In particular, with this case we need to look at the issue of risk. The convention provides that, under article 31 (a), if the services of a carrier are being used, then delivery is considered to have taken place when the seller delivers the goods to the place of the carrier. In normal circumstances, risk would also transfer from seller to buyer at that time. However, article 67 (2) provides an addendum, which states that “the risk does not pass to the buyer until the goods are clearly identified to the contract, whether by markings on the goods, by shipping documents, by giving notice to the buyer or otherwise.
” Article 34 also states that the seller must hand over such document at the time stated within the contract. As Michael Bridges observes (1999) in his book if a situation arises where “delays in the forwarding of shipping documents, fails to take all reasonable steps to give the buyer access to the goods. ” The last area of law that needs to be looked at in this case relates to the prohibition relating to the importation of certain goods without prior permission.
In common law, corporations, like other persons and entities, are required to act within the laws, rules and regulations governing the country in which they are domiciled. Over the years there has been much argument regarding whether this applies, even when laws have been changed and parties may not be aware of such changes. However, as has been pointed out in numerous cases and studies, ignorance is no excuse (Phillip Norman 2006). Application of the Law
Based on the preceding comments on the law, we would make the following observations in relation to the particular case we have been asked to advise on. 1) It is our view that the original contract was flawed, in that it was based upon the misrepresentation committed by Wholesaler, when they claimed the only seller of the goods required by Importer was Exporter. It is clear from the evidence that this is not the case and in view of the industry wholesaler could reasonably have been expected to know this.
2) Although the goods were delivered in accordance with the original contract, the fact that there was a delay in the submission or exportation invalidates any claim that Exporter may have that risk associated with the goods has passed from them to the buyer. Article 67 (2) of the Vienna Convention clearly indicates that this has not happened as documentation had not changed hands, irrespective of the fact that Importer was notified that the goods had been delivered to the carrier.
3) Clearly, the failure of Exporter to produce documents impacts upon Importer’s ability to accede to Customs demands. To the extent to which this may incur Importer in penalties and fines, the responsibility for this inability lies with Exporter. 4) It is not the duty of, nor the responsibility of Exporter, to understand or comply with national laws other than their own. However, it is the responsibility of Importer to comply with the laws and regulations relating to their state. Ignorance of those laws are do not provide an excuse for non-compliance.
Conclusion Our advice, based upon the information given and our researches is that the contract is voided on two grounds, misrepresentation and failure to complete delivery. In addition, we would advise that, in our opinion, Importer should be able to seek damages for these two breaches. In respect of the breach by Importer of the prohibition of imports, it is our view that it was their responsibility to have known about this incidence and therefore cannot expect recompense from either Wholesaler or Exporter in regards to this issue.