INTERNATIONAL LAW OF BUSINESSES 2.

Run exempted by Dr. Boniface BANAMBA

PRINCIPAL CONTRACTS INTERNATIONAL TRADE.The operations of the international trade are tied and untied mainly within the

framework of the contracts which, on the international level increasingly many and are diversified.Among the contracts international trade, one clearly needs a broad place for the international sale which is the most current operation.Account should be held at the same time contract of carriage because the international sale is accompanied by the sales by the things, of a carriage of goods.It is the same with regard to the insurance which is always present in the sale contracts.

In addition, other contracts could be evoked since the international trade is not reduced any more to many exchanges, one thinks of:

Contract of financing and guarantee (credit on security, guarantee with first request, the supplier credit, the purchasing credit, the international leasing or international leasing, factoring or international factoring); One can also think of the international contract of intermediation (international contract of agency, contract of commission, broking, sponsoring); Contracts of distribution (the exclusive concession, the international frankness or the franchising);Contracts of technology transfer (contract of communication of the know how or knowledge to make, the technological contract of assistance);Contracts relating to the markets of construction (a principal contract and contracts of subcontracting);The contract of international employment.

The principal contracts which we will treat are:TITRATE I:The INTERNATIONAL SALE AND The CONTRACTS IN

CONNECTION WITH The SALE CONTAIN II:SOME PARTICULAR CONTRACTS DREGS WITH THE

FINANCING OR THE TRANFERT OF TECHNOLOGY But before we will examine in the preliminary chapter the current clauses in the

international contracts.

CHAPTER PRELIMINAIRE:CURRENT CLAUSES IN THE INTERNATIONAL CONTRACTS

The analysis of the practice of the commercial contracts makes it possible to identify a certain number of usual clauses.Certain clauses are specific to the internal

contracts.In all the cases, their effectiveness depends on the law applicable to the contract.Thus, apart from the preamble, the clauses relating to management qualified, the arbitration clauses, the clauses of choice of the applicable duty, one can quote like current clauses:

1) CLAUSES OF CONFIDENTIALITE Still called clauses of secrecy, discretion or nondisclosures which have the aim of

protecting a secrecy which will be revealed with a potential or real partner.This type of clause covers at the same time the précontractuelle period and especially the post-contractual period.

These clauses make it possible to avoid the risks which are related to the rights of the various countries with regard to the modes of repair of the damage born of the disclosure.However, some is the applicable duty, the international contractual practice shows that these clauses lay down the object of the obligation of confidentiality, i.e. in these clauses one will find infos which will be to regard as confidential.Moreover, one will find, the people subjected to the obligation, the duration of the obligation of confidentiality and the sanctions in the event of nonrespect of the obligation of confidentiality.

The clauses of confidentiality are generally present in the contracts where the secrecy is an element of success;it will be the case in the contracts of research, of transfer to know to make, technical aid.

2) The CLAUSES Of CONCURRENT OFFER, OF The CUSTOMER MORE SUPPORTS AND FIRST REFUSAL

It is about a whole of clauses which make it possible to adapt the contract to the change of circumstances related to the effective or possible intervention of the parts to the contract.

The effectiveness of these clauses can be limited in the event of application of the respect of the word given (pacta sunt servanda).

- The clause of the concurrent offer It allows a part which can be for example the purchaser to put forward near his

contractor, the more favorable offer of a third on the object of the contract in progress.In this case, contracting for example the salesman has an option, that is to say it agrees to align himself on the concurrent proposal and in this case the contract continues in the new conditions;either it refuses and the recipient of quoted by the third (the purchaser) can conclude with the third.In this case the initial agreement which was suspended from now on is cancelled.

- The clause of the most favoured customer It obeys the same concern, it is remainder frequent in the same type of

contract.According to this clause a part with a contract begins to make profit with its partner conditions more favorable than it would grant a third in a similar contract.

- The clause of first refusal

It appears as an alternative form with the clause of the concurrent offer.Indeed, according to this clause, a part begins towards the recipient of the clause to propose to him in the future to carry out together an operation determined before concluding this one with a third.In the event of refusal of the recipient to carry out the operation, the committed part is from now on free to conclude with a third.

3) CLAUSES OF BEST EFFORT, RESONNABLE CARE, OF DILIGENCE

They make it possible the parts to fix by contract contours of the obligation, to reduce it to the obligation means.They are present in the contracts of distribution where they envisage the obligation of the distributor to ensure the sales promotion of its product.

4) LIMITING CLAUSES OR EXONERATIVE OF RESPONSIBILITY These clauses take an increasing importance in the international trade.And that

because of a multiplication of the assumptions of responsibility.It is however necessary to distinguish between the total exemption clauses from responsibility (clauses of irresponsibility) which is seldom used in the international trade and not easily allowed by the legislation of the State, and the limiting clauses for the responsibility which are more frequent and allowed without certain conditions.

5) CLAUSES OF CAUSE BEYOND CONTROL AND HARDSHIP (OR OF SAFEGUARD)

There is currently an attempt at coding of the various clauses.The clauses of cause beyond control and hardship take into account the supervening of unforeseen events.

The clause of cause beyond control relates to a case of inexecution of contract related to an event which prevents the execution of the contract completely.

The clause of hardship relates to a context of more expensive execution of the contract or to a context of imbalance of the contract related to the supervening of an unforeseen event.

It should be understood that the setting concerned of the clause hardship is carried out if the unforeseen event without making impossible the execution of the contract modifies the economic equilibrium of it in favour of a part.The objective of the clause of hardship is to make possible the renegotiation of certain provisions of the contract in the event of supervening of unforeseen events.

