International Legal English: Commercial Contexts
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International legal English: Commercial contexts Techniques and practice for clear, concise, correct, reader-friendly legal communication 1 Course outline The main focus of this course is practicing composing easy-to- read and clear legal texts, with the aim of promoting a correct, concise, unambiguous, and contemporary style of expression. To achieve the aim, the course material includes a variety of approaches, texts, and tasks. For convenience and coherence, these appear in the context of commercial law: sale of goods. For professional relevance, the skills focus is on specific legal texts, such as commercial contracts, especially retention of title clauses, and the art of briefing cases and answering exam questions . Language focus is on reading, writing, and speaking. The course deals with theoretical aspects in a separate Power Point presentation. At the end of the course, participants should feel more confident in their ability to use English in professional legal contexts. To pass the course (2 ECTS): • 80% attendance • Task 1 (case summary page 32): complete and deliver. • Task 3 (exam-type question pages 46-49): complete and deliver ONE of the three questions in this section To pass the course (3 ECTS): • Requirements as above for 1 ECTS, • plus • Task 2 (case summary page 34): complete and deliver, plus • Task 3 (exam-type question pages 46-49): complete and deliver ONE OF THE TWO REMAINING questions in this section • Plus • Task 4: ONE of the three case summaries on pages 52, 56 and 59 2 Commercial Law: Sale of Goods Introduction to sale of goods legislation The following text overviews the area of law relating to sale of goods. This related to a wide range of transactions, from buying a tangible item in a shop or on the Internet, to paying for a service such as repairs. o Read quickly through the text below and complete the sentence using the words in the box contracts disclaimers exclusions title transfer warranties 1. A sale can be defined as the _____________ of _____________ in a good. 2. Implied _______________ do not need to be expressed as they are implied by law. 3. Two means of limited warranty liability are _____________ and _______________ . 4. The CISG sets forth rules that govern ______________ for the international sale of goods. The sale of goods entails a broad area of the law which is largely governed by legislation. Where an aspect of the law is not governed by legislation , it is governed by the common law or often by general principles of law in non- common law jurisdictions. The applicable legislation sets forth the nature of what is involved in the sale of goods. Naturally , this includes definitions of what constitutes a sale and goods 1. A sale entails the transfer of title in a good from the seller to the buyer. Goods can be defined broadly as some kind of tangible chattel . Application of the legislation depends on : the type of sale; whether the seller is a merchant or not; and, if the seller is a merchant, whether it is trading in the course of its usual business . The aspects of sale of goods governed by legislation include such matters as contract formation , price, passage of title , warranties of title , implied warranties , express warranties , disclaimers of warranties , remedies for breach of warranty , delivery and acceptance of goods, and the passing of 1 (US) good can be used in the singular in US English. 3 risk . The principal relevant legislation in the UK consists of the Sale of Goods Act with its amendments, including EU-related legislation. Contract formation in this context includes the requirements applied to contracts in general with some added details such as agreements implied by conduct of the parties. The price to be paid for the goods is usually set forth in the agreement, but in some instances relevant legislation will determine the price if this term is left out. At the very least , the buyer is generally required to pay a reasonable price . Contractual provisions concerning transfer of title dictate when good title is transferred, for example from a person who has possession but not title to a third party buyer. Generally , good title cannot be transferred to a third party from a person not authorized to do so by the holder of title . Naturally , aspects of good faith and apparent authority come into play in this context. Different warranties play a major role in the sale of goods. Implied warranties are warranties that do not need to be expressed in black and white but which the law implies . Some of these types of warranty would include warranties of title, fitness for a particular purpose , and quality or merchantability . Often, application of the latter two types of warranty depends on the type of sale – for example , sales by sample – and whether the seller is a merchant acting in the course of business . Express warranties are warranties which are specifically stated either in writing or orally, as the case may be. Under many statutory provisions, an express warranty cannot negate an implied warranty of the relevant legislation. A common feature of legislation governing the sale of goods is to restrict the ability to limit warranty liability through exclusions or disclaimers in the contract. Another general aspect of this type of legislation is to regulate performance between the parties. Aspects covered in this area would include delivery and acceptance, inspection by the buyer, the buyer’s right to refuse acceptance, and return of goods. In this context , an international convention which should be particularly mentioned is the United Nations Convention on Contracts for the International Sale of Goods (CISG). The convention sets forth rules that govern contracts for the international sale of goods and takes into consideration different social, economic, and legal systems to remove legal barriers and foster development of international trade. Another important piece of legislation is the Unfair Contract Terms Directive. 4 o Language analysis 1. Find synonyms for the words underlined in the text. 2. What function do the words in italics perform? Can you place them in categories, or classify them by function? 3. Explain the words marked in bold in the text. o Key terms: Sale of goods Warranties: Match these types of warranty and concepts related to warranties (1-7) with their definitions (a-g) 1. express warranty 2. implied warranty 3. warranty of fitness 4. warranty of merchantability 5. warranty of title 6. breach of warranty 7. disclaimer of warranty a. a warranty that the goods being sold are suitable for the purpose for which the buyer is purchasing them b. a warranty that the seller of goods owns them (e.g., the goods have not been stolen or already sold to someone else c. a violation of a warranty when the goods do not comply in some way with an express or implied promise at the time of sale d. a spoken or written promise made by the seller about the quality, performance, or other features or considerations concerning the goods covered by the contract which would affect the buyer’s decision to purchase e. a negation or restriction of the rights under a warranty given by a seller to a buyer f. a warranty that the goods being sold are of a quality that generally conforms to ordinary standards of similar goods sold under similar circumstances g. a warranty that is not explicitly stated but which the law imposes due to the nature of the transaction 5 o Buying and Selling Complete the table below using the words in the box. commodity consumer customer to deal in merchandise merchant to offer for sale to pay for to purchase purchaser retailer supplier vendor wares 1. words related to the act of buying 2. words related to the act of selling 3. words for buyers of goods 4. words for sellers of goods 5. words for goods 6 Terms and Conditions of Sale These clauses are typically included in a company’s general terms and conditions of sale. o Match the clause types (1-10) with descriptions (a-j). 1. claims and credit 2. changes or cancellation 3. delivery 4. indemnification of seller 5. limitation of remedies 6. orders 7. prices and payment 8. retention of title 9. title and risk 10. warranties a. Governs payment of monetary consideration for goods, manner and time of payment, as well as modifying amounts charged for goods. b. Governs ownership of goods and exactly when the peril of loss shifts from seller to buyer. c. Seller retains ownership of goods until some condition (usually payment) is fulfilled, even though buyer takes possession of goods. d. Governs the manner in which orders for goods are transmitted by buyer and accepted by seller. e. Covers time, limitations, and manner in which sale of goods becomes complete and final following payment. f. Governs time and manner of complaints by buyer concerning goods. g. Terms and conditions governing express warranties, often including inspection of goods by seller, and liability of seller for breach of those warranties, also any limitations on that liability. Often includes matters related to notice of defects, and disclaimers. h. Restricts seller’s legal responsibility to pay damages for, e.g., errors in goods and may govern maximum amount payable by seller for these. i. Buyer guarantees any loss incurred by seller connected with use of goods, including violation of intellectual property rights. j. Governs modifications by buyer regarding the character or manner in which goods are manufactured, payment of expenses regarding manufacture, and termination of orders placed. 7 o Decide which kind of clause each of the following sentences would most likely be found in.