In international sales of goods, the final consumption market of goods is mostly sold in importing countries or third countries or even in multiple countries and regions at the same time. Without knowing the current situation of other countries, exporters are likely to adopt the trade mode of sample production and infringe on the industrial property rights of enterprises or individuals from other countries applying for registration in importing countries or third countries.
Therefore, when signing a sales contract based on the samples provided by the buyer, the exporter should pay special attention to the provisions on tort liability in the contract terms, and make a clear agreement on the industrial property rights involved, indicating that the sample provider only bears the relevant tort liability to avoid infringing the industrial property rights of other countries after the products are exported.
When it is found that the samples provided by the other party involve well-known trademarks and patents, the exporter should be more cautious, and it is best to ask the buyer to produce relevant written certificates to prove that it is the legal owner or user of industrial property rights.
Otherwise, when infringement is involved, the exporter, as the actual producer of the product, can hardly shirk the responsibility, and is more likely to be accused of "knowing or not knowing", and finally it is difficult to get rid of the tort responsibility and suffer unnecessary economic and goodwill losses.
2. Try to change the transaction based on the buyer's sample to "equivalent sample".
When trading on the basis of the samples provided by the buyer, the samples submitted by the buyer shall be used as the basis for quality inspection when the contract is performed and finally delivered. The design of the buyer's sample is likely to have some parts that are not easily perceived or imitated by the exporter. For example, the sewing of buttons, the texture of wooden furniture, the screw position of precision instruments and so on.
In international trade, most transactions are forward delivery, and the time interval from signing to delivery is long. If we don't pay attention to these small links, once the market situation changes at the time of delivery, the importer is likely to make a malicious claim against the exporter on the grounds that the goods are not in conformity with the samples. Therefore, in trade practice, exporters should try to avoid sample trading.
Under normal circumstances, after receiving the samples from the other party, the exporter should copy or select the self-made samples according to the incoming samples and send them to the other party. Such samples are called "equivalent samples". If the equivalent sample is confirmed by the other party, it means that the contract has been transformed into "seller's sample sale", so that the exporter will gain more initiative in the transaction.
3. Exporters should keep two samples when sending samples.
When exporters provide samples to the outside world, it is best to keep a copy of the samples and keep them properly for checking when delivering goods or handling quality disputes. Otherwise, once a quality dispute occurs, the exporter has no evidence and can easily become a lamb to be slaughtered.
There is such a case that an export company in China signed a wheat export contract with a German company. Before signing the contract, Germany was very satisfied with the wheat samples we provided. But two months after the goods arrived in Germany, the other party suddenly filed a claim. The reason is that an inspection company in Germany proved that the average quality of our delivery was lower than that of the samples, and claimed-US dollars and euros from our company.
As the goods are agricultural products, it is impossible to be completely consistent with the samples, but we declare that the goods will not be lower than the samples. However, due to the long time, our samples have long been lost, and our statement cannot be proved by physical objects. Finally, we have to pay each other the quality difference.
From this point of view, in export trade, it is absolutely necessary for the seller to properly keep the copy samples after delivery. Once there is a quality dispute between the buyer and the seller during the performance of the contract, the retained duplicate samples can be rechecked to clarify the responsibilities.
Extended data:
There are some differences between buying and selling by sample and ordinary buying and selling, so when signing a contract for buying and selling by sample, the following three conditions must be met, otherwise it will be difficult to identify it as buying and selling by sample.
1. The sample already existed when the contract was signed.
The sample is the proof that the two parties to the sales contract have reached an agreement on the sample sales contract, so it is difficult to conclude that the two parties have reached an agreement on the sample sales contract if there is no sample at the time of signing the contract.
2. Expression of intention to buy and sell samples.
That is, the parties should stipulate in the contract that the quality of the subject matter is determined by samples or write down the meaning of "buying and selling by samples". If it is only the fact that the parties show the samples to the buyer, but the parties did not clearly express their intention to buy and sell the samples when concluding the contract, then the two parties cannot establish the sale by samples.
Because the "Gage Tip" can only arouse the buyer's interest or let him know the essentials. However, the delivery of samples can at least infer the sales of samples. "
Three, a party to the contract (before) prompt samples.
Most scholars believe that if the seller provides samples to the buyer after the parties conclude the contract, it is not a sample sale.
I basically agree with this view, but at the same time, I think that only one party shows the samples when signing the contract, which does not necessarily lead to the establishment of the sales contract based on samples. If both parties clearly agree that the nature of the sales contract is sales by sample, and the sample already exists when the contract is signed, if the seller provides the sample to the buyer before the performance, and the buyer accepts it, the sales contract shall be deemed to be established by sample.
Of course, in the theory of contract law, it can be explained that when one party submits a sample to the other party for acceptance, the sale is established by the sample, that is, the presentation and acceptance of the sample are all behaviors in the process of concluding a contract by the sample. However, if the buyer refuses to accept the sample, it shall be handled in accordance with Article 6 1 and Article 62 of the Contract Law, and the ordinary sales contract shall be deemed to be established.
It can be seen that the establishment of a sales contract by sample needs to be combined with the above legal facts.
Baidu Encyclopedia-Sales Contract Sample
Baidu encyclopedia-contract law