The clause of cause beyond control preserves the partner weakening of the payment of the damages following the inexecution of the contract related to the unforeseen supervening of event.However the inexecution of the contract does not prohibit with the renegotiation of the contract.The clause of cause beyond control makes it possible the parts to renegotiate the contract when that is possible.

In practice current international contractual, the two types of clauses tend to being confused since they can have in certain cases the same effect.The structure, or the formulation of these clauses is often the same one.One finds there a definition of the components of cause beyond control or being able to involve an imbalance which

requires negotiations;obligations within a certain time to communicate to the other part supervening of an event of cause beyond control or being able to cause a contractual imbalance and finally consequence related to the events which have occurred (renegotiation, suspension of the contract).

6) CLAUSES PREVOYANT OF The DAMAGES IN THE EVENT OF RUPTURE Of A PART AND CAUSES PENALE

Under the terms of these clauses, the failure of a part in the execution of an obligation which falls on to him or the delay in this execution puts at the load of the failing part, the obligation to pay an amount of money fixed beforehand by the parts.The difference between the two clauses comes owing to the fact that the clause laying down of the damages in the event of rupture of the contract constitutes the amount of the damages on the assumption of the inexecution of the contract whereas in the penalty clause there is an idea of penalty, one wants to protect, ensure, safety in the execution.

7) CLAUSES RELATING TO THE OBLIGATIONS SURVIVORS WITH THE CONTRACT AND CLAUSES OF SURVIVAL OF THE

CONTRACT The first apply in the event of suspension of the contract whereas the seconds

have the aim of prolonging in the time of the contractual relations which must be normally completed.The clauses relating to the obligations surviving the contract has as an aim:

- The liquidation of the contractual liability:it can take the form of a clause of stock of the restitutions of documents and materials various, of a clause of treatment of the pending orders.

- Prolongation of the contractual obligations:one can have a clause of nonuse of the knowledge to make, noncompetition, confidentiality.

The clauses of survival of the contract borrow largely from the internal contracts.It can be a question of clause of prolongation or clauses of renewal of the contract.

- The clauses of prolongation allow ressusciter the expired contract.They are often inserted in the contracts into given duration

- The clauses of renewal or renewal of the contract allow the concluding of a new contract.

TITRATE FIRST:THE INTERNATIONAL SALE;THE CONTRACTS DREGS With The INTERNATIONAL SALE OF The GOODS

The international sale contract of the goods is the contract more in sight but there exists beside these contracts related to the first in which some exceptions could be retained.

CHAPTER I:THE INTERNATIONAL SALE CONTRACT OF THE GOODS

The international sale of the goods is regulated, organized by the convention of comes from April 11, 1980, this convention unifies the rules as regards sale contract of the goods, just as the rules relating to the effects of the sale contract. In addition to the convention of it comes is necessary to indicate that uniform act OHADA bearing general commercial law, in its book V treats sale of the goods, it as should be said as the right of the sale is subjected for the use of the international trade, which has a use particular in the fields of the goods with the intervention of Incoterms.

Two points deserve to be considered:formation or the construction of the sale contract on the one hand, effects of the international sale contract of the goods on the other hand.

SECTION I:FORMATION AND THE CONSTRUCTION OF THE SALE CONTRACT ACCORDING TO COVENTION'S OF VIENNA OF 1980

PARAGRAPH I:FORMATION OF THE SALE CONTRACT A priori the formation of the sale contract does not raise difficulties, because there

is a principle according to which the sale east concludes as soon as there is agreement on the thing and the price.However it is necessary that there is final agreement on the points of the negotiation;it will be said for example that there is agreement when the proposals made by one of the parts are accepted by the other part.

On the other hand if the purchaser answers the proposals of the salesman by against proposals, there will be agreement if those were accepted by the salesman.Usually there is a negotiation between the parts with proposals, the purchaser can make against proposals to react to the offer or the proposal of the salesman, but these against proposals can be inserted in the final agreement only into the condition of being accepted by the salesman.

Beyond all that, the normal principle as regards sale is that this one is perfect as soon as there is agreement on the thing and the price, but this principle suffers from a certain number of exceptions, it is thus when the law provides that the purchaser taking into account the weakness of his position can reconsider on his acceptance or his adhesion to the contract.

Indeed there are contracts in which the law grants a time to the purchaser to reconsider acceptance to which was quoted to him.The whole of the rules which protect the purchaser find in the consumer.

In certain cases still the law imposes complementary conditions for the validity of the contract.Example:the law can require a writing so that this contract is to regard as valid (solemn contract).

PARAGRAPH II:THE CONSTRUCTION OF THE SALE CONTRACT

The sale of the goods can be done by reference to general conditions or reference to a standard contract (in reference to the branch of industry).The sale can also be built by reference to Incoterms:they are especially in this case the maritime sales (which are accompanied by maritime transport).

Uniform act OHADA bearing commercial law envisaged these various methods of construction of the sale contracts, can that according to article 207 of the uniform act, the parts can refer in the sale contracts to the provisions of the uniform act itself, or with the professional uses of which they were informed or should have been informed and who, in the trade largely known and are regularly observed by the parts with contracts of comparable nature in the commercial branch considered.

Before examining the various methods of construction of sale contract, it is significant to study the general principles as regards sale.

General principles as regards sale.Apart from the cases where a writing can be required, the international sale

contract of goods is formed by the assent of the parts, it thus acts of a consensual contract, the change of assent was regulated by the convention of comes from 1980, but same convention treated validity of the assents neither of the object of the contract, nor of the capacity to parts to contract.

