Contract Law on Rights of Buyers and Sellers-Samples for Students

Question: Write a Research Proposal on Caparison between CISG and SA Contract law on rights of buyers and sellers to Conformity and notice. Answer: Introduction The sale of goods in South Africa is governed by the South African law of sales. Sale is a form of contract through which a person agrees to deliver free possession of goods to another in exchange of money. The origin for the contract of sale in South Africa is derived from roman consensual contract. Sale is concluded through a simple agreement and no sale can take place without transfer of ownership and a price[1]. The international law in relation to the sale of goods is governed by the United Nation Conventions on the Sale of Goods (CISG). Articles 38 and 39 of the article specifically deal with the provisions related to the examination of goods with respect to the contract of sale. According to section 35 of the Sale of Goods Act the buyers have the right to examine goods in relation to a contract for sale in South Africa. The research will be conducted to do a comparative analysis of the buyers rights in terms of conformity under the South African Law of Contract and the CISG ar ticle 38 and 39. Article 38 and 39 lay down relatively strict rules about the times in which a buyer must inspect goods under a contract and give notice of non -conformity. At the same time article 39 does provide a large window of two years[2]. The research will investigate to what degree is this more or less buyer friendly than the approach under the present South African Contract Law. Research Objectives To analyze the rights of buyers to examine goods under the South African Contract Law To analyze the rights of buyers to examine goods under the CISG To compare the rights of buyers to examine goods in SA law and the CIGS To determine which approach is more buyer friendly Research questions What are the rights of buyers with respect to examination of goods in a contract for sale in SA law? What are the rights of buyers with respect to examination of goods in a contract for sale in CIGS? What is the difference between the rights of buyers to examine goods in SA law and the CIGS? Which of the two approaches are more buyers friendly? Purpose of research Sale of goods is the most common form of trade in both international and domestic market. Both international and domestic laws have provided for certain provisions which give specific rights to the buyer and the seller. The motive of law behind such rights is to maintain equality, fairness and balance of bargaining power between the buyer and the seller. The purpose of this research is to find out whether the South African law for sale of goods is more or less buyer friendly than the CIGS so that it can be amended to obtain better results. Literature Review Introduction This section of the research will analyze the relevant literature available in relation to contract law for the sale of goods. The sections will also identify the existing gaps between the literatures and compare and contrast the different views of the authors. CISG The CISG has been brought to existence in order to provide global guidelines for the sale of goods. According to Schwenzer (2016) when it comes to the sale of goods in relation to the domestic legal system it may be assumed that the relationships between the parties to the contract of sale is established on the basis equal bargaining power along with the equal access to knowledge, however when it comes to cross border dealings the case is not the same[3]. There may be a contract between parties belonging to a developed country with that of parties belonging to an under developed or developing county. The differences in sophistication, unequal bargaining power, along with unequal reach to knowledge are considered, and provide a significant challenge towards drafting a law of sales which establishes balance in power between buyer and seller of different background. conformity Conformity of goods most of the civil law domestic legal systems are largely influenced by Roman law which had been based strictly on the principle of caveat emptor which means let the buyer beware. The liability of the seller is based on any special promise, fraudulent action or any stipulation had been given along with dolus[4]. This provides a clear privilege to the seller. Moreover the complications in various domestic legal systems are high as the systems distinguish between case of non-delivery and cases of Non-conformity. In case the goods in context do not have the attributes in relation to the contract it is treated as aliud through which the rules of non-delivery are triggered and not peius which is in relation to Non-conformity rules[5]. Notification requirements and examination According to Germain a duty to examine the goods has been imposed on the buyer by the CISG along with the duty to provide notice to the seller in relation to non-conformity[6]. In case the buyer is not able to abide by his duties to inspect and notify the seller he would lose any right in case there is a case of non-conformity. The provisions have been one of the most debated sections with respect to the Vienna conference. According to Shin (2016) the representatives of the developing countries have rejected the provisions emphasizing on consequences of the non flexible rule in relation to buyers of such countries. They had also been provided support by countries whose domestic legal systems do not have any notice requirements. The sale of goods Act The legislation is the primary domestic law which governs the sale of goods in the country. The legislation provides that the buyers have the right to the examination of goods as contrary to the duty provided by the CISG. According to Schwenzer the provisions with respect to the sale of goods in SA is prima facie more buyer friendly than that of the CISG[7]. However upon in depth examination of the provisions of CISG it said that this is not the case as it appears. Conclusions The literature which has been identified above