 574 not automatically
be conducted according to the arbitration rules of the ICC.
7. APPLICABILITY

Standard conditions of contract should form the foundations on which the


contract is built. As such they should define the general rights and obligations
which experience has shown, it is reasonable for the parties to ask for and
accept. They should therefore be as comprehensive as possible and drafted in
such a way that they require the minimum of alterations to meet the widely
varying circumstances in any given field of purchasing.
The conditions should be a simple and clear explanation of the rights and
obligations under the contract. Clarity and simplicity should be the keynote
throughout.
What conditions shall apply on a contract is a matter of strengtheness of
business attractiveness except in some cases when they are issued by national
authorities. Such conditions are often governed by enforceable rules of national
laws or regulations, i.e. a buying officer of a public institution must follow
reflect: phan anh
Unification of Private Law: th6ng nhal to
applicability: kha nang Org dung
arbitual proceedings: thu tuc trong tai

110

will: y chi
keynote: then ch6t
acquisition process: qua trinh mua ban

certain rules in the acquisition process and is prohibited from accepting


conditions which are not in agreement with applicable instructions.
If a set of general conditions apply to an agreement between two parties, the
parties must expressly have agreed upon this in a certain clause in the contract
of, for instance, the following wording: "The attached General Conditions no...
issued by... (enclosure no...) shall apply".
8. GENERAL NOTE ON NEGOTIATION

Always specify in the inquiry order that it is a condition of the order that the
standard conditions are to be accepted. If the Seller raises any objections, these
can then be the basis for negotiation, subject to legal guidance. Avoid
attempting to amend the Seller's conditions to meet one's own requirements.
The above represents the ideal. It is recognised that on occasions, as a matter of
commercial expediency, risks will have to be taken and departures made from
the practice and principles set out above. Such deviation, however, should be
the exception rather than the rule.
9. COMPREHENSION QUESTIONS

Fill in the blank with one suitable word


9.1. General considerations

1. The other

to the contract

What is the exact name of the other party?


2.

law.

What law will apply to the contract?


3. General conditions.
3
9.2. What the

General conditions will apply?


4

is getting ?

1. Scope of goods and/for services

i. What quantity is to be supplied?


ii. What are the
5
expediency: loi ich
deviation: khac di, chOch twang

exception: ngoai le

111

2. Delivery
i.
6
will delivery be made?
ii. What
7
as delivery?
iii. What is the
8
of delivery?
iv. When do risks and title pass?
v. What
9
is excusable?
vi. What are the consequences of unexcused

10

9.3. Defects Liability


1. Definition of

11

i. What
12
as defects?
ii. What does not count as defects?
2. Remedies
i. What
13
action is required?
ii. Who decides what corrective action to
3. The timing of the Defects

15

14

period.

i. How long is the


16
liability period regulated?
ii. How long is the Notification Period?
iii. How long is the Rectification Period?
iv. How long is the
17
Action Period?
4. Who pays for Defects Liability claims?
i. Will the buyer
18
any of the cost?
ii. Can the seller exclude liability in any way?
9.4. What the buyer is giving
1. Price
i. What is the
19
price?
ii. In what currency is the contract price stated?
2. Payment
i.
20
will payment be made?
ii. What
21
as payment?
iii. What is the
22
of payment?
iv. What
23
is excusable?
v. What are the consequences of delay?
112

9.5. Legal Framework


law
24
1. The
2. Provisions concerning the parties
25
i. What is the exact name of the
ii. What is the legal address for serving
iii. Can rights and duties be assigned?
3. Definitions.
Do any contract terms require

party?
26
?

_ _

_27-

4. Coming into force


Must any preconditions he fulfilled before the contract comes into
force?
5. Duration and Renewal
Is performance geared to a specified time frame?
6. Termination
for default
28
i. Is either party allowed to
ii. Is the buyer allowed to terminate for convenience?

7. Entire agreement

_ _

agreement under any applicable law?


29
i. Is contract the
ii. Should any background information be included in a Whereas
Recital?
Invalidity clause necessary?
30
iii. Is a

8. Language
Which language will be authentic?
9. Total Liability
i. Can the seller set a ceiling on his total liability under the contract?
31-- all rights and duties not expressly included?
ii. Can the seller
10. Settlement of Disputes
agreement clause worth including?
32
i. Is an
ii. Is a conciliation procedure worth including?
a dispute themselves, how will it be
33
iii. If the parties cannot
settled?

113

Part 9

THE INDUSTRIAL PLANT


CONSTRUCTION CONTRACT
Industrial plant construction contracts, differ from the purchase contracts we
have mostly studied so far in at least three ways. They involve more parties,
they involve works in addition to goods, and they take many years to run their
course. This is not the place for a full discussion of construction contracts; this
part simply tries to show the main differences between such contracts and the
purchase contracts discussed so far. The part makers frequently refer to a recent
UNCITRAL publication, Legal Guide on Drawing Up International Contracts
for the Construction of Instructrial Works. The reader who needs to know more
is recommended to study this book.
1. UNPACKAGING, TENDERING AND NEGOTIATION

Today most plant construction contracts are "unpackaged" and subject to


tender. How does this affect contract negotiation? How does it affect the form
of the contract?
Turnkey projects have lost favor in recent years. Each phase of plant
construction is now "unpackaged" and made the subject of a separate tender.
The tendering system, unfortunately, works against careful and expert
negotiation of a contract. Only finger-tip control of tendering procedures
achieves first-class results.
What are the alternatives? Today, many construction contracts are
"Unpackaged". Unpackaging means developing a separate contract for a
project. For example, a typical project to build a factory involves at least the
following senquence of contracts:
1. A consulting contract for a feasibility study.
2. A consulting contract for a design (or engineering study)
3. A consulting contract with an engineer to oversee the construction
. installation and testing.
4. A construction contract to build the plant
5. A supply contract to deliver and install machinery
114

Why should five unpackaged contracts be written when one "umbrella" contract
can also do the job? One obvious advantage of unpackaging is that local
companies can carry out part of the constructions work; this increases local
skills and saves foreign currency.
A popular approach to large construction contracts today is for the employer
and the contractor to join forces and form a joint venture. Let's take an
example: a small island in the Vietnam is made of almost pure marble. Vietnam
Rock approaches an Italian quarrying company for know-how necessary to set
up the quarry and export the marble. It can draft the specifications and invite
tenders for the construction work.
Thus we have three approaches to construction contracts:
1. The Turn-key project
2. The unpackaged project
3. The joint Venture contract
All the three approaches generally involve Tendering: inviting suppliers or
contractors to bid for the job.
Tendering, in the best international practice, is a highly regulated procedure. In
brief the system is this: in an optional first step, the employer (i.e. the party
paying for the work) invites companies, usually by means of a public
advertisement, to prequality for tendering. Companies that want to tender must
now show (a) that they have the expertise to do the job, and (b) that they meet a
number of formal requirements, for example they must be registered
companies, have no record of bankruptcy, and so on.
Next, the employer issues an invitation to tender. This invitation is often public,
or it is perhaps restricted to certain firms, for example, those who prequalify, or
companies on a list of acceptable contractors. A company that wants to tender
receives a list of the tender documents, specimens of documents, and a
statement of the tendering procedure.
An effective tendering system also establishes sub-procedures to regulate such
issues as:
1. The submission of tenders that comply with the invitation;
2. The submission of alternative or partial (non-compliant) tenders;
3. Withdrawal of a tender;
4. Posting of guarantees;
5. Opening, examination and evaluation of tenders;
6. Acceptance and rejection of tenders.
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Although most tendering procedures are already highly regulated, a 1988


UNCITRAL report suggests still tighter regulation. Each country, UNCITRAL
says, could pass laws to regulate tendering "procurement laws". Procurement
laws would cover all tenders submitted to ministries, state enterprises, private
companies, and so on. Such laws would have three main goals:
1. Integrity
2. Efficiency
3. Promotion of special national Objectives
The Integrity of the tendering process is very important internationally.
Tendering must work fairly, openly and within a well established legal
framework because only a trust worthy, law-based system encourages serious
bids by the best companies. A clear, fair system established by law also helps
achieve the goals of efficiency and the prdinotion of national objectives, for
examples the development of local expertise.
So far, however, few countries have passed procurement laws. Why not? One
reason is the basis conflict between tendering and contract negotiation ever
more difficult.
A first-class agreement takes into account the true interests of both sides; both
sides feel happy with it. Normally a first-class agreement requires skillful and
flexible negotiation. Tendering, however, is an inflexible procedure. In fact,
tendering is the natural enemy of negotiation. Some sets of tender documents
recognize this by allowing a company to submit a non-compliant tender, (ie. a
tender that does not perfectly agree with the project specifications).
Unfortunately, non-compliance works against the main principle of tendering,
that is the job goes to the lowest bidder. Only if the tenders are identical in all
respects can the employer decide whose price is lowest. For this reason, serious
centracters sometimes submit compliant tenders with which they are unhappy
and which do not represent state - of - the - art technology. They fear that
employers seldom properly consider a non-compliant tender. This vicious circle
is hard to escape.
The effect of tendering on technology transfer is particularly negative. For
decades, many developing countries believed that buying plant and equipment
would automatically bring in technology: know-how and technical expertise.
All too often, this belief has proved false. The transfer of technology depends
on three factors: documentation, training and technical assistance. In each case,
the necessary contract provisions must be tailor-made for the project. Training
is a particular problem: a proper training program always requires sensitive
negotiation.
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Tendering and negotiation: the two procedures are hard, but not impossible to
reconcile. The most important principle is that the tendering procedure must not
become so rigid that it makes a first-class agreement impossible. Well
conceived tenders often leave specially sensitive areas such as training open for
later negotiation with the successful bidder.
The effect of tendering process on the shape of the contract is well known: a
short contract and many volumes of contract documents.
The government of Vietnam hereinafter called the Employer and the Supper
group hereinafter called the Contractor hereby agree that in consideration of the
price specified in Annex B being paid to the CONTRACTOR by the
EMPLOYER, the CONTRACTOR shall complete the work specified in Annex
A in accordance with the agreed General and Special Conditions
Singed, for and on behalf of...
A handful of words are, often, the "contract". The technical specifications in the
Annexes are beyond our present scope. What lies within the General and
Special Conditions is explained in the next section.
2. THE PARTIES
In a simple sale, two parties are involved, buyer and seller. In building a plant,
countless technical experts, subcontractors and suppliers all confuse the picture.
How does the contract regulate so many different interests and levels of
control?
The employer (the buyer) uses an engineer to supervise the works. The contract
must specify in careful detail the relationship between the engineer and the
contractor (the seller). The suppliers and subcontractors are normally within the
responsibility of the contractor; the contract considers their work as if it were
the contractor's own work.
Construction of a large plant takes many years and involves often hundreds of
suppliers and subcontractors. For these two reasons, time scale and complexity,
a plant construction contract differs, at least superficially, from the "standard"
Purchase Contract we have discussed so far.
The principal parties to a plant construction contract are two: the Employer (or
the purchaser) and the constructor (or supplier). However, other parties, the
engineer and any number of subcontractor, play a central part.

2.1. The Engineer


The engineer (sometimes called the employer's representative) is a consultant

117

who oversees the works on behalf of the employer. Often, more than one kind
of expert is needed: an architect perhaps, a civil engineer, an electrical
engineer, and so on. These specialists work directly under the engineer. (Some
international contracts call these specialists the engineer's representatives) With
so many lines of control running between employer and'contractor, conflicts are
a matter of certainty.
Obviously the contract must specify the exact degree and nature of this control.
Some extracts from the Conditions of Contract for Electrical and Mechanical
Works published by FIDIC offer a possible model:
Engineer's Duties
2.1. The Engineer shall carry out the duties specified in the Contract...
Except as expressly stated in the Contract the Engineer shall have no authority to
relieve the Contractor of many of his obligation under the Contract
2.2. The Engineer's Representative shall be appointed by and shall be responsible
to the Engineer and shall carry out only such duties and exercise such
authority as may the delegated to him by the Engineer
2.3. The Engineer may from time to time delegate to the Engineer's
Representative any of the duties vested in the Engineer and may at any time
revoke such delegation
Any such delegation or revocation shall be in writing and shall not take effect
until a copy thereof has been delivered to the Contractor and the Employer...
2.4. Whenever under the Contract the Engineer is required to exercise his
discretion by:
a. Giving his decision or consent, or
b. Expressing his satisfaction or approval, or
c. Determining value, or
d. Otherwise taking action which might affect the rights and obligations of
the Employer or the Contractor;
He shall exercise such discretion impartially within the terms of the Contract and
having regard to all the circumstances
2.5. The Contractor shall proceed with the decision and instructions given by the
Engineer in accordance with these conditions
2.6. The Contractor may require the Engineer to confirm in writing any decision
or instruction...

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With so many parties interacting, precise regulation is essential. The most


difficult of the FIDIC conditions to enforce is probably 2.4, the requirement
that the engineer be impartial. The engineer himself, under contract to the
employer, often (reasonably perhaps) expects their engineers to be "on their
side". Conflict is inevitable, so FIDIC adds a further condition, in part to
protect the engineer;
2.3. The Employer shall not appoint any person to act in replacement of the
Engineer without the consent of the Contractor
2.2. The Subcontractor

Another important factor on the plant construction stage is the subcontractor.


Subcontractors carry out specialist tasks such as air-conditioning, electrical
wiring, roofing, and so on. Because the employer has no contract with these
subcontractors, the employer has, in principle, no rights over them and no
duties toward them.
No line links the employer and the subcontractor; nevertheless, the
subcontractor is, in a sense, working for the employer. To clarify the
relationship, plant construction contracts usually contain a number of special
provisions on subcontracting. The most common are:
- A clause forbidding the contractor to subcontract the entire work;
- A clause allowing the employer or the engineer to veto subcontractors;
- A clause making the contractor 100% liable for the work of all
subcontractors as if the work were his own.
The last provision is especially important. Contractors sometimes try to avoid
taking full responsibility of their subcontractors, but:
This practice... denies the employer one of the principle advantages of
employing a main contractor, that of having only one firm responsible for the
contract.
2.3. The Contractor's Duties: Scope, Delivery, and Defects Liability

Delivering a plant is an immensely complex procedure. What special provisions


are necessary to take into account this complexity and the extended time frame
of the contract?
Termination is allowed in most contracts cithcr for cause (excessive delay for
example) or for convenience. A price reduction is a common remedy for
119

defective construction, especially where repair or replacement is uneconomical


or simply impossible. Further, plant construction contract sometimes include a
provision that the employer can (if the contractor breaches the contract) employ
a new contractor and charge the work to the original contractor. Some contracts
contain a tough provision that allows the employer to refuse to accept the work
under certain circumstances.
Control of and Access to the Site

During construction, the Building site is under the control of either the
employer or the contractor. Each must allow the other's access to the site. The
contractor obviously needs access to carry out the works, and the employer
needs access to inspect the progress of the works. To prevent
misunderstandings, most contracts regulate this access. Where several
contractors and subcontractors are working on one site under several contracts,
access provisions require careful coordination.
Provision of Construction Equipment

Who provides the construction equipment? It is easier for the employer to make
the contractor responsible for selecting and providing the equipment, but it may
be less expensive for the employer to provide the equipment himself. In any
case, this question must be regulated in the contract.
Insurance

Damage is suffered by things: Injury is suffered by people. Damage to


machinery, to installations, or to buildings and personal injure to the
workforce are major concerns of the employer and the contractor. The main
question is, of course, who pays? The answer is usually that: the contractor
pays until take-over and the employer thereafter. Usually the contractor
indemnifies the employer against any claims arising from damage to property
or injury to people unless the employer's own negligence is the cause of the
problem. But that is not enough:
... The fact of the employer having obtained an indemnity from the contractor
does not, in any way, lessen the employer's own legal liability, and the third
party is perfectly free, if he can establish a valid claim to proceed against the
employer. It is of the utmost importance, therefore, to the employer that the
contractor has adequate resources available to implement the terms of the
indemnity.
Accordingly in most contracts, insurance policies cover many risks of damage
and injury. Normally the contractor or the insurance company must inform the
employer that the insurance policy has come into force and that the premiums
are regularly paid. This is important: A failure to pay premiums results in a
120

cancelled policy. If there is a serious accident, and the contractor goes


bankrupt, the employer can lose a lot of money.
Clearance of Site
When the work is finished, who is responsible for cleaning up? Again, there is a
trade-off between cost and convenience. If the contractor cleans up, the contract
price automatically reflects his costs.
Services After Completion
As soon as the works are running correctly, the employer takes them over.
During the defects liability (warranty) period, the contractor makes good any
defects. The defects liability provision does not, of course, look at problems
with spare parts, maintenance, and repairs. Many contracts require the
contractor (against payment of course) to supply spare parts, to maintain and to
repair the equipment.
Contractor often writes a separate maintenance and repair contract. Since such a
contract is usually short and simple, this is perhaps a good idea.
The defects liability provision in a plant construction contract follow the pattern
discussed in part VI. One issue, however, is particularly crucial in plant
construction: when does the warranty period begin? If there is only one
contractor, then the warranty begins when the works pass the required
performance tests. (This is variously called the date of acceptance or the date of
take-over).
If, however, the project involves several contractors, life becomes more
difficult for example hydroelectric power station for which one contractor has
supplied and installed the turbines and another contractor the generators.
The scheduled date for completion of all performance tests is 31 December
1995. Warranty begins with successful completion of tests and runs for five
years. Unfortunately, there is a two-year delay with the turbines: tests are not
run until the end of 1997. The supplier of the generators who installed his
equipment on time now has a warranty obligation until the end of 2002. This is
not fair to him. On the other hands, the employer needs a five-year warranty.
How can the parties resolve this conflict of interest?
A common compromise is to say (a) that the warranty runs for five years from
the date of completion of tests. Which is what the employer wants, further, (b)
that the warranty automatically expires at latest by a given date (in our
example, perhaps 31 December 2001). Which gives the contractor some
security. If things go badly, the losses are shared.
In summary: The scope, delivery and defects liability provisions of a plant
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construction contract follow the pattern established for the straightforward


purchase contract. The provisions are adapted however, to cope with the time
scale and the complexity of the typical construction project.
4. THE EMPLOYER'S DUTIES: PRICE AND PAYMENT

Fixing the price and payment terms for a project that is to run for many years
and involves many risks is extremely difficult. What techniques insure that the
employer gets a fair deal?
The more risks the contractor takes, the higher the contract price is. Skillful
pricing shares the risks and lowers the contract price. Payments are made in
stages: this is a problem for the accountant rather than for the lawyer.
As in simple purchase contracts, the main duties of the employer are found in
the price and payment provisions of a construction contract. The time scale and
complexity of the project create a number of problems.
4.1. Price of the Contract

The price of plant construction is fixed in one of three ways:


1. Lump-sum price
2. Unit price
3. Cost-Reimbursable price
Lump -sum Price

The lump-sum price is stated in advance as a total for the whole project. This is
the normal, familiar method for fixing the price for a job. In calculating this
price, the contractor looks at all the risks he is taking in performing the work.
The contractor puts a price on each risk and, if possible, adds it to the total
contract price. Because they cover so many risks, lump-sum prices are usually
high. Obviously, reducing the contractor's risk is one way to reduce the contract
price. Two approaches to reducing risk are common; unit price and costreimbursable price. Both are different from the lump-sum price in that they are
not fixed in advance for the total project.
Unit Price

Unit prices are agreed prices for certain units of performance, for example:
cubic meters of concrete poured, work-hours used in excavation work or in
digging a tunnel. With this method of pricing materials, in the construction of a
tunnel, for example, no one knows what will happen when tunneling begins.
The tunneling contractor needs a large safety margin, so he quotes a high price
for a lump-sum contract. The figure for a unit-price contract (price per workhour) is usually lower because it carries no risks for the contractor. The
employer, on the other hand, accepts a risk. If the work is quickly done, he
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saves money. If there are major problems, he loses money. The problem for the
employer is obvious. However, if the contractor is paid by the hour, he has no
incentive to work quickly.
Cost Reimbursable Price
-

Cost-reimbursable price is another attempt to avoid the high figures that go


with lump-sum quotations. Under this system, the contractor is simply
reimbursed for his costs plus an acceptable profit margin. (For this reason, costreimbursable price is often called "cost-plus price"). With this method, in
theory at least, the contractor needs no safety margin, and so the final price of
the project is perfectly realistic. The danger is obvious. If the price has no
ceiling, then the contractor is under no pressure to keep his costs low: No
matter what happens, he is paid and his profit increases with his expenditures.
To avoid this danger, some contracts include a ceiling price: whatever happens,
the price will not exceed $xxx million. This ceiling often defeats the purpose of
reimbursable model. In effect, the ceiling price becomes a lump-sum price. If
the price goes above the target, the contractor is not paid 100% of his cost. The
greater the reimbursable model, the more sophiscater the use of a target price is.
This gives the contractor an incentive to hold down costs.
Cost-reimbursable contracts usually allow the employer to terminate the
contract if costs are unexpectedly high. Termination is not, however, an easy
answer. The work must be finished, the new company knows the situation, and
it often charges more than the original contractor.
4.2. Payment
Payment is not, in general, a problem for the lawyers, though the details are
sometimes complicated. The price is usually paid in stages: perhaps 10% of the
total as each one-tenth of the work is completed, or installation, and so on. A
large contract may involve hundreds of payment events: perhaps tunneling is
paid for by the meter, excavation by the hour, the general progress of the works
by 10% stages, and the delivery of machines against invoice. With so much to
regulate, price and payment provisions are normally long and elaborate.
In principle, however, the terms of price and payment in a plant construction
contract follow the general pattern explored in earlier.
5. VARIATION
A project changes shape as it develops. How does a contract allow for
alterations and additions to, as well as deletions from the work? How is the new
contract price calculated? And how can the parties guard against major price
changes caused by currency fluctuations and inflation?
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A well drafted contract creates a procedure for changing the scope of the work.
It also regulates the necessary adjustments to the contract price. A mechanism
for price revisions is necessary when the value of a currency is likely to change
or when inflation is necessary when the value of a currency is likely to change
or when inflation in one country is likely to upset the balance of the contract.
The final shape of a construction project seldom follows the original designs
exactly. Let's take the Island marble quarry as an example.
The Italians are interested in the project because they want a source of marble
in East Asia-export from Europe is uneconomic. A harbor is planned for Island
in a small bay. To allow heavily loaded ships to leave the harbor, the contractor
must blast a deep channel with dynamite.
Unfortunately, a reef of rare coral blocks the entrance to the bay. The Ministry
of science and Environment hears about the plan to destroy the reef only days
before dynamiting is scheduled, the Ministry immediately forbids the
destruction of the coral. The plans must be changed. In another development,
half-way through the project, Vietnam Airlines begins a helicopter service to
the islands. The plans for the administration building are upgraded to include a
helicopter landing pad. Finally, a plan to drill a deep well is abandoned when
test drillings produce only salt water. Three variations are now necessary, each
one of a different type:
1. Alteration
2. Addition
3. Deletion
These variations all require changes to the scope and to the price provisions.
The contract (or the general conditions) must establish a mechanism for making
such changes. Some of the toughest and most expensive disputes occur when a
change is necessary, but the parties did not agree in advance on a mechanism
for change. How does such mechanism work?
First, does the employer have the right to require major changes in the contract?
Some contracts are very clear on this subject:
Variations

The term "variation" as used in this contract means any change in the scope
of construction or technical characteristics of the equipment, materials or
construction services to be supplied by the Contractor
Any variations ordered by the Employer must be implemented by the
Contractor in accordance with the provisions of this article

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Although some legal systems refuse to enforce such sweeping provisions,


normally such a clause, if the contractor accepts it, is valid and enforceable.
Some contracts, perhaps more fairly, allow the contractor the right to raise
objections to variations, especially to major variations. (A "major" variation is,
typically a variation involving a price adjustment of more than 15% of the
contract sum). The employer must consider these objections. If the two parties
cannot agree, the matter must go to arbitration.
In practice, most contractors are happy to accept alteraticns and additions
provided the price of the project is suitably increased. Deletions accompanied
by price reductions are, understandably, less popular. How are price changes
regulated?
Price changes that result from variations in the scope of the contract are often
called adjustments. (Adjustments are distinguished from price revisions which
are price changes for the work exactly as originally specified).
Price Adjustments

Price adjustments are often calculated on a cost-reimbursable (cost-plus) basis:


the contractor receives his costs plus a reasonable profit, as we saw in the last
section.
The FIDIC Conditions regulate price adjustments carefully. The first step is for
the engineer to order the variation. Next, the contractor puts a price on the
variation. The engineer now decides whether to carry out the variation or not. If
the engineer wants the variation but thinks the contractor's price is too high, the
FIDIC Conditions create a procedure for fixing a fair price (FIDIC Condition,
31). It is not necessary to study the details here, but the principle is clear:
where scope and price adjustments are regulated in the contract, the parties can
usually reach agreement. Where there is no regulation, expensive dispute r
quickly arise.
Price Revisions

Price Revisions (i.e., recalculations of price for eactly the same work) are a
feature of any contract that runs over a prior of years. Price revisions have two
main sources: (a) an increase (or less commonly a decrease) in the price of the
materials or services, and (b) a change in currency rates.
Where the contractor fears rapid price increases, he will not tender on the basis
of a fixed and constant price. He will want price to be indeed. In principle,
indexation is simple: if the price of a commodity, for example cement,
increases by 10%, then the price calculation exactly reflects this increase. For
example, if cement costs accounted for 20% of the original price, then a 10%
increase in the cost of cement raises the total contract price by 2%.
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Problems arise in choosing an indexation procedure acceptable to both parties.


What is the source of the indexed? What is the starting date or "zezo-date" for
indexation? What exactly is the formula for applying the index? These matters
must be specified in the general conditions or negotiated in the contract.
Contracts are generally denominated in one currency, perhaps $US. Sometimes
the local currency is used to denominate local components of the contract.
Because violent currency swings are possible over a period of years, contracts
occasionally allow a price revision in line with currency swings. Such clauses
are difficult to divise: if an American supplier offers to work for $US 10
million, a revision clause (based on recent changes in the value of the dollar)
could' swing his actual price down to $US5 million or up to $US 20 million.
This costs within the United States, however, remain much the same, allowing
a little for inflation.
Most contractors do not want a revision clause, but without one the employer
may find himself paying twice as much, or half as much for the project. What is
the fair solution?
In theory, though seldom in practice, the parties can denominate the contract in
a basket of currencies: for example, one quarter US dollars, one quarter
Sterling, one quarter Deutsche Marks, and one quarter Yen. Such a tactic evens
our the rise or fall of a particular currency. There are two ready-made 'currency
baskets": the Special Drawing Rights (SDR's) of the International Monetary
Fund and the European Currency Unit (ECU). Both rates are quoted daily.
Although few contracts today are denominated in either unit, international
practice is slowly changing.
To sum up: A plant construction contract cannot be frozen. The needs of a
construction site change almost daily and the contract must change accordingly.
A well drafted contract sets up mechanisms that allow change with the
minimum of friction.
6. TEST AND INSPECTION
No employer takes over a plant without a successful take-over test.
Unfortunately, many plants fail the take-over test, not once but repeatedly. How
can the employer guard against such expensive and time-wasting failure?

Many contracts develop a complex schedule of tests to ensure that machinery


meets its specifications in all respects. These tests greatly reduce the risk of a
last-minute failure at the point of take-over. The procedure for the final takeover tests requires special drafting.
A turnkey contract, at least in theory, requires only one set of tests,
performance tests, when everything is ready for take-over. Most contracts,
126

however, add tests for machinery at various stages of manufacture and


shipping. What is the purpose of these tests? Aren't the issuance of the TakingOver Certificate and the defects liability provision enough protection for the
employer? The chief interest of the employer is a plant that functions correctly
on schedule. Any delay, even if the contractor must pay liquidated damages, is
costly in terms of wasted time and postponed development. If the plant never
works, the employer is left in an intolerable situation. A well constructed series
of tests greatly reduces these dangers. What does a test series look like?
Let's say, for example, that the Saigon Dock Authority has ordered from a
company in Germany a crane for loading and unloading container ships. The
contract includes delivery, installation, and start-up. The Authority specifies,
perhaps, five tests, as follows:
- Test 1 while custom-made crane is being built in Germany
- Test 2 when the crane is ready for shipment.
- Test 3 when the crane arrives at the point of installation
- Test 4 when the crane is installed and ready for take-over
- Test 5 One week before the end of the warranty period
Testing programs obviously vary from contract to contract. For any given
machine, a practical timetable for testing is easy enough to develop.
If schedule testing during manufacture is appropriate (or random testing
usually on 24 hour notice), the FIDIC Conditions suggest a clear wording for
necessary provision:
Inspection and Testing During Manufacture
20.2 The Engineer shall be entitled during manufacture to inspect, examine and test
the materials and workmanship and check the progress of manufacture of all
Plant to be supplied under the Contract. This shall take place on the
contractor's premises during working hours. No such inspection examination or
testing shall release the Contractor from any obligation under the Contract...
Rejections
21.1. If, as result of the inspection, examination or testing referred to in Clause 20
the Engineer decides that any Plant is defective or otherwise not in accordance
with the Contract, he may reject such Plant and shall notify the Contractor
thereof immediately. The notice shall state the Engineer's objections and
reasons. The Engineer shall not reject any Plant for minor defects which do not
affect the commercial operation of such Plant
The Contractor shall then with all speed make good the defect or ensure that any
rejected Plant complies with the Contract...

127

For building works, on-site inspection takes the place of scheduled tests. This
kind of day-to-day inspection is performed by the engineer. The contract
usually includes the details of inspection procedures in the clause that describes
the duties of the engineer or the engineer's representative.
The final testing procedure most often occurs immediately before take-over or
acceptance. The contract must specify this testing procedure closely. The
normal steps are set out:
1. A procedure for naming the day on which the final tests take place.
2. A procedure for continuing tests without the other party (if necessary).
3. A procedure for repeating the tests if the works fail the tests.
4. Consequences of repeated failure of the test.

128

7. AN EXAMPLE OF A SUPPLY CONTRACT TO DELIVER AND INSTALL


MACHINERY (BILINGUAL):

7.1. The English version of the contract


CONTRACT NO 10/NAP7
By and between
Name : The Vietnam National Complete Equipment and Technics
Import Export Corporation (Technoimport)
Address : 16-18 Trang Thi Hanoi/ S.R. Vietnam
Telex : 411230 (TECHNO VT)
(hereinafter called "the Buyer") on the one hand
And
Name : Danbrew Ltd.
Address : Rahbeks Alle' 21
DK-1801 Frederiksberg C
Denmark
Telex : 16124 (DBREW DK)
(hereinafter called "the Seller") on the other
The present contract has been today entered into on the following terms and
conditions:

129

CONTRACTUAL DOCUMENTS
Article 1 Object of the contract and Scope of Supply
Article 2 Contractual Documents
Article 3

Obligations of the Seller

Article 4 Obligations of the Buyer


Article 5 Conditions and Time of Delivery
Article 6 Packing and Marking
Article 7 Prices and Payment Terms
Article 8 Penalties for Delivery Delay
Article 9 Inspection before Delivery
Article 10 Guarantee
Article 11 Erection, Performance Test and Acceptance
Article 12 Import/Export Licences
Article 13 Arbitration and Applicable Law
Article 14 Force Majeure
Article 15 General Conditions
Article 16 Coming Into Force of the contract
Article 17 Legal Addresses of the Parties

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Article 1:
Object of the contract and scope of supply

1.1. Object of the Contract


The object of this Contract is to establish a complete brewery plant with
bottling facilities in Nghe An Province, SR Vietnam with the hours/day and
241 working days/year for brewhouse and in accordance with the technical
specifications and lists of equipment, spare parts and materials/supplies, etc.
specified in the annexes attached to this Contract
1.2. Scope of Supply
The Seller undertakes to supply the following:
1.2.1 Processing equipment, auxiliary equipment, fittings and electrical
equipment as specified in Annex 3.
1.2.2. Spare parts for two year operation for all the equipment and
machines as specified in Annex 4.
1.2.3. Materials and supplies for the first months of operation as
specified in Annex 5
1.3. The Seller undertakes to supply all necessary items not mentioned in the
above annexes, but needed for normal operation of the plant and to
ensure all the guaranteed performances of the plant.
1.4. The Seller shall ensure the supply of spare parts for the plant as needed
and at least 10 years from start of the operation of the plant

131

Article 2:
Contractual documents

The following 13 annexes are an integral part of the Contract:


1. General process description
2. Specification for the beer
3. List of equipment and machinery
4. Spare parts
5. Materials and supplies
6. List of the Seller's personnel and Buyer's personnel
7. Technical documentation
8. Implementation schedule for delivery, erection, commissioning and
operation.
9. Specimen of Letter of Guarantee issued by the Seller's bank
10. List of Buyer's supply
11. List of consumption figures per hl beer
12. Supervision services and training of the Buyer's personnel
13. Buyer's trade mark - Trade mark reference and use

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Article 3:
Obligations of the seller

3.1. The Seller shall be responsible for the project concept, designing and
technical documents to be supplied to the Buyer. These documents are
specified in Annex 7 and shall be supplied in 5 copies of each kind of
document.
3.2. The Seller supplies equipment, materials and spare parts for the project to
CIF Danang port as per scope of supply mentioned in Annex 3.
3.3. The Seller shall deliver the equipment, materials and spare parts in
conformity with standards and specifications mentioned in Annex 3, to
Danang Port on CIF basis as per Article 5 of the present Contract.
3.4. The Seller shall provide all instructions necessary for the construction of
the plant building as per Annex 7.
3.5. The Seller shall undertake to conduct and supervise the erection of
equipment and to carry out the test run, commissioning and operation of
the plant as per Article 11 of the present Contract.
3.6. The Seller shall undertake to train the Buyer's personnel as specified in
Annex 6 of the Contract.
3.8. The Seller shall supply to the Buyer without any extra charge equipment or
machine parts or carry out replacement or repair, if necessary, in order to
complete his obligations, provided that such supply, replacement or repair
are not the obligations of the Buyer under this Contract.

133

Article 4:
Obligations of the Buyer

The Buyer undertakes:


4.1. To provide the Seller with basic and necessary data and documents
related to the plant for the latter's designing and working out of the list
of equipment and materials to be responsible for the correctness of the
documents
4.2. To apply for import license and other necessary permits for the
construction and production of the plant
4.3. To complete the construction of the plant building in conformity with
the technical requirements of the plant
4.4. To supply equipment for erection (cranes, scaffolding tackles, etc.),
general tools and consumables for erection of the plant delivered by the
seller (for welding, grinding, head-cutting, etc.)
4.5. To apply for necessary permits for the Seller's Specialists and their
family, if any, to come to Vietnam working for the plant, including
entry visa, temporary stay and working permit
4.6. To supply to the Seller, at Seller's request, manpower, materials
necessary for erection, the test run and commissioning of the plant as
per Annex 10
4.7. To bear transport cost for the equipment, materials and spare parts
supplied under the present Contract from Danang to the plant site,
including port customs fees

134

Article 5:
Conditions and time of delivery

5.1. The Seller shall deliver equipment, materials and spare parts mentioned
in Annex 3 and Annex 4 and technical documents mentioned in Annex
7 of the Contract in accordance with the dates mentioned in Annex 8
5.2. Delivery of the equipment materials and spare parts is to be made on the
basis of CIF Danang port, SRV (in accordance with the INCOTERMS
of 1953, Edition 1990)
The Seller shall try to avoid transshipment. If this is impossible, the Seller
shall inform the Buyer thereof and make suitable arrangement. The Seller is to
bear and pay all costs, fees, taxes and expenses regarding the transportation of
the goods to Danang port, SRV. The goods shall be insured from the Seller's
warehouse to the Buyer's warehouse at Danang port
The vessels carrying the goods supplied under the Contract shall comply with
the following conditions:
Such vessels have been in use for not more than 15 years or must be classified
as first class for ocean going ships by one of the international classification
societies as mentioned in the Lloyd's Instute classification clause 1.7.1978
Shipment in containers to be allowed
The Seller shall at least two weeks before shipment inform the Buyer by cable
or telex of compliance of the vessel with the foregoing and nationality thereof
The Seller shall in favour of the Buyer insure the equipment materials and spare
parts shipped under the Contract 110% (one hundred and ten per cent) of the
CIF contract value in accordance with Lloyd's Institute Cargo Clause (all risks)
payable in the currency stated in the Contract with a reputable insurance
company
5.3. The equipment shall be delivered with full accessories and spare parts in
accordance with the delivery schedule to ensure the erection and testing
of the project on time and in the most rapid and rational manner
5.4. The date of the relevant clean on board Bill of Lading is considered as
the delivery date of the goods. In case of airfreight of the technical
documents the airway bill will replace the ocean Bill of Lading and the
date of the airway bill is considered as delivery date for technical
documentation
135

5.5. The Seller shall notify the Buyer by cable or telex 10 (ten) days prior to
shipment of the goods. The contents of notification shall be as follows"
- Contract number
- Port of shipment
- Scheduled delivery date
- Value of the goods to be shipped
- Number of cases and/or containers
- Total gross weight
- Total volume
- Other information and/or instructions
The contents of the above cable or telex shall be confirmed by registered letter
within 10 (ten) days after dispatching of the cable or telex
5.6. The Seller shall notify the Buyer by cable or telex of the shipment
within 5 (five) days after the sailing date of the vessel from the port of
shipment
The contents of such cable or telex notification shall be as follows:
- Contract number
Confirmation and/or variation, if any, of the telex under paragraph 5.5
- Item number of equipment and materials shipped in accordance with
Annex 3
- Number of cases and/or containers
- Total net/gross weight in kg of each container or case
- Total volume in m 3
- Note concerning the cases of over-dimensioned and over-weighed
equipment such as from 10 (ten) tons and more in weight and/or
from 10 (ten) meters in length and/ or from 3.2 meters in height
and/or from 2-8 meters in width.
- Total value of the goods delivered
- Date and number of Bill of Lading
The above mentioned cable or telex notifications shall be confirmed by
registered airway letter which shall be sent to the Buyer within 3 (three) days
after the date of dispatching the cable or telex
136

5.7. Within 10 (ten) days after the sailing date of the vessel the Seller shall
send to the Buyer's address by courier service the following documents:
- Commercial invoice:

4 copies

- Clean on board Bill of Lading:

4 copies

- Packing list:

4 copies

- Inspection report:

3 copies

- Certificate of Quality:

3 copies

- Certificate of Quantity:

3 copies

Besides one set of packing lists, kept in a strong and waterproof envelope, shall
be sent through the captain of the vessel
5.8. In case of delivery by air the Seller shall inform the Buyer by cable or
telex 10 (ten) days before dispatching the goods of the number of
Contract, the expected delivery date, place of dispatching, description
of the relevant goods and its quantity
5.9. The Seller undertakes to advice the buyer by cable or telex on the same
day of dispatching of the relevant goods the following:
- Number and date of Contract
- Number and date of airway bill
- Name of air transport company and flight number
- Description of the goods
- Number of cases
- Net/gross weight
The Seller shall send to the Buyer, together with the goods, all necessary
transport documents such as copy of airway bill and packing list to ensure a
safe receipt of the goods at the airport of destination
5.10. The Seller shall be responsible for any damage and/or any additional
expenses caused by the absence of the above mentioned notification.
5.11. All expenses related to the notification as well to obtaining and
dispatching of all documents as mentioned in this Contract shall be
borne by the Seller
5.12. On deck storage shall be allowed for items which according to
international commercial customs are not or cannot be stowed under
deck
137

5.13. After the arrival of the goods at the port of destination the Buyer has
the right to entrust the inspection of quantity and/or quality to the
"Vietnam Superintendence and Inspection Company VINACONTROL" with respect to the goods the packing of which is
damaged or defective. This inspection shall be done by.
VINACONTROL itself
A report thereof shall be issued by VINACONTROL as an evidence for making
a claim against the Seller
A Seller's representative can be present at the inspection. In case there are
damages and losses of the goods during the transportation, loading and
unloading which are not imputable to the Seller. The Buyer, in the period of
insurance, shall invite VINACONTROL to inspect the said goods and supply
the Seller with claim documents concerned enables him to make claim against
the carrier or insurance company and to re-supply at his own expenses. The
Buyer with the replacement goods on the conditions stipulated in his Contract
within 6 (six) months from the date of receipt of claim documents supplied by
the Buyer
Claim documents shall consist of:
- COR (Cargo Outturn Report)
- ROROC (Report on Receipt of Cargo)
- Survey report
- Bill of Lading
- Packing list
- Other necessary documents

138

Article 6:
Packing and marking
6.1. The equipment and spare parts are to be shipped in export sea packing
covering the requirements of each particular type of equipment and
climatic conditions in the SR Vietnam
6.2. The packing is to secure full safety of the goods from any kind of
damage and corrosion during transportation by sea, railway and
combined transport taking into account transshipment, if any, during
transportation and proper long storage conditions in the SRV (with
maximum time of 10 months)
6.3. The packing shall be suitable for bring loading by crane, autocars,
trucks and manually in so far as the weight and volume of individual
packages allow
6.4. Before packing all machine parts of equipment and spare parts are to be
protected with anti-corrosion coasting to prevent them from any damage
and corrosion in transportation and to ensure a 10 months time storage
in the Buyer's country
6.5. The Seller shall be responsible for any damage or breakage of the goods
that is caused by initially poor packing or for corrosion which is due to
initially improper or insufficient coating
6.6. Every case or crate is not to exceed the following dimensions:
- Length: 10,000 mm
- Width: 3,000 mm
- Height: 3,200 mm
In any case weight is not to exceed 20 tons for each container or case; in case of
containers the dimensions of the same will be standard ones of 20 feet
6.7. Tubes, pipes and sectional steel or similar materials which due to
international practice could be delivered without packing shall be
bundled tightly according to sizes in order to avoid breaking during
transportation, transshipment and confusion upon arrival at the plant
site in Vietnam
6.8. The packing list will contain the following information:
- Contract number
- Item number (according to Annex 3)
- Weight (net/gross)

139

- Case dimensions in cm
- Name of Consignor and Consignee
6.9. The cases in which the equipment and spare parts are packed are to be
marked on 4 sides: on the top of the case and on 3 adjacent sides.
6.10. The marking shall be clearly made with black indelible paint in
English as follows: (Words and figures not less than 10 cm in size if
the dimensions of the package permits).
- Consignee:
TECHNOIMPORT HANOI
S.R. Vietnam
- Contract No.:
- Net/gross weight in kg:
- Volume in m3 :
- Case dimensions in cm:
- Case number:
- Item number (according to Annex 3):
- Consignor:
DANBREW/DAN
- Port of shipment:
- Port of destination
Port of Danang
S.R Vietnam

- Transport mark:

10/NA/P7
TECH/DAN

The same marking will be applied to airfreight


6.11. All cases which need special handling must have and additional
marking: "With care", "Top", "Do not turn over" as well as other
indications if specified handing or a particular case is required such as
sling point and center of gravity
6.12. A waterproof envelope containing a copy of the packing list shall be
fastened to the external side of each case. The envelope is to be
covered with a metal plate which is either nailed to the case or firmly
fixed to the metal part of the equipment. Another copy of the packing
list is to be put into the case together with the equipment
6.13. The Seller is responsible for additional transport and storage expenses
as well as for damage to the goods due to the despatch of the
equipment to wrong address caused by the initially insufficient or
incorrect marking
140

Article 7:
Prices and payment terms
7.1. The total value of the Contract is as follows:
Equipment, spare parts
Documentation materials
Supervision and training

D E M x,000,00
D E M xxx,000

Freight and insurance

D E M xxx,000

Grand total price

D E M x,000,000

7.2. The above grand total price is understood CIF Danang port S.R. Vietnam
and its firms and not subject to any alteration.
7.2.1. Packing will be made in 20 foot one-way containers except big items
which cannot be put into the containers.
7.3. Price list
Item No
1.0 Malt handling equipment

Price
D E M xx,000

1.1 Malt mill


1.2 Malt grit bin, elevators, conveyors
1.3 Dedusting and cleaning system
1.4 Control panel
1.5 Rice mill and handling equipment supplied by the Buyer
2.0 Brwewhouse
D E M xxx,000
2.1 Mash/Wort kettle
2.2 Adjunct kettle
2.3 Lauter tun
2.4 Whirlpool
2.5 Hot water tank
2.6 Pump, pipes and fittings
2.7 Control panel

141

Price

Item No
3.0 Wort handling

D E M xx,000

3.1 Wort cooler


3.2 Wort aeration
4.0 CIP station

D E M xx,000

4.1 Hot CIP plant


4.2 Cold CIP plant
5.0 Fermenters

D E M xxx,000

5.1 9 x Cylindro-conical fermenting/storage tanks


5.2 Temperature control system
6.0 Yeast storage tanks

D E M xx,000

6.1 2 x Yeast storage tanks


6.2 Yeast pump
7.0 Filter plant

D E M xx,000

7.1 Filtration pump


7.2 Kieselguhr filter
7.3 Trap filter
8.0 Bright beer tanks

D E M xxx,000

8.1 2 x Bright beer tanks


8.2 Temperature control system
9.0 Bottling line
9.1 Crate conveyor
9.2 De-packing table
9.3 Bottle conveyor
9.4. Bottle washer
9.5 Bottle filler/crowner
9.6 Pasteurizer
9.7 Labelling machine
9.8 Packing table
142

D E M x,000,000

Item No

Price

9.9 Inspection
9.10 Lubrication
9.11 Control system
9.12 Production control
10.0 Utility plant:
10.1 Cooling plan

D E M xxx,000

10.2 Compressed air dryer

D E M xx,000

10.3 CO2 recovery plant

D E M xxx,000

10.4 Steam boiler plant

D E M xxx,000

10.5 30 cylinders filled with argon gas

Free of charge

11.0 Process, mechanical and electrical


installations

D E M xxx,000

11.1 Pipes, pump, fitting, etc.


11.2 Main switchboard and cables
12.0 Laboratory equipment

D E M xx,000

13.0 Spare parts

D E M xxx,000

14.0 Raw materials

D E M xxx,000

15.0 Packing one-way containers

D E M xx,000

Total FOB price, brought forward to page

D E M x,000,000

Carried forward from page

D E M x,000,000

Supervision/Commissioning

D E M xxx,000

Insurance

D E M xx,000

Grand total CIF Danang port

D E M x,000,000

7.4 Payment Terms


Payment for the grand total price as stipulated in article 7.1 shall be effected as
follows:
7.4.1 Down payment of 15% (fifteen per cent) of the grand total price,
143

amounting to DEM xxx,000 will be paid by T.T. remittance within 60 days


from the signing of the Contract against Seller's presentation of the following
documents:
a. The Seller's original invoice in 5 copies
b. An irrevocable Bank Guarantee as per Annex 9-issued by the
Seller's Bank-in favour of the Buyer
7.4.2 For 85% (eighty-five per cent) of the grand total price, amounting to
DEM x,000,000, the Buyer shall arrange that the Bank of Foreign Trade
of Vietnam (Vietcombank) issues an irrevocable Letter of Credit payable
at sight in favour of the Seller, confirmed by the Seller's bank within 60
days (sixty days) from the date of signing the Contract.
The said Letter of Credit shall be advised by telex on cable (full wording) to the
Seller's bank
The Letter of Credit shall be valid as follows:
75% (seventy-five per cent) of the grand total price, amounting to DEM
x,xxx,000, until 18 months after opening of the Letter of Credit
10% ten per cent) of the grand total price, amounting to DEM xxx,000, until 18
months after opening of the Letter of Credit
7.4.3 The payment of the above total amount shall be made as follows:
75% (seventy five per cent) of invoice amount of each shipment, i.e. not
exceeding DEM x,xxx,000 payable against presentation of the following
shipping documents:
1. Signed commercial invoice, 2 originals and 2 copies
2. Clean shipped on board Bill of Lading marked "Freight prepaid" made
to order and blank endorsed full set of originals and 2 copies
3. Packing lists, 3 originals and 2 copies
4. Inspection report issued by the Seller, 3 originals and 2 copies
5. Certificate of Quality issued by the Seller, 3 originals and 2 copies .
6. Insurance policy or certificate in duplicate endorsed in blank for 110%
of the CIF value in accordance with Lloyd's Institute Cargo clause (all
risks) showing claims payable in the same currency as the Letter of
Credit
7. Copy of Seller's Notice of Shipment, 3 copies
144

10% (ten per cent) of the grand total price, amounting to DEM xxx,000 payable
after commissioning of the plant against presentation of
1. Signed commercial invoice 2 originals and 2 copies
2. Acceptance Certificate confirming commissioning has taken place
signed by representatives of Buyer and Seller
However in any event this instalment shall be available to beneficiaries 17
months from opening of the Letter of Credit:
1. Signed commercial invoice in 2 originals and 2 copies
2. Beneficiaries simple receipt
7.5 The seller shall within 30 days from the signing of the Contract obtain an
irrevocable Bank Guarantee Securing the 15% down payment as per article
7.4.1. The Bank Guarantee is to be issued by the Seller's bank with the
Content as Annex 9 of this Contract
7.6 All expenses charges and commissions in Vietnam will be borne by the
Buyer. All banking charges and commissions outside Vietnam shall be
borne by the Seller
All expenses and charges related to any prolongation and/or modification of the
above mentioned Letter of Credit shall be borne by the faulty part

145

Article 8:
Penalties for delivery delay

8.1 Should the Seller, due to reasons solely imputable to him, fail to deliver
all kinds of equipment, materials and spare parts on the dates stipulated
in the delivery schedule (Annex 3) the Seller is to pay to the Buyer
liquidated damages for delivery delay as follows:
At the rate 0.5% for each full week of delay from the end of the expected
delivery date stipulated in the delivery schedule. The total sum of liquidated
damages for the equipment, materials and spare parts shall, however, not
exceed 5.5% of the value of the equipment and/or materials delayed
8.2 The above rates of the liquidated damages are not to be reduced or
increased by arbitration
8.3 The liquidated damages will be paid by the Seller against the Buyer's
invoice within two months after receipt thereof
8.4 The Seller is not to be relieved from his obligations stipulated in the
present Contract by paying the agreed and liquidated damages
8.5 If for reasons solely imputable to the Seller the delivery of equipment,
materials and spare parts is delayed by more than 3 months, the
contractual parties shall have to find out the measures to be taken for
the continuation of the Contract within one month from the last date of
the 3 months

146

Article 9:
Inspection before delivery

9.1 The Seller shall carry out at his expenses the inspection of the equipment
at his or his sub-contractors works
9.2 The Seller shall issue the inspection report confirming that the
equipment has been manufactured in strict conformity with the terms
and conditions of the Contract and according to metric systems
9.3 Prior to shipment the Seller is to make the control assembly and the
check of the mechanical function of the most essential equipment.
Should any machine or unit be shipped in a dismantled state the Seller
is to supply, together with the equipment, at his expenses all special
means and facilities to assemble the equipment at the plant site under
the supervision of the Seller's Chief Erector
9.4 Final tests and acceptance of the equipment for operation are to be made
at the plant site in Vietnam in accordance with Article 11

147

Article 10:
Guarantee
10.1 The Seller guarantees:
10.1.1 That the supplied equipment and technical documentation will ensure
the achievement of the guaranteed performance as stated in this
Contract
10.1.2 That the supplied equipment and technical documentation as well as
automation and mechanization of the production process will be of the
latest world technical achievements for this particular type of the plant
which will be available to the Seller at the time of delivery
10.1.3 That the materials used for manufacture of equipment and spare parts,
workmanship thereof as well as technical execution and assembly
must be of high quality
10.1.4. That the supplied equipment and spare parts are brand new and are
manufactured in full conformity with the description, technical
specifications and conditions of the present Contract and is so proven
in commercial operation of the plant
10.2 If, after the fulfilment of the technical documentation or during the
manufacture of the plant equipment a technical modification or
improvements become known and available to the Seller, the Seller
shall submit to the Buyer free of charge the comprehensive technical
documentation and supply these in manufacture after receiving the
Buyer's written consent
10.3 The guarantee period for the plant, provided that all operating manuals
and all instructions supplied as stipulated in this Contract are
observed, shall be 12 months from the date of signing Performance
Acceptance Certificate but not later than 20 months from the date of
last shipment
This period will be extended accordingly if the plant operation has been
stopped due to the Seller's fault
10.4 If during the guarantee period for the plant any equipment proves to
have any defects or to be incomplete, wholly or partly, or if it is not
made in accordance with the terms and conditions of the Contr,1 :t
during the test run of the equipment, the Seller undertakes, at the
Buyer's request, to eliminate the detected defects without any delay
148

within a reasonable period agreed upon between the parties for such
elimination and without any additional payment on the Buyer's party.
The Seller is to revise or replace the technical documentation and/or
repair or replace, at the Seller's cost, the defective or incorrect
machines, equipment or spare parts thereof
10.5 All expenses related to delivery of the relevant machines, equipment or
spare parts for such replacement on delivery basic of CIF Danang
shall be borne by the Seller, the guarantee period for the replaced or
repaired machines, equipment or spare parts is 12 months from the
date of start of operation
The defective machines, equipment or spare parts replacement by new one (s)
may be sent back to the Seller if he requests at this expenses on CIF Danang
basic within the time agreed on by the parties
10.6 If the Seller fails to eliminate the defects claimed by the Buyer, as
referred to in paragraph 10.4, the Buyer has the right to eliminate
these defects by himself, at the Seller's expenses, without releasing the
Seller from his obligations concerning the guarantee mentioned in this
Article. In this case, the Seller is to cover actual expenses for repairs.
Any small defects, the elimination of which is urgent and does not
require the presence of the Seller will be removed by the Buyer and
notified to the Seller by cable or telex and actual expenses will be
charged to the Seller's account
10.7 If the defects as per Article 10.4 cannot be removed for the Seller's
fault, the Buyer has the right to request the Seller to replace a machine
or a piece of equipment or spare parts at the Seller's expenses on the
condition of CIF Danang
10.8 The Seller guarantees that:
a. The total production capacity will be 30,000 hl/year which will
materialize as:
- 50 hl brew batches, brewed 3 times/day, 240 days/year
- Fermentation and storage in 175 hl (gross) combi-tanks
- Filling in bottles in one shift (6,000bph, nominal capacity)
b. Product: international standard Lager beer (Pillsner type), 12 P, 4%
alcohol w/w, bitterness approx. 21 IBU, in normal conditions of
operation
Production consumption as pet Annex 11
149

10.9 In case the performance test is unsuccessful, the Seller is responsible to


repeat the test within 15 days. If the repeated test is also unsuccessful
a penalty of 0.75% of the total contract value for each full percentage
of the plant capacity below the guaranteed production capacity for a
full week shall be supplied. In the meantime the performance test has
to be repeated until the guaranteed capacity is achieved.
The aggregate of liquidated damages for delayed delivery (clause 8.1) plus
penalty for unsuccessful performance (clause 10.9) shall in any case not exceed
5.5% of the grand total contract price.
10.10 In case of reasons imputable to the Seller the capacity of the plant
will be lower than 94% of the guaranteed production capacity after
the repeated .performance test run, the Seller shall, at his own
expenses, modify, repair and/or replace the equipment or spare parts
concerned by suitable means within a period of 60 days in order to
obtain the guaranteed capacity. If the guaranteed capacity cannot be
obtained, both parties will meet each other to settle this matter
In case the parties cannot come to an agreement, this dispute will be submitted
for arbitration as per Article 13 of this Contract.
10.11 During operation if there is any part of equipment or machine which
is not specified in this Contract necessary for operation of the plant,
the Seller shall, at his cost, send them to the plant site within 60 days
from the receipt of the Buyer's notification
10.12 The Seller shall undertake to supply any part, equipment or machines
or spare parts at the Buyer's request and cost after the guarantee
period
10.13 The Seller guarantees that auxiliary equipment, electrical equipment
and spare parts supplied under this contract are complete and in
conformity with the operation and maintenance of the complete plant
supplied under this Contract.
10.14 In case of claim the buyer can notify the Seller at the latest within 45
days after the end of the guarantee period provided that the defect
arise during the guarantee period.
10.15 Upon termination of the guarantee period the Buyer shall issue a
letter confirming the termination of the guarantee period.

150

Article 11:
Erection, performance test and acceptance

11.1 Erection
11.1.1 Before erection packages shall be opened for checking with the
presence of the Buyer and the Seller's Site Managers. In case of
components mentioned in the packing lists are found missing or
damaged, a report signed by the Buyer's and the Seller's Managers
shall be prepared, also giving a detailed description of the packing at
the time of checking.
11.1.2 If, according to the above report, say, components are found
damaged and/or omitted and the packing is in good condition, bear
no signs of having been opened then the Seller shall repair or deliver
free of charge CIF Danang port the replacement and/or supplement
components as soon as possible.
11.1.3 In case of missing and/or damaged components caused by the
Buyer's side, then the Buyer and the Seller shall make an agreement
on the condition of delivery or replacement(s) and the terms of
payment thereof.
11.1.4 The Buyer undertakes to clear and transport, at his own expense, all
machinery, equipment and spare parts from Danang port of Vietnam
to the erection site and provide all facilities, manpower and
whatsoever necessary to carry out the erection of machinery and
equipment.
11.1.5 The erection of all the equipment supplied by the Seller shall be
carried out by the Buyer's personnel under the supervision and
technical instruction of the Seller's technical personnel (according to
Annex 6) in accordance with the manufacturing design, drawing,
specification, instruction manual, all supplied by the Seller and/or
given by the Seller's personnel. The two site managers shall agree
upon a time schedule for all erection work as well as for no-load
running test of the machines and the whole plant.
11.2 Performance Test
Within 7 days from the completion of crectio,i, which is to be certified by the
two Site Manages, the Buyer will provide all facilities, manpower, raw
151

materials, etc, according to the Seller's written request two months in advance
so that the performance test of individual or group of machines can be carried
out by the Seller's personnel as follows:
11.2.1 Capacity Test
Each machine or group of machines will run with a load continuously for
7.5 hours/day for two consecutive days under the technical conditions as
indicated in Annex 3 in order to prove that the average hourly production
is not lower than the one specified in Article 10.8 for the relevant
machine(s)
In case the guaranteed production capacity as indicated in Article 10.8
could not be achieved, the capacity test shall be repeated by Seller's
personnel and at the Sellers' costs and expenses
11.2.2 Mechanical Test
All the machinery of the plant will be loaded and run with load
simultaneously for 12 hours/day for 6 consecutive days under the
technical condition , as indicated in Annex 1 to prove the mechanical
efficiency of the machinery
11.2.3 Should one or more machines fail to accomplish with the
guaranteed performance due to the defects of machinery the
Scller undertakes to replace at his own cost the defective parts or
machine(s) in order to finally obtain the guaranteed performance
of the production capacity

152

Article 12:
Import/export licences

12.1 The Seller shall at his expenses and risks obtain, in due time, from
respective committees of origin any necessary export license for
exportation to and utilization in SRV of the plant equipment, materials,
spare parts, technical documents and replacements, if any, and for the
purpose of the Seller's obligations of the Contract in general
12.2 All necessary export licences for the shipment shall be submitted by the
Seller to the Buyer within 30 days after the effective date of the Contract
In case export licence is not necessary for exportation to SRV of the plant
equipment, materials, spare parts, technical documents, replacement parts
instead of licence, the Seller shall submit to the Buyer a letter stating that
export licence is not necessary for the shipments
12.3 The validity of the export licence shall be longer than the time of the
Seller's obligations under this Contract by at least 60 days. The Seller
shall at his own expenses and risks prolong the validity of such export
licence by the time of any delay occurred in the execution of this
Contract
12.4 The Seller is to bear and pay all export duties and/or charges being
imposed outside SRV whether these are prevailing at the time of signing
the contract or an being levied on the exported plant equipment,
materials, spare parts technical documents, replacement parts, if any, as a
result of a new law and/or order and/or statutory instrument and the like
issued by the government or any other authority outside SRV without any
interference from the part of the Buyer
12.5 The Buyer shall at his own expenses and risks obtain any import licence
required by the authority in SRV both for importation of all plant
equipment materials spare parts technical documents and replacement
parts, if any and for the purpose of the Contract in genera)
12.6 The validity of the import licence shall be longer than the time of
execution of the Buyer's obligations under this Contract by at least 60
153

days. The Buyer shall, at his own expenses and risks prolong the validity
of this import licence by the time of any delay occurred ir ' 1 execution
of this Contract
12.7 The Buyer is to bear and pay all customs and import duties, fees and/or
any other charges being imposed in SRV whether these are prevailing at
the time of signing the Contract or are being levied on the importation of
the plant equipment materials, spare parts, technical documents and
replacement and the like issued by the government or any other authority
in SRV without any interference from the part of the Seller

154

Article 13:
Arbitration and applicable law

13.1 If any time, any dispute or difference should arise from or in connection
with the present Contract either party shall give to the other a written
notice of the existence of such dispute or difference. The parties, after
having received such written notice, shall in principle try to settle the
dispute or difference amicably by mutual consultation in good faith and
in good measures. If an amicable settlement cannot be reached between
the Seller and the Buyer, the dispute or difference shall be submitted to
an arbitration of the International Chamber of Commerce in Paris in force
on lst June, 20
The arbitration body shall be composed of 3 Arbitrators, two of them shall be
respectively selected by each of the contracting parties, and the third Arbitrator
(umpire), acting as Chairman of the Court, be selected by a joint decision of the
arbitration of the two contracting parties
The Umpire shall be of the nationality other than the contracting parties and of
the nationality of a country having diplomatic relations with contries of both
contracting parties
The party who desires to refer the dispute or difference to arbitration shall
notify the other party about the decision by a registered letter stating the name
and address of the subject of the dispute, date and number of the Contract
The other party shall if not otherwise agreed, in writing within 4 weeks from
the date of dispatching of the above said letter appoint his Arbitrator who may
also be the citizen of any country and shall, by registered letter, notify the first
party about the name and address of the Arbitrator appointed by him
Should the party who has received the notification of the dispute or difference
being referred to arbitration fail to appoint the second Arbitrator within
indicated period or should two Arbitrators of contracting parties fail to appoint
the third Arbitrator (umpire) within 4 weeks from the date after the designation
of the second Arbitrator, then those Anbitraters, at the request of the parties
concerned, shall be appointed by the President of the International Chamber of
Commerce in Paris, France
13.2 The award of the arbitration court shall be decided by majority vote as fast
as after the Umpire has been chosen or appointed in accordance with the
conditions of the paragraph on the basis and in accordance with the terms
155

and conditions of the present Contract and in case of absence of


stipulations there in the French substantive law shall govern
13.3 Unless otherwise agreed any arbitration is to take place in Paris, France.
The arbitration shall be conducted in English
13.4 The award of the arbitration court shall be final and binding on the parties.
The expenses connected with the arbitration shall be borne according to
the award of the arbitration court
13.5 The dispute or difference brought to arbitration does not suspend the
performance by both contracting parties

156

Article 14:
Force majeure

14.1 All occurrences and circumstances which happen after the present
Contract has come into force and which are due to unforeseen and
unavoidable facts of an extraordinary character beyond the will and the
control of the parties hereto and directly as much affect the execution of
the obligations under the present Contract are to be considered as cases of
force majeure. In the frame of the above mentioned the case of force
majeure are e.g: hostilities or war whether declared or not, earthquake,
fire, flood, strong storms, explosions, epidemics, general strikes and/or
other strikes officially organized by the Trade Union of the industrial
branch concerned and other natural disasters
The following cases shall not be considered as cases of force majeure: technical
accidents in fabrication (rejection of defective casting, rectification after the
defect), shortage of personnel, of raw materials, of means of transport and of
energy, delay and/or failure of the Seller's sub-contractors, the local strikes not
organized by the above mentioned Trade Union, breakdown and stoppage of
the work
14.2 The party claiming relief from performance of an obligation under the
present Contract due to force majeure shall notify the other party thereof
by cable or telex immediately but not more than 10 days after the
beginning and cessation of force majeure. This cable or telex notification
containing proof of the occurrences, nature of such circumstances and
their commencement and termination date. Consequences shall be
confirmed by registered airmail letter within 10 days after the date of
dispatching of the said cable or telex. Such letter shall be certified by a
relevant Chamber of Commerce (and Industry) attesting the existence,
duration and correctness of the notified circumstances
14.3 At any time during the continuance of the present Contract, if either party
is unable to perform totally or partially any obligation under this Contract
because of any circumstances of force majeure as defined herein above
and said force majeure has been notified correctly as agreed upon, the
party claiming relief from performance of their obligations under this
Contract due to force majeure shall be excused for delays in their
performance of the obligations and shall automatically be extended for a
period equivalent to the period of the delay caused by the force majeure
157

14.4 If the formalities mentioned paragraph 14.2 are not observed, the months
claiming to be affected by force majeure shall forfeit his right to claim
relief from performance of his obligations due to said force majeure
14.5 If the said force majeure continues for more than 3 consecutive months,
then both contracting parties shall during the 4th month confer with one
another and decide the steps to be taken in order to prevent further delays
14.6. In the event of no agreement is reached between both contracting parties
within that month or if due to force majeure the delay continues more
than 5 months the two parties shall meet again in order to find out a final
solution

158

Article 15:
General conditions

15.1 All Annexes mentioned in and attached to the present Contract are
integral parts of this Contract
15.2 All amendments and addenda to the Contract are valid only when in
writing and signed by both contracting parties
15.3 The Seller warrants to the Buyer that he is in the possession of complete
rights for relevant patents and inventions for the equipment technical
documents, technological processes, knowledge and experiences to
submit them at the Buyer's disposal so that the subject of the control
should be freely used for the purpose intended that third parties did not
include any organization or individual of the SRV Vietnam
In case any claim is made lay third parties upon the Buyer or his Clients in
SRV Vietnam based on such infringement the Buyer shall immediately notify
the Seller of such a claim and the Seller shall at his expenses and risk take
measures to settle this claim
15.4 After signing the Contract all previous verbal and written agreements are
nul and void
15.5 All taxes and other duties due to performance of this Contract shall be
borne by the Buyer if incurred in Vietnam and shall be at the Seller's
charges if incurred in other countries
15.6 Any claim arising from implementation of this Contract can only take
place after coming into force of this Contract
15.7 All claims under the present Contract shall be made in writing and sent by
registered airmail letter. The date of such registration at the post office
shall be considered as the date of introduction of such claims. The reply
to such claims shall be given immediately not later than 30 days after the
receipt. In urgent cases the claims should be done by cable or telex and
be confirmed in written form as outlined in this paragraph
15.8 The Seller and his Specialists shall keep in secret all drawings data
information furnished or given by the Buyer and/or taken by themselves
during their stay in the Buyer's country
The Seller and his Specialists shall not have the right to divulge the drawings
159

data, information and documents (including the content of this Contract)


connected with this object to any third party. However, the authorities and
banks concerned shall not be considered as third party
The Buyer and his personnel shall not have the right to divulge the drawings
data, information and documents (including the content of this Contract)
connected with this object to any third party. However, the authorities and
banks shall not be considered as third party
15.9 The Seller shall be liable for loss and damage to property other than the
contracted plant as well as for Specialists injury, including death caused
by negligence of the Seller's Specialists within the scope of his public
liability insurance which depends on the concrete cases
15.10 The Seller shall not be responsible for any indirect losses

160

Article 16:
Coming into fore of the contract

The Contract is subject to both Buyer's and Seller's confirmation within 40 days
from signing of the Contract
The Contract comes into force when the Seller has received both the 15% down
payment and the Letter of Credit

161

Article 17:
Legal addresses of the parties

17.1. The legal address of the Buyer is:


Vietnam National Complete Equipment and Technics Import Export
Corporation (TECHNOIMPORT)
16-18 Trang Thi
Hanoi
S.R Vietnam
Phone No: 53776,54974
Telex No: 411230 (TECHNOIMPORT)
17.2. The legal address of the Seller is:
Danbrew Ltd.
Rahbeks Alle'21
DK - 1801 Frederiksgerg C
Denmark
Phone No: + 45 31 21 9 18
Telex No: 16124 (DBREW DK)
This Contract is made in four copies, three for the Buyer and one for
the Seller.
Signed in Hue on 10-8-20...

162

For the Seller:

(signed) O.Danbrew.

For the Buyer:

(signed) Le Vuong.

ANNEX 1
GENERAL PROCESS DESCRIPTION

Product:

The beer to be produced is Lager type beer of 12 P

Raw materials: Malt, 70%


Rice, 30%
Hop pellets

Consumption
For one batch of 50h1 cold wort the following amount of raw materials is
consumed:
Mail (76% extract as is) : 600.0kg
Rice (80% extract as is) : 250.0kg
Hops (7% acid as is) : 4.6kg
50kg malt and 250kg rice are milled in the rice mill and mixed, with 12.5 hl
water in the rice kettle at 50 C. The content is heated to 75 C and a pause of 10
min, is kept, then the content is heated to 100 C and boiled for 30min
In the meantime 550kg malt is milled through the malt mill and mashed in the
wort/mash kettle with 17.5 hl water at 47 C. The content from the rice kettle is
now pumped to the wort/mash kettle and the temperature of the mixture is
thereby increased to 67 C. This temperature is kept for 6 min and the mash is
then heated to 76 C and kept for 5-10 min until negative iodine reaction
The total mash is transferred to the lauter tun where the clean wort is separated
from the spent grains. After drawing off the first wort the grains are now
sparged with water of 76 until the gravity in the wort kettle is around 10 11 P. Total amount in the wort kettle should be around 55 - 58 hl. During
sparging the heating up of the wort kettle has been started and when the kettle
is full the temperature is 100 C
The hops are added boiling continuously for approx 90 min. Until the gravity is
12 - 12.5 P. The spent grains from the lauter tun is emptied in a small trolley
and thereafter sold to the farmers as cattle feed
When the wort boiling is completed the wort is pumped to the whirlpool where
the hot trub is separated

163

After 30 min. rest in the whirlpool the wort is pumped through the wort cooler
from 94 to 10 C in one hour. The cold wort is aerated by approx. 35 ml air/ itre
wort. The aerated wort is sent to one of the fermented (combinetanks) which
can contain 3 brews, i. e. 150 hl net. With the first brew to a tank all the yeast
required for three brews is injected, i. e. 150 litres. The yeast is kept in two
yeast storage tanks with cooling jackets and agitators and can be reused up to
10 times. Each time the yeast is used in a fermented the amount doubles. The
excess yeast can be treated with 2% propionic acid and sold to the farmers as
pigs' feed
The wort now in the fermented will start fermenting and the temperature is
allowed to increase to about 16 C and the pressure to 1.3 - 1.5 bar where it is
then kept automatically. After 4 days the beer is end-fermented. It is then kept
for 48 hours at 16 C in order to reduce the diacetyl to less than 0.15ppm (mg
per kg) before cooling down in the tank till -1 C is initiated. As soon as the
cooling is started the yeast will sediment and it is then immediately taken out
and pumped to one of the two yeast storage tanks. When the beer in the
fermented has reached -1 C it is kept there for 1-2 days. Before the beer is
pumped to the kieselguhr filter, the final sediment in the tank, approx. 1 hl, is
drained. The beer filtration takes place in a kieselguhr filter and a trap filter.
The beer is checked for taste and CO2 before it is released for filtration
The filtered beer is lead to the two bright beer tanks into which it is filled under
CO2 counterpressure of 1.2 bar. When the beer has been tested for CO2 taste
and turbidity it is released for filling
The filling line comprises equipment for filling of bottles.
The bottling equipment is suitable for handling of 0.51tr. returnable bottles with
a nominal capacity of 6,000bph
Returned bottles are manually unpacked and then conveyed to the automatic
bottle washer where they are cleaned with caustic soda and water
The cleaned bottles are visually inspected and then sent to the filler/crowner
where the beer is filling in and the crown cork applied. The full bottles are now
sent to the tunnel pasteurized where the beer is gently pasteurized
The bottles out of the pasteurizer are inspected for any leakage before they are
conveyed to the labelling machine where a body label is applied. The labelled
bottles are now manually packed in crates and sent to the full bottles
warehouse.