I the assent We will examine the exchange of assent on the one hand and the validity of assent

on the other hand The exchange of assent

The assent appears by the offer of the salesman and the acceptance of the purchaser.According to the convention of comes, acceptance is valid at the time when it arrives at the author of the offer (theory of the reception) the same system is envisaged by uniform act OHADA.

However if under the terms of the formulation of the offer and the practices which were established between the parts or of the uses, recipients of the offer, which can indicate that it accepts it by simply achieving an act referring to this one.

Example:by paying the price without communicating its acceptance, this one is valid and takes effect at the time when this act is accomplished in the condition where this one is accomplished within the deadlines indicating in the offer or the deadlines indicating the circumstances.

A valid offer must be accepted immediately, except if there are circumstances indicating the contrary solution.

Validity of the assent.It was not regulated by the convention of comes, uniform act OHADA envisaged

provisions relating to the validity of the assent, in the same way the internal laws treat question of the validity of the assent, and the assent is regarded as valid if it were not given by errors or if it were not given following violence or if it is not a consequence of

the fraud (it consists in causing an error on a person following several fraudulent schemes which can cause the will of the assent)

II capacity of the parts Within the framework of an international contract, the question of the capacity is

solved by the determination of the applicable law of the contractors, normally the capacity in an international contract is subjected to the national law of the individual, and in theory this law is different from the law applicable to the contract.

III the object of the contract The object of the contract must be licit (the contract is not contrary with the law)

in comparison with the national laws of all the countries with which the contract has a bond, in particular the countries of export and importation of the goods object of the contract, in these countries the goods should not be struck of prohibition

B VARIOUS MODALITES OF The SALE OF The GOODS The international sale contract can be concluded by reference to the general

conditions from a sector which are worked out by professional organizations or by public international institutions (UNCTAD) or deprived (CCI), the general conditions then constitute true standard contract whose contents summarize the principles respected by each corporation or each branch of industry, the interest of these standard contracts is that their contents are largely known and that there is no here confrontation between the conditions of salesman and the conditions of purchaser can that in all the ways the commercial conditions are carried out inside a branch of industry and the same operators are érateurs se trouvent tantôt commesalesman, sometimes as purchaser.

Insofar as the standard contracts are concretely imposed by the strongest part by contract, it happens that the courts intervene to correct the effects of the provisions of which the weakest part could not have appreciated the range, thus he was judged that: not written the clause is declared stating that a late delivery cannot in no case to constitute for the purchaser, a reason for cancellation of convention or to even give place to an unspecified allowance.

(the annulment of a contract is a sanction which destroyed the contract not only for the past but for the future when the engagement of the contract was not respected (instantaneous contract one opposes it).The cancellation of the contract is a sanction which cancels contract only for the future, one opposes it to the nullity (contract which was not validly formed);(contracts with successive execution))

Generally famous the provisions of the general conditions are not written which envisage an exemption of total responsibility for the salesman, the general conditions have the advantage which they are generally known even if there is a part who dominates another, it is however significant to specify that the parts with the contract are free to contract in the condition that the contractors do not violate the law and order. Example of the sale contracts of the human bones, organs human, of the narcotics.Technically it is preferable to have always recourse to the general conditions, and the identification of the part weak is easy because it is that which often does not have the

choice (contract of adhesion), one can still build a contract on the basis of Incoterms, they are expressions used by the operators international trade to define the main part of the obligations of the parts in a sale contract, these terms were recognized like universal application by the international Chamber of Commerce of the 1936;periodically the incoterms are the subject of an adaptation so as to be as close as possible practice reality to the international trade last revision 2010.The recourse to Incoterms is optional but once that the choice of Incoterms is made it fixes the will of the part on the points envisaged by the incoterms, it can be even done that the incoterms apply while at the same time any reference was not made in the contract, it is the case when the uses of the branch of activity causes some requires it.Incoterms (there are 11 in all of them) do not regulate all the points of the sale contract but only the points that the international practice organized or standardized;for this reason the field of application of Incoterms is less wide than that of the standard contracts, makes Incoterms of it are satisfied to settle the technical questions, it acts mainly of the question of the transport of the goods, transfer of the risks, the question of the expenses to pay and also question of the insurance.

Incoterms also make it possible to determine on which part the obligations such as those weigh to provide the licences of export or importation, or the exigible types of insurance, on the other hand Incoterms do not treat the question of law applicable to the contract, this is why one says that Incoterms are not sufficient to allow the construction of the whole of a contract, also the points not approached by Incoterms must be treated by the provisions particular of the contract, or in accordance with the regular commercial practices or the general conditions to which the parts have refers.

SECTION II:EFFECTS OF THE INTERNATIONAL CONTRACT OF SALE OF THE GOODS

The sale contract of goods produces effects with regard to the parts and thirds, there are obligations which are particular with one or the other part with the sale contract, whereas other obligations or effects are common to both parts;in addition, the sale contract is accompanied by a transfer of property and risks, finally it can happen that the parts with the contract does not carry out these obligations.

PARAGRAPH I:PARTICULAR OBLIGATIONS A EACH PART TO The INTERNATIONAL SALE CONTRACT OF GOODS.

The obligations are different according to whether one is a salesman or purchaser.Has obligations of the salesman

Three obligations weigh on the salesman - obligation of delivery of the goods:to deliver the goods is to place them

at the disposal of the purchaser and this delivery is done with the place envisaged with the contract, or failing this with the place where the salesman had are establishment at the time of the conclusion of the contract or during the handing-over to the first conveyor for transmission with the purchaser when the sale contract implies the carriage of the goods.if the salesman gives the goods to a conveyor certain obligations weigh on him, in addition the salesman must deliver the goods to the date fixed by the contract, by defect

at the date which can be to determine by reference to the standard contract that the parts used or within the times envisaged with the contract, unless it does not result from the circumstances where it is the purchaser who must choose a date.In all the cases the salesman must deliver the goods within a reasonable time starting from the contract signature.

