第九屆財經(jīng)類高校法律職業(yè)技能比賽由中國法學(xué)理事會主辦。此處分享我參賽的法律備忘書寄纵。
案例題目：
Buyer v. Seller
[Buyer] is domiciled inAustria. [Buyer] produces stainless-steel sheet metal, which it then deliversto its customers for further processing. For protection against damage duringtransport and processing, the metal is covered with self-adhesive foil thatmust be fully removed after processing.
The [buyer] has had abusiness relationship for several years with the [seller], who is based inGermany. The [buyer] had in the past repeatedly obtained this type ofprotective foil from the [seller] without complaint.
In March 2005, the [buyer]again ordered 7,500 square meters of foil from the [seller], which wasdelivered on 28 March 2005. According to the contracts, the [buyer] should givethe notice to the [seller] on any defect of the goods no later than 8 daysafter the goods are received.
The [buyer] inspected thedelivery for completeness and exterior imperfections but did not test it.Thereafter the [buyer] used the foil for, among other things, a section ofpolished stainless steel sheet metal, which it then delivered to its customer,Company B.
On 20 April 2005 Company Binformed the [buyer] that after stripping off the foil “the complete adhesiveresidue stuck like an adhesive film on the polished surface.” As a result, the[buyer] notified the [seller] on 21 April 2005 of the contract non-conformity.
Company B cleaned thestainless-steel surface at a total expense of $492,240, which the [buyer] thenreimbursed. The [seller], after inspecting the defect for itself, agreed withthe [buyer]'s notice of defect. To respond to [buyer]’s complaint, the [seller]replied in fax on 29 April 2005 that “we will only consider the legitimatecomplaints based on our breach of contract”. Thereafter, the [buyer] and the[seller] sought in vain to come to an agreement concerning the settlement ofdamages. The [seller] arranged a meeting with [buyer] on 20 May 2005, andoffered to reimburse the [buyer]'s cleaning costs of $16,500, through the freedelivery of 30,000 square meters of protective foil with rubber adhesive. Byletter from its legal counsel dated 22 May 2005, the [seller] proposed theamount of $200,000, one half in cash payment, the other half in performance ofdeliveries.
Thereafter, thenegotiation did not work out, [seller] rejected the amount claimed by the[buyer] as reimbursement for the sum of $492,240, that it had paid to itscustomer, which the [seller] thought as excessive. In the present proceedings,the [buyer] demands reimbursement from the [seller] for the amount of $492,240,which [buyer] paid as compensation to Company B.
CISG is the applicable law.
2. Requirement
If you are the legal counsel for theseller, write a memorandum to defend against the buyer. Please write in English.
案例主要想讓我們把握賣方的行為是否構(gòu)成放棄抗辯權(quán)立美，從而得出判斷權(quán)利放棄的標(biāo)準。我在著重分析賣方行為的同時隘竭，依照此份法律備忘錄的意圖塘秦，另外分析了買方要求賣方賠償損失的不合理性，運用了禁止反言原則动看。
memo