164

Sanitation
The brewing equipment is cleaned by a CIP plant using recovered water for
first rinse and caustic soda and acid for cleaning following by clean water rinse
Utilities
Water of good quality is available from the town supply and the main line to be
the brewery and in the brewery will be local supply
A hot water tank is included for recovery of hot water from the wort cooling
The cooling plant comprises two NH3 compressors which via a heat exchanger
produce glycol water of -4C to -5 C which is then used for wort cooling, yeast
storage tank cooling and fermenting tank cooling
The steam is generated in a steam generator and supplies the brewhouse, the
filling line and the CIP plant
Compressed air is generated by an air compressor and is used for wort aeration,
emptying of fermenters and for automatic valves
CO2 recovery is included and it will be possible to recover 60 tons CO 2 per year
of which 20-30 tons will be consumed by the brewery whereas the rest can be
sold for various purposes, i. e. welding and soft drinks carbonation
Power is available from the authorities as 3 x380 V + 0 + earth and the brewery
will be equipment with a main distribution board with fuses and breaks as well
as local operation panels for each department
The automation is based on manual operation of the brewhouse and beer
processing but automatic temperature control for brew vessels, wort cooler and
fermented
The cooling plant, steam plant, air compressor and CO 2 recovery plant are all
fully automatic
For the filling line each machine is automatically regulated for temperature
control and stops.
Laboratory Equipment
The most basic equipment is included like CO2 Gehaltemeter, hazemeter,
platometers, thermometers, pH meter and various glassware and alcohol testing
equipment

165

ANNEX 2

SPECIFICATION FOR THE BEER

166

Original extract, P

12.0 + /-0.2

Real degree of fermentation, %

67 + /-3

Colour, EBC

7 + /-1

pH

4.2 + /-0.2

Bitterness

21 + /-3

Haze at arrival, EBC

0.7

VDK, ppm

_. 0.15

CO2 , w/w

0.50 + /-0.03

Alcohol, w/w

4.0 + /-0.2

ANNEX 3

LIST OF EQUIPMENT AND MACHINERY

1.0 Malt Handling System


1.1 Malt mil
1.2 Malt grits bin.
Elevators and conveyors
1.3 Dedusting and
cleaning system
1.4 Control panel

Origin

BRD

DK

DK

DK
DK

1.5 Rice mill and handing.

Description
4 roller malt mill, 600/800 kg/h
Grits bin, 800kg, milt steel
Elevators, 1,000kg/h, mild steel.
Malt pre-cleaner, ventilator and cyclone,
mild steel.
With pushbuttons for start/stop, painted
steel
Buyer supply

2.0 Brewhouse Plant


2.1 Mash/Wort kettle

BRD/DK

2.2 Adjunct kettle

BRD/DK

2.3 Lauter tun

BRD/DK

2.4 Whirpoll plant


2.5 Brewing liquor tank

DK

2.6 Pumps, pipes, fittings

BRD/DK

2.7 Control system

BRD/DK

79 hl gross volume, insulated stainless


steel vessel with heating jacket, internal
wort boiler 3.2m 2 and agitator
Vessel diameter: 2,500mm
24 hl gross volume, insulated stainless
steel vessel with heating jacket and
agitator.
Vessel diameter: 1,400mm
67 hl gross volume, stainless steel.
Vessel diameter: 2.0m
74 hl gross volume, stainless steel.
100 hl hot water tank, 80 C, stainless
steel with heating jacket
For product and water, centrifugal pumps,
water mixer valves, etc.
Control panel with pushbuttons for
start/stop of motors, indicative mimic
diagram, stainless steel.
167

3.0 Wort Handling Equipment


3.1 Wort cooler

3.2 Wort aeration

DK

DK

50h1/h plate cooler, stainless steel


Wort aerator, 3001trih, stainless steel

4.0 CIP Station


4.1 Hot CIP plant

DK

3004. vessel with combined wort and CIP


pump, stainless steel

4.2 Cold CI plant

DK

2 x 5001tr. + 8004. Stainless steel vessells,


centrifugal pump, control panel for CIP
programmes.

5.0 Fermentation and Storage Tanks


5.1 Cylindro- conical fermenting and
storage tanks

DK

9 x stainless steel tanks with cooling


jackets and insulation, combiarmature
for pressure control, top flange with
vacuum valve, safety valve, CO2/CPI
pipe, spray ball. Design pressure: 2 bar.
Gross volume: 175h1

5.2 Temperature control

DK

Automatic thermostatic control system in


painted steel box

6.0 Yeast Storage Tanks


6.1 Yeast Storage tanks

DK

2 x stainless steel tanks with cooling


jacket and agitator, including teperature
conterol.Net volume: 300 1 tr. each.

6.2 Yeast pump

GB/DK

22 hl/h lobe rotary pump in stainless


steel

168

7.0 Filter Plant


7.1 Filtration pump

DK

7.2 Kieselguhr filter

BRD

7.3 Trap filter

NL/DK

Centrifugal pump, 50h1/h, 3,000 rpm, 3.0


bar. 2.2kw
30 hl/h stainless steel filter with plates
and frames in stainless steel, including
stainless steel mixing unit of 751tr, and
dosing pump.
Bag trap filter in stainless steel, 305Ohl/h. Max. working pressure: 8.5 bar.

8.0 Bright Beer Tanks


8.1 Cylindro-conical bright beer
tanks

DK

8.2 Temperature control

DK

2 x stainless steel tanks with cooling


jackets and insulation, otherwise as 5.1.
Gross volume: 175 hl
Automatic thermostatic control system in
painted steel box.

9.0 Bottling line


9.1 Gravity conveyor

DK

9.2 De-packing table


9.3 Bottle conveyors

DK
DK

9.4 Bottle washer

DK

9.5 Filler/Crowner

9.6 Pasteurizer

DK

9.7 Labelling machine

For handling of full and empty crates and


cartons, 16 m long
For manual de-packing of bottles.
double
and
triple
for
Single,
transportation of empty and full bottles
between the various machines
Painted mild steel, insulated and clad
with stainless steel. Nominal capacity:
6,000bph.
Monoblock filler/crowner with a capacity
of 6,000 x 0,5ltr.bph. 24 filling valves
with pre-evacuation and 6 crowner
heads.
Single deck construction, built primarily
of stainless steel. Based on a 23 belt
stainless steel conveyor, 10.6m long.
Nominal capacity: 6,000bph.
For automatic labelling of bottles
169

9.8 Packing machine

DK

For manual packing of bottles into


crates. 4 belts, 6m long.

9.9 Inspection

DK

Visual inspection for clean bottles.

9.10 Lubrication

DK

9.11 Control system

DK

Belt conveyor lubrication system


consisting of stainless steel trays for
lubrication with soap solution.
Queue switches for stop/start of main
machinery when bottle are queuing up
on the conveyor system

9.12 Production control

DK

Mechanical bottle counting of empty and


fillrd bottles.

10.1 Cooling plant

DK

One air cooling plant with a capacity of


154,000kca/h, including compressor,
shell and tube cooler, evaporative
condenser, glycol pumps and glycol
tank.

10.2 Air compressor

DK

One air compressor with air dryer 0,7


e/min.

10.3 CO2 recovery plant

DK

FBU 60, 60kg/h, including storage tank


of 6 tons and cylinder filling station.

10.4 Steam boiler plant

DK

High pressure boiler with a capacity of


2,000kg steam/h including feed water
tank, oil storage tank

10.5 CO2 cylinders

DK

30 CO2 cylinders-each 46,7ltr, gaz


capacity 7.0e-filled with argon

10.0 Utility Plant

11.0 Process, Mechanical and Electrical Installations


11.1 Pipes, pumps fittings, etc.

DK

All
pipes,
fitting,
hoses,
pumps,
accessories and insulation for connecting
the process equipment and utility plant.
Beer pipes in mild steel. Excluding water
pipes which are local supply.

11.2

DK

Main distribution panel and complete set of


cables and cable trays for connecting the
equipment

170

12.0 Laboratory Equipment


- Hand refractometer
- CO2 Gehaltemeter
- Air tester
- Carlsberg flask 251tr
- pH meter
- Analytical balance
- Mechanical balance
- Lovibond comparator
- Alcohol determination equipment (distillation pycnometers,
thermostatic water bath)
- Various saccharometers
- Various thermometers
- General glassware
- Various chemicals
13.0 Spare Parts
Recommended spare parts as per Annex 4.
14.0 Supervision of Erection/Commissioning and Training
One supervisor for a total period of 8 man-weeks supervises the installation and
commissioning of the plant and one brewmaster for a period of 8 weeks for
commissioning and training of the Client's personnel. Also included are
travelling expenses and supervisors' special tools

171

ANNEX 4
SPARE PARTS
A lump sum of 3% of the FOB value has been set aside for spare parts
operation. The actual scope of spare parts is to be mutually agreed between the
Buyer and the Seller based on the Seller's quotation for spare parts which shall
be sent to the Buyer not later than 6 months from the effectiveness of the
Contract

172

ANNEX 5
MATERIALS AND SUPLIES

The following materials and supplies shall be supplied by the Seller:


1. Malt (76% extract)

102.0 tons

2. Hops (7% alfa)

1,125.0kg

3. Kieselguhr

1,792.0kg

4. Filter sheets, 60 x 120cm : 200pcs


5. Filter bags
6. Additives

: 20pcs
140.0kg

7. Yeast culture

: 3pcs

8. Various chemicals

: 2.4 tons

9. Glue

: 0.5 tons

All other consumables like rice or sugar, bottles, crowns, lables, cartons, crates,
etc. will be supplied by the Buyer

173

ANNEX 6
LIST OF SELLER'S PERSONNEL
AND BUYER'S PERSONNEL

The Seller will send one supervisor for 8 weeks for installations and
commissioning of the plant and one brewmaster for two months training the
Buyer's personnel
The Buyer will himself erect the plant

174

ANNEX 7
TECHNICAL DOCUMENTATION

The Seller will supply the following documentation:


1. Within two months from the effectiveness of the Contract
- Site plan, 1:200
- Lay-out, 1: 100, including erection openings
- Foundation drawings, 1:50
- General description of building, i. e. requirement for finish and materials.
Based on the above the Buyer will be able to make the building design and start
construction.
2. Within 5 months from the effectiveness of the Contract
- Flow diagrams
- Electrical diagrams
3. Two months after each shipment
- Maintenance manuals
- Operation manuals
- Spare parts manuals
- Installation drawings
- Erection instructions

175

ANNEX 8

IMPLEMENTATION SCHEDULE
FOR DELIVERY, ERECTION, COMMISSIONING
AND OPERATION

The plant and machinery will be delivered in two shipments.


First shipment not later than 6 months after coming into force of the Contract
Second shipment not later than 8 months after coming into force of Contract
Commissioning will take place after erection which is estimated to have been
completed not later than 14 months from coming into force of the Contract.
Production will start one month later and full production two months later

176

ANNEX 9
SPECIMEN OF LETTER OF GUARANTEE
ISSUED BY THE SELLER'S BANK

Specimen: Letter of Guarantee for first payment and delivery


To:

Buyer:

Re:

Our irrevocable Letter of Guarantee No.

Beneficiary: Buyer:
With reference to Contract No
(hereinafter called "the Contract")
signed by the Technoimport, Hanoi (hereinafter called the Beneficiary) and
Danbrew Ltd. (hereinafter called "the Seller") on 200.... for the supply of
equipment, materials, technical services and technical documentation,
amounting to DEM... (say ... German Marks) we, at the request of the Seller
hereby open our irrevocable letter of Guarantee No... in favour of the
Beneficiary.
We hereby guarantee you, irrevocably and as for our own debt for a sum up to
DEM... in security of repayment, in full or in part, of your advance payment in
the event of our client's faiture to fulfil their obligations towards you.
Our liability under this Letter of Guarantee shall be limited to DEM.... (say:...
German Marks only).
This Letter of Guarantee shall become effective as soon as we have received
the payment of DEM... to the free disposal of Danbrew Ltd. Under reference to
Guarantee No...
In the event that Danbrew Ltd. should raise any objection to disbursements
under this Guarantee, payment thereof mush await agreement between the
parties or adjudicial decision.
We are informed that the Bank of Foreign Trade of Vietnam shall open an
irrevocable documentary credit for DEM... in favour of Danbrew Ltd., payable
at Den danske Bank A/S, Copenhagen, Denmark. This irrevocable documentary
credit represents 85 percent of the total value of contract No... for DEM.
The Guarantee will be reduced automatically on presentation to Den danske
Bank A/S of shipping documents under and in compliance with the
177

aforementioned documentary credit, by 15% of the invoice value of such


documents, without any confirmation from Techoimport, Hanoi.
This Letter of Guarantee expires 60 days after the last contractual shipment date
in accordance with the Contract. However, notwithstanding any thing contained
here in before, the Guarantee expires on... or as soon as it is thus reduced to
zero, whichever occurs first. Claims, if any, must have been received by us on
the day of expiry at the latest. If no such claim is received, our liability under
the Guarantee will lapse.
On expiry of the Guarantee please return this document to us.

178

ANNEX 10

LIST OF BUYER'S SUPPLY

10.1. The Buyer shall construct all buildings, etc. and erect all the equipment
supplied by the Seller according to erection instructions
10.2. All normal tools, welding equipment and consumables, including
scaffoldings, cranes, etc. for the erection shall be supplied by the Buyer.
The Seller is to specify the requirements to the Buyer
10.3. The Buyer shall secure supply of electric power, 3x380 V-0, E, 225kw,
the Seller is to specify the requirements to the Buyer
10.4. The Buyer shall supply necessary assistance for the Seller's specialists
during their stay on the site

179

ANNEX 11

LIST OF CONSUMPTION FIGURES PER HL BEER

1. Malt (76% as is)

: 12,9kg

t2. Rice (76% as is)

: 5.7kg

3. Hops (7% alfa)

180

: 150grammes

4. Chemicals

100grammes

5. Kieselguhr

: 250 grammes

6. Filter sheets

: 0.01m2

7. Additives

13 grammes

8. Water

15h1

9. Power

: llkwh

10. Gas, oil

: 7 litres

11. CO2

: 1kg

ANNEX 12
SUPERVISION SERVICES AND TRAINING
OF THE BUYER'S PERSONNEL

12.1. The Seller undertakes to send to SRV 2 skilled, experienced and healthy
engineers (in Contract refereed as Specialists) for the purpose of
supervision for erection, performance tests and plant acceptance as well
as training the Buyer's personnel during erection, performance tests and
acceptance of the plant
12.2. The Seller shall point out a Chief of the Specialists who will act as the
Seller's Site Manger. The Manager will give general instructions and get
in touch with the Buyer's Site Manager to discuss and settle everything
related to erection, test run and acceptance of the plant
12.3. The Seller shall, at least 20 days before the date of departure of the
Specialists concerned, telex the Buyer visa details of those who come so
that the Buyer could arrange visa application for them
12.4. Seller shall provide his Specialists with working clothes and insure them
at his own expenses for the period of their stay in Vietnam against
illness, accidents and death
12.5. The Seller shall be held completely responsible:
a. For accuracy, completeness and correctness of the information,
instructions, advice, consultation and/or technical documentation
shown and given by the Specialists
b. For technical damages and expenses caused by the incorrect and
inexact technical documents for the services given by his Specialists
12.6. The price for supervision and training services mentioned in Article
7 includes:
a. Air tickets from Denmark to Vietnam and vice versa for the Seller's
Specialists
b. Expenses for meals of the Seller's Specialist during their stay in
Vietnam
c. Daily salaries and allowances
181

12.7 In case of illness or accidents during the Specialist's stay in Vietnam the
Buyer shall provide the sick and injured Specialist with medical care in
Vietnam with the exception charges for fitting false teeth, spectacles as
well as taking tonics. In the event of the Seller thereof work exceeding
14 days the Buyer shall immediately inform the Seller thereof by telex
and continue to guarantee medical care at the Seller's expenses and the
Seller shall replace the incapable to work by another qualified
Specialist in such manner that the work concerned shall not be effected
by the absence of the respective Specialist. In the event of death
occurring to any Specialist the Buyer shall arrange all formalities so that
the Seller is able to repatriate the deceased. All the cost of the above
mentioned repatriation and replacement shall be borne by the Seller
12.8. The Buyer shall provide the permits, visa, etc. for the Seller's Specialists
for their entries, stays, re-entries and departure to, in and from SVR
12.9. The Specialists, during their stay in Vietnam, are obliged to adhere to
labour safety regulations and obey the rules, law, regulations and habits
all as the Buyer has made them known to the specialists or they know
them from other sources
12.10. Should any of the Seller's Specialists be incompetent or have
unsatisfactory conduct, the Buyer shall take the right to ask the Seller to
replace him by another qualified Specialist. All the cost of repatriation
and replacement shall be borne by the Seller
12.11. The Buyer shall, during implementation period of the erection and
commission of the plant, provide the transport facilities, free of charge,
between airport and the site and between the lodging and the plant site
for the Seller's personnel. The buyer shall provide, free of charge,
suitable office rooms at the site and every person with single room with
air condition, bathroom and laundry service
12.12. Training of the Buyer's personnel during the stay of the Seller's Brew
master in the plant he shall instruct and teach the Buyer's personnel the
brewing procedures and analyzing procedures for beer

182

ANNEX 13
BUYER'S TRADE MARK - TRADE MARK
REFERENCE AND USE

Danbrew Ltd. Is a company within the Carlsberg A/S Group


In connection with this Agreement and otherwise the Buyer and any person,
company or other legal entity controlling, controlled by or under common
control with or employed by or related to the buyer, are not allowed in any
connection whatsoever, neither directly or indirectly to use or otherwise make
reference to the companies'/trade names/trade marks Tuborg and Carlsberg or
trade names/trade marks similar hereto or to any other trade names/trade marks
belonging to companies within the Carlsberg Group of companies, Danbrew
excepted.
The Buyer acknowledges that its failure to comply with the above will result in
immediate and irreparable damage to Carlsberg A/S, Denmark and admits that
Carlsberg A/S shall, without prejudice to any rights of action or any claims of
damages or rights at the date of termination, be entitled to injunctive relief and
such other relief as any court with jurisdictions may deem just and proper.

183

7.2. The Vietnamese version of the contract

HOP HONG SO 10/NAP7


Tong COng ty Xuat Nhap khdu Thi6t bi Toan BO va Ky thuat
"TECHNOIMPORT", dia chi 16-18 Trang Thi, COng hoa Xa hQi ChU nghia
Viet Nam, Telex s6 411230 Tech VT va 411542 Tech VT (sau day goi la
"Ngueri Mua") la mot ben.
Ben kia la C6ng ty DANBREW Ltd, dia chi Rahbeks Alle 21, DK-1801
Frederiksberg C, Dan Mach, telex 16124 (DBREW DK) (sau day goi la "Nguesi
Ban") hOm nay da th6a thuan Hop dung sau day:

CAC DIU KHOAN HOP WING


Dieu 1: D6i tArng hop &Ong va pham vi cung cap
Dieu 2: Cac tai lieu thuOc hop dung
Dieu 3: Nhiing nghia vu cua Nguoi Ban
Dieu 4: Nhang nghia vu cna Ngueri Mua
Dieu 5: Dieu kien va theii gian giao hang
Dieu 6: Bao bi &rig goi va

4 ma hieu

Dieu 7: Gia ca va dieu kien thanh toan


Dieu 8: Phat ve giao hang cham
Dieu 9: Giam dinh tru6c khi giao hang
Dieu 10: Bao hanh
Dieu 11: Lap rap, Thir chdc nang va nghiem thu
Dieu 12: Gig), phep nhap khdu/xuat khdu
Dieu 13: Trong tai va Ludt ap dung
Dieu 14: Bat kha khang
Dieu 16: Hieu luc cua hqp clang
Dieu 17: Dia chi phap ly cua cac ben

184

Dieu 1: Doi tuorng hop d6ng va pham vi cung cap


1.1. Doi tu'ang hop clang
D6i Wong hop dung nay IA thiet lap & tinh Nghe An, prig hoa Xa hOi Chu
nghia Viet Nam mot nha may bia doing IX) voi cac trang bi chi6t chai c6 c6ng
suit san xuat IA 30.000 hl bia/nam ten co s& 24 giO lam viecingay va 241 ngay
lAm viec/nam d6i voi nhA ngu bia va pith hop vii cac tinh 'fang ky thOt va cac
ban ke thi6t bi, phu ding thay the va vat tu, do du tril, v.v... neu trong cac phu
luc kern theo hop 'long nay.
1.2. Pham vi cung cap
Ngtrili Ban chiu trach nhiem cung cap cac muc sau:
1.2.1. Thies bi the bi6n (cong nghe), thiet bi phu trg, cac do n6i va thiet bi
dien nhu neu trong Phu luc 3.
1.2.2. Phu ding du tru cho hai nam van hAnh d6i vol tat ca thi6t bi va may
m6c nhu neu trong Phu luc 4.
1.2.3. Cac vat to va do dkr tiff cho cac thing van hAnh dau tien nhu neu
trong Phu luc 5.
1.2.4. Giam sat, thir nghiem, van hAnh va ciao tao tai dia diem lap rap va van
hAnh nhu neu trong Phu luc 6.
1.2.5. TAi lieu icy thuat, cac ban ye va cac so do nhu neu trong Phu luc 7.
1.3. Nguai Ban chiu trach nhiem cung cap tai cd cac mat hang can thi6t
khOng neu trong cac phu luc not ten nhung can c6 cho viec van hAnh binh
thuang cua nhA may va de bao darn moi chtic nang da &rot bao hAnh cua nhA
may.
1.4. Nguai Ban se" bdo ddm cung cap phu tang thay the cho nhA may theo
yeu cau va It nhgt trong 10 nam Ice sir khi bat dau van hAnh nha may.

185

Dieu 2: Cac tai lieu thuOc hop dung


13 Phu lac sau day la mot phan khOng tach red ciia Hop dOng 1) MO to chung cong nghe
2) 'Dinh chat ky thuat cua bia
3) Ban ke thiet bi va may moc
4) Phu tang thay the
5) Vat tu va do du tilt
6) Ban ke nhan vier' caa Nguoi Ban va cua Nguoi Mua
7) Tai lieu ky thuat
8) Lich bidu thuc hien d6i v6i viec giao hang, lap rap chay thir va van hanh
9) Mau cua thu bao dam do Ngan hang Ngued Ban phat hanh
10) Ban ke cac thir do Nguoi Mua cung cap
11) Ban ke cac thong s6 tieu thu cho moi hl bia
12) Cac dich vu giam sat va dao tao nhan vien caa Nguoi Mua
13) Nhan hieu thuong mai dm Nguoi Mua - Nhan hieu thuong mai tham
kith() va sit dung.

186

Dieu 3: NW-mg Nghia vu cua Ngired Ban


3.1. Nguoi Ban se chiu trach nhiem d6i vii toan 1)0 cong trinh, viec thiet ke
va cac tai lieu lcSi thuat se &roc sir dung cap cho Ngued Mua. Cac tai lieu nay
duoc neu trong Phu lye 7 va se dugc cung cap lam 5 ban vii moi loai tai lieu.
3.2. Ngtr6i Ban cung cap thiet bi, cac loai vat to va phu ding thay the cho
cOng trinh CIF Da Nang theo pham vi cung cap neu trong Phu luc 3.
3.3. Nguad Ban se giao den cang Da Nang theo diet]. kien CIF cang Da
Nang nhu Dieu 5 cua Hop Ming nay cac thiet bi cac loai vat to va Ow ding thay
the phi) bop vii qui cach pham chat not Dieu 3.
3.4. Ngtrad Ban se cung cap moi chi clan can thiet cho viec xay dung nha
=Ong cua nha may neu trong Phu lye 7.
3.5. Nguari Ban se chiu trach nhiem huong dan va giam sat viec lap rap thiet
bi va tien hanh chay thin, nghiem thu va van hanh nha may nhu & Dieu 11 dia.
Hop ding nay.
3.6. Nguad Ban se cir cac chuyen gia k-y thuat nhu neu trong Phu luc 6 cua
Hop dung nay.
3.7. Ngued Ban se chiu trach nhiem dao tao nhan vien cua Ngtrad Mua nhu
neu trong Phu luc 6 cua Hop ding nay.
3.8. Ngtrad Ban se cung cap cho Ngtrad Mua kh6ng lay them den thiet bi hoac
1)0 phan may moc hoac thuc hien viec thay the hay sira china, nett can thiet, nham
hoan tat cac nghia vu cua minh, vii dieu kien la viec cung cap, thay the hoac sera
chira nay khOng thuOc cac nghia vu cua Ngtrad Mua trong Hop &Ong nay.

187

Dieu 4: Nhang nghia vu cua Noel Mua


Ngueti Mua chiu trach nhiem:
4.1. Cung cap cho Ngueri Ban nhang s6 lieu co ser can thi& NIA cac tali lieu
lien quan den nhA may d6i voi viec thiet ke" cUa Ngueli Ban va lap ra ban ice thi&
bi va vat tu c6 trach nhiem d6i voi dQ chinh xac cua cac tai lieu.
4.2. Xin giay phep nhap khdu va cac giay pile') can thi& Ichac d6i voi viec
xay dung va san xuat cua nha. may.
4.3. HoAn thanh viec xay dung nha 'cueing nhA may phu hop voi cac yeu cau
Icy thuat cua nhA may.
4.4. Cung cap thi& bi cid lap rap - (cac nhu cau, dung cu gian gido, v.v...) cac dung cu chung va cac vat lieu tieu hao cho viec lap rap nha may do Ngueri
Ban giao (d6i voi viec hAn, mai, cat dau v.v...)
4.5. Xin nhang giay pile') can thi& cho cac chuyen gia cUa Ngueri Ban va
gia dinh ho, n'eu c6, de den Viet Nam lam viec cho nha may, bao g6m thi thuc
nhap canh, gigy phep tam tril va lam viec.
4.6. Cung cap cho Ngueci Ban, theo yeu cau cua Ngued Ban, nhan luc, cac
vat tu can thiet cho lap rap, chay thin va nghiem thu nhA may nhu neu er Phu luc
10.
4.7. Chiu phi van chuydn doi voi thidt bi, vat tu va phu ding thay the cung
cap theo hop dong nay tit DA Nang t6i dia didm nhA may, bao g6m ca cang phi
va phi Hai quan.

188

Dieu 5: Dieu kien va th6i han giao hang


5.1. Nguai Ban se giao thi6t bi, cac vat tu phu ding thay th6 neu trong Phu
luc 3 va Phu luc 4 va cac tai lieu Icy thuat neu trong Phu luc 7 ciia hop &rig nay
dung theo cac ngay ghi trong Phu luc 8.
5.2. Viec giao thi6t bi, vat tu va phu tong se duqc thuc hien ten ca s& dieu
kien CIF cang Da Nang, COng hoa Xa hQi Chu nghia Viet Nam (phi' hop voi
INCOTERMS - Nhang dieu kien thuang mai quoc t6 - nam 1953, Ban phat
hanh nam 1990).
Nguai Ban se c6 trach nhiem chuydn tai. N6u khOng tranh duqc Nguai Ban
se thOng bao cho Nguol Mua va thkrc hien viec giao hang phii hap. Ngu6i Ban
phai chiu va tra moi chi phi, thug kh6a lien quan d6n viec van chuyen hang h6a
d6n cang Hai Phong, COng hoa Xa. 110i Chu nghia Viet Nam. Hang 116a se du'o'c
bao him tit kho Ngu6i Ban den kho Ngu6i Mua & cang Da Nang.
Cac tau van chuydn hang cung cap theo Hop (long nay se dap Ung cac dieu
kien sau:
Cac tau nay da duac sir dung khOng qua 15 nam hoac phai duac x6p loci
nhat d6i vdi tau di Wen b&i mQt trong cac t6 chdc phan loci tau quoc t6 nhu neu
trong diet' ve phan loci cua COng ty Lloyd ngay 1/7/1978.
Duac phep giao hang trong cOng-ten-na.
it nhat 2 tun trudc khi giri hang Nguoi Ban se thong bao cho Nguai Mua bang
dien tin hoac telex lie su lam dung ve tau da not & ten va ve qu6c tich cua tau.
Ngu6i Ban se thay mat NguOi Mua bao him thi6t bi, vat to va phu ding
thay th6 duqc giao theo Hop ding nay 110% (mQt tram muai phan tram) ciia
gia tri CIF dia. hap (long phi' hop v6i Dieu ve hang hoa cua COng ty Lloyd
(moi rui ro) tra bang dong tien neu trong hap .dong nay v6i mQt cOng ty bao
him c6 uy tin.
5.3. Thi6t bi se duqc giao v6i day di' cac phu kien va phu tang pith hop vai
lich giao hang de dam bao viec lap rap nha may va chay thin cong trinh dung
han theo cach nhanh va hop 17 nhat.
5.4. Ngay ciia Van dan sach da dua hang len tau duqc coi la ngay giao
hang; tru6ng hop gin dung hang khOng cho cac tai lieu k9 thuat thi van dan
hang khOng se thay th6 cho van dan du6ng bin va ngay cua du6ng bien va
ngay cila van dan hang khOng duac coi la ngay giao cac tai lieu Icy thuat.
5.5. Nguii Ban se thOng bao cho Nguai Mua bang dien hoac telex 10 ngay
tru&c khi giao hang. NQi dung ciia thong bao nhu sau:
- S6 hop dong
- Cang giao hang
- Dkr ki6n ngay d6n
- Tri gia chuydn hang
- S6 luong hoac cong-ten-na
189

- Tong trong luang ca bi


- Tong khoi Wang
- Nhfing thOng bao them va huong clan
Ngtroi Ban se xac nhan not dung dm dien hoac telex tren bang thu bao dam
trong yang 10 ngay ice tit ngay giri dien hoac telex tren.
5.6. Nguai Ban se thOng bao cho Ngt.r6i Mua bang dien tin hoac telex ye
viec giao hang trong veng 5 (nam) ngay sau ngay tau reri ben cang giao hang.
Nhang not dung dia thong bao dien tin hoac telex se la:
- S6 hap 'long
- Su xac nhan va/ hoac thay dei, ne.0 c6, ciia telex thuec diem 5.5
- S6 danh diem cita thiet bi va vat to da giao phu hap v6i phu luc 3.
- S6 kien va/hoac cOng-ten-no'
- Tong trong Wong tinh/b1 bang kg cila moi cOng-ten-nog hoac kien
- Tong khei Wang bang m 3
- Ghi chu ve cac sieu truong va sieu trong nhu tit 10 (mueri) tan tr& len ve
trong Wang va/hoac tir 10 (mtroi) met ve chieu dai va/hoac tir 3,2 met ve chieu
cao va/hoac tir 2,8 ye chi& Ong.
- Ring gia tri cua hang duet giao
- Ngay va so dia van don throng bien:
Thong bao dien tin hoac telex neu tren se dtrac xac nhan bang thu bao dam
giri may bay se duet giri cho Ngtroi Mua trong vong 3 (ba) ngay sau ngay girl
dien tin hoac telex.
5.7. Trong yang 10 (mtred) ngay sau khi tau red ben Ngtroi Ban se giri den
dia chi Ngu6i Mua bang buu dien cac tai lieu sau:
- H6a don thuang mai
: 4 ban
- Van don dtrong bin sach : 4 ban
- Ban ke dong g6i
: 4 ban
- Bao cao giam dinh
: 3 ban
- Chung chi pha'm chSt
: 3 ban
- Chting chi s6 luang
: 3 ban
Ngoai ra, Ngtr6i Ban se giri qua thuyen twang tau met be cac ban ke &mg
goi (long trong phong bi dai va cheng mot.
5.8. TruOng hap giao hang bang dung Meng Ngtreri Ban se thong bao cho
Ngt.rbi Mua bang dien tin hoac telex 10 (mutri) ngay tn.r6c khi giri hang ve s6 hap
dong, ngay du Id& gui, not giri m6 to ye hang He lien quan va s6 Wang hang.
5.9. Ngtred Ban chiu trach nhiem bao cho Nguai Mua bang dien tin hoac
telex vao ngay giri hang h6a lien quan v6i n'ei dung sau:
190

- S6 va ngay dia hop dong


- S6 va ngay van don hang khOng
- Ten cOng ty hang khOng va s6 chuyen bay
- MO to hang Ma
- S6 luong kien
- Trong Wong tinh/b1
Ngugi Ban se girl cho Ngtrgi Mua ding vdi hang hoa moi tai lieu ve van fait
dam bao viec
can thiet nhu ban sao van don hang khOng va ban ke dong goi
nhan hang duoc an toan tai san bay den.
5.10. Ngugi Ban se chiu trach nhiem d6i vdi bat kSr hu hOng nao va/hoac
bat kST chi phi phu them nao do thieu thOng bao neu ten.
5.11. Moi chi phi lien quan den viec thOng bao cling nhu lap va gin tat ca
cac tai lieu nhu neu trong Hop dong nay se do Ngtr6i Ban chiu.
, 5.12. Viec chat hang tren boong tau se duoc cho phep d6i vdi nhting danh
diem ma theo thOng le thuong mai cluck to thl khOng hoac khOng the chat dugc
dudi ham tau.
5.13. Sau khi hang den cang nhan Ngugi Mua c6 quyen giao viec giam dinh
ve s6 luong va/hoac chat luong cho "COng ty nghiem va Giam dinh Viet
Nam - VINACONTROL ve hang h6a nao ma thing g6i bi hu hOng hoac d6 v6.
Viec giam dinh nay do chinh VINACONTROL lam.
MQt bao cao ye viec nay se &roc VINACONTROL phat hanh nhu la mot
chung dr cid lam khieu nai vdi Ngugi Ban.
Dai dien ci1a Ngugi Ban c6 the c6 mat tai noi giam dinh. Trugng hop c6
nhirng d6 v6 va mat v6 hang hoa trong khi van chuyen, boc hang va da hang ma
khOng thuOc 16i cita Ngugi Ban thi Ngubi Mua, trong giai doan bao hiem, se
mgi VINACONTROL giant dinh hang Ma nay va cung cap cho Ngugi Ban cac
tai lieu khieu nai c6 lien quan de Ngtrgi Ban c6 the lam khieu nai vdi Ngugi van
chuyen hoac COng ty bao hiem va de cung cap lai bang chi phi dia minh cho
Ngugi Mua cac hang h6a thay the theo nhang dieu kien neu trong hop (long nay
trong \Tong 6 (sau) thang ice tir ngay nhan duoc h6 so khieu nai do Ngtroi Mua
cung cap.
Cac ho so khieu nai se Om:
- COR
- ROROC
- Bien ban giam dinh
- Van don ddmg bien
- Ban ke dong goi
- Cac tai lieu can thiet khac

191

Dieu 6: Bao bi dong goi NIA 14 ma hieu


6.1. Thi6t bi va phu ding thay the se duqc giao trong bao bi xudt khdu
duang bier' dap ung moi yeu du cila moi loai hang rieng biet ve thiet bi va cac
diet' kien khi hau a COng hoa Xa hQi Chu nghia Viet Nam.
6.2. Bao bi phai dam bao an toan ddy du ve hang h6a khOi bdt kS, mot d6 Va.
sat va van chuydn lien hop covahnriotgcuyednN,otig
tinh den ca viec chuydn tai, neu co trong khi van chuydn Ira trong dieu kien luu
kho dai ngay va can than a a:mg hem Xa hOi ChU nghia Viet Nam (vai died gian
tai da la 10 thang).
6.3. Bao bi se phai phu hop voi viec b6c hang bang can du, xe ca, xe tai NIA
bang tay trong chimg muc ma trong luting va khai luting cUa nhang kien rieng
bi'et cho phep.
6.4. Truot khi bao bi tat ca bQ phan may cua thiet bi va phu tong phai duqc
bao ve voi lop phu chang ri de de phong cho Chung khOi bdt kS , hu hOng va han
ri trong van chuydn va de dam bao mot tiled gian luu kho 10 thang tai nuoc
Nguai Mua.
6.5. Nguoi ban se chiu trach nhiem ve bdt kS7 hu hOng hoac do va nao cua
hang 116a ma do &rig g6i ban ddu khOng tat hoac voi han ri do bOi ma ban ddu
khOng dung hoac khOng du
6.6. Moi kien hoac thUng thua khOng duqc vugt qua cac kich thuot sau:
- Dai: 10.000 mm
- lOng: 3.000 mm
- Cao: 3.200 mm
Trong moi truang hop trong luting khOng duqc vuot qua 20 tan vbi moi
cOng-te-na hoac kien. Trong twang hop cac cOng-to-no thi cac kich thirdly se la
cUa cac cOng-te-no 20 foot tieu chudn.
6.7. Cac loai ang va tiler) hinh hoac cac vat to tuong to ma theo thOng tuc
quac t6 co the duqc giao khang c6 bao bi thi se duqc buQc chat theo cac kich ca
nham tranh gay va trong van chuyen, trung chuyen va nhdm ldn khi den dia
diem nha may a Viet Nam.
6.8. Ban Ice dong g6i se Om thOng tin sau:
- S6 hop (long
- S6 danh diem (theo Phu luc 3)
- Trong luting (tinh/b1)
- Kich thudc kien bang cm
- Ten ngu&i giri va nguai nhan.
6.9. Cac kien c6 chda thidt bi va phu ding phai duqc via mac ma tren 4
mat: mat tren va 3 mat ben. 192

6.10. Mac ma se phai viet ro rang bang son den khOng phai bang tie'ng Anh
nhu sau:
(Cac chit va con s6 khOng nh6 hon 10cm n'6u kich thirac cita kien cho phep)
- Ngueri nhan:

1ECHNQIMORT,
Ha NO CHXHCNVN.

- S6 hop &rig:

10/NA/P7

- Trong luong tinh/bi bang kg:


- Kh6i luong bang m 3 :
- Kich thiroc kien bang cm:
- S6 kien:
- S6 danh diem (theo Phu luc 3):
-

DANBREW, Dan Mach

- Cang giao hang:


- Cang den:

Cang Da Nang, CHXHCNVN

- Mac ma van chuydn

10/NA/P7
'1ECH/DAN

Cang dUng mac ma nay khi giri throng hang kh6ng.


6.11. Moi kien hang can su b6c def can than deu phai c6 mac ma phu: "Can
than", "Phia tren", "Dirng lat" ding nhu cac chi dan khac n6u c6 b6c der dac biet
hoac mot kien dac biet nao day can c6 nhu diem nick cap va diem trong tam.
6.12. MOt phong bi ch6ng nudc chtia 1 1)0 sao cila ban ke dong goi se duoc
gan vao phia ngoai moi kien; Phong bi nay phai duoc the ngoai bang mot
mie-ng kim loci duoc hoac thing dinh vao kien hoac On chat vao phan kim loci
cUa thiet mot ban nira ban ke MI-1g goi se duoc cho vao trong kien hang ding
\Tad thiet bi.
6.13. Ngued Ban chiu trach nhiem d6i vOi cac chi phi van chuyen phu them
hoac luu kho cling nhu vai hu hong xay ra voi hang Ma do viec thie't bi nham
dia chi vi da danh mac ma ban dau khOng dU hoac khOng

193

Dieu 7: Gia ca va dieu kien thanh town


7.1. Tang gia tri dia hop dung la nhu sau:
Thiel bi, phu tong, tai lieu k y- thot vat to DEM x.xxx.000
Giam sat va dao tao

DEM xxx.000

Phi van tai, bao him va bao bi...

DEM xxx.000

Gia tong Ong

DEM x.xxx.000
7.2. Gia tong Ong tren &rot hidu la gia CIF tang DA NAng CHXHCNVN
va la gia co dinh va khOng phu thuOc vao bAII4 su si:ta gia nao.
7.2.1. Bao bi se duoc thuc hien trong cac cOng-te-no 20 foot mot chieu trit
cac danh didm Ion khOng co thd dua vao cong-te-no ducic.
7.3.Ban ke gia ca
S6 danh didm
1.0. Thiel bi chuydn malt

Gia ca
DEM xx.000

1.1. May nghien malt


1.2. Thong malt hat, gdu tai, bang chuyen...
1.3. He th6ng tach bui va lam sach
1.4. Bang dien
1.5. May nghien gao va thao do do Ngued mua cung CST)
2.0. Nha na'u bia
DEM xxx.000
2.1. Noi ngam hat.hem
2.2. N6i phu
2.3. N6i loc
2.4. Thimg khugy
2.5. Tilting nook n6ng
2.6. Bum, cac 6ng va dAu not
2.7. Bang dieu khidn
3.0. VAn chuydn hem

DEM xx.000

3.1. May lam lanh hem


3.2. Th6i khi hem
4.0. Tram ve sinh may tai cho
194

DEM xx.000

4.1. Tram CIP nu6c n6ng


4.2. Tram CIP nuoc lanh
5.0. Cac thing len men

DEM xxx.000

5.1. 9x thing chtlailen men hinh tru con...


5.2. He th6ng kiem tra nhiet dO
6.0. Cac thing chda men

DEM xx.000

6.1. 2x thing chda men


6.2. Bom men
7.0. Xu&ng loc

DEM xxx.000

7.1. Bom loc


7.2. Loc dat (kieselguhr)
7.3. Loc xi-phOng
8.0. Cac thing bia trong

DEM xxx.000

8.1. 2 thing bia trong


8.2. He thong dieu khien nhiet dO
9.0. Day chuyen trier chai

DEM x.xxx.000

9.1. Day chuyen thing thua


9.2 Ban thao ket bia
9.3. Cac bang chuyen chai
9.4. May rira chai
9.5. May chi& chai/dung nut chai
9.6. May thanh trUng
9.7. May dan nhan
9.8. Ban &mg ket
9.9. Giam sat
9.10. BOi tron
9.11. He th6ng dieu khien
9.12. Dieu khien san xuat
10.0. Xuang phi trq
10.1. Xuang lam lanh

DEM xxx.000

10.2. XuOng khl nen

DEM xx.000

195

10.3. Xi!'Ong thu hoi CO 2


10.4. Xdong not hoi
10.5. 30 Binh day khi argon

DEM xxx.000

11.0. Cac thiel bi cOng nghe, co khi va dien

DEM xxx.000

DEM xxx.000
KhOng tinh tier'

11.1. Ong, bom, do not v.v...


11.2. Bang dieu khidn chinh va cap
12.0. Thies bi phong thi nghiem
13.0. Phu tong thay th'6

DEM xxx.000

14.0. Nguyen lieu san xual

DEM xxx.000

15.0. Dong kien, cac vO cOng-te-no 1 chieu


T6ng gia FOB

DEM xx.000

DEM xx.000

DEM x.xxx.000

Giam sat lap rap van/hanh


Phi van tai

DEM xxx.000

Phi bao him

DEM xx.000

Gia t6ng cOng CIF cang Da Nang


7.4. Dieu kien thanh toan

DEM x.xxx.000

DEM xxx.000

Viec thanh toan d6i voi gia tong Ong nhu neu trong dieu 7.1 se duot thuc
hien nhu sau:
7.4.1. Tien dat coc 15% (mued lam phan tram)
gia t6ng Ong len toi s6
tien xxx.000 DEM, se duoc tra bang dien chuydn tien trong yang 60 ngay tit
khi ky hop dong nay can cu vao viec trinh cac tai lieu sau day dm Nguoi Ban:
a) 1-loa don chinh cua NguOi Ban thanh 5 ban
b) Gig)/ bao lanh cua Ngan hang nhu phu lye 9 - do Ngan hang Nguad Ban
phat hanh - giri cho NguOi Mua...
7.4.2. D6i voi 85% (tam muoi lam phan tram) cua gia t6ng Ong tren, len
toi s6 tien x.xxx.000 DEM; Nguoi Mua se yeu cau Ngan hang Ngoai thuong
Viet Nam (Vietcombank) phat hanh mot tin dung thu kh6ng hUy ngang tra tien
ngay cho Ngued Ban duoc Ngan hanh Ngued Ban xac nhan trong \tong 60 (sau
muoi) ngay tit ngay 14 hop citing nay
Tin dung thu tren se duoc thOng bao bang telex hoac dien tin (day du not
dung) cho ngan hang tren
Tin dung thu nay se co hieu luc sau:
75% (bay muoi lam phan tram) cua gia t6ng Ong,
DEM, se tai 10 thang sau khi in6 tin dung thu tren
196

len toi

s6 tien x.xxx.000

10% (magi phan tram) caa gia t6ng cOng, len tgi s6 tien xxx.000 DEM,s'e
tdi 18 thang sau khi m& tin dung thu tren
7.4.3. Viec thanh toan s6 tien tong Ong tren se dugc thuc hien sau:
75% (bay magi lam phan tram) cua s6 tien ghi trong h6a dun cua moi
chuye-n giao hang, c nghia 1a khOng vugt qua x.xxx.000 DEM, tra can ea viec
trinh cac tai lieu giao hang sau:
1) Floa don thuong mai c6 chit 14, 2 ban chinh va 2 ban sao
2) Van don sach da xep hang len tau c6 ghi "phi van tai da tra" da lam va
theo lenh va ky hau de trong, toan be ban chinh va 2 ban sao.
3) Ban ke clang goi, 3 ban chinh va 2 ban sao
4) Bao cao giam dinh do Ngugi Ban phat hanh, 3 ban chinh va 2 ban sao
5) Cluing chi pham eh& do Nguen Ban phat hanh, 3 ban chinh va 2 ban sao
6) Don hoac gia.y chting bao hiem 3 ban c6 ky hau de trong cho 110% gia
tri phi hop vgi dieu (moi rui ro) ve hang hoa dia T6 chile LLOYD neu ro cac
khie-unai duo'c tra bang chinh dong tien ghi trong tin dung thu
7) Ban sao thOng bao giao hang cila Ngued Ban, 3 ban sao. 10% (mtred phan
tram) dm gia t6ng Ong tren, len toi s6 tien xxx.000 DEM, dugc tra sau khi van
hanh nha may can cif viec trinh:
(1)146a don thuong mai c chit ky, 2 ban chinh va 2 ban sao
(2) CinIng chi nghi4n thu xac nhan viec van hanh cra dugc thuc hien do cac
dai dien cua Ngued Mua va Ngued Ban 14
Tuy nhien, trong bgt kS7 tinh hu6ng nao s6 tien nay se phai c6 san cho ngued
thu hugng 17 thang ice tir khi mg L/C nay:
(1) Floa dun thuong mai c6 chit 14, 2 ban chinh va 2 ban sao
(2) Gigy bien nhan cua Nguoi thy hueng
7.5. Trong vong 30 ngay ke tir ngay 14 hop (long Ngued Ban se co dugc thu
bao dam ciia Ngan hang khOng huy ngang, bao lanh cho 15% tien dat coc tren
nhu diet' 7.4.1. Thu bao dam; Ngan hang nay se dugc Ngan hang Ngugi Ban
phat hanh yen not dung nhu tren trong phu luc 9 cila hop dong nay
7.6. Moi phi ton ve Ngan hang va phi hoa hong trong Viet Nam se do
Ngued Mua chiu. Moi phi ton va phi hoa hong v6 Ngan hang ngoai nuot Viet
Nam se do Ngued Ban chiu
Moi chi phi va phi ton lien quan den viec keo dai va/hoac sita d6i ve tin
dung thu not tren se do ben c6 16i chiu

197

Dieu 8: Phut giao hang chain


8.1. Neu vi nhfing 1y do hoan toan do minh gay nen Ngugi Ban khOng giao
dugc tat ca thiel bi vat tu va phu ding thay th6 vao nhung ngay quy Binh trong
lich giao hang (phu 1uc 3) thi ngugi do phai tra cho Nguai Mua nhang khoan
phat da nhat tri doi vai viec giao cham nhu sau:
Vdi tY suat 0,5% cho m6i tuan le day clU v6 giao cham tit* cu6i ngay giao
hang dkr kien trong lick giao hang
T6ng s6 tien phat cho thi6t bi, vat tu va phu tong tuy nhi'en se khOng vuot
qua 5,5% gia tri cUa thi6t bi va/hoac phu tong va/hoac vat tu dugc giao
8.2. Ty suSt tren va lien phat se khOng dugc giam hoac tang b&i trong tai
8.3. Khoan phat nay se du is Ngugi Ban tra can ccr hoa don Nguoi Mua
trong \Tong 2 thang sau khi nhan dugc
8.4. Ngugi Ban khOng duot tir bO nhirng nghia vu cUa minh ne trong hop
&rig nay do viec tra khoan tien phat duot
8.5 Neu vi nhang 1y/ do hoan town cira Ngugi Ban ma viec giao thiel bi, vat
tu va phu tong thay th6 bi cham hon 3 thang thi hai ben ky hop dong se phai
ra nhimg bien phap de xir 1y cho skr ti6p tuc cua hop (long nay rong \Tong 1 thang
ke tit ngay cuoi ding cila thang thir 3 nay.

198

Di611 9: Giam dinh truck khi giao hang


9.1. Ngue Ban bang chi phi khi minh se tien hanh viec giam dinh thiet bi
tai xuong cUa minh hoac cua ngued nhan than dia minh
9.2. Ngued ban se phat hanh ban bao cao giam dinh xac nhan rang thi6t bi
da daoc the tao hoan toan phi hop vOi nhting dieu khoan va dieu kien cila hop
dung nay va theo he met
Tren co so nay 1 gig.y chting chi chgt luong se ducic Ngued ban phat hanh va
147. Ban bao cao giam dinh tren se dugc gUi ding \Ted cac tai lieu nen 6' diem 5.7
9.3. Truot khi giao hang xu6ng tau Ngu6i ban phai kiem tra viec lap rap va
viec van hanh c khi cita hau h6t cac thiet bi chinh yeu; N6u c thiet bi hoac
don vi may nao do dugc giao trong trang thai thao r6i thi Ngueci phai cung cap
ding ved thiet bi do bang chi phi cUa minh tat ca cac phuong tien chuyen dung
va dung cu de lap rap thiet bi nay 6 dia diem nha may duoi su giam sat ciia
chuyen gia lap rap trueng cUa Ngu6i ban.
9.4. Nhimg thin nghiem va nghiem thu cuoi ding ye van hanh thiet bi, phai
duqc tien hanh tai dia diem nha may '6 Viet Nam phi hop voi dieu 11

199

Dieu 10: Bali hanh


10.1. - Nguoi ban bao dam rang:
10.1.1. Thiel bi va tai lieu ky thuat duoc cung cap se bao dam dat duoc
chirc nang duoc bao hanh nhu neu trong hop Ong nay.
10.1.2. Thiel bi va tai lieu ky thuat duoc cung cap ding nhu sir to Ong h6a
va co' khi hoa cua cOng ngh'e san xuit se thuOc nhung thanh tau qu6c to hien dai
nhit dbi vdi loai nha may dac biet nay vao thai diem giao hang nha may nay
10.1.3. Cac nguyen lieu dung de the tao thiel bi va phki tang thay the, tay
nghe sir dung ding nhu viec lap rap va thkrc thi ky thuat phai co chit Wong cao
10.1.4. Thiel bi va phu t ing thay the duot cung CS!) la loai mai the tao va
duoc the tao hoan toan phi' hop vdi sir mb ta, cac tinh Wang va dieu kien ky
thuat dm hop &Ong nay va se duoc the hien nhu vay trong viec van hanh thtrong
mai dia nha may
10.2. Sau khi hoar' thanh tai lieu ky thuat hoac trong thbi gian the tao thiet
bi dia nha may nett Co thay doi hoac cai tien ve ky thuat ma Ngued Ban biet va
thuc hien thi Ngued Ban se cung cap cho NguOi Mua khOng lay tien tai lieu ky
thuat cai lien va dua nhilng thay dbi va cai tien nay \Tao viec the tao sau khi
nhan dugc su Ong yr bang van ban dm Nguari Mua
10.3. Thbi gian bao hanh d6i vdi nha may vdi diet' kien moi s6 tay va chi
dan ky thuat duoc cung cap nhu neu trong twang hop Ong nay duoc chip hanh
se la 12 thang ke tir ngay ky thing chi nghiem thu eh& nang nhung khOng
cham hon 20 thang ke tir chuyen giao hang cuOi ding
ThOi han nay se dugc keo dai mot cach tuong Ling nett van hanh nha may da
bi ngimg do 16i cita Ngued Ban
10.4. Neu trong thOi gian bao hanh cho nha may bit ky thiet bi nao c6 hu
hOng hoac khOng Ong bO, toan bQ hoac tang phan, hoac nett duoc the tao
khOng phit hop vdi cac dieu khoan va dieu kien dm hop Ong nay trong viec
chay thir thiet bi, theo yeu eau cita Ngtrei Mua, NguOi Ban chiu trach nhiem khir
1)6 nhiing hu hong duoc phat hien ngay lap tic trong khoang thOi gian hop ly
ma hai ben thea thuan cho viec khi be) nay ma khOng lay them tien cita Nguari
Mua; NguOi Ban phai xem xet lai hoac thay the tai lieu ky thuat nay va/hoac sira
chrra hoac thay the vdi chi phi dm minh cac may thiet bi hoac phi tong thay the"
hu hOng hoac khOng chinh xac
10.5. Moi chi phi lien quan den viec giao thay the cac may, thiet bi va phy
ding thay the lien quan tren co soy giao CIF Da Nang se do Ngubi Ban chiu; tiled
han bao hanh doi vdi cac thiet bi hoac phki tang duoc thay the hoac sira chira la
12 thang ke tir ngay bat dau van hanh

200

Cac may, thiet bi. hoac phu ding hu hong sau khi &roc thay the bang cai
moi c6 the duot giri lai cho Ngueri Ban neu nguoi do yeu cau vdi chi phi dm
ngu6i do tren co' so' gido CIF DA Nang trong thoi gian do hai ben thOa thuan
10.6. Neu Ngkr6i Ban khOng khir b6 &roc cac hu hong ma Ngu6i Mua khi6u
nai, nhu neu o (loan 10.4. thi Ngtr6i Mua c6 quyen to .mlnh khir 1)6 nhiing hu
hOng nay vdi chi phi cna Ngkr6i Ban ma khOng giai thoat Ngu6i Ban khOi nhang
nghia vu lien quan den bao hanh neu trong dieu nay; trong nhfing tru6ng hop
nay Ngtr6i Ban phai chiu cac chi phi thuc t6 cho viec sira chila. Bat kST sy hu
hong nhO nAo can khir 1)6 gap ma khOng can sir co mat dm Ngtr6i Ban se duoc
Ngued Mua thkrc hi'en va bao cho Ngu6i Ban bang dien tin hoac telex va Ngu6i
Ban se chiu nhang chi phi thkrc t6
10.7. Neu nfrang hu hong nhu neu d diet' 10.4. khOng hu hong bO duot do
16i Ngkr6i Ban, Ngkr6i Mua c6 quyen yeu cau Ngkr6i - Ban thay th6 may hoac mot
phan cYa thiet bi hoac phy tiing vdi chi phi ciia Ngubi Ban theo dieu kien CIF
Da Nang
10.8. Ngtr6i Ban bao dam la:
a) COng suat san xuat tong Ong la 30.000h1/nam se &roc vat chat hoa nhu
sau:
+ Cac me naubia 50h1, nau 3 tan m6i ngay, 241 ngay moi nam.
+ Viec len men va chda dyng trong cac thYng lien hop175h1(ca vO)
+ Viec nap chai lam trong 1 ca (cong suat bieu kien la 6.000 chai m6i gib)
b) San pharn: Bia Lager tieu chuan qu6c t6( loai Pilsner)12 P, 4% ruou w/w.
DO clang khoang 21 IBU trong dieu kien san xuat binh thu6ng

c) Cac s6 tieu thy ve san xuat nhu trong phy lyc 11


10.9. Twang hop thir nghiem chic Wang khOng thanh cOng, Ngued Ban chiu
trach nhiem lam lai thir nghiem nay trong Ong 15 ngay, viec thir nghiem lap lai
nay cling khOng thanh cOng thi Ngubi Ban phai chiu mot khoan phat bang
0,75% &la tang gia tri hop &Ong cho moi phan tram day du cua cong suat nha
may thap hon cong suat san xuat &roc bao dam cho moi tuan day du. Dong th6i
viec thir nghiem chdc nang phai duoc lap lai cho den khi dat dtroc cOng suat bao
dam
Tang s6 khoan phat se nhat tri cho viec giao hang cham (diet' 8.1) Ong vdi
khoan phat cho viec thin nghiem chdc nang khOng thAnh cong (diet' 10.9) trong
bat 14 truong hop nao se khOng vuot qua 5,5% dm gia tong Ong cua hop dOng
10.10. Trueng hop vi nhang 4/ do thuOc Nguoi Ban cOng suat Nha may
thap hon 94% ciia cOng suat san xuat ducic bao hanh sau cuOc chay thir chtic
nang lap lai, Ngu6i Ban se bang chi phi dm minh thay d6i sira chira va/hoac
201

thay the thiet bi hoac phu tong c6 lien quan bang nhirng phuong tien thich hop
trong yang 60 ngay nham dat dugc cOng suat duoc bao hanh; nett khOng dat
duoc cOng suat nay, hai ben se gap nhau giai quye't van de nay
r

Trading hop hai ben khOng di den th6a thuan, viec tranh chap nay se duoc
dua ra trong tai nhu diet! 13 dm hop clang nay
10.11. Trong van hanh neu c6 bat 1(3/ phan nao cUa thie't bi hoac may m6c
khOng neu trong Hop &Mg nay nhung can thiet cho viec van hanh nha may,
Nguai Ban se bang chi phi cUa minh giri nhiing thu nay tai dia diem nha may
trong vOng 60 ngay tit khi nhan duoc thOng bao cita Nguai Mua
10.12. Nguai Ban se chiu trach nhiem cung cap bat IcS/b0 phan thiet bi hoac
may m6c hoac phu tong thay the nao theo yeu cau cua Nguai Mua va chi phi
cua nguai do sau thai han bao hanh
10.13. Nguai Ban bao dam rang thiet bi phu tro, thiet bi dien hoac phu tong
thay the cung cap theo hop dang nay la clang 1)0 va phi' hop vai viec van hanh
va bao duong cita nha may dongbO duoc cung cap theo hop clang nay
10.14. Truang hop c6 khieu nai Nguai Mua c6 thd th6ng bao cho Nguoi
Ban cham nhat trong \Tong 45 ngay sau khi ket thtic thoi hart bao hanh mien la
viec hu hong xay ra trong thai gian bao hanh
10.15. Khi ke't thac thai han bao hanh Nguai Mua se phat hanh mot thu xac
nhan ke't thtic thai han bao hanh

202

Di6u 11: Lap rap thin chdc nang va nghiOn thu


11.1. Lap rap
11.1.1. Truck khi lap rap cac bao bi se daoc m6 dd kidm tra vdi su c6 mat
cua cac Quan 1T cong truang caa Ngir6i Mua va Ngt.r6i Ban; Tra6ng hop thay
cac bO phan ghi trong cac ban ke dong g6i bi thieu hoac hu hong hai ben se
chuan bi mot bao cao de cac quan 1Y/ caa cOng trung cua Ngu6i Mua va Ngu6i
Ban kYi, &Ong th6i cling cung cap nhung mO to chi tier ve bao bi \Tao th6i diem
kidm tra
11.1.2. Can cif \Tao bao cao tren, neu to thay cac bO phan may bi hong
va/hoac thidu va trong tinh trang tot, khOng c6 dau hieu gi lA da bi m6 ra thi
Ngu6i Ban se saa chug hoac giao khOng lay lien CIF cang DA Nang bO phan
thay thd va/hoac b6 sung cang som cang tot
11.1..3. Tru6ng hop cac bO phan may thidu va/hoac ha hong do ben Ngir6i
Mua gay ra thi Ngiroi Mua va Ngabi Ban se lap mot bien ban hop clang ve dieu
kien giao hang hoac thay the va dieu kien thanh toan ve viec nay
11.1.4. Ngeri Mua chiu trach nhiem dua ra khOi cang va van chuyen bang
chi phi caa minh tat ca may m6c, thiet bi va phu tAng thay thd to cang DA Nang
- Viet Nam tai dia diem lap rap va cung cap moi phuong tien, nhan cOng va cac
thu' gi can thidt de tien hanh lap rap may nick va thidt bi
11.1.5. Viec lap rap moi thidt bi do Nguoi Ban cung cap se &roc nhan vien
caa Nga6i Mua tien hAnh du'6i sa giam sat va chi clan ky thuat cua nhan vien icy
thuat Ngir6i Ban (theo phu luc 6) phi' hop v6i thiet ke", the tao, ban ve tinh nang,
s6 tay chi ddn tat ca deu do Ngu6i Ban va/hoac nhan vien Ngu6i Ban cung cap;
Hai quan ly cong trung se thOa thuan mot lich bidu th6i gian cho moi viec lap
rap ding nhu viec chay thu khOng tai caa cac may va toan 1)0 nha may
11.2. Chay thu
Trong vOng 7 ngay tit khi hoan thanh lap rap ma viec nay se dagc hai quan
13-7 cOng xac nhan, Ngir6i Mua se cung cap moi phuong tien, nhan cOng, cac
nguyen lieu v.v... theo van ban yea cau caa Ngu6i Ban 2 thang truac nham lam
cho viec thin nghiem chilt nang caa moi may m6c hoac nhom may c6 the diroc
nhan vien Ngu6i Ban tien hanh nhu sau:
11.2.1. Thu nghiem cong suat
M6i may hoac nh6m may se chay c6 tai lien tuc 7,5 tidn ngay trong 2
ngay lien trong diet' kien kS% thuat neu trong phu luc3 de chang minh rang cong
suat trung binh moi gi6 khOng thap hurl s6 da neu o dieu 10.8 d6i vad may (cac
may) lien quan
Traerig hop cOng suat san xuat diroc bao dam nhu 6 dieu 10.8 khOng dat
203

duqc thl viec thir nghiem c6ng swat se du6c rihan vien Nguai Ban lam lai va v6i
chi phi cUa Ngued Ban
11.2.2. Thir nghiem co khi:
Tat ca may m6c cua nha may se duqc chat tai va chay c6 tai lien tuc trong
12 tieng/ngay trong 6 ngay lien trong cac dieu kien k y- thuat nhu neu ct phu luc
1 de chang minh hieu suit co khi cUa may mop
11.2.3. Neu mot hoac nhieu may nick khOng dat du6c chtic nang du6c bao
hanh, do cac hu hong cUa may, Nguoi Ban chiu trach nhiem thay the cac 1)0
phan hong hoac may mop bang chi phi cUa c6ng suit san xuat

204

Dieu 12: Cac giap phep nii4p/xu6t khA'u


12.1. Vdi chi phi va rui ro ve minh, Nguai Ban se xin kip thai tir cac ity ban
tuang ung ve xuat xu bat kd gig)/ phep xuat khau can thiet nao cho viec xuat
khau va sir dung trong nu6c CHXHCNVN thiet bi, nha may vat tu, phu tang
thay the", tai lieu ky thuat va cac thd thay the, neu c6, va vi muc dich cUa cac
nghia vu cUa Nguai Ban cUa hop d6ng nay not chung
12.2. Tat ca gigy phep xuat khau can thiet cho viec giao hang se duoc
Nguai Ban cung cap cho Nguai Mua trong - yang 30 ngay sau ngay vao c6 hieu
luc cUa hop dong nay
Twang hop gigy phep xuat khau kh6ng can thiet chO viec xuat khau sang
CHXHCNVN thiet bi nha may, cac vat tu phu ding thay the, tai lieu ky thuat,
cac 1)0 phan thay the thi thay cho gig)/ pile') nay Nguai Ban se cung cap cho
Nguai Mua mot thu neu rang gig)/ phep xuat khau kh6ng can thiet cho cac
chuyen giao hang
12.3. Hieu luc cua .giap phep xuat khau nay se dai hon thuc hien cac nghia
vu cua Nguai Ban thuOc hop dong nay it nhat la 60 ngay. Vdi chi phi va rni ro
thuOc ve minh Nguai Ban se..keo dai thai hieu cua giap phep xuat khau theo thai
gian cUa bat ky su charn tr8 - nao xay ra trong khi thuc hien hop (long nay
12.4. Nguai Ban phai chiu va tra moi thud" cva/hoac chi phi ngoai
CHXHCNVN ca khi nhfing thin thud" nay gan vdi thiet bi nha may, cac vat tu
phu tang thay the, tai lieu ky thuat, cac 1)0 phan thay the neu c6, duot xuat khau
do mot luat moi va/hoac mot phap lenh va/hoac nhang quy dinh c6 tinh luat
phap do Chinh phu hoac bat ky Nha chirc trach nao khac ngoai CHXHCNVN
cOng b6 ma khong c6 bat ky su can thiep nao cua phia Nguai Mua
12.5. Nguai Mua vdi chi phi va rui ro cUa minh se xin bat ky giay phep
nhap khau nao do Nha chtit trach yeu cau tai CHXHCNVN ca cho viec nhap
khau ,moi thiet bi nha may, cac vat tu, phu tang thay the", tai lieu ky thuat va cac
130 phan thay the, neu c6, va cho ca muc dich cUa Hop d6ng nay not chung
12.6. Thai hieu cUa giay phep nhap khau nay se dai holt thai gian thuc hien
cac nghia vu cna Nguai Mua thuOc hop (long nay it nhgt la 60 ngay. Vdi chi phi
va rUi ro thuOc ve minh Nguai Mua se keo dai thai hieu cua gig)/ phep nhap
khau nay theo thai gian cua bat ky cUa su cham tr8 nao xay ra trong khi thuc
hien hop dong nay
12.7. Nguai Mua phai chiu va tra moi loai thud" nhap khau va Hai quan, cac
th(r thud" va/hoac chi phi khac dang hien hanh tai CHXNCNVN hoac dang c6
vao thai gian ky hop dong hoac danh vao viec nhap khau thiet bi nha may, cac
vat tu, phu tang thay the, tai lieu ky- thuat va cac 130 phan thay the, neu c6, do
mot dao luat va/hoac phap lenh va/hoac cac quy dinh c6 tinh chat luat phap va
do Chinh phu hoac ca quan chin trach nao qui dinh trong CHXHCNVN ma
khong c6 bgt ky su can thiep nao cna phia Nguai Ban

205

Dieu 13: Trong tai va luat ap dung


13.1. Neu vao bat kSi luc nao nay sinh su tranh cai hoac khac biet nao tir
hoac lien quan tai hop dong nay thi m6i ben sir gdi van ban cho ben kia ve su
ton tai cua tranh cai hoac khac biet dO. Sau khi nhan dugc van ban thOng bao
do, ye nguyen tac cac ben se c6 gang giai guy& viec tranh cai hoac khac biet
nay met cach him nghi bang viec gop y chung tren tinh, ,than thi'en chi va Hen
phap hau hieu. Neu viec giai quyet hau nghi khOng the dat dugc giira Nguei
Ban va Nguei Mua thi su tranh cal va khac biet nay se dua ra met trong tai cUa
Pheng Thuong mai Qu6c to Ct Paris hien hanh tir 1/6/20...
Thanh phan trong tai se gem 3 ngtrai trong tai, 2 trong s6 nay se dtrac m6i ben
14 hop (long chon met cach tuong dng, va nguei trong tai thir 3 (Chit tich), vai trela
Chit tich cua phien tea, se dugc trong tai cita cac ben l4 hop clOng ding chon
Chit tich nay c quec tich khac vui quec tich cita cac ben 14 hop &mg va c6
quec tich cUa nuac c lien quan he ngoai giao vui dat ntrac cUa hai ben 14 hop
dong
Ben mong mu6n dua viec tranh cai hoac khac biet nay ra trong tai se thOng
bao cho ben kia ve guy& dinh nay bang thu bao dam neu re ten va dia chi cita
ngtrai trong tai throe chi dinh, nguei nay c the la cong dan cita bat kS , ntrac
nao, cang nhu nei dung cUa tranh chap, ngay va se hop (long nay
Neu khOng c6 thOa thuan khac, ben kia se chi dinh bang van ban trong \Tong
4 Wan le ke tir ngay gui la thu cho Nguoi trong tai cUa minh, nguei nay cling c
the la cong dan cUa dat nuac bat kS , nao va se thong bao bang thu bao dam cho
ben thd nhat ye ten va dia chi cita nguei trong tai do minh chi dinh
Neu ben nao cid nhan duot thOng bao ye tranh chap hoac khac biet cc-) lien
quan den trong tai ma khOng chi dinh dugc ngtrei trong tai thd hai trong thai
gian da chi dinh hoac nett hai trong tai ca hai ben 14 hop dOng khOng chi dinh
dugc nguei trong tai thd ba (Chit tich) trong veng 4 tuan le ke tir ngay chi dinh
nguei trong tai thd hai, thi viec chi dinh se do Chit tich Phong Thuong mai
Qu6c to & Paris, Phap, lam
13.2. Su guy& dinh cita tea an trong tai se dugc thkrc hien viec be phieu
theo da s6 ngay sau khi chon ducfc ChU tich hoac chi dinh ducrc Chit tich phit
hop vai cac dieu kien cita doan nay ten co sg va pith hop vai cac dieu kien va
dieu khoan ca hop (long nay va trong twang hop nett hop dong khOng chi re thi
luat thtrc chat cita Pita') se dieu hanh
13.3. Trir khi c them thuan gi khac neu kh6ng bat kS7 viec trong tai nao
ding xay ra tai Pari, Phap. Viec trong tai se thkrc hien bang tieng Anh
13.4. Quyet dinh cita tea an trong tai la t6i hau va rang buec ca hai ben.
Cac chi phi lien quan den trong tai do ai tra se do su phan quy6t cita tea an
trong tai nay
13.5. Su tranh chap hoac khac biet dugc dua ra trong tai khOng lam tri hoan
chdc nang cua hai ben 14 ket hop (long
206

Dieu 14: Bat kha khan


14.1. Moi su kien va tinh huOng xay ra sau khi k9 kOt hop (long nay da vao
hieu lut va xay ra do nhang thuc to khOng dkr kien truck ma khOng tranh duoc
ye tinh chat dac biet vuot ngoai 9 chi va su kiem soat cua cac ben hop dong nay
thi se dugc coi la cac twang hop bat kha khang; trong pham vi dinh nghia tren,
cac trueing hop bat kha khang la thi du: cac tinh trang chien tranh hoac chien
tranh tuyen b6 hoac khOng tu9en b6, Ong dat, hea hoan, lut, bao lon, cac vu
nO, cac benh dich, cac cuec tong bai cOng va/hoac cac cuec bai cOng do Lien
doan thuong nghiep cua nganh cOng nghiep lien quan to chat met cach chinh
thk va thien tai tunhien khac
Nhung trueng hop sau day khOng duoc coi 1a bat kha khang, cac tai nan k9"
thuat trong cite tao (su loai 1)6 vat dtic hong, su sira chira sau khi hOng), thien
nhan cOng, nguyen lieu, phuong tien van chuyen va nang luong, SIX cham tre
va/hoac that bai cua cac nha nhan than phu cua Nguai Ban, cac cuec bai cOng
dia phuong khOng do Lien doan Thuong nghiep not tren to chk, tam dimg va
ngimg cOng viec
14.2. Ben yeu cat( cho thoat khoi viec thuc thi nghia vu thuec hop (long nay
do bat kha khang se th6ng bao cho ben kia ye van de nay bang dien tin hoac
telex ngay lap tdc nhung khOng duoc hon 10 ng'y sau khi bat dau va ket thtic
bat kha khang. Dien tin hoac telex ngay lap ttic nhung khOng duoc hon 10 ngay
sau khi bat dau va ke't thUc bat kha khang. Dien tin hoac telex nay gem cac
chung cu cua cac su kien, tinh chat cua cac tinh huong va ngay bat dau va ke't
thLic va cac hay qua se duoc xac nhan bang thu bao dam giri may bay trong
veng 10 ngay sau ngay gui dien tin hoac telex tren, thu nay se duoc PhOng
Thuong mai (va COng nghiep) xac nhan ve su ton tai, keo dai va de chinh xac
cua cac tinh huong da thong bao
14.3. Vao bat k9 thei gian nao trong qua trinh tie-p tuc cua hop (long nay,
nen ben nao khOng the hoan thanh toan be hoac arng phan bat k9 nghia vu nao
cua hop &rig do bat k9 cac tinh hucing bat kha khang nao nhu dinh nghia tren
day va bat kha khang nay da duoc thOng bao chinh xac nhu th6a thuan, ben yeu
cau thoat khOi viec thuc thi cac nghia vu cua minh thuec hop (long nay do bat
kha khang se dugc mien cho ve cac chain tre trong viec thk thi cac nghia vu
cua minh va se duoc keo dai met cach to deng theo khoang thai gian tuong
duong khoang thei gian cham tre do bat kha khang gay ra
14.4. Neu cac thU tuc neu Cr diem 14.2 khOng duoc tuan thU, ben tuyen b6
bi anh ht.:Ong cua bat kha khang se bi tuck quyen cua minh ve yeu cau thoat
khOi viec thuc thi cac nghia vu cua minh do bat kha khang not tren
14.5. Nat bat kha khang not tren tie"p tuc hon 3 thang lien thi hai ben k9 ke't
hop dOng trong thang thd to se tham khao y kien ran nhau va guy& dinh cac
buck can co de tranh nhung chain tre hon nib
14.6. Twang hop hai ben 1(9 hop &Ong khOng dat dugc them thuan trong
thang do hoac do bat kha khang viec cham tre keo dai hon 5 thang hai ben se
gap ga lan nhau lai de tim giai pita') cu6i ding
207

Di611 15: Nhting dieu kiC'n chung


15.1. Tat Ca cac phu luc neu trong va kern theo hop d6ng nay la cac phan
khOng the tach roi ciia hop dong nay
15.2. Moi sira doi va phu them vao hop dong nay chi c6 hieu luc khi bang
van ban va duoc hai ben 14 hop &rig 14
15.3. Nguoi Ban bao dam vai Nguoi Mua rang NOM Ban c6 day du quyen
son hiru doi voi cac pa - tang va phat mink moi lien quan dCii vOi thiet bi, tai lieu
k y- thuat, cac quy trinh c6ng nghe, kien thdc va cac kinh nghiem de cung cap
cho NO:A Mua theo guy& dinh cua ngu6i do nham de d6i tuong cita six dieu tra
c6 the duoc sir dung mot cach de dang cho muc dich duoc m6 Ong ma khOng
xam pham theo bat cur cach nao cac quyen Ciia ben thin ba; hai ben hieu la ben
thir ba khOng bao gier la bat 14 t6 chirc hoac ca nhan nao cua CHXHCNVN.
Truong hop cac ben thd ba c6 khieu nai gi do vdi Nguoi Mua hoac cac
khach hang cua Nguoi Mua trong CHXHCNVN ye sur vi pham nay thi Ngu6i
Mua se thOng bao ngay cho Ngubi Ban ye viec khieu nai nay va Nguoi Ban se
bang chi phi cUa minh va chiu rui ro tim cach giai guy& viec nay
15.4. Sau khi 14 hop &rig nay moi thoa thuan mieng va van ban truOc kia
deu khOng con gia tri va bi huy b6
15.5. Moi thd thud' khod lien quan tdi viec thdc thi hop &Ong nay neu co
trong CHXHCNVN se do Nguoi Mua chiu va trong cac nu6c khac se do NguOi
Ban chiu
15.6. Bat kS7khiai nai nao tit viec thdc hi'en hop dong nay chi c6 the xay ra
khi hop d6ng da vao hieu luc
15.7. Moi khieu nai thuOc hop dong nay se duoc lam thanh van ban va giri
bang thu bao dam may bay. Ngay dang 14 o buu dien se duoc coi IA ngay lam
nhung khieu nai nay. Viec tra 16i cho nhung khieu nai nay phai dugc lam ngay
nhung khOng cham qua 30 ngAy sau khi nhan duoc khieu nai. Trong nhang
twang hop khan cap cac khieu nai co the duoc lam bang dien tin hoac telex va
duoc xac nhan bang van ban nhu da duoc mO to trong doan nay
15.8. Ngu6i Ban va cac chuyen gia cua minh se giu bi mat moi ban ye, s6
lieu co s6; tin do Ngithi Mua cung cap va/hoac do cac chuyen gia nay tlf biet
trong thoi gian nu& NguOi Mua
Nguoi Ban va cac chuyen gia cua minh se khOng c6 quyen ti'et 10 nhimg ban
ye, so lieu co son, tin tiro va tai lieu (g6m ca not dung cila hop (long nay) lien
quan den doi tuong nay cho ben did ba. Tuy nhien, cac nha chdc trach va cac
ngan hang c6 lien quan se khOng duoc coi la ben thin ba
Ngu6i Mua va nhan vien caa minh se khOng c6 quyen tiet 10, cac ban ve, s6
lieu co so, tin tirc va tai lieu (gem ca n0i dung hop (long nay) lien quan tdi d6i

208

Wong nay cho ben thin ba; tuy nhien, cac nha chile trach va cac ngan hang se
kh6ng &roc coi la ben thd ba
15.9. Ngueri Ban se chiu trach nhiem d6i vdi t6n thgt va hu hong d6i vdi tai
san ma chinh la nha may cid 14 hop (long nay cling nhu voi thuong tat cac
chuyen gia, gom ca cai chat do su bat can cua cac chuyen gia NguOi Ban trong
pham vi bao hiem nghia vu dan su cua minh thy theo cac truong hop cu the
15.10. Ngutii Ban se khOng chiu trach nhiem d6i vdi cac t6n thgt kh6ng truc
ti6p nay

209

Dieu 16: Hieu

ciia hop (long

Hop (long nay tit)/ thuqc vao sir xac nh4n cua ca Ngued Mua lan Ngueri Ban
trong yang 40 ngay tir khi kY hop dong nay.
Hop dong vao hi4iltrc khi Nguqi Ban nha'n duqc ca tin dat coc 15% va tin
dung thu.