- Obligation to give the documents:the salesman can be held to give the documents referring to the goods and it carries out this obligation in the forms place and moment envisaged with Doc.

- Obligations of guaranteed conformity:it means that the salesman must deliver the goods of which quality and the type answer what is envisaged in the contract and of which packing or conditioning correspond to that which is included/understood in the contract;it is said that the goods are in conformity with the contract if they are in conformity with the uses to which the goods of this type are usually useful, if they are specific to such special use which was expressly or tacitly made available of the salesman at the time of the contract signature, if they have qualities of goods that the salesmen presented at the purchaser like model or sample.

In addition the salesman is not responsible for the defect of conformity relating to the use general or special of the goods which the purchaser knew or could not be unaware of out put the case where the salesman is insincerely (he knew or could not be unaware of the defect of conformity and did not reveal it with the purchaser).However the purchaser can prevail himself of the defect of conformity only in certain conditions

- He examined or made examined goods within a time as short as possible taking into account the circumstances;

- He denounced the defect of conformity by specifying the nature of the defects within a reasonable time as from the moment when he noted it or should have noted it;

- The salesman must deliver the free goods of straight or claim of the thirds unless the purchaser does not agree to take the goods under these conditions.

B obligations of the purchaser The purchaser has the obligation to specify the goods to give further information

which makes it possible to identify the goods.He has moreover the obligation to pay the price in the terms envisaged by the contract i.e. with the place indicated in the form by contract envisaged (cheque, bill of exchange, draft…) to the expiry envisaged according to laid down methods' (i.e. a payment in only one, or spread out) and in the currency of payment envisaged in the contract.

Finally the purchaser has the obligation to take delivery of the goods and it must do it within the times indicated.

PARAGRAPH II:OBLIGATION COMMON TO The PARTS

It is about the obligation to preserve the goods by that which has this one at its disposal.

PARARAGRAPHE III:THE TRANSFER OF PROPERTY AND RISK The transfer of risk and the sold thing is related on the handing-over of this thing

or the delivery of this one.The transfer of the risks is not always related to the transfer of property.There is thus actually to distinguish the general case, the case where the sale contract implies the carriage of the goods or the case where the goods are sold in the course of transport.

A) The general case It is the case where the sale does not imply a transport and where the goods are

not sold in the course of transport.The risks in this case are transferred to the purchaser when it withdraws the goods or when it does not withdraw it in time.The risks are transferred as from the moment when the goods are placed at its disposal and where it makes an infringment (refusal to carry out the contract) with the contract by not taking delivery of the goods.

If the sale relates to the goods not yet individualized one considers that the goods were availability of the purchaser only when they were clearly identified in accordance with the contract.

B) The goods are sold during transport It y' has several solutions which arise according to the circumstances:

In theory, the risk is transferred to the purchaser as soon as the contract is concluded;

The risks are the responsibility of the purchaser as from the moment when the goods were given to the conveyor who gave the docs noting the contract of carriage;

If at the time of the conclusion of the sale contract, the salesman were informed or would have shown that the goods would have been deteriorated and that it did not inform the purchaser of this fact of the loss or of the deterioration of the goods the risk is the responsibility of the salesman.

Ultimately, it should be retained that all depends on the duty applicable to the sale contract of the goods.It should be noted on this subject that any International Convention treats sale of the goods, like principal convention, we have: the convention of Vienna of April 11, 1980 and the uniform act of the bearing OHADA general commercial law (livre5).The convention of comes does not govern the operation by which a consumer buys goods for his personal needs, family or domestic.

Same manner, provisions of book 5 of the uniform act of the OHADA, which treat sale does not apply to the sale or the purchase carried out by a private individual for his personal needs, family or domestic.

The convention of Vienna does not govern the goods bought with the biddings or the goods sold after a seizure ordered by a qualified public authority.The convention of

Vienna does not apply to the sale of the transferable securities, it does not apply either to the commercial drafts, bill of exchange, note promissory, currency with the sale contract of the ships, the sale of the aircraft (planes, helicopters) to the sale of electricity or water.

On all the types of sale has been just quoted uniform act OHADA has the same position, which obliges us to thus define what it is necessary to understand by goods within the meaning of the convention of Vienna and uniform act OHADA.These two aim at the goods;food products, manufactured goods.... In general the word goods reference with the concept of personal property or tangible (any good which can be transported or touched)

In the uniform act, it is specified (article 202) which the contract of goods concerned must be formed between tradesman that he is person or entity.The act does not apply to the sales with the consumers.One understands by consumer within the meaning of the law, the person who acts with an aim which does not enter within the framework of its professional activity.

The uniform act excludes also the contracts in which the dominating share of the obligation of the part which provides the goods consists in a supply of labour or other services.It is the case where the salesman must place at the disposal a person for the training of the use of these goods.(what it sells).If the essential share of the contract is the supply of the service, this contract east excludes from the field of the uniform act.EXAMPLE: In a contract having for object the sale of a machine and the formation by the salesman, for the user of the machine it should be appreciated if the formation constitutes or not the dominating share in the contract concludes.