along with many other literatures would be considered in the research by the researcher to bring out the literature gap. The conclusion would also contain the point of view of the researcher after the literature has been reviewed. Comparison between CIGS and South African Contract Law A uniform and standard law for the sale of goods in the international market is provided through the United Nations Convention on Contracts for the International Sale of Goods 1980 (CISG). On the other hand the provisions related to the sale of goods in SA are governed by the Sale of Goods Act (SGA)[8]. A buyer is defined as any person purchases or agrees to purchase certain goods. Quality of goods refers to the condition or state of the goods which have been purchased. In contract law conformity of goods means the verification of the purchased goods with respect to the quality which had been decided upon through the contract of sales. According to Section 35 of the SGA when the delivery of goods to the buyer by the seller has been completed and the goods have not been examined previously, the goods would not be deemed to be accepted by the buyer until and unless he is provided with a reasonable opportunity of proper examination of the goods in order to ensure that the quality of the goods is in accordance to the contract[9]. further it is stated by the section that when the delivery of goods is tendered to the buyer by the seller, it is the duty of the seller in case a request is made to provide appropriate opportunity to the buyer for the examination of goods in order to ensure that they are in accordance to the terms of the contract. In case such opportunity is not used by the buyer and the goods are retained it is deemed that the buyer has accepted the goods. On the other hand according to CISG article 38 and 39 lay down relatively strict rules about the times in which a buyer must inspect goods under a contract and give notice of non -conformity. At the same time article 39 does provide a large window of two years. Data Analysis and Discussion There are two types of data analysis, which can be used for the completion of research, namely, quantitative data analysis and qualitative data analysis[10]. For the purpose of this research the researcher would conduct a qualitative data analysis as the data collection method of the researcher is only secondary sources through the use of available literature. Secondary data sources refer to the data that is collected by some other person other than the researcher. One of the advantages of using qualitative data analysis using secondary data sources is that it saves the time the researcher would otherwise spent in collecting the data, in case the researcher had used quantitative data analysis. The use of secondary sources is also a cost-effective process as compared to the usage of primary source of data. The qualitative data analysis has helped the researcher to ensure that the topic is discussed thoroughly and comprehensively. The aim of using qualitative data analysis is to assess the content of the topic and understand the concepts, ideas. The discussion would be based on the findings of the researcher along with the research questions. Conclusion This part of the research would be based on the final conclusion gained by the researcher through the discussion. There have been various studies which have depicted that the domestic legal systems provide a more buyer friendly approach as compared to the international provisions. The main aim of the researcher would be to identify that to what extent are these findings true. The researcher would also provide certain strong recommendations with respect to the findings and towards the establishment of a proper balanced system of rights between the buyers and the sellers References Andersen, Camilla Baasch. "A New Challenge for Commercial Practitioners: Making the Most of Shared Laws and Their Jurisconsultorium."UNSWLJ38 (2015): 911. Christie, Richard Hunter, and Graham Bradfield.Christie's Law of Contract in South Africa. LexisNexis, 2016. Germain, Claire M. "CISG Language and Translation Issues."Browser Download This Paper(2016). Glesne, Corrine.Becoming qualitative researchers: An introduction. Pearson, 2015. Ishida, Yasutoshi. "CISG Articles 38 39 and Japanese Commercial Code Article 526: Examination of Goods and Notice of Non-conformity:" One Month No Prejudice" Test."56 (2015): 1-38. Kroll, Stefan, Loukas Mistelis, and Pilar Perales Viscasillas. "Introduction to the CISG."UN Convention on Contracts for the International Sale of Goods (CISG). Nomos Verlagsgesellschaft mbH Co. KG, 2015. Mackey, Alison, and Susan M. Gass.Second language research: Methodology and design. Routledge, 2015. Panneerselvam, R.Research methodology. PHI Learning Pvt. Ltd., 2014. Sale of Good Act SA Schwenzer, Ingeborg. "Divergent interpretations: reasons and solutions." (2014): 102-119. Schwenzer, Ingeborg. "Ethical standards in CISG contracts."Uniform Law Review22.1 (2017): 122-131. Schwenzer, Ingeborg. "The CISGA fair balance of the interests of the seller and the buyer." (2016): 79-91. Shin, Choong-il. "Review of a United States District Court Decision under the CISG regarding Conformity of Goods."23.3 (2016): 333-362. Andersen, Camilla Baasch. "A New Challenge for Commercial Practitioners: Making the Most of Shared Laws and Their Jurisconsultorium."UNSWLJ38 (2015): 911. Schwenzer, Ingeborg. "The CISGA fair balance of the interests of the seller and the buyer." (2016): 79-91. Schwenzer, Ingeborg. "Divergent interpretations: reasons and solutions." (2014): 102-119 Shin, Choong-il. "Review of a United States District Court Decision under the CISG regarding Conformity of Goods."23.3 (2016): 333-362. Prejudice" Test."56 (2015): 1-38. Germain, Claire M. "CISG Language and Translation Issues."Browser Download This Paper(2016). Schwenzer, Ingeborg. "Ethical standards in CISG contracts."Uniform Law Review22.1 (2017): 122-131 Sale of Goods Act (South Africa) [Christie, Richard Hunter, and Graham Bradfield.Christie's Law of Contract in South Africa. LexisNexis, 2016