210

Dieu 17: Dia chi phap 1ST cna hai ben


17.1. Dia chi phap ly cua Nguoi Mua la:
T6ng Cong ty Xuat nhap khau thie't bi toan 1)0 va k9 thuat
(TECHNOIMPORT)
16 - 18 Trang Thi - Ha Noi - CHXHCNVN

Dien thoai s: 53776, 54974


S6 Telex: 411230 (TECHNOIMPORT)
17.2. Dia chi phap lY cua Ngu6i Ban la:
Danbrew Ltd
Rahbeks Alle 21
DK - 1801 Frederiksberg C, DAMARK
S6 di0 thoai 45 31 21 09 18
S6 Telex: 16124 (DBREW DK)
Hop dong nay ducfc lam thanh 4 (b6n) ban, 3 (ba) cho Ngued Mua va 1
(m0t) ban cho Ngu6i Ban
1(5,' tai Hue" ngay 10 Mang 8 mim 20...
Thay mat Ngu6i Ban
O. DANBREW
(Dci

Thay mat Nga6i Mua


LE VUONG
(Do 14)

211

Phu lyc 1

MO TA CHUNG DAY CHUYEN CONG NGHE

San pham:

Bia &roc san xuat IA bia Lager 12p

Nguyth HO ban din: Malt, 70%


Gao, 30%
Hat Htip-lOng

Nguyen lieu tieu thu:


D6i v6i viec san xuat mot me 50h1 hem lanh s6 Wong cac nguyen lieu ban
dau phai can IA:
- Malt (chi& suat 76%): 600kg
- Gao (chi& suat 80%): 250kg
- Hap-lOng (7% a-xft): 4,6kg

Nghien 50kg malt va 250kg gao bang may nghien va trOn vai 12,5h1 mrac
trong n6i nau gao & nhiet dO 50. H6n hop do &rot dun den 75 C va loft gift 6 t()
trong10phui
tie-p tac &roc dun den 100C va de s6i trong 30 plait
Cling hic do nghien 550kg malt bang may nghien malt va ngam trong not
ngam/hem v6i 17,5h1 nu6c o nhiet dO 47 0 C. I-16n hop fir n6i nau gao hic nay
dtroc born den n6i ngam/hem va & do nhiet dO cua h6n hop nay dugc tang den
67 C. Nhiet dO do &rot Wu gift trong 60' va roi h6n hop ngam duqc dun den 76
gift tir 5 den 10 phut den khi c6 phan t.ing i 6t am
CvaHsu
T6ng hon hop ngam &roc chuyen den not loc, a do hem tinh khiet &roc
tach khOi cac hat do. Sau khi da tach hem lan dau ra, bay gib cac hat &roc rac
nuac 76 C den khi nong dO trong not nau hem khoang 10-11 P; tong chat chtla
trong not hem khoang 55 den 58h1; trong khi ra.c nu& clO ming cua n6i nau hem
bat &du tang va den khi not day thi nhiet do IA 100C
Bay gia Hap-lOng dtroc cho vao va tie'p tnc dun sOi khoang 90 plait den khi
ming dO la 12 den 12,5 P. Nhirng hat ba tir not loc &rot nit het vao xe day nh6
va sau do ban cho nOng dan lam thdc an gia suc
Khi viec nau hem hoan tat thi hem &rot bum tai thong khugy & do cuc von
&roc tach ra
212

Sau 30 plait luu lai tai thUng khuay hem dugc barn qua may lam lanh hem,
sau 1 gib nhiet dO ha dr 94 C xu6ng 10 C, hem lanh dugc th6i khi bang viec
th6i khi hem khoang 35m1 khi/lit hem, hem da dugc th6i khi dugc chuyen den
mot trong nliling tilting len men (cac thUng len men lien harp) ma no c6 the U
dugc 3 me, tirc la 150h1 tinh
Vdi me nail thd nhat den mot thUng len men nao day, toan 1)0 s6 men can
cho 3 me flu phai dugc phun vao, tilt la 1501it; men do dugc giu trong 2 tilling
chira men c6 do lam lanh va may khugy va c6 the dung den 10 Ian; m6i Ian men
dugc dung trong mot thong len men, thi s6 lacing tang gip 2 Ian. Ba men c6 the
dugc xir ly vdi 2% a-xit propionic va ban cho nOng dan lam thirc an cho lon
Bay gib hem trong thUng len men va nhiet do cho phep tang den khoang 16
C,dpsuitkhoang13e,5br&dontOgucirla.S4nyb
ket thdc giai doan len men, r6i thi no dugc luu lai trong 48 gib or 16 C de giam
b6t chat diacetyl den mix thap dudi 0,15ppm (mg moi kg), MI& khi bat dau
viec ha lanh trong thUng xu6ng -1 C, ngay khi viec ha lanh nay bat dau thi men
se ling xu6ng va ngay lap tut dugc lay ra va born den mot trong 2 tilling chtia
men, khi bia trong thiing len men da dat den -1 C thi no dugc luu lai or do tir 1
den 2 ngay; truecc khi bia dugc barn den may loc dat (kieselguhr), lop can cuoi
ding trong thUng, khoang lhl, dugc thao ra ngoai; viec loc bia xay ra trong may
loc &it va loc xi-phOng; bia dugc kiem mUi vi va dO CO 2 trudc khi dua ra de loc
Bia da loc dugc dua den hai thimg chira bia trong ma bia nay dugc nap day
vao hai thUng nay trong viec doi ap cUa CO2 0 1,2 bar; khi bia dal dugc kiem tra
ve CO2 min vi va 010 due, no dugc clan den day chuyen chi& chai
Day chuyen chi& chai bao gbm thiet bi de chi& chai
Thiel bi chief chai phu hop cho viec van chuyen loai chai 0,5 lit dung nhieu
Fan vdi cOng suit danh nghia la 6.000chai/gier
Nhimg chai mua ye dugc da bang tay va chuyen bang bang chuyen den
may rda chai to dOng, & do chai dugc rira sach bang mit va nu6c
Nhimg chai sach dugc kiem tra bang mat roi dugc chuyen den may
chief/dung nut, & do bia dugc dien day va dugc (long nut. Bay gib chai thanh
pham dugc chuyen den may dan nhan. Chai da dan nhan dugc thing bang tay
vao ket thua va chuyen kho chda thanh pham

Dieu kien ye sinh


Thiel bi bia dugc lam ve sinh nher tram CIP sir dung nude dugc thu h6i lai or
lira sach va sau do trong bang nude sach
Ian rira dau va mit an da va a mit

Thik bi phu try:


Nude chat lacing tot co dugc to nguon cung cap dm thanh ph6 va throng
213

Ong chinh dan toi nha may bia va he th6ng 'Ong trong nha may se do nha may
tu cung cap
Met thing nu& nong duoc cung cap dung de thu hoi nu& n6ng tin may
lam lanh hem
Xuang lam lanh boa gem hai may nen NH3 ma no trung chuyen qua met
may chuyen dei nhiet, san xuat nuoc gly-col to -4C den -5C de sau do dung
cho viec lam lanh hem, viec lam lanh thUng china men, lam lanh thUng len men
Hai ntrOc duoc tao ra to nei hoi va cung cap cho nha nal bia, day chuyen
chief chai va tram ve sinh CIP
Khf nen duoc sinh ra nhO met may nen kW va duet dung cho viec thei khi
nen, viec lam can cac thOng len men va cho van tu Ong
Thik bi thu h6i CO2 c6 dtroc cung cap va thiet bi do c6 the thu hoi duck 60
tan CO2/nam, trong do 20 den 30 tan se duoc dung cho nha may bia, phan con
lai c6 duoc ban ra ngoai cho nhung muc dich khac nhau, till du: han hoi va viec
carbonate hoa cac loai nuac giai khat
Nguon dien c6 duec tit cac don vi cap dien 3 x 380V + 0 + da.t, va nha may
bia se dugc trang bi met bang phan ph6i dien chinh c6 cau dao, cau chi cling
nhu cac bang nhanh van hanh cho ding be phan
Viec tu deng hoa dua tr'en co so van hanh bang tay nha nau bia va the bier'
bia con thOng nail, may lam lanh hem va thing len men dux diet' khien to
deng ve nhiet de
XuOng lanh, xtrOng hoi, may nen Ichi va xtrang thu hoi klif CO 2 hoan town to
Ong
DOi voi day chuyen chiet chai rnoi may dtroc to dOng cho viec dieu khidn
nhidt va ngang may
Thiel bi cho phang thi nghiem:
Cac thi6t bi co ban nhat dugc cung cap nhu: Dong h6 do nOng dO CO 2 do
dO mu, may do dO deo, nhidt 1(6, may do dO pH, do thay tinh cac loai va thi6t bi
thir dO con

914

Phu lyc 2

THONG SO KV THUA T CUA BIA

- Ming do 'P

12,0 +/-0,2

- DO thut Fdn men, %

67 +/-3

- Mau sic, EBC

7 +/-1

- pH

4,2 +/-2

- DO clang

21 +/-3

- DO ma cuoi ding,

EBC /07

- VDK, ppm

0,15

- CO2 ,

w/w 0,50 +/-0,03

- DO con

4,0 +/-02

215

Phy lyc 3

BANG Kt MAY MOC THIET BI

1.0. He th6ng van chuy6n malt


1.1. May nghi6n malt
1.2. Thong china hat malt G5u tai va
bang chuyen tai
1.3. He th6ng tach bui va lam sach
1.4 Bang dieu khien
1.5. May xay gao va van chuye'n

May nghien malt 4 truc can, a -1g suat 600800kg/gid


Thiing china hat, 800kg, lam b5ng that) mem.
Gau tai, 1.000kg/gid, thep mem
May lam sach sa bQ malt, may thOng gio va xyclOn, thep mem
Vdi cac nut b5m de khdri Ong va ngUng may,
thep son.
Ngudi mua cung cap

2.0. Nha nau bia:


2.1. N6i ngam hat/hem

Dung tich ca v 79h1, be bAng thep khOng gi co


ao nung nong, not hai hem ben trong 3,2m 2 va
may khugy.
Wang kinh be: 2.500mm.

2.2. Noi phu

2.3. ThOng loc


2.4. ThOng khuay
2.5. Thong dung dich nau
2.6. Bcrm, cac 6ng va d5u n6i
2.7. He thong dieu khien

216

Dung tich ca va 24 hl, be bang thep khOng gi c6


cach nhiet vdi ao nung nong va may khuay lam
b5ng thep khOng gi. Duang kinh be: 1.400mm.
Dung tich ca v 67h1, thep khOng gi &rang kinh
thong 2m
Dung tich ca vi574h1, be b5ng thep khOng gi
ThOng nudc nong 100h1, nhiet cIO 80 C, b5ng
thep khOng gi co ao nung nong.
Cho viec d5n sp bia va nudc, barn Ii tam, may
trOn nudc, cac loai van...
Bang dieu khien cac nut b5m de khdri
dOngingUng Ong ca, sa do chi dan truc quan,
thep khOng gi.

3.0. Thiel bi van chuyen hem:


3.1. May lam lanh hem

3.2. Thoi khi hem

May lam lanh pliang 50h1/gier, thep khOng gi.


May th6i khi hem 30011t/gia bhng thep khOng gi.

4.0. Tram ye sinh may tai cho (CIP):


4.1. Tram CIP nude n6ng

Be 300 lit vai barn lien hap cho hem va CIP,


bAng thep khOng gi.

4.2. Tram CIP not lanh

Cac be 2x500 lit + 800 lit bAng thep khOng gi,


barn ly tam, bang diet.' khien cho cac chuang
trinh CIP.

5.0. Cac thimg len men va thimg


5.1. Cac thiing len men va thOng 9 thimg bang thep khOng gi vdi cac ao lam lanh va
chtla hinh tru - con cach nhiet, cot the') lien hop cho viec dieu khie'n ap
suat, canh tren voi van chan khOng, van an toan,
6ng CO2/CIP, bc) phun hinh cau. ap suat thiet kg 2
bar. Dung tich ea v6: 175h1.

5.2. He thOng kie'm tra nhiet d0
He thong kik tra nhiet to clang dat trong hap thep
son.

6.0. Cac thimg club men:


6.1. Cac thOng chila men

6.2. Barn men

Hai thUng b5ng thep khOng gi c6 ao lam lanh va


may khuay bao gam bo phan kik tra nhiet. Dung
tich tinh mat thong la 300 lit.
Bam pit tong quay, bhng thep khOng gi cong suat
22h1/gio.

7.0. XurOng loc:


7.1. Born loc

Barn ly tam. 50h1/gio, 3.000 yang/phut bar, 2,2kw.

7.2. May loc dat

May loc b5ng the') khOng gi 30h1/gia vdi cac tam


phang va khung lohng thep khOng loai 75 lit va born
lieu Itiang.

Kieselguhr

217

7.3. May loc xi-ph6ng

May loc xi - phOng b5ng thep khOng gi, 30-50 hl/gid,


ap sugt lam vigcldn Mgt 8,5bar.

8.0. Cac thong chtia bia trong:

8.1. Cac thOng chUa bia trong hinh try Hai thOng bAng thep khOng gi, co ao lam lanh va
cach nhiet, cac chi tigt khac nhu 5.1, dung tich ca
- con
v: 175h1.
8.2. He th6ng dieu khign nhiet dO

He thong dieu khign nhiet ke to Ong trong hop


thep son.

9.0. Day chuyen chiel chai:


9.1. Bang tai trong luc
9.2. Ban than ket bia
9.3. Cac b5ng chuygn chai
9.4. May rira chai

Cho viec van chuygn thiing cac-tong va thong g6


thua chai d5y hoac vO chai. Dai:16m.
Cho viec thao chai bia khai ket b5ng tay.
chuygn chai
Bang don, bang kep ,va bang 3
r6ng va chai thanh ph5m gitla cac may khac nhau.
B5ng thep mem, son c6 cach nhiet va phu bgng
thep khOng gi. COng sual danh nghia:6.000
chai/gid.

9.5. May chigt chai, may clang nut May nap bia va dong nut lien kW vdi tong sugt:
6.000 chai x 0,5 lit mot gid. 24 van nap voi viec rut
chai
than khOng sobO va 6 d5u clang nut.
Gay trot ludi don, kgt eau so cap b5ng thep khOng gi.
9.6. May thanh trong
Dua tren ca cau b5ng chuyen 23 dai b5ng thep khOng
gi, dai 10,6m. COng sugt danh nghia: 6.000chai/gid.
9.7. May dan nhan
9.8. Ban clang ket
9.9. Kim tra
9.10. BOi ton

9.11. He th6ng dieu khign

9.1.2. Dieu khign san xugt

218

De' dan nh5n to dOng.


Cho viec dong chai b5ng tay vao ket thua, 4 dai,
dai 6m.
Kim tra chai sach b5ng mat.
He thong b6i tran bang chuyen dai bao gam nhimg
khay b5ng thep khOng gi, de bei tran bang dung
dich xa phOng.
khai dOngingimg chay
Cac tong tat dan hang
may chinh khi chai dang dan hang tren b5ng
chuyen.
May dgm chai ca khi de chai (-Ong va chai thanh
pharn.

10.0. XuOng phu trq:


10.1. Mang lam lanh

)(Yang lam lanh b5ng glycol c6ng suat 154.000


kcal/gior, bao gom may nen khi may lam lanh ki6u
6ng va ki6u bugng va may ngung ki6u bac hal, cac
barn glycol va thong glycol.

10.2. Xuang khi nen

MOt may nen khi co may say khOng khi, tong suat:
0,7m3/phOt.

10.3. Mang thu h6i 002

FBU 60, 60kg/gid bao g6m thiing china 6 tan va


tram nap hinh try.

10.4. >Wang n6i hal

N6i hal cao ap vdi tong suat 2.000kg hcri/gid Tom


thUng nudc nap, thiing china d5u.
30 binh, m6i binh vai 46,7 lit, cong suat gas 7m 3 duac nap d5y vai khi argon.

10.5. Binh china CO 2

11.0. Cac thiel bi ding ng4, co khi va


11.1. Cac 6ng, barn, d5u ngi

11.2. Bang dieu khi6n chinh va cap

Cac 6ng, barn d5u n6i, 6ng mem, cac phu kien va
chat cach nhiet de ghep n6i cac thi6t bi cong nghe
va xuang phu trg. 6ng chuy6n bia b5ng thep kh6ng
gi, cac ong phu trg b5ng thep mem. Trir 6ng nudc
la do dia phuang to cung cap.
MO bang phan ph6i dien chinh va mot bO hoan
chinh va cap va cac khay cap de n6i cac thi6t bi.

12.0. Thiet bi phong thi nghi01:


Kink x4 k6 cam tay - may do CO2 - may thir nghiem kh6ng khi - phich 25
lit carberg - may do d0 pH - can phan tich - can c6 khi - may so sanh Livibond
bi de xac Binh dO ruou (thie't bi tinh loc cho ca nu6c fan ruou, bon nuoc
nhiet tinh loc) - may do clO sac-ca-r6 - Cdc nhiet ke - do thI nghiem bang thily
tinh - hod chat cac loai.
-

13.0. Phu tong thay th6:


Cac phu tang thay th6 duoc kien nghi theo nhu phu luc 4.

14.0. Vi0 giam sat lap may/chay thir va dao tao:


N40t chuyen gia giam sat vdi th6i gian 8 titan - se giam sat viec lap dat va
chay thir nha may va mot chuyen gia nau bia voi th6i gian 8 tudn cho viec chay
thu' va dao tao nhan su cf.ta Ngtr6i Mua. Cac chi phi cho ye may bay di vo cua
chuyen gia va cong cu chuyen diing cua chuyen gia gidm sat da g6m vao tri gia
hgp dong.
219

Phy lyc 4
PHU TUNG THAY THE

M64 s6 tien la 3% cUa gia tri FOB dd &roc danh cho phu thug thay the.
Pham vi thuc to cua phu ding thay thE se duoc thoa thuan girra NguOi mua va
Ngubi Ban tren co so ban chao gia cho cac phu tang thay the. Ban nay se duoc
girl cho Nguoi Mua kh6ng cham qua 6 thang ke tit khi hop along vac) hieu lkrc.

220

Phy lyc 5
NGUYEN LIEU CHO 3 THANG DAU
DO NGU'OI BAN CUNG CAP

1. Malt (chi6t sugt 76%)

102 tan

2. Thip-lOng (7% alfa)

1.125kg

3. Dal loc (kieselguhr)

1.792kg

4. Gigy loc, 60x120cm

200 t6

5. Tui loc

20 chi6c

6. Cdc phu gia

140 kg

7. Men cay

3 chi6c

8. Hod chgt cdc loci

2,4 tan

9. HO clan

0,5 tan

Tgt ca cdc nguyen li6u can thiet khdc nhu gdo hoc du6ng, chai, nit, nhdn,
thUng cat tong, thUng g6 thug... do Ngu6i Mua ter cung cap.

221

Phu lyc 6
NHAN SU. CUA NGUtii BAN VA
CUA NGUOI MUA

Nguoi Ban se cif mot chuyen gia giam sat trong 8 tun de giam sat viec lap
may, va chay thin nha may va mot chuyen gia ndu bia thed gian 2 thang de dao
tao nhan su cua Nguoi Mua.
Nguoi Mua se to lap dat may.

222

Phy lyc 7
TAI LIEU KY THU8T

NguOi Ban se cung cap cho Ngu'&i Mua tai lieu kSi thuat sau:
1. Trong \Tong 2 thang tit khi hop (long vao hi"Cu lu'c:
- So' do tang the cling truOng, tY le: 1:200
- Ban ve, tY le: 1:100, bao gom cac vi tri caa mo de lap may.
- Ban ve m6ng may: 1:50
- M6 to chung ve nha xtrOng, till du: Yeu cau ve hoan thien va nguyen vat
lieu can thiet. Tren co se( do Nguari Mua c6 the thiet ke va bat ddu viec xay dung
nha xu&ng.
2. Trong yang 5 thang tit khi hop (long vao hieu
- So (16 ding nghe
-

do dien

3. Hai thang sau moi chuyen hang:


- Tai lieu hiking dan bao dung may
- Tai lieu haang dan van hanh nha may
- Tai lieu huong clan phu tang thay the
- Cac ban ve ye lap dat.
- Tai lieu chi dan ve lap rap.

223

Phu lyc 8
LICH TR1NH THVC HIEN VIEC GIAO HANG,
LAP RAP, CHAY THU VA VAN HANH NHA MAY

May m6c va thiet bi se duot giao thanh 2 chuyen:


- Chuye'n 1: 6 thang sau khi hop dung vao hieu luc.
- Chuyen 2: 8 thang sau khi hop d6ng vac. hieu 14c.
Viec chay thin se ti'en hanh sau khi lap rap xong may m6c va duqc danh gia
la da hoan chinh, kh6ng qua 14 thang tir khi hop dong \Tao hieu luc.
Viec san xuat se bat dau mot thang sau d6 NIA hoan chinh viec san xua't
thang tiep sau.

224

Phu lyc 9
MAU TH1U'BAO LANH DO NGAN HANG
NGU'en BAN PHAT HANH

Mau: Thu bao lanh cho lan thanh toan thin nhgt (tien dat coc) va viec giao
hang.
Cho: Nguii Mua...
Ve viec: Thu bao lanh khOng the hug, ngang cua chung tOi s6
Ngu6i thit htong: Ngu6i Mua...
Can cu vao h6p dong s6.....
day goi la "Hop d6ng" dugc ky giita
TechnOimprt Ha Ni (dtr6i day goi la nguoi thu hung) va COng ty Danbrew
Ltd (duoi day goi la Nguoi Ban) ngay.... ve viec cung cap thie't bi, nguyen lieu,
dich vu ky thuat. Tdng s6 tien DEM... (bang chit...) theo yeu cau cua Nguai
Ban chung toi m6 sau day mot thu bat) lanh khong huY ngang s6.... cho ngtr6i
thu hung &rot hdong.
Sau day cluing tOi bao lanh cho cac Ong khOng the huY ngang xem nhu la
khoan no cua chinh chung tOi cho mot s6 tien... DEM
dam bao an toan cho
viec hoan tra, toan b0 hay mot phan cua s6 tien ma cac Ong dat coc trong truOng
hop khach hang chting tOi khOng thuc hien ducic trach nhiem cua ho diii vdi cac
Ong.

Trach nhiem cua chimg tOi theo nhu bao lanh nay se duqc han dinh den
DEM... (bang chit...)
Thu bao lanh c6 hieu luc ngay khi chting tOi nhan duot viec thanh toan....
DEM cho viec sir dung vO dieu kien cua Cong ty Danbrew Ltd theo tham chieu
d6i v6i bao lanh s6...
Twang hop COng ty Danbrew Ltd dua ra bat ky nhimg viec tir choi tra tien
thuOc bao lanh nay thi viec thanh toan phai chi thoa thuan giira hai ben hoac
phan guy& cua Toa an.

225

Chung tOi duoc thOng bdo la Ngan hang Ngoai thuong Viet Nam se ma mot
thu tin dung chting tir khOng huY ngang cho tong s6 tien DEM cho nguoi
thu huOng la COng ty Danbrew Ltd, thanh town tai DEN DANSKE BANK A/S,
COPENHAGEN, DENMARK. Thu tin dung chting tix khOng hay ngang nay la
85% T6ng tri gid dm hop dung s6 la DEM.
Bao lanh nay duqc to &Ong giarn can cu vao viec xual trinh nhang chting tir
giao hang den Ngan hang DEN DANSKE BANK A/S thu6c va phit hop Arai thu
tin dung chang tit da ke tren bang 15% cUa tri gid hod don cua nhiing chirng tit
nhu vay ma khOng c bat ky six xac nhan nao tir phia Technoimport HANOI.
Thu bao lanh het hieu Ittc 60 ngay sau chuyen giao hang cu6i ding thu0c
hop (long. Tuy vay, nen khOng c vuong mac gI tru6c do, thi thu bao lanh het
theri hieu vao ngay.... hoac ngay sau khi giam den het den s6 0 tit) , theo th6i han
nao xay den truck. Neu co khien nai thi chting tOi phai nhan duqc mu0n nhat la
vao ngay het tiled hieu caa thu bao lanh. Neu khOng nhan khien nai nao thi trdch
nhiem phdp ly cua chting toi thuOc thu bao lanh nay se het.
Khi het thei hieu caa thu bao lanh nay de nghi chuyen tra thu nay cho
chting tOi.

226

Phu lyc 10
DANH MUC CUNG CAP CU' A NGUOI MUA

1. Ngtrai Mua se xay dktng nha xtrang... va lap dat toan bQ trang bi do
Ngutri Ban cung cap theo chi dan lap dat cua Ngtrai Bdn.
2. Tat ca do nghe thOng thutmg, thi& bi han va cac pha kien lien quan, bao
g6m dan gido, can cau... cho viec lap dat do Ngutri Mua cung cap. Ngtr6i Bdn
sechi ti& hod nhang yeu cau cho Ngtrai Mua.
3. Ngtrad Mua se dam bao cung cap nguOn dien 3x380 V-O-E, 225KVA
den cac bang dien cua Ngutri Bdn. Ngtrai Mua se cung cap toan b0 dung 6ng
mr6c lanh ben trong nha may va dam bao cung cap mr6c chat luong tot tit nguon
nu& dia phttang mile dap nhat 1a 30m 3/gia.
4. Ngtrai Mua se h6 tro giilp d6 can thi& cho chuyen gia Ngtroi Bdn trong
theri gian ho 6 cOng tru6ng.

227

Phu lyc 11
BANG CHi SO TIEU THU NGUYEN LIEU
TREN 1HL BIA

228

1. Malt (chie't sugt 76%)

12,9kg

2. Gao (chi& sugt 76%)

5,7kg

3. Htip - lOng (7% alfa)

150 gram

4. Hod chgt

100 gram

5. Loc dgt (Kieselguhr)

250 gram

6. Gigy loc

0,01m2

7. Cdc phu gia

13gram

8. Nuac

15h1

9. Dien nang

11 kw/gier

10. Gas, dau

7 lit

11. CO2

1kg

Phy lyc 12

CONG VItC GIAM SAT VA DAO TAO


NHAN SI; CUA NGIJOI MUA

1. Ngued Ban chili trach nhiem cir 2 ky su giOi nghe, c6 kinh nghiem va stk
khoe sang Viet Nam (nhu trong hop MI-1g theo phan chuyen gia) vcli muc dich
giam sat viec lap dat, chay thir va nghiem thu nha may ding nhu clao tao nhan
su cua Ngued Mua trong thed gian lap dat, chay thir va nghiem thu nha may.
2. Ngued Ban se chi dinh mot truerng doan chuyen gia nhu la chu nhiem
cOng trinh, Ong nay se dieu hanh chung va lien N thueing xuyen vdi chu nhiem
cOng trinh cita Ngued Mua de ban bac va giai guy& moi viec lien quan den viec
lap dat, chay thir va nghiem thu nha may.
3. Cham that 20 ngay, truck kin chuyen gia cua cOng trinh vao Viet Nam,
Ngubi Ban se dien cho Ngued Mua chi tiet de xin VISA cho ho de Ngueti Mua
thu xep.
4. Ngued Ban se cung cap cho chuyen gia cUa ho quart do bao ho va chi phi
d6i vdi ho khi 6m dau, tai nan va chet trong thai gian ho Viet Nam.
5. Ngithi Ban hoan toan chit' trach nhiem d6i
a) DO chinh xac, tinh hoan thien va thing clan dm cac thOng tin, huong clan,
thOng bao, to van va/hoac cac tai lieu Icy thuat do cac chuyen gia hiking cran va
dua ra.
b) Nhilng hu hong trut tiep va chi phi do cac chuyen gia cua ho gay ra do
tai lieu Ic y- thuat khOng chinh xac va khOng dung.
6. Chi phi cho viec giam sat va cOng viec dao tao ghi trong dieu 7 bao
a) Ve may bay tir Dan Mach den Viet Nam va ngtroc lai cho chuyen gia
Ngueri Ban.
b) Chi phi an u6ng cho chuyen gia trong thOi gian ho er Viet Nam.
c) Tien luong va cac khoan phu cap khac.

229

7. Twang hop 6m dau hoac tai nan trong tiled gian chuyen gia a Viet Nam,
Nguoi Mua se cham soc thu6c men cho nhung chuyen gia bi cam cum hoac bi
thucrng tar cac chi phi trong rang, thay kinh mat cling nhu cap thu6c b6. Trong
tru'Ong hop khOng con kha nang lam viec qua 14 ngay Nguoi Mua se" lap nit
thong boo cho Nguoi Ban ve viec d6 bang telex va tie!) tuc cham s6c thu6c men
voi chi phi do Nguoi Ban chiu Ira Nguoi Ban se thay vao do mot chuyen gia c6
dU trinh d0 de cong viec lien quan se khOng bi anh huang do chuyen gia 6m
dau.
Trong throng hop bi 061 xay ra v6i bat cu mot chuyen gia nao, Nguoi Mua

se thu xep moi thU tuc de Nguoi Ban c6 the cho h6i huang xac chet. Tat ca moi
chi phi cho viec hoi huang tren va viec thay chuyen gia Nguoi Ban chiu chi phi.
8. Nguoi Mua se thu xep giSy phep, VISA... cho chuyen gia de ho vac, Viet
Nam, di lai, luu tru va roi Viet Nam.
9. Trong theri gian or Viet Nam, cac chuyen gia phai tuan thu ve quy dinh an
toan lao &Ong va tuan theo quy tic, lot le , quy dinh va tap guar' khi ma NguOi
Ban ph6 Wen cho ho hoac ho duac bier tit nhang nguon khac.
10. Bat kST mot chuyen gia nao khOng c6 nang ittc hoac to cach dao arc
khOng tot, Nguoi Mua se c6 quyen de nghi Nguoi Ban thay the chuyen gia khac
co chal lacing pha hop. Moi chi phi cho viec h6i huang va thay the" do Nguoi
Ban chiu.
11. Trong giai doan thuc hien viec lap may va chay thir nha may, Nguoi
Mua se cung cap phuang tien di lai gifra san bay va cOng twang va glib nai an,
o cua chuyen gia den cOng throng cho nhan skr cUa Nguoi Ban. Nguoi Mua se"
b6 tri mien phi phong lam viec thich hop tai cong truong moi chuyen gia c6 mot
phOng c6 trang bi dieu hoa nhiet do , bail-1g tam va dich vu giat la.
12. Viec dao tao can bq cho Nguoi Mua trong thoi gian chuyen gia cUa
Nguoi Ban a tai nha may, Ong to se chi clan va truyen kien thtic cho can 130
Nguoi Mua ye quy trinh san xuat va quy trinh phan tich bia.

230

Part 10

EXAMPLES OF CONTRACT

1. CONTRACT FOR RICE

1.1. The English version of the contract

CONTRACT FOR THE PURCHASE AND SALE OF RICE


No. 018/VNF/19...
Between

GALLUCK LIMTED
Flat A. 3/F Causeway Tower,
16 - 22 Causeway Road
Causeway Bay HONGKONG
Tel: 8153084, 8955992; Fax: 5764980

Telex: 61355 WSGTC HK (hereinafter called the Buyer)


And

HANOI FOOD EXPORT IMPORT COMPANY


40 Hai Ba Trung Street, Hanoi VIETNAM
Tel: 256771, Telex: 411526 VNF VT

Cable Address: VINAFOOD HANOI (hereinafter called the Seller)


It has been mutually agreed to the sale and purchase of rice on the terms and
conditions as follows:
1. Commodity: Vietnamese White Rice
2. Specification:
- Brokens: 35% max
231


- Moisture: 14,5%
- Foreign matter: 0,4%
- Crop: 20 ... - 20...

3. Quantity:

100,000 MT moie or less 5% at Seller's option

4. Price:

2 USD xxx per metric ton, net for June September 2005
Shipments, (xxx USD/MT)

a. Dunnage, bamboomat for Ship owner's/Buyer's account


b. Shore tally to be Seller's account
c. Vessel's tally to b at Buyer's/Ship owner's account
d. All export duties and taxes levied in the country of destination and
outside Vietnam shall be for Buy'er's account

5. Time or shipment: 20 - 25 days after L/C opening date


6. Packing: Rice to be packed in single new jute bags of 50 kgs net each, about
50.6 kgs gross each, hand-sewn at mouth with jute twine thread suitable for
rough handling and sea transportation. The Seller will supply 0.2% of new jute
bags, free of charge, out of quantity of bags shipped
7. Insurance: To be arranged by the Buyer
8. Inspection and Fumigation:
a. The certificate of quality, weight and packing issued by Vinacontrol
at loading port to be final and for Seller's account
b. Fumigation to be effected on board the vessel after completion of
loading with expenses to be at Seller's account; but expenses for
crew on shore during the fumigation period including
transportation, accommodation and meals at hotel for Ship owner's
account
c. Time for fumigation not to count as laytime

9. Loading terms:
a. Buyer shall advise vessel's ETA and its particulars 15 days and
Captain shall inform vessel's ETA, quantity to be loaded and other
necessary information 72/48/24 hours before the vessel's arrival at
loading port
b. Laytime to commence at 1.PM if N.O.R. given before noon and at O.
AM next working day if N.O.R given in the afternoon during office
232

hours; in case of vessel waiting for berth due to congestion, time


commences to count 72 hours after N.O.R. submitted
c. Loading rate: 800 MT per weather working day of 24 consecutive
hours, Sundays, holidays excepted even if used, based on the use of at
least four to five normal working hatches/holds and all
cranes/derricks and winches available in good order, if less then
prorata
d. Seller shall arrange one safe berth of one safe port for the vessel of
10,000 MT - 20,000 MT capacity to load the cargo
e. Time is between 17.00 PM on Saturday and the day preceding a holiday
until 8 AM next working day not to count as lay time even if used
f. Before submitting N.O.R., the vessel must be in free practique.
Immediately after vessel at berth, captain shall request Vinacontrol to
inspect the hatches/holds and issue a certificate certifying that the
hatches/holds are clean, dry, free from harmful factions and suitable
for focd loading with such expenses to be at ship owner's account and
time not to count as lay time
g. Demurrage/Dispatch if any, to be as per C/P rate; but maximum of
4,000/2,000 USD per day or prorata and to be settled directly between
Seller and Buyer within 90 days after B/L date
h. For the purpose of obtaining Shipping Documents such as:
- Commercial Invoices
- Certificate of quality, weight and packing
- Certificate of origin
The responsible party shall Cable/Telex/Fax advising shipment particulars
within 24 hours after completion of loading.
In order for the Buyer to obtain insurance, a Bill of Lading shall be issued
immediately after completion of loading and before fumigation and provided
immediately to the Buyer
a. In case, cargo is ready for shipment as scheduled in this contract, but
Buyer fails to nominate the vessel to load, then all risk, damage, and
associated expenses for cargo to be borne by the Buyer based on the
Seller's actual claim. In the event that no cargo is available to be
loaded on nominated vessel at loading port, then dead freight to be
paid by Seller bases on Buyer's actual claim and the Buyer will
submit the following documents to Vietcombank for receiving P.B:
233

(time counted: 20 - 25 days from L/C opening date):


- N.O.R. with Seller's signature
- Report signed by the Captain and the Seller confirming that
the vessel has already arrived at the port to receive the cargo
but the Seller has no cargo to load
- Vietcombank's confirmation
10. Payment:
a. After signing the contract, the Buyer or the Buyer's nominee (SHYE
LIAN (HK) MANUFACTURING CO. LTD or other nominee) shall
telex asking the Seller to open P.B of 1% of total L/C amount at
Vietcombank Hanoi within two days thereof. The Seller shall open
P.B. and inform the Buyer; then, four days after receiving
Vietcombank's confirmation, the Buyer shall open a telegraphic,
irrevocable and confirmed L/C which is in conformity with this
contract by an international first class bank at sight with T.T.R.
acceptable for 40,000 MT in favour of Vinafood Hanoi through the
Bank of Foreign Trade of Vietnam
For 60,000 MT the Buyer or Buyer's nominee shall open a telegraphic,
irrevocable and transferable at sight L/C which is in conformity with this
contract with T.T.R. acceptable. In this case, the Seller requests the
confirmation of L/C, the L/C shall be confirmed for Seller's account
In the event that the Buyer fails to open L/C four days after receiving
confirmation from Vietcombank then the Seller shall collect P.B from the
Vietcombank and then the contract is automatically canceled
The Seller will collect the P.B. against presentation of shipping documents at
Vietcombank
b. Presentation of the following documents to the Bank of Foreign
Trade of Vietnam, payable within 3 - 5 banking days after receipt of
the telex from Vietcombank certifying that documents have been
checked in conformity with the L/C terms:
- Full set of "Clean on board" B/L - in three (3) originals
marked "Freight to collect"
- Commercial invoice in three (3) folds
- Certificates of quality, weight and packing issued by
Vinacontrol to be final at loading port in six (6) folds

234

- Certificate of origin issued by Vietnam Chamber of


Commerce in six (6) folds
- Certificate of fumigation issued by the Competent authority
Vietnam in six (6) folds
- Phytosanitary certificate issued by the Competent authority of
Vietnam in six (6) folds
- Cable/ Telex/Fax advising shipment Particulars within 24
hours after completion of loading

11. Force Majeure:


The Force Majeure (exemption) clause of the International Chamber of
Commerce (ICC publication No. 421) is hereby incorporated in this contract

12. Arbitration:
Any discrepancies and/or disputes arising out or in connection with this
contract not settled amicably shall be referred to Arbitration in accordance with
the Rules and Practices of the International Chamber of Commerce in Paris or
such other places agreed by both sides

13. Other terms:


Any amendment of the terms and conditions of this contract must be agreed by
both sides in writing
This contract is made in 06 originals in English Language, three for each party
This contract is subject to the Buyer's final confirmation by telex (June 18 th,
20... latest)
Made in Hanoi, on 9 th June, 20...

FOR THE SELLER


Director

(Signed/sealed)

Nguyen Duc

FOR THE BUYER


Managing Director

(Signed)
Eddy S.Y.Chan

235

1.2. The Vietnamese version of the contract

HOP HONG MUA VA BAN GAO


S6 018/VNF-GL20
Gala: GALLUCK LIMITED
Phong A. 3/F, Causeway Tower,
16-22 Dung Causeway Vinh Causeway HONGKONG
Tel: 8153084, 8955992; Fax: 5764980
Telex: 61355 WSGTC HK (Debi day dugc goi la Ngugi mua)
Va:

C6ng ty Xuat Nhap khau Luang thuc Ha Nei


40, dugng Hai Ba Trung - Ha Nei - Viet Nam
Tel: 2.56771, Telex: 411526 - VNF VT
Dia chi dien tin: VINAFOOD HANOI (Debi day dugc goi la Ngugi ban)

Hai ben cang dong Y ye hop (long mua va ban gao voi cac lieu kien nhu sau:
1. Hang 'loci: Gao trdng Viet Nam
2. Quy cacti ph 6117 chat:

Tam: 35% la tai da


Thus' phan: T6i da 14,5%
Tap chat: T6i da 0,4%
Gao vu mua 20... 20...
3. SO' lacing:

100.000 MT tren dui 5% theo su lua chon caa ngubi ban

4. Gici

xxx USD met MT (tinh)


giao hang thang 6

9 - 19 ...

a. Lot hang, cot tinh vao khoan cua cha tau/ngued mua
b. Chi phi kidm kien tren cau cang dugc tinh vao tai khoan caa ngtr6i ban
(Do ngugi ban chiu)
c. Chi phi kidm kien tren tau dugc tinh vao tai khoan caa ngtr6i mua/cha
tau
d. Tat ca cac khoan tht6 xuat khan b nu& xuat xd do ngu6i Ban chiu

236

e. Tdt ca cac khoan thug nhdp, thue khdc & nuesc den v.v... Nth & cac ntrac
ben ngoai Viet Nam se duroc tfah vao tai khoan cua nguii mua
5. Theri han giao hang: 20 - 25 ngay sau ngay m& L/C
6. Bao bi: Gao phai dugc dung trong bao day din mai trong lucing tinh mei bao 50
kg, khoang 50,6 kg ca bi, khau tay & mieng bao bang chi day xe doi thich hap cho
viec b6c vac va van tai dyeing bien; nguii ban se cung cap 0,2% bao day mai mien
phi ngoai tong s6 bao cluot xep len tau
7. Bdo hi : Nguii mua se phai chiu
8. Ki e'm tra vet xOng kit& hang hod:
a. Gidy chang nhdn.chat Wong, trong lugng va bao bi do Vinacontrol cap
cang xep hang c6 tinh chung thdm va chi phi do nguii Ban chiu
b. Viec x6ng khoi hang hod phai duqc thuc hien tren boong tau sau khi
hoan thanh viec b6c hang vii cac chi phi do nguii ban chiu. Nhung cac
khoan chi tieu cho doi thus' thit & tren bi trong tiled gian xOng khoi gem
ca cac chi phi ye an u6ng, cite & va di lai & khach san chit tau phai chiu
c. Thii gian x6ng khoi khOng tinh la thi gian xep hang
9. Ccic di'eu khodn ve xep hang:
a. Nguii mua se thOng bao ETA elm con tau va cac not dung chi tiet dm no
15 ngay (sau khi tau nh6 neo) \Ta thuyen truing se thOng bao ETA cita
tau, kh6i luong se ducrc xep len tau va ratting thong tin can thiet khac
72/48/24 gii nu& khi tau den cang xep hang
b. Thii gian xep hang bat dau tinh tir lh trua neu NOR duqc trao truck bu6i
trua va tit 8h sang cita ngay lam viec tiep theo neu nhu NOR &rot trao
vao budi chieu trong gib lam viec, trong truing hey tau dcri de tha neo vi
cang tdc nghen thi thbi gian xep hang ductc tinh sau 72 gii ke tir khi trao
NOR
c. T6c dO xep hang: 800 MT m6i ngay lam viec lien tuc 24h thbi tier cho
phep lam viec, chit nhdt, ngay nghi duqc trir ra thdm chi nett c6 sir dung,
tren ca sei co it nhdt 4 den 5 ham tau/ham hang lam viec binh thu'ong va
tat ca can cdu/can true NIA cuOn day tin san sang trong trang thdi tot, neu it
holt thi tinh theo ti le
d. Nguii ban se thu xep mot dia diem be neo an toan tai mot cang an toan
cho con tau c6 sac china tir 10.000 MT - 20.000 MT de boc hang
e. Khoang thbi gian tir 17h chieu thtl bay va ngay truck mot ngay nghi cho
den 8h sang elm ngay lam vied tiep theo khOng tinh la thin gian xep hang
thdm chi c6 sir dung
237

f. Tilt& khi trao NOR, con tau 'phai c6 giay phep qua cang, ngay sau khi
tau cap (b6 neo), thuyen throng se yeu cau Vinacontrol kiem tra cac ham
tau/ham hang va cap gig)/ chi:mg nhan cac Mm tau/ham hang sach kh6,
kh6ng c6 cac tac nhan gay hai va thich hop
ch6 luong thuc va nhiing
chi phi nhu vay se &tic tinh vao tai khoan cua chif tau va thari gian khOng
tinh la thai gian xep hang

g. Phat xep hang cham/thfrang xep hang nhanh neu c6, se theo nhu mac
quy dinh trong hqp (long thud tau chuyen; nhung t6i da la 4.000/2.000
USD mot ngay hoac tinh theo ty le va phai clitqc giai guy& (thanh toan)
truc tiep giaa ngit6i mua va ngued ban trong yang 90 ngay ke tir ngay ky
B/L
h. De c6 ditqc nhung chfing tir giao hang nhu:
-

Cat hod don thirong mai

Giay chdng nhan chat luong, trong luqng va bao bi

Giay chtIng nhan xuat xd

Ben c6 trach nhiem phai thong bao cac chi ti6t ve giao hang bang dien
tin/telex/Fax trong yang 24h sau khi hoan thanh giao hang
Van don se duqc cap ngay sau khi hoan thanh viec giao hang va tilt& khi x6ng
khoi va ditqc giao ngay cho ngutri mua de mua bao him

i. Trong truerng hop hang hod da son sang de xep len tau nhu da duot du
dinh trong hop MI-1g nay nhung ngittri mua khong chi dinh tau de b6c
hang thi tat ca rui ro, thiet hai, nhung chi phi c6 lien quan den hang hod
do ngubi mua chiu tren co s6 dOi boi thiterng thuc to cua ngutri ban;
nguqc lai, neu khong co hang de b6c len con tau da duqc chi dinh cang
b6c hang, thi cuqc kh6ng se do nguoi ban tra tren co s6 ban doi boi
thterng dux to cila ngfroi mua va ngutti mua se xuat trInh nhiing cluing tir
sau cho Vietcombank de nhan P.B (theri gian duot tinh tir 20-25 ngay ke
tit ngay mo L/C)
-

NOR c6 chit ky cifa ngued ban

Bien ban chtqc ky giCra thuyen truerng va ngir6i ban xac nhan rang con
tau ditqc chi dinh da den cang xep hang de nhan s6 hang trong hop
dong nhung nguiti ban khong c6 hang bCic len tau.

Xac nhan cua Vietcombank


10. Thanh Ivan:

a. Sau khi ky ket hop dong nay, ngutri mua hoac ngutri duqc ngiroi mua chi
dinh (SHYE LIAN (HK) MANUFACTURING CO. LTD hoac ngueri
238

dugc chi dinh khac) se telex de nghi ngtrgi ban ma P.B vgi 1% tong gia
tri LC tai Vietcombank HA Noi trong yang 2 ngay ngtrai ban se ma P.B
va th6ng bao cho ngtrai mua, sau do, 4 ngay sau khi than dugc xac nhan
cUa Vietcombank, ngtrai mua se lap tilt mei mot LC dugc xac nhan,
khOng hu57 ngang bang dien tin phi' hop vgi hgp dung nay tai ngan hang
qu6c te' hang nhat thanh toan ngay bang T.T.R c the chap nhan dugc dOi
vgi 40.000 MT cho Vinafood Hanoi hirC'ing qua ngan hang Ngoai thong
Viet Nam
Dgi vgi 60.000 MT nguai ban cling chap nhan rang ngtrai mua hoac ngtrai dugc
ngtrai mua chi dinh se ma mot thu tin dung thanh toan ngay c6 the chuyen nhuong
dugc kh6ng ht6'7 ngang bang dien bao phi' hop vgi hop dung nay c6 the chap nhan
vgi chuyen den bang dien. Trong twang hgp ngtrai ban yeu cau xac nhan L/C, L/C
se dugc xac nhan cho nguai ban hung
Trong twang hop bgn ngay ke tir ngay ngugi mua nhan dugc xac nhan cua
Vietcombank, nhung L/C kh6ng dugc ma thi ngtrai ban se thu hoi P.B tir
Vietcombank va sau do hqp dung nay to dOng dugc xod be.
Ngued ban se thu hoi P.B tren co sa xuat trinh cac chirng tir van tai cho
Vietcombank
b. Viec xuat trinh nhling chirng to sau day cho Ngan hang Ngoai thuong Viet
Nam, dugc thanh toan trong vOng 3-5 ngay lAm viec cua ngan hang sau
khi nhan dugc bCrc telex da dugc kiem tra tir Vietcombank chimg to rang
nhiing chirng tir nay da duoc kiem tra va hqp vgi cac dieu khoan cua
L/C
-

Mot 'DO day dit van don sach da x'ep hang len tau ba ban g6c c6 ghi
"Ctrgc phi tra sau"

Hod don thuong mai lam thanh ba ban


Giay chirng nhan chat luring, trong luring va bao bi do Vinacontrol cap
o cang b6c hang se c6 gia tri phaplSrcu6i ding cluqc lam thAnh 6 ban
Giay chi:mg nhan xuat xti do Ph6ng Thuong mai Viet Nam cap dugc
lam thanh 6 ban

Gig)/ chirng nhan hang hod dugc x6ng kh6i do nguai (co quan Viet
Nam) c6 tham quyen cap, dugc lam thanh 6 ban
Giay chirng nhan ye sinh do co quan Viet Nam c6 tham quyen cap
duqc lam thanh 6 ban

Nhling chi ti6t th6ng bao gin hang bang dien tin/Telex/Fax trong \Tong
24h sau khi hohn thanh viec b6c hang
239

11. Bat khd khang


Dieu khoan bit kha khang cua Phong Thuong mai qu6c t6 (ICC an phdm s6
421) theo hop thing nay &roc kk hop thanh 1 be phdn trong hop dOng nay
12. Trong tai:
Bat cu sty khac biet va/hoac tranh chdp nao phat sinh ttr va trong quan he vii
hop Ming nay ma khOng dugc giai quy& bang thuong Wong se phai dui ra xix theo
ludt va tap quail trong tai caa Phong Thuang mai qu6c t6 & Paris hoac nhiing nai
khac do hai ben thoa thuan

13. Cac dieu khodn khac:


Bat cu su sira dei dieu khoan va diet' kien nao dm hap dong nay phai duoc hai

ben thoa thudn bang van ban


Hop dong nay dugc lam thanh 6 ban g6c tieng Anh, 3 ban cho m6i ben
Hop dong nay phu thuOc vao xac nhan cu6i ding cira nguai mua bang telex
(18 thing 6 nam 20 ... la muOn nhdt)
Diroc lam & Ha NO, ngay 9 thing 6 nam 20 ...

Ngubi ban
Giam d6c
(dd 4/dong

Nguyen Dirc

240

Nguiri mua
Giam doc dieu hanh
(dc114)

Eddy S.Y. Chan

2. CONTRACT FOR LUBRICANTS

2.1. The English version of the contract

CONTRACT No 01292
Singapore December 29th, 20...

This contract is made between Vietnam National Petroleum Export Import


Corporation (PETROLIMEX) 1, Kham Thien, Hanoi (Socialist Republic of
Vietnam) Cable address: "Petrolimex Hanoi" (hereinafter reference to as
BUYER) and AGIP PETROLI S. p. A. - Singapore Branch (reference to as
SELLER) whereby it is agreed as follows:

1. Object of the Contract


SELLER undertakes to deliver to BUYER in Vietnam on CFR basis the
following lubricants:

Item

Lubricants

Quantity

01

GR MU3

858 DRUMS x 180 Kg


(154.44 MT)

02

CR MU3

858 DRUMS x 180 Kg


(154.44 MT)

CFR HCM

CFR HP

850 USD/MT

870USD/MT

The above prices are expressed in US dollars per metric ton net CFR port of
Vietnam, deliveries as per Art. 6 below, and remain fixed during the term of
this contract and provided that an Irrevocable L/C in respect thereof has been
notified to Seller by Singapore Indosuez Bank prior to 31/10/20...

2. Specification of Lubricants
The specification of lubricants in drums supplied under this Contract shall
conform to the specifications set out in Appendix 1 attached to hereto, which is
an integral part of this Contract. Origin of products will be Italy, Holland or
Singapore at SELLER'S option

241

3. Packaging
Packaged products will be delivered in AGIP standard new steel drums, of
about 1.2/1.0 mm thickness. The drums will be filled at 180 kg net weight

4. Payment
4.1. SELLER will be paid by Irrevocable L/C opened by Vietcombank
Hanoi and advised to Seller through Indosuez Bank in Singapore
payable at sight against first presentation of full set of shipping
documents
4.2. SELLER shall effect first shipment within 30 days from the date
SELLER receives notification of irrevocable L/C
4.3. All costs of L/C in Singapore shall be for SELLER'S account
4.4. All L/C amendment's cost (if any) caused by the failure of the Buyer
to follow the terms and conditions of payment will be for BUYER'S
account
4.5. The under mentioned documents will be forwarded to BUYER's Bank
immediately after loading date
a. Signed commercial invoice in 3 originals
b. Clean "Shipped on Board" Ocean Bill of Lading in complete set of
at least 3 original 3 and non- negotiable copies signed made out to
order of "Vietcombank" Hanoi
c. Quality/Quantity certificate issued by the Chamber of Commerce in
triplicate
d. Packing List in triplicate
e. Confirmation of cable advise for shipment in triplicate
f Receipt of shipmaster acknowledging due receipt of all documents
in triplicate non - negotiable copies of each document, for handing
same over to PETROLIMEX Haiphong or PETROLIMEX
Hochiminh City

5. Penalties
In case of delay in payment (if any), BUYER shall remit to SELLER interest
calculated from the date of presentation of documents to the bank in Singapore
to the date of effective receipt of due amount. The interest will be calculated at
LIBOR RATE (6 months) plus 1.5 per cent

242

6. Deliveries
Products will be delivered in partial shipments to be agreed upon.
In case of transshipment SELLER shall give BUYER all necessary detail and
information.

7.Insurance
Insurance shall be effected by BUYER

8. Delivery Terms
CFR Vietnamese ports as per Art. 1. Goods to be delivered in partial shipments
accordance with Art. 6
9. Claims
In case of non - conformity of the quality of the products actually delivered by
SELLER with the Contract specifications, any claim concerning the quality of
the goods must be presented to SELLER within three months from the date of
delivery.
No claims shall be accepted by SELLER party after expiry of the above period.

10. Contingencies
Should any circumstances arise which prevent the complete or partial
fulfillment by any of the parties of their respective obligations under this
contract, namely: fire; ice conditions or any other acts of the elements, war,
military operations of any character, blockade, prohibition of export or import
or any other circumstances beyond the control of the parties, then the time
stipulated for the fulfillment of the obligations shall be extended for a period
equal to that during which such circumstances last
If the such circumstances last for more than 20 days, any delivery or deliveries
which are to be performed under this contract within that period may be
cancelled on the declaration of either party, and if the above circumstances last
for more than 40 days, neither party shall have the right to make a demand upon
the other Party for compensation for any possible damage
A party unable to meet its obligations under this Contract shall immediately
advise the other party the time of commencement and the termination of the
circumstances preventing the fulfillment of its obligations
Certificates issued by the respective Chamber of Commerce of SELLER's or
BUYER's country shall be sufficient proof of such circumstances and their
duration

243

11. Arbitration
All disputes and differences which may arise out of the present contract or in
connection with it shall be settled, if possible, in an amicable way
In the event that it is not possible to settle them in an amicable way, the parties
shall refer the matter to Arbitration in the International Chamber of Commerce
in Paris
12. Other Conditions
12.1 Neither Party is entitled to transfer its right and obligations under the
present Contract to a third party without the other Party's previous
written consent
12.2 After the signing of the present Contract, all previous negotiations and
correspondence between the Parties in connection with it shall be
considered null and void
12.3 All amendments and additions to the present Contract are valid only
if they are made out in writing and signed by both Parties
12.4 All taxes, customs and other duties levied in Vietnam on the
contracted Products shall be for BUYER's account.
SELLER:

BUYER:

AGIP PETROLI S.p.A

PETROLIMEX

(Signed)

(Signed)

Patrick FOK

Nguyen Manh

Lubricants Manager

Vice General Director

APPENDIX I
Product:

NLGI consistency:

Agip Gr Mu3

Worked penetration:

ASTM dropping point:


244

230 dmm

195C.

2.2. The Vietnamese version of the contract

HOP HONG So 01292


Singapore ngay 29 thong 12 nom 20...

Hop (long nay duqc lap gifta T6ng Cong ty xang dau (PERTROLIMEX) s6 1
Kham Thien Ha NOi, COng hoa xa hOi chit nghia Viet Nam, dia chi lien tin
"PERTROLIMEX HANOI" (sau day goi la ngtrai mua) va AGIP PETROLI S. P. A
- Chi nhanh Singapore (sau day goi la nguai ban), bang hop thing nay hai ben da
clang y nhu sau:
,

I. DOI Wong clia hop (long


Ngu6i ban cam kel giao cho nguai mua cac loci dau ma bOi trait sau day theo
dieu kien CFR

STT

Ma bOi trait

S6 luong

01

GR MU3

858 phuy x 180 Kg


(154.44 MT)

02

CR MU3

858 phuy x 180 Kg


(154.44 MT)

Gia CFR HCM

Gia CFR HP

850 USD/MT

870USD/MT

Gia o tren duqc tinh bang USD in& MT theo dieu kien CFR cang Viet Nam,
giao hang nhu dieu 6 duai day, va van khOng thay d6i cho den khi chuyen hang
cu6i ding &roc thuc hien vii dieu kien mot thu tin dung (L/C) khong huy ngang da
&roc thong bao cho ngtrai ban qua ngan hang Indosuez tai Singapore air& ngay,
31/01/19...
2. Chi tieu chat luong ctia ma bOi tam
Chi tieu chat Wong cita ma bOi tron dong trong phuy giao theo hop dong nay se
phit hop v6i cac chi tieu chat luong quy dinh trong phu luc 1 kern theo day, phtt luc
nay la mot 1)0 phan can thanh dm hop dong nay. Xuat xt'r caa son phdm se la Italia,
Ha Lan hoac Singapore do nguai ban chon
3. Bao bi
San phdm c bao bi se duqc giao trong phuy theft mai tieu chudn cita AGIP, c6
245

dg day dm thep khoang 1,2/1,0 mm. Cac phuy nay se dugc barn 180kg mg, trong
luting tinh
4. Thanh toan
4.1. Ngugi ban se dugc thanh Loan bang thu tin dung khOng hu5, ngang do
Vietcombank mo thgng qua ngan hang Indosuez tai Singapore, do
Vietcombank mg tra tien ngay khi xudt trinh 1 b0 day dit cac cluing tit
van tai
4.2. Ngugi ban se giao chuyen hang dau tien trong vong 30 ngay kd tir ngay
ngueri mua nhan dugc ihgng bao ve L/C khOng hu5/ ngang
4.3. Tdt ca cac chi phi ve L/C & Singapore do ngugi ban chiu
4.4. 'at ca cac chi phi ve sira dgi L/C (nen co) do ngugi mua chit'
4.5. Cac cluing tir sau day se dugc chuydn tai ngan hang cita ngtrgi mua ngay
sau ngay b6c hang
a. Ba ban g6c hoa don thong mai
b. Mgt b0 van don dugng bien sach da b6c hang it nhdt c6 3 ban gOc, 3 ban
copi khgng thanh toan dugc da 14 lap theo lenh cua Vietcombank Hanoi
c. Ba ban gidy chting nhan s6 luting/chat luting do Phong Thuong mai cap
d. Ba ban phial &rig g6i
e. Ba ban xac nhan thong bao giao hang bang dien tin
f. Bien lai cita thuyen trugng xac nhan du ba ban copi khOng thanh toan
dugc cUa mOi cluing tir, cua tat ca cac chung tir, de giao cluing cho
PETROLIMEX HAIPHONG hoac PETROLIMEX HOCHIMINH.
5. Plug
Trong trugng hgp chdm tra tier' (nen co), ngugi mua se chuydn cho ngtrgi ban s6
tien lai tinh tir ngay xudt trinh cluing tir den ngan hang tai Singapore den
ngay nhan dugc thut su toan b0 so tien; tien lai se dugc tinh bang lai sudt Libor (6
thang) cgng 1,5%
6. Giao hang
Cac san phdm se dugc giao tirng phan va se dugc hai ben (Ring y sau
Trong trugng hgp chuydn tai ngugi ban se thOng bao cho ngued mua tat ca cac
chi tier va thOng tin can thi6t

246

7.Bdo hi e'm
Viec bao him cho hang hoa do ngutd mua thuc hien
8. Dien kien giao hang
CFR tang Viet Nam nhu di8u 1; Hang hoa se duoc giao tang phan theo quy
dinh & Dieu 6
9. Khien nai
Trong truing hop chat luong san phdm &roc thuc t8 giao bgi ngugi ban khOng
pha hop vii cac chi tieu chat Wong dm hop ail-1g, bat kY khieu nai nao ve chat
Wong cila hang hoa phai dugc xuat trinh cho ngugi ban trong vOng 3 thong ke to
ngay giao hang
Cac don khieli nai se khOng dugc chap nhan b&i ben ban sau ngay het han cila
khoang tiled gian not tren
10. Bdt khd kheing
Neu bat kY tInh hugng nao nay sinh ma can tr6 viec thkrc hien mot phan hoac
toan bO nghia vu caa cac ben theo hop &Ong nay, cac tInh hugng nay nhu: Choy,
tInh trang dong bang hoac cac hanh Ong khac caa cac yeti t6 thien nhien, Chien
tranh, hoat ding quan su dugi bat ky clang nao, bao vay phong too, cam nhap khdu
hay bgt kY mot tinh trang nao d6 nom ngoai su diet' khidn cua cac ben, thi th6i gian
quy dinh cho viec that hien nghia vu do se dugc gia han mot khoang th6i gian bang
vdi khoang th6i gian ma tinh trang do keo dai
Neu tInh trang tren keo dai tren 20 ngay hoac nhang dot giao hang ma phai
dugc that hien theo hop dong nay trong khoang th6i gian d6 c6 the dugc huY 1)6 khi
co tuyen b6 caa bat kY ben nao, va neu tinh trang tren keo dai tren 40 ngay, moi
ben c6 quyen khong that hien tidp toanbO cac trach nhiem cila minh theo hop (long
nay va trong throng hop nhu vay khOng ben nao co quyen yeti du ben kia den ba
v8 cac thiet hai co the xay ra
Ben khOng thd thkrc hien &roc cac nghia vu cua minh theo hop clang nay phai
ngay lap tIrc thOng bao cho ben kia ve diem bat dau va ket thilc cua tinh trang can
tr& va viec thkrc hien cac nghia vu cila minh
Gigy Chung nhan do Ph6ng Thuong mai Wong (mg 6 nugc ngugi mua hay ngued
ban cap se la bang thong day du cho tInh trang tren va th6i gian keo dai cua tinh
trang do
11. Trong tai
Tat ca cac tranh chap va mau thuan ma c(, tie nay sinh tir hop dong nay hay
lien quan den hop (ong nay se duqc giai quyk, fle"u c6 the, bang con throng thuong
Wong hoa giai
247

Trong twang hop khOng giai quy6t dtrgc bang con throng thucmg luting hoa
giai, cac ben se dua van de ra Hoi (long Trong tai cila PhOng Thugng mai qu6c to
tai Paris

12. Gide diets kien khac


12.1. Khong ben nao co quyen chuyen nhugng quyen lgi va nghia vu cua minh
theo hop (long nay cho ben thd ba ma khOng c6 sir dong y truck dm ben
kia bang van ban
12.2. Sau khi ky ket hop (long nay tat ca cac giao dich va thu tir tru6c d6 giita
cac ben lien quan den hop (long nay se dtroc xem nhu v6 hieu
12.3. Tat ca thay d6i b6 sung cho hop (long nay chi co gia tri hieu ltrc chi khi
no dugc lam bang van ban va dugc ca hai ben ky
12.4. Tat ca cac khoan thue, thu hai quan, va cac chi phi khac danh vao hang
hod i7 Viet Nam se do ben mua chiu.
Ngubi ban

Nguoi mua

AGIP PETROLI S.p.A

PETROLIMEX

Trugng phong dau nhgn

Pho T6ng giam d6c

(Dc7 14)

(Dc74)

PATRIKC FOK

NGUYEN MANH

PHU LUC 1

248

San ph d' m :

Mo AGIP MU3

DO quanh NLGI:

D6 lun kim:

230dmm

Nhiet d0 nhO giot ASTM:

195C

3. ABCCORPORATION'S CONTRACT

3.1. The English version of the contract

SALE CONTRACT
ABC CORPORATION, as SELLER, confirms having sold to BUYER the
following goods by contract made on the date below and on the terms and
conditions SET FORTH HEREUNDER AND ON THE REVERSE SIDE
HEREOF.
BUYER

CONTRACT NO

DATE
BUYER'S REFERENCE NO.

GOODS:

QUANTITY

UNIT PRICE

TOTAL AMOUNT

- Time of Shipment

Transshipments permitted/not permitted

- Port of Loading

Partial shipments permitted/not permitted

- Port of Destination
PACKING:

MARKING:

PAYMENT:
The letter of credit shall bear this Contract's number as reference
INSURANCE: To be covered by Buyer/Seller
INSPECTION:
OTHER TERMS & CONDITIONS:
ACCEPTED ON

20...

BY:
(BUYER)

(SELLER)

Please sign and return one copy.


SEE TERMS AND CONDITIONS ON REVERSE SIDE

249

GENERAL TERMS AND CONDITIONS


1. Shipment or delivery
The obligations of Seller to ship or deliver the goods specified on the face of
this Contract ("Goods") by the time or within the period specified on the face of
this Contract shall be subject to the avaibility of the vessel or the vessel's space
If, under the terms of this Contract, Buyer is to secure or arrange for the vessel
or vessel's space, Buyer shall secure or arrange for the necessary vessel or
vessel's space on berth terms basis and give Seller shipping instructions within
a reasonable time prior to shipment, including but not limited to the name and
detailed schedule of the vessel. If Buyer fails to give such instructions within a
reasonable time prior to shipment, Seller may, at its sole discretion and at
Buyer's risk and account, arrange for the vessel or the vessel's space and make
shipment of the Goods, without prejudice and in addition to any other rights
and remedies Seller may have under this Contract or at law or in equity or
otherwise
In case of shipment or delivery installments, any delay or failure in shipment of
one installment shall not be deemed a breach of this Contract giving rise to a
right of Buyer to cancel this Contract or refuse to accept performance with
respect to other installments
2. Payment
If payment for the Goods shall be made by a letter of credit, Buyer shall
establish in favor of Seller an irrevocable letter of credit through a prime bank
of good international repute immediately after the conclusion of this Contract in
a form and upon terms satisfactory to Seller.
If Buyer fails to make any due payment, to establish a letter of credit or
otherwise to perform its obligations hereunder, Seller may demand that Buyer
provides, within a reasonable time, adequate assurance satisfactory to Seller of
the due performance of this Contract and may with old shipment or delivery of
any all of the undelivered Goods until such assurance is given.
Buyer shall pay the price specified on the face of this Contract without set-off
counterclaim, recoupment or other similar rights which Buyer may have against
Seller, whose rights shall be exercised in separate proceedings between Buyer
and Seller.
Any new, additional or increased freight rates, surcharges (bunker, currency,
congestion or other surcharges), taxes, customs duties, export or import
250

surcharges or other governmental charges, or insurance premiums, which may


be incurred by Seller with respect to the Goods after the conclusion of this
Contract shall be for the account of Buyer and shall be reimbursed to Seller by
Buyer on demand.
If Buyer fails to pay for the Goods in accordance with this Contract, Buyer
shall pay to Seller as liquidated damages and not as a penalty overdue interest
at the rate of the lower of eighteen percent (18%) per annum or the maximum
interest rate permitted by the laws of Buyer's country, calculated from the date
for such payment until the actual date of payment calculated on the 360 day-ayear basis for the actual number of days elapsed.
3. Force Majeure
If the performance by Seller of its obligations hereunder is directly or
indirectly affected or prevented by force majeure, including but not limited to
Acts of God, flood, typhoon, earthquake, tidal wave, landslide, fire, plague,
epidemic, quarantine restriction, perils of the sea, war declared or not or threat
of the same civil commotion, blockade, arrest or restraint of government, rulers
or other labor dispute, explosion, accident or breakdown in whole or in part of
machinery, plant, transportation or loading facility, governmental request,
guidance, order or regulation, unavailability of transportation or loading
facility, bankruptcy or insolvency of the manufacturer or supplier of the
Goods, or any other causes or circumstances whatsoever beyond the reasonable
control of Seller or manufacturer or supplier of the Goods, then Seller shall not
be liable for loss or damage, or failure of or delay in performing its obligations
under this Contract and may, at its option, extend the time of shipment or
delivery of the Goods or terminate unconditionally and without liability the
unfulfilled portion of this Contract to the extent so affected or prevented.
4. Default
In case of (i) Buyer's failure to perform any provision of this Contract, (ii)
Buyer's inability to pay its debts generally as they become due, (iii) Buyer's
bankruptcy or insolvency or (iv) appointment of a trustee, receiver or liquidator
of Buyer of any material part of Buyer's assets or properties ("Events of
Default"), Seller may, at its sole discretion, (i) terminate this Contract or any
part thereof, (ii) declare all obligations of Buyer immediately due and payable;
(iii) resell the Goods, (iv) hold the Goods for Buyer's account and risk; (v)
pospone the shipment of Goods, or (vi) stop the Goods in transit, and Buyer
shall reimburse Seller for all losses damages arising directly or indirectly from
such Events of Default.
251

The rights and remedies of Seller hereunder are cumulative and in addition to
Seller's rights, powers and remedies existing at law or in equity or otherwise.
5. Intellectual property rights

Nothing herein contained shall be construed as transferring any patent,


trademark, utility model, design, copyright, mask word or any other intellectual
property rights in the Goods, as such rights being expressly reserved to the true
and lawful owners thereof
Seller shall be neither responsible nor liable for any infringement or
unauthorized use with regard to any patent, trademark, utility model, design,
copyright, mask work or any other intellectual property rights.
6. Warranty, claim

Unless expressly stipulated on the face of this contract, seller makes no


warranty or condition, expressly or impliedly, as to the fitness or suitability of
the goods for any particular purpose or use or the merchantability thereof
If any warranty exists, Seller's liability shall be limited to replacement or repair
of the defective Goods
Any claim by Buyer of whatever nature arising under or in relation to this
Contract shall be made by registered airmail within thirty (30) days after the
arrival of the Goods at the port of destination, or solely in respect to a claim
alleging the existence of a latent defect in the Goods, within six (6) months
after the arrival of the Goods at the port of destination, and any such claim shall
contain full particulars with evidence certified by an authorized surveyor.
7. Limitation

Seller shall not be responsible, whether in contract or warranty, or on any other


basis, to Buyer for any special, incidental, consequential, indirect or exemplary
damages, and in no event shall Seller's total liability on any or all claims from
Buyer exceed the price of the Goods.
8. General

1. All disputes, controversies or differences arising out of or in relation to


this Contract or the breach thereof which cannot be settled by mutual
accord without undue delay shall be settled by arbitration in Tokyo,
Japan, in accordance with the rules of procedure of the Japan
Commercial Arbitration Association. The award of arbitration shall be
final and binding upon both parties, and judgment on such award may
252

be entered in any court or tribunal having jurisdiction thereof. This


Contract shall be, in all respects, governed by and construed in
accordance with the laws of Japan. The trade terms herein used, such as
FOB, CFR and CIF, shall be interpreted in accordance with
"INCOTERMS 2000".
2. The failure of Seller at any time to require full performance by Buyer of
the terms hereof shall not affect the right of Seller to enforce the same.
The waiver by Seller of any breach of any provision of this Contract
shall not be construed as a waiver of any succeeding breach of such
provision or waiver of the provision itself
3. This Contract constitutes the entire agreement between the parties hereto
and supersedes all prior or contemporaneous communications,
agreements or undertakings with regard to the subject matter hereof.
This Contract may not be modified or terminated except by a written
agreement of Seller and Buyer.
4. Buyer shall not transfer or assign this Contract or any part thereof
without Seller's prior written consent.