If the formation does not constitute a dominating share, the contract concludes is well a sale contract of goods subjected to the uniform act.A particular problem relates to the convention of Vienna, it is that of its field of application in space.Indeed, the convention of Vienna specifies that it applies to the international sale contract and this convention defines the cases in which it considers that it ya an international contract.According to this one these provisions apply:

When the salesman and the purchaser are established in different States which ratified all this convention.

When the indicated law is by the parts, or by the judge is that of a State which ratified convention.In this case the applicable law it is the convention of Vienna.

Uniform act OHADA for its part does not distinguish between the international contract and the internal contract.

PARAGRAPH IV:The INEXECUTION OF The OBLIGATIONS BY The PARTS

The convention of Vienna envisages a whole of provisions whose object is to regulate the cases of inexecution by the parts of their obligations.One finds two types of provisions on this point:it ya of the general provisions which can be regarded as normal sanctions.One finds also provisions specific which are sanctions touching specifically

each part, but one finds also causes of exemption of the responsibilities (i.e. causes excluding the person in charge for one or the other from the parts)

A) General provisions The convention of Vienna and even the uniform act envisage the whole of the

preventive measures at the disposal of each part to the sale contract.Thus a part can require of the judge to authorize it to differ, the execution of its obligations when it appears to him as of the conclusion that the other part will not carry out an essential part of its obligations of the fact for example of its insolvency, because of a serious insufficiency in its capacity of execution, and finally, for example if the other part reveals a particular manner in which it is on the point of carrying out or carries out the contract. If before the date of execution, it appears obviously that a part will make a failure with its obligations, the other part can require of the court compétant to pronounce the resolution of the contract.

Finally in the successive contracts with execution, in the event of inexecution by one of the parts of an obligation relating to a delivery, thus constituting a failure essential with the contract, the other part can ask for to the judge the cancellation of this contract.When it appears after the contract signature that the other part will not carry out its obligation, its Co contracting has the right to take protection measures;thus, if the salesman already dispatched the goods, it can be opposed so that this one is given to the purchaser, even if the latter is in possession of Doc. enabling him to obtain the goods.However, the part with the sale contract which differs the execution from its obligation, must take a certain number of precaution.Thus it must immediately address a number of precaution to the other part a notification.It is obliged to carry out its own obligations if the other part gives sufficient insurances of good execution.

According to article 72 of the convention of Vienna, if before the date prescribed for the execution of the contract, the other part notes that obviously, its partner, is likely to violate an essential obligation of the contract, this part can lose the initiative to solve the contract.It must at the same time if it has necessary time to notify with the other part its intention to make it possible this one to give sufficient insurances of good execution.The notification is not necessary if the other part declared that it will not carry out its obligation.

B) Sanctions The inexecution of the contract by one of the parts makes it possible the victim

of the damage to require damages when it east establishes that such an inexecution caused an injury to him. The payment or the complaint of the damages is independent of the other means which the victim part can use to make sanction failing Co contracting. Article 45 of the civil code, article 263 of uniform act OHADA.

The damages are not due if the failing partner can call upon an exemption clause within the meaning of the convention of Vienna.In the event of damages, the judge must evaluate the caused injury, the damage undergoes and this evaluation is carried out by

taking sudden account of the loss or the loss of earnings without the amount being able to exceed the amount of the damage which the failing part could or should have envisaged at the time of the contract signature.

There exists in the convention of Vienna or the uniform act a theory which involves a moderation of the damages which is claimed by the victim.Thus according to the convention of Vienna, the victim must take reasonable measures have regard to the circumstances to limit the loss including the profit which results from the fault made by its partner.According to this theory, if the victim neglects to do it, the failing part can require a reduction of the damages of the amount of the loss which would have avoided being (theory of the metalation of rammings).

C) Exemption clauses Failing Co contracting can be exonerated from the payment of the damages or the

obligation to which it is held.The CV and the AUO envisages the conditions under which a part can be released from the execution of the obligations (article, 79 of the civil code and article 267 of the uniform act thus "a part is not responsible when the inexecution is with a prevention independent of the will such as the fact of a third or a case of absolute necessity".

According to convention, this prevention must be taken into account at the time of the contract signature. The part which is prevented from carrying out its obligation must prevent the other of the prevention and of the effects of this one, failing this it will be condemned to pay damages.It must prevent the other part within a reasonable time.

When there is cause beyond control, the contract can produce two consequences:- Either one of the parts requires the resolution of the contract - Either it asks the reduction of the price However the execution can begin again when the prevention disappeared.But the

creditor can ask for the resolution if the execution is not any more of interest for him.When the inexecution of its obligations by one of the parts is due to an act or an omission of the other part, the latter cannot be prevailed about it like exemption clause.

Being the effects of the resolution, the normal consequence is that it puts a term at the contract and the parts from now on are released their obligations provided obviously damages to which one of the parts can be condemned.It should however be specified that when a contract is solved, there are causes which survive nevertheless the disappearance of this contract, one of the clauses east relates to that which relates to the payment of the litigations (arbitration clause, attributive of jurisdiction), the second which survives is that which specifies the rights and the obligations of the parts in the event of resolution of the contract; the clause of moratory allowance, a clause of compensatory allowance.

In general, the resolution operates retro actively, that what in the event of resolution of the contract each part must restore with the other what it received from it.The restitutions are carried out in a simultaneous way.The salesman must restore the price at the same time as it must pay the interests due as from the day when it received

the payment.The purchaser for its part is held to restore the goods and must at the same time give an account of all that it withdrew.

