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

• 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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