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اینکوترمز |
INTRODUCTION
1. Purpose and scope of Incoterms
The purpose of Incoterms is to provide a set of international
rules for the interpretation of the most commonly used trade
terms in foreign trade. Thus, the uncertainties of different
interpretations of such terms in different countries can be
avoided or at least reduced to a considerable degree.
Frequently, parties to a contract are unaware of the
different trading practices in their respective countries.
This can give rise to misunderstandings, disputes and
litigation, with all the waste of time and money that this
entails. In order to remedy these problems, the
International Chamber of Commerce first published in 1936 a
set of international rules for the interpretation of trade
terms. These rules were known as “Incoterms 1936”.
Amendments and additions were later made in 1953, 1967,
1976, 1980, 1990 and presently in 2000 in order to bring the
rules in line with current international trade practices.
It should be stressed that the scope of Incoterms is limited
to matters relating to the rights and obligations of the
parties to the contract of sale with respect to the delivery
of goods sold (in the sense of “tangibles”, not including
‘intangibles” such as computer software).
It appears that two particular misconceptions about
Incoterms are very common. First, lncoterms are frequently
misunderstood as applying to the contract of carriage rather
than to the contract of sale. Second, they are sometimes
wrongly assumed to provide for all the duties which parties
may wish to include in a contract of sale.
As has always been underlined by ICC, Incoterms deal only
with the relation between sellers and buyers under the
contract of sale, and, moreover, only do so in some very
distinct respects.
While it is essential for exporters and importers to
consider the very practical relationship between the various
contracts needed to perform an international sales
transaction
—
where not
only the contract of sale is required, but also contracts of
carriage, insurance and financing
—
Incoterms
relate to only one of these contracts, namely the contract
of sale.
Nevertheless, the parties’ agreement to use a particular
Incoterm would necessarily have implications for the other
contracts. To mention a few examples, a seller having agreed
to a CFR- or CIF-contract cannot perform such a contract by
any other mode of transport than carriage by sea, since
under these terms he must present a bill of lading or other
maritime document to the buyer which is simply not possible
if other modes of transport are used. Furthermore, the
document required under a documentary credit would
necessarily depend upon the means of transport intended to
be used.
Second,
Incoterms deal with a number of identified obligations
imposed on the parties
—
such as
the seller’s obligation to place the goods at the disposal
of the buyer or hand them over for carriage or deliver them
at destination
—
and with
the distribution of risk between the parties in these cases.
Further, they deal with the obligations to clear the goods
for export and import, the packing of the goods, the buyer’s
obligation to take delivery as well as the obligation to
provide proof that the respective obligations have been duly
fulfilled. Although lncoterms are extremely important for
the implementation of the contract of sale, a great number
of problems which may occur in such a contract are not dealt
with at all, like transfer of ownership and other property
rights, breaches of contract and the consequences following
from such breaches as well as exemptions from liability in
certain situations. It should be stressed that Incoterms are
not intended to replace such contract terms that are needed
for a complete contract of sale either by the incorporation
of standard terms or by individually negotiated terms.
Generally, Incoterms do not deal with the consequences of
breach of contract and any exemptions from liability owing
to various impediments. These questions must be resolved by
other stipulations in the contract of sale and the
applicable law.
Incoterms have always been primarily intended for use where
goods are sold for delivery across national boundaries:
hence, international commercial terms. However, Incoterms
are in practice at times also incorporated into contracts
for the sale of goods within purely domestic markets. Where
Incoterms are so used, the A2 and B2 clauses and any other
stipulation of other articles dealing with export and import
do, of course, become redundant.
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