Group 1:

inh Vn Hong
L Duy Hong
Hong Th Nam Phng
Nguyn Vit Thng
Vng Trn Huyn Thi

1211110248
1211110251
1211110524
1211110584
1211110624

TIMING
In negotiating delivery

CONTENTS

Naming the
date
Theory
Delivery time

Delay
Result of
delay

Practice

THEORY

+ Naming the date

+ Timing and Time is of the Essence Clauses
+ Excused Delay and the Grace Period

+ Excused delay and Force Majeure

+ Unexecused Delay and the buyer's Remedies
+ Liquidated Damages and Penalties

NAMING THE DATE

The date of coming into force is the date on which the

last precondition is met.
Common preconditions are:
+ Receipt of import and/or export approval.
+ Receipt of foreign exchange approval from a central
bank.
+ Issuance of a letter of credit or bank guarantee.
+ Issuance of an insurance policy.
+ Issuance of a certificate of origin.

.
THE METHODS TO DEFINE THE DELIVERY TIME

Specific time of delivery:

+ On a specific date: On May 5th, 2012.
+ No later than/Before a specific date: Before May 5th.
+ In a specific period of time: Within 2 months since the
contract date/ From 1st to 20th of August.
Unspecific time of delivery:
+ Prompt delivery: Immediate delivery.
+ Conditional delivery: Subject to the opening of L/C.

TIMING AND TIME IS OF THE ESSENCECLAUSES

+ A judge may decide that time is not of the essence.

+ Late delivery can be bad for the exporter.
+ Delivery takes place on the working day after the agreed

delivery time.
+ Seller has to notify Buyer of the delivery.

EXCUSED DELAY AND THE GRACE PERIOD

Definition: The action of waiving the penalty for a time

period of late delivery.
Advantages:

For exporter: receive payment earlier.

For importer: get the goods on expected time.

EXCUSED DELAY AND FORCE MAJEURE

The exporter may be unable to deliver on time, or at all.

+
+

Natural disasters hurricane, earthquake

Other unavoidable events war, fire or new
government regulations.
Strikes, lockouts and labor unrest

All unavoidable circumstances are called force

majeure

EXCUSED DELAY AND FORCE MAJEURE

The principle behind force majeure is clear

+ The force majeure clause is negotiable: the parties can
decide what excuses and what does not excuse
performance.
+ Any problems the two sides foresee can be mentioned
in the contract.
+ Contracts often regulate the force majeure period

UNEXECUSED DELAY AND THE BUYERS REMEDIES

+ Legal systems cope with the problem of giving the

buyer some remedies for any unexcused delays he
suffers from.
+ If one causes harm or loss to the other, the law will
find a way to mitigate this harm or loss.

LIQUIDATED DAMAGES AND PENALTIES CLAUSES

+ Every contract is subject to some national law.

+ National law fall into two families
+ Common law countries prefer to award damages.

E.g: Dunlop Pneumatic Tyre Co Ltd & New Garage and

Motor Co Ltd (1915) in Singapore
+ Civil law countries usually enforce performance.

LIQUIDATED DAMAGES AND PENALTIES CLAUSES

Liquidated damages
+ To compensate the buyer fairly for any delays in delivery
+ Enforceable everywhere but increase in some legal
systems

A liquidated damages provision will be

enforceable only if, at the time of drafting:
+ Difficultly determine the damages that would accrue
if a contemplated breach occurred; and
+ The amount of the liquidated damages provision was
a reasonable estimate.

LIQUIDATED DAMAGES AND PENALTIES CLAUSES

Penalties
+ To terrorize the exporter into punctual delivery
+ Not enforceable in English law or other common law
systems

LIQUIDATED DAMAGES AND PENALTIES CLAUSES

Quasi- Indemnity
+ To relieve the exporter of liability for delay in
delivery
+ Enforceable everywhere but open to challenge as
"unconscionable"

TRANSLATION

1.Translate into Vietnamese:

The following shall not be a Force Majeure event:
the failure for whatever reason of a computer or other
electronic facility to accept a notification made by a
Seller or a Buyer (other than the CSP) as required by
these terms and the Administrative Procedures.

TRANSLATION

2.Translate into English

Trong trng hp giao chm khng phi do bt
kh khng c nh ngha trong hp ng ny, ngi
bn s tr mt khon tin coi nh l bi thng tn
tht ch khng phi l pht tng s l 0.1% gi tr
hng giao chm trn 1 ngy chm v ln nht l 10%
gi phi tr theo iu 10 di y.

1.The following shall not be a Fore Majeure event : the failure for
whatever reason of a computer or other electronic facility to accept a
notification made by a Seller or a Buyer (other than the CSP) as required by
these terms and the Administrative Procedures.

=>Nhng s kin sau s khng c coi l mt s

kin bt kh khng : s c gy ra bi bt k l do no
khin cho my tnh hoc cc thit b in t khc
khng nhn c thng bo ca ngi bn hoc mt
ngi mua (ngoi CSP) nh c qui nh trong
nhng iu khon hp ng ny v cc th tc hnh
chnh.

2. Trong trng hp giao chm khng phi do bt kh khng c nh

ngha trong hp ng ny, ngi bn s tr mt khon tin coi nh l bi
thng tn tht ch khng phi l pht tng s l 0.1% gi tr hng giao
chm trn 1 ngy chm v ln nht l 10% gi phi tr theo iu 10 di
y.

=>In case of late delivery for the reasons other than

force majeure as defined in this contract, the seller
shall pay as liquidated damages and not as penalty the
sum of 0.1 percent of the value of the late
(undelivered) part per day of late delivery up to a
maximum of 10% of the contract price under Clause
10 here under.

Task 2: Clarify True or False and explain.

1.All late deliveries are considered breaking the contract
and must be compensated.
=> False, in case of excusable delays, it can be acceptable
and not considered breaking the contract.
2. If you order a birthday cake on your birthday 28th
June and the cake arrives on the 29th and you no longer
want the cake, you can legitimately refuse to accept it
whether the contract requires absolute punctuality or not.
=> False. If the contract doesnt require absolute
punctuality, a judge may decide that time is not of the
essence and that the buyer cannot terminate the contract.

Task 3:
Company A, which based in Manila, Philippines,
signed a contract to buy 20000 MT of rice with
company B, which based in Ho Chi Minh City,
Vietnam on 1st December 2013 for sale at Philippines
market in storm season. Which following delivery
time is beneficial for both parties:
A. 10/1/2014
B. 26/2/2014
C. 1/4/2014
D. 20/6/2014

A- Company B does not have enough time to collect a

large amount of rice like 20000 MT.
B- The delivery time is shortly after Lunar New Year
Festival in Vietnam, so it is hard for company B to
deliver in time.
C- Good for both parties. Company A has enough
time to prepare and storm season also does not start
yet.
D- Storm season usually start in May, so the delivery
time is too late for company A.