Внешнеторговый международный контракт: типовой образец, пример контракта, экономические и юридические аспекты - Денис Шевчук

It should also be kept in mind that reference to a particular Incoterm is not sufficient to determine the full legal relationship between parties to a contract of sale. Matters such as breach of contract and its consequences, as well as the difficult problem of ownership of goods, are outside the scope of the trade terms.

The scope of Incoterms is limited to matters relating to the rights and obligations of the parties to the contract of sale with respect to the delivery of goods sold. Their basic purpose is to explain how responsibility, cost and risk should be divided between the parties in connection with the delivery of goods from seller to buyer.

To establish this division, the point at which goods are considered delivered from seller to buyer under the respective terms must be indicated. Normally, at this point (the "critical point"), the obligation to arrange for further transport of goods and to assume further costs and risks is transferred from seller to buyer. Under some trade terms, the "critical points" for the transfer of costs and risks do not coincide.

There are two particular misconceptions about Incoterms:

they are frequently misunderstood as applying to a contract of carriage rather than to a contract of salethey are sometimes wrongly assumed to provide for all the obligations which parties may wish to include in a contract of sale.

These misconceptions are very common although the ICC has always stressed that Incoterms deal only with the relation between sellers and buyers under a contract of sale, and, moreover, only do so in some particular and very distinct respects.

Incoterms 2000

Incoterms 2000 bring the official ICC rules for the interpretation of the most commonly used trade terms in line with the current international trade practices:

recent spread of customs-free zonesincreased use of electronic communications in business transactionschanges in transport techniques.

In their 2000 revised version, Incoterms concentrate on the thirteen most important trade terms and offer a simpler and clearer presentation of them. The use of different expressions to convey the same meaning has been avoided. Moreover, whenever possible, the same expressions as appear in the 1980 Vienna Convention on Contracts for the International Sale of Goods have been used.

The following is the complete list of Incoterms 2000 in their abbreviated form, full form and in a Russian translation.

As is clearly seen from the list, the terms are grouped in four basically different categories:

• the «E» term whereby the seller simply makes the goods available to the buyer at the seller’s own premises. This term represents the minimum obligation for the seller (and the maximum obligation for the buyer).

• the «F» terms FCA, FAS, FOB whereby the seller is asked to deliver the goods to a carrier appointed by the buyer.

• the «C» terms CFR, CIF, CPT, CIP whereby the seller contracts for carriage without taking the risk of loss or damage to goods or additional costs due to events occurring after shipment and dispatch.

• the «D» terms DAF, DES, DEQ, DDU, DDP whereby the seller bears all costs and risks needed to bring goods to place of destination.

The respective obligations of parties under each term are grouped under ten headings. Each heading on the seller’s side has its equivalent on the buyer’s side.

At first glance, it would seem best that each of the contracting parties limit its obligation as much as possible. The seller would then try to negotiate an Ex Works contract while the buyer would try to persuade the seller to deliver goods duty paid to the buyer’s premises. In practice, however, the situation is not that simple. A seller or a buyer cannot easily make a better contract merely by shifting functions, costs and risks to a contracting party. The parties involved will probably be guided by the following criteria:

Market situation

In a highly competitive market, the seller may wish to offer prices to the buyer that are comparable to prices offered in the buyer’s domestic market. The seller would then undertake to deliver the goods using the DDP term. As a minimum the seller would be obliged to arrange and pay for transportation by using the CIF term. One should remember that additional costs and risks accepted by the seller are always reflected in the price.

Control of transport and insurance

In some instances an exporter of large and regular volumes of goods may be in a position to obtain better terms from carriers and insurers than the occasional importer. It may be comparatively simple to arrange the transport in the country of export and the risk of something going wrong will be minimal. In such cases there is really no reason why the seller should limit his obligations under an Ex Works or FOB agreement. He could just as well accept a further obligation to arrange and pay for the carriage and insurance on CIF terms.

Sellers and buyers are not always prepared to accept risk of loss and damage to goods, or the risk of cost increases or circumstances hindering transport, in a foreign country. Under normal conditions of trade between countries with well-organized container ports and comparatively peaceful labour conditions, the risk of political disturbances, congestion in the ports, strikes or interruptions of trade may be minimal. In such cases, the seller may be prepared to assume the risk during transport, and to choose a term in which his responsibilities extend to the arrival of goods at destination (Delivered Duty Paid).

Government involvement

Directly or indirectly, government authorities may guide or even instruct parties in their country to sell on CIF terms and to buy on FOB terms. There are several reasons for this:

• trade terms constitute an important tool for directing the flow of goods to national shipping lines or other national carriers. They can also be used to promote the domestic insurance market.

• saving foreign currency. A seller who has undertaken to pay for carriage and insurance will include these costs in his price, and thereby obtain more foreign currency. On the other hand, a buyer who has assumed these costs will pay less for the actual goods, and may sometimes be able to pay for transportation and insurance services in domestic currency.

Use of exception clauses

It must be remembered that trade terms extending the seller’s obligations to delivery in the buyer’s country will not only mean additional costs for the seller but also additional risks. The risk of loss of goods or damage is perhaps not primarily important, since it is normally covered by cargo insurance.