CHAPTER II:The CONTRACTS IN CONNECTION WITH The SALE

The maritime sale, the international insurance and international trade of transport

SECTION I:MARITIME SALES It is a sale which implies transport at sea, makes the right of it requires a certain

number of characters or conditions so that a sale is to regard as maritime, thus the sale must be to precede or followed by a carriage of goods per sea and the two transport and sale contracts must place by the parts in a dependence one of the other, moreover the sold goods are represented by a title called the bill of lading or the bill of lading, this title reinforced by other documents (the invoice of origin and the insurance policy is given to the purchaser of the goods or purchaser, actually with the course sport de marchandise par mer et les deux contrats de vente et de transport doivent placer par les parties dans une dépendance l' un de l' autre, en outre les marchandises vendues sont représentés par un titre appelé le connaissement ou le bill of lading, ce titre renforcé par d' autres documents (la facture d' origine et la police d' assurance est remis à l' acquéreur des marchandises ou acheteur, en réalité au cours ducarriage of the goods it is the captain of the boat which holds the goods on behalf of the carrier of the bill of lading;it is the need for presentation of this document which one made say that it is about a documentary sale.

One of the principal difficulties in the maritime trade is to determine the relations between the sale and transport, makes the two contracts of them are presented in the form of distinct contracts, however reality is different because the two contracts cannot be unaware of.

The sources of the right of the maritime sales are numerous and varied, on the international level, there is a certain number of convention which exist, there is beside the uses and the practices of conventions and with the sin of these uses, the incoterms which fix the international conditions of sales and which are used very largely as reference to the parts.

The incoterms are regarded as elements of reference in the international trade, of course it often misses precision and deserves to be supplemented more precisely with regard to the assumption of responsibility of the goods or the price of transport that the incoterm makes weigh on the purchaser.

The CCI which is at the origin of the systematization of the incoterm envisaged a whole of information to fill the raised gaps;at the same time it should be indicated that the parts have the capacity to modify the usual contractual formulas, they can even modify the incoterms, they can also combine the effects of the various sales;however the importance of the incoterms is not any doubt, this is why the incoterms are to revise and adapt to correspond at the time and to the modifications which intervene in the international trade.

The last revised version of the incoterms date of 2010, the revision occurred takes into account the evolutions of the international trade of the goods, in particular with regard to the increasing concern in connection with sureté, the increase in the electronic docs and from the sea traffic by container, under the terms of the last revision, the number passed from 13 to 11 and the new grid of the incoterms revised came into effect on January 01, 2011, the new denomination is following:

- Incoterm of the family E: EXW, EXWL - Incoterm of the family F: FCA; FAS; FOB - Incoterm of the group C; CFR; CIF(CAF); CPT; STOCK - Incoterm of the family D: DAT; DAP; DPP

SECTION II:The INTERNATIONAL INSURANCE The insurance plays a fundamental role in the international trade because the risk

in the international operations are more significant compared to those whose expose the domestic operations.These risks various and are varied and relate to at the same time the operations of exports and the operations of imports.Certain organizations of insurance play in this field a significant role individually either when they are the particular risks or in competition with other insurances purely preceded in the event of ordinary risk or currents international trade.One can quote certain organizations like the COFACE in France, EXIM BANK INSURANCE, the same type is found in England and in the USA.

The contracts of insurance are contracts of private law and they concern the general rules of the private law.It thus poses two types of questions: initially the question of the applicable law and the court of jurisdiction on the one hand and the question of the current risks on the other hand

A) Court of jurisdiction and the applicable law Competence as regards international insurance is given either by the contract or

under the terms of the provisions laid down in the International Conventions.In a general way, one retains like court of jurisdiction the court of the residence of the policy-holder and this last can be the policy-holder or the recipient of the insurance.It is the competence which is retained when actions are directed against the policy-holder.

For the class project works against the insurer, one makes a distinction, this distinction is envisaged by the payment of Brussels which is applicable in the space of the European union.The African countries can thus be inspired some.And this payment starts again all depends on the question of knowing if the insurer domiciled or not on the territory of a Member State of the UE.

ASSUMPTION 1:the insurer domiciled on the territory of a Member State

The payment envisages an option between the court of the residence of the insurer and that of the residence of the applicant, and the applicant can be the policy-holder, the policy-holder or the recipient of the insurance.In all the cases, the applicant profits from an option, one says that it profits from one (TO BE SUPPLEMENTED)

In the majority of the countries this insurance is addressed to the industrial, commercial companies or of national service which have a sales turnover which does not exceed an amount, as an example, to obtain a cover of insurance by the COFACE, the sales turnover should not exceed 150.000.000€.The advertising and promotional cover relates to all the expenses of prospection (displacement abroad, publicity, expenses of legal council, participation in professional demonstrations with character international… this insurance covers all the foreign countries, a first advance on allowance is possible to help to finance the prospection, condition which the sales turnover does not exceed a certain volume;the premium of insurance corresponds to a percentage of the budget of prospection guaranteed and in the event of installation of an advance on allowance, the premium of insurance is raised of a certain percentage.