253

3.2. The Vietnamese vession of the contract


HOP BONG BAN HANG
Cong ty c6 phan ABC, Ngtred ban, xac nhan da ban cho Ngtroi mua shang hoa sau
day theo hop dong dixoc lap vao ngdy viet 6. dual va theo cac dieu kien NEU
DUOI DAY VA TRENT MAT SAU COA HOP DONG NAY (Trang 2 - ND)
MUA:

HOP DONG SO

NGAY

Se tham chieu dm Ngtrei mua


HANG HOA:

SO LONG:

DON GIA:

TONG GIA:

Chuyen tai: &roc phep/khong duvc phep


Giao tirng phan: duvc phep/khong &roc phep
- Thai gian giao hang
- Cang giao hang
- Cang den
KI MA HIEU
BAO BI
THANH TOAN: Tin dung thin phai c se tham chieu dm Hop d'ong nay
BAO HIEM: Do ngtrari ban/mua chiu
GIAM DINH:
CAC DIEU KIEN KHAC:
20...
DU'OC CHAP NHAN NGAY

GIAO HANG:

Bol:
. NGU.61 MUA
Xin kY va girl lai mot ban
XIN XEM DIEU KIEN

254

6 MAT BEN (Trang 2 - ND)

NGU'OI BAN

NHOISIG DIPU KHOAN CHUNG


1. Giao hang
Nghia vu giao hang dm ngugi ban la phai giao nlidng hang hod quy dinh 6 tren
hop (long nay ("Hang hod") vao th6i gian hay trong khoang th6i gian quy dinh
trong hop &Ong nay se tu/ thuOc vao su san c6 cua tau hay khoang tau
N6u, theo diet' khoan cna hop (long nay, Ngtrgi mua phai thud tau hay thud
khoang tau, Ngugi mua se phai thud tau hay khoang tau can thidt tren co s& tau chq
va cung cap chi dan giao hang cho ngugi ban trong mgt th6i gian hop 1/ truck khi
giao hang, nhung khOng chi han ch6 c6 ten tau va lich trinh chi tilt cila tau n6u
Ngugi mua kh6ng dua ra nhilng chi dan nhu vay trong th6i gian thich hop trugc khi
giao hang, Ngugi ban c6 the tu/ y mInh chu'an bi mot tau hoac khoang khac, vgi chi
phi va rui ro Ngugi mua chin, va giao hang ma khong lam anh hung d6n hay them
vao nhirng quyen hay nghia vu khdc ma ngugi ban c6 the theo hop dgng nay, theo
luat hay theo quyen sa hitu tai san con lai hoac ngugc lai
Trong trugng hop giao hang tirng phan bat k/ mot sty khong giao hang hay giao
hang cham cita mot chuydn hang se khOng clugc hieu la su vi pham hop d'ong nay
de lam cho ngugi mua c6 quyen hu/ hop (long nay hoac to ch6i khOng nhan nhung
16 hang sau

2. Thanh Wan
N6u viec thanh toan cho hang hoa dugc tidn hanh bang L/C, Ngtrgi mua se mg
cho ngnOi ban hating mot L/C kh6ng hu/ ngang qua mot ngan hang loai mot c6 uy
tin Vit tren qugc t6 ngay sau khi k/ k6t hop dong nay dugi clang va theo cac dieu
khoan thoa man dgi vgi ngugi ban
Ndu ngugi mua khong thanh toan tien hang dung han, khOng mg L/C, hoac
khOng thtrc hien cac nghia vu khac theo hop (long nay mgt cach hop 1/ ma tinh
truck (lucre, Ngugi ban c6 the dgi Ngugi mua trong khoang thgi gian hop 1/ phai
dua ra nhung bao dam day NI hoan toan thoa man dgi vgi Ngugi ban ve nhung viec
thut hien clang dan cac nghia vu cua minh theo hgp citing nay thl Ngugi ban cling
c6 the ngimg viec giao nhung hang hod chua giao cho ddn khi nhiing str bao dam
nhu vay dua ra
255

Ngued mua se tra theo gia cua hop &Ong nay kh6ng hoan bat, kien lai, hoac trir
bat hay bat ky mat quyen tuong to nAo ma ngtrai mua c6 the c6 de chang lai nguai
ban. Nht-mg quyen nhu vay se dugc thuc hien rieng gida Ngtred mua, Ngtrai ban vai
nhau
Bat ky nhting chi phi ve cuac phi piny mai nAo, chi phi them (nhien lieu, tien te,
hoac flitting phi danh them kiic) thue, thue hai quan, thue nhap khdu hoac xuat
khdu danh them hoac IA nhiing khoan khac thu bed nhA nudc hoac la phi bao hiem,
nhfing thd nay c6 the bi tra bed ngtrai ban cho hang hoa sau khi ky ket hop clang se
do ngued mua chiu va se dtroc hoAn lai cho ngtrai ban bed ngued mua khi yeu cau
Neu ngueri mua kh6ng thanh toan cho hang hoa phii hop ved hop dang nay,
Ngtrai mua se tra cho ngued ban mot khoan tien nhu IA s6 136i thuang flirting thiet
hai chd khOng phai lA lai suat ngan hang cho s6 tien qua han vai tY le thdp hon
trong 18% moi nam hoac muc lai suat cao nhdt cho phep bed luat cua nuac nguai
mua, tinh tir ngAy den han thanh toan cho khoan tien do den ngay thuc sir thanh
toan, tinh tren co sa mot nam c6 360 ngay dai vat tang s6 ngay thin te da qua
3. B6t kha khang
1\16u viec thuc hien cac nghia vu theo hop clang nay dm nguai ban bi anh hung
true tiep hoac gian tiep hay can tra bed bat kha khang, bao gam nining kh6ng han
the den: Thien tai, thing dat, song thug trieu, la ddt, hoa hoan, benh dich, tai hoa,
han the kiem dich, tai hoa cda Men, chien tranh (tuyen b6 hay khOng tuyen b6)
hoac su de doa cua chien tranh, dan bien, bao vay, bat gift hoac cam gift cita Chinh
nha Cam quyen hay dan chung, tich thu tau thus' hay may bay, dinh cling, be
xtrang, sty pha hoai ngdm, hay la nhting tranh chip lao dOng khac, no, tai nan hay
hong hoc toan 1)0 hay mot phdn may mac, nha may, cling cu van tai hay phuong
tien b6c hang, yeu cau cira Chinh phil, chi din, menh lenh
hay sty quan cda Chinh phn, su khOng san c6 cac phuong tien van tai hoac cling
cu bac hang, su pha san hay khOng tra &roc no dm nha san xuat hoac IA ngueri cung
cap hang, hoac IA bat ky nguyen nhan nao hoac trong nhdng twang hop bat ky nAo
vuert kha nang khong cite hop lY cua ngued ban hoac la nha san xuat hoac nhA cung
cap hang hoa, khi do ngudi ban se khOng chiu trach nhiem dai vai thiet hai hu
hang, hoac sty khOng thuc hien hay thuc hien cham tre nhting nghia vu cda minh
theo hop clang nay, va c the tuY y minh keo dAi thdi han giao hang hoac la v6 dieu
kien ket thtic hop (long ma khong c6 nghia vu doi voi phin chua thin hien theo hop
clang nay trong mot chimg muc bi anh huang hay can tra tren

256

4. Kitting thtrc hien nghia vu


Trong wrong hop:
i. Ngued mua khOng thuc hien bat ky mot trong cac diet' khoin nao cila hop
dung nay
ii. Ngudi mua khOng tra dugc he't nhang khoan no den han
iii. Nguoi mua roi vao tinh trang pha san hay khOng c6 kha nang tra no
iv. Chi dinh nguili tin khac, ngubi thira hung hay ngirdri thanh ly toan b8 hay
mot phan tai san vat chat dm ngutri mua
"Trubng hop khOngthuc hien nghia vu" thi ngtthi ban c6 the tuy y rieng cua
minh:
i.

Ket thdc toan bO hay mot phan dm hop &Ong

ii. Tuyen b6 tat ca cac nghia vu cua ngtrbi mua ve cac khoan tien phai tra ngay
lip tirc
iii. Ban lai cho ngtrbi khac s6 hang nay
iv. Gift hang hoa lai vai chi phi va rui ro do ngtred mua chiu
v. Dinh chi viec giao hang
hoac
vi. Gift nhang hang hoa Bang tren cluOng di va ngtroi mua se phai hohn lai cho
ngued ban toan 1)0 thiet hai phat sinh truc tip hay gian tidp nay sinh tir
trueing hop khOng thirc hien nghia vu nhu vay
Quyen lcti va trach nhiem cim ngired ban hang theo hop (long nay la cOng don
cua guyen loi, quyen va trach nhiem truck phap 101, theo le c6ng bang hoac nhang
thin khac
5. Quy6n sa hiru tri tue
KhOng c6 dieu kien nao trong hop (long nay khOng cluqc hidu la viec chuydn
giao bat ky mot Patang, nhan hieu thuong mai, kidu clang sir dung, guyen tac gia,
nhang cOng trinh chua cong b6 khac hay bat ky guyen s& him tri tue noa khac trong
hang hod, tat ca nhiing guyen nay &roc guy dinh ro rang danh rieng cho ngudri so'
hilu hop phap va dich thirc cua cluing

257

Ngtred ban se khOng chin trach nhiem hay c6 nghia vu d6i veri bat kS , su vi
pham hoac la viec sir dung khOng duac pile') bat 14 Patang, bib arcing thuang mai,
model sir dung, kidu dang quyen tic gia, nhung cang trInh chua cang b6 hay bat kS ,
,

guy&serhtinaokdc
6. Bao hanh va khieu nai

Trir nhung quy dinh rei rang ten hap clang nay, Ngueri ban kh6ng ro rang hay
ngu y bao hanh ve tinh thich hap cho bat kS , mat muc dich sir *dung nhat dinh cim
hang hod hay kha nang ban dugc cila hang hod
Neu nhu c6 mat su bao dam nao, nghia vu cua Ngtreci ban se chi han cite trong
viec thay the hoac sira chfra s6 hang hod, khuyet tat nay. Bat IcS1 mat khieu nai nao
cua Ngueri mua ye bat kS, mat nao dm hang hod nay sinh theo hoac co lien quan den
hap (Ring nay se dugc lam bang thu may bay bao dam trong yang 30 ngay sau khi
hang hod den cang der hang va chi v6i nhang khieu nai ye hang hoa trong vemg 6
thing tir ngay tau den cang b6c hang, bat 1(5/ khieu nai nao nhu vay phai co tat ca
nhung ban tuerng thuat chi tiet day dit ding voi bang chting cluing nhan, bat
mat
ngtreri giam Binh dtrac quyen lam dieu nay
7. Han the
Ngu6i ban khOng chin trach nhiem, cho du trong hap (long trong bao hanh,

theo dan luat hoac tren cac co ser khdc, vori Ngueri mua ve thiet hai gian tiep, truc
tiep, bat nger, dac biet, va trong bat IcS/ trtrerng hap nao t6ng s6 tien b6i thuerng cua
ngtrbi ban d6i voi bat IcS7 hay toan 1)0 cac khieu nai cua Nguai mua cling se khOng
vactt qua gid ca cila hang hod
8. Nhiing diet' khoan chung
1. Tat Ca nhung tranh chap, mau thuan nay sinh tir hay lien quan den hoat clang

nay hay mat su vi pham hoat clang nay ma khOng the giai quy& bang su d6ng
yt dm Ca hai ben va khang cham tre bat hop ly nhirng thd nay se dirge giai
quy& bang trong tai TOKYO, JAPAN, theo 1'14 ve cac thit tuc cua Hiep hOi
trong tai thuang mai Nhat Ban. Phan quy& cita trong tai se la Chung thdrn va
rang buOc d6i vdi ca hai ben va su xet xir trong nhirng phan quy& nay co the
dua ra bat kS, toa an nao co quyen tai phan den voi nhiing phan quy& nay. Ve
mai mat, hap thing nay chiu su diet' tiet va hieu theo lust Nhat Ban
Nhiing thuat ngfr bu6n ban sir dung & day nhu FOB, CIF, CFR se dugc giai
thich theo "INCOTERMS 2000"
258

2. Viec Ngtroi ban khOng doi hOi Nguoi mua thuc hien day dit cac nghia vu
(dm cac dieu kien & day) vao met th6i di6m nao do se khOng anh huOng
den quyen cua Ngubi ban bat thi hanh nhang diet' nay. Su khugc tir bat k/
sit vi pham nao cua bat k/ diet' khoan nay cua NgtrOi ban se khOng dugc
hien la sit khugc tir bat k/ sit vi pham tiep theo cua diet' khoan nay hay la
khugc tir ban than chinh diet' khoan nay
3. Hop deng nay lap len sit thoa thuan hoan toan gifra cac ben cua hop deng
nay va thay the tat ca nhimg cuec giao tiep, thoi thuan, hay loci hira throe
day va hien tai dei vgi chit dm hop &Ong nay. Hop &Ong nay khOng th6 b6
sung hay ket thtic trir khi bang sit thoa thuan bang van ban glib Ngued mua
va Ngtr6i ban
4. Ngubi mua se khOng dugc chuy6n nhuong toan be hop thing hay met phan
cua hop deng nay ma khOng co sit (long / bang van ban cua NgtrOi ban.

259

4. CONTRACT FOR GARMENT PROCESSING


4.1. The English version of the contract
GENERAL TERMS AND CONDITIONS
ON BASIS OF C.M.P.
No: 08/GEN-ELLEN/19
Party A:

VIETNAM NATIONAL GENERAL EXPORTIMPORT CORPORATION (GENERALEXIM)


46, Ngo Quyen Street
Hanoi, S.R of Vietnam
Hereinafter called "Party A"

Party B:

ELLEN CO. LTD


1508 - 1510 Star House,
Salisbury Road, Kowloon, Hongkong
Hereinafter called "Party B"

A. The Contract
1. Party A undertakes to manufacture the garmer is specified in the separate
contract or appendix of the contract (to be) signed by both the parties in
accordance with the present general terms and conditions also for the
delivery time stated in the above mentioned contract or its appendix
2. Party A shall be responsible for the delivery time provided that all
materials and accessories to be supplied by party B arrive at Haiphong
port in reasonable time prior to starting production of a new style
3. Any factories to be used for production of orders by Party A shall be
approved/accepted by Technicians from Steilmann.
B. Material supply
1. Party B and Steilmann will be responsible for supplying all the fabric
materials (shell/lining/Acrylic Boa/pocketing lining) and accessories in
due time for starting production together with the following extra items:
- Fabric materials 2%

260

- Zipper, shoulder pad and special label

1.0%

- Fusing

2%

- Buttons, eyelet, stopper and padding

3.0%

- Size label, Hangtags, thread

5.0%

- Others items not mentioned above and the wastage will be confirmed
later
All the above-mentioned fabric material's and accessories' wastage are only
for replacement of any defective items. After the factory fulfils all the orders
and quantity, these wastage percentages can be retained by the factory
2. Party B shall be responsible for sending the import documents 3 days
before vessel carrying the goods referred to in A3 hereof ETA. As soon
as the materials/accessories have arrived in the port, part A shall be
responsible for applying for the import-license; the tax-free permit, and
take the goods out of Customs to the factory within 10 days
3. After the arrival of the materials in Party A's factories, the factories
should inform Party B and then both parties shall jointly check the
contents of each carton and bale within one week and shall prepare the
Checking Report - which should be signed by both parties and passed to
Party B immediately
4. Party A shall be responsible for the fabrics and accessories from the date
of receipt until the date of shipment and shall compensate party B the
full invoice value for any loss or damage (Force majeure excepted)
C. Sewing instruction and inspection
1. Party B will supply the original samples, sketches, sewing instructions
and paper patterns to party A's factories from 5 to 7 days before Party
A starts production of each style/order enabling the factories to make a
sample
2. Party A's factories should make 3 counter samples based on supply
instruction and paper pattern and send to Party B's technician to
evaluate
3. Party A's factories should show Party B's technician the marker for each
style and must have the said technician's approval before cutting
4.

In case of more or less consumption of shell material or lining,


accessories, the technician's consent in writing is required before
cutting is made. Otherwise party B will charge back all the value in the
absence of the technician's consent aforesaid
261

5. Any problem against paper pattern and sewing should be advised to B's
technician immediately before production proceeds
6. An authorized representative from party B will come to inspect the
goods during production and before shipment
7. Party A's factories shall inform party B and their technician that they
may make the final inspection 2 days before Shipping. If after
inspection is made garments have been rejected, factories still have time
to repair and maintain the delivery date
8. After finished garments delivery, Party A's factories should send 2
samples (small size) of each style to Party B as shipment samples
9. In the event that Party A produces an unacceptable quality standard, or
damages the fabric which has been delivered by Steilmann, it is
herewith agreed that party A should pay for the fabric and accessories
cost against the full invoice value. The quality standards are based on
the approved sample confirmed by Party B or the Steilmann technician
(in this case technician shall give technical guidance)
D. Shipment

1. Delivery time of each style shall be within 30- 45 days (depending on


the quality of each style/order to be processed) after Party A's factories
receive fabric materials/accessories in complete sets
2. Party A shall inform Party B of the estimated time the finished products
will be ready for loading 7 days prior to such estimated time
3.

For appointed Air Forwarder Schenker: All the original shipping


documents including original Air Way bill, original certificate of origin;
original invoice and packing-list should be sent to Schenker at the time
when goods depart

4. For appointed sea forwarder: Eac-Saigon Shipping Service Ltd. All the
shipping documents included inspection certificate issued by Steilmann
technicians
E. Payment

All the payments shall be made by irrevocable Letter of Credit at sight. The
Letter of Credit must be established 30 days before shipment.
F. Arbitration
1. The two parties shall amicably settle all the disputes arising during the
performance of the contract. Should no settlement of disputes or such

262

difference of opinion be made amicably, then the disputes and


difference of opinion shall be settled in accordance with the Arbitration
Regulations of the Foreign Trade Arbitration Organization of a third
country mutually agreed by the parties
2. The decision of the said arbitration shall be final and binding upon both
parties
This General terms and conditions of basis of C.M.P is made in English in six
copies. Each party keeps three copies of equal validity with effect from the
signing date. Party A should send one copy to its factories for reference.
Made in Hanoi, on the 5 th August, 20 ...
FOR/AND ON BEHALF OF SIDE A

Ellen Co. LTD

FOR/AND ON BEHALF OF SIDE B

Generalexim

(Signed)

(Signed/sealed)

D. Ellen

Thanh Tung

General Manager

Dep-General Director

263

Annex No: 01

TO THE GENERAL TERMS


AND CONDITIONS ON BASIS OF C.M.P
No: 08/Gen-ELLEN/20
Party A:

VIETNAM NATIONAL GENERAL EXPORT-IMPORT


CORPORK ION (GENERALLEXIM HANOI)
46, Ngo Queen street.
Hanoi, S.R. of Vietnam
Hereinafter called "Party 4"

Party B:

ELLEN CO.LTD
1508-1510 Star House,
Salisbury Road, Kowloon,
Hongkong Hereinafter called "Party P"

Today 5 th Aug... 20 ..., the two Parties have agreed to sign this Annex to the
above-mentioned Contract on the following terms concerning the materials and
accessories for the processing of the commodity:
Article I: MATERIALS AND ACCESSORIES FOR THE PROCESSING
OF THE COMMODITY
Side B shall supply all the materials and accessories to side A as the following
calculation (Based on CIF HAIPHONG or CIF NOIBAI)
- Fabric: 100,000 Metres
- Accessories: worth 100,000.00 USD
Article II: TIME OF DELIVERY
All the materials and accessories supplied by Side B must be delivered at
Haiphong Port 10 days prior to starting production for each style, from the end
of September, 20 .. to the end of November 20 .. and to address:
- Consignee and Notify party:

264

VIETNAM NATIONAL GENERAL EXPORT IMPORT CORPORATION,


46, NGO QUYEN STREET, HANOI, S.R. OF VIETNAM
Other conditions not mentioned in this annex are to be performed as those in
the contract No: 08/GEN-ELLEN/20 ..
FOR/AND ON BEHALF OF SIDE A

FOR/AND ON BEHALF OF SIDE B

265

Annex No: 02
TO GENERAL TERMS
AND CONDITIONS ON BASICS OF C.M.P
No: 08/Gen - ellen/20...
Party A:

Vietnam national general export


Import corporation 46, Ngo quyen
Street, Hanoi-vietnam
(Hereinafter called "Side A")

Party B:

Ellen co.LTD
1508-1510 Star House, Salisbury Road, Kowloon,
Hongkong (Hereinafter called "Side B")

Today 5th. August, 20..., the two Parties have agreed to sign this annex to
the above mentioned contract on the following terms and conditions concerning
the commodity and quantity, price and time of delivery
1. Article I:
Commodity

Jacket

Quantity

(3%

C.M.P price

Amount

(USD/FOB Haiphong or Noibai)

Style No:
54011-2

3,270

2.40

7,848.00

54011-5

3,357

2.40

8,056.80

54423

2,758

2.10

5,791.80

Total

9,385 Pieces

USD

21,696.60

(CMP price side A undertakes for packing such as: outer carton, plastic bands
and or/PE bag/ctn sticky tape only).
2. Article II: Time of delivery

Shipment time of finished products from November 20 ... to end of December


20
3. Article III: country of destination: Germany

Other conditions not mentioned in this annex are to be performed as those in


the Contract No: 08/GEN - ellen/20 ...
FOR/AND ON BEHALF OF SIDE A

266

FOR/AND ON BEHALF OF SIDE B

4.2. The Vietnamese version of the contract

HOP DUG SO: 02


Ben A:

CONG TY XNK TONG HOP


46, Ng6 Quyen Ha Noi, Viet Nam
Sau day dugc goi la "Ben A"

Ben B:

CONG TY TRACH NHIEM HOU HAN ELLEN


1508-1510 Star House
Dueng Salisbury, Kowloon, Hongkong
Sau day dugc goi la "Ben B"

A. Ve hop (tong
1. Ben A dam nhan san xudt du quan do dugc quy dinh trong hop clang hoac
phu kien hop clang rieng dugc ky ke't gifra 2 ben plat hop vai nhiing didu khoan NIA
dieu kien chung nay, thai gian giao hang cling dugc xac dinh trong hop clang hay
phu kien dm hop clang da not & tren.
2. Ben A chili trach nhiern ve tiled gian giao hang vai didu kien ben B cung cap
tat ca nguyen lieu va phu lieu clang be ding met luc c16n cang Hai Phong trong thai
gian hop 1/trtrac khi tidn hanh san xudt mat hang mai.
3. Moi nha san xudt theo don dat hang dia. ben A se phai dugc ky thuat vien
cita cling ty Steilmann clang //chap thuan.

B. Cung cap nguyen lieu


1. Ben B va Steilmann se chiu trach nhiem cung cap day du vai nguyen lieu
(Vai mat ngoai/vai dkrng/lOng Acrylic/vai lot nip va cac phu lieu dung han dd bat
dau san xudt vai nhiing mat hang phu nhu sau:
- Vai

2%

- Phecmotuya, dem vai va nhan dac biet

1%

- Me-ch dinh

2%

267

- Cdc, dinh 6 de, nut chan va dem vai

3%

- Nhan coy, mac treo, chi may

5%

- Nhang nguyen lieu, phu lieu khOng not & tren va mdc hao but se xac nhan sau

Moi mac hao but ve nguyen lieu not & tren chi
thay the cho nhitng mat hang
c6 sai sot. Sau khi nha may da hoan thanh tat ca cdc dan dat hang va s6 ltrqng, s6
phan tram hao but d6 co thd thuOc ye nha may.
2. Ben B chiu trdch nhiem giri cdc chdng tir nhap khdu 3 ngay truck ngay tau dd
kien den. Ngay sau khi nguyen lieu va phu lieu den cang ben A phai chiu trach
nhiem xin gigy phep nhap khdu, gigy mien thug NIA nhan hang hod qua hai quan den
nha may trong yang 10 ngay.
3. Trong yang 1 tuan sau khi nguyen lieu den nha may ciia ben A, nhang nha
may nay phai thOng bao cho ben B biet va ca 2 ben se ding kiem tra nQi dung cita
tirng horn carton, ding kien va se th6ng bdo bien ban kidm tra duqc ki ket gifra 2
ben va giri cho ben B ngay lap tdc.
4. Ben A chiu trdch nhiem ve vai va phu lieu td ngay nhan hang den ngay giao
hang va phai den bu cho ben B toan 1)0 gid tri hod dan vai moi mat mat hu hong
(loai trd bat kha khang).
C. liming din va kidm tra may
1. Ben B se cung cap man g6c, sa d6 (ban ve), huang dan may va man tren gigy
cho cdc nha may cna ben A, td 5 den 7 ngay truck khi bat dau san xuat m6i mat
hang/dan dat hang
cdc nha may lam man thin.

2. Cac nha may cda ben A phai lam 3 man d6i tren ca s& huang dan va mdu
tren gigy va giri cho nhan vien ky thuat dm ben B ddnh gia ky thuat.
3. Cdc nha may cila ben A phai xuat trinh cho ky thuat vien cda ben B xem mau
ciia mai mat hang va phai duqc ky thuat vien thing y truac ktii cat.
4. Trong twang hop sir dung vai ngoai hoac vai lot, phu kien nhieu hay It han
phai c6 su d6ng y bang van ban oh ky thuat vien trudc khi nen hanh cat may. Neu
khOng ben B se di-1h tra lai trong truang hop kheng c chfr ky cua ky thuat vien.
5..Moi phat sinh ye man tren gigy va may se phai thOng bdo ngay cho ky thuat
vien ciia ben B biet truac khi tiep tuc san xuat.
6. Dai dien dugs tuy quyen dm ben B se den kidm tra hang hod trong luc san
xuat va tilt& khi giao hang.
268

7. cac nha may cita ben A phai thong boo cho ben B NIA ky- thudt vien cua ho
kidm tra hang Ian cuai ding 2 ngay trtrac khi giao hang. N6u sau khi ket thtic kidm
tra, mot phdn bi tir ch6i, cdc nha may van c thai gian de sira chita va dam bao giao
hang.
8. Sau khi giao thanh phdn cac nha may Oa ben A se giri 2 mdu cer nho dm mai
mat hang giao cho ben B lam mdu giao hang.
9. Trong twang hop ben A son xuat hang khOng phit hop chat lugng chudn hoac
lam hong vai do Steilmann giao thi hai ben thoa thudn rang ben A phai tra tien vai
va phu lieu theo tri gia hod don. Chat lugng chudn dugc duo tren co stir cac mdu da
thong qua va dugc ben B hoac ky thudt vien cua Steilmann xdc nhdn (twang hop
nay icy thot vien se hating don ky thudt).
D. Giao hang
1. Thai gian giao hang cho tirng mat hang trong yang 30-45 ngay (pho thuec
vao s6 luting mai man/don dal hang gia c6ng) sau khi cac nha may dm ben A nhdn
duct nguyen pho lieu dongb0.
2. Ben A c tra.ch nhiem thong bdo thai gian du kien hang thanh phdm sin sang
giao cho ben B truac 7 ngay.
3. "chi dinh nguai giao nhdn hang khOng" Schenker.
Tat ca cac chting tir giao hang gac bao gom van don hang khOng g6c, giay
chang nhdn xuat xtr goc, hod don g6c va phien clang goi g6c se dugc gin den tong
ty Schenker (long thai khi hang hod di.
4. Chi dinh ngtrai giri hang &rang bidn: EAC-Saigon Shipping Service Ltd.
Tat ca cac chting tir giao hang Om ca giay chung nhdn kidm tra hang hod do

ky thudt vien cua Steilmann cap.


E. Thanh town
Mgt thanh toan dugc that hien bang L/C kh6ng huY ngang, thanh town ngay.
L/C phai dugc ma 30 ngay truck khi giao hang.
F. Trong tai
1. Hai ben se thuong luting giai guy& cac tranh chap xay ra trong qud trinh
thuc hien hap citing da ky. I\T6u hai ben khong thoa thudn dugc cach giai guy& tranh
chap hoac bat clang y kien thi cac y kien hoac cac bat dong se chrac giai quy6t theo
269

dieu le trong tai cua t6 chile Trong tai Ngoai caa nu6c thu ba theo thoi thu4n cua ca
hai ben.
2. Quyet dinh cua trong tai la chung tham va rang buQc d6i vOi 2 ben, va Dieu
kien chung nay tren cc sot CMP duac14 thanh 9 ban bang tieng Anh. M6i ben gift
3 ban co gia tri tuang duang, c6 hieu luc tit ngay ky kept. Ben A se giri 1 ban cho
cac nha may tham khao.
Hop oolong nay lam tai HAN0i, ngay 5 thang 8 nam 20 ...

DAI DIEN BEN B

270

DAI DIEN BEN A

PHU KIEN HOP WING 01


(Theo cac dieu kien va dieu khoan chung tren co sa C.M.P)
S6 08/Gen-Ellen/20
Ben A

CONG TY XNK TONG HOP


46, Ng6 Quyen HA NO
sau day dugc goi IA "Ben A"

Ben B

ELLEN Co. LTD


1509-1510 Star House,
Ph6 Salislexry, Kowloon, Hongkong
sau day &roc goi lA "Ben B"

H6m nay ngAy 5/8/19 .. ca hai ben da thoa thuan ky phu kien theo hop &Mg not
tren va theo nhihig dieu khoan lien quan tai nguyen lieu va phu lieu de gia cOng
hang hoa
Dien 1: Nguyen phu lieu cho qua trinh gia cong hang hoti
Ben B se cung cap tat ca nguyen lieu, phu lieu cho ben A theo tinh toan sau
(tren co s& CIF Hai Phong hoac CIF NO BAi)

- Vai
100.000 m

- Phu lieu tri gia
100.000 USD
Dien 2: Thai gian giao hang
Tat ca cac nguyen lieu do ben B cung cap se dtroc giao tai cang Hai PhOng 10
ngAy truac khi bat dau san xuat timg ma tir cuai thang 9/20 .. cho den cuai thang
11/20... theo dia. chi:
Nguai nhan hang NIA ben thong bao:
T6ng cOng ty XNK tang hop
4.6 Ng6 Quyen HA Noi - Viet Nam
dieu khoan

hop clang

ii) TuyeA b6 tat ca cac nghia vu cua nguai mua ve cac khoan tien phai tra ngay
lap tac
iii)
lai. cho ngtrai khac trong viec thay the hoac sira chfra so hang h6a,
khuyet
nay. Bat 1(5, mOt khieu nai nAo cua Nguoi mua ve bat kS7 mat ilk) cua
hang hOa leu la diet' kien lien quan tai hang hod, s6 Wong, gia ca va
han giao
hang

27-1

1/ Hang hoa

S6 lining

Ao Jacket
Ma s6
54011-2
54011-2
54423
TOng cong

( 3%)

S6 den

Gia CMP
(FOB Hai Phong hoac NO Bai)

3.270
3.330
2.758
9.385 chi&

7.848,00
8.056,00
21.696,60

2,40
2,40
2,10

(tinh being USD. Gia CMP: ben A cung cap bao bi nha: cac tong ngoai, ttii
plastic valhoac PE, being dinh)
2. Th6i gian giao hang:
Th6i han giao hang thanh phdm tir thang 11/20.. tai cu6i thang 12/20..
3. Noi hang din: COng hoa Lien Bang Dilc
Nhilng dieu kien khac khong neu trong phu luc nay chieu theo hop dung s6
08/Gen-Ellen/19 ..

BEN A

272

BEN B

5. CONTRACT FOR DISTRIBUTORSHIP AGENCY

5.1. The English version of the contract

DISTRIBUTORSHIP AGREEMENT
THIS AGREEMENT dated the last day of January 19 .. by and between AGIP
PETROLI SPA Singapore branch having a place of business at 302 Orchard
Road 14-02 to 14-04 Tong Building Singapore 0923 ("AGIP")
And xxxxxxxxxxxxxxxxxxx whose registered office is xxxxxxxxxxx
("DISTRIBUTOR")
Witnesseth:
AGIP and DISTRIBUTOR hereby covenant and agree as follows:

1. Definitions
As used in this Agreement the following terms shall have the meaning set forth
hereafter:
a. "Products" shall mean AGIP Lubricants for Automotive and Industrial
application and Special Products as listed in the First Schedule for the
distribution by Distributor in Consumer Packages (as hereinafter
defined) carrying the registered AGIP trademarks and/or it is agreed by
the parties hereto that AGIP or AGIP Affiliates (as hereinafter defined)
may from time to time without assigning any reasons thereto make
improvements to or changes in the Products during the currency of this
Agreement. Such improvement or changes even if resulting in a change
in the characteristics of the Products shall not affect the status of the
Products as the Products and AGIP shall notify DISTRIBUTOR of such
improvement or changes
b. "Territory" shall mean the Socialist Republic of Vietnam
c. "Consumer Packages" shall mean such original standard packages from
time to time adopted by AGIP
d. "Affiliate" shall mean any entity which is controlled by or in control of
or under common control with another specified entity
273

"Control" shall mean a 25% or larger ownership of issued and outstanding


voting securities or common officers or directors or a contractual relationship
allowing one entity to assume or substantially influence the management or
operations of another.
2. Appointment
a. Subject to the terms and conditions in this Agreement AGIP hereby
grants to the Distributor the sole right during the continuance in force of
this Agreement to purchase for distribution and resale in the Territory
those of its Products exclusively for Automotive and Industrial
Application (excluding international marine application) specified in
the First Schedule
b. This appointment shall take effect on .../.../20... and shall subsist for a
period of ... years from that date unless otherwise terminated in
accordance with the provisions of this Agreement and shall continue
thereafter until terminated by either party giving to the other at any
time, say six (6) months' notice in writing
c.

Provided always that the Distributor is not in breach of any of its


obligations and terms whatsoever hereunder AGIP will not appoint any
other distributor for the Products in the Territory during the term of this
Agreement. However AGIP may during the period of six (6) months
prior to the termination hereof appoint the Distributor's successor (if
any) and allow AGIP and such successor to make itself known as
AGIP's future distributor appointed to do business after the termination
of this Agreement

3. Distributor's undertakings
a. The Distributor shall during the continuance of this Agreement purchase
all its requirement of the Products from AGIP and shall diligently and
faithfully serve AGIP as its distributor in the Territory and shall
improve and promote the sale of the Products for Automotive and
Industrial application (excluding international marine application)
to customers through the Territory and to ensure the best possible
display of the Products in all marketing and sales outlets
b. The Distributor shall ensure in all events that the minimum order for the
Products for delivery to the Distributor shall be that set out in clause 6
(f) hereinafter set out in the Second Schedule hereto
274

c.

The Distributor shall ensure to conform with all legislation rules,


regulations and statutory requirements relating to the importation
storage distribution and sale of the Products in the Territory from time
to time

d.

The Distributor shall not alter or treat in any way whatsoever the
content and Consumer Packages of the Products and will supply
Products only in Consumer Packages form and get up in which they are
supplied to the Distributor by AGIP; The Distributor shall procure
similar undertaking from all its marketing and sales outlets accordingly
and shall be responsible for and stand liable for the compliance thereof

e. The Distributor shall maintain sales records in respect of its outlets and
supply each month a sales and stocks return and such other further
records and reports all in the English Language as may be specified by
AGIP from time to time
f. The Distributor shall ensure that its salesmen visit regularly the business
premises of present and potential marketing and sales outlets/customers
for the Products in the Territory and in addition, attempt to obtain
orders for the Products from any persons to whom they may be directed
by GIP
g. The Distributor shall be responsible for ensuring that the Products reach
the consumer in the best possible condition and shall take all positive
precautions to avoid contamination or alteration of the Products and the
Consumer packages and shall educate and procure similar undertaking
from all its salesmen and marketing and sales outlets accordingly and
shall be responsible for and stand liable for the compliance thereof
h.

The Distributor shall promptly resolve satisfactorily any complaints


relating to the promotion sale or provision of technical information and
all other matters whatsoever in respect of the Products arising within
the Territory. The Distributor shall promptly notify AGIP of any
complaints or unusual comments (whether favorable or unfavourable or
by way of requests for information) it may receive pertaining to the
Products or of any defective Products; it is understood that AGIP shall
not be in anyway responsible for or liable to any complaints whatsoever
and the Distributor hereby agrees to fully indemnify AGIP accordingly

275

i. The Distributor shall keep AGIP regularly and continuously informed of


the progress and development of the market in the Territory for the
Products and for all goods similar thereto or competitive therewith and
of all laws and regulations affecting the import distribution labelling
packaging advertising and sale of the Products and of such goods in the
Territory and of all matters whatsoever affecting or relevant to AGIP's
business in the Territory
j. The Distributor shall not distribute similar product in the Territory or
enter into any business transaction in competition with AGIP
k. The Distributor will keep full proper and up-to-date records in the
English Language showing clearly all enquiries, transactions and
proceedings relating to the distributorship, and shall, at all times permit
AGIP or its representatives full access thereto
1. The Distributor hereby acknowledges that the Agreement is personal
and shall not assign or purport to assign the benefit of this Agreement
without the prior consent in writing of AGIP, of which consent shall not
be unreasonably withheld without prejudice to the foregoing. It is
understood that an amalgation or reconstruction or change in control
and change in ownership of up 25% equity and above are deemed an
assignment for which AGIP prior written consent must be procured
m. The Distributor shall in selling the Products be bound by AGIP's
conditions of sale as from time in force and any modification thereto
made by AGIP either generally or in respect of any particular purchase
and in selling shall contract on like terms to those conditions as from
time to time in force together with any general or particular
modifications as respects any particular sale and shall not make any
promises representations warranties or guarantees with reference to the
Products except such as are consistent with those conditions or as one
expressly authorised by AGIP in writing
n. The Distributor shall not directly or through any agent sell any of the
Products outside the Territory or knowingly or having reason to believe
that they would be so resold sell the Products to any person or body
corporate or incorporate within the Territory with a view to their resale
outside the Territory
276

o. The Distributor shall not directly or through any agent sell any of the
Products for marine application or knowingly or having reason to
believe that they would be resold, sell the Products to any person or
body corporate or incorporate
P. The Distributor acknowledges that it is not competent to and will not
incur any liability on behalf of AGIP or in any way pledge or purport to
pledge AGIP's credit or accept any order or make any contract binding
upon AGIP
q. The Distributor shall present a draft annual marketing advertising and
promotion plan to AGIP for comment and approval prior to its
implementation. It is understood that approval by AGIP does not
amount to an acceptance of liability whatsoever or howsoever
thereunder and the Distributor undertakes to fully indemnify AGIP at
all times accordingly
r.

The Distributor undertakes that its marketing advertising and


promotional activities in respect of the Products and shall at all times
comply with the applicable law and the industry standards

s.

Distributor shall conduct its business in a manner that will reflect


favorably on AGIP and AGIP affiliates, the Products and the good
name and reputation of the foregoing and shall foster consumer
confidence in the Products; Distributor shall not engage in any
deceptive or misleading promotion or advertising or indulge or partake
in or condone any unethical trade practices

t. The Distributor shall fully indemnify and keep AGIP fully indemnified
and harmless at all times and from time to time and against any and all
loss damage claim penalties whatsoever and howsoever or liability or
expense (and if soliitor's fees on a solicitor and client's basis to be
taxed) suffered or incurred by AGIP resulting from a breach of any of
the terms herein by the Distributor or otherwise whatsoever and
howsoever in relation to or arising out of this Agreement
4. Principal's undertakings
a. AGIP shall use its best endeavour to supply the Distributor with the
Products ordered by the Distributor
b. AGIP warrants Distributor that the Products will comply with the given
277

characteristics as amended from time to time as contemplated herein


provided always that any claim for breach of the foregoing warranty
must be submitted in writing by Distributor to AGIP within 5 (five)
days after the date in which such claim is made. Failing which such
claims shall not be considered or allowed; It is further provided that
AGIP's liability in respect of any breach of the foregoing warranty shall
be limited in all events to the Distributor's purchase price of the
Products involved plus the cost of transportation of such Products
approved in writing by AGIP prior to the time that such cost is incurred
c. Subject to AGIP prior written approval of the marketing advertising and
promotional plan and the budget thereof and subject always to the strict
compliance thereof AGIP agrees to reimburse the Distributor half the
aforesaid budget spent or actual spending whichever is the lesser; The
approval by AGIP does not amount to an acceptance of liability
whatsoever or however thereunder and the Distributor undertake to
fully indemnify AGIP at all times accordingly
d.

No warranty or warranties expressed or implied including but not


limited to any implied warranty of merchantability or fitness for any
purpose whatsoever are given by AGIP in respect of the Products
excepting only that warranty given to Distributor pursuant above which
is subject to the terms conditions and limitations therein set forth

e. AGIP warrants that information furnished by AGIP to Distributor for


advertising or other promotional purposes in respect of the products
will be as far as practicable accurate at the time of publication

5. AGIP's reservations
AGIP reserves to itself notwithstanding anything to the contrary herein
contained the following rights:
a.

To decline or to accept any order from the Distributor and by so


dedining shall not incur any liability whatsoever to the Distributor if
the Distributor is in breach of any one of the terms whatsoever of this
Agreement

b.

Without prejudice to the generality of this Agreement and without


assigning any reason there to and without prior notice to vary the First
Schedule hereto defining the Products either by withdrawing therefrom

278

a class or classes of Products named therein or by the addition thereto


after notice to the Distributor of a further class or further classes of
products of AGIP and as set to in Clause 1 (a) above
c. If the Distributor is not at any time, producing adequate sales coverage
throughout the whole of the Territory and the region thereof and
without prejudice to any of its right under this Agreement AGIP may
either exclude from this Agreement such part or parts of the Territory
and/or exclude from this Agreement such one or more of the Products
herein defined, or to take both these courses of action, save that neither
such course of action shall be taken under this clause without prior
notice to the Distributor
d. To take such step itself as may seem necessary or expedient (including
and without prejudice to the generality of the reserved right to appoint a
representative in the Territory) to promote the sale of the Products in
the Territory and to notify the Distributor of any persons, firms or
bodies corporate carrying on business in the Territory who appear to be
in a position to enhance the sale of the Products
e. To enter upon manufacture or market research or distribution of any
products whatsoever without consulting the Distributor or remunerating
the Distributor in any way for any of such products may be sold in the
Territory
f. AGIP may sell and supply directly without prior consent or approval of
the Distributor the Products to AGIP Affiliate and such persons or
companies in which AGIP or companies belonging to AGIP own a
share of not less than 30% and take part in in government's tenders
from time to time for the supply and sale of the Products without
remunerating the Distributor in any way
6. Prices, delivery and conditions of sale

a. Prices quoted to the Distributor for any of the Products are set out
against the Products in the First Schedule hereto and are subject to
change by AGIP at any time prior tc ')istributor's firm order
b. AGIP shall have no liability whasoks\ er for any delay in delivery or
performance caused by war, industrial disputes, fire, force majeure or
any other circumstances whatsoever beyond its control
279

c. Without prejudice to any other rights under this Agreement AGIP shall
be entitled to withhold further supplies without liability whatsoever
while payment of any sums due from the Distributor remains
outstanding
d. Distributor shall submit its estimated requirements for the Products
during successive four month's periods to AGIP at least two months
prior to the commencement of each such period
e. For shipments of the Products to Distributor under this Agreement
Distributor shall submit its firm orders with irrevocable confirmed
Letters of Credit established and received and further acceptance by
AGIP as follows:
- not later than the 10 th (tenth) day of the month preceding the month in
which order is to be shipped and for Products to be supplied exSingapore plant
- not less than 6J (sixty) days prior to the desired delivery date for
Products to be supplied ex-Italy
The terms of the irrevocable confirmed Letters of Credit shall be prescribed and
approved by AGIP from time to time.
f. The first Contract Year of this Agreement shall commence on the
effective date hereof and subsequent Contract Years shall commence on
anniversaries of said effective date; during successive Contract Years
Distributor shall purchase from AGIP no less than the quantity of the
Products set out in the Second Schedule
Minimum quantities for subsequent renewal terms shall be agreed upon
between the Parties hereto no less than 6 (six) months prior to the
commencement of the renewal term in question or if not so agreed shall be the
minimum quantity for the immediately preceding Contract Year or the actual
quantity sold during such year whichever is the higher to be increased by 10%
every subsequent renewal year up to 20...
g. Distributor's orders for the products may specify delivery at one time
but no requested delivery shall be for less than 1 (One) Container of
Products
h. AGIP reserves for itself and the AGIP Affiliates the right to discontinue
280

the manufacture or sale of any Products or to make changes in its


composition at any time without any liability to Distributor apart from
that of notifying Distributor
i. Delivery of the Products shall be made within 60 days from the date of
the receipt and acceptance by AGIP of the irrevocable confirmed Letter
of Credit for Products to be supplied ex-Italy and within 30 days for
Products to be supplied ex-Singapore
If for any reasons whatsoever the Distributor shall fail to neglect to take
delivery of the Products within 1 day of schedule date (inclusive) the
AGIP shall be entitled to treat the order as cancelled and invoice the
Distributor for all costs and expenses incurred or dispose of the
Products within 14 days thereafter and invoice the Distributor for all
costs and expenses incurred by AGIP and any diminution in the sale
price
7. Passing of Risk/Title

a. Unless otherwise agreed the risk to the Products shall pass to the
Distributor as soon as or when the Products or part thereof are deemed
delivered or ready for delivery to the Distributor and/or the Products or
part thereof are deemed to be in the Distributor's possession
b. Notwithstanding the aforesaid and without prejudice thereto the Title to
the Products only pass to the Distributor upon full payment of the price
of the Products to AGIP
c. Until full payment and prior to the Distributor's sale of the Products the
Distributor shall keep and/or store the Products in such manner
consistent with AGIP's ownership and manifested to all third parties
8. Payment terms

a. The Distributor agrees to pay for all Products of AGIP ordered by way
of irrevocable confirmed Letters of Credit through a bank payable at
sight to AGIP in United States Dollars payable in Singapore or
elsewhere as AGIP may determine from time to time
b. All amounts required to be paid by the Distributor shall be paid without
deduction or abatement whatsoever

281

9. Stocks
Agreement
The Distributor shall at all times during the continuance of
carry stocks of no less than one month's supply of the Products and ensure that
all orders received by the Distributor's marketing and sales outlets are supplied
without due delay. The Distributor shall take all reasonable steps to ensure that
the stocks are properly stored at all times and that a continuous stock rotation
policy is maintained for all stocks in all warehouses to ensure the quality of the
Products is preserved.
10. Trade marks and patents
a. It is agreed that all rights in the trade marks appearing upon or used in
relation to the Products and of the goodwill attaching thereto are and
shall remain the exclusive property of AGIP or its associated
companies; the Distributor shall only use the said trade marks in
conjunction with the Products and in accordance with the provisions of
this Agreement. The said trade marks shall not be used in any manner
liable to invalidate the registration or lessen the value thereof. The right
to use the said trade marks in connection with the Products is
onlygranted to the extent that AGIP is able to do so without
endangering the validity of the registration or lessening the value. The
Distributor shall immediately inform AGIP of any and every improper
or wrongful use or any actual or potential infringement in the Territory
of AGIP's patents trade marks, designs, models, or similar industrial or
commercial monopoly rights which come to the Distributor's notice and
shall provide full co-operation to AGIP at all times
b.

The Distributor shall not do or omit to do anything by which the


goodwill and reputation associated with the trade marks might be
diminished or jeopardised and shall include in all printed matter on
which any of the trade marks of AGIP (or one of its associated
companies as the case may be) and the form thereof to be determined
by AGIP

c. Distributor is authorised to use AGIP's registered names logos and


trademarks related to the Products during the existence of and in the
course of operating under this Agreement; but nothing contained herein
shall be construed as granting or shall grant to Distributor any rights,

282

title or interest in the above said names and trademarks or other


industrial property right owned or being used by AGIP or any AGIP
Affiliate. Distributor shall take no steps to register any AGIP or AGIP
Affiliate trademark, trade, brand name or logo or any other word(s) or
symbol(s) deemed deceptively similar thereto by AGIP. Distributor
shall have no right to use any such word(s) or symbol(s) as or as part of
its corporate or trade name
d. Upon expiration of this Agreement Distributor shall forwith cease all use
of AGIP's or any AGIP Affiliate's industrial property rights and shall
not thereafter use any such right or any trade mark, brand name or logo
deemed deceptively similar thereto by AGIP except in connection with
the sale of such quantities of the Products as Distributor may have in
stock at the time of expiration or termination
11. Confidentiality
a. The Distributor shall not at any time during or after the term divulge or
allow to divulge to any persons any confidential information relating to
this distributorship or to AGIP
b. Any technical commercial and confidential information given in order to
assist the Distributor to carry out its obligations in this Agreement is
only to be used for the said purposes only
c.

The Distributor shall ensure that its employees and dealers and
marketing and sales outlets are aware of and observe the provisions of
this clause both during the subsistence of this Agreement and thereafter

d. All written material embodying information designated by AGIP as


confidential and all copies thereof are to be returned to AGIP on the
termination of this Agreement
e. The Distributor acknowledges that all information concerning the
Products identified by AGIP or any AGIP Affiliate as trade secret
which Distributor has obtained or shall obtain in consequence of this
Agreement whether from AGIP and AGIP Affiliate or otherwise are
solely for the purposes of this Agreement. Distributor undertakes to use
the same degree of care as in preserving the secrecy of its own secret
business information and shall procure similar undertaking from its own
employees and dealers and marketing and sales outlets accordingly and
283

Distributor shall be responsible for and stand liable for the compliance
thereof. The obligations of this Section shall not apply however to
information which:
i. prior to the transmittal thereof to Distributor was of general public
knowledge or
ii.

becomes subsequent to the time of transmittal to Distributor a


matter of general public knowledge otherwise than as a
consequence of a breach by Distributor of its obligation under this
Section or

iii. is made public by AGIP or


iv. was in the possession of Distributor in documentary form prior to
the time of Disclosure thereof to Distributor by AGIP and was not
acquired directly or indirectly from AGIP and is held by Distributor
free of any obligation of confidence to AGIP or any third party or
v. is received in good faith from a third party to disclose it who to the
best of Distributor's knowledge did not obtain the same from AGIP
and who imposes no obligation of secrecy on Distributor with
respect to such information
12. Independence of the parties
It is agreed by the parties hereto that the Distributor is operating and will
continue to operate for its own account and nothing in this Agreement is
intended or shall be constructed to authorise the Distributor without the prior
written approval of AGIP to create or assume any liability or indebtedness of
any kind in the name of or on behalf of AGIP or to give any warranty of make,
any representation in the name of or on behalf of AGIP and this Agreement
shall not be construed as constituting the Distributor as agents of AGIP for any
purpose whatsoever or to constitute a partnership between the parties hereto
13. Force majeure
a. In the event that AGIP shall be unable to continue the commercial
production of the Products by reason of causes beyond its control
including by way of illustration (but specifically not limited to) fire,
flood, explosion, action of elements, acts of God, accidents, epidemics,
strikes, lockouts or other labour troubles or shortages, inability to obtain
284

or shortage of material, equipment or transportation, insurrections riots,


or civil commotion, war, enemy action, acts, demands or requirements
of any government or by other causes which it could not reasonably be
expected to avoid, then it shall not be responsible for any loss
whatsoever to the Distributor howsoever arising; Thereafter AGIP shall
use its best endeavours to resume the commercial production of the
Products
b. In case of the extension of the circumstances of force majeure
throughout a prolonged period of time whereby the performance of the
respective obligation could not be carried out this Agreement shall be
terminated at the request of either party and this Agreement shall be
treated as frustrated whereupon:
i. without demand all money due to AGIP shall be paid immediately
without deduction; and
ii. the Distributor shall cease to distribute the Products of AGIP
immediately
14. Termination

This Agreement shall terminate:


a. On expiry date; or
b. If:
i.

Any encumbrance shall take possession of any of the property of


either party; or

ii.

Either party shall become insolvent; or

iii. The Distributor shall become bankrupt or to go into liquidation


either voluntary or compulsory unless as part of a bonafide
scheme of reconstruction or amalgamation approved by AGIP or
to be dissolved compound with its creditors or have a receiver
appointed in respect of the whole or any part of its assets; or
iv. A receiver is appointed in respect of one whole or any of the assets
or undertaking or other process shall be issued against any
property of the Distributor; or
v.

The Distributor shall cease or threaten to cease to carry on the


285

whole or any substantial part of its business other than in the


course of reconstruction or amalgamation approved by AGIP
hereto; or
vi.

If the Distributor commits or allows to be committed a breach of


any of its obligations hereinstated and does not remedy such
breach within fourteen (14) days after written notice has been
given to it by AGIP; or

vii.

If the Distributor commits or is charged with the commission of a


criminal or unlawful act or by commission has committed or
charged with a criminal or unlawful act; or

viii. If the Distributor engages in any conduct prejudicial to AGIP or


AGIP's Affiliates generally or the marketing of the Product
generally
Then in any such event AGIP may by a written notice forthwith terminate this
Agreement but without prejudice to any other rights of the parties hereto.
15. Effects of termination
If this Agreement terminates for any reason whatsoever and without prejudice
to any other rights:
a. Without demand all money due to AGIP shall be paid immediately
without deduction
b. The Distributor shall cease to distribute the Products of AGIP
immediately
c. AGIP shall have the discretion and option to regard any unexecuted
orders placed by the Distributor and accepted by AGIP before such
termination as cancelled excepted those in respect of which the
evidence to the
Distributor shall have furnished documentary
satisfaction of AGIP within thirty (30) days from the notice of the
Products ordered to third parties prior to the termination of this
Agreement
d. The Distributor shall if requested by AGIP forthwith return to AGIP or
elsewhere as AGIP may direct at the expense of AGIP all goods or
Products belonging to AGIP in its possession or under its control and

286

all advertising and promotional matters relating to the Products in


its control. In case of default, AGIP shall be entitled without notice to
enter at any time upon the premises where the said goods or Products
may be for the time being and to remove the same
c. All Products remaining unsold which in the mutual opinion of AGIP and
Distributor are not in good condition shall be forthwith disposed of by
the Distributor as directed by AGIP
f The Distributor shall return to AGIP all samples and publicity
promotional and advertising material and technical materials and copies
thereof used in the distributorship
g. The Distributor shall return to AGIP all originals and copies of all
documents and information in any form containing or covering in any
way part of the Intellectual Property and technical specifications and
literature
h.

In the event of termination of this Agreement AGIP shall have the


option to repurchase from Distributor any or all of the Products
purchased from AGIP and owned by Distributor on the date Distributor
receives written notice of AGIP's intention to exercise the repurchase,
shall be the invoice price thereof actually paid by Distributor plus
verified transport cost paid by Distributor. In the event of the exercise
of this repurchase option by AGIP, Distributor shall promptly deliver
the Products to AGIP in conformity with all laws and requirements
which may be necessary or proper to transfer good title to such Products
to AGIP free and clear of any charge lien or encumbrance. AGIP shall
pay Distributor for such product promptly after Distributor has
complied with all of its obligations hereunder

i. Distributor recognizes and agrees that it is fully compensated for its


activities in developing the market for the Products in promoting the
name and reputation of the Products and in building goodwill in respect
of the Products by way of revenues derived from re-sales of the
Products during the currency of this Agreement. Consequently in no
event shall termination of this Agreement for any reasons whatsoever
and howsoever
Give rise to any right of action by Distributor to recover additional
compensation of loss or damage from AGIP
287

16. Non-Competition
During the term of this Agreement the Distributor shall not distribute
manufacture develop or occupy itself in any other way directly or indirectly
with goods of a nature competitive with the Products inside or outside the
Territory without prior written consent from AGIP
17. Appointment of sub-distributors
a. The Distributor shall have the right to appoint Sub-Distributors and
outlets to store and distribute the sales of the Products within the
Territory on behalf of Distributor
b. The Distributor shall also ensure that all Sub-Distributors and outlets
shall at all times observe and comply with the terms and conditions as
stated in this Agreement which are applicable to themselves as
distributors and the Distributor shall be responsible and stand liable for
the compliance thereof
18. Non-Waiver
It is understood and agreed that the failure of delay on the party of AGIP to
require performance or compliance of the Distributor of any provisions of this
Agreement shall not affect AGIP's right to require performance or compliance
which has been waived in writing
19. Assignment
This Agreement shall be binding on the successors and assigns of each of the
parties hereto, provided however that this Agreement shall not be assigned,
transferred or sold in whole or in part by Distributor unless the terms and
conditions of such assignment transfer or sale are approved in writing by AGIP
20. Savings of terms
a. Notwithstanding termination herein the terms conditions warranties
undertakings and indemnities contained or referred to herein shall
continue to subsist and bind the parties and each individual thereof
insofar as same or any part thereof remain unfulfilled or to be
performed or outstanding or for the purpose of giving effect to each and
every one of them
b. The several undertakings of the parties shall survive and shall be treated
288

as in full force and effect notwithstanding any change in shareholding


and directorship or the constitution of AGIP
c. If anyone or more of the provisions contained herein or any documents
or records executed in connection herewith shall be invalid illegal or
unenforceable in any respect under any applicable law, the validity
legality and enforceability of the remaining provisions or part thereof
contained herein shall not in any way be affected or impaired
21. Arbitration
All disputes arising in connection with the present agreement shall be finally
settled under the provisions of the Singapore Arbitration Act and any
modifications thereof from time to time. Arbitration proceedings shall take
place in Singapore. Singapore law shall be applicable
22. Entire Agreement
a. This Agreement embodies the entire understanding of the parties and
overrides and supercedes any prior promises representations
understandings or implications
b. Any amendment hereto must be in writing and signed by the duly
authorised representatives of AGIP and Distributor; No amendment to
this Agreement shall be effected by the acknowledgement or acceptance
by AGIP of purchase orders, invoices, shipping instruction forms or
others similar documents which contain terms or condition at variance
with or in addition to those set forth herein unless such
acknowledgement or acceptance specifically states that it is intended to
amend this Agreement
23. Interpretation
a. Any reference to any of the parties herein include their assignees and/or
successors-in-title and/or personal representatives
b. Words importing the singular tense includes the plural tense and viceversa
c. Words importing the masculine gender include the feminine gender and
neuter gender and vice-versa
d. Person(s) include(s) a Corporation and vice-versa
289

e. The Clause headings in this Agreement are for ease of reference only
and will not affect the interpretation hereof
24. Notices
Any notices required to be served hereunder shall be sufficiently given if
forwarded by registered post, recorded, delivered via cable, telex or telegraph to
the address set out at the head of this Agreement or such other address' as may
have been notified in writing to the other party for such purposes
25. Execution
This Agreement may be executed in any number of counterparts. Any single
counterpart or a set of counterparts executed in either case by all the parties
hereto shall constitute full and original agreement for all purposes
IN WITTNESS WHEREOF the parties hereto have caused this Agreement to
be executed in counterpart original by their duly authorised representatives on
the day and year first set forth above.
SIGNED by

SIGNED by

On behalf of

On behalf of

AGIP PETROLI SPA

290

DISTRIBUTOR

5.2. The Vietnamese version of the contract

HOP HONG DAI IA' PHAN PHOI


Hop &Ong nay diroc lap ngay 1 thang 1 nam 19 ... giaa chi nhanh cita AGIP
PETROLI SPA Singapore c6 tru s6 tai s6 nha 302 throng Orchard 14-02 to 14-04
Tong Building Singapore 0923 ("AGIP").
Va

c6 tru s& da dang ky tai

("Ngubi phan ph6i").

AGIP va Ngabi phan ph6i (NPP) da 14 k6t hop &Mg nay va dong y nhu sau:

1. Cac dinh nghia


Khi sir dung trong hop dong nay cac khai niem sau se c6 nghia duqc giai thich
dudi day:
a) "San phdm" se c6 nghia la cac loci dau m6 bOi Iron cho dong co va dang
trong cong nghiep va cac san phdm dac biet dirqc liet ke trong Bdng dank mac thin
nhat de cho NPP tieu thu trong cac Bao Bi Tieu Dung (nhu se dtroc dinh nghia dudi
day) c6 cac nhan hieu tilting mai va/hoac cac kieu dang Cita AGIP da duoc dang
14; Cac ben cita hop dong nay da dong y rang AGIP hoac cac cong ty con oh
AGIP (nhu duoc dinh nghia sau day) 6 cac th6i kS , c6 the thirc hien viec nang cao
chat luting hay thay d6i cho cac san phdm trong tiled han hieu lac dm hop (long nay
ma khOng phai dim ra bat 14 li do gi cho sir thay d6i d6; viec nang cao chat Wong
hoac thay d6i nay se khong anh huO'cng den tinh chat phap 17 cua san phdm nhu la 1
san phdm them chi ca khi den den cac thay d6i v6 cac dac tinh cua san phdm va
AGIP se thong btio cho NPP viec tang chat Wong va cac thay d6i do
b) "Dia hat" c6 nghia la na6c COng hoe xa hOi chit nghia Viet Nam
c) "Bao bi tieu clang" c6 nghia la cac bao bi tieu chudn do AGIP clang trong
tang thbi ki
d) "COng ty con" c6 nghia bat kl mat thirc the ilex) chiu sir diet' khien caa AGIP
hoac dudi sir dieu khien chung voi cac thirc the ca the khac
"Dieu khien" c6 nghia la chi6rn 25% hoac nhieu hon quyen s& him dol veri trai
phial c6 quyen bieu quye't hien da phat hanh hoac c6 cac can bO hoac giam d6c
chung hoac mot m6i quan he c6 tinh hop &Ong cho phep mot thirc the dam nhen
hoac c6 anh hir6ng ldn den viec quart 17 hoac hoat Ong dm thirc the khac
2. ViCc chi dinh
a) Theo cac dieu khoan cila hop Ming nay AGIP cho phap NPP trong thbi han
291

hien luc cua hop dong dOc quyen mua dd phan ph6i va tieu thu lai trong Dia Hat
cac san phdm cua AGIP cho dOng co va trong c6ng nghiep (trir ling dung vao 'iang
hai qu6c to quy dinh cu the trong Bdng danh muc the nhat
b) Viec chi dinh nay se c6 hieu luc vao ngay .../...va se keo dai trong 1 giai
clop x nam tit ngay d6 va se tieP tuc sau thOi gian do cho ddn khi diroc kdt thilc bbri
1 trong 2 ben thOng bao truck 6 thang cho ben kia bang van ban vao bat ky thOi
didm nao trir khi bang cach khac, bi k6t thilc theo cac dieu khoan dm hop (long nay
3. Trach nhiOn (cam ICCI) cua NPP

a) Trong thOi gian hieu luc cua hop d6ng nay NPP se mua cua AGIP a dap
ung tat ca cac nhu cau cua minh ve cac san phdm va se can man va trung thtic coi
AGIP la ngirOi cung cap cua minh trong Dia Hat va se tang cuOng thdc ddy viec tieu
thu cac san phdm cho cac drig dung cua Ong co va cOng nghiep (trir tIng dung hang
hai quoc te) cho cac khach hang cua minh tren toan 1)0 Dia Hat va dam bao viec
trung bay cac san phdm tot nhat co thd trong tat ca cac diem tieu thu va ban hang
b) NPP se dam bao trong moi throng hop don dat hang vOi s6 luong nh6 nhat
giao cho NPP se la so luong quy dinh trong dieu 6 (f) sau day &roc quy dinh trong
bang danh muc thti 2 cua hop dong nay
c) NPP dam bao rang ho se tuan thu moi quy chd, quy tac, quy dinh va cac quy
dinh phap ly lien quan den viec nhap khdu, bao quan, phan ph6i va ban cac San
phdm trong Dia Hat tong thOi ky
d) NPP se khOng thay d6i hoac xu lf bang bat kl cach nao hang hod va Bao bi
tieu dung cua cac San Phdm va se cung cap cac san phdm do chi trong cac dang va
kieu cua bao 131 tieu dung ma AGIP cung cap cho NPP
Do do NPP se yeu cau cac cam ke't arcing to tir cac didm ban hang va tieu thu
san phdm cua minh va se chiu trach nhiem cho viec man thu cac nguyen tac nay
e) NPP se duy tri cac bao cao ban hang dm cac diem ban hang va tInh hInh
cung cap cua minh tong thang s6 luong hang tieu thu va ton kho va cac bao cao
khac nhu vay bang tieng Anh khi c6 thd clugc AGIP yeu cau trong ding thai ky
f) NPP dam bao rang cac nhan vien ban hang dia minh thirOng xuyen ddn tham
co sbr kinh doanh cua cac didm tieu thu va ban san phdm/khach hang hien tai c6 kha
nang trong Dia Hat ngoai cac cuOc vieng tham dd nhan diroc don dat hang mua san
phdm to bat ky ngtroi nao ma c6 thd do AGIP chi dinh
g) NPP chiu trach nhiem cho viec dam bao rang cac San Pham ddn tay ngirOi
tia dung trong dieu kien tot nhat c6 thd va se thirc hien tat ca cac bien phap pheng
cac san phdm vao cac bao
ngira tich cuc dd tranh viec nhiem bdn hoac thay
292

bi tieu dung va se htrang dan va yeu can cac cam ket ming to tir phia tat ca cac
nhan vien ban hang Ira do do se chiu trach nhiem cho viec tuan thu cac cam ket nay
h) NPP se ngay lap tCrc giai guy& on thoa bat kSf cac phan nan lien quan den
viec auk day ban hang hoac viec cung cap cac thOng tin ve ky thuat va tat ca cac
van de khac tiring to nhu vay ve san pham nay sinh trong Dia Hat; NPP se ngay lap
tirc thOng bao AGIP bat ki phan nan hoac cac nhan xet khong binh thuing nao (bat
ki tit hay xau hoac yeu cau cung cap th6ng tin) ho c6 the nhan citric lien quan den
hang hod hoac cac san pham c6 16i; cac ben hieu rang AGIP se khOng chiu trach
nhiem bang bat ki cach nao ve cac phan nan va NPP bang hip ding nay dingy bii
thuing lai hoan toan cho AGIP
i) NPP se dam bao thuing xuyen va lien tuc thOng bao cac tienbO va phat trien
ciaa thi truing cho cac San pham, cho cac hang hod wing tkr, va cac hang hod canh
tranh vii chiing trong Dia Hat va tat ca cac quy dinh luat phap anh huing toi nhap
khau, phan phoi nhan hieu bao bi quang cao va fiat thu caa nhang hang hod do
trong Dia Hat va tat ca cac van de khac anh huing hoac lien quan den viec kinh
doanh cac san pham AGIP trong Dia hat
j) NPP se kh6ng phan phii cac san pham wing to trong Dia hat va ki ket cac
thuing vu canh tranh vii AGIP
cac bao cao day du, &mg dan, va cap nhat bang tie'ng Anh
k) NPP se luu
chi ri rang tat ca cac thu yeu cau, cac thuong vu va cac thu tkic lien quan den quyen
phan ph6i va tai moi thin diem cho phep AGIP hoac cac dai dien cua AGIP tiep can
cac chung to nay
I) NPP i day xac nhan rang hop ding nay la chi Oita AGIP va NPP va se
khOng chuyen nhuing hoac ngam chuyen nhtring quyen lgi dia hip ding nay ma
khing co su dingy bang van ban cna AGIP va su dingy nay se kh6ng citric to
ch6i mat cach phi 11, khing anh huing den cac dieu not tren; cac ben hieu rang mot
su sat nhap cai tao lai hoac thay dii quyen dieu khien hay thay dii quyen si hau
tren 25% s6 co phieu duic hieu la chuyen nhtring va dieu nay nhat dinh phai cc -) su
dingy truck bang van ban dia AGIP
m) Trong viec tieu thu NPP se bi rang buOc vii cac dieu kien ban hang cila
AGIP co hieu ivy trong tang thin ky va cac thay dii cho chfing do AGIP tien hanh
ca ve dieu kien chung cling nhu ve cac vu mua sam cu the va trong viec ban hang se
ki hip ding theo dieu khoan wing to vii nhang dieu nay ding vii bat ki cac thay
dii chung hoac rieng nao cho tang vu ban hang rieng, NPP se khing cam ket xuat
trinh giay bao hanh cho cac san pham tir nhang thu phii hop vii cac dieu khoan nay
hoac &pc AGIP cho phep bang van ban
293

n) NPP se khOng trkrc tieP hoac qua bat ki mot trung gian nao ban bat ki San
Phdm nao ngoai Dia Hat hoac cho cac ca nhan hoac ca quan nao thanh lap trong
Dia Hat c6 muc dich ban tai ngoai Dia Hat ma NPP biet rang hoac c6 1i do de tin
rang chting se duqc ban lai nhu vay
o) NPP se khOng trkrc tiep hoac qua bat ki mot trung gian nao ban bat ki San
Phdm nao cho cac king dung hang hai cho bat ki ca nhan hoac ca quan nao, ma NPP
biet hoac c6 lido
tin rang chting se duac ban nhu vay

p) NPP xac nhan rang khOng du quyen de va cling se khOng ganh chiu thay mat
cho AGIP bat kS/ khoan no nao caa AGIP hoac bat ki cach nao cam co hoac ngdm
cam co uy tin cita AGIP hoac chap nhan bat ki don dat hang nao hoac ki bat ki mot
hap (long nao rang buOc AGIP
q) NPP xugt trinh cho AGIP ke hoach dkr dinh quang cao va Marketing hang
nam de AGIP nhan xet va thOng qua tru6c khi thkrc hien; cac ben hieu rang su
thOng qua cita AGIP khOng duot qui la viec chap nhan cac trach nhiem hoac bat ki
viec nao arcing tkr nhu vay trong viec thOng qua nay va NPP cam ket boi thuang
toan bo cho AGIP tai moi thai diem tuong (mg
r) NPP cam ket rang cac hoat Ong Marketing, quang cao, va thtic ddy cho San
Phdm tai moi thai diem luOn phi' hop vdi luat ap dung va cac tieu chudn cung
nghiep
s) NPP se thuc hien cung viec kinh doanh sao cho tao ra tieng tot ve AGIP va
cac cung ty con caa AGIP cac San Phdm va ten hang hod va tieng tam dm cac thin
not tren va se ding co long tin oh ngtrai tieu dung doi vdi cac San Phdm; NPP se
khOng hoat dOng viec quang cao lira &Si va se khOng theo duoi tham gia va nhan
nhuang cho cac tap doan buOn ban trai vdi quan niem thOng thuang
t) NPP se den ba toan 13.0 va luon dam bao AGIP duac den bit va khOng bi anh
huang tru6c cac thiet hai doi tien phat, cac khoan tucmg to nhu vay hoac cac khoan
na hoac chi phi (va neu phi thue luat su tren co s& khach hang hoac luat su phai
chiu thue) ma AGIP phai chiu lo viec vi pham cua NPP bat ki diet' khoan nao trong
hop clang nay hoac cac viec khac arcing ttr xay ra bang cach khac lien quan den
hoac nay sinh ti' hop (long nay ti' moi thai diem va timg giai clop
4. Trach nhiOn ciia ngtroi uy tithe
a) AGIP se co gang het sac de cung cap cho NPP cac San Phdm do NPP dat
hang
b) AGIP bao dam v6i NPP rang cac San Phdm se phi' hop vai cac chi tieu chat
Wang quy dinh nhir sira doi trong tang thai ki c6 quy Binh trong hop clang nay v6i
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dieu kien bat kSikhieu nai nao ve viec vi pham cac bao dam da not tren phai dugc
AGIP de trinh cho AGIP bang van ban trong Ong 5 ngay sau ngay ke tit ngay lap
don khieu nai, qua tiled han tren cac khien nai nhu vay se khOng dugc xem xet;
ngoai ra hop dong con quy dinh rang trach nhiem cita AGIP ve viec vi pham cac
bao dam not tren se dugc han the trong moi truing hop den gia mua cua NPP Ong
vii cac chi phi van chuyen cac san phdm nay dugc AGIP th6ng qua bang van ban
truOc khi chiu cac chi phi nhu vay
c) TuSr thuOc vao skr thong qua trudc bang van ban cita AGIP ye ke hoach thtic
ddy va quang cao va so tien danh cho viec nay va luOn tuS7thuOc vao viec tuan thit
cac diet' nay trong hop (long AGIP hoan lai cho NPP 1/2 s6 tien not tren hoac s6
tier' thkrc to sir dung tuSi theo s6 nao nhO hon. Sir th6ng qua cita AGIP khOng dugc
qui la viec chap nhan cac nghia vu hoac cac khoan tuong to theo do va NPP cam ket
boi thagng toanbO lai cho AGIP tai moi thin diem
d) AGIP kh6ng dua ra su bao dam nao bao gom ca bac, dam ro rang hoac ngu
kh6ng chi han the den cac bao dam ngu y, ye tinh c6 the tieu tint dugc hoac tinh
phi hop cua san phdm veri muc dich nao cho cac San Phdm chi trir cac bao dam cho
NPP phi hop \Teri (b) o tren phi hop vii dieu kien va thu hieu t6 tang qui dinh & do
e) AGIP dam bao rang cac th6ng tin do AGIP cung cap cho NPP de quang cao
hoac cac muc dich thilc ddy khac do san phdm se chinh xac ve mat that tien vao
thu diem xual ban
5. Cac bac, luu cua AGIP
Cho du c6 trai vii bat ki dieu gi c6 trong hop clOng nay AGIP bao luu cho minh
cac quyen sau:
a) Ti chi hoac chap nhan bat ki don dat hang nao cua NPP va bang viec tir
ch6i nhu vay AGIP khOng chiu bat ki trach nhiem gl hoac cac thd tuong to doi vgi
NPP nett NPP vi pham bat ki mot dieu khoan nao hoac bat ki viec tuong to nao
trong hop dong nay
b) Thay dei bcing Danh Myc This nhdt cita hop (long nay xac dinh cac San
Phdm bang cach hoac rut khOi bang nay mot hoac mot so loci san phdm c ten
trong bang hoac them cac san phdm vao bang nay sau khi thong bao cho NPP ve
mot hoac cac loci san phdm cua AGIP nhu qui dinh trong dieu 1 not tren ma kh6ng
anh huong den tinh tong quit cita hop dong nay, kh6ng dua ra bat ki li do gl va
khOng thOng bao trugc
c) Neu NPP tai bat ki thin diem nao kh6ng dam bao day dit viec tieu thu hang
cho toan bO Dia Hat va khu vac cita Dia Hat, khOng anh hiring den bat ki quyen
nao cua minh theo hop dong nay AGIP c6 the loci trir ra khOi hop &it -1g nay mot
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phdn hoac cac phdn nhu vay caa Dia Hat va/hoac loai trir ra khoi hop (long nay mot
hoac nhieu san phdm xac dinh trong hop &rig nay hoac thkrc hien ca hai hanh dOng
nhu vay ma khOng phai thOng bao voi NPP trir rang ca hai hanh dOng nhir vay
khOng duqc thkrc hien theo dieu khoan nay
d) Tir thkrc hien cac bien phap khi thay c6 the can thiel (bao gom va khOng Anh
hu6ng den tinh tang quat cua quyen duoc bao luu chi dinh mot dai dien trong Dia
Hat)
fink ddy viec tieu thu san phdm trong Dia Hat va thOng bao cho NPP ve bat
ki ngtr6i, cong ty hoac to chile nao c6 kinh doanh a trong Dia hat ma c6 the ddy
manh duoc viec tieu thu san phdm

e) Bdt ddu san xuat hoac ighien cdu thi truang hoac phan ph6i bat ki san phdm
nao hoac viec nhu vay ma kh( ng phai hoi y kien NPP hoac tinh hoa hong cho ngtr6i
phan phi bang bat ki each nao ve cac san phdm nhu vay khi c6 the duoc ban trong
Dia hat
f) AGIP c6 the ban va cung cap true tip khOng can c6 su dong yr truck dm
NPP cac San phdm cho cac cong ty con dm AGIP ma trong cac cling ty nay AGIP
hoac cac cong ty thuOc tap doan AGIP s6 huu it nhat 30% c6 phielr va tham gia vao
cac cuOc dau thdu caa chit-1h pha, khi co, cho viec cung cap va ban cac San Phdm
ma khOng phai tinh hoa hong cho NPP bang bat ki each nao