Risks of cost increases and hindrances of various types are much more serious. Unforeseen events – such as the imposition of duties, other government interventions, labour disturbances, war or warlike operations – may put a heavy burden on the seller.

To a certain extent such risks may be modified and divided between the parties under terms other than Incoterms. Depending upon their wording, these terms may provide more or less protection; such protection, however, is seldom complete.

In view of the importance of Incoterms for international trade, we quote here five most frequently used terms from the ICC Incoterms 2000 (ICC publication № 560): EXW, FOB, CIF, CIP, DDP. In the following, each of the five Incoterms is briefly described, highlighting the main obligations of seller and buyer. The sections "The seller’s obligations"/ "The buyer’s obligations" serve at the same time as a checklist.

EXW, EX WORKS (…named place)

"Ex works" means that the seller delivers when he places the goods at the disposal of the buyer at the seller’s premises or another named place (i.e. works, factory, warehouse, etc.) not cleared for export and not loaded on any collecting vehicle.

This term thus represents the minimum obligation for the seller, and the buyer has to bear all costs and risks involved in taking the goods from the seller’s premises.

However, if the parties wish the seller to be responsible for the loading of the goods on departure and to bear the risks and all the costs of such loading, this should be made clear by adding explicit wording to this effect in the contract of sale. This term should not be used when the buyer cannot carry out the export formalities directly or indirectly. In such circumstances, the FCA term should be used, provided the seller agrees that he will load at his cost and risk.

The Seller’s obligations

A1 Provision of goods in conformity with the contract

The seller must provide the goods and the commercial invoice or its equivalent electronic message, in conformity with the contract of sale and any other evidence of conformity which may be required by the contract.

A2 Licences,authorizations and formalities

The seller must render the buyer, at the latter’s request, risk and expense, every assistance in obtaining, where applicable, any export licence or other official authorization necessary for the export of the goods.

A3 Contracts of carriage and insurance

a) Contract of carriage

No obligation.

b) Contract of insurance

No obligation.

A4 Delivery

The seller must place the goods at the disposal of the buyer at the named place of delivery, not loaded on any collecting vehicle, on the date or within the period agreed or, if no such time is agreed, at the usual time for delivery of such goods. If no specific point has been agreed within the named place, and if there are several points available, the seller may select the point at the place of delivery which best suits his purpose.

A5 Transfer of risks

The seller must, subject to the provisions of B5, bear all risks of loss of or damage to the goods until such time as they have been delivered in accordance with A4.

A6 Division of costs

The seller must, subject to the provisions of B6, pay all costs relating to the goods until such time as they have been delivered in accordance with A4.

A7 Notice to the buyer

The seller must give the buyer sufficient notice as to when and where the goods will be placed at his disposal.

A8 Proof of delivery,transport document or equivalent electronic message

No obligation.

A9 Checking – packaging – marking

The seller must pay the costs of those checking operations (such as checking quality, measuring, weighing, counting) which are necessary for the purpose of placing the goods at the buyer’s disposal.

The seller must provide at his own expense packaging (unless it is usual for the particular trade to make the goods of the contract description available unpacked) which is required for the transport of the goods, to the extent that the circumstances relating to the transport (for example modalities, destination) are made known to the seller before the contract of sale is concluded. Packaging is to be marked appropriately.

A10 Other obligations

The seller must render the buyer at the latter’s request, risk and expense, every assistance in obtaining any documents or equivalent electronic messages issued or transmitted in the country of delivery and/or of origin which the buyer may require for the export and/or import of the goods and, where necessary, for their transit through any country.

The seller must provide the buyer, upon request, with the necessary information for procuring insurance.

The Buyer’s obligations

B1 Payment of the price

The buyer must pay the price as provided in the contract of sale.

B2 Licences,authorizations and formalities

The buyer must obtain at his own risk and expense any export and import licence or other official authorization and carry out, where applicable, all customs formalities for the export of the goods.

B3 Contracts of carriage and insurance

a) Contract of carriage

No obligation.

b) Contract of insurance

No obligation.

B4 Taking delivery

The buyer must take delivery of the goods when they have been delivered in accordance with A4 and A7/B7.

B5 Transfer of risks

The buyer must bear all risks of loss of or damage to the goods

• from the time they have been delivered in accordance with A4; and

• from the agreed date or the expiry date of any period fixed for taking delivery which arise because he fails to give notice in accordance with B7, provided, however, that the goods have been duly appropriated to the contract, that is to say clearly set aside or otherwise identified as the contract goods.

B6 Division of costs

The buyer must pay

• all costs relating to the goods from the time they have been delivered in accordance with A4; and

• any additional costs incurred by failing either to take delivery of the goods when they have been placed at his disposal, or to give appropriate notice in accordance with B7 provided, however, that the goods have been duly appropriated to the contract, that is to say, clearly set aside or otherwise identified as the contract goods; and

• where applicable, all duties, taxes and other charges as well as the costs of carrying out customs formalities payable upon export.

The buyer must reimburse all costs and charges incurred by the seller in rendering assistance in accordance with A2.

B7 Notice to the seller

The buyer must, whenever he is entitled to determine the time within an agreed period and/or the place of taking delivery, give the seller sufficient notice thereof.

B8 Proof of delivery,transport document or equivalent electronic message

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