Diritto commerciale internazionale

SALE OF GOODS CONTRACT:

Short- term contract btw a seller and a buyer for the purchase of goods. “Give something” Object: goods.

In which the main seller’ obligation is to transfer the ownership of the good(s) and the buyer obligation is

to pay the price (payment of the price could be deferred). )->pagato in un secondo momento.

SALE OF SERVICES CONTRACT:

Short-term contract btw a seller and a buyer for the purchase of services. Object: services. “Doing

something”->You provide the service and I pay you. the main seller’ obligation is to provide the services

and the buyer obligation is to pay the price (payment of the price could be deferred

SUPPLY CONTRACT (OF GOODS, OF SERVICES):

A long-term agreement between a seller (supplier) and a buyer (purchaser) for the provision of certain

goods/services over a certain period of time. A contract of supply is characterized by the repetition of

performances over a determinate period of time: goods/services are supplied on a regular basis,

according to a scheme agreed by the parties.

So, the performance is discharged periodically. Ex: I provide to your supermarket 100 kg of fresh oranges

every week. The regulations may be different or similar in different country, but the mechanism is this.

OVER A CERTAIN PERIOD OF TIME

15 OTTOBRE

We refresh the three main moment of contract: formation (stand by negotiation), conclusion (the parties

reach a deal when acceptance match with offer) and performance (it’s the discharging of the obligations).

The triangle is expression of the freedom of contract. More or less effected by mandatory or subsidiary

rules. 5

International contract: core element of international transection (there are elements of foreignity, or

alienity, maybe because the parties are from two different countries). in any kind of transaction we have

two problems: applicable law, to regulate that specific legal transaction-> applicable law clause, and the

second problem is jurisdiction, which judge? -> jurisdiction clause. In this set of rules that regards

international transection we observe, the phenomenon of standardization -> standard clause, and

internationally standardize contract.

MANUFACTURING AND SUPPLY CONTRACT: LON TERME AGREEMEN

At international level we can find this kind of contract, and we can see them in other more complex forms.

Similarly, to supply contract, goods are provided over a certain period of time. However, the distinguishing

feature of this type of contract lies in the fact that the purchaser has an active role in determining the

nature and quality of the goods that he wishes to receive periodically against payment of the price. More

precisely, the purchaser, desiring a custom-made product, needs to provide the manufacturer with

precise production information on such product.

Ex: I manufacture biscuits and I need boxes; I have two choices: find someone who manufacture boxes,

or well, maybe I want customize boxes, with my name, with specific size, shade, packaging-> so a supply

contract is not for me. Because I need someone who manufacture boxes according to my production

instruction-> This is the difference with the supply contract.

TRADEMARK LICENSE:

This contract is intended to cover the situation where the owner of a well-known trademark licenses

(Ferrari) licenses his trademark to a company that will use it with respect to products other than those

manufactured or sold by the licensor. But we don’t have any transfer of ownership, no transfer of property,

but the authorization to use the trademark for a specific period, over specific goods. In this case, it is

assumed that the licensed products will be designated and developed by the licensee. The main

preoccupation of the licensor is to ensure that the licensed products conform to the overall image of the

licensor and its trademarks. Ferrari for ex is a powerful trademark that we can see even in perfumes,

clothes. Licensor -> licensing trademark money<-Licensee.

Over a certain period of time

Side dangerous effect, from this contract: if a licensee put my trademark in a fake, like if the put the

trademark over a fake cup, I lose credibility, and of course, in terms of quality, size, and quantity there

could be problems that could ruin the reputation of the brand, that’s why this type of contract requires a

lot of trust. The difference btw this and the other contracts that we saw, is that in the first case we have

the transfer of property, while over here no, there’s just a licensing that authorize the use of the trademark,

that is still his trademark. If you breach the contract, I will break the license.

TRANSFER OF TECHNOLOGY CONTRACT (LICENZA DI FABBRICAZIONE):

There are so many contracts like this, especially in China and in Vietnam, that cover a variety of situations.

The Licensor transfer licensing information, industrial property rights and industrial secrets to the

licensee, who in exchange gives money, and manufacture the exact same product using the licensor’s

technology. Over a certain period of time-> so it’s a long-term contract.

The only thing that changes is the place where the product is manufactured, but the product is, the same.

For ex the original one is in Italy, and the other is abroad. The product is the same because the know

how has been transferred. Who benefits from this type of contract? Both the parties.