6. Gia ca, giao hang va the dieu ki0 ban hang


a) Gia Ca cho bat ki cac San Phdm ban cho NPP duoc qui dinh cho cac Sdn
Phdm Bang qt ke ilia nhat ctia hop &lig nay va tuy thuoc vao su thay d6i cua
AGIP tai bat kSr th6i diem nao truck khi nhan duoc don dat hang c6 dinh caa NPP
b) AGIP se khOng chiu trach nhiem ve bat ki sir cham tre nao trong viec giao
hang hoac viec thkrc hien do chin tranh, tranh chap cong nghiep, chay, bat kha
khang hoac bat ki tru6ng hop nao khac nhu vay nam ngoai quyen kiern soat caa
minh
c) KhOng anh huong den bat ki quyen nao khac theo hop dong nay AGIP se c6
quyen ngirng viec giao hang tieP ma khong chiu trach nhiem ve cac nghia vu arcing
to trong khi viec thanh toan bat ki khoan tien deb han nao caa NPP van ton tai
d) NPP se de trinh nhu cdu dkr kieit caa minh ve cac San phdm trong 4 thang
tieP sau cho AGIP it nhat 2 thang truck ngay ddu tien caa giai doan 4 thang
e) Ve cac chuyeit hang giao cho NPP theo hop dong nay NPP se xuat trinh cac
don dat hang c6 dinh cua minh ding voi L/C khOng huYr ngang c6 xac nhan duoc
m& va duoc AGIP nhan va chap nhan nhu sau:
- KhOng cham hon ngay thd 10 caa thang tru6c, thang ma trong thang nay
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hang hod dm don dat hang phai duoc giao d6i vgi cac San Phdm duoc giao tir
Singapore
- KhOng qua 60 ngay tru6c ngay giao hang du tinh d6i vgi cac san phdm duoc
giao tir Italia
Cac dien khoan cua L/C khong huY ngang c6 xac nhdn phai duoc ghi 1-6 va
thong qua b&i AGIP tong thbi diem
f) Nam hop dong ddu tien dm hop dong nay se bat clan vao ngay c6 hieu luc
dm hop (long nay va cac nam hop (long tiep theo se bat ddu vao ngay ki them cua
ngay c6 hieu luc da noi; trong cac nam hop clang tiep theo NPP se mua cua AGIP
kh6ng it han s6 lacing cac San Phdm qui Binh trong Bdng lift ke thir hai
S6 Wong t6i thieu trong cac th6i han keo dui tiep theo se duoc hai ben dm hop
clang nay thou thuan (long y tru6c ngay bat ddu cua th6i han keo dui noi tren it nhat
6 thang nen kh6ng dong y duoc nhu vay se la s6 lacing t6i thieu cua nam hop dong
truck ngay sau do hoac la s6 luong t6i thieu nay se duoc tang them 10% moi nam
trong tat ca cac nam duo'c keo dui tiep theo cho den nam 20...
g) Cac don dat hang cho cac San Phdm cua NPP c6 the cu the hod hang se giao
tai mot th6i diem hoac cac thOi gian khac nhau nhtmg lacing hang hod yeu cau phai
lon han hoac bang mgt Container
h) AGIP bac) Itru cho minh va cac cOng ty con cua AGIP quyen dugc ngirng
viec san xuat hoac ban bat ki San Phdm nao hoac thay dei thanh phan cat' tao cua
cac san phdm cua minh tai bat ki thai diem nao ma khong chiu bat ki truth nhi'em
gi dCii vgi NPP trir truth nhiem thOng bao cho NPP
i) Qic San Phdm se duoc giao trong yang 60 ngay ke tir ngay AGIP nhan duoc
va chap nhan L/C khong huY ngang co xac nhan d6i v6i cac san phdm ducic giao tir
Italia va trong \Tong 30 ngay d6i vgi cac San Phdm khong dugc giao tir Singapore
j) N6u vi bat ki li do gi va NPP khOng hoac sao lang nhan hang trong yang 14
ngay tir ngay dir kien (ke Ca ngay nay) sau do AGIP se co quyen coi don hang la
duoc huY va ghi hod don dOi NPP tat ca cac chi phi do AGIP chiu va bat ki sty giam
nao trong gia ban
7. Chu361 riii ro/s6 hiru
a) Trir khi dong y khac di, rth ro d6i vgi hang hod se chuyen qua NPP khi cac
San Phdm hoac mot phAn cua cluing duoc coi la da duoc giao hoac san sang giao
cho NPP va/hoac cac San Phdm hoac met phAn cua cluing dugc hieu la da thugc
quyen ser hith cua NPP

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b) Bat ke didu net tren va khOng anh hu&ng den cac dieu nay guy& s& hint dei
voi hang hoa chi chuydn qua NPP khi thanh toan toan be den hang theo gia cita cac
San Phdm cho AGIP
c) NPP se trir va/hoac lu'u kho cac San Phdm voi quyen s& him cita AGIP va the
hien re diet' nay cho ben thd ba biet cho den khi thanh toan toan be va truot khi
NPP tieu thu cac san phdm
8. Thanh toan
a) NPP clang y thanh toan cho toan be cac San Phdm dugc dat hang cita AGIP
bang L/C khOng ht4 ngang c6 xac nhan tra tier' ngay qua met ngan hang den AGIP
bang USD c6 the thanh toan tai Singapore hoac cac not khac nhu AGIP c6 the xac
dinh tong thei diem
b) Toan be khoan tier' yeu cau NPP tra se dugc thanh toan khOng khau trtr hoac
giam bet hoac cac viec ttrong to
9. Du tril hang
Trong thbi han hieu luc cua hop (long nay NPP se luen luen duy tri met lugng
hang du tar khOng it hcm khei lugng hang cung cap trong met thang va dam bao
rang tat ca cac don hang nhan dugc to cac diem tieu thu va ban hang cita NPP dugc
cung cap khOng cham tr8, NPP thuc hien tat ca cac bien phap hop 11 a dam bao
rang lugng hang du trCr la thich hop va met chit -1h sach quay \Jong du till lien tuc
dugc duy tri d6i vai tat ca cac hang hoa du tax trong tat ca cac kho chtla de dam bac,
rang chat Wong cUa cac san phdm dugc bao ye
10. Nhan lieu thuong mai va cac phat minh
a) Cac ben dong y rang tat ca cac quyen ve nhan hieu thuong mai & tren hoac
dugc sir dung cho cac san phdm va quyen khai thac kem theo day van se la tai san
rieng cua AGIP hoac cac cOng ty con cila minh; NPP se chi sir dung cac nhan hieu
thuong mai da not trong cac cOng viec lien quan den cac san phdm va phit hop vOi
cac didu khoan cita hgp deng nay, cac nhan hieu thuong mai da not se khOng dugc
sir dung theo cach ma c6 the lam mat hieu luc cita viec dang ki hoac giam bert gia
tri cita chung, quyen dugc sir dung cac nhan hieu thuong mai nay cho cac san phdm
chi duet cho phep trong chirng muc ma AGIP c6 the lam nhu vay ma khOng lam
nguy him den hieu luc cua viec dang ki hoac lam giam gia tri dia. no; NPP se bao
ngay cho AGIP ve bat kl sir sir dung khong thIch hop hoac sai hoac sir thuc su vi
pham thuong mai, thiet ke mau cua AGIP ma NPP thay, va se luen luOn Ong tac
chat the vOi AGIP
b) NPP se khOng lam hoac b6 khOng lam bat ki dieu gi ma c6 the giam hoac
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lam nguy hiem den uy tin quyen khai thac lien quan den nhan hieu thuong mai va
NPP se ghi vao tat ca cac an phdm c cac nhan hieu thuong mai mot cau rang cac
nhan hieu thuong mai do la nhan hien thuong mai cud. AGIP (ho4c mot trong s6 cac
tong ty con dm AGIP tuY truing hop) hinh fink cua cac an phdm nay phai dugc
AGIP guy& dinh
c) NPP dugc pile') sir dung ten hinh tuong va cac nhan hieu thuong mai dugc
clang ki cua AGIP lien quan den san phdm trong thin han hieu lirc caa hop thing nay
va trong giai doan tridn khai theo hop dong nay; khOng mot dieu gi & trong hop
clong nay se dugc cho la cho hung hoac se cho NPP huOng bat ki quyen sd hitu
nao hoac la quyen lgi trong ten va nhiin hieu thuong mai hoac la quyen so' him cOng
nghiep khac cua AGIP \Ta clang dugc AGIP hoac cac cOng ty con cua AGIP sir dung
NPP se khOng thirc hien bien phap nao de clang ki bat ki bieu tuong thuong
mai, nhan hieu thuong mai va hinh tuong hoac bat ki cac chit cua AGIP va cac cOng
ty con cua AGIP hoac cac chit va hinh mau khac ma AGIP cho la tuong to vii cac
chit tren. NPP se khOng co quyen sir dung bat ki mot chit hoac hinh mau nao la
hoac mot phan ten thuong mai cua AGIP
d) Khi het thin han hieu luc cua hop (long nay NPP se ngay lap tirc ding viec
sit dung tat ca cac quyen s& him cOng nghiep va sau do se khOng sir dung nhitng
quyen do hoac cac bieu tuong thuong mai ten hieu hoac hinh mau ma AGIP cho la
toting to vii cac thi nay trir viec dung lien quan den viec tieu thu s6 luting cac San
Phdm ma NPP co the a trong kho vao thin diem het han hoac ket thtic hop &lig
11. Tinh ban mat
a) Tai mot thin diem trong hoac sau thin han hien luc dm hop (long nay NPP se
khong va khong dugc phep 66110 cho bat ki ngtrbi nao bat ki mot thong tin bi mat
nao lien quan den viec phan phoi ho4c lien quan den AGIP
b) Bat ki thong tin bi mat ye ky thuat va thuong mai nao do AGIP cung cap de
gitip NPP thut hien nghia vu cua minh trong hop &Ong nay chi diroc sir dung cho
muc dich da neu
c) NPP se dam bao rang cac nhan vien cua minh, cac ngtrOi ban hang, cac diem
tieu thu va ban san phdm biet ro va ton trong cac quy dinh cua dieu khoan nay
trong ca thin han hieu luc cung nhu sau nay
d) Tat ca cac an phdm cung cap thong tin ma AGIP cid chi dinh la bac, mat va
tat Ca cac ban copy cua Ching se dugc tra lai cho AGIP khi ket fink hop dOng nay
e) NPP xac nhan rang tat ca cac thong tin ve cac san phdm dugc AGIP va cac
cong ty con dm AGIP xac dinh la bi mat thuong mai ma NPP da nhan &roc hoac se
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nhan dugc tir hop thing nay vgi AGIP hoac tir cac cong ty con cita AGIP hoac bang
cach khac la chi sir dung vgi muc do can trong nhu trong viec bao ve ski* bi mat cila
cac thOng tin thuong mai bi mat &la rieng minh va se yeu cau cac cam ket Wong ty
tir phia nhan vien, ngued ban hang, cac diem ban hang va tieu thu san phdm cita
minh va NPP se chiu trach nhiem ve viec tuan thU nhilng diet' nay; du sao cac nghia
vu cita phan nay se khOng ap dung vgi cac tin tuc ma:
i) Trugc khi chuyen chting cho NPP not chung da dugc quan chdng biet; hoac
ii) Sau thOi diem chuyen cho NPP dugc moi ngtrOi bie't khOng phai do viec vi
pham cua NPP ve nghia vu da minh theo muc nay; hoac
iii) Do AGIP thOng bao cho cong chting; hoac
iv) ThuOc quyen so hdu cua NPP dugi hinh thdc cluing tir trugc khi AGIP tiet
10 nhiing dieu nay cho NPP va NPP khOng lay truc tiep hoac gian tiep tir AGIP va
dugc NPP gift khOng c6 trach nhiem gift bi mat dgi vgi AGIP hoac la bat ki mot ben
this 3 nao khac; hoac
v) Dtroc nhan do tin tugng tir mot ben thd 3 c6 quyen tiet 10 cac thong tin nay
nguii ma NPP tren co s& tat ca cac thOng tin san c6 cUa minh cho rang ben thd 3
nay khOng nhan dugc cac thOng tin nay tir AGIP va khOng yeu cau nghia vu gi ve
viec bao mat ve cac thong tin nay dgi vgi NPP
12. Tinh dnc lap ciia cac ben
Cac ben cita hop Bong nay (long 9 rang NPP hoat dOng va se hoat Ong vi lgi
ich &la minh va khOng dieu gi 0 trong hop thing nay la gianh cho hoac dugc hieu la
cho phep NPP ma khOng c6 six clang y trugc bang van ban cua AGIP tao ra hoac
ganh vac bat IcS, mot nghia vu hoac cac no thuOc bat ki dang nao nhan danh hoac
thay mat cho AGIP hoac dtra ra bat ki hoac bao dam nao hoac trinh bay bat ki mot
viec gi nhan danh hoac thay mat cho AGIP va hop dong nay se khOng dugc hieu la
chi dinh NPP la dai 19 cho AGIP vgi bat ki muc dich gi hoac tao thanh mot quan he
ban buOn giCra cac ben hop (long nay
13. Bat kha khong
a) Trong trugng hop AGIP khong tiep tuc dugc viec san xuat thuong mai cac
San Pharn do li do narn ngoai su dieu khien cita minh bao gom ca chang han bang
cac vi du minh hoa (nhung khOng gidi han chi nhCrng dieu nay) chay, lut, n6, cac
tac Ong cua thien nhien, thien tai, tai nan, Ong dat, dinh cong, be xtrOng hoac cac
van de lao dOng khac hoac khOng mua dugc hoc thieu nguyen lieu thiet bi hoac
van tai kh&i nghia n6i loan hoac clan bien, chien tranh, hanh dOng cUa ke UM, hanh
dOng, lenh hoac yeu cau cUa bat ki chinh phit nao hoac do cac nguyen nhan khac
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ma khOng the ltrOng trugc dugc mot cach hop 1i de tranh &rot thl AGIP se khOng
chiu trach nhiem d6i vgi NPP ve bgt cfr thiet hai nao hoac cOng viec tuong to nay
sinh. Sau do AGIP se c6 h6t sac minh de khOi phuc viec san xugt thuong mai va cac
san phgm
b) Trong trugng hop keo dai tinh trang bat kha khang trong su6t mot giai down
dai trong d6 viec thuc hien cac nghia vu tuong fmg khOng the that hien &roc hop
dong nay se dugc ket thdc khi c6 de nghi cua mot trong hai ben va hop deing nay se
duqc xem nhu het hieu luc khi do:
- Tgt ca cac khoan tien dia AGIP se dugc thanh toan ngay lap tut khOng khgu
tar, khOng phai doi; va
- NPP se ngUng phan ph6i cac San Phgm cua AGIP ngay lap tut.
14. Ket fink hop thing
Hop dong nay se duqc IC6t fink:
a) Vao ngay he't han; hoac
b) Wu:
i) Bgt ki mot the ltrc nao do chie'm him so' hiru tai san cita mot trong hai ben;
hoac
ii) MOt trong hai ben se khong tri duoc no, hoac
iii) NPP se bi pha san hoac bi thanh li hoac to nguyen hoac bat buOc trir khi
mot phan dm IC6 hoach cai tao hoac sat nhap trung thtrc duqc AGIP thOng qua hoac
giai the c6 su thOng nhgt vgi chu no ve cac giai guy& hoac c6 mot ngtrgi tie'p nhan
mot phin hoac town b0 tai san cUa minh dugc chi dinh; hoac
iv) MOt ngtroi thtra IC6 duot chi dinh d6i vgi toan big hoac bgt ki big phan tai san
hoac c6 nghia vu cam ke't nao hoac cac qua trInh khac se dugc tie'n hanh d6i vgi tai
san cUa NPP; hoac
v) NPP ngUng hoac de doa ngirng thtrc hien toan 1)0 hoac bgt ki mgt phan lan
viec kinh doanh cUa minh ma khOng phai trong qua trinh cai tao lai hoac sat nhap
&roc AGIP thong qua; hoac
vi) Neu NPP vi pham hoac &roc phep vi pham bgt ki mgt nghia vu nao cita
minh trong hop (long nay va khOng sira chda viec vi pham do trong veng 14 ngay
sau khi AGIP da dua ra thOng bao bang van ban; hoac

vii) Nat NPP pham toi hoac bi buOc toi hoac pham cac hanh dOng bgt hop
Olaf, hoac da bi bugc tgi hoac cac hanh dOng bat hop phap khac; hoac
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viii) N6u NPP tham gia vao bat ki c6ng vie'c gl anh htrOng den AGIP hoac cac
cOng ty con cua AGIP hoac viec ban cac san phdm not chung
Trong cac trikmg hop nhu vay AGIP co the thong boo bang van ban k6t tithe
hop &Ong nay ma khOng anh hung deb cac quyen khac cua cac ben trong hop (long
nay
15. Hi0 Ittc cua viec ke't thtic hop thing
1\16u hop dong nay kei thtic do bat ki mot li do nao Ara khOng anh huang den cac
quyen khac: a) Tat Ca CAC khoan lien cua AGIP se cluoc thanh toan ngay lap tdc khOng khdu
trir khOng phai doi
b) NPP se ngimg phan ph6i Cac San Phdm cua AGIP ngay lap tdc
c) AGIP se co the thy y minh co quyen coi cac don hang chua dugc thus hien
do NPP dat va da duqc AGIP chap nhdn tilt& khi ket fink hop dOng nay la da &roc
hu}', trix cac don hang ma trong dO NPP se xuat trinh cac bang chting, cluing tir thoa
man cac yeu cdu cua AGIP trong yang 30 ngay ke tir ngay thOng boo ket thdc hop
(long chimg minh rang NPP da cam kel hop phap cung cap bat ki Cac San Phdm nao
da dat hang cho cac ben thd 3 tit& khi k6t thdc hop (long nay
d) N'6u AGIP yeu cdu NPP sau do se tra lai cho" AGIP hoac tai cac dia diem
khac ma AGIP co the chi dinh vai chi phi do AGIP chiu toan 1)0 cac hang hod hoac
cac San Phdm thuOc ye AGIP trong soy hitu cua hoac chiu sty dieu khien cua AGIP
va tat ca cac vat phdm quang cao khac lien quan den cac San Phdm chiu sir diet'
khien cua AGIP; trong tru6ng hop khong thdc hien cac dieu tren AGIP se co quyen
khOng can th6ng boo truck; den not dang de cac hang hoa va Cac San Phdm da not
va lay CAC thd nay
e) Tat ca cac san phdm van chua ban duoc ma theo kien cua ca hai ben AGIP
va NPP la khOng dugc tot sau do se dtroc NPP xir Ii theo chi dao cua AGIP
f) NPP se tra lai cho AGIP tat ca cac matt hang va cac vat phdm quang cao va
cac tai lieu kSi thudt va cac ban copy cua nhiing thd nay sir dung trong quan he phan
phoi
g) NPP se tra lai cho AGIP tat ca cac ban g6c va tat ca cac ban copy dm tat ca
cac chting tir va thOng tin dtrai bat ki dang nao co chda bang bat ki cach nao bat ki
phan nao thuOc sC's hiru tri tue, cac chi tieu k y- thuat va CAC an phdm
h) Trong twang hop k6t thtic hop clang nay AGIP se c6 the chon mua lai tU
NPP bat ki hoac tat ca cac san phdm mua cua AGIP va do NPP so( hiru vao ngay
302

NPP nhan &roc thong bao bang van ban Y dinh cua AGIP thuc hien viec mua lai
theo diet' khoan nay; gia ca ma AGIP phai tra se IA gia ghi tren hod don thkrc to da
dtroc NPP tra Ong vgi cac chi phi van tai &roc xac dinh do NPP tra; trong throng
hop thuc hien viec chon mua lai cua AGIP, NPP se ngay lap t(rc giao cac san phdm
cho AGIP phu hop vgi tat ca cac yeu cau luat phap ma c the can thiet cho chuyen
quyen s6 hau dm hang hod cho AGIP mien ma khOng chiu bat ki phi cam giir nao
hoac cac trg ngai nao; AGIP se thanh toan cho NPP cac san phdm nhu tray ngay sau
khi NPP da thuc hien tat ca cac nghia vu cua minh theo hop (long nay
i) NPP thira nhan va (long y rang ho se duoc bit dap toan 130 chi phi cho cac
hoat dOng trong viec phat trien thi twang cho san phdm day ten tu6i va danh tieng
cua san phdm va trong viec xay dung y liking tot cho san phdm bang doanh thu lay
to viec ban lai cac san phdm trong th6i han hieu tut cua hop dong nay; do do khOng
c quern hop nao viec ket thtic hop dong nay do bat ki li do gi se tao ra bat ki
quyen hanh dOng nao cua NPP lay lai tien den bit phu them hoac cac khoan thiet
hai to AGIP
16. KhOng canh tranh
Trong th6i han hieu lkrc dm hop dOng nay NPP se khOng phan ph6i cac san
pham to tham gia bang bat ki cach nao khac trkrc tiep hoac gian tiep vgi cac hang
hod cc-) ban chat canh tranh vgi cac san phdm trong hoac ngoai Dia Hat ma khOng
c sir clang y till& bang van ban cua AGIP
17. Chi dinh ngairi phan ph6i cap (Judi (NPPCD)
a) NPP se c quyen chi dinh NPPCD va cac diem ban hang dkr tra va phan phoi
cac San Phdm trong pham vi Dia hat thay mat cho NPP
b) NPP cling se dam bao rang tat ca NPPCD va cac diem ban hang tai moi th6i
diem se luOn luon ton trong va tuan thu cac diet' kien nhu qui dinh trong hop dong
nay, nhang dieu ma ap dung cho ca nhirng ngugi nay nhu la cac NPP va NPP se
chiu trach nhiem cho viec tuan thu theo cac diet! nay
18. KhOng khir6c tir
Cac ben hien va &Ong Y rang viec khOng yeu cau hoc chain tre cua AGIP
trong viec yeu cat thgc hien hoac tuan thu vgi bat ki dieu khoan nao cua NPP cua
hop dOng nay se khong anh hugng den quyen cua AGIP yeu cau thuc hien hoac
tuan aka da bi khugc tir bang van ban
19. Chuy61 nhugng
Hop dong nay se rang buOc dgi \Tad cac ngirgi 1(6 tiep va ngugi thaa hugng cua
moi ben trong hop dong nay; nhung vgi dieu kien rang hop dong nay se khOng dugc
303

NPP chuyen nhuong chuyen giao hoac ban toan be hoac met phan trir khi cac dieu
khoan cita viec chuyen nhuong, chuyen giao hoac viec ban do dugc AGIP thong
bao bang van ban
20. BAo lurt cac di6u khoin
a) DU kgt tit& hop (long nay cac dieu khoan, cac bao dam cam kgt va cac bao
lanh c6 trong va dugc dAn chigu den trong hop (long nay se tigp tuc ton tai va rang
buec cac ben va moi chit the ve cac dieu tren hoac met phan cua cluing ma chua
hoar' thanh hoac phai dugc thuc hien hoac can phai dugc giai guy& hoac nham de
tao ra hieu luc dgi vai mei va tat ca cac diet' nay
b) Cam ke't cita cac ben van ton tai va se duot xem xet nhu c6 hieu luc hoan
toan cho du bat ki thay dei nao ve viec nom gill c6 phan va quyen phan phoi hoac
cgu thanh cita AGIP
c) Ngu bat ki met hoac met se diet' khoan trong hop (long nay hoac bat ki cac
chang tir hoac Bien ban nao lien quan deb hop dOng nay se kh6ng c6 hieu luc,
khOng c gia tri phap 11 del \lei bat ki mat nao, theo 141 ap dung hieu luc tinh hop
phap va tinh kha thi cita cac dieu khoan hoac met phan cita cac dieu khoan nay van
se kh6ng bi anh hueng bang bat cu cach nao
21. Trong tai
Tgt Ca cac tranh chgp nay sinh lien quan deb hop (long nay cuCii cling se cluoc
giai quygt theo cac qui dinh cita lust trong tai Singapore va bgt ki sira del nao &la
lust nay trong arng then ki; cac thit tuc t6 tung se &roc tign hanh tai Singapore; Luat
Singapore se dugc dp dung
22. Hqp thing tong the
a) Hop clang nay the hien toan be cac cam kgt cita cac ben, x6a be va thay the
bgt ki cac cam kel viec trinh bay su hieu bigt hoac cac diet' ngdm hieu nao
b) Bgt ki sira dei nao cita hop dong nay phai dugc lam bang van ban va &roc
dai dien &roc phep cita AGIP va NPP ki; kh6ng c6 met thay dei nao c hieu ltrc
bang cach xac nhan hoac chap nhan cac don hang, h6a don, cac matt hueng dAn giri
hang hoc cac cluing to tuong to khac cita AGIP c cac dieu khoan khac vet hoac
b6 sung vao cac diet.' qui dinh trong hop (long nay trir khi cac xac nhan hoac chap
nhan do qui dinh re rang rang no la de sira dei hop (long nay
23. GiAi thIch
a) Bat ki viec din chigu nao den bat ki ben nao trong hop (rang nay bao gom ca
nguei duet chuyen nhuong va/hoac nguei kg tigp quyen hau va/hoac dai dien ca
nhan
3C4

b) Cac tir c6 nghia s6 it bao gom ca s6 nhieu va ngtioc lai


c) Cac tir gi6ng cai bao g6m ca gi6ng duc va gi6ng chung va ngiroc lai
d) Ca nhan bao ggm ca cong ty va nguoc lai
e) Cac tieu de ca cac dieu khoan trong hop (long nay chi dd cte clang trong dan
chielt va khOng anh huang den viec hidu cac (lieu khoan cika hop dong nay
24. ThOng bao
13St ki thong bao nao yeu cdu duqc giai quye't theo hop dong nay se dtroc th6ng
bao ddy du neu dugc chuydn bang buru dien c6 bao dam dien tin telex hoac
telegraph den dia chi tren phdn cldu hop dong nay hoac cac dia chi khdc nhu c6 thd
da th6ng bdo bang van ban cho ben kia dd cho muc dich nay
25. Thuc hien
Hop (long nay c6 thd dtroc thuc hien bSt ki mOt phan nao; bat ki phdn nao hoac
s6 phan nao dugc thuc hien theo mgt trong hai trugng hop tren bai cac ben cila hop
dong nay se tao thanh hop dong ddy du va toan bO cho tat ca cac muc dich.

DA 1(1' BoI

DA KY BOI

Thay mat cho AGIP

Thay mat cho NPP

305

6. JOINT VENTURE CONTRACT


6.1. The English version of the contract

JOINT VENTURE CONTRACT


Based on:

- The Law on Foreign Investment in Vietnam approved by the National


Assembly of the Socialist Republic of Vietnam on December 29 th , 1987,
- The Decree 29/HDBT on February 6 th , 1991 of the Council of Ministers
regulating in detail the implementation of the Law on Foreign Investment
in Vietnam
Today, 1' December, 19 ... the Parties have agreed to sign this contract to
establish a Joint Venture Company ("JVC") on the terms and conditions as
follows:
Article 1: NAMES OF THE PARTIES TO THE JOINT VENTURE
VIETNAMESE PARTNER (PARTY A):
DEPARTMENT OF HOME TRADE HANOI
Head office at 10 Le Lai Street, Hanoi
Socialist Republic of Vietnam
Tel: 252578 Fax: (84) 2 -54592
Represented by: MR. DUONG DINH - Director
FOREIGN PARTNER (PARTY B):
IMEXPAN - PACIFIC INC
A Company registered and incorporated in the Republic of the Philippines with
head office: Ground floor, Corinthian Plaza, Pasea de Roxas, Legaspi Village,
Makati, Manila, Philippines
Tel: 8104391-94, Tlx: 65714 PHLMPXPN, Fax: 632-810-10-10
Represented by: Mr. JOHNATHAN H. NGUYEN - President
Article 2: NAME, HEAD OFFICE, OBJECTIVE OF JVC
The JOINT VENTURE COMPANY shall be named as:
- International Name:

306

Hanoi General Commercial Centre

- Head Office:

Hang Bai Street corner Trang Tien Street


Hanoi, Socialist Republic of Vietnam

The JOINT VENTURE COMPANY shall be a limited company granted the


status of a juridical person subject to Vietnam laws, stipulated in the Joint
Venture Contract and Charter of the Joint Venture.
- Main objectives of the Joint Venture Company
Building and operating 4 Star Hotel, and Business Centre of international
standards to be located at Hang Bai Street on the corner of Trang Tien Street,
Hanoi, Socialist Republic of Vietnam:
- The Joint Venture Commercial Centre after completion will have the
following facilities:
1. 4 Star Hotel
2. Business Centre with office space for rental in accordance with
International Standards
3. Restaurants, Bars, Discos, Function Rooms, food and beverage
facilities and other Hotel related facilities for tourist services
Article 3: INVESTED AND LEGAL CAPITAL - CAPITAL
CONTRIBUTION INCREASE AND TRANSFER
-

Project cost:

USDxx,000,000.00 (xx million US Dollars)

Legal capital:

US$xx,000,000.00 and contributed by the two


Parties as follows:
US$ X,500,000.00 by party A (30%)
US$ xx,500,000.00 by party B (70%)

- Loan:

US$ xx,000,000.00 to be borrowed from any


financial institution and arranged by Party B for the
Joint Venture; terms and conditions of the loan will
be mutually agreed on by both parties

The juridical responsibilities of each party for the third party are within its
contributed capital
All legal capital will be contributed in a lump sum or installments at
307

appropriate periods agreed on by both parties and the State Committee for Cooperation and Investment
If either of the two parties does not follow the Schedule of Capital
Contribution, that party shall have to inform the other party within 90 days
before and shall be responsible for any losses caused by the such failure
CAPITAL CONTRIBUTION
The capital contributed by Party "A" shall be US$ x,500,000.00 comprising of:
- Land rental for xx years
- Fees for the retirement and relocation of present employees
- Fees for clearing the construction area
The capital contributed by party B shall be US$ xx,500,000.00 comprising of
architectural design, materials, equipment, working capital and other expenses.
CAPITAL INCREASE
On the basis of the needs of development during the operation, the Joint
Venture Capital can increase its legal capital in the following forms
- Reinvesting the profit share of each party
- Contributing new capital
The increase of the legal shall be agreed by both parties and be approved by the
State Committee for Co-operation and Investment
CAPITAL TRANSFER
During operation, either party can transfer its capital contribution to the other
party or the third party approved by the State Committee for Co-operation and
Investment
Article 4: DURATION OF THE CONTRACT

The stipulated duration of this contract is xx years from the official date of
establishment of the Joint Venture and can be extended by the agreement of the
Parties hereto together with and subject to the approval of the State Committee
for Co-operation and Investment
Article 5: RESPONSIBILITIES OF EACH PARTY

PARTY A'S RESPONSIBILITIES


1. To contribute its capital (as stipulated in Article 3 of this contract).
2. To complete the application formalities to obtain the investment license
308

and other necessary permits for the establishment of the Joint Venture
Company
3. To obtain all necessary permits for Party B's personnel to stay and work
in Vietnam
4. To take part in controlling in the Joint Venture
5. To do all necessary tasks to facilitate the operation of the Joint Venture
PARTY B'S RESPONSIBILITIES
1. To contribute its capital (as stipulated in Article 3 of this contract).
2. To take part in controlling the Joint Venture
3. To provide its know-how and management experience to the Joint
Venture
4. To advise on and supply the technical data for machinery necessary
equipment and materials for the Joint venture so that party A can study
their use and supply for an import quota when necessary
5. To study markets and imported commodities such as machinery,
equipment, materials, accessories, etc., through its Head Office and/or
Branches
6. To provide Party A with lists and prices of commodities which are not
available in Vietnam
7. To ensure capital for building the foundation of the Hotel and Business
Centre.
8. To ensure the availabilities of the working capital to make the business
profitable
9. To market the Hotel and Business Centre and use its best endeavours to
attract and bring in foreign tourists to patronise the Hotel Business
Centre
MUTUAL OBLIGATIONS
1. On the basis of labour contracts, the Joint Venture Company shall
employ, appoint, terminate and supervise the Board of Directors in their
employing, appointing, terminating, and supervising other personnel of
the Joint Venture
2. Salaries and subsidies of all personnel of the Joint Venture shall be paid
by the Joint Venture Company
309

3. Salaries and subsidies for foreign personnel shall be paid in foreign


currency
4. To further the best interests of the Joint Venture, both parties can request
the Board of Management to change or replace personnel. Any change
or replacement shall not be implemented without proper reasons
5. Citizens of Vietnam have priority to be recruited to work for the Joint
Venture. The Joint Venture can employ foreign experts for work
requiring highly technical skills which cannot be done by the
Vietnamese citizens
6. Any interest and obligation of Vietnamese personnel working for the
Joint Venture shall be ensured by their labour contracts in accordance
with Vietnam labour Regulations for enterprises with Foreign Capital
7. Salaries and other subsidies for Vietnamese personnel shall be paid in
Vietnamese Dong currency
8. During operation of the Joint Venture the Board of Directors shall
organize regular training programs for Vietnamese personnel of the
Joint Venture
9. The Board of Directors, during the operation of the Joint Venture shall
arrange the schedule of training and visits for Vietnamese managers
working for the Joint Venture
10. Both parties shall inform each other of all their major policies which
affect the Joint Venture
Article 6: CONTROL AND MANAGEMENT
The Head of the Company shall be its Board of Management consisting of 9
(nine) members appointed as follows:
- Party "A" shall appoint 3 (three) members
- Party "B" shall appoint 6 (six) members
The powers, duties, activities, and terms of this Board of Management shall be
stipulated in the Charter of the Joint Venture
BOARD OF DIRECTORS
The Board of Directors of the Joint Venture Company shall be appointed by the
Board of Management on the basis of the agreement between the two parties
The first Board of Directors for the initial period lasting 5 years of the Joint
Venture shall be appointed as follows:
310

- General Director and Vice General


Director of Finance:
- Managing Director and Chief Accountant:

By Party B
By Party A

Article 7: FISCAL YEAR


The fiscal year of the Joint Venture shall commence on January 1s t and
terminate on December 31s t of the same year
The first fiscal year shall commence from the official date of establishment to
the December 31st of the same year

Article 8: PRINCIPLES OF ACCOUNTING


The Joint Venture Company shall implement its accounting system on the basis
of Vietnamese Accounting principles and standards and be checked by
Vietnamese Financial Organization (as stated in Article 18 of Law on Foreign
Investment in Vietnam as aforesaid)

Article 9: YEARLY ACCOUNTING REVIEW


Every year, the Joint Venture shall be responsible for its accounting review in
conformity with regulations of the Vietnam Government. Documents of the
yearly accounting review must be submitted to the relevant authorized
organization after approval by the Board of Management

Article 10: INSURANCE


Both parties agree to choose a Vietnamese insurance company to insure the
assets of the Joint Venture

Article 11:PROFIT - PROFIT SHARING- ESTABLISHMENT FUNDS


The Joint Venture and its foreign partner shall be liable to fulfill their financial
obligations to the Vietnam Government as stipulated in the Investment License
issued by the State Committee for Co-operation and Investment
After fulfilling all its financial obligations to the Vietnamese Government, the
Joint Venture shall use 5% of its profit to set up a reserve fund. Other funds
shall be established in conformity with Vietnamese Laws
The reserve fund shall be limited to not more than 25% of the legal capital in
accordance with Article 30 of the Law on Foreign Investment; the Board of
Directors shall decide the profit share of both parties as follows:
Profit sharing for the initial xx years of the Jci, t - Venture
- Party A:

30%

- Party B:

70%
311

The profit sharing of both parties shall be as follows:


After xx years

after xx years

after xx years

Party A:

35%

40%

50%

Party B:

65%

60%

50%

Party B can remit the following abroad:


- Profit from the business
- Receipts from supplying services and technology transfers
- Money from loans and interest of the said loans
- Money and other assets officially belonging to Party B
Foreign personnel working for the Joint Venture can remit their legal income
after returning their income tax in conformity with regulations on foreign
exchange control of Vietnam. During operation of the Joint Venture losses of
the Joint Venture in any fiscal year shall be compensated by profits in
following years but this s}-all no longer be valid after five years as stipulated in
Article 27 of the law on Foreign Investment

Article 12: EXPENSE FOR ESTABLISHMENT OF THE JOINTVENTURE


All expense concerned with the establishment of each partner shall be included
in the investment cost of the Joint Venture Company

Article 13: OFFICIAL OPERATING DATE


The Joint Venture shall be officially established when the State Committee for
Co-operation and Investment approves and issues the Investment license

Article 14: DISSOLUTION - BANKRUPCY - FORCE MAJEURE


The Joint Venture can be dissolved before the termination of the contract in the
following cases:
- Both parties agree and suggest the dissolution to be passed by the
Board of Management
- The Joint Venture is juridically appraised as a bankrupt company
- One of the two parties does not want to continue as a Party in the Joint
Venture and wants to transfer its contributed capital without
agreement of the other party but the State Committee for Cooperation and Investment permits the dissolution
Formalities of bankruptcy declaration shall be carried out in conformity with
appropriate international regulations agreed by the two parties
312

In case of observance of Vietnamese laws and regulations on bankruptcy


declaration, both parties agree to refer this to Vietnam Economic Arbitration or
other juridical organization in accordance with the Law on Foreign Investment
In case of Force Majeure such as earthquake, storm, flood, fire war, or any
other unforeseen disaster which has occurred beyond the control of any party,
that party shall be discharged of its related commitments in this contract
provided:
- The Force Majeure is the proximate cause which obstructs or delays
the execution of the contract
- That each party has tried all possible measures to overcome such
occurrences
- That each party shall immediately, after such occurrence, inform the
other party of the same and within 20 days, send the other party a
written notice indicating the measures undertaken and the cause
which prevents the execution of the contract duly confirmed by the
relevant authorities at the place where the disaster occurs
Article 15: LIQUIDATION
In case of liquidation as stated in Article 14 of this contract, the Board of
Management shall appoint a committee to execute the liquidation
During liquidation, the assets of the company shall first be used to pay for
worker's salaries, unpaid taxes, due debts, and liquidation expenses, the other
assets shall be shared by the two parties according to their rate of capital
contribution (both for profits and losses)
The Name of activities of the Liquidation Commission shall be stated in details
in the Charter of the Joint Venture Company
In case of bankruptcy as stated in Article 14 of this contract, the liquidation
shall be executed in conformity with Article 19 of Law on Foreign Investment
Article 16: DISPUTE
Upon the approval of the State Committee for Co-operation and Investment, the
Joint Venture Contract shall become a juridical document which shall be
respected by both parties
Any one-sided contractual termination is not valid
Any dispute between the two parties arising from the execution of this Joint
Venture Contract shall first be resolved through mutual consultations and
amicable settlement proceedings. If, however, the two parties fail to reach an
agreement, the dispute shall be referred to the Singapore Economic Arbitration
313

All matters that are not provided for in this Contract but are necessary for the
carrying out of the objectives of the Joint Venture Company will be carried out
by each party in accordance with the Charter of the Joint Venture Company or
the applicable Investment Law and Implementing Decree
This contract is made in 10 copies in English and Vietnamese and comes into
effects on the date of issuance of the Investment License, Signed on

20
FOR THE VIETNAMESE PARTY:
FOR FOREIGN PARTY
DEPARTMENT FO HOME TRADE HANOI IMEXPAN-PACIFIC INCORPORATED
DUONG DINH

DIRECTOR

314

JOHNNATHAN H. NGUYEN

PRESIDENT

6.2. The Vietnamese vesion of the contract


HOP WING LIEN DOANH
Can cd:
- Ludt Ddu tu' nuor ngoai tai Viet Nam du'c'c Quoc hOi tut& CHXHCN Viet
Nam thOng qua ngdy 2911211987
- Nght dinh 28/HDBT ngdy 6/2/1991 ctia HOi d"ong BO tracing quy dinh chi
tiet thtfc hien Luqt dqu to nunc ngodi tai Viet Nam

Horn nay, ngay ... 1992, cac ben thea thuan 14 hop dong lien doanh thanh lap
cong ty Lien doanh (JVC) vai cac (lieu khoan va dieu kieri nhu sau:

Dieu 1: Ten dm cac ben tham gia lien doanh


BEN VIET NAM (BEN A)
So Thuong nghiep Ha Nei
Tru sO: 10-Le Lai- Ha Nei, Viet Nam
DT: 252578, Fax: (84)2-54952
Dai dien: Ong Duong Dinh - Giarn d6c
BEN NI5OC NGOAI (BEN B)
Imex Pan-Pacific INC. (Cong ty clang ky & Cong hoa Philipines)
Tru so': Groundfloor, Covinthia Plaza, Paseo de Roxas, Lezespi Village,
Makati, Malita Philipines. DT: 8104391-94, Telex: 65714 PHLMPX PN, Fax: 632810-10-10
Dai dien: Ong Johnathan H. Nguyen - Chu tich

Dieu 2: Ten, tru sa, muc dich cua Ong ty lien doanh
Cong ty Lien doanh duoc goi ten nhu sau:
- Ten giao dich qu6c tO: Trung tam Throng mai T6ng hop HA Nei
(trung tarn).
- Try se chinh: Goc nga tu Hang Bai, Trang Tien - Ha Nei CHXHCN Viet Nam
COng ty Lien doanh se la met cong ty trach nhiem him han ce tu cach phap
nhan va hoat deng theo phap luat Viet Nam, va cac dieu khoan diroc quy dinh trong
Hop clang Lien doanh nay va trong diet' le cua Trung tam
- Muc tieu cua Cong ty Lien doanh
Xay dung va dieu hanh met khach san 4 sao, met Trung tam Thuong mai dat tieu

chudn quOc te' tren phO Hang Bai, tai goc nga tu Trang Tien, Hang Bai, Ha Nei Viet Nam

315

- Trung tam sau khi xay dung.xong se bao


- 1 khach san 4 sao
- 1 Trung tam Thuong mai c6 cac van phOng cho thue dat tieu chudn qu6c to
- Nha hang, quay rtrou, quay giai khat, san nhdy, cac phong chdc nang, cac
dich vu an ugng va cac dich vu khac clanh cho khach du Lich

Di6u 3: V6n dau ttr, v6n phap dinh, g6p v6n, tang von va chuye'n nhurcmg
v6n
- T6ng s6 v6n dau tu: 30 trieu USD
- Vgn phap dinh: xx trieu USD va do hai ben (long g6p nhu sau:
Ben A: xx trieu USD = 30%
Ben B: xx trieu USD = 70%
- Von vay: 15 trieu USD se dugc ben B thu xep vay fir cac t6 chdc tai chinh
khac de dau to vao Trung tam; cac diet' lcien vay niacin phai dugc su thoa thugn cua
ca hai ben
Trach nhiem phap ly cua moi ben dgi vgi ben thir ba dugc gigi han theo s6 von
dong gop
Tat ca s6 von phap dinh se &roc Op 1 lan hoac nhieu lan theo tie'n dO dd dugc
ca hai ben va Uy ban Nha nugc ve Hop tac va Ddu tu thee thuan
Nairrigt trong hai ben khong dam bao gOp von theo tie'n clg, ben do phai thong
bao trugc cho ben kia trong yang 90 ngay va phai chiu trach nhiem ye bat cu ton
that nao gay nen bgi su cham tre do
Hong Op
Khoan von do ben A Op la 4,5 trieu USD dugc xac dinh bao
- Tien thue dat trong 50 nam
- Chi phi tro cap va b6 tri cOng viec cho nhiing lao &Ong hien nay
- Chi phi giai phong mat bang xay dung
Khoan von do ben B dong Op la 10,5 trieu USD bao
Cac chi phi thi& ke"
ky thu4t, my thuat, nguyen vat lieu xay dung, thi& bi, von luu Ong va cac chi phi
khac
Tang von:
Tren w s& nhu tau phat tridn trong thOi gian hoat Ong C6ng ty Lien doanh CO
thd tang v6n phap dinh &rad cac hinh that:
316

- Tdi ddu to phdn lgi nhudn cua moi ben


- Dong gop von mai
- Viec tang von phdp dinh phai dugc ca hai ben thea thudn va y ban Nha nude
ve Hop tdc va Ddu to phe duyet

Dieu 4: TWA hieu dm hop doing


Thei hieu hop clang dugc qui dinh la 50 ndm ke tir ngay thanh ldp chinh thdc
va c the dugc keo dai theo thoa thudn cua ca hai ben va phai dugc US/ ban Hgp tdc
va Ddu to phe duyet
Dien 5: Trdch nhiem ctia cac ben

Ben A:
1. Ding gop phdn von dm minh (nlnr quy dinh & diem 3).
2. Hoan thanh cac tai lieu can thief de xin gidy phep ddu to va cac gig)/ phep
khdc lien quan den viec thanh lap cOng ty Lien doanh
3. Lam cac thu tuc can thiel cho phep ngtrgi dm ben B cu trti va lam viec tai
Viet Nam
4. Tham gia vao dieu hanh Lien doanh
5. Thkrc hien cac trach nhiem can thief de dua Lien doanh vao hot doing

Ben B:
1. Dong gop phdn von am mirth (nhtr quy dinh & diem 3).
2. Tham gia dieu hanh Lien doanh
3. Cung cdpb1 quye't, kinh nghiem quan ly cho Lien doanh
4. ThOng bdo va cung cap ddy dU cac tai lieu, s6 lieu k y- thudt can thie't ve may
moc, thie't bi, nguyen vat lieu can thiel cho Lien doanh de ben A co the nghien cdu
sir dung va xin phep han ngach nhap khdu khi can
5. Nghien ctIu thi trugng va hang hod nhdp khdu nhu may moc, thief bi,
nguyen vat lieu, phu kien ... qua Tru s& chinh hoc ca cac chi nhanh
6. Cung cap cho ben A danh muc va gia ca nhilng hang hod khOng CO Cr Viet
Nam
7. Dam bao dit von cho viec xay dung khdch sari va Trung tam Thuung mai
8. Dam bao von ltru doing de kinh doanh co hieu qua
9. Kinh doanh khdch san va Trung tam Thuung mai, sir dung c hieu qua de
thu but khdch du lich ntroc ngodi de'n Trung tam thuung mai khdch sat)
317

Trcich nhiem chung:

1. Tren co s6 hop &Ong lao deng, Lien doanh tuyen dung, bdu, bai mien, giam
sat Ban Giam dOc va nhan vien trong cac c6ng viec cila ho va giam sat cac thanh
vien khac cita Lien doanh
2. Tien luting va phu cap cua tat ca thanh vien trong Lien doanh dugc Lien
doanh tra
3. Tien luting va phu cap cua nhan vien la ngtred nu& ngoai se duqc tra bang
ngoai to
4. VI lgi ich cUa Lien doanh, hai ben c6 the yeu cL Hoi dOng quan tri thay
d6i nhan sty; bdt cu su thay d6i nao deu phai &roc thtrc hien khi c617 do hop IS,
5. COng dan Viet Nam duqc uu tien tuy6r1 chon vao lam viec trong Lien
doanh; Lien doanh c6 the thue chuyen gia nuarc ngoai cho cac cOng viec yeu cdu ky
Wang ky thuat cao ma cac cOng dan Viet Nam khong the dam nhan &roc
6. Bdt cu quyen loi va nghia vu nao cua ngtrad Viet Nam lam cho Lien doanh
den duot dam bao bang hop (long lao dOng phit hop vai phap lenh ve lao deng cita
Viet Nam d6i vad cac xi nghiep c6 nguon von nu& ngoai
7. Tien luting va phu cap cna nhan vien Viet Nam duoc tra bang (long Viet
Nam
8. Trong th6i gian hoat Ong Ban Giam d6c Lien doanh se t6 chdc chuong
trinh dao tao thu6ng xuyen cho nhan vien Viet Nam lam viec cho Lien doanh
9. Trong th6i gian hoat Ong Ban Giam d6c Lien doanh se t6 chtic chuong
trinh dao tao va t6 chdc cac chuyen di tham quan cho cac giam d6c ngu6i Viet Nam
lam viec cho Lien doanh
10. Hai ben se th6ng bao cho nhau cac chinh sach lon lien quan d6n Lien
doanh
Dieu 6: Quin tri di6u hanh lien doanh
Ing ddu Lien doanh la HO (long Tian tri Om 9 thanh vien duoc chi dinh nhu
sau:
- Ben A se chi dinh 3 thanh vien
- Ben B se chi dinh 6 thanh vien

Quyen han, trach nhiem hoat Ong va nhiem kS/ cua HOi &rig quart tri se &roc
qui dinh trong Dieu 10 cua Lien doanh
Ban gicim chic:

HOi clorig quart tri se chi dinh Ban giam doc tren co s6 them thuan cua hai ben
Ban giam d6c cila Lien doanh trong nhiem kSr dau tien trong 5 nam se dtroc chi
dinh nhu sau:
318

- 'Ring giam dgc va Pho giam dgc phu trach tai chinh: do ben B cir
- Giam doe dieu hanh va ke toan trugng: do ben A cir

Dieu 7: Nam tai chinh


Nam tai chinh cita Lien doanh bat dau tinh to 1/1 va ket thdc vao 31/12 ding
nam
Nam tai chinh dau tien tinh ti' ngay chinh th(rc dugc thanh lap tgi ngay 31/12
cung nam

Dieu 8: Nguyen tac ke" loan


Lien doanh se zip dung he thong 1(6 toan tren nguyen tac va tieu chuan ke toan
Viet Nam va dugc Om sat bgi to chirc tai chinh Viet Nam (nhu neu trong dieu 18
Luat Dau to nugc ngoai)

Dieu 9: Bao cao ke toan hang nam


Hang nam Lien doanh c6 nghia vu bao cao 1(6 toan phu hop vgi cac quy dinh
cita Chinh phU Viet Nam; Bao cao ke" toan hang nam phai dugc de trinh len w quan
c6 tharn quyen sau khi dugc HOi (long quart tri phe duyet

Dieu 10: Bao hiem


Hai ben thga thuan chon COng ty Bao hiem Viet Nam bao hiem cho tai san cita
Lien doanh

Dieu 11: Loi nhuan - Phan chia loi nhuan - Lap quy
Lien doanh va ben nugc ngoai phai san sang thuc hien cac nghia vu tai chinh
dgi vgi co quan CSC dia. Chinh phit Viet Nam nhu quy dinh trong Gia'y phep dau to
do US', ban Nha nugc ve Hop tac va Dau to cap
Sau khi hoan thanh tat ca cac nghia vu tai chinh vgi Chinh phi). Viet Nam Lien
doanh se sir dung 5% lgi nhuan de lap quy du cac guy khac se dugc lap phi' hop
vai Luat Viet Nam
QuSi du tra dugc han the dugi 25% von phap dinh theo dieu 30 Luat Dau
Ban Giarn doc se quye't dinh phan chia lgi nhuan theo ty le sau:
Trong xx nam dau: Ben A: 30%; Ben B: 70%

Sau xx nam:
Ben A: 35%; Ben B: 65%

Sau xx nam:
Ben A: 40%; Ben B: 60%

Sau xx nam:
Ben A: 50%; Ben B: 50%
Ben B c6 the chuyen nhang khoan sau ra nugc ngoai:
- Lai nhuan to kinh doanh
- Tien lai do cung cap dich vu va chuyen giao ky thuat
319

- Tien vay va lgi tuc tien vay


- Tien va tai san chinh thtic thu6c ve ben B
Ngtr6i nu6c ngoai lam viec cho Lien doanh c6 the chuyen thu nhap hop phap
cua ho ra ntrac ngoai sau khi nop thue thu nhap va phit hap voi cac quy dinh quan
17 ngoai hoi cua Viet Nam; trong th6i gian hoat dOng, thua 16, t6n that cua Lien
doanh se dugc bit lai bang lgi nhuan cua nhung nam tiep theo nhung kh6ng keo dai
qua 5 nam nhu quy dinh tai Dieu 27 Luat Dau tu nu6c ngoai

Dieu 12: Chi phi thanh lap Lien doanh


Tat ca cac chi phi lien quan den viec thanh lap Lien doanh cua m6i ben se dugc
tinh vao chi phi dau tu cua Lien doanh

Dieu 13: Ngay hoat dong chinh thtic


Lien doanh se chinh fink dugc thanh lap khi nao 14 ban Nha nuqc ve Hap tac
va Dau tu phe chudn va cap Giay phep dau to

Dieu 14: Giai the - Pha san - Bat kha khang


Lien doanh c6 the giai the tru6c khi het han hgp dong trong cac tru6ng hgp
sau:
- Hai ben thoa thuan va chap nhan de nghi giai the do HO (long quan tri dua ra
- Ve mat luat phap Lien doanh se duac coi nhu mot cOng ty pha san
- MOt trong hai ben kitting mu6n tiep tuc lien doanh va muon chuyen nhugng
phan von thing g6p, kh6ng dugc ben kia dong y nhung dugc Uj7 ban ve Hap tac va
Dau tu cho phep giai the
ThU tuc tuyen b6 pha san duqc tie'n hanh phu hap voi cac quy tac quoc te dugc
ca hai ben thoa thuan; trong truong hop theo Luat Viet Nam va cac qui vac ve tuyen
b6 pha san, ca hai ben thoa thuan dua van de ra Hoi (long Trong tai kinh te Viet
Nam hoac ca quan Luat phap khac phit hgp voi Luat Dau tu; trong khi co Bat kha
khang nhu Ong dot, lut, chay, chitin tranh va cac tai hoa khac khOng 1u6ng truck
dugc, xay ra ngoai su kiem soar cua cac ben, ben gap Bat kha khang se dugc mien
trach nhiem d6i voi viec thuc hien cam ket voi dieu kien la:
- Bat kha khang la nguyen nhan chinh can no hoac lam cham tre viec thuc hien
hop dong
- Ben gap Bat kha khang da co gang ap dung moi bien phap co the de khac
phuc Bat kha khang
- Ben gap Bat kha khang phai thOng boo ngay lap tdc cho ben kia bang van ban
trong vOng 20 ngay sau khi su kien xay ra va neu r6 cac bien phap cla Ai) dung va
nguyen nhan can tra viec thuc hien hap &Mg dugc xac nhan kip thai cua ca quan
c6 thdrn quyen tai nai xay ra sir kien

320

Dieu 15: Thanh 1ST tai san


Khi phai thanh ly tai san nhu not trong Dieu 14 cila Hop thing nay HO dong
quark tri se chi dinh mot 1.1Y ban thanh ly tai san
Khi thanh ly, tai san cua c6ng ty tru6c het duoc dung de tra Wong cho nhan
vien, tra thu6 chua nop, no de'n han va chi phi thanh ly; nhung tai san khac se duoc
chia cho hai ben theo ty le g6p von (ke 616 va lai)
Hinh thdc hoat Ong cua UY ban thanh ly se duoc neu chi tier trong Dieu le dm
Lien doanh
Trong tru6ng hop pha san nhu neu tren trong dieu 14 dm Hop dong nay, viec
thanh ly duqc tie'n hanh chieu theo Dieu 19 - Luat Dau tu nu6c ngoai
Dieu 16: Tranh chip
Theo pile duyet cua UY ban Nha ntrac ve Hop tac va Dau to Hop dong lien
doanh se tra thanh mot van ban phap ly ma ca 2 ben phai ton trong
Viec don phuong huY 1)6 Hop dong kh6ng c6 gia tri; moi tranh chgp phat sinh
trong qua trinh thuc hien hop ail-1g nay truot fien se giai quy& th6ng qua thtrong
Wong giaa 2 ben; neu ea hai ben khOng di den thoa thuan, vu tranh chgp se duoc
giai guy& b6i Trong tai kinh t6 Singapore
Nhang dieu khOng duoc qui dinh trong hop (long nay nhung can thiel cho viec
dat dugc muc dich dm Lien doanh se duoc moi ben thkrc hien pha hop voi Dieu le
ciia Lien doanh hoac Nghi dinh dp dung Luat Dau tu
Hop di:31-1g nay duoc lam thanh 10 ban bang tieng Anh va tieng Viet va c6 hieu
luc Ice to ngay cap Gigy phep dau tu.
KY ngay

BEN VIET NAM


Ong Dtrong Dinh Linh
Giarn dCic

BEN NUOC NGOAI


Ong Jonathan H. Nguyen
ChU tich

321

7. SALES AND PURCHASE CONTRACT


7.1. The English version of the contract

Contract No. APRO-02MV-117


Date: November 8. 2002

Between: HONG BANG SHIP BUILDING INDUSTRY


& CONSTRUCTION CO. (VISDEMCO)
No. 1, Hanoi Street, Haiphong City, Vietnam
Tel: 84-31-525282

Fax: 84-31-525273

Represented by: Mr. Tong Van Manh - Director


Hereinafter called the Buyer

And:

A-PRO CORPORATION
Add: 12F 1216-1, Huyndai 41 Tower, 917-9, Mokdong,
Yangcheonku. Seoul, Korea
Tel: 0082-2-764-7811 Fax: 0082-2-764-7813
Account: 327-JSD-10620-6 at KOREA EXCHANGE BANK,
SEOUL
Represented by: Mr. Jai Gyu-Kweon- President
Hereinafter clled the Seller

This contract was made in VIETNAM and entered into on this November
8.2002 by between APRO METAL CORP., organized and existing under the
law of KOREA (hereinafter referred to as "The SEller") & HONG BANG
SHIP BUILDING INDUSTRY & CONSTRUCTION CO. (VISDEMCO).
organized and existing under the law of Vietnam (here in after referred to as
"The Buyer")
WITNESSES
Whereas, "Seller" sells the products (to be hereinafter defined), and
Whereas, "Buyer" buys the products which shall be specified in the
ADDENDUM 1
Now therefore, in consideration of mutual convenient herein contained, the
paties agree as follows:
322

Article 1. Commodity, Specification, Quantity, Price, Amount & Consignee


The products shall be specified in the addendum showing commodities, price,
quantity and specification which constitute an integral part of this contract
The consignee appointed by buyer is HONGBANG SHIP BUILDING
INDUSTRY & CONSTRUCTION CO. (VISDEMCO)
Article 2. Terms of payment
BENEFICIARY: A-PRO METAL CORPORATION
12F 1216-1 Huyndai 41 Tower, 917-9 Mokdong Yangchongu. Seoul,
KOREA
TEL: (82) 2-764-7811 FAX: (82) 2-764-7813
ADVISNG BANK: KOREA EXCHANGE BANK MOKDONG
BRANCH
905-20, Mokdong, Yangchun-ku, Seoul 158-055, KOREA
SWIFT KEY: KOEX KRSE
2.1 The L/C shall be payable at the country of benerficiary against the
following shipping documents
Documents required for negotiation
+ Full set of original Clean on Board Bill of Lading marked "Freight
Prepaid" made out to the order of the issuing bank and notifying the
applicant
+ 3/3 signed Commercial Invoice based on net weight issued by the
Seller in triplicate

01 Orginal & 02 copies Certificate of Orgin issued by Japanese


Chamber of Comerce and Industry

+ 3/3 Detailed packing list showing net/gross weight in total and total
pcs
+ 01 orginal or 01 copy of Certificate of quantity, issued by NKKK at
the loading port
A copy of fax message advising the applicant and issuing bank of shipment
particulars within 03 days after shipment, including vessel ETD, ETA, net and
gross weight, B/L number and date, commodity, total amount, name,
nationality and age of vessel, shipping agent in Haiphong, invoice value and
L/C number

323

+ Beneficiary's certificate certifying that 01 set of non-negotiable


documents has been sent derectly to applicant by express courier
within 05 days after shipment date
Note:
+ L/C must be opened within 03 working days after signing the contract
+ Third party documents are accepted
+ Charter party B/L acceptable
+ All banking charges outside Vietnam are for the seller's account and
all banking charges inside Vietnam are for the buyer's account.
Charges for attend, if any, are for account of party who request
unless L/C is not opened in accordance with this contract
Article 3. Shipment
3-1. Destination in Haiphong port, Viet Nam
3-2. Partial shipments are not allowed
3-3. Transhipments are not allowed
3-4. Loading on board from any Japanse Port
3-5. Lates date of shipment: December 15, 2002
3-6. Buyer shall arrange a crane at discharging port
Article 4.
Within 95 working days after completion of loading of the goods Seller shall
provide the Buyer and consigmee appointed by the Buyer with notice of
shipment by fax
Article 5. Force Majeure
In the event that the performance of this contract is prevented or delayed, in
whole or in part by war, revolution, riot, strike or other labor dispute, fire,
flood, typhoon or any other causes beyond the control of the parties hereto, then
the parties shall not be liable for any default in the performance of all or any
part of this contract, provided that immediate notice of said delay shall perform
such obligations with all obligations with all due speed unless the contract is
previously terminated
Article 6. Insurance
T' e Buyer will buy Insurance covering shortage risk. The inspection agency
will be appointed by Insurance company
.

324

Article 7. Inspection:
The Buyer can invite SGS to inspect the Specification of cargo. If any claim for
Specification, SGS's survey report on type should be final
Inspection fee will be borne by the Buyer
Article 8. Arbitration
In case of disputes and the parties can not reach an amicable settlement or any
claim concerning this contract within 80 days from its occurrence, the case will
be transferred to International Arbitration Center of the Chamber of Commerce
and industry of Vietnam for final settlement under rules of conciliation and
Arbitration of International Chamber of Commerce. The decision taken by this
Arbitration will be final and all the fees and expenses incurred in the
Arbitration shall be borne by losing party
Article 9. Entirety
This contract constitutes the entire contract between the parties and supersedes
all previous negotiations, representation, undertakings hereto fore made
between the parties with respect to the subject matter, and shall not be modified
except by the mutual agreement in writing by duly authorized officers of the
parties hereto
Article 10. Notice
Any notice, request, consent, offer or demand required or permitted to be given
in this agreement shall be in written and shall be sufficiently given that it
should be delivered in person or sent by registered airmail, telex or cable
confirmed by registered ainmail letter
Article 11. Amendment
This contract is not changed, modified or amended by the parties of this
contract provided that such change, modification or amendment is in written
and signed by both parites
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized representative as of the date first above
written.

SIGNED FOR AND ON BEHALF OF

SIGNED FOR AND ON BEHALF OF

325

ADDENDUM 1
Contract No.: APRO-02MV-117
Date:
November 8. 2002

Between: HONG BANG SHIP BUILDING INDUSTRY


& CONSTRUCTION CO. (VISDEMCO)
No. 1, Hanoi Street, Haiphong City, Vietnam
Tel: 84-31-525282

Fax: 84-31-525273

Represented by: Mr. Tong Van Manh - Director

And:

A - PRO CORPORATION
Add: 12F 1216-1, Huyndai 41 Tower, 917-9, Mokdong,
Yangcheonku. Seoul, Korea
Tel: 0082-2-764-7811 Fax: 0082-2-764-7813
Account: 327-JSD-10620-6 at KOREA EXCHANGE BANK,
SEOUL
Represented by: Mr. Jai Gyu-Kweon- President

This ADDENDUM is an integral part of this contract No. APRO-02MV-117


dated November 8, 2002. Both parties mutually agreed on the commodity,
quantity, price and shipment.

1. Commodity/size and specification

NO

COMMONDITY

Over Rolled Steel H-Beam


Spec: JIS G3 101 SS490
Size:
Height: 344mm-900mm
Thickness: 9mm up
Length: 6,000mm-15,000mm
No. of Pcs: 1,093 pcs.
TOTAL:

QUANTITY
(tons)

UNIT
PRICE
(USD/tons)

1,484,846

21$

1,484,846

AMOUNT
CNF FO
Haiphong port
(incoterm
2000)
313,302.51

313,302.51

(Three hundred thirteen thousand three hundred United states dollars and
two and fifty one cents only)
326

Tolerance: + 5% on both quantity & amount.


No hole no plate attachment along the length of H-beam, atmospreric rust
acceptable.
JAPAN

2. Origin:
3. Payment:

4. Packing:

5. Shipment:

BY IRREVOCABLE L/C AT SIGHT


BARE IN LOOSE

IN NOVEMBER. 202

6. Latest date of shipment: DEC. 15,2002



HAIPHONG PORT. VIETNAM
7. Destination:

L/C MUST BE OPENED WITHIN 03
8. L/C open date:
WORKING DAYS AFTER SIGNING THE CONTRACT.

SIGNED FOR AND ON BEHALF OF

Seller

SIGNED FOR AND ON BEHALF OF


Buyer

327

7.2. The Vietnamese version of the contract

HOP WONG MUA BAN


No. APRO-02MV-117- Ngay: 08/11/2002
Hop cl6ng nay clu'cfc lam giro ccic ben sau day:

CONG TY CONG NGHIEP TAU THIA 7 VA XAY DUNG HONG BANG


(VISDEMCO)
Dia chi

: S6 1 dugng

NO, Hai PhOng, Viet Nam

Dien thoai : 84 31 525 282/824 758

Fax: 84 31 525 273

Dai dien : Mr. Tgng Van Manh - Giam dgc


Sau day goi la ben Mua

va A-PRO METAL CORPORATION


Dia chi

: 5F 27 1 KYONGYANG, JONG RO 6KA, JONGRO KU, SEUL KOERA


-

Dien thoai : (82) 2-764-7812

Fax: (82) 2-764-7813

Tai khoan : 327-JSD-100620 - 6 tai KOREA EXCHANGE BANK, SEOUL


Dai dien : Mr. JAI GUY-Kweon - ChU tich
Sau day goi la ben Ban
Hgp deing nay dugc lap tai Viet Nam va c hieu h.rc to ngay 08/11/2002 gilla
A-PRO METAL CORP., clugc to chtk va hoat dOng ton tai theo 101 phap Korea
(sau day clugc goi la ben Ban) va COng ty CNTT va Xay dung HOng Bang
(VISDEMCO) dugc to chk, hoat dOng va ton tai theo kat phap Viet Nam (sau day
clugc goi la ben Mua)

Lam cluing rang :


"Ben Ban" ban san phdm (se dugc xac dinh sau) va
"Ben Mua" mua san pha'rri se dugc neu chi tiet trong Phu luc 1
Hai ben sau khi xem xet lgi Ich cua minh clang y nhirng dieu khoan sau:

Dieu 1: Hang hoa - Quy cach - S6 Iuung - Gia ca - Gia tri tien va nhan
hang
San pham se clugc m6 to chi tie't trong phan phu luc neu r6 hang hoa, gia ca, s6
lugng va ck chi tie't tao nen cac phan cila Hop dong nay
328

Nguai nhan hang duqc chi dinh bai ben Mua la C6ng ty CNTT va xay dung
Hong Bang (VISDEMCO)
Dieu 2: Di6u khoin thanh loan
Nguai Huang lqi: A-PRO METAL CORPORATION
12F 1215-1, HUYNDAI 41 TOWER, 917-9 MOKDONG YANGCHONGU,
SEOUL, KOREA
Tel: (82) 2-764-7811

Fax: (82) 2-764-7813

Ngan hang thong bao: KOREA EXCHANGE BANK MOKDONG BRANCH


905-20 MOKDONG, YANGCHUN-KU, SEOUL 158-055, KOREA
SWIFT: KOEX KRSE
2.1 L/C Co th6 cluqc tra ngay tai nu6c nguai Huang lqi khi xuk trinh nhiing
thong tir xepa hang sau:

+ Chitng to tai lieu yeu cdu de' giao dich:


+ BO day du cila B/L goc sach da x6p hang len tau ghi "Ctrac tra truac" dtrqc
phat hanh d6 thuc hien lenh cua Ngan hang phat hanh va thong bao cho nguii yeu
cu
+ 3/3 Hod don thuong mai da ky dua tren trong luqng thut do ben Ban phat
hanh
+ 01 ban g6c hoac 01 ban copy gily chang nhan ye s6 Wong, do NKKK cap tai
tang x6p hang
+ Trong yang 03 ngay sau khi x6p hang, ben Ban se th6ng bao cho ben Mua va
ngan hang phat hanh nhang thOng s6 co ban bang Fax: ngay tau khai hanh, ngay
tau du ki6n d6n, trong luting thi.rc/tinh, SO B/L va ngay 14 B/L, hang hod, tong gia
tri tien, ten, tuai va quac tich tau, dai 1T tau bin tai Hai PhOng, gia tri INVOICE va
so L/C
+ Gay chting nhan cua nguai twang lqi xac nhan rang 01 1)0 thong tir nonnegotiable se duqc giri trot ti6p cho nguai nhap khau bang chuy6n phat nhanh 05
ngay sau khi x6p hang
Chu Si:
+ L/C phai duqc ma trong yang 03 ngay sau ngay 14 hop clang
+ Chang tin ben thin ba daqc chap nhan
+ B/L Hop dang thue tau chap nhan

329

+ Tat ca cac chi phi ngan hang ngoai Viet Nam do ben Ban chiu, cac chi phi
ngan hang ben trong Viet Nam do ben Mua chiu. Chi phi sira d6i L/C do ben yeti
cdu sira doi chiu nix khi L/C m6 khOng pha hop voi Hop dOng

Dieu 3. Xep hang


3.1 Cang den: Cang Hai Phong, Viet Nam
3.2 Chu* tai ding phan: Kh6ng duqc phep
3.3 Giao hang tirng phdn: Khong dirgc phep
3.4 Cang xep: Bat ky Cang nao tai Nhat
3.5 Ngay xep hang mu0n nhgt: 15/12/2002
3.6 Ben Mua phai thu xep cdu tai Cang d6

Dieu 4. Thong bao 'cep hang


Trong yang 05 ngay lam viec sau khi hoan thanh viec xep hang ben Ban se
thOng bao cho ben Mua va ngtroi nhan hang do ben Mua theo thong bao xep hang
bang Fax

Dieu 5. Bat kha khang


Trong tru6ng hop viec thtrc hien flop d6ng bi dinh lai, tri hoan do anh hu6ng
hoac mot phan bi anh huang cUa chien tranh, bao loan, dinh cOng, hoac cac tranh
chap lao Ong, hoa hoan, lut bao hoac bat cd nguyen nhan nao gay len ben ngoai
mu6n cUa hai ben, thl hai ben se khOng bi rang bu0c trach nhiem d6i viii hop clang
hoac bat di phan nao dia hop dOng nay

Dieu 6. Bac) him


Ben mua se mua bao him rui ro thieu hut. Ben giant dinh se do cong ty Bao
him chi dinh

Dieu 7. Giam dinh


Ben mua c6 the mori NKKK de giam dinh quy cach hang hoa. Neu c6 bat kS ,
khieunaovqychgd,baoimnhcuNKselaktq
cuth ding. Phi giam dinh do ben mua tra

Dieu 8. Trong tai


Trong twang hop c6 tranh chap hai ben khOng the giai guy& bang thuang
Wong hoac bat kST khieu nai nao lien quan den hop clang nay trong yang 80 ngay kd
tir ngay phat sinh thi se duoc chuyen den Trung tam trong tai quoc to ben canh
phong COng nghiep va thuong mai Viet Nam giai quyet. Quyet dinh cua Trong tai
la phan guy& cu6i ding hai ben phai chap nhan, moi chi phi se do ben thua cuOc
thanh toan

330

Dieu 9. Nguyen ban


Hap (long nay tao lap hop dOng nguyen ban gift hai ben va thay the tat ca cac
giao dich truck do, cac phan thd hien, cam k6t a hop (long nay duorc lap bgi hai ben
theo chit de cita hop dong va kh6ng dugc sira d6i trir khi dugc su dong y bang van
ban do cac can b0 dugc u57quyen hqp phap hai ben chap nhan
Dieu 10. ThOng bao
Bat cri th6ng bao, yeu cau, thoa thuan, chao hang hoac dei hOi dua vao hap
eking nay phai dugc lam thanh van ban va gifi day du, phai dugc giao tan tay hoac
gin bang buu dien, telex, hoac dien tin va phai dugc buu dien xac nhan

Dieu 11. Sira doi


Hap dong nay hai ben kh6ng dugc thay d6i, sira chira trir khi nhiing thay doi,

sira chita dugc lam thanh van ban va dugc hai ben 14 xac nhan
Hai ben ding thoa thuan thuc hien nghiem file ban hap dong nay.