2) the credit insurance: It covers the risks of nonpayment, generally it is about an insurance of the

commercial risks and/or policy in the short or medium term;several types of insurance are proposed within this framework, thus one has

- credit insurance for the contracts;- credit insurance for the service and equipment sales;- the credit insurances which cover the operations which are carried out in the

countries representing a political risk.3) the insurance transport: It is the oldest form of insurance of the operations of the international trade, this

insurance either spontaneous or is imposed by the contract of carriage and/or the incoterm chosen or imposed by the laws of the State of reception of the goods, in theory, this insurance is taken by that which supports the risks of the operation even if other

partners with the international operation can ensure themselves, in the case of the COFACE ensures the transported goods and offers several varieties of contract:

- a contract with the voyage:for occasional forwardings;- a contract say "gone":for the execution of a market which requires spread out

forwardings;- a contract of subscription:who leaves with assured freedom forwarding of the

goods… The contracts cover all the means of transport, all the risks in fact the ordinary

risks (shipwreck of the ship, flight…) and the exceptional ones (example:a war, a riot of the acts of piracy…)

4) the insurance investment: It relates to companies which carry out abroad a ID, this insurance covers the

investments carried out against abroad certain risks in particular, the political risks

SECTION III:THE INTERNATIONAL CONTRACT OF TRANSPORT

Two points will be examined:legal environment of the international contract of transport, then the international contract of transport

CHAPTER IV: OTHER CONTRACTS INTERNATIONAL TRADE

A certain number of contracts meet needs of financing itself.They are the concerns of financing preliminary to the operation carried out.

In the international trade, one finds also techniques of payment used by the actors international trade.Those are often accompanied by technique of guarantees likely to be implemented in the event of failure of payment.All these techniques are gathered in these financial instruments of international trade.

To side of the financial instruments, the operations can relate to the creation of company which is carried out more and more by the amalgamation, especially in the form of joint company (joined venture).The creation of company within the framework international trade is accompanied sometimes by operation of transformation of technology which is carried out by contracts on a scale international trade.On the general level, a multitude of operations can be carried out by economic operators.They are the operations which all can be of a great interest but which cannot all be studied.

SECTION II: FINANCING OF THE OPERATIONS OF THE INTERNATIONAL TRADE

The marketing policy of the countries consists in not encouraging flows imports which in the long term have a negative impact on external balance, but financing much more of flows of exports and, of the specific rules of the financing of the international trade also concern above all, flows of export and those who are the authors.Within this

framework the operator international trade has the possibility either of carrying out specific operations to prolong without establishment abroad, or to consider an installation abroad.These various possibilities result in a need for different financing.Thus, the financing can be used to export the products, it can be also used to invest means.On the one hand there is the financing of exports, on the other hand, the financing of the investments.

PARAGRAPH I:Financing of exports The difficulties related to the operations of export in fact the terms of payment,

the terms of payment make necessary the installation of an effective system of financing.The simplest diagram of the financing more used and is the credit.The exporters in a country have also the possibility of profiting from particular credit facilities justified by the will of the authorities to develop a form of activity of the foreign trade.However, it should be noted that obtaining an advantageous credit by an exporter can distort competition and violate the rules of OMC with regard to the freedom of trade.It is known that OMC prohibits the subsidies with the world trade.According to the granted needs and times', the banker will be able to set up at the profit of the exporter a short-term credit, in the medium or long term.

A) Short-term credits In the international trade one distinguishes two formulas:appropriations known as

of prefinancing (1) and formulas of mobilizations of credits born abroad (2).1) Short-term credits of prefinancing

They make it possible to finance the short-term needs for treasury in order to prepare the export (what is called prefinancing).There are two categories of short-term credits of prefinancing, one thus has appropriations known as revolving and then the specialized appropriations of prefinancing.

The appropriations revolving of prefinancing or revolving credits automatically are granted rate fixes and especially seem simple appropriations i.e. not presenting originality.

The specialized appropriations of prefinancing which generally relate to the significant markets for which the exporter received insufficient installments with the total financing of the operation.

In addition to the expenses necessary to the realization of the operation of export, the credit can cover expenses of prospection, the expenses of studies even the financial expenses;the recipient of the credit of specialized prefinancing is the signatory of the contract of export.However, its contractors or under treating can also profit from it for the quota from manufacture which is entrusted to them.The appropriations of specialized prefinancing are atfluctuating rate, but they can be stabilized

2) The mobilization of the credits born abroad Here, the exporter shoots a bill of exchange at the mobilizing banker or subscribed

a note promissory on which is affixed a banking downstream.That makes it possible the exporter to mobilize the credit which it has on the foreigner.The formula is not without

danger to the mobilizing bank which does not have a full cover of refunding of the credit that it would have granted.This is why the right reconnait a recourse with regard to the exporter to him and at the same time the mobilizing bank will seek to apprehend the sums due to export by the foreign customer.

A) Medium and long-term credits They are intended for the financing of the operations to help the exporter in the

operations of great importance in which it is obliged to grant its foreign partner of the terms of superior payments at one year and half.The partial payments will be able to intervene on behalf of the importing purchaser will cover only part of the studies or manufacture.The balance paid once that the parts will have the stage of the export of the process set up, the machine or the product manufactured.These deadlines which are long require a need for treasury in the short or the long term satisfied by the granting of credit.These appropriations can be granted in local currency or currency.And when they are authorized in currency (…).

THE SETTING IN PLCE OF THESE CREDIT The object of these appropriations;Duration of these appropriations;The recipient of these appropriations.

OBJECT These appropriations are often granted primarily for exports of the goods of heavy

equipment (example:manufacturing units, the industrialists unit, factories turn-key).These appropriations also benefit nevertheless with the average or light goods of equipment and the provisions of services which accompany usually the delivery or the installation by the production facility, (example:studies, the communication of the knowledge to make, technical aid).

DURATION The medium-term appropriations relate to the credits ranging between 2 and 7

years, beyond there is long-term financing.The duration of the credit is calculated as from the delivery or of good set up of the sold material.

BENEFICIAIRES The recipient of this type of credit can be a manufacturer or a supplier who wants

to carry out an operation of export.In this case, one speaks about a credit in the medium and long term to export or about supplier credit.The recipient can be also an importing purchaser, in this case one finds himself in the presence of a credit in the medium and long term with the importation, it still acts of the credit-purchaser.