The licensor expands the business in other countries, in other market, without employment contract and

no problem with custom duties etc., while the licensee manufactures products and gain money using the

licensor-s technology.

Ex Piaggio transferee the know-how and industrial secrets to a company located in India, and license to

the use for the trademark, in this way India can manufacture the exact same product of Piaggio.

This type of contract is more used in developing countries, because of minor costs.

Licensor -> licensing informations and industrial property rights Money <- licensee

àß 6

Distribution plays a VITAL ROLE in international trade. The companies wishing to market their products

abroad will need to establish a distribution network in such foreign markets.

Most used solutions:

-Selling to exporters in the home country of the manufacturer

-Direct sales to foreign customers

-Sale through occasional intermediaries

-Sale through agents and distributors

-Distribution systems implying control over network of local retailers: franchising, selective

distribution

Ex: the manufacture is based in Palermo, and it manufacture pasta, ->it sells the product to the exporter

or trading company located still in Italy->then, they exported abroad in Japan, or in a foreign market.

We can see first, a supply contract btw manufacturer and exporter and then an international contract btw

exporter and the foreign subject (like a supply international contract).

Pros

- is just a national transection, is very easy because you don-t have to do international contracts

-Improving the spelling in another country without must take care of transportation cost, costumers,

distributions Ext…

Cons

- you lose the control of the placement of the product, the final price, you don’t control anything, because

you transfer the property of your goods.

-You can lose the brand, the original manufactures disappear, with Rebranding (for ex the exporter sell

to a distribution company in Japan, and they rebrand, and the original manufacture officially disappear)

A manufacturer can sale directly to foreign customer, through websites or through companies with retail

organization, in which the Company sell the final products.

We have two market and two nations, for example the manufacturer of Sicilian product, spred them

though the web site, and a professional buyer or a consumer can buy. In the first case for example,

Walmart buy the Sicilian products and then sell to the consumers. In the second case “Luca” placed in

USA, buy these Sicilian products. Obviously, we can’t speak about distribution agreement because

there’s not distributions instruction (the manufacturer doesn’t say anything about place of reselling, the

price of reselling etc.). The direct sale btw manufacturer and professional buyer, or consumer is just a

supply of goods or sales of goods. Selling a product to the distributor.

Distribution Contracts:

-Distributorship Contract

-Commercial Agency contract

- Franchising Contract 7

DISTRIBUTORSHIP CONTRACT:

A long-term agreement between a supplier and a distributor whereby the supplier’s obligation is to provide

the distributor with goods, and the distributor’s obligation is to re-sale/distribute the supplier’s goods to

end customers in the market concerned, in line with a mutually agreed annual business plan, in order to

attain minimum sale volumes (i.e., retail distribution).Ex coca cola wants to enter in a market and does

business with a chain of a supermarket, COCA COLA WILL DECIDE about placement of the products,

discount ING, prices…->distribution instruction.

-over a certain period of time

Commercial Agency contract:

Principal->commission-> Agent:

it’s an agreement between a Principal and an Agent, by which

-the agent promotes the sale of the principal’s products in a defined territory, as an intermediary

independent, without assuming liability for such transactions.

Or

-the agent must negotiate and conclude the sales of products on behalf of the principal. In exchange of

his effort, the agent receives compensation, thought commission completed transection.

Over a certain period of time, long term agreement.

The principal is not free anymore of conclude and negotiate a contract in a defined territory by himself,

(when he appointed a specific agent), and he could not interfere with the action of the agent, negotiation,

and conclusion of sales contracts on behalf of the principal, over a certain period of time. So, the defined

territory represents an arena in which the principal couldn’t interfere.

The agent has to find out clients for the principal, in the First case in which there Is an agreement for

promotion of Sales in a defined territory, then the principal Is in contact with the customer. In the case of

a negotiation and conclusion of Sales contract on behalf of the principal, the agent Will negotiated, not

the principal.

Pathological moment of this contract: Breach of contract, when the agent is able to negotiate and

conclude the contract on behalf of the principal-> in case of problem of performance, the agent is

responsible for the breach of contract for several possible reasons (problem of quality, delays).

Who Is the competent JURISDICTION? In case of breach of contract btw the final customers located in

China and our agent, that negotiate and conclude the contract, our foreign buyer will play damages of

specific performance against our agent, according to national law.

The breach of contract could be of course Aldo between the agent and the principal.

FRANCHISING CONTRACT:

The