DAI DIEN BEN BAN

DAI DIEN BEN MUA

331

PHU LUC 1
Hop thing s6: APRO-02MV-117-

Ngay: 08/11/2002

Git?a

CONG TY CONG NGHIEP TAU THU'i7 VA XAY DUNG HONG BANG


(VISDEMCO)
Dia chi

: S6 1 du6ng Ha NO, Hai PhOng, Viet Nam

Dien thoai : 84 31 525 282/824 758

Fax: 84 31 525 273

Dai dien : Mr. T6ng Van Manh - Gidm dCic

va A-PRO METAL CORPORATION


Dia chi : 5F 27-1 KYONGYANG, JONG-RO 6KA, JONGRO-KU, SEUL
KOERA
Dien thoai : (82) 2-764-7812

Fax: (82) 2-764-7813

Tai khoan : 327-JSD-100620 - 6 tai KOREA EXCHANGE BANK, SEOUL


Dai dien : Mr. JAI GUY-Kweon - Chit tich
Phu luc nay la phan khOng thd thidu cua Hop dong s6: APRO-02MV-1 17 ky
ngay 8/11/2002. Hai ben ding clang y ve cac dieu khoan hang hod, s6 Wong va gia
ca, giao hang:

1. Hang hod/kich ca va quy cach

S6 Wong (MT)

1. H-Beam can nong


Quy cach: J1 G3101 SS490
Kich Ca:
Chia' cao: 344-900mm
Chieu day: 9mm up
Chieu dai: 6.000-15.000mm
S6 Pcs: 1.093 Pcs
Ciing:

S6 Wog
(MT)

Don gia
USD/MT

1.484.846

200

1.484.846

Thanh Wen CNF FO


Cang Hai Plying
(Incoterm 2000)

313.302,51

313.302,51

(Ba train inti'ai ba ngan ba tram linh hai Do la 11/15" va nam meal mot xen)

332

Sai s6: 5% ca ve s6 Wong va thanh


KhOng c6 cac 16 thung, tam dinh doc theo chieu dai cua H-Beam. Bui ban do
khOng khi duqc chap nhan.
2. Xuat xu

: Nhat Ban

3. Thanh town

: L/C khOng huy ngang tra ngay

4. Dong g6i

: Hang rOi

5. XeP hang

: Thang 11/2002

6. Ngay xeP hang muOn nhat: 15/12/02


7. Cang den
: Cang Hai Phong, Viet Nam
8. Ngay mo L/C

: L/C phai dtroc m& trong wing 03 ngay lam viec


sau khi ky hop dung.

DAI DIEN BEN BAN

DAI DIEN BEN MUA

333

8. SALES AND PURCHASE CONTRACT 2


8.1. The English version of the contract
Date: 18 April 20...
No. VHH - 030455 - 01
Between: HONG BANG SHIPBULDING INDUSTRYAND CONSTRUCTION
COMPANY

Address: 01 Hanoi Rd., Haiphong City, S.R.Vietnam


Tel. : ++ 84 31 82 47 58 /52 52 82
fax : ++ 84 31 52 52 73
Represented by: Mr. Tong Van Manh - Director.
Hereinafter called the Buyer

And: HAN STAR SHIPPING CO., LTD


Address:

RM 204, WORLD VISION BLDG., 24-2, YOIDO-DONG,


YOUNGDEUNGPO-GU, SEOUL, KOREA.

Tel.: ++ 82 2 775 1110

Fax : ++ 82 2 775 2221

Represented by : Mr. S.K. LEE


Hereinafter called the Seller
It is mutual agreed between both parties to enter into this contract on the terms
and conditions as follows :
Article 1 : Commodity description
-

Scrap steel for rerolling


Size (mm): Any sizes with length : 1.500 up
Quantity: 100 MT ( 10%)
Unit price: USD 200 CIF Hai phong port, Vietnam (Incorterm 2000)
Amount: USD 20,000 10%
(Say : U.S Dollars twenty thousand)
Article 2 : Shipping terms

Shipment port:
Destination port:
Partial shipments:
Transshipment:
Packing:
334

Any Korea port


Haiphong port, Vietnam.
Not allowed.
Not allowed.
Bare in bunlde/ bare in loose

Origin:
Vessel age:
Shipment date:

Not over 20 years old


Latest is 10 Apr., 2003

Shipment in container and shipment details to be advice by fax to the buyer


right after shipment
Article 3 : Terms of payment
By T.T Remittance within 07 working days after cago arriving Hai phong port
to the following Seller's account:

The following documents should be sent directly to Buyer within 05 days


from B/L date:
-

Full set 3/3 Original of Clean on board Bill of Lading marked


"Freight Prepaid" issued to the order and notify Buyer - Hong Bang
shipbulding Industry and Construction Company

- Signed Commercial Invoice in triplicate


- Packing list in triplicate
- Certificate of weight/quantity in triplicate issued by one Inspection
Company
- Certificate of original issued by The Korea Chamber of Commerce in
two original and one copies showing Buyer is Hong Bang
shipbulding Industry and Construction Company
- Within 03 working days after shipment, the seller has to advise to the
buyer by fax particular of shipment : Vessels name and nationality,
quantity or weight of commodity, invoice value, number of B/L,
ETD, ETA, Shipping Agent in Hai Phong, Vietnam
Article 4 : Weight determination
0.5% weight franchise between the loading port and discharging port
is acceptable
-

In case weight shortage or exceeding of 0.5%, both the Seller/Buyer


agree to refund/reimburse the relevant amount after deducting the
allowed franchise at the earliest convenience. Relevant debit/credit
note accompanied by Truck survey report of INDEPENDENCE
INSPECTIONS COMPANY at discharging port should be required
335

ARTICLE 5 : FORCE MAJEURE


Either party to this agreement will be temporarily relieved of any obligation
hereunder should an event occur over which that party has no control, including
but not limited to, Act of God, riots, strikes, lockout, civil commotion,
insurrections, wars, or other cause beyond their control, and which prevent that
party from fulfilling that obligation. Should any such event occur, the party
unable to fulfil its obligation, will immediately inform the other party of the
circumstances, and will continue to keep the party informed in this connection.
Should the circumstances last for the continuos period of more than 3 (three)
months the other party may terminate this agreement with immediate effect on
written notice to the party of such event
The party wishing to claim relief by reason of any said circumtance shall notify
the other party in writing of the intervention and of cessation, and then deliver a
certificate issued by the Chamber of Commerce at the place where the accident
occured as evidence thereof. The event of the delay by force majeure exceeds
60 days, each party shall have the right to cancell this contract, unless otherwise
agree in such case, neither party shall have the right to claim eventually
damages
ARTICLE 6 : ARBITRATION
In case of dispute, the Parties agree to settle the discrepancies amicably. If
amicable agreement is not reached within 60 days from its occurrence, the
disputes shall be finally settled by International Arbitration Center of Vietnam
under the Rules. The language of Arbitration shall be in English. The parties
agree that any award made in accordance with the provisions of this clause is
final and binding on both of them. The place of Arbitration shall be the Capital
city of the Buyer's country
The losing party will pay arbitration charge and any other charge
ARTICLE 7 : ADDITIONAL CONDITIONS
Buyer has the right to re-inspection cargo within 30 days of the cargo arrival
and has the right to claim Seller upon provide the re - inspection report from
Independent Inspections Company at the Buyer's account
Any amendment to this Contract shall be only valid if made in writing and duly
confirmed by both parties. This Contract will be valuable after signed by both
parties
Made four English originals, as same force, half of which for each party
If mutual agreed by Buyer and Seller, signed facsimile copy to be treated as
ORIGINAL
FOR N ON BEHALF OF THE SELLERS

336

FOR NON BEHALF OF THE BUYERS

8.2. The Vietnamese version of the contract

HOP HONG MUA BAN


S6 : VHH - 0304SS - 07
Ng6y 18/04/2003

Gifra : CONG TY CONG NGHIEP TAU MA' VA XAY DUNG HONG BANG
: SO 01 DUONG HA NOI - HONG BANG - HAI PHONG

FAX : 031.52 52 73
- DIEN THOAI : 031.824 758 / 52 52 82

- DIA CHI

- DAI DIEN

: MR. TONG VAN MANH - GIAM DOC

Sau day goi la nguai Mua.


: HAN STAR SHIPPING CO., LTD

Va

RM 204, WORLD VISION BLDG., 24-2, YOIDO-DONG,


SEOUL, KOREA
YOUNGDEUNGPO-GU,

- Dia chi
- Dien thoai
-

Dai di'en

: ++ 82 2 775 1110

Fax : ++ 82 2 775 2221

: Mr. S.K. LEE

Sau clay goi la nguai Ban.


Cd hai ben (long

Y 4 ker Hap

clang nay then cac dieu khocin va dieu kien sau

day
Dieu 1 : Hang hoa - quy cach
Ten hang

: Thep ph'6 lieu dung de can keo lai

Kich

: Bat kSived chieu dai to 1.000 mm troy len

Trong lugng

: 130 MT (03%)

Trong dc5 : H-Beam ph'6 lieu = 112 MT (03%); 6ng ph'6 lieu : 18 MT (03%)

: 130 USD/MT CIF LT Cang Hai Phong
Don gia
(Incorterm 2000
Gia tri

: 24.700 USD

Dieu 2 : Dieu khoan xe-p hang


Cang x6p

: bat 14 Gang Korea nao

Cang den

: Gang Hai Phong

Van chuy6n tong phan

: khOng dugc phep.


337

Chuyen tai

: khOng dugc phep.

Bao bl

: hang dong 1)6/ hang roi theo chi dinh


cua ngtroi ban

Xufat

: Korea

Tu6i tau

: KhOng qud 20 tu6i trong truong hop ngtroi


Ban thud tau ch6 hang reii de van chuyen
hang hod cua hop (long nay.

Ngay x6p hang

: KhOng muem hon ngay 30/04/2003

Chi ti6t x6p hang se thOng bdo cho ben Mua bang fax sau khi x6p hang len tau.
Dieu 3 : Di6u khoin thanh Wan
Thanh town bang TTR trong vOng 03 ngay lam viec sau khi hang ve den Cang
Hai Phong vao tai khoan cUa ben ban nhtr sau :
KOREA EXCHANGE BANK YOUIDO BRANCH SEOUL, KOREA
SWIFT BIC CODE : KOEXKRSE
ACCOUNT No. : 061-JSD-101512-1
Ngubi hu6ng lgi : HAN STAR SHIPPING Co., LTD.
Di6u 4 : Chang tit tai lieu sau de giao dich :
- 3/3 be) van don sach ghi ro "cu6c tra trait" ky hau de trong va thuc hien lenh
va thong bdo cho ben Mua la COng ty CNTT va XD Hong Bang
- 03 Hoa don thuong mai da ky
- 03 Ban Packing list
- Giay chting nhan trong lugng/s6 Wong va chat lugng do 01 COng ty giam
dinh cap
- 01 ban g6c va 02 ban sao Gigy cluing nhan xuat xti do Pheng Thuong mai va
cang nghiep KOREA phat hanh
Trong vOng 03 ngay lam viec sau khi x6p hang ben Ban phai thOng bao cho
ben Mua bang Fax cdc thOng so cna tau : Ten tau va quoc tich, s6 lugng hoac trong
lugng hang hod, gid tri hod don, s6 B/L, ngay tau khoi hanh, ngay du ki6n tau d6n,
Dal ly tau Wen tai Hai PhOng, VN
Dieu 5 : Giant dinh
0,2% dung sai ve trong lacing to cang x6p den cang do dugc chap nhan
Trong trueing hop It hon hoac vu6t qud 0,2%, Ca hai ben Bdn va ben Mua dOng
tra lai hoac tra them s6 tien sau khi khau trir nhung phdn dugc phep mot cach
thich hop nhat. Phan ghi no hoac phan c ng tren co so Ban bdo cao giam dinh qua
can ci;ia met co quan giam dinh dOc ldp tai cang del" n6u dugc yeu cdu
338

Dieu 6: Tranh chap ye chat !Yong


Chat lugng hang hod dat tieu chudn nhu cluing tir hoac anh ma da dugc giri den
ngubi Mua cho phan dinh gia ve chat lugng trudc khi ky ket hop dons
Ben Ban, nen ben Mua khOng chap nhan chat lugng, c6 quyen huy 1)6 hop (long
va ca hai ben cling phai chiu chi phi de chi hang ve
Dieu 7: Dieu kien bat kha khang
Moi ben trong ban hop (long nay kh6ng phai chiu trach nhiem ve cac van de
xay ra dudi day ma cac ben kh6ng kiem soat bao gom nhung kh6ng
gidi han, Thien tai, cuOc n6i loan, dinh cOng, sir ap dat, nOi chien, n6i loan, chi&
tranh hoac nguyen nhan khac ngoai su kiem soat cua cac ben va ngan can cac ben
thuc hien hop dOng nay. Neu cac sir kien nhu tren xay ra ma cac ben khOng c6 kha
nang de thuc hien tie') hop (long thi phai th6ng bao ngay cho ben kia trong moi
truing hop va cac ben phai tiep tuc gilt lien lac vdi nhau. Neu truing hop cuOi cling
cUa thii kSi tiep theo qua 03 thang, ben kia c6 the ket fink hop dong bang van ban
c6 hieu lirc thong bao cho ben kia ve cac sir kien nhu vay

(sir

Bat kSi 17 do, tinh huong sira d6i nao dua ra cho ben kia phai lap thanh van ban
va dugc hai ben thong nhat moi co gia tri, chiing nhan dugc dua ra tai Phong
Thuong mai tai nod xay ra tranh chap merit co gia tri. Viec hoan c6 gia tri trong \Tong
60 ngAy, lieu qua cac ben c6 quyen huy bO Hop dong, trir khi trong truing hop ca
hai ben dong yr, khOng ben nao co quyen khieu nai ve nhang thiet hai
Dieu 8: Trong tai
Truing hgp tranh chap, cac tranh chap nay sinh trong hgp dong nay phai duqc
thao luan ban bac gifia cac ben, nen khOng giai quy& dugc trong vong 60 ngay thi
phai dua ra Trung tam trong tai Quoc to tai Viet Nam giai quyet theo Drat. NgOn
nglt cUa trong tai IA tieng Anh. Cac ben (long y rang bat cd quy& dinh nao phi.' hop
vdi dieu khoan nay se la Quyet dinh cueii cling va bdt buOc cho ca hai ben. Dia
diem giai quy& tranh chap se la thii do clia nude Nguii Mua
Chi phi trong tai va nhang chi phi khac do ben thua kien chiu chi phi
Dieu 9 : Dieu khoan chung
Dai dien cila ben Ban se cling tham du viec (la hang va giam dinh hang hod.
Ben Mua co quyen khieu nai ve chat luting khac biet cila hang hoa va de giai
quy& vdi dai dien ben Ban trong yang 03 ngAy sau khi hoAn thanh viec dot hang
Bat 14 sira d6i nao clia ban Hop (long nay chi c gia tri khi dugc lap thanh van
ban va dugc hai ben xac nhan. Hop dong c6 hieu hrc sau khi hai ben 14 ket
Hop dOng dugc lap thanh 04 (bOn) ban bang tieng Anh, co gia tri nhu nhau,
moi ben gilt 02 (hai) ban
Neu dugc sir dong y cUa hai ben Mua va ben Ban, hop dong 14 qua Fax coi nhu
IA ban hop dOng chinh.
DAI DIEN BEN MUA
DAI DIEN BEN BAN
339

Part!!

ICC MODEL CONTRACT FOR THE SALE OF GOODS


1. THE ENGLISH VERSION OF THE CONTRACT
CONTRACT FOR THE SALE OF GOODS
BETWEEN
hereinafter called "the SELLER"
AND
hereinafter called "the BUYER"
PREAMBLE
(NOTE. The Preamble is optional)
The agreement between the parties to this Contract is based on the following
understandings:
(NOTE: The following clauses are examples only. Delete as appropriate)
1. The BUYER is acting partly on its own behalf and partly as a purchasing
agent for other companies
2. The BUYER is acting as purchasing agent for
3. Both parties understand that Goods made to meet the BUYER's special
specifications may have no value or very limited value on the open
market
4. The SELLER understands that the BUYER in specifying the Goods has
relied to a large extent on the expertise of the SELLER
5. The SELLER understands that the BUYER is under contract to resell the
Goods and that if the Goods are defective or non-conforming in quality
Name of Principal

340

or quantity, the BUYER may be liable for damages in an amount


exceeding
6. The SELLER understands that the BUYER intends to install the Goods
as a component part in equipment to be resold, and that if the Goods are
defective or non-conforming in quality or quantity, the BUYER may be
liable for substantial damages
7.

1. Applicable Law

This Contract and all questions relating to its formation, validity, interpretation
3
or performance shall be governed by the law of
(NOTE: The subclause below is optional)
This Contract shall not include, incorporate or be subject to the provisions of
the "United Nations Convention on Contracts for the International Sale of
Goods"
2. Definitions

In this Contract the words below have the meanings ascribed to them unless the
context otherwise clearly dictates:
2.1. Unless expressly modified by the parties, "FOB", "CIF" and other trade
terms have the meanings and obligations ascribed to them in Incoterms 2000,
Publication 460 of the International Chamber of Commerce, Paris
2.2. "Contract" means this Contract, its preamble and appendices, as well as
all documents expressly listed as Contract documents or otherwise
expressly mentioned in this Contract
2.3. "Goods" means the Goods specified in Clause 4 below
2.4. "Price" means the Price as specified in Clause 9 below payable to the
SELLER for the Goods
2.5. "Delivery" means Delivery as specified in Incoterms 1990 under the
Incoterm or Incorterms agreed in this Contract

Currency and amount


List of additional background understandings between the parties
3 Name of country

341

2.6. "Day" means a calendar Day. For the purposes of this Contract,
Saturdays, Sundays and all holidays are considered as Days
2.7. "Direct" costs and losses are costs and losses arising in immediate
connection with any failure to deliver, any delay in Delivery or any
defect in Goods delivered under this Contract. Such costs and losses
must have an immediate, foreseeable and provably causal connection
with the delay or defect. All other costs and losses are deemed by this
Contract to be "indirect"; In particular, loss of profit, loss of use, and
loss of contract are considered indirect losses
2.8. "Government" means national Government, local Government, local
authorities, and their agencies. In particular customs and/or excise
departments are considered as Government agencies
2.9. "Termination" means the discharge of the Contract by one of the
parties under any right expressly granted by this Contract. The
discharge of the Contract by any other right arising from the
applicable law or any other source is deemed to be "cancellation" of
the Contract
2.10.
3. Entire Agreement and Contract Documents
This Contract constitutes the entire agreement and understanding between the
parties. There are no understandings, agreements, conditions, reservations, or
representation, oral or written, that are not embodied in this Contract or that
have not been supersede by this Contract
(NOTE: The subclause and list below are optional)
In addition to the text of Contract itself, the documents listed below shall form
part of the Contract. All listed documents and the clauses of this Contract shall
be read, if possible, so as to be consistent. In the event of conflict, the order of
precedence for the provisions and documents which constitute this agreement
shall be as follows:
(NOTE: The list below contains examples only. Delete as appropriate)
a. Any alterations made on the face of the printed Contract
b. The Contract itself

List of additional definitions agreed between the parties

342

c. Specifications
d. Manufacturing drawings
e. The BUYER's Special/General Conditions of Purchase
f.

The SELLER's Special/General Conditions of Sale

4. Scope of Supply
The Goods to be delivered under this Contract are specified
2

5. Delivery

5.1. Date, Place and Terms of Delivery


33 ; the schedule date of Delivery
Delivery of the Goods shall be made
shall be
4 ; Risk and title to the Goods shall pass from the SELLER to
the BUYER on Delivery.
The place of Delivery under this Contract is

5.2. Naming and Arrival of Vessel


(NOTE: This clause is intended primarily for use in FOB and FAS contracts).
The BUYER shall advise the SELLER of the name of the vessel not later than
6 Days before the agreed Delivery date
If the vessel named by the BUYER fails to arrive on or before

7 then the SELLER may at his discretion deliver the Goods to
8 and shall be deemed to have
a bonded warehouse in the port of
fulfilled his Delivery obligations under this Contract. In this event, the
SELLER must notify the BUYER of the full circumstances of the Delivery to
the warehouse. With Delivery to the warehouse, all costs, including but not
limited to cost of storage and insurance are to the BUYER's account
Further contract documents
Use "belo/' or the name of the annex where the goods are specified
Agreed Incomterm
Agreed date of delivery
5 Agreed place of delivery. Note: In FOB, FCR, CIF and GIP (etc.) contract, this is part of shipment.
6 Number (of days)
Date of arrival of ship
" Port of shipment
2

343

5.3. Shipping Marks and Packaging


(NOTE: The following two subclauses are examples. Reword as appropriate).

On the surface of each package delivered under this Contract shall be marked:
the package number, the measurements of the package, gross weight, net
weight, the lifting positions the letter of credit number, the words RIGHT SIDE
UP, HANDLE WITH CARE, KEEP DRY, and the mark
2 and are to be well protected against
Goods are to be packed in
dampness, shock, rust or rough handling. The SELLER shall be liable for any
damage to or loss of the Goods attributable to improper or defective packaging.
(NOTE: The following subclause is relevant only to deliveries in Germany).

5.4. Disposal of Packaging


Responsibility for the disposal of any packaging shall be the BUYER's.
6. Notification of Deliver:
(NOTE: This clause applies largely to contracts under which delivery takes
place in the country of the seller).

Immediately on Delivery, the SELLER shall notify the BUYER of Delivery by


4

3 This notification shall include
7. Inspection before Shipment
7.1. Inspection by the Buyer
The BUYER may, at the BUYER's option, inspect the Goods prior to
5 Days before the actual Delivery date, the
shipment. At least
SELLER shall give notice to the BUYER, or to any agent nominated by the
BUYER, that the Goods are available for inspection. The SELLER shall permit
access to the Goods for purposes of inspection at a reasonable time agreed by
the parties
(NOTE: Customs requirements for importation of goods into Indonesia and the
Philippines require inspection by SGS prior to shipment from the Seller's

' Shipping mark


Description of required packing
Means of notification, e.g., FAX
List of documents and information required
Number (of days)

344

country. The following clause is recommended for sales to these countries).


7.2. Inspection by Inspection service
The parties understand that importation into
I requires inspection of
Goods by SGS before shipment from the SELLER's country. The SELLER
agrees to cooperate fully with the SGR in providing access to and necessary
information about the Goods for the purpose of such inspection

8. Early Delivery, Partial Shipment, Delay in Delivery8.1. Early Delivery


(NOTE: The three sub-clauses below are alternatives. Delete as necessary).
Under this Contract Delivery up to
2 Days early is permitted. However,
payment shall not become due until the date agreed for payment in this
Contract; Delivery up to
2 Days early is permitted. In this case payment
shall fall due as though the actual Delivery date were the Delivery date agreed
in the Contract
8.2. Partial Shipment
(NOTE: The two sub-clauses below are alternatives. Delete as necessary).
Partial shipment is not permitted under this Contract, subject to the agreement
of both parties. However, any costs arising from partial shipment shall be to the
4
account of the

8.3. Delay in Delivery


In the event of late Delivery for reasons other than force majeure as defined in
Clause 17 below, the SELLER shall pay as liquidated damages and not as a
penalty the sum of
5 of the value of the undelivered part per Day of late
6 of the Contract Price. Payment of
Delivery up to a maximum of
liquidated damages shall be due without the BUYER having to furnish proof of
any loss, damage or injure

(NOTE: The two sub-clauses below are alternatives. Delete as necessary).


Payment of liquidated damages shall constitute full and complete satisfaction of
any claim of the BUYER against the SELLER arising from the or in
connection with late Delivery of any Goods. In particular the SELLER shall not
' Name of country
Number (of days)
BUYER or SELLER
5 Figure
6 Figure

345

be liable for any indirect loss or damage, as defined in Clause 2.7 above, arising
from or in connection with late Delivery of any Goods. Payment of liquidated
damages by the SELLER shall not preclude the BUYER from seeking
compensatory damages from the SELLER for any loss, injury or damage
arising from or in connection with late Delivery of any Goods. In particular the
BUYER shall be entitled to compensation the SELLER for any indirect or
consequential loss or damage, including but not limited to loss of profit, loss of
use or loss of contract, arising from or in connection with late Delivery of any
Goods. However, payments made as liquidated damages shall be offset against
any compensatory damages recovered from the SELLER for the late Delivery
of any Goods
8.4. Termination for delay

In the event that the SELLER becomes liable to pay the maximum sum payable
as liquidated damages under Clause 8.3 above, then the BUYER shall, upon
due notice, have the right to terminate the Contract
9. Price
The Price for the Goods to be delivered under this Contract is
2)

10. Terms of Payment


Payment shall be made by means of an irrevocable, confirmed letter of
3
on the
credit. The BUYER shall open the letter of credit on or before
terms agreed by the parties and annexed to this Contract as Appendix
4

This Contract shall not come into force under Clause 16 below until the
SELLER has received advice that the letter of credit has been opened in his
favour and has ascertained that the terms are in accordance with those agreed
between the parties. Any discrepancy between the terms agreed by the parties
and the letter of credit as issued shall be notified by the SELLER to the
BUYER immediately

Currency symbol and figure


Currency and figure in words
3 Date of opening of letter of credit
4 Appendix number
2

346

11. Inspection of the Goods

11.1. Duty to Inspect and Notify Discrepancies


The BUYER shall inspect the Goods on their arrival at the place of destination.
If the Goods fail to conform with the Contract in either quality or quantity, then
the BUYER shall notify the SELLER of any discrepancy without delay

11.2. Failure to Notify Discrepancies


If the BUYER does not notify the SELLER of any such discrepancy within
I Days of the arrival of the Goods, then the Goods shall be deemed to
have been in conformity with the Contract on arrival

11.3. Buyer's Rights in the Event of Discrepancy in Quantity


If a material discrepancy in quantity exists and is duly notified to the SELLER,
the BUYER at his discretion and subject to Clause 8.2 above may either:
a. Accept the delivered portion of the Goods and require the SELLER to
deliver the remaining portion forthwith; or
b. Accept the delivered portion of the Goods and terminate the remaining
portion of the Contract upon due notice given to the SELLER.
2
If any material discrepancy in quantity exists such that
and if
such discrepancy is duly notified to the SELLER, the BUYER may at
his discretion:

a. Adopt either of the remedies prescribed above in this clause; or


b. Reject the delivered portion of the Goods and recover from the
SELLER all payments made to the SELLER as well as all costs,
expenses and customs duties incurred by the BUYER in association
with the shipment, movement through customs, insurance or storage of
the Goods
(NOTE: Clause 11.4 below may not be necessary if SGS's inspection
takes place before shipment).

11.4. Buyer's Rights in the Event of Discrepancy in Quality


Discrepancies in quality shall be considered as defects and shall give rise to
claims under the defects liability provision of this Contract in Clause 12 below

Number (of days)


Description of fundamental discrepancy

347

However, a fundamental discrepancy in quality shall give the BUYER the


right to refuse Delivery of the Goods in whole or in part and to recover from the
SELLER all payments made for the unaccepted portion of the Goods as well as
all costs, expenses and customs duties incurred by the BUYER in association
with the shipment, movement through customs, insurance or storage of the
unaccepted portion of the Goods
12. Defects Liability
12.1. Seller's Liability for Defects

The SELLER warrants that the Goods supplied under this Contract shall at
the date of their Delivery:
a. Be free from defects in material
b. Be free from defects in workmanship
c. Be free from defects inherent in design, including but not limited to
selection of materials, and be fit for the purpose for which such Goods
are normally used
If any defect provably present in any of the Goods on the date of Delivery
comes to light during the defects liability period, then the BUYER shall
forthwith notify the SELLER. The SELLER, without undue delay, shall at his
own risk and cost and at his discretion repair or replace such item or otherwise
make good the defect
The SELLER's liability for defects is subject to the BUYER having adhered to
all procedures and instructions applicable to the of the item, and
expressly excludes damage to the Goods caused by fair wear and tear or by
misuse occurring after Delivery
12.2. Defects Liability Period

The SELLER shall be liable for defects which come to light during a period
of
2 days from
3 After the end of this period, the BUYER shall
have no right to raise claims of any kind against the SELLER for any defect in
any Goods of the SELLER's supply
The defects liability period shall be prolonged by the length of any period
during which the Goods cannot be used by the BUYER because of a defect.
Condition of use (e.g., "storage, installation, use or operation")
Number (of days)
3 Date of start of defects lialibity period
2

348

However, if new Goods are delivered to replace defective Goods, the defects
liability period shall not begin again on the replacement Goods
12.3. Limitation of Defects Liability

(NOTE: The two clauses below are alternatives. Delete as necessary)


The duty to repair and replace or otherwise to make good the defects is the only
duty of the SELLER in the event of the Delivery of defective Goods. In
particular the BUYER shall not be entitled to compensate the SELLER for any
indirect loss or damages as defined in Clause 2.7 above, arising from or in
connection with Delivery of defective Goods The SELLER shall indemnify and
hold harmless the BUYER against any loss or damage however arising whether
direct or indirect which shall be suffered by the BUYER as the result of
defective or faulty Goods delivered by the SELLER
13. Liability to Third Parties

(NOTE: The two clauses below are alternatives. Delete as necessary)


The
shall compensate and hold harmless the
2 from any award of
damages, reasonable costs, expenses or legal fees, in the event of any action or
lawsuit by a third party resulting from any injury, loss or damage to the third
party caused by a defect in the Goods delivered under this Contract
2 shall immediately notify the
In the event of such Lawsuit, the
2 and
shall fully cooperate with the

2 in taking any necessary legal action.

In the event of any action or lawsuit by a third party resulting from any injury,
loss or damage to the third party caused by a defect in the Goods delivered
under this Contract, the party against whom the action or lawsuit is brought
shall bear all costs, expenses, awards of damages or legal fees arising therefrom
14. Taxation
All income taxes, value added taxes, customs duties, excise charges, stamp
duties or other fees levied by any Government, Government agency or similar
authority shall be borne exclusively by the party against whom they are levied
15. Assignment of Rights and Delegation of Duties
The rights under this Contract may not be assigned nor the duties delegated
by either party without the prior written consent of the other party
' Name of the party giving the indemnity (BUYER or SELLER)
2

Name of the party receiving the indemnity (BUYER or SELLER)

349

16. Coming Into Force


This Contract shall come into force after signature by both parties and after:
a. The issuance of a letter of credit in accordance with the terms of Clause
10 above;
b.
2 Days of its signature
If the Contract has not come into force within
by both parties, all its provisions shall become null and void
17. Force majeure
(NOTE: The word duty is marked by an asterisk in this clause. For
contracts under Philippines law, the word duty should be replaced by the word
obligation)
If either party is prevented from or delayed in, performing any duty under
this Contract by an event beyond his reasonable control, then this event shall be
deemed force majeure, and this party shall not considered in default and no
remedy, be it under this Contract or otherwise, shall be available to the other
party
(NOTE: The subclause below contains examples only. It should be modified
as necessary)
Force majeure events include, but are not limited to: war (whether war is
declared or not), riots, insurrections, acts of sabotage, or similar occurrences,
strikes, or other labour unrest; newly introduced Laws or Government
regulations; delay due to Government action or inaction, or inaction on the part
of any inspection agency, fire, explosion, or other unavoidable accident, flood,
storm, earthquake, or other abnormal natural event
(NOTE: The subclause below on non-force-majeure events is optional)
Force majeure events do not include
3

If either party is prevented from or delayed in, performing any duty under
this Contract, then this party shall immediately notify the other party of the
event, of the duty affected, and of the expected duration of the event

List of events which must occur before contract comes into force
Number (of days)
List of events not considered to be "force majeure events"

350

If any force majeure event prevents or delays performance of any duty


under this Contract for more than Days, then either parties may on due
notification to the other party, terminate this Contract
18. Termination
Notice of Termination as defined in Clause 2.9 of this Contract shall be in
writing and shall take effect
1 Days from the receipt of such notice by the
party notified
In the event of Termination, the duties of the parties shall be as incurred up
to the date of Termination. In particular, the SELLER shall receive the full
Price of any Goods delivered and accepted by the BUYER. The provisions of
this Agreement dealing with defects liability, arbitration, and such other
provisions as are necessary in order to resolve any post-Termination disputes
shall survive Termination
19. Partial Invalidity
If any provision or provisions of this Contract are invalid or become
invalid, then this shall have no effect on the remaining provisions. Further, the
parties agree to replace any invalid provision with a new, valid provision
having, as far as possible, the same intent as the provision replaced
20. Modification and Waiver
Modification of the terms and conditions of this Contract shall be binding
on both parties even without consideration if the modification is in writing, is
signed, and is expressly stated to be a modification of this contract
Any waiver of any right under this Contract is binding on the party making
the waiver even without consideration provided the waiver is in writing, is
signed and is expressly stated to be a waiver of the said right
21. Language
The language of the Contract, of all Contract Documents, and of all
correspondence and other communication between the parties shall be English.
22. Notices
Notices served by one party to the other under this Contract shall be made,
in the first instance by facsimile transmission (hereinafter called "FAX"). A
further copy of each notice shall be sent by registered mail and signed
' Number (of days)

351

The effective date of the notice shall be the date of FAX transmission. In
the event of a dispute about the receipt of a FAX, however, the effective date of
the notice shall be the date of receipt of the registered letter or a date seven days
after the registered mailing, whichever is earlier
Notices shall be sent to the following addresses and FAX numbers:
SELLER:
Address:

FAX Number:
BUYER:
Address:

FAX Number:
Any change in an address or FAX number shall be the subject of a required
notice under this Contract
23. Settlement of Disputes
All disputes arising in connection with this Contract shall be finally settled
under the Rules of Conciliation and Arbitration of the International Chamber of
1 arbitrators appointed in accordance with the said rules
Commerce by
The place of arbitration shall be
be English.

2 The language of arbitration shall

(NOTE: The three sub-clauses below are alternatives. Delete as necessary).


In the event of arbitration, each party shall bear its own costs. In the event of
arbitration, the court shall assess the amount of the costs to be borne by each
party. In the event of arbitration, the party against whom the award is made
shall bear the entire costs of both parties to the action
The parties agree that any award made in accordance with the provisions of this
clause is final and binding on both parties
Execution
The parties, intending to be legally bound, have signed this Contract on the
dates and at the places stated below:

Number (of arbitrators)


Name of the place (city) of arbitration

352

For and on the behalf of

For and on the behalf of:

SELLER

BUYER

Title:

Title:

Date:

Date:

Place:

Place:

(NOTE: The witnessing of signatures is not required by all national laws).


Witness of SELLER's Signature

Witness of BUYER's Signature

353

2. THE VIETNAMESE VESSION OF THE CONTRACT

HOP HONG BAN HANG HOA


Gia
(Ten dm ngtrOi ban)
Sau day goi IA Ngtred ban.
VA
(Ten cad ngued mua)
Sau day goi IA NgtrOi Mua
Mo dau
(Phan nay la klzOng nhat thiet)
Sty thoa thudn ve Hop dong nay gifra cac ben IA dtroc lAm tren cac co sa sau:
(Cac dieu khodn nay chi la vi dy, va tze.0 ngadi mua Id mot dui ly, phdn ma ddu
co, thi dyng mot trong so Mc cach ghi nhu sau)
1. NgtrOi mua hanh Ong mot phan \Tad to cach dai dien cho chinh minh va mot
phan IA ddi dien mua sam cho cac tang ty khac
2. Ngued mua hAnh dOng nhu mot ddi dien mua hang cho
(1)

(Neil tzgadi ban cung cap hang theo cac qui cach pham chat khong thOng
dyng, piton ma ddu c the? neu;)
1. Ca hai ben hidu rang hang hod &roc sari xuat theo cac qui cach phdm chat
rieng cna ngued mua c6 thd khOng c6 gid tri rat thap tren thi trabng to do
(Neu tzgaefi mua tin cay hoan town veto rung lyr chuyen mein ctia tzgadi bcin,
phdn nd ddu c the' neu..)
2. NgtrOi ban hidu rang, ngtred mua, trong qua trinh xac dinh qui cach phdm
chat cua hang hod dd tin ttreing rat nhieu vao nang ltyc chuyen m6n cua ngtrOi ban

(Neil ngdai tnua a Thai Lan, va neu giao hang co khuyet tat hoac hang khOng
hoan chinh lam an hai tighiem tro zg cho /wadi mua, phdn ma ddu co thi neu:)
(1)

Ten ding ty

354

3. Ngu6i bdn hieu rang ngeri mua da c6 Hop dong bdn lai cac hang hod va
rang neu hang hod co khuyel tat hoac khOng phu hop ve chit luqng hoac so Wong,
ngu6i mua c6 the chiu trdch nhiem phdp ly ye nhUng thiet hai vuot tren tri gia
4. Ngtroi bdn hieu rang ngueri mua du dinh lap rap cac hang hod link kien thi6t
bi de ban lai, va rang neu hang hod c6 khuyet tat hoac khOng tuan thil chit lung
hoac so Wong, ngu6i mua co the chiu trach nhiem tru6c phdp ly ve cac ton that lon
1. Luat au dung
Hop (long nay, va tat ca cac van de lien quan tai viec xay dung Hop (long, hieu
cdch then giai hoac dux hien Hop (long se duoc dieu phOi b&i luat cua
(2)

(Gla dui: di "e'tt khocin phu sat, clay la tirj.,


Hop clang nay se khOng bao gOm, khong ke't hop va khOng IA chit the cua cac
dieu khoan cua COng uot cita Lien hop quCic ve Hop clang bdn hang qu6c to
2. Cac dinh nghia
Trong Hop dong nay, Ice ca phdn m6 ddu va cac phu luc, cac tir sau day c6
nghia nhu duoc giai thich, trir khi hoan canh cu the xdc dinh cac nghia khdc
2.1. Tit khi cac ben c6 sira d6i, ar "FOB", "CIF" va cac thuat ngu thuong mai
kink coy nghia va qui dinh ve cac nghia vu nhu neu trong Incoterms 90, an plitim
460 cua PhOng thirong mai Quoc to Pari
2.2. Tir "Hop clang" c6 nghia la Hop dong nay, phdn ma ddu va cac phu luc
cling nhu tat ca cac tai lieu khdc duoc liet ke la cac tai lieu cua hop (long hoac neu
c6 khdc di se duoc ghi rO trong Hop thing
2.3. "Cdc hang hod" c6 nghia la cac hang hod duoc neu trong dieu 4 (lath day
2.4. "Cid." la tra cho hang hod cita ngu6i bdn duqc neu trong dieu 9 .du6i day
2.5. "Giao hang" la giao hang theo Incoterms 90, theo dieu khoan hoac cac
dieu khoan duoc thoa thuan trong Hop &Ong nay
2.6. "Ngay" 1a ngay theo lich. Doi v6i cac muc dich cita Hop thing nay, cac
ngay did 7, cac ngay chit nhat va tat ca cac ngay le deu duqc coi IA ngay
2.7. Cdc chi phi va t6n that "truc ti6p" la cac chi phi va tan that phdt sinh truc
ti6p do bat c1.1 viec khOng giao nao, bat cu cham tre nao hoac bat dr khuy6t tat nao
(1)

Logi lien va s6 luvng

(2) Ten cac nutc CO luat

355

ciia hang (IA giao theo Hop Meg nay. Cac chi phi va t6n that do phai c6 thd dugc
danh gia ngay va hau nhu phai co quan h@ nhan qua voi cham tre hoac khuye tat.
Tat ca cac chi phi va t6n that khac cAa Hop &rig nay dugc coi la "khOng truc
Dac biet, t6n that loi nhuan, ten that sir dung va t6n that hop d6ng deu la cac t6n
that khOng nix tier,
2.8. "Chinh pile la chinh phu qu6c gia, chinh quydn va cac nha cht'rc trach dia
phuong, va cac co quan cua ho. Dac Net, hai quan/cac co quan chinh guy& thira
hanh deu la cac co quan chinh phu
2.9 "Cham dirt" la su ket thilc Hop dong b6'd mot trong cac ben theo bat dr
guy& nao dugc qui dinh trong Hop (long nay. Viec ket tInic Hop (Ring theo bat ctl
quydn nao khac phat sinh tir luat ap dung hoac bat al nguOn nao khac deu dugc coi
la "sir huS, b6 " Hop dong nay
2.10. (Cac diet' khac)

3. Thoi thu6n Wan b6 va cac tai li6u cila Hop d6ng


Hop dong nay tao nen su thoa thuan toan bO va su hidu nhau gifra cac ben.
KhOng co su hidu nhau nao, thoa thuan nao, diet' kien nao, han the nao hoac khang
nghi nao, bang mieng hoac van ban ma khOng dugc thd hien trong Hop &lag nay
hoac khOng &roc thay the bang Hop (long nay
(Ghi cha: dieu khodn phu sau day la tuY Y)

Ngoai chinh nOi dung ciia Hop (long, cac tai lieu liet ke sau day se IA mot phan
cila Hop (Ring. Tat ca cac tai lieu va cac dieu khoan ciia Hop Meg se dugc hidu,
lieu co thd, mOt cach thOng nhat. Trong tru6ng hop co mau thuAn, trat to uu tien cua
cac diet' khoan va cac tai lieu lam nen sir thoa thuan nay se la nhu sau:
(Ghi cha, danh sach sau day chi la vi du)

Bat cu sira d6i nao ddu lam tren Hop (Ring g6c
a) Chinh ban than Hop (long
b) Cac qui each phim chat
c) Cac ban ye ky thuat
' Lief ke cac thoa thuOn Mac cda cac ben

356

d) Cac diet' kien chung/dac biet cua nguai mua


e) eic dieu kien chung/dac biet cua ngithi ban
4. Pham vi cung cap
Gic hang hod se &roc giao theo Hop thing nay &roc xac dinh bai
(I)

5. Giao hang
5.1. Ngay, dia diem va cac dieu ken giao hang

(2) Ngay giao se la


Viec giao hang se &roc thuc hien theo
(3) Rui ro va quyen soy hitu hang hoa se &rot chuydn tir ngtreri ban sang

nguai mua khi giao hang


(Neu ap dung cac dieu kien giao hang CIF, CFR va CPT, cac ben c the neu
them dieu khodn sau).

Dia didm giao hang dm Hop (long nay la


(4)

5.2. Chi dinh tau va ngay den ctia tau


(Ghi chi), diet' khodn nay la clang cho cac hop clang theo dieu kien FOB va
FAS)
Ngithi mua se thOng bao cho ngubi ban ten tau trong \Tong

(') tilt&

ngay giao hang da thoa thuan


Neu tau ma nguoi mua chi dinh kh6ng tai vao ngay hoac truac ngay
(7) va
(6) ngubi ban c6 thd to dua hang vao kho ngoai quan tai cang
theo Hop (long nay. Trong truerng hop nay, ngikii ban phai thong bao cho ngubi
mua toan b0 tinh hinh cua viec giao hang vao kho ngoai quan. Toan b0 cac chi phi
phat sinh do phai giao hang vao kho, bao gom nhimg kh6ng chi gidi han Cr chi phi
luu kho va bao him se do ngirbi mua tra

(1)Ten ctia cac phy luc qui dinh ye hang h6a


(2)Dieu kien Incoterms de thoa thuen
(2) Ngay giao hang de thoa thuen
(4) Eqa diem giao hang de thoa thuen

(5)s6 ngay
(6)Ngay tau den
(7)Ten cang gal hang

357

5.3. Cac ky hiOu van tai va bao goi hang


(Ghi dui: qui dinh sau day chi la vi du)
Tren mat cila arng kien hang giao theo Hop &Ong nay phai &roc ghi: s6 hieu
cua kien, cac kich thu6c cua kien, trong Wong toan phan, trong luong tinh, vi tri de
cau, s6 cila L/C, cac to "de theo canh thing, x'eP der than trong, gift khO va ky hieu:
(I)

Hang hod phai cluoc bao goi bang


va phai ducic bao ve ch6ng cac va dap trong b6c xe.p va van
chuyen . Ngueri ban phai chiu trach nhiem phap ly ve bat kjf tdn that hoac hu hong
nao dm hang hod do bao bi khOng phii hop hoac c6 khuye't tat

(2)

5.4. Xily bao bi (diesu khocin nay chi ap dung tai CHLB Dike)
Trach nhiem xir ly bat cu loai bao bi nao cling thuOc ve ngtred mua.
6. Thong bao giao hang
(Ghi chit: di ett khocin nay Op dyng rOng
hang dttqc ti hanhnu'dc tigadi ban).

cho cac

dOng ma viec giao

Ngay khi giao hang, ngued ban phai th6ng bao cho ngueri mua ve viec giao
(4)
hang bang
(3) Thong bao nay bao gom
7. Giam dinh trudc khi giao hang
7.1. Giam dinh bai ngutri mua
Ngued mua c6 the, voi quyen lua chon cira mInh, giam dinh truck khi giao
hang, It nhat
(5) ngay thkrc su giao hang, ngkred ban phai
thOng bao cho ngued mua hoac bat cu dai dien nao do nguoi mua chi dinh rang
hang hod Et san sang de giam dinh. Ngkred ban phai cho phep tieP can hang hod cho
muc dich giam dinh tai tiled diem hop 17 &roc thoa thuan bOd cac ben
(Ghi chkl: cac yeu cau hai quan ve nhap khau vao Indonesia va Philippines dOi
hOi phai c6 giam dinh cua SGS trudc khi gui hang to ntrecc ngued ban. Dieu khoan
sau day dung cho cac hop &rig xuat khau sang cac nudc nay)
(1)

1V hiOu van tal

IMO to bao bi clOi hoi

358

(3)

ThOng thuting bang Fax

(4)

Danh sach cac tai lieu va (hang tin you cau

(5)

S6 ngay

7.2. Giam dinh bat dich vu gicim dinh


(I) dei hai c6 giam dinh hang
Cac ben hieu rang nhap kliSu vao
hod bai SGS truot khi gui hang tir nuOc ngtred ban. Ngtred ban dOng y hop tac'hoan
toan vai SGS trong viec tao dieu kien tie') can va dot duoc cac th6ng tin can thiet ve
hang hod cho muc dich giam dinh nay
8. Giao hang sOrn, giao tang phin, giao hang clam
8.1. Giao hang thin
(Ba dieu khoan phy sau dciy la co the' thay the cho nhau, co the bo dieu
khocin khong can titter).

1. Giao hang som la kh6ng diroc phep theo Hop dong nay
(2) la duqc phep, tuy nhien thanh man se
2. Giao hang sem truck
khong duct tien hanh au& so \Teri ngay da thoa thuan trong Hop dong nay
(2) la duqc phep, trong truung hop nay, thanh
3. Giao hang Om triroc
toan se loc tien hanh nhu truOng hop ngay thuc six giao hang la ngay nhu da thoa
thuan trong Hop dOng nay
8.2. Giao hang titng phiin
(Hai dieu khoan phu sau day la c6 the thay the cho nhau, c6 the 136 dieu khoan
khOng can thiet)
1. Giao hang tang phan la khO.ng &roc phep theo Hop dong nay
2. Giao hang tang phan la duqc phep theo Hop dong nay, theo su thoa thuan
cUa ca hai ben, tuy nhien bat cd chi phi nao Oat sinh cua giao hang tang phan se do

(3 ' chiu
8.3. Giao hang cham
Troir truing hop giao hang cham do cac nguyen nhan ngoai nguyen nhan bat
kha khong nhu duoc neu trong dieu khoan 17 sau day, ngirCri ban phai thanh toan
(4' % tri
thiet hai qui ra tien va khong phai la tien phat, met so tier' bang
(4) % khoan
gia so hang chu'a giao cho moi ngay giao cham, tai da bang
tien c6 the &pc thanh toan theo dieu 9 dudi day. Thanh toan thiet hai qui ra tien
phai duoc lam ma khong can ngueri mua cung cap cac bang chang ve bat kS/ t6n
that, thiet hai hoac thirong ton nao

(1)TOn nutic
(2)S6 ngay

Nguti ban/ngutri mua


(4) S6 cu the
(3)

359

(Hai dieu khoan phu sau day la c thd thay thd cho nhau, co the be diet' khoan
khOng can thidt)
1. Viec thanh toan thiet hai qui ra tien phai thoa man day dit va hoan toan bat
ctr khidu nai nao cua ngtroi mua Mit viii ngugi ban, phat sinh tir hoac co lien quan
ddn giao hang cham cita bat ky hang hoa nao. Dac biet, ngubi ban se khOng phai
chiu trach nhiem phap 15, d6i viii bat ky ton that gian tiep hoac ton that hau qua ilk),
nhir &roc neu trong muc 2.7 trong Hop ding mau, phat sinh tir hoac c6 lien quan
den giao hang cham cita bat ky hang hod nao
2. Viec thanh toan thiet hai qui ra tier' cua ngued ban se kh6ng loci bO viec
ngu6i mua tim kidm den bit thiet hai tir ngugi ban cho bat ky ton thgt, hu hOng hoac
thiet hai tir ngugi ban cho ba ky ton that, hu hong hoac thiet hai nao phat sinh tir
hoac c6 lien quan ddn giao hang cham cita bat ky hang hoa nao. Dac biet, ngtroi
mua se c6 quy6n doi boi thugng tir ngu6i ban d6i viii bat ky ton that hoac thiet hai
titkrc tiep hoac gian tiep nao, bao gom nhung khong gigi han ii ton that hai nhuan,
thiet hai sir dung hoac ton that hop ding, phat sinh tir hoac c6 lien quan cldn giao
hang cham dm bat ky hang hod nao. Tuy nhien, cac thanh toan duoc lam nhu thanh
toan thiet hai qui ra tier' se dugc bit trir vao bat ky den bit thiet hai ma ngtrai ban
phai thvc hien d6i viii viec giao hang cham cita bat ky hang hoa nao
8.4. Chdm dial hop (tong do giao hang ch4m

Trong truing hop ngugi ban cc') trach nhiem thanh toan s6 tien t6i da cho cac
thiet hai qui ra tien nhu qui dinh trong muc 8.3 cita hop ding mau, khi do viec giao
hang cham se duoc coi nhu vi pham hop (long va nguOi mua, sau khi th6ng bao cho
ngugi ban biet, co thd cham dirt Hop ding va/hoac tim kidm bat ky bien phap khac
phuc nao

9. Gia
Gia cua hang hoa se &roc giao theo Hop MI-1g nay IA

(I)

(2)

10. Cac di6u kien thanh toan

Thanh toan se &roc lam bang tin dung thu co xdc nhan, khOng hu5, ngang.
(3)
Ngtrgi mua se m& tin dung thu vao hoac tarot
viii cac dieu kien da thoa thuarr boi hai ben va duoc dua vao phu luc cila Hop
Loai fief) vg s6 tien
(2)S6 tien va logi tien viec bgng chi?
(3)Ngay ma tin dung
( I)

360

dOng nay, xem phu luc

(I)

Hop dung nay se kh6ng c6 hieu luc theo diet' 16 dugi day, cho den khi
ngugi ban nhan dugc thong bao rang tin dung thu da dugc mo vad ten ngued hugng
lgi IA ngugi ban vi ngtrgi ban chic chin rang cac dieu kien dia tin dung thu la tuan
thu dung nhung gi hai ben di thoa thuan. Bat kS/ su khac biet nao gala cac dieu kien
di" thoa thuan bed cac ben vOi tin dung thu cid mg se phai dugc ngugi ban th6ng bao
ngay lip tut cho ngued mua

11. Giam dinh hang hoa


11.1. Nghia vu girim Binh vd thOng brio su khric biOt
Nguai mua se Om dinh hang hod khi cluing tad dia diem den. Neu hang hod
kh6ng tuan thU vgi Hgp &Ong hoac ve chit lugng hoac so lugng, ngugi mua se phai
thOng bao ngay lap flit cho ngugi ban ve bit kSi su khac biet nao
11.2. KhOng thOng brio sic kinic biet

Neu ngugi mua kh6ng th6ng bao cho ngued ban ve bit kS, sty khac biet Liao
trong vOng (I) sau khi hang tgi, hang hod se dugc coi la phi'
hop vgi Hop dung khi ddn
11.3. Cac quyen cita ngnai mua trong twang hap c6 khac biet vi sr). Wong
Neu c6 khac biet clang ke ve so lugng va ridu dieu nay dugc th6ng bao tgi
ngugi ban kip tiled, ngugi mua tuST y cna minh va theo muc 8.2 tren day c6 the lam
mat trong cac diet' sau:
a) Chap nhan phan hang da giao va yeu cau ngugi ban giao phan hang con lai.
Hoac
b) Chip nhan phin hang da giao va huy 1)6 phin hang con lai dm hop dung
nhung phai thOng bao kip thgi cho ngueii ban
Neu co bit kj/ khac biet clang kd ve so lugng hang hod nao nhu
va neU khac biet do da dugc thOng bao
(2)
kip theci cho ngugi ban, ngured mua c the tuST
a) Chip nhan mgt trong cac giai phap mO to tren day trong dieu khoan nay,
hoac
(1)S6 ngay
(2)Mo to khac biOt cc ban

361

b) Tir ch6i phan hang hod da giao va yeu cau ngubi ben ban hohn tra toan bo s6
tien da thanh toan cung nth" cac chi phi lien quan den thug hai quan, nhan hang,
thong quan, bao him hoac ltru kho hang
11.4. Ccic quyin caa ngtroi mua trong tritertig hop c6 khcic biet ye chat litong.
(Dieu nay c6 the' khong can thief c6 giam dish cfia SGS fru& khi gui hang).
C_ac khac biet ve chat luting se dugc xem nhu la cac khuy& tat va se lam phat
sinh cac khieh nai theo dieu khoan tnich nhiem phap ly ye khuy& tat trong Hop
clang nay, dieu 12 dueri day
Tuy nhien, khac biet co. ban ve chat luting se cho phep ngubi mua quyen tit
ch6i toan 1)0 hang hod hoac mot phan va yeu cau ngubi ban hoac tra lai s6 tien da'
thanh toan cho phan hang hod khOng chap nhan ding nhu cac chi phi lien quan den
thn6 hai quan, nhan hang, th6ng quan, bao hiem hoac luu kho hang cila phan hang
hod khong diroc chap nhan
12. Trach nhiem phap ly ye khuyet tat
12.1. Trcich nhiem phap ly ctia nguai ban ve khuyet tat ctia hang hod
Ngubi ban dam bao rang cac hang hod dirgc cung cap theo hop clang nay tai
ngay giao hang se:
a) Khong c6 khuy& tat ve vat lieu,
b) KhOng c6 khuy& tat do nhan cOng
c) KhOng c6 khuyet tat tiern an trong thi& k6, bao gam nhung khOng gied han &
viec lua chon vat lieu, va se phii hop cho muc dich sir dung thOng thueng cila hang hod
Bat ky khuy& tat nao co thd chang minh duot trong bat ky hang hod nao xuat
hien trong th&i hieu trach nhiem phap ly ve khuy6t tat, ngubi mua se thong bdo
ngay lap tuc cho ngirbi ban. Ngubi ban, khOng cham tre, se bang rUi ro va chi phi
cUa minh, thy y sira chita hoac thay the hang hod do hoac lam cho het khuyet tat
Trach nhiem phdp ly cua ngtrbi ban ve khuy& tat dm hang hod phu thuOc vao
viec ngirbi mua c6 tan trong triet de tat di cac thU tuc va chi don ap dung cho
(I)

dm hang hod va r6 rang ngoai tar cac hu hong do hao mon binh thubng hoac
sir dung sai sau khi giao hang
12.2. Thai hieu phcip ly ire khuyet tat

(1)

Cac dieu kian sir dung nhu hru kho, gp dat, sir dung hoac van hanh..

362

Nguai ban se chiu trach nhiem phap ly ve khuy6t tat xuat hien trong thai gian
(2)
(') ngay, tinh tir ngay

Trong truing hop khuyet tat xuat hien sau khi het thai han nay, nguai mua se
khOng c6 quyen khi6u nai nguai ban ve khuyet tat bat kS/ nao
Thai hieu trach nhiem phap 13i ye khuyet tat se &roc keo dai them bAng thai
han ma nguai mua khOng the sfr dung duac hang hod do khuyet tat. Tuy nhien, n6u
hang hoa mai duac chuye'n d6n dd thay th6 hang hod c6 khuy6t tat, thi thai hieu
trach nhiem phap 13i ve khuy6t tat se khOng duac bat dau lai vai hang hod thay the
12.3. Gi6i han trach nhiem phdp ly ye khuyet tat cad hang hod
(Hai dieu khoan sau day la thay the cho nhau)
1. Nghia vu sna chna va thay the hoac bang cach khac lam hang hod h6t khuy6t
tat chi la trach nhiem cna nguai ban trong twang hop giao hang hod c6 khuy6t tat.
Dac biet, nguai mua khOng c6 quyen dei boi thuang tir nguai ban cho bat k37 thiet
hai hoac ton that gian tiep nao nhu net' trong muc 2.7 tren day, phat sinh tir hoac c6
lien quan den giao cac hang hod c6 khuyet tat
2. Nguai ban se den bit va tranh cho nguai mua khoi bat 14 thiet hai hoac t6n
that nao phat sinh cho du la true tiep hoac gian tiep do hau qua ciia hang hoa hong
hoac c6 16i, duac giao bei nguai ban
Trong twang hop khuy6t tat xuat hien sau khi ket thdc thai han nay, nguai ban
se khOng c6 trach nhiem phap ly dai vii nguai mua, va dac biet khOng co nghia vu
tra lai lien hoac bat kS/ phan tien nao da thanh town

13. Trach nhiem phap ly doi vol ben thin ba


(Hai

khoan sau day la thay Meal nhau)


(4)

(3) se den bu va tranh cho ben


khei bat kji thiet hai nao, chi phi hop ly, phi t6n hoac phi thn tuc nao trong truing
hop co hanh Ong phap 13i hoac kien cao nao cna ben thd ba ve bat kS , thiet hai, ton
that hoac hu hong nao gay ra boi hang hoa duqc giao theo Hop dung nay. Trong
(3) se thOng bao ngay lap tdc cho ben
truing hap c6 kien cao, ben
(4) trong viec ti6n hanh

(4) va se hop tic day du vii ben
bat k3/ hanh clOng phap 13i can thi6t nap
1. Ben

(1)

S6 ngay

Ngay b6t dau cUa thai hiOu trach nhiem phap ly ve hu hong
(3)BOn se Oaf den bb (nguti ban hoac ngudi mua)
(4)Ben se nh'an den bit (ngtrai ban ho0c ngt.rdi mua)

363

2. Trong truing hop c bat 14 hanh Ong phap ly hoac kien cao nao b6i ben
thd ba ve bgt ky thiet hai, ton thgt hoac hu hong nao gay ra cho ben thti ba bai
khuySt tat cila hang hod duqc giao theo Hop &Ong nay, ben bi kien se phai chiu toan
1)0 cac chi phi thiet hai phat sinh tir vu kien do
14. Thu6
Tgt Ca cac thuS thu nhap, thuS tri gia gia tang, thuS hai quan, thus hanh nghe
hoac cac chi phi khac dugc qui Binh chinh phi'', co quan chinh phu hoac cac
nha civic trach Wang throng se hoan man do ben thuOc d6i arcing thu thuS cua cac
ca quan tren chiu
15. Giao quyen va uy quyen thtrc hien nghia vu
Giao quyen Ira Uy quyen thkrc hien nghia vu
Cac quyen lo'i theo hop (long nay khong the clugc giao hoac cac nghia vu cua
Hop (long khOng the cluqc uY quyen bOi bgt dr ben nao ma kh6ng CO sty Ming Y
bang van ban dm ben kia
Skr giao quyen Ira ttYr nhiem giao trqc
Cac quyen theo Hop Ming nay khong the cluot giao hoac cac giao trac khong
the duqc uy quyen bOi mot ben ma khong c6 sty ding yr bang van ban dm ben kia
16. LEO luc cua Hap d6ng
Hqp ding nay se trO thanh c6 hieu 1krc sau khi cluqc hai ben ky va sau khi :
a) NgtrOi ban nhan duqc thOng bao cua ngan hang dia minh ve viec thu tin
dung da duqc mar phil hop vii cac diet' kien cua dieu 10 tren day;
b)
(1)

c. Co su cho phep, gigy phep, su chuan y ch.rqc cap bad bgt kyr ben thtk ba nao
hoac cac tai lieu khac duqc yeu cau de thkrc hien dung nghia vu cua m6i ben theo
Hop ding nay
Nell Hop (long kh6ng the tro thanh c6 hieu lkrc trong vOng

(1)Lift ke cac dieu kiOn phai thuc hiOn trutc khi Hop d6ng tr& thanh co hieu /kit
(2)S6 ngay

364

(2) ngay

sau khi c6 chit 14 dm ca hai ben, met ben c thd chain dirt hop &Mg sau khi thOng
bao cho ben kia
17. Bit khi kiting

Neu met trong hai ben bi ngan can, hoac bi cham trd trong viec thuc hien bit
ky nhiem vu nao cua Hop Ming nay b&i cac sty kien nam ngoai tam kidm soat hop
ly cua minh, chi su kien nay se duqc coi la bit kha khang, va ben nay se khOng
dugc coi la c6 loi va khOng phai chiu bit dr tranh nhiem nao vai ben kia theo Hop
dong nay
(Plan sau day chi vi du, can sita doi cho phi) hop)

Cac su kien bit kha khang bao gdm, nhung kh6ng giai han chi& tranh (cho
du co tuyen b6 hay khOng), bao Ong, khai nghia, cac hanh Ong tdy chay, hoac
tuong tit, dinh cling, hoac tinh hinh quay r6i cua chInh phil; cham trd do viec hanh
clOng hoac kh6ng hanh Ong cua chinh phu, hoac 1)&14 hanh Ong dm bit ky Ong
ty giarn dinh nao; chay, nd hoac cac tai nan khOng tranh khoi khac; lit lut, bao,
clOng dat hoac cac hoan canh to nhien khOng binh thuong khac
( Phdn sau day ye cac sit kien khong phdi Id bat khd khang va Id tuji

Cac su kien bit kha khang khOng bao gdm sr kien sau:
(I)

1\16u met trong hai ben bi ngan can tir hoac chant tit trong viec thuc hien bit ky
nhiem vu nao oh Hop &Mg nay, thi ben do phai ngay lap tdc thong bao cho ben
kia ye su kien, nghia Vu se bi anh huding, va thqi han du anti ma su kien keo dai
Ne'u bit 14 su kien bit kha khang nao ngan can hoac lam cham tre viec thuc
(2) ngay, mot trong hai
hien bit 14 nghia vu nao oh Hop d6ng nay lion
ben co thd cham dirt Hop &Ong sau khi thong bao cho ben kia
Neu mot ben bi ngan tr .& bi cham trd trong viec thuc hien bit ky nghia vu nao
theo Hop &Mg nay bai bit ky su kien nao ma kitting thd du doan throe hoac c thd
du doan truac nhung khOng thd tranh duqc, thi su kien nay duqc coi la bit kha
khang, va ben do se kh6ng bi coi la c6 lOi va se khOng co giai phap nao du quy dinh
theo Hop dong hay bang cach nao do clanh cho ben kia

Danh sach cac str kiOn cluvc coi la "khOng bit kha khang"
(2)

S6 ngay

365

18. Ch6m dirt va ht4 1)6 tiny (long


ThOng bao cham dirt va huY b6 Hop (long nhu &roc neu trong muc 2.9. tren
day phai dugc lam bang van ban theo quy Binh cUa diet' 22 dugi day va se co hieu
luc sau (I) ngay ke tir khi nhan duqc thOng bao b&i ben dugc
thOng bao
Trong trugng hop cham dirt Hop (ong, nghia vu cua cac ben se ket thtic vao
ngay cham dill Hop &Ong. Cu the, ngugi ban se nhan toan 13.6' sg.tien theo gia cita
bat ky hang hod nao cla dugc giao va diroc chap nhan b&i nittai mua. Cdc dieu
khoan dm Hop diing nay ve trach nhiem phap ly ve khuyet tat, trong tai va cac dieu
khoan can thiet khac de giai guy& bat ky tranh chap nao phat sinh sau khi cham dirt
Hop dgng van con gid tri
19. laOng c hieu Itrc tong phAn
Neu bat ky diet' khoan nao hoac cac diet' khoan nao cita Hqp dgng nay la
khOng c6 hieu luc hoac tr& thanh khOng co hieu luc, thi diet' nay se khOng anh
hung tai cac dieu khoan khac. Ngoai ra, cac ben cl6ng y thay the bat ky dieu
khoan kh6ng hieu luc bang met dieu khoan mai c6 hieu lirc vai ding muc dich nhu
dieu khoan da thay the
20. Sim doi va tir bo
Viec sira clgi cac dieu kien va dieu khoan cUa Hop cl6ng nay phai la rang buOc
ca hai ben, tham chi khOng can diet' kien, neu viec sira ddi dugc lam bAng van ban,
ditoc ky va duo'c neu ro la mgt ban sira dgi dm Hop &lig nay
Bat ky su tir bo mgt quyen loi nao theo Hop (long nay deu la rang buOc doi vgi ben
dua ra tir 1)6, tham chi khOng can dieu kien , neu viec to b6 dugc lam bang van ban,
clugc ky va dugc neu rO la mot su tir 1)6 quyen lgi cid &roc qui Binh trong Hop clOng
21. NgOn ngir
NgOn ngir cua Hop cliing, ciia tat ca cac chirng tir hop dong khac, cita tat ca cac
thu tin va cac thong tin khac gida cac ben deu phai bAng tieng Anh
22. Tilting bao
Cac thong bao cua mot ben cho ben kia theo Hop long nay se &roc lam, &du
tien bang Fax, sau do se gin qua bun dien bang thu dam bao

(1)

S6 ngay

366

Ngay hieu luc caa thOng bao se IA ngay nhan dugc ban Fax. Tuy nhien, trong
truing hop c6 tranh chap ve viec nhan ban Fax, ngay hieu luc se IA ngay nhan dugc
th6ng bao bang thu dam bao hoac 7 ngay sau khi gin thu dam bao, tuST theo su kien
nao xay ra som hon
Du cho c6 qui dinh nhu tren, moi thOng bao dugc chuyen va dugc nhan qua
phugng tien van ban nhu dien tin, telex, thu tir, hoac dugng buu dien bInh thugng se
dirgc coi IA thOng bao c6 hieu luc theo Hop dor -1g nay
Cac thOng bao se phai dugc gui tgi cac dia chi va s6 Fax nhu sau:
Ngtriti ban

Dia chi
Fax

NgtAri mua

Dia chi
Fax

Bat kji su thay d6i nao cira so Fax, hay dia chi se phai dugc thOng bao theo
Hop (long nay
23. Giai guy& tranh chap
Tat ca cac tranh chap phat sinh fir Hgp dong nay cugi cang se phai &pc giai
quy6t theo cac nguyen tic ve hoa giai va trong tai cua Ph6ng Thuong mai qua trinh,
bed (I) trong tai dugc chi dinh theo cac nguyen tic tren day
Dia diem trong tai se la
Anh.

(2) NgOn ngit cua trong tai IA tiOng

(Ba diet' khoan phu sau day la thay the cho nhau)
a) Trong truing hop sir dung trong tai, m6i ben chiu cite chi phi caa mInh
b) Trong truing hop sir dung trong tai, trong tai se phan quyet phan chi phi ma
m6i ben phai chiu
c) Trong truing hop sir dung trong tai, ben thua se phai chiu toan b0 cac chi
phi trong tai
Cac ben thoa thuan rang bat kS/ phan guy& nao theo qui dinh caa dieu khoan
nay se la chinh thilc va rang buOc ca hai ben

(1)S6 Itigng trong tai vien


(2)Ten thanh phi se dien ra trong tai

367

Dieu khoan thi hanh


Cac ben tuan thu theo phap luat., 14 Hop don nay vao ngay va tai dia didm
ghi sau day:
Dai dien cho ngtrai ban:

Dai didn cho ngutsi mua:

Chtic vu:

Chtic vu:

Ngay:

Ngay:

Dia diem:

Dia didm:

(Cdc 11401 cfia ccic tutor khong doi hdi phdi -vac nheitz chi? /4)

Chit 14 cim dai dien ben ban

368

Chit ky au dai dien ben mua

3. MODEL CONTRACT FOR THE SALE OF GOODS AND THE CIVIL CODE
OF VIETNAM
The arc three main types of contract under CCVN (see appendix 2 for the
English and Vietnamese versions).

Sa'es/Procurement Contract (( 421-442)

Contract to Manufacture ((( 550-561)

Contract for Services ((( 521-529)

The model Contract is a pure Sales Contract - an exchange of "assets" for


"money".
In the following parts some principal clauses from the model Sales contract are
compared with the stipulations regarding civil contracts by the civil code of the
Socialist Republic of Vietnam with a view to offering the reader an insight into
the subject - matter.

3.1. Structure of the Model contract


What you should know before reading the contract
Preamble
Clause 1 : Applicable Law
Clause 2 : Definitions
Clause 3 : Entire Agreement and Contract Documents

What the Buyer will get


Clause 4 : Scope of supply

How the goods will be supplied


Clause 5 : Delivery
Clause 6: Notification of Delivery
Clause 7: Inspection before Shipment
Clause 8: Early Delivery, Partial Shipment, and Delay in
Delivery

What the Buyer will give


Clause 9: Price
369

How the Buyer will pay


Clause 10: Terms of Payment
What if the goods are not as ordered ?
Clause 11: Inspection of the Goods
Clause 12: Defects Liability
Liabilities outside the contract
Clause 13: Liability to Third Parties
Clause 14: Taxation
The legal status of the contract
Clause 15: Assignment of Rights and Delegation of Duties
Clause 16: Coming Into Force
Clause 17: Force Majeure
Clause 18: Termination
Clause 19: Partial Invalidity
Clause 20: Modification
Clause 21: Language
Clause 22: Notices
Clause 23: Settlement of Disputes
Execution
Appendices

3.2. Interpretation of the Contract under CCVN

Article 135. Interpretation of Civil Transactions


1. The interpretation of a civil transaction must be based upon the actual
desire of the parties at the time of establishing such transaction an
on the objectives of such transaction.
2. Where a civil transaction may be interpreted as having different
meanings, the civil transaction must be interpreted in accordance
with a meaning consistent with the objective of the transaction, and
370

shall be in accordance with the customs of the place where the


transaction was established. If the party which is economically
stronger includes in the civil transaction points which are
disadvantageous to the weaker party, the interpretation of the civil
transaction must be such that favors the weaker party.
Article 408. Interpretation of contracts:
1. If a contract contains unclear provisions, the interpretation of such
provisions shall not only rely upon the wording of the contract but
also shall be based upon the common intentions of the parties.
2. If a clause of the contract susceptible of many meanings, the meaning
which would allow the implementation of the clause to most benefit
of the parties shall be chosen.
3. If a contract contains a wording with many different meanings the
contract shall be interpreted according to the meaning which best
conforms to the characteristics of the contract.
4. If a contract contains clauses or words which are difficult to
understand, those shall be explained according to the customs at the
appointed place for the execution of the contract.
5. When a contact lacks some provisions not belonging to the essential
substance, the contract shall be supplemented according to the
customs in regard of such types of contracts at the appointed place
for the execution of the contract.
6. The clauses of contract shall be interpreted in relations to each other
so that each is given the meaning derived from the contract as a
whole.
Remark:
Where rules of interpretation allow the court a great deal of freedom,
the parties should be as precise as possible.

