||Exclusion and Limitation of Liability for Non-conformity of Goods:A Comparative Study on CISG, UCC and UK Law
商品の不適合に対する責任の免責および制限 : 国際物品売買契約に関する国際連合条約、米国統一商事法典および連合王国法に関する比較法的研究
Nan Kham, Mai
学位の種類: 博士（法学）. 報告番号: 甲第4305号. 学位記番号: 新大院博（法）甲第30号. 学位授与年月日: 平成29年3月23日
In this paper, the UN Conventions on Contract for International Sales of Goods (the CISG), the Uniform Commercial Code of the United States (the UCC) and the Sale Law of the UK are selected to study comparatively. This paper expresses the research un-dertaken in the field of exclusion and limitation of liability for non-conformity of goods in business sales, consumer sales and international sales contract. Nowadays, contract with exclusion and limitation clause is common in modern business transaction. Exclusion or limitation clause intended to limit the seller’s liability imposed by the Sale Law. The Sale Law usually provides for the default liability of the seller relating to the quality of the goods, which called the implied terms, such as goods must possess the satisfactory quality for ordinary purpose or the goods must conform to the quality states in the contract description, sample or model. According to the Rule of Freedom of Contract, the parties can make their contract terms as their will. Thus, the seller can incorporate the terms, which will exclude or limit his liability for non-conformity of goods in three forms of clauses: exclusion of liability clause, limitation of liability clause and time limitation clause. All kinds of exclusion and limitation clause aim to eliminate or reduce the seller’s liability for breach of contract. However, in order to enforce the exclusion and limitation clause, such clause needs to be fair and reasonable. The issue of enforceability and validity of the exclusion and limitation clause determined by the rule of incorporation, interpretation and reasonableness test.From the comparative perspectives, there are similarity and differences in the three systems. In all three systems, the exclusion and limitation clause must be written expressly and clear meaning, noticeable, and made known to the buyer of the incorporation of the contract. In addition, the buyer understands the terms and consequences clauses. The differences are, there is no form requirement for incorporation in the CISG, but, in the UCC, the limitation clause must follow the methods of incorporation. Under the SGA, there are optional methods of incorporation.
In interpreting the exclusion and limitation clause, the interpretation rule applied in each system is different to one another. As the CISG governs the international business sales contract, the interpretation rule must maintain the uniformity of application. Therefore, the interpretation rule based on good faith, general principles, which the CISG based on, or the rule under the domestic applicable law. The interpretation rule of the UCC is the parol evidence rule which strike out the previous oral evidence which contrary to the written clause because the written document is considered the best description of the intention of the parties. The rule of contra proferentem is applied to interpret the intention of the parties by means of narrowly against the interest of the person relying upon it.Under the CISG, the reasonableness test subject to the applicable domestic law which does not contrary to the general principle of the CISG and internationally accepted usages. Under the UCC, the reasonableness of the exclusion or limitation clause is required to be tested by two steps, procedural reasonableness and substantive reasonableness. Under the UK Law, the reasonableness of terms in business sales contract is decided by bargaining power, the ability to acquire goods elsewhere, the existence of inducement, buyer’s knowledge. In consumer sales contract, the seller is restricted to exclude his liability and any term which excludes liability listed in section 31 of the Consumer Rights Act are unreasonable.From this study, the proposal for law reform in Myanmar would be the solutions for insufficiency of Myanmar Sale Law. First, for business sales contract, the restriction on seller liability should be added for maintaining the fairness. Second, for consumer sales contract, the caveat venditor rule should be introduced. The consumer remedies are necessary to make known. Furthermore, the rule that restrict the seller to exclude the liability of implied terms should be added to the existing Sale Law. Third, for international sales contract, Myanmar should learn more to understand the current principles of international trade and take into consideration to enter into the CISG.