In Brazil, contracts for the international sale of goods are not usually established by a physical document signed for that purpose. We are used to considering the Commercial Invoice as a contract, where every information is mentioned, such as the information about the seller and the buyer, as well as the method of payment and details about the operation.
However, the parties’ obligations and the risk transferences and costs are not always described in detail, and this may make posterior litigation difficult, particularly in cases when the goods are damaged during the transport, or payment delinquency. With Brazil’s accession the convention, this lack of detail in commercial invoices can be remedied by the Convention’s dispositions.
In case there’s contractual resolution or violation of their duties and rights, the parties will be able to pursue losses and damages. It is important to highlight that, in case of resolution for contract violation foreseen in the Convention, it is possible to extend the deadline for payment, and also to take extrajudicial alternative measures. Furthermore, there’s a maximum deadline of two years in which the buyer may claim problems with the quality or the quantity of delivered goods, with a few exceptions; and the criteria for the calculation of the amount to be paid as indemnity are well defined (according to Articles 74 to 77 of the Convention), unlike the Brazil legislation.
Another interesting point that reinforces the buyer’s and seller’s legal freedom in the Convention is the permission given to the parties to opt out of the Convention’s application and regulate the deal according to their own will (according to Article 6).
One controversial point pertains to the sales in which the Convention cannot be applied. These situations. provided by Article 2, are: goods acquired for personal, family or household use, goods acquired in public auction or sold as result of lawsuits; securities, credit titles, currency, ships, vessels, hovercraft, aircraft and electricity.
Brazil is known for having legislation that is widely favorable to protecting consumers rights and, therefore, many times doubt can arise: where does the buyer protection stand as provided by the Consumer Defense Code (CDC, Law 8.078/1990)?
On this subject it is important to highlight was Moser and Pignatta (2015) clarify: item ‘a’ of article 2 provides for the exclusion of contracts established with a buyer. Different from the consumer qualification given by article 2 of the Consumer Defense Code, the Convention mentions “personal, family or household use”, restricting the buyer only to individuals, since companies cannot acquire goods for “personal, family or household use”. The expression was carefully chosen so that there would be no doubt as to the buyer characterization. Therefore, the Convention will not be applied in case where the goods have been acquired for “personal, family or household use”. The deal closed by an individual with corporate or commercial objective is subject to the Convention. Another possibility for the application of the Convention occurs when the seller is an individual who is not a merchant. Different from the Brazilian CDC, the Convention does not define the character of a supplier and therefore there’s no need for the seller be a trader so that the Convention is applied. All that is needed is that the buyer does not use the goods for “personal, family or household” purposes for the Convention to apply.
The Vienna Convention was conceived with the aim of standardizing the rules applicable to the contracts of international sale of goods and creating the mechanisms to ensure legal security and the predictability of trading relations between Brazilian and foreign companies, determining the seller and buyer obligations, as well as establishing measures in case of losses and damages and contract violation and other form of breaches.
Analysing the text of the Convention, it is possible to notice an attempt to give greater autonomy to the involved parties, with solid support on transparency and uniformity, neutrality and good faith (objective), avoiding at most legal disputes and foreseeing alternative ways to prevent and solve conflict between the parties.
For Brazilian companies the application of the Convention may contribute to overcoming difficulties that arise from cultural barriers between the countries of sellers and buyers, as well as reduce legal costs in light of the certainty regarding the rules applied to the contracts and the ease with which conflicts can be solved. In this way, when a businessman decides to sell his product in a country that is party to the Convention he will be able to consult the local regulations in his own language, without the worry of knowing foreign legislation, given that the Convention is translated and available in the six official languages of the UN and many other unofficial translations, including Portuguese. This will allow the fluence of deals of internationally-trading Brazilian companies to grow in a secure, foreseeable and transparent way. This international uniformity in legislation tends to reducing harmful discrepancies in arbitral reports our nacional court decisions based on subjective norms or distinct domestic legislation.
Lastly, the tips
It is necessary to observe the finality of the acquisition of goods for, as we have seen, depending on the situation they may not be subject to the Convention. It is also important to remember to negotiate every detail of the operation, as well as costs and risks that are to be accepted for the choosing of the best incoterm, and, lastly but not less important: it is important to study the legislation of the dealing country, as in Brazil, for example, the commercial invoice must contain a series of information required by law (Article 557 of Customs Rules – Decree 6759/2009), or the importer may be liable to fines for disagreeing invoices.
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