3.3. Applicable Law of the Contract under CCVN.


Article 834: Civil contracts
1. Forms of civil contracts shall be governed by the law of the country
where contract are concluded. The contracts that are concluded in a
foreign country with violations of law governing forms of contracts
shall be valid in Vietnam if the form of those contracts does not
371

violate the law of the Socialist Republic of Vietnam.


2. The rights and obligations of parties in a civil contract shall be
determined by the law of the country where performance of the
contract takes place.
The contracts that are concluded and performed wholly in Vietnam
shall be governed by the law of the Socialist Republic of Vietnam.
If the place of performance of a contract is not indicated, then the place
of performance shall be determined by the law of Socialist republic of
Vietnam.
3. The civil contract having immovable property in Vietnam as its
subject-matter shall be governed by the law of the Socialist
Republic of Vietnam.
Remark:
Article 834 is in need of clarification by the courts.

3.4. Applicable Law of the Contract under the Model Contract.

1. Applicable law
This contract, and all questions relating to its formation, validity,
interpretation or performance shall be governed by the law of
[Note: The subclause below is optional]
This contract shall not include, incorporate or be subject to the
provisions of the "United Nations Convention on Contracts for the
International Sale of Goods.
Remark
The Model Contract assumes freedom of contract in choosing an
applicable law. It also allows for exclusion of the Vienna Sales
Convention.

3.5. Scope of Contract: Technical Specifications

Notes for preparing the Technical Specification

372

A set of prcise and clear specifications is a prerequisite for bidders to


respond realistically and competitively to the requirements of the
Purchaser without qualifying their bids. In the context of International
Competitive Bidding (ICB), the specifications must be drafted to permit
the widest possible competition and, at the same time, present a clear
statement of the required standards of workmanship, materials, and
performance of the goods and services to be procured. Only if this is
done will objectives of economy, efficiency, and fairness in
procurement be realised, responsiveness of bids be ensured, and the
subsequent task of bid evaluation facilitated. The specifications should
require all goods and materials to be incorporated in the goods be new,
unused, and of the most, recent or current models, and that they
incorporate all recent improvements in design and materials unless
provides for otherwise in the contract ...
Care must be taken in drafting specifications to ensure that they are not
restrictive. In the specification of standards for equipment, materials,
and workmanship, recognised international standards should be used as
much as possible. Where other particular standards are used, whether
national standards of the Borrower's country or other standards, the
specifications should state that equipment materials, and workmanship
that meet other authoritative standards, and that ensure at least a
substantially equal quality than the standards mentioned, will also be
acceptable.
Source: World Bank Standard Bidding Document: Procurement of
Goods. p. 65.
Remark:
Technical specifications must be prepared to allow absolute certainty
as to the scope of contract.

3.6. Legal Families and the Applicable Law

The total agreement between the parties is their written contract (the
fish) plus the applicable private law (the water)

In principle, the parties to a contract are free to decide the private


law that will supplement their contract; i.e., the parties are free to
choose the water their fish swims in. Each country has its own
national law. These laws belong to one of three families. The Civil
Law Family is legal systems based on codified laws. The aim is
consistency and predictability. The judge applies the written law.
373

Examples: France, Germany, Spain. The Common Law Family:


legal systems aimed at achieving the most just result in the
individual case. There is no written law - only precedents to guide
decision-making. Examples: England, United State, Malaysia. The
Religious Law Family: legal systems based on Moslem principles.
For contracts, these laws tend to adopt international common law or
civil law principles. Examples are Saudi Arabia, Pakistan.

3.7. The Vienna Sales Convention


- The United Nations Conventions on Contracts for the International
Sale of Goods (The Vienna Sales Convention) is the law of any
country that adopts it. Where the Convention conflicts with existing
national law, the Convention prevails.
- The Convention applies to international sales only.
- The parties to a contract can "opt out " of the Convention with a
clause such as:
This contract, and all questions concerning its validity, interpretation
and performance shall be governed by the law of the Republic of
Verbena. This contract shall not include, incorporate or be subject to the
provision of the "United Nations Convention on Contracts for the
International Sales of Goods".
- Many questions about the meaning of the Convention must be
answered in the courts. So far the answers have been slow in coming.
- Even so, the importer might wish to accept the Convention if the law
applicable to the contract is weak or underdeveloped, or if it favours
the seller too strongly.

3.8. Requirement to provide a User's Guide.


Article 435: Obligations to provide information and User's Guide.
The seller is bound to provide the purchaser with necessary information
on the assets sold, and guidelines for using those assets. If the seller
fails to perform this obligation, the purchaser shall have the right to
request the seller to perform the obligation. If the seller still does not
perform it, the purchaser shall have the right to annul the contract and
claim for compensation of damages.

374

Remark:
The buyer's right to annulment for failure to produce a user's guide
would not normally be acceptable to a seller.
3.9. Transfer of Risk, Transfer of Title.
Article 432: Moment of Transfer of the Ownership
1. The ownership over purchased [items] shall pass to the purchaser
from the moment when the purchaser receives the object, except for
cases where parties agree or law stipulates otherwise.
Article 43: Moment of Passage of Risk.
1. The seller party shall bear risks regard of the sold assets until the
moment when assets are delivered to the purchaser, and the latter
shall bear risks from the moment of receiving assets if parties have
not agreed otherwise.

Remark:
The concepts of "delivery" and "receipt" will require some definition
by the courts. Under an Incoterm contract, both terms could mean
delivery.
3.10. Transfer of Risk and Title under the Model Contract.
5. Delivery
5.1. Date, Place and Terms of Delivery
The scheduled date of
Delivery of the Goods shall be made
Risk and title to the Goods shall pass from
Delivery shall be
the SELLER to the BUYER on Delivery.

Remark:
Transfer of risk and title together is often the simplest arrangement.
3.11. Place of Delivery under CCVN and under the Model Contract.
Article 426: Place of Delivery of A: sets
Parties shall agree upon the place of delivery of assets. If there are no

375

agreement on -this then the provision of Article 289 [residence or


headquarters of Buyer] of this Code shall be applied.
The place of Delivery under this Contract is

5. Agreed place of delivery. Note: In FOB, FCR, CIF and CIP (etc)
contracts, this is the port/place of shipment.
Remark:
Place of Delivery should be stated. In C-term contracts it is the port of
shipment, not the port of arrival.

3.12. Time of Delivery under CCVN and under the Model Contract.
Article 425: Time of performance of a Sale Contract

1. The time for performance of a sale contract shall be agreed upon by


parties. The seller must deliver the assets to the purchaser at the
time as agreed. The seller can deliver the assets before the fixed
time only if the purchaser agrees.
In cases where parties do not fix the time for delivery of assets, the
purchaser shall have the right to request the seller to deliver assets
and the seller shall have the rights to ask the purchaser to receive
assets at any time, provided that parties shall inform each other
within a reasonable period of time, and provided further that parties
do not have other agreements.
2. If parties have not agreed upon a term of payment, the purchaser
shall have to pay upon receipt of the assets
5. Delivery
5.1. Date, Place and Terms of Delivery
Delivery of the Goods shall be made
of Delivery shall be
4

3 The scheduled date

Remark:
It is essential to clarify the time of delivery. Late delivery has
important financial consequences. The warranty period usually
begins to run from delivery.

376

3.13. Force Majeure under CCVN and under the Model Contract.

Article 308: Civil liability due to breach of civil obligations.


1. The obligor, who fails to fulfil improperly the obligation, shall bear
civil liability to the obligor.
2. The obligor, who cannot fulfils the obligation due to force majeure
events, shall not bear civil liability, unless otherwise provided for
by agreements or stipulated by the law

17. Force Majeure


If either party is prevented from, or delayed in performing any duty
under this Contract by an event beyond his reasonable control, then this
event shall be deemed force majeure, and this party shall not considered
in default and no remedy, be it under this Contract or otherwise, shall
be available to the other party.

[NOTE: The subclause below contains examples only. It should be


Modified as necessary].
Force majeure event include, but are not limited to: war (whether war is
declared or not), riots, insurrections, acts of sabotage, or similar
occurrence's; strikes, or other labor unrest: newly introduced laws or
Government regulations; delay due to Government action or inaction,
or inaction on the part of any inspection agency, fire, explosion, or
other unavoidable accident; flood, storm, earthquake, or other abnormal
natural event.

[NOTE: The subclause below on - non - force Majeure events is


optional]
Force Majeure events do not include
If either party is prevented from, or delayed in, performing any duty
under this Contract, then this party shall immediately notify the other
party of the event, of the duty affected, and of the expected duration of
the event.
If any force Majeure event prevents or delays performance of any duty
under this Contract for more than ... 2 days, then either party may on
due notification to the other party terminate this Contract.
Remark:
Forced Majeure need details negotiation.
377

3.14. Penalties and Liquidated Damages under CCVN

Article 377: Punitive damages.


1. Punitive damages are measure that shall be applied by the agreement
or the parties or by law to secure the fulfilment of an obligation by
which the defaulting party must pay an amount of money to the
injured party.
2. An agreement or punitive damages must be filed in an act which may
be separated from including into the main contract.

Article 378: Rate of punitive damages.


The rate of punitive damages may be a certain sum of money or may be
determinated by percentage of the value of the breached part of the
obligation, but must not exceed 5%.

Article 379: Relationship between punitive damages and


compensatory damages.
1. The parties may agree upon that the defaulting party shall have to
pay only punitive damages but not compensatory damages, or both,
either punitive damages and compensatory damages. If the rate of
compensatory damages was not agreed upon in advance, the entire
damages must be compensated.
2. If the parties have agreed upon the choice between punitive damages
or compensatory damages, the right to choose shall be granted to
the injured party.
3. In case where punitive damages rather compensatory damages have
been agreed upon by the parties or stipulated by law, the defaulting
party must pay only punitive damages.
Remark:
The 5% rate for punitive damages is stringent, but it is unclear. The
possiblity of paying both compensatory and punitive damages is
highly unattractive to the seller: few contracts will allow it.
3.15. Liquidated damages under the Model Contract
8.3. Delay in Delivery
In the event of late Delivery for reason other than force majeures
defined in Clause 17 below, the SELLER shall pay as liquidated
378

damages and not as a penalty the sum of <FIGURE> and of the value of
the undelivered part per Day of late Delivery up to a maximum of
<FIGURE> and of the Price payable Clause 9 below. Payment of
liquidated damages shall be due without the BUYER having to furnish
proof of any loss, damage or injury.
[NOTE: The two subclauses below are alternatives.] Payment of
liquidated damages shall constitute full and complete satisfaction of any
claim of the BUYER against the SELLER arising from or in connection
with late Delivery of any Goods. In particular the SELLER shall not be
liable for any indirect or consequential loss or damage, as defined in
Clause 2.7 above, arising from or in connection with late Delivery of
any Goods. Payment of liquidated damages by the SELLER shall not
preclude the BUYER from seeking compensatory damages from the
SELLER for any loss, injury or damage arising from or in connection
with late Delivery of any Goods. In particular the BUYER shall be
entitled to compensation from the SELLER for any indirect or
consequential loss or damage, including but not limited to loss of profit,
loos of use or loss of contract, arising from or in connection with late
Delivery of any Goods. However, payments made as liquidated
damages shall be offset against any compensatory damages recovered
from the SELLER for the late Delivery of and Goods.
8.4. Termination for Delay
In the event that the SELLER becomes liable to pay the maximum sum
payable as liquidated damages under Clause 8.3 above, then the delay
shall be deemed breach of contract and the BUYER may, upon due
notice, terminate the Contract and/or seek any other remedy available to
him.
Remark:
In practice, few sellers will accept Alternative 2 which goes against
the principle of liquidated damages.

3.16. Defective Delivery under CCVN

Article 428: Liability for delivery of assets in improper quantity


1. In cases where the seller delivers things in quantity exceeding that
outnumbered the quantity which has been agreed upon, the
purchaser shall have the right to refuse the excess, or to receive it
and pay for it at agreed price.
379

2. In cases the seller party delivers things in quantity less than the
quantity which has been agreed upon, the purchaser shall have
either of following rights.
a. To terminate the contract and request compensation for damages.
b. To receive the quantity which was delivered and request
compensation for damages.
c. To receive what has been delivered and extend a period time for
the seller to deliver the rest.
Article 429: Liability due to Delivery of Incompleted Things.
1. In cases where things which have been delivered are not completed
and thus causing the usefulness to be failed, the purchaser shall
have either of following rights:
a. To cancel the contract and request compensation for damages:
b. To receive what has been delivered and ask the seller party to
deliver components or parts which have not been delivered and
to request compensations for damages and to suspend the
payment the situation becomes complete.
Article 430: Liability for delivery of things of the Wrong category.
In case where the things have been delivered in improper affurtiment
[assortment], the purchaser shall have either of following rights
1. To terminate the contract and request compensation for damages.
2. To receive what has been delivered any pay for it at the price as
agreed upon by parties.
3. To request the seller to deliver thing in proper assortment and to
compensate for sustained damages.
Remark:
The buyer's right to terminate is very hard on the seller. These clauses
are (probably) disposive, however. Some wording on fundamental
breach is necessary in the contract.
3.17. Defective Delivery under the Model Contract
11.3. Buyer's rights in the event of Discrepancy in quantity
If a material discrepancy in quantity exists and is duty notified to the
380

SELLER, the BUYER at his discretion and subject to clause 8.2 above
may either.
a. Accept the delivered portion of the Goods and require the SELLER
to deliver the remaining portions forthwith; or
b. Accept the delivered portion of the Goods and terminate the
remaining portion of the Contract upon the due notice given to the
SELLER.
If any material discrepancy in quantity exists such that <STATEMENT
OF FUNDAMENTAL DISCREPANCY> and if such discrepancy is
duly notified to the SELLER, the BUYER may at his discretion.
a. Adopt either of the remedies prescribed in this clause above; or
b. Reject the delivered portion of the Goods and recover from the
SELLER all payments made to the SELLER as well as all costs,
expenses and customs duties incurred by the BUYER in association
with the shipment, movement through customs, insurance or storage
of the Goods.
11.4. Buyer's rights in the event of Discrepancy in quality
Discrepancies in quality shall be considered as defects and shall give
rise to claims under the Defects' Liability provision of this Contract in
Clause 12 below.
However, a fundamental discrepancy in quality shall give the BUYER
the right to refuse Delivery of the Goods in whole or in part and to
recover from the SELLER all payments made for the unaccepted
portion of the Goods as well as all costs, expenses and customs duties
incurred by the BUYER in association with the shipment, movement
through customs, insurance or storage of the unaccepted portion the
Goods. Further a refusal to accept delivery in whole shall be considered
termination under Clause 18 of this Contract and refusal to accept
delivery in part shall be considered termination of that part of the
Contract affected by such refusal.
Remark:
The wording on fundamental breach is a necessary protection for the
seller. It is essential for the buyer to be fair to the seller or he/she will
simply refuse to do business.

381

3.18. Defect liability under CCVN

Article 437: Guarantee of the Quality of Goods.


1. The seller shall guarantee the fitness and characteristics of things
sold. If the purchaser discovers in the purchased things the defects
which devalue it or decrease its fitness, he/she must immediately
notify the seller thereof and shall have the right to request the seller
to repair, the defect, or to replace the things with the defects, or to
reduce price and to compensate for damages, if parties have not
agreed otherwise.
2. The sale party shall guarantee that things sold are in accordance with
description on covers, trademark or appropriate with the sample that
has been chosen by the purchaser.
3. The sale party shall not be liable for defects in the following cases:
(a) Defect that the purchase party has already known and must have
known when buying.
(b) Things at auction; things second hand trade;
(c) The purchase party at fault of causing defect to things.
Article 438: Warranty obligation
The sale party shall have warranty obligation to things sold for a period
of time to be called warranty period, if the warranty is agreed upon by
parties or stipulated by Law. The warranty period shall be calculated
from the time the purchase party has to receive things.
Article 439. Right to request for [remedy of Defect under] warranty
During the warranty period, if the purchase party discovers any defects
on things, it shall have the right to request the sale party to repair things
free of charge or to reduce the price or to exchange the things with
defects for the others or to return things and receive back the money.
Rein ark:
The correct word is "warranty"
The warranty period appears to run forever unless otherwise
regulated by the contract.
The buyer has the right to choose the remedy which is grossly unfair
to the seller.

382

3.19. Defects' Liability under the Model Contract.


12. Defects liability
12.1. Seller's Liability for defects
The SELLER warrants that the Goods supplied under this Contract
shall at the date of their Delivery.
a. Be free defects in material
b. Be free from defects in workmanship.
c. Be free from defect inherent in design, including but not limited to
selection of materials and be fit for the purpose for which such
Goods are normally used.
If any defect provably presented in any of the Goods, on the date of
Delivery comes to light during the defects liability period, then the
BUYER shall forthwith notify the SELLER. The SELLER, without
undue delay, shall at his own risk and cost and at his discretion repair or
replace such item or otherwise make good of the defect.
The SELLER's liability for defects is subject to the BUYER having
adhered to all procedures and instruction applicable to the .... of the
item, and expressly excludes damages to the Goods caused by fair wear
and tear or by misuse occurring after Delivery.
1.2.2. Defects' Liability period
The SELLER shall be liable for defects which come to light during a
period of days from After the end of this period, the BUYER
shall have no right to raise claims of any kind against the SELLER for
any defect in any Goods of the SELLER's supply.
The defects' liability period shall be prolonged by the length of any
period during which the Goods cannot be used by the Buyer because of
a defect. However, if new Goods are delivered to replace defective
Goods, the defects liability period shall not begin again on the
replacement Goods.
1.2.3. Limitation of Defects' Liability.
[NOTE: The two clauses below are alternatives. Delete as necessary]
The duty to repair and replace or otherwise to make good defects is the
only duty of the SELLER in the event of the Delivery of defective
Goods. In particular the BUYER shall not entitled to compensation

383

from the SELLER for any indirect loss or damage as defined in Clause
2.7 above, arising from or in connection with Delivery of defective
Goods. The SELLER shall indemnify and hold harmless the BUYER
against any loss or damage however arising whether direct or indirect
which shall be suffered by the BUYER as the result of defective or
faulty Goods delivery by the SELLER.
3.20. Payment under CCVN and the Model Contract
Article 295: Fulfilling the obligation of paying money.
1. The obligation to pay money shall be fulfilled in full, according to
the timelimit, at the appointed place and in the agreed upon
procedures.
2. The money that must be paid shall be the Vietnamese Dong, except
in cases where the law stipulates otherwise.
Article 424: Price and Modes of Payment
3. Modes of payments shall be agreed upon by parties or stipulated by
law.
Remark:
The requirement to pay all monies in Dong needs interpretation

384

APPENDIX
pm/ Luc
1. CONG IfOC VIEN 1980

UNITED NATIONS CONVENTION

ON CONTRACTS FOR THE

INTERNATIONAL SALE OF GOODS

CONG LIOC
CUA LIEN HIEP QU6C VE
HOP BONG MUA BAN QUOC TE

The States Parties to this Convention:

Cac nutic thanh vien cua C6ng u'oc nay:

Bearing in mind the broad objectives in


the resolutions adopted by the sixth
special session of the General Assembly of the United Nations on the
establishment of a New International
Economic Order.

Coi trong nhang myc tieu tong quat ghi


trong cac Nghi quyal v6 thanh lap mot
n6n trat ty' kinh to qu6c to mdi ma Dai
hOi (long Lien hip Quoc cla chap nhan
trong khoa hop bat thu'ong Ian thi:t sau.

Considering that the development of


international trade on the basis of
equality and mutual benefit is an
important element in promoting friendly
relations among States.

Xet thay vi8c phat trign thudng mai qu6c


to tren cd se, binh clang, doi ben ding c
loi la mot y6u t6 quan trong thiic day
quan h8 hCtu nghi giaa cac qu6c gia.

Being of the opinion that the adoption of

Cho rang vi8c chap nhan cac quy t6c


thong nhat di'eu chinh cac m6i quan he
trong mua ban hang hoa qu6c t6 co tinh
Ten cac h8 th6ng )(a hQi, kinh to va
phap ljr khac nhau se th6c day vi8c loaf
trCt cac tra ngai phap ljt trong thudng
mai qu6c t6 va se h6 tro cho vi8c phat
tri6n thudng mai qu6c t6.

uniform rules which govern contracts for


the international sale of goods and take
into account the different social,
economic and legal systems would
contribute to the removal of legal
barriers in international trade and
promote the development of
international trade.
Have agreed as follows:

Da thoa thuan nhCtng diem sau:

PART I

PHAN MOT

SPHERE OF APPLICATION AND


GENERAL PROVISIONS

PHAM VI AP DUNG VA CAC QUY


DINH CHUNG

Chapter I

Cholng I

SPHERE OF APPLICATION

PHAM VI AP DUNG

385

Article 1

Digu 1

(1) This Convention applies to contracts


of sale of goods between parties whose
places of business are in different
States:

1. COng utic nay ap dung cho cac hOp


dong mua ban hang hoa Oita cac ben
c try sa thuting mai tai cac qu6c gia
khac nhau.

(a) When the States are Contracting


Stages; or

a) Khi cac qu6c gia nay le cac qu6c gia


thanh vien caa C6ng uttc, hoac

(b) When the rules of private


international law lead to the application
of the law of a Contracting State.

b) Khi theo cac quy tec tu' phap qu6c to


thi luat du'oc ap dung la luat cua nutic
thanh vi8n Cong - Uric nay.

(2) The fact that the parties have their


places of business in different States is
to be disregarded whenever this fact
does not appear either from the contract
or from any dealings between, or from
information disclosed by, the parties at
any time before or at the conclusion of
the contract.

2. Si! kign cac ben c try sa thuting mai


tai cac qu6c gia khac nhau kh6ng tit-1h
clan ngu sy kin nay kh6ng xuat phet tit
hop d6ng, tit cac m6i quan h8 da hinh
thanh hoac vao thoi diem kji hop d6ng
giita cac ben hoac la tit vigc trao do2i
th6ng tin giu'a cac ben.

(3) Neither the nationality of the parties


nor the civil or commercial character of
the parties or of the contract is to be
taken into consideration in determining
the appli-cation of this Convention.

3. Qu6c tich cua cac ben, quy chg dan


stt hoac thuong mai coa hop ciong
kh6ng du'oc xet toi khi xac dinh pham vi
ap dung Cong Uric nay.

Article 2 This Convention does not

Dieu 2 Cong utic nay kh6ng ap dung

apply to sales:

vao vigc mua ban:

(a) Of goods bought for personal, family


or household use, unless the seller, at
any time before or at the conclusion of
the contract, neither knew nor ought to
have known that the goods were bought.
for any such use.

a) Cac hang hoe dung cho ce nhan, gia


dinh hoac not tro, ngoai trit khi ngoai
ban, vao bat at luc nao trong thai gian
kal hop
trutic hoac vao thoi digm
Tong, khong bigt hoac khong can bigt
phei rang hang hoe da du'oc mua de sit
dung nhu' thg.

(b) By auction.

b) Ban dau gia.

(c) On execution or otherwise by


authority of law;

c) fig thi hanh luat hoac van Wen tliy


thac khac theo luat.

(d) Of stocks, shares, investment


securities, negotiable instruments or
money;

d) Cac c6 phigu, c6 phan, chang khoan


dau tu', cac chiing tit luu thong hoac ti6n
Ca.

(e) Of ships, vessels, hovercraft Or


aircraft;

e) Tau thug, may bay va cac tau chay


tren dem kh6ng khi.

f) Of electricity.

f) &On nang

386

Article 3

Di6t.1 3

(1) Contracts for the supply of goods to


be manufactured or produced are to be
considered sales unless the party who
orders the goods undertakes to supply a
substantial part of the materials
necessary for such manufacture or
production.

1. Du'oc coi la hop dong mua ban cac


hop (long cung cap hang hoe se the tao
hay sari xuat, neu ben dgt hang kh6ng
c6 nghia vu cung cap phgn ldn cac
nguyen lieu can thigt cho viec che tao
hay san xuat hang hoe do.

(2) This Convention does not apply to


contracts in which the preponderant part
of the obligations of the party who
furnishes the goods consists in the
supply of labour or other services.

2. Cong udc nay khong ep dung cho


cac hop d6ng trong do nghia vu cue ben
giao hang cho y6(.1 la phai thtic hien mot
c6ng viec hoc cung cap cac dich vu
khac

Article 4

Di61.1 4

This Convention governs only the


formation of the contract of sale and the
rights and obligations of the seller and
the buyer arising from such a contract.
In particular, except as otherwise
expressly provided in this Convention, it
is not concerned with:

C6ng udc nay chi di6u chinh viec k9 ket


hop &rig mua ban va cac quyen va
nghia vu cCia ngudi ben va ngudi mua
phat sinh tit hop dong do. Tit tru'ong hop
c6 quy Binh khac dtioc neu trong C6ng
udc. Cong udc khong lien quan tdi:

(a) The validity of the contract or of any


of its provisions or of any Usage;

a) Tinh hieu luc cite hop dong, hogc cite


bat di dieu khoan nao cite hop dOng,
hogc bat I<S/ tap quart nao.

(b) The effect which the contract may


have on the property in the goods sold.

b) Heu qua ma hop Tong c6 the c6 d6i


vdi quy6n sa hat cac hang hoe de ban.

Article 5 This Convention does not


apply to the liability of the seller for
death of personal injury caused by the
goods to any person.

Digu 5 Cong udc nay khong ep dung


cho trach nhiem cite ngudi ban trong
trudng hop hang cilia ngudi ban gay
thiet hal vg than the hogc lam chgt mot
ngu'di nao do.

Article 6 The parties may exclude the


application of this Convention or,
subject to article 12, derogate from or
vary the effect of any of its provisions.

Digu 6 Cac ben c6 the loci b6 viec ap


dung Cong udc nay hoec vdi digit kien
Wan tho digu 12, c6 the lam trai vdi bat
cit dieu kho6n nao cua Cong udc hay
sCta d6i hieu lyt coa cac di& kho6n do.

Chapter II

Chttong II

GENERAL PROVISIONS

CAC QUY DINH CHUNG


Digu 7

Article 7
(1)

In

the

interpretation

of this

1. Khi gi6i thich Cong udc nay, can chi


387

Convention, regard is to be had to its


international character and to the need
to promote uniformity in its application
and the observance of good faith in
international trade.

trong den tinh chgt qu6c 4 cua n6, den


sit can thiet phi he) tro vigc dp dung
th6ng nhgt Cong u'dc va tuan thei t ong
thu'ong mai qu6c

(2) Questions concerning matters


governed by this Convention which are
not expressly settled in it are to be
settled in conformity with the general
principles on which it is based or, in the
absence of such principles, in
conformity with the law applicable by
virtue of the rules of private international
law.

2. Cac van
lien quan den d6i Wong
di& chinh cua Cong tkic nay ma kh6ng
quy dinh thing trong Cong iroc thi se
duoc gigi guy& chi& theo cac nguyen
tic chung ma tit d C6ng tioc chtoc hinh
thanh hogc ngu kh6ng c6 nguyen tic
nay, thi chi& theo lugt duOc dp dung
theo quy pham cOa to phap qu6c

Article 8

Digu 8

(1) For the purposes of this Convention


statements made by and other conduct
of a party are to be interpreted
according to his intent where the other
party knew or could not have been
unaware what that intent was.

1. Nhgm phuc vu C6ng utic nay, tuyen


b6 va cach xit su khac cua mot ben
difoc gi6i thich theo clUng 9 dinh cua ho
ngu bgn kia cid bit hogc kh6ng the
kh6ng bigt y dinh ay.

(2) If the preceding paragraph is not


applicable, statements made by and
other conduct of a party are to be inaccording
to
the
terpreted
understanding that a reasonable person
of the same kind as the other party
would have had in the same
circumstances.

2. Neu digm tren khong du'oc dp dung


thi tuyen b6 cach xi( sit khac cOa mot
ben du'qc giAi thich theo nghia ma mot
ngu'di c6 l tit n6u ngutti do du'oc dgt
vac) vi tri dig phia ben kia trong nhang
hoar) cgnh tuong to cung se higu nht.1
the.

(3) In determining the intent of a party or


the understanding a reasonable person
would have had, due consi-deration is
to be given to all relevant circumstances
of the case including the negotiations,
any practices which the parties have
themselves,
between
established
usages and any subsequent conduct of
the parties.

3. Khi xac dinh 9 mu6n dim mot ben


hoc cach higu cua mot nguOi c6 19 tri
se higu the nao, can phi tinh den moi
tinh tiet lien quan, kg cg cac cuOc dam
phan, moi thcfc 4 ma cac ben cid c6
trong moi quan h8 tifcrng hO cua ho, cac
tap quan va moi hanh vi sau do cua hai
ben.

Article 9

Digu 9

(1) The parties are bound by any usage


to which they have agreed and by any
practices which they have established
between themselves.

1. Cac ben bi rang bu6c la& tap quan


ma ho cid thog thugn vg ID& cac thcfc
Wen d clu'oc ho thiet Igo trong moi quan
h8 tuong h6.

388

(2) The parties are considered, unless


otherwise agreed, to have impliedly
made applicable to their contract or its
formation a usage of which the parties
knew or ought to have known and which
in international trade is widely known to,
and regularly observed by, parties to
contracts of the type involved in the
particular trade concerned.

2. TrCt phi c6 thoa thuan khac thi c6 the


cho rang cac ben kj/ hop dong c6 ngu j"/
ap dung nhCtng tap guar' ma ho da biet
hoac can phai bigt va d6 la nhCtng tap
guar' c6 tinh chat ph6 bran trong thtiong
mai quoc to va du'oc cac ben ap dung
mot cach thuting xuyen d6i \tali hop
tieing tong chCing loai trong linh vut
buon ban hCtu quan de dieu chinh viec
kj/ kat hop dong d6.

Article 10 For the purposes of this

Digu 10 Nham phut vu COng utic nay:

Convention:
(a) If a party has more than one place of
business, the place of business is that
which has the closest relationship to the
contract and its performance, having
regard to the circumstances known to or
contemplated by the parties at any time
before or at the conclusion of the
contract;

a) Neu mot ben c6 hon mot tru so


thuting mai tra len thi tru sd thu'ong mai
cCia ho se chtoc coi la tru scr nao do c6
m6i lien he chat the nhat dOi yeti hop
Tong va d6i vdi viec thyc hien hop d6ng
d6, co tinh toi nhCtng tinh hu6ng ma cac
ben deu bit hoac deu dct doan du'oc
vao bat kj/ luc nao trutic hoac vao thoi
diem hop d6ng;

(b) If a party does not have a place of


business, reference is to be made to his
habitual residence.

b) Neu mot ben kh6ng c6 tru so thu'ong


mai thi se lay not car tru thuting xuyen
cua ho.

Article 11 A contract of sale need not

Digu 11 Hop d6ng mua ban kh6ng can

be concluded in or evidenced by writing


and is not subject to any other
requirements as to form. It may be
proved by any means, including

phai du'oc kyr kat hoac xac nhan bang


van ban hay phai tuan thu mot yeu cau
nao khac ve hinh thCtc ctila hop dong.
Hop d6ng c6 the du'oc chang minh bang
moi cach, ke c6 bang nhCtng Idi khai cCia
nhan chang.

witnesses.
Article 12 Any provision of article 11,

Di61.! 12 Eigt kj/ quy dinh nao coa Dieu

article 29 or Part II of this Convention


that allows a contract of sale or its
modification or termination by
agreement or any offer, acceptance or
other indication of intention to be made
in any form other than in writing does
not apply where any party has his place
of business in a Contracting State which
has made a declaration under article 96
of this Convention. The parties may not
derogate from or vary the effect of this
article.

11, Dieu 29 , hoac phan thCt hai cCia


Cong u'oc nay cho phep hop dong mua
ban, viec thay d6i hoac dinh chi hop
Tong theo sit thoa thuan cua cac ben
hoac don chao hang va chap nhan don
chao hang hay bat kj/ su' the hien ji chi
nao cCia hai ben du'oc lap va kh6ng phai
dud hinh thut vial ma dud bat kj/ hinh
thitc nao se kh6ng &tic ap dung khi du
chi mot trong s6 cac ben c6 tru sa
thu'ong mai dat d nutic la thanh vier) cCia
Cong utic ma nu'oc d6 da tuyen b6 bao
389

luu theo di6u 96 cUa C6ng LI& nay. Cac


ben kh6ng du'oc quygn lam trai voi di6u
nay hoec hieu 11:tc cUa no.
Article 13 For the purposes of this
Convention "writing" includes telegram
and telex.

Digu 13 Theo tinh thin cua C6ng tiac


nay, diin bao va telex cOng du'oc coi la
hinh that van ban.

PART II

PHAN HAI

FORMATION OF THE CONTRACT

KY KET HOP DONG

Article 14.

Digu 14.

(1) A proposal for concluding a contract


addressed to one or more specific
persons constitutes an offer if it is
sufficiently definite and indicates the
intention of the offeror to be bound in
case of acceptance. A proposal is
sufficiently definite if it indicates the
goods and expressly or implicitly fixes
or makes provision for determining the
quantity and the price.

1. MOt de nghi kj/ kit hop clang giti cho


mot hay nhi6u nguai xac dinh du'oc coi
la mot chao hang ngu c6 do chinh xac
va ngu no chi coy chi cilia ngaai chao
hang mu6n ta' rang buOc minh trong
twang hop c6 sit chip nhin chao hang
do. MOt di nghi la du chinh xac khi no
net.' r6 hang hoa va in dinh s6 lu'ong va
gia ca mot cach trtic tiep hoic gian trip
hoic quy dinh thd that xac dinh so

lu'ong va gia
(2) A proposal other than one
addressed to one or more specific
persons is to be considered merely as
an invitation to make offers, unless the
contrary is clearly indicated by the
person making the proposal.

2. MOt de nghi guff cho nhang ngu'ai


kh6ng xac dinh chi du'oc coi la mot Jai
mai lam chao hang, fru' phi ngu'ai di
nghi di phat bi6u ro rang di6u trai lai.

Article 15.

Digu 15.

(1) An offer becomes effective when it


reaches the offeree.

1. Chao hang c6 hi6u lut khi no tai noi


nguai du'oc chao hang.

(2) An offer, even if it is irrevocable,


may be withdrawn if the withdrawal
reaches the offeree before or at the
same time as the offer.

2. Chao hang du la loai chao hang co


dinh, van c th6 bi huji ngu nhif th6ng
bao ve vigc hay chao hang din nguai

Article 16.

Digu 16.

(1) Until a contract is concluded, an


offer may be revoked if the revocation
reaches the offeree before he has
dispatched an acceptance.

1. Cho toi khi hop clang du'oc giao kit,


nguai chao hang van c6 th6 thu h6i
chao hang, ngu nhu th6ng bao vg viic
thu hoi do tai ndi nguai daoc chao hang

390

du'oc chao truac hoic ding lac vai chao


hang.

trudc khi ngudi nay gill th6ng bao chap


nhen chao hang.
(2) However, an offer cannot be
revoked:

2. Tuy nhien, chao hang kh6ng the bi


thu

(a) If it indicates. whether by stating a


fixed time for acceptance or otherwise,
that it is irrevocable; or

a) Neu no chi ro, bang cach an dinh mot


thdi han xac Binh de chap nhen hay
bang cach khac, rang no kh6ng the bi
thu h6i, hoac.

(b) If it was reasonable for the offeree to


rely on the offer as being irrevocable
and the offeree has acted in reliance on
the offer.

b) Neu mot cach hop ly ngudi nhen col


chao hang la khOng the thu h6i cludc va
de hanh dOng theo chi6u hudng do.

Article 17. An offer, even if it is


irrevocable, is terminated when a rejection
reaches the offeror.

Digu 17. Chao hang, du la loai c6 dinh,


se mat hieu luc khi ngudi chao hang
nhen du'oc thong bao vg vigc tit chi
chao hang.

Article 18.

Di6t.i 18.

(1) A statement made by or other


conduct of the offeree indicating assent
to an offer is an acceptance. Silence or
inactivity does not in itself amount to
acceptance.

1. MOt Idi tuyen b6 hay mot hanh vi


khac dia ngudi dudc chao hang bleu 10
ski' &rig jt voi chao hang cau thanh
im Ong hoac
chap nhen chao hang.
bat tac vi khong mac nhien c gia tri
nhti mot sal chap nhen.

(2) An acceptance of an offer becomes


effective at the moment the indication of
assent reaches the offeror. An
acceptance is not effective if the
indication of assent does not reach the
offeror within the time he has fixed or, if
no time is fixed, within a reasonable
time, due account being taken of the
circumstances of the transaction,
including the rapidity of the means of
communication employed by the offeror.
An oral offer must be accepted
immediately unless the circumstances
indicate otherwise.

tit
2. Chap nhen chao hang c hieu
khi ngudi chao hang nhen du'oc chap
nhen. Chap nhen chao hang khong phat
sinh hieu Itic neu su' chap nhen ay khOng
du'oc gal tdi ngudi chao hang trong thdi
han ma ngudi nay de quy dinh trong
chao hang hoac neu thdi han do khOng
du'oc quy dinh nhu'vey, thi trong mot thdi
han hop ly, xet theo cac tinh tigt cue su'
giao dich, trong do c xet den t6c d6 cua
cac phu'dng tien lien lac do ngudi chao
hang sit dung. MOt chao hang bang
mieng phei du'oc chap nhen ngay trill phi
cac tinh tigt bgt bu6c ngu'oc Iai.

(3) However, if, by virtue of the offer or


as a result of practices which the parties
have established between themselves
or of usage, the offeree may indicate
assent by performing an act, such as
one relating to the dispatch of the goods

3. Tuy nhien neu do hieu lut cua chao


hang hoac do thkic tien de c giiia hai
ben trong m6i quan he Wong 116 hoac
tap quan thi ngudi ducic chao hang c
the chtling to ski chap thuen cua minh
bang cach lam mot hanh vi nao do nhti
391

or payment of the price, without notice


to the offeror, the acceptance is
effective at the moment the act is
performed, provided that the act is
performed within the period of time laid
down in the preceding paragraph.

hanh vi lien quan den viec giti hang hay


tra tin chang han dO ho khong thong
bac) cho ngu'di chao hang thi chap nhen
chao hang chi c hieu Ivo tit khi nhimg
hanh vi do du'oc thiic hien vdi dieu kien
la nhi"..(ng hanh vi do phai du'oc thu'c hien
trong thoi han de quy dinh tai diem tren.

Article 19.

Digu 19.

(1) A reply to an offer which purports to


be
an acceptance but contains
additions, limitations
or other
moditications is a rejection c f the offer
and constitutes a counter-offs

1. MOt su phuc dap c khuynh hitting


chap nhen chao hang nhu'ng c chaa
dtring nhCIng diem b6 sung, bot di hay
cac seta d6i khac thi du'oc coi la tit choi
chao hang va cau thanh mot hoan gia.

(2) However, a reply to an offer which


purports to be an acceptance but
contains additional or different terms
which do not materially alter the terms
of the offer constitutes an acceptance
unless the offeror, without undue delay
objects orally to the discrepancy or
dispatches a notice to that effect. If he
does not so object, the terms of the
contract are the terms of the offer with
the modifications contained in the
acceptance.

2. Tuy nhien mot su phOc dap c khuynh


Wang chap nhen chao hang nhu'ng c
chilta dung cac dieu khoan b6 sung hay
nhCing dieu khoan khac ma kh6ng lam
bieti d6i mot cach co ban not dung cua
chao hang thi du'oc coi la chap nhen
chao hang, trif phi ngu'ai chao hang ngay
lap titc khong bigu hien bang mieng de
phan doi nhC.mg diem khac biet do hoac
gal thOng bao ve su phan d61 cua minh
cho ngt..rdi duoc chao hang. Neu ngu'ai
chao hang khong lam nhti vey, thi not
dung cua hop d6ng se la not dung cua
chao hang vdi nhu'ng su sCta d6i neu
trong chap nha'n chao hang.

(3) Additional or different terms relating,


among other things, to the price,
payment, quality and quantity of the
goods, place and time of delivery, extent
of one party's liability to the other or the
settlement of disputes are considered to
alter the terms of the offer materially.

3. Cac yeu t6 b6 sung hay sita d6i lien


quan den cac di& kien gia c6 thanh
toan, den pham chat va so luting hang
hoe, dia diem va thoi han giao hang, den
pham vi tech nhiem cua cac ben hay
den su giai quyet cac tranh chap clu'oc
coi la nhiTng di& kien lam !Dien d6i mot
cach co ban not dung cua chao hang.

Article 20.

Di6u 20.

(1) A period of time for aoceptance fixed


by the offeror in a telegram or a letter
begins to run from the moment the
telegram is handed in for dispatch or
from the date shown on the letter or, if
no such date is shown, from the date
shown on the envelope. A period of time

1. Thai han de chap nhen chao hang do


ngua chao hang quy dinh trong dien tin
hay thu bat deu tinh tit luc bac &en
du'oc giao de gifi di hoac vao ngay gal
tren thu' hoac neu ngay do kh6ng co thi

392

tinh tit ngay bu'u dian &mg dau ten bi


thu. Thoi han de chap nhan chao hang

for acceptance fixed by the offeror by


telephone telex or other means of
instantaneous communication, begins to
run from the moment that the offer
reaches the offeree.

do ngudi chao hang quy dinh bang diet.


thoai, bang telex, hoac bang phtiong
tien thOng tin lien lac khac, bet deu tinh
tit thdi didm chao hang den vdi ngudi
du'oc chao hang.

(2) Official holidays or non-business day


occuring during the period for
acceptance are included in calculating
the period. However, if a notice of
acceptance cannot be delivered at the
address of the offeror on the last day of
the period because that day falls on an
official holiday or a non-bussiness day
at the place of business of the offeror,
the period is extended until the first
business day which follows.

2. Cac ngay le chinh thitc hay ngay nghi


viec. roi vao khoen thdi han du'oc quy
dinh dd chap nhen chao hang kh6ng
du'oc tri1 , khi tinh thdi han do. Tuy nhien,
neu th6ng bao ve viec chap nhen chao
hang khong thd giao tai dia chi caa
ngudi chao hang vao ngay cu6i cung
cua thdi han quy dinh bdi vi ngay cu6i
cOng dO la ngay le hay ngay nghi viec
tai noi cc') try sa thudng mai cila ngudi
chao hang, thi thai han chap nhen chao
hang se du'oc keo dai tdi ngay lam viec
Tau tien ke tiep cac ngay do.

Article 21

Di6u 21.

(1) A late acceptance is nevertheless


effective as an acceptance if without
delay the offeror orally so informs the
offeree or dispatches a notice to that
effect.

1. M6t chap nhen chao hang muon


mang cang c hieu ly'c cOa mot chap
nhen neu ngudi chao hang th6ng bao
mieng khong chem tre cho ngudi nhen
chao hang hoac gCti cho ngudi nay mot
thong bao ve viec do.

(2) If a letter or other writing containing


a late acceptance shows that it has
been seen in such circumstances that if
its transmission has been normal it
would have reached the offeror in due
time, the late acceptance is effective as
an acceptance unless, without delay,
the offeror orally informs the offeree that
he considers his offer as having lapsed
or dispatches a notice to that effect.

2. Neu thu' tit hay van ban khac do


ngudi nhen chao hang giti di trong
nhang dieu kien ma neu
chuygn giao
Binh thudng, no de den tay ngudi chao
hang kip thai, thi sct chap nhen chem tre
du'oc coi nhu' chap nhen den kip thai, frit
phi ngudi chao hang ngay lap tilt thong
bao mieng hoac giti th6ng bao bang van
ban cho ngudi duoc chao hang biet
ngudi chao hang coi chao hang ciia
minh de het hieu

Article 22. An acceptance may be


withdrawn if the withdrawal reaches the
offeror before or at the same time as the
acceptance would have become
effective.

Digu 22. Chap nhen chao hang co the


bi huji neu thong bao Nie viec huji chao
hang toi noi ngudi chao hang trudc hoac
ding mot luc khi chap nhen c hieu

Article 23. A contract is concluded at


the moment when an acceptance of an
offer becomes effective in accordance

Di6u 23. Hop d6ng duoc coi la de kji kgt


kd tit luc sct chap nhen chao hang c
hieu lut chigu theo cac quy dinh cCia

393

with the provisions of this Convention.

Cong udc nay.

Article 24. For the purposes of this Part


of the Convention, an offer, declaration
of acceptance or any other indication of
intention "reaches" the addressee when
it is made orally to him or delivered by
any other means to him personally to
his place of business or mailing address
or, if he does not have a place of
business or mailing address, to his
habitual residence.

Digu 24. Theo tinh than dia phan 11


C6ng Ltdc nay, mot chao hang, mot
thong bao chap nhan chao hang hoac
mot su' the" hien k chi nao cung
bat
du'oc chao
&roc coi la "tali nor
hang khi duoc th6ng tin bang Idi not vdi
ngudi nay hoac &roc giao bang bat cif
phu'ong tin nao cho chinh ngudi du'oc
chao hang tai tru sal thuong mai cOa ho,
tai dia chi Wu chinh hoac nau ho khOng
c tru sal thu'ong mai hay dia chi bitu
chinh thi gt:ti tali noi thudng tru caa ho.

PART Ill

PHAN BA

SALE OF GOODS

MUA BAN HANG HDA

Chapter 1

Chuang 1

GENERAL PROVISIONS

NHIJNG QUY DINH CHUNG

Article 25.

Digu 25.

A breach of contract committed by one


of the parties is fundamental if it result
in such detriment to the other party as
substantially to deprive him of what he
is entitled to expect under the contract,
unless the party in breach did not
foresee and a reasonable person of the
same kind in the same circumstances
would not have foreseen such a result.

Wit ski vi pham hop d6ng do mot ben


gay ra la vi pham co ban nau su' vi
pham do la do ben kia bi thiet hai ma
ngudi bi thret hai, trong mot chiing myc
Bang kd bi mat cal ma ho co quygn chd
doi ten co sal hop d6ng, tru' phi ben vi
pham khong tien lieu du'oc hau qua do
va mot ngudi c ljr tri minh man cung se
khOng tier) li8u du'oc nau ho cung a vac)
hoan canh Wong ty.

Article 26. A declaration of avoidance


of the contract is effective only if made
by notice to the other party.

Di6u 26. MOt Idi tuy8n be; ye vigc ht:ty


hop &rig chi c hi8u lut ngu du'oc
th6ng bao cho ben kia bigt.

Article 27. Unless otherwise expressly


provided in this Part of the Convention,
if any notice, request or other
communication is given or made by a
party in accordance with this Part and
by means appropriate in the
circumstances, a delay or error in the
transmission of the communication or its
failure to arrive does not deprive that

Digu 27. Bpi vi trong phan II cua Cong


Ltdc nay kh6ng c quy Binh gi khac nen
trong trudng hop, ngu thOng bao yeu
cau hay th6ng tin khac da du'oc thud
hi8n bai mot ben dia hop &rig theo
phan Ill nay va bang mot ph 'ong ti'en
thich hop vdi hoan canh, thi mot sit
cham trg hoac lam Ian trong vi8c
chuydn giao th6ng tin hoac st" th6ng tin

394

party of the right to rely on the


communication.

khOng den ngudi nhen, cung sekhong


lam ben d6 met quyan vien dan cac
thong tin cue minh.

Article 28. If, in accordance with the

Di6u 28. Neu mot ben c6 quygn yeu

provisions of this Convention, one party


is entitled to require performance of any
obligation by the other party, a court is
not bound to enter a judgement for
specific performance unless the court
would do so under its own law in
respect of similar contracts of sale not
governed by this Convention.

cau ben kia phai thi hanh mot nghia vu


nao d6 thi chieu theo cac quy dinh cua
C6ng uoc nay, Toa an kh6ng lai bat
buOc phai ra phan quyet buOc ben kia
thut hien that st,t hop d6ng trit taking
hop neu Toa an ra phan quygt do tren
co sa luet nu& minh d61 vdi cac hop
clang mua ban thong tU kh6ng do C6ng
utic nay dieu chinh.

Article 29.

Digu 29.

(1) A contract may be modifed or


terminated by the mere agreement of
the parties.

1. MOt hop d6ng c6 the duoc sita d6i


hay chgm dui bang thOa thuen don
thugn giCta cac ben.

(2) A contract in writing which contains


a provision requiring any modifitication
or termination by agreement to be in
writing may not be otherwise modified
or terminated by agreement. However,
a party may be precluded by his
conduct from asserting such a provision
to the extent that the other party has
relied on that conduct.

2. MOt hop d6ng bang van ban chth


thing mot digu khogn quy dinh rang moi
su' sita doi hoac them dirt hop d6ng
phai &too cac ben lam bang van ban thi
kh6ng thd bi sCia d6i hay chem dat theo
thog thuen giCta cac ben dudi mot hinh
thac khac. Tuy thien hanh vi cUa mot
ben c the kh6ng cho phep ho difoc
vien clan di6u khoan ay trong chitng
mL.tc ngu ben kia can cu vao hanh vi
nay...

Chapter II

Chucmg II

OBLIGATLONS OF THE SELLER

NGHIA VU CUA NGUOI BAN

Article 30. The seller must deliver the

Digu 30. Ngudi ban c6 nghia vu giao

goods, hand over any documents


relating to them and transfer the
property in the goods, as required by
the contract and this Convention.

hang, giao chang tit lien quan den hang


h6a va chuyen giao quyen scs hitu vg
hang hoa theo &nig quy dinh cita hop
d6ng va caa C6ng udc nay.

Section I. Delivery of the goods and


handing over of documents

Ilduc 1. Giao hang va chuya'n giao


chang tit

Article 31. If the seller is not bound to

Digu 31. Neu ngudi ban kh6ng bat buOc

deliver the goods at any other particular


place, his obligation to deliver consists:

phai giao hang tai mot not nhet dinh nao


do, thi nghia vu giao hang cila ngudi
nay la:

395

(a) If the contract of sale involves


carriage of the goods - in handing the
goods over to the first carrier for
transmission to the buyer;

a) Ngu hop &rig mua ban quy dinh ca


vidc van chuygn hang hoa, thi ngudi
ban phai g:ao hang cho ngudi chuyen
cho dau Wen de chuydn giao cho ngudi
mua.

(b) If, in cases not within the preceding


subparagraph, the contract relates to
specific goods or unidentified goods to
be drawn from a specific stock or to be
manufactured or produced and at the
time of the conclusion of the contract
the parties knew that the goods were at,
or were to be manufactured or produced
at, a particular place: in placing the
goods at the buyer's disposal at that
place;

b) Neu trong nhitng tru'Ong hop kh6ng


dirt lieu bai didm not ten, ma doi tu'ong
cilia hop d6ng mua ban la hang dac dinh
hoac la hang (long loaf phai du'oc trich
ra tif mot kh6i 'Yong dy' tra' xac dinh
hoac phai &roc chd teo hay sa'n xugt ra
va vao luc ky 1(6'1 hop Tong cac ben da
brat rang hang hoa da c hay da phai
du'oc che teo hoac san xugt ra tai mot
not nao do thi ngudi ban phai c nghia
vy dat hang du'Oi quygn dinh doat dia
ngudi mua tai nai do.

(c) In other cases in placing the goods


at the buyer's disposal at the place
where the seller had his place of
business at the time of the conclusion of
the contract.

c) Trong cac tru'ang hop khac, ngudi


ban c nghia vu dat hang du'eri quydn
dinh doat coa ngudi mua tai not nao ma
ngudi ban co try so thu'ong mai vao thoi
didm ky kgt hop Tong.

Article 32.

Didu 32.

(1) If the seller, in accordance with the


contract or this Convention, hands the
goods over to a carrier and if the goods
are not clearly identified to the contract
by markings on the goods by shipping
documents or otherwise, the seller must
give
the
buyer
notice
of the
consignment specifying the goods.

1. N& chigu theo hop dong hay C6ng


utic nay, ngudi ban giao hang cho mot
ngudi chuyen cha va nau hang kh6ng
du'oc ca biat hoa mot cach 1'6 rang danh
cho myc dich coa hop dong bang cach
ghi ky ma hiau tren hang hoa bang cac
chi:Mg
chuyen cha hay bang mot
cach khac thi ngudi ban phai th6ng bao
cho ngudi mua bigtve vigc ho da gili
hang kem theo chi dan vg hang hoa.

(2) If the seller is bound to arrange for


carriage of the goods, he must make
such contracts as are necessary for
carriage to the place fixed by means of
transportation
appropriate
in
the
circumstances and according to the
usual terms to such transportation.
(3) If the seller is not bound to effect
insurance in respect of the carriage of

396

2. Neu ngudi ban co nghia vy phai thu

xgp vigc chuyen cha hang hoa, thi ho


phai ky ket cac hop Tong can thiet de'
viec chuyen cha duoc thtic hien tdi
bang cac phu'ong tian chuyen cha thich
hop vdi hoan canh cu thg va then cac
digu kian th6ng thu'ang doi vdi phu'ong
thac chuyen cha do.
3. Neu ngudi ban kh6ng co nghia vy
phai bao him hang hoa trong qua trinh

the goods, he must, at the buyer's


request, provide him with all availalble
information necessary to enable him to
effect such insurance.

hang chuyen cha thi ho phai cung cap


cho mua, neu ngudi nay yeu cau,
moi thong tin can thigt ma ho c6 the
giup ngudi mua k9 1(6'1 hop d6ng bao
hiem.

Article 33. The seller must deliver the

Digu 33. Ngudi ban phai giao hang:

goods:
(a) If a date is fixed by or determinable
from the contract on that date;

a) DOng vao ngay giao hang ma hop


dong da quy Binh hay c6 the xac dinh
dudc bang cach tham chi& vao hop

(b) If a period of time is fixed by or


determinable from the contract at any
time
within
that
period
unless
circumstances indicate that the buyer is
to choose a date; or

b) Vao bat kS' thdi diem nao trong


khoang thdi gian disc hop dong an dinh
hay c6 the xac dinh dudc khoang thdi
gian giao hang bang cach tham chi&
vao hop dong, ngu nhu. kh6ng the can
cif vao cac tinh tigt de" Net ngay giao
hang ma ngudi mua an dinh la ngay
nao.

(c) In any other case, within a


reasonable time after the conclusion of
the contract.

c) Trong tru'ong hop khac, trong mot thdi


han hop lj/ sau khi hop d6ng &roc kj/
kat.

Article 34. If the seller is bound to hand

Dieu 34. Neu ngudi ban c6 nghia vu

over documents relating to the goods,


he must hand them over at the time and
place and in the form required by the
contract. If the seller has handed over
documents before the time, he may, up
to that time, cure any lack of conformity
in the documents, if the exercise of this
right does not cause the buyer
unreasonable inconvenience or
unreasonable expense. However, the
buyer retains any right to claim
damages as provided for in this
Convention.

phai giao cac chang tit c6 lien quan den


hang hoa thi ho phai thi hanh nghia vu
nay dung thdi han, dung dia diem va
dung hinh thut nhu' quy dinh trong hop
&rig. Trong twang hop ngudi ban giao
chang tit trudc kj/ han thi ho c6 the,
trudc khi het thdi han quy dinh se giao
chang tit, loai be) bat kj/ diem nao khong
phb hop trong chang tit vdi di6u kign la
vigc lam nay khong gay cho Nub mua
mot tro ngai hay phi ton vo ly nao. Tuy
nhien, ngudi mua van c6 quy6n doi
ngudi ban b6i thu'ong thiet hai chi&
theo Cong udc nay.

Section II. Conformity of the goods


and third party claims

Myc II. TInh phu hqp cila hang hoa vg


quy6n dm ben thin ba:

Article 35.

Digu 35.

(1) The seller must deliver goods which


are of the quantity, quality and
description required by the contract and

1. Ngu'di ban giao hang dOng so Itiong,


phgnn chgt va m6 to nhu' quy dinh trong
hop Tong va dung bao bi hay clang goi
397

which are contained or packaged in the


manner required by the contract.

nhu' hop dong yeu cau.

(2) Except where the parties have


agreed otherwise the goods do not
conform with the contract unless they:

2. Ngoai frit nha'ng tru'ong hop da du'oc


cac ben thoa thu*an khac, hang hoa bi
coi la khong phi] hop voi hop thing ngu:

(a) Are fit for the purposes for which


goods of the same description would
ordinarily be used;

a) Hang hoa kh6ng thich hop cho cac


muc dich sit dung ma cac hang hoa
ding loai An &Kiang dap (Mg.

(b) 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
judgement;

b) Hang khong thich hop cho bat kSt


muc dich cu thg nao ma ngu'di ban da
tut tip hoac gian tip bigt du'oc vao luc
kjt kgt hop dong, trig trtiong hop neu can
cii vao cac hoan canh cu thg c6 the'
thay rong kh6ng dija vao kign hay sy
phan doan cua ngu'ai ban hoac neu d6i
vcii ho lam nhti the la kh6ng hop ljt.

(c) Possess the qualities of goods which


the seller has held out to the buyer as a
sample or model;

c) Hang kh6ng c6 cac tinh chat cua


hang m8u hoac kidu clang ma ngu'ai ban
da cung cap cho ngu'ai mua.

(d) Are contained or packaged in the


manner usual for such goods or where
there is no such manner, in a manner
adequate to preserve and protect the
goods.

d) Hang kh6ng dtioc dong bao bi theo


cach th6ng thuting cho nhu'ng hang
ding loai hoac ngu khong c6 cach
thong thu'Ong, thi bang cach thich hop
de gift gin va bao A hang hoa do.

(3) The seller is not liable under


subparagraphs (a) to (d) of the
preceding paragraph for any lack of
conformity of the goods if at the time of
the conclusion of the contract the buyer
knew or could not have been unaware
of such lack of conformity.

3. Ngu'ai ban kh6ng chiu trach nhigm ye


\deo giao hang khOng dung hop (long

Article 36.

Dieu 36.

(1) The seller is liable in accordance


with the contract and this Convention for
any lack of conformity which exists at
the time when the risk passes to the
buyer, even though the lack of
conformity becomes apparent only after
that time.

1. Ngu'ai ban chiu trach nhigm chigu


theo hop d6ng va COng Yoc nay, ye moi
sLt kh6ng pha hop nao cua hang hoa
ma sit kh6ng pha hop do vao 10c
chuygn giao rui ro sang ngutii mua,
ngay ca khi su' khong pha hop cua hang
hoa chi &roc phat hien sau do.

(2) The seller is also liable for any lack


of conformity which occurs after the
time
indicated in the preceding

2. Ngudi ban cung chiu trach nhiem ye


moi sU kh6ng phu hop cua hang hoa
x8y ra sau thoi digm (la not 8 digm tren

398

nhu' da n8u trong cac diem tit a dgn d


cua kho8n ten ngu nhu' ngudi mua da
bigt hoac kh6ng thg kh6ng bigt ye viec
hang khong pha hop vao 10c kgt hop
d6ng.

paragraph and which is due to a breach


of any of his obligations, including a
breach of any guarantee that for a
period of time the goods will remain fit
for their ordinary purpose or for some
particular purpose or will retain specified
qualities or charactersistics.

va la hau qu5 coa viec ngudi ban vi


pham bat cir mot nghia vu nao cua
minh, kd c5 viec kh6ng thd hoar) toan
d5m b5o rang trong mot thdi han nao do
hang hoa van thich hop cho muc dich
sir dung th6ng thu'Ong hay muc dich cu
the hoac van duy tri du'oc nhang tinh
chat hay dac tinh de quy dinh.

Article 37. If the seller has delivered


goods before the date for delivery, he
may, up to that date, deliver any missing
part or make up any deficiency in the
quantity of the goods delivered, or deliver
goods in replacement of any nonconforming goods delivered or remedy
any lack of conformity in the goods
delivered, provided that the exercise of
this right does not cause the buyer
unreasonable inconvenience or
unreasonable expense. However the
buyer returns any right to claim damages
as provided for in this Convention.

Digu 37. Trong tru'Ong hop giao hang


trade thdi han, ngu'di ban c6 quygn cho
tdi tru'dc khi het han giao hang, giao mot
phan hay mot s6 luring thigu, hoac giao
hang moi thay cho hang de giao kh6ng
pha hop vdi hop dung, hoac khdc phuc
moi su khong phi hop caa hang hoe da
giao vdi di& kien la viec lam d6 caa
ngutii ban kh6ng gay, cho ngu'di mua
mot tra ngai hay phi ton vo lj/ nao. Tuy
nhien ngu'di mua c6 quyen doi ID&
thu'ong thiet hai chieu theo Cong uric
nay.

Article 38.

Digu 38.

(1) The buyer must examine the goods


or cause them to be examined within as
short a period as is practicable in the
circumstances.

1. Ngu'di mua phi kidm tra hang hoac


ID5o dam c6 su kidm tra hang trong mot
thdi han ngan nhgt ma thu'c to c6 the
lam du'oc tay tinh huong cu thd.

(2) If the contract involves carriage of


the goods, examination may be
deferred until after the goods have
arrived at their destination.

2. Neu hdp Tong c6 quy dinh vg viec


chuyen cha hang hoa thi viec kidm tra
hang c6 the du'oc ddi lai den lac hang
tdi noi den.

(3) If the goods are redirected in transit


or redispatched by the buyer without a
reasonable opportunity for examination
by him and at the time of the conclusion
of the contract the seller knew or ought
to have known of the possibility of such
redirection or redispatch, examination
may be deferred until after the goods
have arrived at the new destination.

3. Neu dia diem den caa hang bi thay


d6i trong thdi gian hang dang tren
during van chuyen hoac hang du'oc
ngu'di mua VA di tiep va khi do ngubi
mua kh6ng c6 kh5 nang hdp ly cid kiern
tra hang hoa, con ngLidi ban de bit hay
Bang le ph5i biet khi kjt ket hop Tong ve
kh5 nang dQi I6 trinh hay giti tip d6 thi
viec kiem tra c6 the du'oc ddi lai den khi
hang VA noi den rndi.

Article 39.

Di6u 39.

(1) The buyer loses the right to rely on a 1. Ngu'di mua bi met quyan khigu nai vg
399

lack of conformity of the goods if he


does not give notice to the seller
specifying the nature of the lack of
conformity within a reasonable time
after he has discovered it or ought to
have discovered it.

viOc hang hoa khong phi hop hop (long


nau ngudi mua kh6ng thong bao cho
ngudi ban nhCmg tin tilt v6 viOc khOng
phi hop do trong mot thdi han hop lj/ ke
tit lac ngudi mua da phat hiOn hay clang
le da phai phat hiOn ra so kh6ng phi
hop do.

(2) In any event, the buyer loses the


right to rely on a lack of conformity of
the goods if he does not give the seller
notice thereof at the latest within a
period of two years from the date on
which the goods were actually handed
over to the buyer, unless this time-limit
is inconsistent with a contractual period
of guarantee.

2. Trong moi trudng hop, ngudi mua bi


mat quy6n khigu nai v6 viOc hang kh6ng
phi hop voi hop dung nau ho khong
th6ng bao cho ngudi ban bit v6 viOc da
cham nhat trong thdi han 2 narn 14 of
ngay hang hoa da thut sit du'oc giao
cho ngudi mua tilt phi thdi han nay trai
ngu'oc voi thdi han bao hanh quy dish
trong hop &Mg.

Article 40. The seller is not entitled to


rely on the provisions of articles 38 and
39 if the lack of conformist relates to
facts of which he knew or could not
have been unaware and which he did
not disclose to the buyer.

Digu 40. Ngudi ban kh6ng c6 quy6n


viOn clan cac quy Binh cua cac di6u 38
va 39 nau nhu' sit kh6ng phi hop cua
hang hoa lien quan clan cac yau t6 ma
ngudi ban da bit hoac khong the khong
bra va ho (la kh6ng th6ng bao cho
ngudi mua.

Article 41. The seller must deliver


goods which are free from any right or
claim of a third party, unless the buyer
agreed to take the goods subject to that
right or claim. However, if such right or
claim is based on industrial property or
other intellectual property, the seller's
obligation is governed by article 42.

Digu 41. Ngudi ban phai giao nhi.Ing


hang hoa kh6ng bi rang buQc bdi bat cCt
guy& han hay yOu sach nao cua ngudi
thit ba fru' trudng hop ngudi mua (long
nhan loaf hang bi rang buQc vao quy6n
han va yOu . sach d6 du'oc hinh thanh
tren co sa sa hal cong nghiOp hay sd
hCtu tri tue khac thi nghia vu cua ngtldi
ban se du'oc di6u chinh theo6u 42.

Article 42. (1) The seller must deliver


goods which are free from any right or
claim of a third party based on industrial
property or other intellectual property of
which at the time of the conclusion of
the contract the seller knew or could not
have been unarware, provided that the
right or claim is based on industrial
property or other intellectual property.

Digu 42. 1. Ngt..rdi ban phai giao nhctng


hang hoa kh6ng bi rang buOc bdi bat ca
quy6n han hay you sach nao cua ngudi
thCt ba tren co sa sd hau cong nghiOp
hoac sa hitu tri tue khac ma ngudi ban
da bit hoac khong bit vac) thdi digm kjt
k6t hop dong, voi di6u kiOn nau cac
quy6n va yOu sach not ten du'oc hinh
thanh tren co so sa hau cong nghiOp
hoac sa hitu tri tue khac.

(a) Under the law of the State where the

a) Chi& theo phap luat coo quoc gia

400

goods will be resold or otherwise used if


it was contemplated by parties at the
time of the conclusion of the contract
that the goods would be resold or
otherwise used in that State; or

not hang hoe se duac ban lai hay sit


dung bang cach khac, neu cac ben c6
du down vao luc k9 kgt hdp dung rang
hang hoe se duac ban lai hay sit dung
bang cach khac tai quoc gia do, hoac la:

(b) In any other case under the law of


the State wher,?. the buyer has his place
of business.

b) Trong moi truang hop khac chigu


theo luat phap cua qu6c gia c6 tru sa
thuang mai cua ngudi mua.

(2) The obligation of the seller under the


preceding paragraph does not extend to
cases where:

2. Trong cac tru'dng hop sau day, ngudi


ban khong bi rang buac bi i nghia vu
neu ten, ngu:

(a) At the time of the conclusion of the


contract the buyer knew or could not
have been unaware of the right or claim:
or

a) Vao luc k9 kgt hop clang, ngudi mua


de !Diet hoac kh6ng thg bigt vg su hien
hau cua quygn Idi hay yeu sach not
tren, hoac la:

(b) The right or claim results from the


seller's compliance with technical
drawings, designs, formular or other
such specifications furnished by the
buyer.

b) Quy6n loi hay yeu sach bat nguon tit


su kien ngudi ban de tuan theo cac ban
thigt ke k9 thuat, hinh ye, cOng thac hay
nhang s6 ligu co sa do doanh nghiep
ngudi mua cung cap.

Article 43.

Digu 43.

(1) The buyer loses the right to rely on


the provisions of article 41 or 42 if he
does not give notice to the seller
specifying the nature of the right or
claim of the third party within a
reasonable time after he has become
aware or ought to have become aware
of the right or claim.

1. Ngubi mua mat quygn khigu nai du'a


vao cac quy dinh cua Dieu 41 va 42.
Neu nhu ho khong th6ng bao cho ngudi
ban nhilIng tin tac ve tinh chit dm
quygn han hay yeu sach cua ngudi tho'
ba, trong mat thdi han hop 19 ke tit 10c
ngudi mua de bigt hay clang le phi biet
vg quygn hoac yeu sach do.

(2) The seller is not entitled to rely on the


provisions of the preceding paragraph if
he knew of the right or claim of the third
party and the nature of it.

2. Ngu'di ban khong c6 quyen vien den


nhCing sit quy Binh tilt diem 1 neu tren
neu ngudi ban de bigt vg quygn han hay
yeu sach cua ngudi trio' ba va vg tinh
chit cua quyen han hay yeu sach.

the
Notwithstanding
44.
Article
provisions of paragraph (1) of article 39
and paragraph (1) of article 43, the
buyer may reduce the page in
accordance with article 50 or claim
damages, except to loss of profit, if he
has a reasonable excuse for his failure
to give the required notice.

Digu 44. Bit chip nhang quy dinh cua


diem 1 Dieu 39 va khoAn 1 Dieu 43,
ngudi mua c6 the Om gia chieu theo
Dieu 50 hay d6i b6i thu'Ong thiet hai,
ngoai trit kho6n loi bi ba Id, ngu ngudi
giai filch vi sao
mua c6 19 do hop 19
ho khong thong bao tin tut can thigt cho
ngudi ban.

401

Section III. Remedies for breach of Myc lll. Cac bien phap bac, ho phap ly
contract by the seller trong truong hcip ngudi ban vi pham
hIp d6ng

Article 45.
Di6u 45.
(1) If the seller fails to perform any of his 1. Neu ngudi ban da kh6ng thuc hien
obligations under the contract or this mot nghia vu nao do cUa ho phat sinh tit

Convention, the buyer may:
hop d6ng mua ban hay C6ng u'oc nay,
thi ngudi mua c6 can ca
(a) Exercise the rights provided in a) Thuc hien nhimg quy8n han cue

articles 46 to 52:
minh theo quy dinh tai cac dieu tit 46
clgn 52;
(b) Claim damages as provided in b) Doi b6i thudng thiet hai nhu de quy
articles 74 to 77.
dinh tai cac dieu tit 74 den 77.
(2) The buyer is not deprived of any 2. Ngu'di mua khong met quyen doi boi
right he may have to claim damages by thuong thiet hai khi ho de sii dung
exercising his right to other remedies. quyen dung mot bien phap bao h6 phap
ly khac.
(3) No period of grace may be granted 3. Kh6ng mot thoi han an han nao CO
to the seller by a court or arbitral the duoc Toa an hay Trong tai ban cho
tribunal when the buyer resorts to a ngudi ban khi ngudi mua sit dung den
remedy for breach of contract. bat kjt hen phap bao h6 phap ly nao
trong twang hop ngudi ban vi pham hop
Article 46.

Di6u 46.

(1) The buyer may require performance 1. Ngudi mua c6 the yeu ceu ngudi ban
by the seller of this obligations unless phai thut hien nghia vu, WI phi ngudi
the buyer has resorted to a remedy mua so' dung mot bien phap bao h6
which
is
inconsistent
with
this phap ly kh6ng hop vdi y8u ca'u d6.
requirement.
(2) If the goods do not conform with the 2. Neu hang h6a khong phi., hop vdi hop
contract, the buyer may require delivery dong thi ngudi mua c6 the dal ngudi ban
of substitute goods only if the lack of phai giao hang thay the net.' su khong
conformity constitutes a fundamental ph6 hop do tao thanh mot skt vi pham cc
breach of contract and a request for ban hop citing va yeu cau ye viec thay
substitute good is made either in the hang phai duoc det ra Gang mot lac
conjunction with notice given under vdi viec th6ng bao nhEtng dpi kiOn chi6u
article 39 or within a reasonable time theo Dieu 39 hoec trong mot thdi han
thereafter.
hop ly sau do.
(3) If the goods do not conform with the 3. Neu hang hoa khong ph0 hop vdi hop
contract, the buyer may require the d6ng, ngudi mua c6 quyen doi hoi ngudi
seller to remedy the lack of conformity ban phai loci trii su kh6ng phi.] hop ey,

402

by repair, unless this is unreasonable


having regard to all the circumstances.
A request for repair must be made
either in conjunction with notice given
under article 39 or within a reasonable
time thereafter.

trig nhCtng trudng hop khi dieu nay

Article 47.

Digu 47.

(1) The buyer may fix an additional


period of time of reasonable length for
performance by the seller or his
obligations.

1. Ngudi mua co the cho ngudi ban


them met thdi han b6 sung hop 19 a
ngudi ban thiic hien nghia vu.

(2) Unless the buyer has received


notice from the seller that he will not
perform within the period so fixed, the
buyer may not, during that period, resort
to any remedy for breach of contract.
However, the buyer is not deprived
thereby of any right he may have to
in
delay
for
damages
claim
performance.