1) The supplier credit Here, national exporter IQ granted a term of payment its foreign purchaser obtains

a credit of its sale to ensure its treasury in the form of discount of the credit born on the foreigner.Generally the purchaser paid a first installment with the order then a second installment with the delivery.The versed installments are not enough to pay all the order.The balance is payable in several years in the various term by immediate handing-

over of drafts indicating the amount of the capital and the interests outstanding.The purchaser accepts these drafts with the delivery within the framework of Credoc at the same time as it pays the second installment.Once that it holds the drafts, the exporter proposes at its bank to give them to him to the discount of the capital and the interests.It then poses the problem of knowing which will deal with the risk of the unpaid one.In general, the risks remain with the load of the exporter which will be able to subscribe a credit insurance from which it will make profit the bank.

2) The medium and long-term credit with the importation or purchasing credit The basic idea in an operation of purchasing credit agrees the financing not to the

exporter but to the importer.It is significant to note that this credit is granted to the foreign purchaser.The medium and long-term credit can thus be granted to the importer either directly at his own bank, or by the bank of the exporter, since this last can have indeed obtained with the profit of the importer the financing of his own bank.

It is a mechanism of recent appearance, but which develops incontestably.But it should be also said that this type of operation is carried out especially when the rates of loan are more interesting in the country of the exporter than in that of the importer.The installation of the purchasing credit is characterized by two contracts:

There is a first contract known as commercial between the exporting salesman and the importing purchaser, this contract envisages a cash payment irrevocable and final.Particular precautions must be taken with regard to the drafting of the clause relating to the completion periods of the commercial contract because the deadlines determine the starting point of the period of refunding of the credit.Moreover second the contract signature (contract of opening of the credit) will often constitute an element of the commercial contract which is the principal contract or sometimes a condition precedent of the principal contract (one will condition the principal contract on the contract of credit).The second contract is a financial contract (the opening of credit) between the foreign importing purchaser and one or more financial elements in the country of the exporter.This contract generally envisages a loan with the profit of the importing purchaser of a sufficient amount to be able to pay the balance, price of the commercial contract after payment on the accounts.In this contract the borrower who is the purchaser gives an irrevocable mandate to the prêteuse bank to pay the exporting salesman "on his behalf, for his account and in his receipt" so that the prêteuse bank is ensured of the use of the funds the purpose of which will be only the payment of the debt towards the exporting salesman.

The obligation to refund of the importing purchaser does not depend on the exceptions that this last could raise with the title of the commercial contract that wants to say that the reproaches which can be addressed by the purchaser to the salesman and

which are founded on the principal contract do not prevent the refunding of the loan by the purchaser at the bank.

In the operations of supplier credit, there is a clause which one inserts in the contract of opening of credit (the Isabel clause).It is a clause which lays down the inopposability with the lender, of the complaints or exceptions drawn from the commercial contract.Thus, although the finality of the exporting salesman on the basis of principal contract, there exists a true autonomy of the contract of opening of the credit compared to the commercial contract;it is about a distinct contract and the purchaser remains held to refund the banks prêteuse on the basis of contract of opening of credit without being able to oppose to the banks exceptions or complaints drawn from his relationship with the exporter resulting from the original contract.

The procedure of payment period is very favorable for the exporting supplier bus east moves the load of the credit towards the purchaser at the same time as it reduces the treasury of the exporter.Notification of the opening of the credit, the exporter has a personal and autonomous engagement of the bank in its connection.Nevertheless, the banker will require of the supplier the subscription of a letter of commitment obliging this one to pay at the bank the amounts of possible allowances to which, it could be condemned to the profit of the purchaser for bad execution of the contract.

PARAGRAPH II:Financing of the investments The operation of the investments abroad is necessary because, it makes it possible

the exporter to build sales networks abroad, to establish an agency or to construct an industrial unit.The strategic decision to invest abroad passes by a significant need for financing as in the operations of payment period and of credit-purchaser, the financing takes place in local currency or currency.

Financing in local currency.Normally, the concern of promoting establishments abroad led in the

industrialized countries the authorities to install mechanisms of original assistance in which one finds formulas of specific loans.One still finds participations in the own capital stocks of the companies and finally one finds measurements tax inciting.

These mechanisms pose a problem with regard to their impacts on the international trade, because one can regard them as subsidies which are granted to the companies and which can have a negative impact because they can distort competition.Nevertheless, these types of financing are used by the industrialized countries to encourage and encourage the investments abroad.Being the loans known as specific one can evoke the French example in which these loans were developed by public organizations such as the NATIONAL CREDIT or the BANK OF FRANCE OF TRADE EXTERIEUR (BFCE).It can even happen that the private banks (banks of a company) can take part in it.In fact loans profit with all the companies industrial and commercial some is its size, in the condition which an investment is carried out by a French company acting only or jointly with its subsidiary company abroad in a country of the free zone.No engagement of export is required with the profit company.The duration

of these loans lies between 12 and 15 years and refunding can profit from a frankness or a grace period from 1 to 15 years differed.

Being the assistances in the forms of participation in the own capital stocks, it is the privileged field of intervention of the companies venture capital.Interventions can take several forms:

Subscription of convertible obligations;New issue of capital;Acquisitions of actions;Participation in the capital of the subsidiary companies abroad…;

Lastly, tax measurements are incentives with the establishment abroad because they it treasury of the profit companies of these tax measurements.

Financing in currency In this hypo, the company seeks its financing on the international capital market

and it will primarily be a question of obtaining currencies in the objective to be established abroad.