为什么CIF合同不是文件买卖合同
Why a CIF Contract Is NOT a Sale of Documents Contract
雷继平
【关键词】Sale of Goods, CIF
【全文】
Why a CIF Contract Is NOT a Sale of Documents Contract
I. Introduction
Today a CIF contract constitutes one of the most important instruments of the overseas trade. Every year an enormous number of transactions are carried out under CIF terms, under which the obligations imposed on a seller in the ordinary case are to ship at the port of shipment the goods contained in the contract, to procure a contract of freight to deliver the goods to the agreed destination, to arrange for insurance which will be available for the benefit of the buyer and to make out an invoice, and finally to tender these documents to the buyer. It follows that against tender of these documents the buyer must be ready and willing to pay the price. Because of the nature of its performance, especially the emphasis on tender of documents other than physical delivery of goods, some jurists and academic writers have assumed CIF to be a sale of documents rather than goods, which has given rise to some confusion. It is the aim of this essay to examine the essential character of a CIF contract by exploring the arguments of both sides, these are, whether the buyers buy the documents representing the goods or the goods themselves. This essay will suggest that it is the goods that are essential in a CIF contract and that it will be more accurate to deal with a CIF contract as a sale of goods contract rather than a sale of documents contract.
II. Why the Essence of CIF Is erroneously
Placed in the Documents
1. Case law, in particular the older citations taken at their face value would seem to support that CIF contracts are those for the sale of documents.
The suggestion that a contract for the sale of goods CIF could be regarded as a sale of the documents is derived from the judgment of Scrutton J. in Arnhold Karberg & Co v Blythe Green, Jourdain & Co where he declared: “I am strongly of the opinion that the key to many of the difficulties arising in CIF contracts is to keep firmly in mind the cardinal distinction that a CIF sale is not a sale of goods, but a sale of documents relating to goods.”1 Although this description has been criticized for not being an accurate interpretation of the law by the Court of Appeal when the case went on appeal later, this famous statement was frequently cited by many academics and lawyers to support their opinions which suggested that a CIF contract is not a contract that goods shall arrive, but a contract to ship goods complying with the contract of sale, and the buyer buys the documents, not the goods. For this reason, the seller must tender documents and cannot claim performance of a CIF contract by tendering the goods themselves at the port of destination unless the buyer waives compliance with the terms of the agreement.2