2. Trit phi ngudi mua da du'oc ngudi ban


thong bao rang ngudi ban se khong
thu'c hien nghia vu cua minh trong thdi
han b6 sung do, ngudi mua khong du'oc
su dung den bet cif bien phap bao bo
phap 19 nao trong trudng hop ngudi ban
vi pham hop d6ng trudc khi thdi han b6
sung ket thuc. Tuy nhien ngay ce trong
trudng hop nay ngudi mua cf.-mg khong
mgt quyen doi b6i thudng thiet hai do
ngudi ban chem tre trong viec thcfc hien
nghia vu cua minh.

Article 48.

Dieu 48.

(1) Subject to article 49, the seller may,


even after the date for delivery, remedy
at his own expense any failure to
perform his obligations, if he can do so
without unreasonable delay and without
buyer unreasonable
the
causing
inconvenience or uncertainty of
reimbursement by the seller of
expenses advanced by the buyer.
However, the buyer retains any right to
claim damages as provided for in this
Convention.

1. Veil dieu kien tuan tha quy dinh cue


Dieu 49 ngudi ban co the, ngay ce sau
khi het thdi han giao hang, loai tit moi
thigu sot trong viec thu'c hien nghia vu
cOa minh. phi ton do ngudi ban chiu vdi
dieu kien la dieu do khong keo theo mot
su' chem trg ve 19 ma khong gay ra cho
ngudi mua nhimg tra ngai phi l9 hay tinh
hinh bet dinh va viec ngudi ban phi
hoan tre cac phi ton ma ngudi mua
ganh chiu. Tuy nhien ngudi mua duy tri
quyan doi b6i thudng thiet hai chi&
theo Cong udc nay.

(2) If the seller requests the buyer to


make known whether he will accept
performance and the buyer does not
comply with the request within a
reasonable time, the seller may perform

2. Neu ngudi ban yeu cau ngudi mua


cho bigt la ngudi mua c chap nhen viec
loai trii thieu sot not tren cOa ngudi ban
hay khOng va ngu ngudi mua kh6ng dap
Ung yeu cau nay cOa ngudi ban trong

khong hop 19 xet theo tat ca cac tinh bet.


Viec yeu cau loaf trif su khOng phii hop
cOa hang hoe so vdi hop Tong phi
du'oc tien hanh hoc la ding mot luc vdi
thong bao nha'ng kien chidu theo
Dieu 39 hoec trong mot thdi han hop 19
sau do.

403

within the time indicated in his request.


The.buyer may not, during that period of
time, resort to any remedy which is
inconsistent with performance by the
seller.

mot thdi han hip ly thi ngudi ban c thg


loci tit thigu sot do trong pham vi thdi
han ma ngudi ban da ghi trong don yeu
cgu. Ngudi mua kh6ng thg, tit& khi
man han ay, sit dung bat di bien phap
bgo h0 phap ljt nao kh6ng thich hop cho
vied thi hanh nghia vu cua ngudi ban.

(3) A notice by the seller that he will


perform within a specified period of time
is assumed to include a request, under
the preceding paragraph 2, that the
buyer makes known his decision.

3. Ngu ngudi ban thong bao cho ngudi


mua rang ngudi ban se thut hien vied
loci trii thigu sat trong mot thdi han an
Binh thi can higu rang thong bao not
tren bao g6m c6 yeu cgu ngudi mua cho
bigt ho chap nhan vied loci trCt thigu sot
hay khong chigu theo quy Binh cua
khogn 2 not tren.

(4) A request or notice by the seller


under paragraph (2) or (3) of this article
is not effective unless received by the
buyer.

4. Yeu cau hay th6ng bac, cOa ngudi


ban theo quy Binh cua cad khogn 2 hay
3 ciia Dieu nay se khOng CO hieu kit
ngu ngudi mua khOng nhan

Article 49.

Di6ta 49.

(1) The buyer may declare the contract


avoided:

1. Ngudi mua c thg tuyen b6 hug' hop


dung:

(a) If the failure by the seller to perform


any of
his obligations under the
contract or this Convention amounts to
a fundamental breach of contract: or

a) Ngu vigc ngudi ban khong thu'c hien


mot nghia vu nao do cOa ho phat sinh tit
hop &rig hay tCt C6ng u'dc nay cgu
thanh mot vi pham chO ygu den hop
(Tong, hoac:

(b) In case of non-delivery, if the seller


does not deliver the goods within the
additional period of time fixed by the
buyer in accordance with paragraph (1)
of article 47 or declares that he will not
deliver within the period so fixed.

b) Trong truing hop khong giao hang:


Neu ngudi ban kh6ng giao hang trong
thdi gian da &too ngudi mua gia han
them cho ho chigu theo khogn 1 Dieu
47 hoac ngu ngudi ban tuyen b6 se
kh6ng giao hang trong thdi gian du'oc
gia han nay.

(2) However, in cases where the seller


has delivered the goods, the buyer
loses the right to declare the contract
avoided unless he does so:

2. Tuy nhien trong taking hop neu ngudi


ban da giao hang thi ngudi mua se mgt
quygn hug' hop d6ng ngu ngudi mua da
khong tuyen b6 hug' hop dong.

(a) In respect of late delivery, within a


reasonable time after he has become
aware that delivery has been made;

a) Khi ngudi mua giao hang cham trong


mot thdi han hop 19 kg tCt lOc ngudi mua
da bigt rang vied giao hang da dtioc
thut hien.

404

(b) In respect of any breach other than


late delivery, within a reasonable time:

b) D6i vdi moi tru'eing hOp vi pham tit


truting hop giao hang chem tre trong
mot thdi han hop

(i) After he knew or ought to have


known of the breach.

i) Kg tir lac ngudi mua da !Diet hay clang


le phei bigt v6 ski vi pham do.

(ii) After the expiration of any additional


period of time fixed by the buyer in
accordance with paragraph (1) of article
47, or after the seller has declared that
he will not perform his obligations within
such an additional period; or

ii) Sau khi de het moi thdi hen ma ngu'di


mua de gia han them cho ngudi ban
chi& theo khoen 1 Dieu 47 hoac sau
khi ngudi ban da tuyen b6 rang ho se
khong that hien. nghia vy caa minh
trong thdi han de du'oc gia han them (15,
hoec:

(iii) After the expiration of any additional


period of time indicated by the seller in
accordance with paragraph (2) of article
48. or after the buyer has declared that
he will not accept performance.

iii) Sau khi da het moi thdi han b6 sung


ma ngu'di ban de yeu c6u chi& theo
khoen 2 Dieu 48 hay sau khi ngu'di mua
de tuyen b6 la ho khong chap nhen cho
ngu'di ban thac hien nghia vy.

Article 50. If the goods do not conform


with the contract and whether or not the
price has already been paid, the buyer
may reduce the price in the same
proportion as the value that the goods
actually delivered had at the time of the
deliverly bears to the value that
conforming goods would have had at
that time. However, if the seller
remedies any failure to perform his
obligations in acoordance with article 37
or article 48 or if the buyer refuses to
accept performance by the seller in
accordance with those articles, the
buyer may not reduce the price.

Di6u 50. Trong trudng hop hang hoa


khong pha hop vdi hop (king, du tin
hang de &roc tri hay chaa, ngudi mua
c th6 gi6m gia hang theo tcr to can dr
vac) scr sai biet giCra gia tri thac ctlia hang
hoe vao lac giao hang va gia tri cua
hang hoe nau hang pha hop hop d6ng
vao lac giao hang. Tuy nhien, ngu ngu'di
ban loai trif moi thigu sot trong vigc thac
hien nghia vu chigu theo Dieu 37 hoac
Dieu 48 hoac neu ngu'di mua tit choi
chap nhen vigc thac hien dm ngu'di ban
chi& theo cac Dieu nay thi ngudi mua
khong duoc gi6m gia hang.

Article 51.

Digu 51.

(1) If the seller delivers only a part of the


goods or if only a part of the goods
delivered is in comformity with the
contract, articles 46 to 50 apply in
respect of the part which is missing or
does not conform.

1. Neu ngudi ban chi giao mot phan


hang hoe hoec n6u chi mot phan hang
hoa de giao phi hop vdi hop Tong thi
cac dieu 46 den 50 se duoc ap dung doi
vdi phan hang hoe thigu hoec phan
hang hoe kh6ng phu hop vdi hop dung.

(2) The buyer may declare the contract


avoided in its entirety only if the failure
to make delivery completely or in
conformity with the contract amounts to

2. Ngu'di mua chi du'oc tuyen b6 huj/ bO


toan b6 hop d6ng, n6u viec kh6ng thac
hien hop Tong hoac mot phan hang giao
khong pha hap hop &rig cau thanh mot
405

a fundamental breach of the contract.

su'vi pham chi you hop citing.

Article 52.

Digu 52.

(1) If the seller delivers the goods


before the date fixed, the buyer may
take delivery or refuse to take delivery.

1. Nau ngu'di ban giao hang tru'oc thai


han quy dinh thi ngiJOi mua du'oc quyan
11,1a chon ho5c chap nh5n ho5c tit ch6i
viec giao hang do.

(2) If the seller delivers a quantity of


goods greater than that provided for in
the contract, the buyer may take
delivery or refuse to take delivery of the
excess . quantity. If the buyer takes
delivery of all or part of the excess
quantity, he must pay for it at the
contract rate.

2. Neu ngt.toi ban giao mot s6 IUOng


nhi6u hon s6 lacing quy dinh trong hop
dong, thi ngu'di mua c thd chap nh5n
hay tit ch6i viec giao s6 lu'ong phu trOi
not ten thi ngu'di mua phi trA tin hang
phu trQi. Neu ngu'di mua chap nhen toan
bQ ho5c mot ph5n s6 *mg phu trQi not
tren thi
mua phi trA tin hang
phu trQi theo gia hop Tong quy dinh.

Chapter III

Chuang III

OBLIGATIONS OF THE BUYER

NGHiA VU cOA Nato' MUA

Article 53. The buyer must pay the

Digu 53. Ngu'ai mua ce nghia vu thanh

price for the goods and take delivery of


them as required by the contract and
this Convention.

toan fiat.) hang va nh5n hang theo quy


dinh cua hop d6ng va cue C6ng utIc
nay.

Section I. Payment of the price

Muc I. Thanh toan tign hang

Article 54. The buyer's obligation to pay


the price includes taking such steps and
complying with such formalities as may
be required under the contract or any
laws and regulations to enable payment
to be made.

Digu 54. Nghia vu thanh town tin hang


cua ngt.toi mua bao g6m viec ep dung
cac bien phap va tu5n thi cac thu tuc
ma hop d6ng ho5c 1u5t le doi hOi de c
thd that hien &roc thanh toan tin hang.

Article 55. Where a contract has been

Digu 55. Trong nhang tru'ang hop, nau

validly concluded but does not


expressly or implicitly fix or make
provision for determining the price, the
parties are considered, in the absence
of any indication to the contrary, to have
impliedly made reference to the price
generally charged at the time of the
conclusion of the contract for such
goods sold under comparable
circumstances in the trade concerned.

hop d6ng da du'oc kjr kat mot cach hop


phap, nraing trong hop dong kh6ng quy
dinh gia ca mot cach tut tiap ho5c glen
tiap, hoc kh6ng quy dinh cach ,xac dinh
gia thi du'oc phep suy down rang, cac
ben, trit phi c quy dinh trai ngdoc, de. c
ngu jr du'a vao gia da du'oc an dinh cho
loci hang hoe nhu' v5y khi hang hoe nay
dt.toc dem ban trong nho'ng di& kien
tu'ong tu'cita nganh bu6n ban him quan.

Article 56. If the price is fixed according

Digu 56. NI& gia ce chtoc an dinh theo

to the weight of the goods, in case of

trong lu'Ong cua hang hoe thi trong

406

xac

doubt it is to be determined by the net


weight.

trudng hip c6 nghi ngd, gia se


dinh theo trong lu'dng tinh.

Article 57.

Di6ti 57.

(1) If the buyer is not bound to pay the


price at any other particular place, he
must pay it to the seller:

1. Ngu ngudi mua kh6ng c6 nghia vu


phai thanh toan tin hang tai mot dia
digm nao do thi ho phai tra tin cho
ngudi ban:

(a) At the seller's place of business; or

a) Tai ndi c6 try sa thudng mai dia


ngudi ban hoac:

(b) If the payment is to be made against


the handing over of the goods or of
documents, at the place where the
handing over takes place.

b) Tai ndi giao hang hoac chang tit ngu


vigc tra tin phai thyt hign cung 16c voi
vigc giao hang hoac chang

(2) The seller must bear any increase in


the expenses incidental to payment
which is caused by a change in his
place of business subsequent to the
conclusion of the contract.

2. Ngudi ban phai chiu moi skt gia tang


phi ton de thiic hign vigc thanh toan do
ski thay doi dia digm coa try sa thudng
mai dia minh sau khi hop d6ng dudc kj/
kgt.

Article 58.

Di'du 58.

(1) If the buyer is not bound to pay the


price at any other specific time, he must
pay it when the seller places either the
goods or documents controlling their
disposition at the buyer's disposal in
accordance with the contract and this
Convention. The seller may make such
payment a condition for handing over
the goods or documents.

1. Ngu ngudi mua kh6ng co nghia vu


phai tra tin vac) mot thoi han cu thd nao
nhgt dinh thi ho phai tra khi, chigu theo
hdp dong va Cong udc nay, ngudi ban
dat dudi quy6n dinh doat cua ngudi mua
hoac hang boa hoac cac chang tit nhan
hang. Ngudi ban c6 thg dat di6u kign
phai thanh toan nlikt vay de mi lai vigc
ho giao hang hoac chitng

(2) If the contract involves carriage of


the goods, the seller may dispatch the
goods on terms whereby the goods or
documents controlling their disposition,
will not be handed over to the buyer
except against payment of the price.

2. Ngu hop d6ng qui dinh vigc chuygn


chd hang hoa, ngudi ban c6 thg gill
hang di voi digu kign la hang hay chang
tit nhan hang chi dkidc giao cho ngudi
mua khi ngudi mua thanh toan tin
hang.

(3) The buyer is not bound to pay the


price until he has had an opportunity to
examine the goods, unless the
procedures for delivery or payment
agreed upon by the parties are
inconsistent with his having such an
opportunity.

3. Ngu'di mua kh6ng c6 nghia vu phai


thanh toan tign hang trudc khi ho c6 thg
kigm tra hang hoa, trCt nhimg trkking hop
ma c6 thg thitc giao hang hay tra tin do
ca(. Pn thda thuan khong cho phep lam
viec u,

407

Article 59.

Digu 59.

The buyer must pay the price on the


date fixed by or determinable from the
contract and this Convention without the
need for any request or compliance with
any formality on the part of the seller.

Ngu'ai mua phi tra tin vao ngay thanh


toan de qui dinh hoec c the clu'dc xac
dinh theo hop dung va Cong u'oc nay,
ma kh6ng can phai c mot Idi yeu ceu
hay viec thtic hien mot thu tuc nao khac
ve phia ngUdi ban.

Section II. Taking delivery

Muc ll. Nhan hang

Article 60. The buyer's obligation to


take delivery consists:

Digu 60. Nghia vu nhan hang cUa ngudi


mua

(a) in doing all the acts which could


reasonably be expected of him in order
to enable the seller to make delivery;
and

a) Thut hien moi hanh vi ma ngudi to c


quyan chd doi 6 ho mot cach hop ljt de
cho phap ngudi ban thuc hien viac giao
hang, vb.

(b) In taking over the goods.

b) Tip nhan hang hoa.

Section III. Remedies for breach of


contract by the buyer

Myc
Cac bien phap bac) hd phap
lk trong trudng hdp ngudi mua vi
pham hdp d6ng

Article 61.

El& 61.

(1) If the buyer fails to perform any of


his obligations under the contract or this
Convention. the seller may:

1. Neu nguOi mua kh6ng thut hien mot


nghia vu nao do theo hop &rig mua
ban hay Cong Uric nay, thi ngdoi ban co
the:

(a) Exercise the rights provided


articles 62 to 65;

in a) Thut hien cac quy6n qui dinh tai cac


dieu 62 va 65.

(b) Claim damages as provided


articles 74 to 77.

in b) Doi la& thubng thiet hai nhu' qui dinh


tai cac dieu tit 74 den 77.

(2) The seller is not deprived of any


right he may have to claim damages by
exercising his right to other remedies.

2. Ngt.tai ban khong mat quyan doi boi


thudng thiat hai khi ho sit dung quy6n
ap dung cac bien phap IDA h6 phap ljt
khac.

(3) No period of grace may be granted


to the buyer by a court or arbitral
tribunal when the seller resorts to a
remedy for breach of contract.

3. Khong mot thai han an han nao c


the duoc tob an hay Trong tai ban cho
ngutiii mua khi ngubi ban vien den mot
bien phap beo h6 phap ljt nao do ma ho
co guy& sit dung trong twang hop
ngu'di mua vi pham hop Tong.

Article 62. The seller may require the


buyer to pay the price, take delivery or
perform his other obligations, unless the

Digu 62. Ngubi ban c the yeu ceu


ngu'di mua tra ti6n, nhan hang hay thut
hien cac nghia vu khac cua ngu'ai mua,

408

seller has resorted to a remedy which is


inconsistent with the requirements.

tit phi ho sit' dung mot bin phap bio


hQ phap ljt khac khong thigh hop voi cac
yeu cau do.

Article 63. (1) The seller may fix an


additional period of time of reasonable
length for perfomance by the buyer of
his obligations.

Di6ti 63. 1. Nguai ban c6 thd chap nhan


cho nguai mua mot thai han b6' sung
hop ljt de thktc hien nghia vu cua minh.

(2) Unless the seller has received notice


from the buyer that he will not perform
within the period so fixed, the seller may
not, during that period, resort to any
remedy for breach of contract. However,
the seller is not deprived thereby of any
right he may have to claim damages for
delay in performance.

2. Trit phi nhan du'oc th6ng baso caa


nguai mua cho biet se khong thkic hien
nghia vu trong thcli gian ay, nguai ban
truac khi man han, khOng thd vien den
bat cit mot bien phap bao h0 phap ljt
nao ma ho duac sit dung trong truang
hop nguai mua vi pham hop dung. Tuy
nhien, do sii viec nay, nguai ban kh6ng
mat quy6n d6i b6i thuang thiet hai vi
nguai mua chu'a thiic hien nghia vu.

Article 64. (1) The seller may delcare


the contract avoided:

Di61.1 64. 1. Nguai ban c6 thd tuyen b6


huct hop d6ng:

(a) if the failure by the buyer to perform


any of his obligations under the contract
or this Convention amounts to a
fundamental breach of contract; or

a) Neu nguai mua kh6ng thi hanh nghia


vu nao dO coa ho theo hop d6ng hay
Cong u'dc nay cau thanh mot sit vi
pham chO yeu hop &rig, hoac.

(b) if the buyer does not, within the


additional period time fixed by the seller
in accordance with paragraph (1) of
article 63, perform his obligation to pay
the price or take delivery of the goods,
or if he declares that he will not do so
within the period so fixed.

b) Neu nguai mua khong thi hanh nghia

vu tr6 tin hoac kh6ng nhan hang trong


thai han b6 sung ma nguai ban chap
nhan cho ho chieu theo khoAn 1 Dieu
63 hay n'6u ho tuyen b6 se khong lam
viec do trong thai han h.

(2) However, in cases where the buyer


has paid the price, the seller looses the
right to declare the contract avoided
unless he does so:

2. Tuy nhien, trong nhalg truang hop


khi nguai mua da trA ti6n, ngu'ai ban mat
quyen tuyen b6 huct hop dong neu ho
kh6ng lam viec nay:

(a) in respect of late performance by the


buyer, before the seller has become
aware that performance has been
rendered; or

a) Trong truang hop nguai mua cham


thtic hien nghia vu - truck khi ngt.tai ban
biet nghia vu da du'oc thkic hien, hoac:

(b) in respect of any breach other than


late performance by the buyer, within a
reasonable time:

b) Trong truang hop nguai mua vi pham


bat di nghia vu nao khac ngoai viec
cham tre - trong mot thai han hop Ijr;

(i) after the seller knew or ought to have

i) Kd tit 10c nguai ban da biet hay clang


409

known of the breach; or

le phai Net sLt vi pham do, hoac:

(ii) after the expiration of any additional


period of time fixed by the seller in
accordance with paragraph (1) of article
63, or after the buyer has declared that
he will not perform his obligations within
such an additional period.

ii) Sau khi het moi thdi han b6 sung ma


ngudi ban chap nhan ch;L.. theo khoan
1 Dieu 63 hay sau khi ngudi mua da
tuyen b6 rang ho se khong thut hien
nghia vu cua minh trong thdi han b6
sung do.

Article 65.

Di61.1 65.

(1) If under the contract the buyer is to


specify the form, measurement or other
features of the goods and he fails to
make such specification either on the
date agreed upon or within a
reasonable time after receipt of a
request from the seller, the seller may,
without prejudice to any other rights he
may have, make the specification
himself in accordance with the
requirements of the buyer that may be
known to him.

1. Neu theo hop dung ngudi mua phai


xac dinh hinh dang, kIch thudc hay
nhang dec diem khac deo trong cua
hang hoa va neu ngudi mua khong lam
di6u ay vao thdi han da thoa thuan hay
trong mot thdi han hop 19 ke tit luc nhan
du'oc y8u cau cua ngudi ban, thi ngudi
ban c the to minh xac dinh hang hoa
chi& theo nhu cau cua ngudi mua ma
ho c the biet ma kh6ng lam hai den
cac quyen loi khac.

(2) If the seller makes the specification


himself, he must inform the buyer of the
details thereof and must fix a
reasonable time within which the buyer
may make a different specification. If,
after receipt of such a communication,
the buyer fails to do so within the time
io fixed, the specification made by the
,seller is binding.

2. Neu chinh ngudi ban to minh thtic


hien viec xac dinh hang hoa, ho phai
bao chi Wet cho ngudi mua brat not dung
viec xac dinh va cho ngudi mua mot thdi
han hop 19 de ngudi nay c the xac dinh
khac. Neu sau khi nhan du'oc th6ng bac)
cua ngudi ban ma ngudi mua kh6ng sit
dung kha nang nay trong thoi han not
tren, thi sct xac dinh hang hoa do ngudi
ban thu'c hien c tinh chat bet buQc.

Chapter IV

Chu*Png IV

PASSING OF RISK

CHUYEN ROI RO

Article 66. Loss of or damage to the


goods after the risk has passed to the
buyer does not discharge him from his
obligation to pay the price, unless the
loss or damage is due to an act or
omission of the seller.

Di6u 66. Vic mat mat hay hit hong


hang hoa )(Ay ra sau khi rui ro chuyen
sang ngudi mua khOng mien tit cho
ngudi nay nghia vu phai trA ti6n, tit phi
viec mat mat hay hu hang ay la do hanh
d6ng cua ngudi ay gay nen.

Article 67.

Digu 67.

(1) If the contract of sale involves


carriage of the goods and the seller is
not bound to hand them over at a

1. Khi hop d6ng mua ban quy dinh viec


van chuyen hang hoa va ngudi ban
khong bi buQc phai giao hang tai not xac

410

particular place, the risk passes to the


buyer when the goods are handed over
to the first carrier for transmission to the
buyer in accordance with the contract of
sale. If the seller is bound to hand the
goods over to a carrier at a particular
place, the risk does not pass to the
buyer until the goods are handed over
to the carrier at that place. The fact that
the seller is authorized to retain
documents controlling the disposition of
the goods does not affect the passage
of the risk.

dinh, rui ro du'oc chuygn sang ngutii


mua kg titliJc hang du'oc giao cho ngutti
chuyen cha tha nhgt dg chuygn giao
&roc hang cho ngutii mua chigu theo
hop long mua ban. Ngu ngutri ban buQc
phi giao hang cho mot ngutri chuygn
ch6 tai mot not xac dinh, cac rui ro
khong du'oc chuygn sang ngu'ai mua
ngu hang hoa chLta du'oc giao cho ngutti
chuyen chic tai noi do. Sit kign
ban clu'oc phep giCt lai cac chitng tii
nhgn hang kh6ng gnh hdang gi clgn ski
chuygn giao rui ro.

(2) Nevertheless, the risk does not pass


to the buyer until the goods are clearly
identified to the contract, whether by
markings on the goods, by shipping
documents, by notice given to the buyer
or otherwise.

2. Tuy nhien, rui ro kh6ng du'oc chuygn


sang ngu'di mua ngu hang hoa khong
du'oc dgc dinh hoa ro rang cho muc dich
cCia hop d6ng hogc bAng cac ghi kjr ma
higu tren hang hoa, bang cac chitng tit
chuyen ch6, logng mot th6ng bao gCti
cho ngu'ai mua hoc bgng bgt cCt
phu'ong phap nao khac.

Article 68. The risk in respect of goods


sold in transit passes to the buyer from
the time of the conclusion of the
contract. However, if the circumstances
so indicate, the risk is assumed by the
buyer from the time the goods were
handed over to the carrier who issued
the documents embodying the contract
of carriage. Nevertheless, if at the time
of the conclusion of the contract of sale
the seller knew or ought to have known
that the goods has been lost or
damaged and did not disclose this to
the buyer, the loss or damage is at the
risk of the seller.

Di6ta 68. Ngu'di mua nhgn rui ro vg minh


doi vdi nhang hang hoa trOn duting van
chuygn kg tit luc hang hoa du'oc giao
cho chuyen cha la ngu'ai da phat
chCtng of xac nhgn mot hop dong van
chuygn. Tuy nhign ngu vac) luc kjr kgt
hop Tong mua ban, ngu'ai ban clg bit
hogc clang le phi bit sit kign hang hoa
d bi mat mat hay hit hong cla khong
thOng bao cho ngitai mua vg digu do thi
vigc mat mat hay NI hong hang hoa do
ngitai ban phi ganh chiu.

Article 69.

Dieu 69.

(1) In cases not within articles 67 and


68, the risk passes to the buyer when
he takes over the goods or, if he does
not do so in due time from the time
when the goods are placed at his
disposal and he commits a breach of
contract by falling to take delivery.

1. Trong cac truting hop khOng &roc neu


tai cac digu 67 va 68, cac rui ro chuygn
sang ngu'di mua khi ngu'Oi nay nhgn
hang hogc, nau ho khong lam vigc nay
dimg thai han qui dinh, thi kg tit luc hang
hoa &roc dat dual quyen dinh doat coa
ngutii mua va mua clg vi pham hop
clong vi khong chiu nhgn hang.
411

(2) However, if the buyer is bound to


take over the goods at a place other
than a place of business of the seller,
the risk passes when delivery is due
and the buyer is aware of the fact that
the goods are placed at his disposal at
that place.

2. Tuy nhien, neu ngu'di mua 1.34 buQc


phai nhen hang tai mot not khac voi not
c xi nghiep thuting mai cilia ngdoi ban,
rui ro du'oc chuyen giao khi den han
giao hang va ngudi mua biet rang hang
hoe de du'oc dat duol guy& dinh doat
cue ho tai ncsi do.

(3) If the contract relates to goods not


are
goods
the
identified,
then
considered not to be placed at the
disposal of the buyer until they are
clearly identified to the contract.

3. Neu hop dung mua ban lien quan den


hang hoe chu'a du'oc ce biet hoe, hang
chi du'oc coi la de dat ddoi guy& dinh
doat cua ngu'ai mua khi nao no du'oc
dac dinh hoe ro rang cho muc dich cua
hop d6ng nay.

Article 70. If the seller has committed a


fundamental breach of contract, articles
67, 68 and 69 do not impair the
remedies available to the buyer on
account of the breach.

Digu 70. Neu ngu'ai ban gay ra mot stf


vi pham chu ygu d6i veil hop d6ng thi
cac quy dinh cua nhCtng di6u 67, 68, 69
khOng anh hu'ang den guy& ciia ngudi
mua sit dung cac !Dien phap bac) he?
phap 19 trong tru'ong hop xAy ra vi pham
nhu vey.

Chapter V

Chuang V

PROVISIONS COMMON TO THE


OBLIGATLONS OF THE SELLER
AND OF THE BUYER

CAC DIEU KHOAN CHUNG CHO


NGHIA VU CCJA NGIJOI BAN VA
NGIICJI MUA

Section 1. Anticipatory breach and


instalment contracts

Myc I. Vi pham co thg biet trudc va


cac hdp d6ng giao hang tiing phgn

Article 71.

Digu 71.

(1) A party may suspend the


performance of his obligations if, after
the conclusion of the contract, it
becomes apparent that the other party
will not perform a substantial part of his
obligations as a result of:

1. 1V1Qt ben c the ngctng vi0c thkic hien


nghia vu cua minh neu c deu hieu cho
they rang sau khi hop d6ng du'oc ky ket,
ben kia se khOng thifc hien mot phan
nghia vu ciba ho bai
chu ygu

(a) a serious deficiency in his ability to


perform or in his creditworthiness; or

a) IV1Qt su khiem khuyet nghiem trong


trong khe nang thuc hien nay trong khi
thu'c hien hop dong.

(b) his conduct in preparing to perform


or in performing the contract.

b) Cung cach sit dung die ben kia trong


viec chuen bi thu'c hien hay trong khi
tht,tc hien hop d6ng.

(2) If the seller has already dispatched


the goods before the grounds described

2. Neu ngu'ai ban da giti hang di khi


phat hien nhilng 19 do neu trong khoan

412

in the preceding paragraph become


evident, he may prevent the handing
over of the goods to the buyer even
though the buyer holds a document
which entities him to obtain them. The
present paragraph relates only to the
rights in the goods as between the
buyer and the seller.

ten, ho c6 thd ngan can kh6ng d6 hang


hoa du'oc giao cho ngu'di mua ngay 66
neu ngudi nay giu trong tay chang tea'
cho phep ho nha'rl hang. Muc nay chi
lien quan den cac quy4n boa ngutii mua
va ngu'di ban doi voi hang hoa.

(3) A party suspending performance,


whether before or after dispatch of the
goods, must immediately give notice of
the suspension to the other party and
must continue with performance if the
other party provides adequate
assurance of his performance.

3. M6t ben nao ngLing vi8c thtic hi8n


hop dung, kh6ng phu thu6c vac) viec do
xay ra trubc hay sau khi guff hang di, thi
phai gal ngay mot thong bao vg vigc do
cho b8n kia va phai tip tuc thu'c hiOn
hop Bong neu ben kia cung cap nhang
bao dam day do cho vi8c thtic hign
nghia vu caa ho.

Article 72.

Digu 72.

(1) If prior to the date for performance of


the contract it is clear that one of the
parties will commit a fundamental
breach of contract, the other party may
declare the contract avoided.

1. Ngu tru'Oc ngay qui dinh cho vi8c thi


hanh hop d6ng, ma thy hidn nhien
rang mot b8n se gay ra mot vi pham
cho yeu den hoat clOng, ben kia c6 th6
tuyen bo hop cl6ng bi huY.

(2) If time allows, the party intending to


declare the contract, avoided must give
reasonable notice to the other party in
order to permit him to provide adequate
assurance of his performance.

2. Ngu co du thoi gid, ben nao coy dinh


tuy8n b6 hop d0ng bi huji thi phai giti
mot thong bao hop 1j/ cho ben kia d6
cho phep ho cung cap nha'ng bao dam
clay du rang ho se thu'c hign nghia vu
caa minh.

(3) The requirements of the preceding


paragraph do not apply if the other party
has declared that he will not perform his
obligations.

3. Cac qui dinh cua khoan tr8n khong


ap dc/ng rigu ben kia da tuyen b6 rang
ho se kh6ng thyc hign nghia vu caa
min h.

Article 73.

Di6u 73.

(1) In the case of a contract for delivery


of goods by instalments, if the failure of
one party to perform any of his
obligations in respect of any instalment
constitutes a fundamental breach of
contract with respect to that instalment,
the other part may declare the contract
avoided with respect to that instalment.

1. Neu hop deing qui dinh giao hang


titng phgn va neu sii ki8n mot ben
khong thu'c hign mot nghia vu co lien
quan dgn mot /6 hang cgu thanh mot si.t
vi pham chi) yeu den hop clong vg 16
hang do thi ben kia c6 thd tuyen b6 huji
hop &sing ve phgn 16 hang do.

(2) If one party's failure to perform any


of his obligations in respect of any

2. Ngu mot ben khong thu'c hien mot


nghia vu c6 lien quan dgn bat at 16
413

instalment gives the other party good


grounds to conclude that a fundamental
breach of contract will occur with
respect to future instalments, he may
declare the contract avoided for the
future, provided that he does so within a
reasonable time.

hang nao cho phep ben kia c 19 do xac


dang de' cho rang se c mot stf vi pham
cho y6u den hdp &rig vdi cac Id hang
se du'oc giao trong tu'ong lai thi ho c
th tuyen b6 hujr hop (Tong doi vdi cac
10 hang Wong lai do vdi diau kian phat
lam viac do trong mot thai han hop 19.

(3) A buyer who declares the contract


avoided in respect of any delivery may,
at the same time declare it avoided in
respect of deliveries already made or of
future deliveries if, by reason of their
interdependence, those deliveries could
not be used for the purpose
contemplated by the parties at the time
of the conclusion of the contract.

3. Ngudi mua tuyen b6 hu9 hdp d6ng


doi vdi 1)6'1 k9 Id hang nao c thd ding
mot 10c, tuyen b6 hop dong bi hu9 d6i
vdi cac Id hang da giao hoe d6i vdi cac
Id hang se du'oc giao thong trong tudng
lai n6u do tinh lien kit, cac Id hang nay
kh6ng thd sit dung du'oc cho nhitng
muc dich do hai ben da dti tinh vao luc
k9 kit hop d6ng.

Section //. Damages

Myc ll. B6i thtiOng thrat hai

Article 74. Damages for beach of


contract by one party consist of a sum
equal to the loss, including loss of
profit, suffered by the other party as a
consequence of the breach. Such
damages may not exceed the loss
which the party in breach foresaw or
ought to have foreseen at the time of
the conslusion of the contract in the light
of the facts and matters of which he
then knew or ought to have known, as a
possible consequence of the breach of
contract.

Digt,' 74. Ti6n b6i thudng thiat hai xay ra


do mot ben vi pham hop d6ng la mot
khoAn tin bao gOm: t6n th5t va kho5n
loi bi !DO Id mot ben da phi chiu do h5u
qu5 cua su' vi pham hop citing. Ti6n boi
thdong thiat hai nay khong the cao hon
t6n th5t va so loi b6 Id ma ben bi vi
pham da dt1 lieu hoc dangle phi
du' lieu du'oc vac) 10c k9 kit hop d6ng
nhu' mot h5u qu5 co thi x6y ra do vi
pham hop d6ng, co tinh din cac tinh fiat
ma ho da bit hoc nen phi

Article 75. If the contract is avoided and


if, in a reasonable manner and within a
reasonable time after avoidance, the
buyer has bought goods in replacement
or the seller has resold the goods, the
party claiming damages may recover
the difference between the contract
price and the price in the substitute
transaction as well as any further
damages recoverable under article 74.

Di6u 75. Khi hop d6ng bi hu9 va nau


bang mot cach hop 19 va trong mot thai
han hop 19 sau khi hu9 hop thing, ngudi
mua da mua hang thay thi hay ngudi
ban da ban lai hang thi ben dal boi
thudng thiat hai c thd dOi nh5n ph5n
chat-1h lach giCia gia hop Tong va gia
mua th6 hay ban lam hang cung nhti
moi khoAn tin b6i thudng thiat hai khac
co thd duoc chiu theo Dieu 74.

Article 76.

Di6u 76.

(1). If the contract is avoided and there


is a current price for the goods the party
claiming damages may, if he has not

1. Khi hop d6ng bi hu9 va kh6ng c mot


gia hien hanh ben d6i b6i thudng thiet
hai co thd, nau ho da kh6ng mua hang

414

made a purchase or resale under article


75, recover the difference between the
price fixed by the contract and the
current price at the time of avoidance as
well as any further damages
recoverable under article 74. If, however
the party claiming damages has
avoided the contract after taking over
the goods, the current price at the time
of such taking over shall be applied
instead of the current price at the time
of avoidance.

thay th6 hay ban lai hang chi& theo


Dieu 75, doi nhan phan cher -1h I6ch gia,
an dinh trong hop d6ng va gia hiOn
hanh vao luc huji hop &rig ding moi
khoan tin boi thuong thi6t hai khac c6
thd doi chiu theo Di6u 74. Mac
dau vay, n6u ben d6i b6i thudng thi6t
hau da tuy8n b6 huj% hop d6ng sau khi
da tiap nhan hang hoa, thi gia hiOn hanh
vao Itac tip nhan hang hoa dudc ap
dung va kh6ng phai la gia hiOn hanh
vao luc hsay hop dong.

(2) For the purposes of the preceding


paragraph, the current price is the price
prevailing at the place where delivery of
the goods should have been made or if
there is no current price at tham place,
the price at such other place as serves
as a reasonable substitute, making due
allowance for differences in the cosis of
trevlsporting the goods.

2. Theo muc dich caa di6u khoan tren


day, gia hiOn hanh la gia a not ma vi6c
giao hang clang 18 phai du'oc thuc hiOn
hoac nau khong c6 gia hiOn hanh tai ndi
do la gia hiOn hanh tai mot noi nao ma
ngudi to co th6 tham chiu mot cach
hop ly, c6 tinh d6n sLt chenh 16ch trong
chi phi va chuyen ch6 hang h6a.

Article 77. A Party who relies on a


breach of contract must take such
measures as are reasonable in the
circumstances to mitigate the loss,
including loss of profit, resulting from
the breach. If he fails to take such
measures, the party in breach may
claim a reduction in the damages in the
amount by which the loss should have
ben mitigated.

Digu 77. Ban nao vi6n dan sLt vi pham


hop d6ng cua ben kia thi phai ap dung
nhO'ng biOn phap hop ly can cif vao cac
tinh hu6ng cu thd d6 han ch6 ton that
k6 c6 khoan loi bi b6 lo do Si! vi pham
hop Tong gay ra. NI& ho kh6ng lam
di6u do, ben vi pham hop &rig c6 th6
yeu c6u gi6m bdt mot khoan tin boi
thtiOng thi6t hai bang v6i mac ton that
dang le da c6 the han ch6 duoc.

Section III. Interest

Muc ill. Tign lai

Article 78. If a party fails to pay the


price or any other sum that is in arrears,
the other party is entitied to interest on
it, without prejudice to any claim for
damages recoverable under article 74.

Digu 78. Ngu mat ben cham thanh toan


tin hang hay moi kho6n tign trigt khau,
ben kia c6 quy6n doi tin lai ten s6 tin
cham tra do ma khong 6nh hu'ang cl6n
quy6n doi b6i thuting thi6t hai ma ho c6
quy6n doi hoi chi& theo Di6u 74.

Section IV. Exemptions

Muc IV. Mien trach

Article 79.

Digu 79.

(1) A party is not liable for a failure to


perform any of his obligations if he
proved that the failure was due to an

1. M6t ben kh6ng chiu trach nhi6m v6


vi6c kh6ng thu'c hiOn bat kj/ mot nghia
vu nao d6 dia ho n6u chCtng minh du'oc
415

impediment beyond his control and that


he could not reasonably be expected to
have taken the impediment into account
at the time of the conclusion of the
Contract or to have avoided or
overcome it or its consequences.

rang viec khong thi..tc hien ay la do mot


tra ngai nem ngoai su' kiem soat cua ho
va ngutri to kh6ng the char doi mot cach
hop 19 rang ho phai tinh tdi tra ngai do
vac) luc k9 kgt hop cl6ng hoec la tranh
du'oc hay khgc phut cac heu qua cua
no.

(2) If the party's failure is due to the


failure by a third person whom he has
engaged to perform the whole or part of
the Contract, that party is exempt from
liability only if:

2. Neu mot ben khong thiic hien nghia


vu cua minh do ngu'di this ba ma ho nho
thcfc hien toan phan hay mot phen hop
deing cung khOng thu'c hien dieu do thi
ben ay chi du'oc mien tech nhiem trong
Viking hop:

(a) he is exempt under the preceding


paragraph; and

a) Du'oc mien tech chigu theo qui dinh


cua khogn tren, va

(b) the person whom he may so


engaged would be so exempt if the
provisions of that paragraph were
applied to him.

b) Ngu ngu'di this ba cling se coat mien


trach ngu cac qui dinh cua khogn ten
du'oc ap dung cho ho.

(3) The exemption provided by this


article hay effect for the period during
which the impediment exists.

3. Su' mien trach &roc qui dinh tai dieu


nay chi c6 hieu Itfc trong th6i k9 ton tai
tra ngai do.

(4) The party who fails to perform mu6t


give notice to the other party of the
impediment and its effect on his ability
to perform. If the notice is not received
by the other party within a reasonable
ttme after the party who fails to perform
knew or ought to have known of the
impediment, he is liable for damages
resulting from such non-receipt.

4. Ben nao khong thcfc hien nghia vu cua


minh thi phai bao cao cho ben kia bigt vg
trO ngai va anh Wang cua no doi vdi kha
nang thcfc hien nghia vu ngu th6ng bao
kh6ng tdi tay ben kia trong mot thdi han
hop 19 tit khi ben khong thcfc hien nghia
vu de bigt hay clang le phgi bigt vg tra
ngai do thi ho se phai chiu trach nhiem
vg nhCing thiet hai do viec ben kia khong
nhen du'oc thong bao.

(5) Nothing in this article prevents either


party from exercising any right other
than to claim damages under this
Convention.

5. Cac qui dinh cua dieu nay kh6ng can


tra ttlIng ben duct sit dung moi quyen
khac ngoai quygn duct boi thu'Ong thiet
hai chiu theo COng u'dc nay.

Article 80. A party may not rely on a


failure of the other party to perform, to
the extent that such failure was caused
by the first partys act or omission.

Di6u 80. M'Ot ben khOng loot vien den


mot su' kh6ng thvc hien nghia vu cua
ben kia trong chiing mu'c ma ski khong
thu'c hien nghia vu do la do nhling hanh
vi hay so sugt cua chinh ho.

Section V. Effects of Avoidance

Muc V. Hau qua cua viec hui harp d6ng

416

Article 81.

Digu 81.

(1). Avoidance of the contract releases


both parties from their obligattons under
it, subject to any damages which may
be due. Avoidance does not affect any
provisions of the contrract for the
settlement of disputes or any other
provision of the contract governing the
rights and obligations of the parties
consequent upon the avoidance of the
contract.

1. Vigc hug' hop d6ng giai phong hai ben


kha nhCtng nghia vu cua ho,
khogn bOi thutmg thigt hai c6 thg c6.
Vigo hq hop d6ng kh6ng c6 higu lut
d6i veil qui dinh coa hop d6ng lien quan
dgn vigc giAi quygt cac tranh chgp hay
dgn cac quygn loi va nghia vu cCia hai
ben trong trutng hop hop &rig bi huji.

(2) A party who has performed the


contract either wholly or in part may
claim restitution from the other party of
whatever the first party has supplied or
paid under the contract. If both parties
are bound to make restitution the must
do so concurrently.

2. Ben ngo da thitc hign town phgn hay


mot phgn hop d6ng c6 thg doi ben kia
hogn lai nhang gi bo da cung cap hay
da thanh toan khi thifc hign hop d6ng.
Ngu ca hai ben dgu bi bu0c phi thut
hign vigc hogn lai, thi ho phi lam vigc
nay ding mot luc.

Article 82.

Digu 82.

(1) The buyer loses the right to declare


the contract avoided or to require the
seller to deliver substitute goods if It is
impossibte for him to make restitution of
the goods substantially in the condition
in which he received them.

1. Ngutli mua mat quyen tuyen b6 huji


hop d6ng hay doi ngtioi ban phi giao
hang thay the ngu ho khong thd hogn
lai hang hog trong tinh trang vg thkic
chit gi6ng nhu tinh trang khi ho nhgn
hang do.

(2) The preceding paragraph does not


apply:

2. Di& khoe'n ten khong gp dung:

(a) if the impossibility of making


restitution of the goods or of making
restitution of the goods substantially in
the condition in which the buyer
received theln is not due to his act or
omission;

a) Ngu kh6ng thd hogn lai hang hog


hogc khong thg hogn lai hang hog trong
tinh trang ve tht,fc chgt gi6ng nhu tinh
trang khi ngu'ai mua nhgn kh6ng phi do
mot hgnh d6ng hay mot ski so sugt cua
ho.

(b) if the goods or part of the goods


have perished or deteriorated am a
result of the examination provided for in
article 38, or

b) Ngu hang hog hay mot phgn hang


hog kh6ng thd sit dung du'oc hoc bi hu
hong theo kgt qug caa vigc kigm tra qui
dinh tai Digu 38, hogc

(c) if the goods or part of the goods


have been sold in the normal course of
business or have been consumed or
transformed by the buyer in the course
of normal use before he discovered or

c) Ngu truck khi nhgn thgy hay clang le


phi nhgn thgy rang hang hog kh6ng pha
ban toan
hop hop dong, ngtioi mua
phgn hay mot phgn hang hog trong
khu6n kho mot nghigp vu kinh doanh

417

ought to have discovered the lack of


conformity.

th6ng thuting hay da tieu clang hoac bin


d6i toan thg hay mot phgn hang hoa
dung theo thg thilc sit dung binh thudng.

Article 83. A buyer who has lost the


right to declare the contlact avoided or
to require the seller to deliver substitute
goods in accordance with articles 82
retains all other remedies under the
contract and this Convention.

Digu 83. Ngudi mua da mgt quy6n


tuyen b6 huj/ hop (216ng hay dOi ngudi
ban phai giao hang thay tha chigu theo
Di& 82, van duy tri quy6n sit dung biOn
phap bao h0 phap ly khac ma ho ca
theo hop dung va C6ng uric nay.

Article 84.

Digu 84.

(1) If the seller is bound to refund the


price, he must also pay interest on it
from the date on which the price was
paid.

1. Ngu ngudi ban bi buOc phgi hoan lai


gia ti6n, ho cung phai tra tin lai ten
tong s6 cua gia tin do kg tit ngay ngudi
mua thanh toan.

(2) The buyer must account to the seller


for all benefits which he has derived
from the goods or patt of them:

2. Ngudi mua phai tra cho ngudi ban s6


ti6n Wiring diking voi moi loi nhuan ma

(a) if he must make restitution of the


goods or part of them, or

a) Khi ho phgi hoan lai toan thg hay mot


phan hang hoa, hoac:

(b) if it is impossible for him to make


restitution of all or part of the goods or
to make restitution of all or part of the
goods substantially in the condition in
which he received them, but he has
nevertheless declared the contract
avoided or required the seller to deliver
substitute goods.

b) Khi ho khong the hoan lai toan thg


hay mot phgn hang hoa hay khong thg
hoan lam hang trong tinh trang v6 thkic
chat gi6ng nhu tinh trang ho da nhan
mac dau vay ho da tuy8n b6 hop d6ng
bi hu9' hay da doi ngudi ban phai giao
hang thay thg.

Section VI. Preservation of the goods

Muc VI. Bic, quan hang hoa

Article 85. If the buyer is in delay in


taking delivery of the goods or where
payment of the price and delivery of the
goods are to be made concurrently, if he
fails to pay the price, and the seller is
either in possession of the goods or
otherwise able to control their
disposition, the seller must take such
steps as are reasonable in the
circumstances to preserve them. He is
entitled to retain them until he has been
reimbursed his reasonable expenses by
the buyer.

Digu 85. Khi ngudi mua cham tr6 nhan


hang hay khong tra tin hoac trong
nhitng trudng hop khi vigc tra tin va
vi8c giao hang phai duck tign hanh
ding mot 16c, n6u hang hoa con 8 du&
quygn dinh doat hay kiam soat cua
ngudi ban thi ngudi ban phai thut hign
nhitng bin phap hop 19 trong nhang
tinh huOng nhu vay da bao quail hang
h6a. Ngudi ban c6 quy6n gift lam hang
hoa cho tdi khi nao ngudi mua hoan tra
cho ho cac chi phi hop 19.

418

ho da dudc hu'ang tit hang hoa hay mot


phan hang hoa:

Article 86.

Dieu 86.

(1) If the buyer has received the goods


and intends to exercise any right under
the contract or this Convention to reiect
them, he must take such steps to
preserve them as are reasonable in the
circumstances. He is entitled to retain
them until he has been reimbursed his
reasonable expenses by the seller.

1.1\16u ngtki mua (la nhan hang va c


dinh sit dung quygn tit choi khong nhan
hang chigu theo hop d6ng hay Cong
tfac nay, thi ho phai thi hanh cac bian
phap hop 19 trong nhang tinh huong nhu
vay, de bao quan hang hoa. Nguti mua
c quy6n gift lam hang hoa cho tti khi
nao nguti ban hoan tra cho ho cac chi
phi hop 19.

(2) If goods dispatched to the buyer


have been placed at his disposal at their
destination and he exercises the right to
reject them, he must take possession of
them on behalf of the sener, provided
that this can be done without payment
of the place and without unreasonable
unreasonable
inconvenience
or
expense. This provision does not apply
if the seller or a person authorized to
take charge of the goods on his behalf
is present at the destination. If the buyer
takes possession of the goods under
this
paragraph,
his
rights
and
obligations are governed by the
preceding paragraph.

2. 1\161.1 hang ho6 giti di cho ngu'di mua


da dutc dat duti quyan dinh doat cue
ngtki nay tai not dgn va ngu nguti mua
sit dung quygn tit ch6i hang thi ho phai
tiep nhan hang hoa, chi phi do nguti
ban vti digu kian la nguti mua c the
lam viac nay ma khong phai tra tin
hang va kh6ng gap tra ngai hay cac chi
phi kh6ng hop 19. Qui dinh nay kh6ng ap
dung ngu nguti ban hian din tai not
clan hay tai not do c nguti tham quy6n
cid nhan hang hoa cho nguti ban va chi
phi do nguti ban chiu. Nhang quy6n loi
va nghia vu cue ngtki mua khi ngtki
nay tiep nhan hang hoa chigu theo
khoan nay di6u chinh bang qui
dinh tai khoan tren.

Article 87.

Digu 87.

A party who is bound to take steps to


preserve the goods may deposit them in
a warehouse of a third person at the
expense of the other party provided that
the expense incurred is not
unreasonable.

Ben nao bi buOc phai c nhang bin


phap da bao quan hang hoa c the giao
hang vao kho cita nguti th(f ba, chi phi
ben kia phai chiu, vti digu kian la cac
chi phi nay phai hop 19.

Article 88.

Digu 88.

(1) A party who is bound to preserve the


goods in accordance with article 85 or
86 may sell them by any appropriate
means if there has been an
unreasonable delay by the other party in
taking possession of the goods or in
taking them back or in paying the price
or the cost of preservation, provided

1. Ben nao phai bao quan hang hoa


chigu theo cac digu 85 hay 86 c the
ban hang di bang cach thich hop ngu
ben kia cham trA mot cach phi 19 trong
viec tiep nhan hang hoa hay lay lai hang
hoac trong viac tr6 tin hang hay cac
chi phi bao quan, nhu'ng phat thong bao
cho ben kia trong nhang di6u kian hop

419

that reasonable notice of the intention to


sell has been given to the other party.

19, 9 dinh phat mai hang.

(2) If the goods are subject to rapid


detelioration or their preservation would
involve unreasonable expense, a party
who is bound to preserve the goods in
accordange with article 85 or 86 must
take reasonable measures to sell them.
To the extent possible he must give
notice to the other party of his intention
to sell.

2. Neu hang hoe thu6c loci hang f .nau

hang hay viec bAo qu5n no se gay ra


cac chi phi phi 19 thi ben nao c nghia
vu b5o quAn hang hoe chieu theo cac
dieu 85 hay 86 phAi ben hanh cac bien
phap hop 19 de ban hang di. Theo kh5
nang cua minh ho phai thong bao cho
ben kia biet 9 dinh phat mai.

(3) A party selling the goods has the


right to retain out of the proceeds of
sale an amount equal to the reasonable
expenses of preserving the goods and
of selling them. He must account to the
other party for the balance.

3. Ben ban hang co guy& giU trong


khok thu do viec ban hang dem lei mot
s6 tin ngang vdi cac chi phi hop 19
trong viec b5o quk va phat mai hang
hoe. Ho ph5i tri phan con lei cho ben
kia.

PART 4

PHAN THU Tlf

FINAL PROVISIONS

NHCING QUI DINH CUOI CLING

Article 89. The secretary-general of the


United Nations is hereby designated as
the depositary for this Convention.

Digu 89. T6ng thu k9 Lien hiep qu6c

Article 90. This Convention does not


prevail over any international agreement
which has already been or may be
entered in to and which contains
provisions concerning the matters
governed by this Convention, provided
that the parties have their places of
business in States parties to such
agreement.

Digu 90. C6ng utic nay khong inh

Article 91.

Digu 91.

(1) This Convention is open for


signature at the concluding meeting of
the Unied Nations Conference on
Contracts for the International Sale of
Goods and will remain open for
signature by all States at the
Headquarters of the United Nations.
N=ew York until 30 September 1981.

1. Cong utc nay se d6 ng6 cho cac ben


k9 ket tai phien hop be mac dm h6i nghi
Lien hop qu6c ve hop Tong mua, ban
hang hoe qu6c to va se de ng6 cho cac
qu6c gia k9 ket tai try sa Lien hop queic

duoc chi dinh la nvoi giif It.tu chi& b5n


C6ng Ltdc nay.
huang den hieu lut ciia bet k9 mot di6u
utc qu6c tii nao da dul.c hay se du'oc
k9 ket ma bao gam nhitng quy dinh lien
quan d6n cac N./6n d6 la d6i Wong di6u
chinh cua Cong Li& nay, voi dieu kien
la cac ben cua hop d6ng phai c try sei
thuong mai tai cac qu6c gia thanh vien
cua dieu utc qu6c t6 do.

a New York, cho to' ngay 31-11-1988.

(2) This Convention is subject to 2. C6ng6c nay phai dt.toc su phe


420

ratifcation, acceptance or approval by


the signatory States.

chub, chip nhan hay chugn y cac


qu6c gia k9 ten.

(3) This Convention is open for


accession by all States which are not
signatory States as from the date it is
open for signature.

3. C6ng udc nay se nhin sit gia nhap


tit ca cac qu6c gia khong k9 ten, kg tit
ngay C6ng u'oc dg ng6 cho cac ben k9
kit.

ratification,
of
Instruments
(4)
acceptance, approval and accession
are to be deposited with the Secretary
General of the United Nations.

4. Vic phe chugn, chip nhan, chub 9


va tip can phi &roc clang k9 vdi T6ng
Thu' k9 Lien hop qu6c.

Article 92.

Digu 92.

(1) A Contracting State may declare at


the time of signature, ratification,
acceptance, approval or accession that
it will not be bound by Part II of this
Convention or that it will not be bound
by Part III of this Convention.

1. MOt qu6c gia thanh vien c6 thg, vac)


luc k9 kit, phe chub, chip nhan,
chugn y hay gia nhip, tuyen b6 se
kh6ng bi rang buOc phin thct hai, hay
phin tha ba cua Cong udc nay.

(2) A Contracting State which makes a


declaration in accordance with the
preceding paragraph in respect of Part

2. MOt quOc gia thanh vien, chigu theo


di6u khoan ten, du'a ra mot tuyen bO ve
phin thu. hai hay phin thU ba ctiia Cong
udc nay, se kh6ng du'oc coi la mot qu6c
gia thanh vien theo nghia coa khoa'n 1
Dieu 1 dm Cong udc nay ve cac van de
quy Binh trong phgn cua COng tido c
lien quan Ten tuyen b6 do.

II or Part III of this Convention is not to


be considered a Contracting State
within paragraph (1) of article 1 of this
Convention in respect of matters
governed by the Part to which the
declaration applies.

Article 93. (1) If a Contracting State has

Digu 93.1. Ngu mot qu6c gia thanh vien

two or more territorial units in which,


according to its constitution, different
systems of law are applicable in relation
to the matters dealt with in this
Convention, it may, at the time of
signature, ratification, acceptance,
approval or accession, declare that this
Convention is to extend to all its territorial
units or only to one or more of them, and
may amend its declaration by submitting
another declaration at any time.

ma bao gom hai hay nhigu don vi lanh


th6, trong d6 theo hign phap cua qu6c
gia cac hO thong phap luat khac nhau
dudc ap dung cho cac vin a la d6i
tu'ong digu chinh cua C6ng udc nay thi
qu6c gia do c6 thg, vao luc k9 kit, phO
chuan, chip nhin, chugn y hay gia
nhap, tuyen b6 rang Cong udc nay se
ap dung cho tat ca cac don vi lanh th6
hay chi cho mot hay nhi6u don vi va c6
thg bit di luc nao scta d6i tuyen b6 d6
bang mot tuyen b6 khac.

(2) These declarations are to be notified


to the depositary and are to state
expressly the territorial units to which
the Convention extends.

2. Cac tuyen b6 nay se duoc th6ng bao


cho ngudi giCt 1W chigu va trong cac
tuyen b6 nay phai n8ur6 Cong udc du'oc
ap dung tai nhang don vi lanh th6 nao.
421

(3) If, by virtue of a declaration under


this article, this Convention extends to
one or more but not all of the territorial
units of a Contracting State, and if the
place of business of a party is located in
that State, this place of business, for the
purposes of this Convention, is
considered not to be in a Contracting
State, unless it is in a territorial unit to
which the Convention extends.

3. Neu chigu theo mot tuyen b6 di.roc


lam dung theo dr& nay thi C6ng Li&
nay ap dung cho mot hay nhi6u don vi
lanh th6 cUa mot quoc gia thanh vien,
nhu'ng khOng phai cho tat ca, va ngu try
so thuong mai cua mot ben hop dang
clang tai qu6c gia do, thi theo myc dich
cUa COng u'dc nay, try sa thyong mai do
se du'oc coi la kh6ng clang mot qu6c gia
thanh vien, tit khi try so thu'ong mai do
(long tai mot don vi lanh th6 not Cong
tioc duoc ap dung.

(4) If a Contracting State makes no


declaration under paragraph (1) of this
article, the Convention is to extend to all
territorial units of that State.

4. Neu mot quoc gia thanh vien khong


ra tuyen b6 chigu theo khoan mot di6u
nay thi C6ng udc se ap dung cho tat ca
cac don vi lanh th6 cua qu6c gia do.

Article 94.

Di6u 94.

(1) Two or more Contracting States


which have the same or closely related
legal rules on matters governed by this
Convention may at any time declare
that the Convention is not to apply to
Contracts of sale or to their formation
where the parties have their places of
business in those States. Such
declarations may be made jointly or by
reciprocal unilateral declarations.

1. Hai hay nhi6u quoc gia thanh vien,


khi ap dung cac quy tgc phap 19 trong
ty' hay giOng nhau ve nhang van de
thuldc pham vi di& chinh cUa C6ng utc
nay, bgt cif luc nao cung c6 thg tuyen
b6 kh6ng ap dung C6ng u'dc cho cac
hop d6ng mua ban hogc cho viec k9 ket
cac hop d6ng nay trong nhimg truOng
hop khi cac ben c6 try so thu'ong mai tai
qu6c gia nay. Cac quoc gia co the ding
nhau ra tuyen 136 not tren hogc trao cho
nhau nhang tuyen b6 don phu'ong ye
van de nay.

(2) A Contracting State which has the


same or closely related legal rules on
matters governed by this Convention as
one or more non-contracting States may
at any time declare that the Convention
is not to apply to contracts of sale or to
their formation where the parties have
their places of business in those States.

2. Neu mot qu6c gia thanh vien d6i vdi


cac van de du'oc digu chinh bai Cong
utic nay, ap dung cac quy tac phap 19
Wong ty* ho'ac gi6ng voi cac quy tgc
phap 19 cUa mot hay nhi6u qu6c gia
kh6ng phai la thanh vien thi qu6c gia d6
co the bgt cif Itic nao, tuyen b6 rang ban
C6ng udc se kh6ng ap dung cho cac
hop clang mua ban hay cho viec k9 ket
cac hop dang mua ban hay cho viec k9
1(61 cac hop clang nay neu cac ben c6
try so thuong mai tai cac qu6c gia
kh6ng phai la thanh vien C6ng u'dc.

(3) If a State which is the object of a 3. Khi mot qu6c gia lien quan den mot
422

preceding
the
under
declaration
paragraph subsequently becomes a
Contracting State, the declaration made
will, as from the date on which the
Convention enters into force in respect of
the new Contracting State, have the effect
of a declaration made under paragraph
(1), provided that the new Contracting
State joins in such declaration or makes a
reciprocal unilateral declaration.

tuyen b6 duoc lam chigu theo khoan


tr8n sau do tra thanh mot qu6c gia
thanh vien, thi tuyen b6 nay, kd tit ngay
ban Cong Li& nay c6 hi8u luc d6i chigu
theo khoan 1, viii di6u ki8n la qu6c gia
thanh vien m6i d6, chap nhan tuy8n b6
nay hay ra mot tuy6n b6 don phu'ong c6
tinh chat tuong ho.

Article 95.

Digu 95.

Any State may declare at the time of the


deposit of its instrument of ratification,
acceptance, approval or accession that
it will not be bound by subparagraph (1)
(b) of article 1 of this Convention.

Moi quOc gia c6 thd tuyen b6, khi nap


van ban phe chudn, chap nhan, chudn y
hay gia nhap, rang qu6c gia do se
ph6ng IDi rang bu6c be i cac qui dinh tai
doan b khoin 1 di6u thi' nhat cUa Cong
u'dc nay.

Article 96.

Digu 96.

A Contracting State whose legislation


requires contracts of sale to be concluded
in or evidenced by writing may at any time
make a declaration in accordance with
article 12 that any provision of article 11,
article 29, or Part II of this Convention,
that allows a contract of sale or its
modification or termination by agreement
or any offer, acceptance, or other
indication of intention to be made in any
form other than in writing, does not apply
where any party has his place of business
in that State.

Ngu luat cua mot qu6c gia thanh vien


qui dinh hop dor-1g mua ban phai duoc
ky k6t hay xac nhan bang van ban thi
qu6c gia do c6 thd bat cif 16c nao tuyen
b6 chi6u theo di6u 12, rang moi qui dinh
dia cac di6u 11, 29 hay dm phan thit
hai Cong u'dc nay cho phep mot hinh
thCtc khac v6i hinh thac van ban cho
vi8c 1(9 1(81 seta didi hay cham dCrt hop
dong mua ban, hay cho moi chao hang,
chap nhan chao hang hay sct the' hi8n
dinh nao khac se khong ap dung n6u
nhu chi can mot trong cac ben c6 try so
thu'ong mai tai qu6c gia.

Article 97.

Digu 97.

(1) Declarations made under this


Convention at the time of signature are
subject to confirmation upon ratificatton,
acceptance or approval.

1. Cac tuyen b6 duoc lam chigu theo


C6ng u'Oc nay vao luc 1(9 k6t phai duoc
xac nhan khi phe chudn, chap nhan hay
chudn y.

(2) Declarations and confirmations of


declarations are to be in writing and be
formally notified to the depositary.

2. Cac tuyen b6 va stt xac nhan cac


tuyen b6 phai duoc lam bang van ban
va chinh thitc th6ng bao cho ngu'di giii
luu chigu.

effect
takes
declaration
A
(3)
simultaneously with the entry into force

3. Cac tuyen b6 se c6 hi8u luc vao ngay


C6ng u'dc nay bat Tau c6 hi8u ILfc doi
423

of this Convention in respect of the


State concerned. However, a
declaration of which the depositary
receives formal notification after such
entry into force takes effect on the first
day of the month following the
expiration of six months after the date of
its receipt by the depositary. Reciprocal
unilateral declarations under article 94
take effect on the first day of the month
following the expiration of six months
after the receipt of the latest ieclaration
by the depositary.

vdi qu6c gia tuyen b6. Tuy nhien cac


tuyen b6 ma ngudi giil km chigu chinh
thitc nhan duoc sau ngay Cong tido c
hiau kic se c hiau lut vao ngay dau
thang tip theo sau khi hgt mot thdi han
6 thang kg tit ngay ngudi gift km chigu
nhan lam tuyen b6. Cac tuyen b6 don
phuong va ttiong h6 duoc lam chigu
theo Diau 94 se c hiau lut vac) ngay
dau thang tip sau khi hat mot thdi han
6 thang kg tit ngay ngudi giCtAi chigu
nhan duoc tuyen b6 cuoi

(4) Any State which makes a


declaration under this Convention may
withdraw it at any time by a formal
notification in writing addressed to the
depositary. Such withdrawal is to take
effect on the first day of the month
following the expiration of six months
after the date of the receipt of the
notification by the depositary.

4. Bat cu' qu6c gia nao ra mot tuyen b6


chigu theo C6ng Lido nay d6u c thg bat
nao rut lui tuyen b6 do bang mot
friOng bao chit-1h thitc bang van ban cho
ngudi gia km chigu. Su thu hoi nay se
c hiau lut vao ngay dau ,thang ti6p
theo sau khi hat thai han 6 thang kg tit
ngay ngudi gift lu'u chigu nhan duoc
thOng bao.

(5) A withdrawal of a declaration made


under article 94 renders inoperative, as
from the date on which the withdrawal
takes effect, any reciprocal declaration
made by another State under that
article.

5. Rut lui mot tuyen b6 duoc chigu theo


Di6u 94 kg tit ngay co hiau kit cung se
cham &it hiau lut cua moi tuyen b6
tu'ong h6 dia mot qu6c gia khac chigu
theo diau nay.

Article 98.

Digu 98.

No reservations are permitted except


those expressly authorized in this
Convention.

Khong mot bao ktu nao duoc cho phep


ngoai cac bao 1W duoc cho phep bdi
C6ng udc nay.

Article 99.

Di61.1 99.

(1) This Convention enters into force,


subject to the provisions of paragraph
(6) of this article, on the first day of the
month following the expiration of twelve
months after the date of deposit of
ratification, acceptance, approval or
accession, including an instrument
which contains a declaration made
under article 92.

1. C6ng ubc nay se bat dau cc!) hiau kit


phu thuOc vao cac qui Binh cua khoan 6
di6u nay, vao ngay dau thang tigp theo
sau khi hat mot han kSt 12 thang kg tit
ngay van ban phe chuan, chap nhan
chuan y hay gia nhap duoc da trinh kg
ca nhi-trig van ban chi:fa dy'ng mot tuyen
b6 duoc lam chigu theo di6u 92.

(2) When a State ratifies, accepts,

2. Khi mot qu6c gia phe chuan, chap

424

approves or accedes to this Convention


after the deposit of the tenth instrument
of ratification, acceptance, approval or
accession, this Convention, with the
exception of the Part excluded, enters
into force in respect of that State,
subject to the provisions of paragraph
(6) of this article, on the first day of the
month following the expiration of twelve
months after the date of the deposit of
its instrument of ratification, acceptance,
approval or accession.

nhan hay chub y C6ng Ltdc nay hoac


gia nhap Cong ubc sau ngay van bin
phe chub, chip nhan hay chuin y, gia
nhap this mUdi dudc de trinh, Cong udc
ngoai tit khong chip nhan se bat dau
c hieu lyc doi vdi qu6c gia do vdi cli6u
kien tuan tho cac qui Binh khoin 6
dieu nay vao ngay dau thang tip theo
sau khi het mot thdi han 12 thang ice ttt
ngay van bin phe chuan, chip nhan,
chub y hay gia nhap dtioc de trinh.

(3) A State which ratifies, accepts,


approves or accedes to this Convention
and is a party to either or both the
Convention relating to a Uniform Law on
the Formation of Contracts for the
International Sale of Goods done at The
Hague on 1 July 1964 (1964 Hague
Formation Convention) and the
Convention relating to a Uniform Law on
the International Sale of Goods done at
The Hague on 1 July 1964 (1964 Hague
Sales Convention) shall at the same time
denounce, as the case may be, either or
both the 1964 Hague Sales Convention
and the 1964 Hague Formation
Convention by notifying the Government
of the Netherlands to that effect.

3. Moi qu6c gia phe chub, chip nhan


hay chub y C6ng udc nay hay gia nhap
Cong udc va la thAnh vien cua Cong
udc: Luat thong nhit ve 1(9 kat cac hop
d6ng mua ban hang hoa qu6c to lam tai
La Haye ngay 1/7/1964 (C6ng udc La
Haye ngay 1/7/1964) va C6ng udc Luat
th6ng nhit Nie mua, ban hang hda queic
to (Cong tidc La Haye 1964 v6 mua
ban) hoac IA thanh vien coa c6 hai
C6ng tidc La Haye, se phi d6ng thdi
hug' be), tuji trudng hop, C6ng udc La
Haye 1964 ve mua ban hay C6ng Lidc
La Haye ve kji ket hop d6ng hoac ca hai
Cong udc bang cach gCti mot th6ng bao
vdi Chinh phi) Ha Lan Nie viec nay.

(4) A State party to the 1964 Hague


Sales Convention which ratifies,
accepts, approves or accedes to the
present Convention and declares or has
declared under article 92 that it will not
be bound by Part III of this Convention
shall at the time of ratification,
acceptance, approval or accession
denounce the 1964 Hague Sales
Convention by notifying the Government
of the Netherlands to that effect.

4. M6t qu6c gia thanh vien dia COng


udc La Haye 1964 v6 mua ban hang
hoa ma phe chub chap nhan hay phe
chub y C6ng udc nay (tut C6ng udc
Vien 1980) hoac gia nhap Cong udc nay
va tuyen b6 hay da tuyen b6 chigu theo
dieu 62 rang ho kh6ng bi rang bu0c bdi
phin this hai caa Cong udc, se hOy 136
vac) lOc phe chub, chip nhan chub y
hay gia nhap, C6ng udc La Haye 1964
ve mua ban hang hoa bang cach giti
mot thong bao vdi myc (zilch do cho
Chinh phO Ha Lan.

(5) A State party to the 1964 Hague


Formation Convention which ratifies,
accepts, approves or accedes to the

5. Moi qu6c gia thanh vien cOa Cong


udc La Haye 1964 v'e kji kat hop d6ng
ma ph& chuan, chip nhan hay chuan y

425

present Convention and declares or has


declared under article 92 that it will not
be bound by Part Ill of this Convention
shall at the time of ratification,
acceptance, approval or accession
denounce the 1964 Hague Formation
Convention by notifying the Government
of the Netherlands to that effect.

Cong u'dc nay, hoac gia nhep Cong u'dc


nay va tuyen b6 hay da tuyen bo chi&
theo dieu 92 rang ho kh6ng bi rang
bu6c bdi ph6n thO' ba cua Cong t..rdc se
huji b6 vao luc phe chugn, chap nhen
chugn y hay gia nhep, bAn COng u'dc La
Haye 1964 v6 kji ket hop &rig bAng
cach guff mot thong cao vdi muc dich d6
cho Chinh phU Ha Lan.

(6) For the purpose of this article,


ratification, acceptances, approvals and
accessions in respect of this Convention
by State parties to the 1964 Hague
Formation Convention or to the 1964
Hague Sales Convention shall not be
effective until such denunciations as
may be required on the part of those
States in respect of the latter two
Conventions have themselves become
effective. The depositary of this
Convention shall consult with the
Government of the Netherlands, as the
depositary of the Conventions, so as to
ensure necessary co-ordination in this
respect.

6. Vi muc dich cua dieu nay, cac su' phe


chugn, chap nhen, chugn y va gia nhep
Cong u'dc nay cua cac quoc gia thanh
vien cua Cong L.rdc La Haye 1964 v6 kj/
ket hop Tong hay Cong tido La Haye
1964 ve mua ban hang hoa chi bgt d6u
c6 hieu lut kd tit ngay cac th6ng bao
huj/ !DO cua cac qu6c gia d6 d6i voi hai
Cong utic not tren cang se c6 hieu lut.
Ngu'di giCt IUu chi& ban Cong u'dc nay
se thoa thuen voi Chinh phil Ha Lan,
von la ngu'a giCt chi& cac Cong u'dc
. bAo su' ph6i hop can thiOt
1964, cid ci6m
nay.
y6 van

Article 100.

Digu 100.

(1) This Convention applies to the


formation of a contract only when the
proposal for concluding the contract is
made on or after the date when the
Convention enters into force in respect
of the Contracting States referred to in
subparagraph (1) (a) or the Contracting
State referred to in subparagraph (1) (b)
of article 1.

1. Cong u'dc nay gp dung cho viec kji


ket cac hop dong trong nhang tru'Ong
hop khi mot de nghi kji 1(61 hop d6ng
dutic lam vao ngay Cong utic b6t deu
c6 hieu lut hoac sau ngay d6 d6i vdi
cac qu6c gia thanh vien not tai doan a
khoan 1 dieu thO' nh6t hoac d6i vdi qu6c
doan b khoAn 1
gia thanh vien not
dieu thit nhet.

(2) This Convention applies only to


contracts concluded on or after the date
when the Convention enters into force
in respect of the Contracting States
referred to in subparagraph (1) (a) or
the Contracting State refered to in
subparagraph (1) (b) of article 1.

2. C6ng u'dc nay chi ap dung cho cac


hop d6ng du'oc kjr ket vao dung ngay
hoac sau ngay C6ng u'dc bgt dgu c6
hieu
doi voi cac quOc gia thanh vien
not tai doan a kho