Techniques contractuelles

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  • Publié le : 15 janvier 2010
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Legal aspects of purchasing


internationally operating staff


Let's kill the lawyers first !
(William Shakespeare)

or . . .

Let's see our lawyer first ?

Copyright Xavier Leclercq –


Table of contents
Header table Legal aspects of Purchasing Should Buyers be lawyers The Law Juridical bonds impacting your job Conditions of validity ofcontracts Ability Consent Legality The Sale Accessories of Price, and Goods The effects of Sale Types of contracts Buyer deals with Types of contracts Buyer deals with Blanket orders, Umbrella contracts Details about Blanket Orders Details about Umbrella contracts Why longer term contracts Partenariat ou RSC Gains lies à la durée Rationales for longer term contracts Consequences of longer term 1st issue: Quality definition State of the art Clause Gant de ski, spécifications Quality improvement Clause Quality improvement Clause 2nd issue : R&D results Prop'ty Buyer and the Intel'al Propty Intellectual Property, in practice Intellectual Property, in practice 3rd issue : Price definition French de-escalation Clause Most Favoured Customer Clause Audit Clause 4th issue : Quantity definition 5thissue : How to define Duration ? Duration : In Practice Factors affecting Duration 6th issue : GCP contradict GCS Buyer & Seller's Responsibilities a) Penalty Vs indemnification b) Mitigation of damages c) Pre-contractual responsibility Letters of intent d) Buyer's responsibility Buyer's responsibility e) Seller's responsibility f) Patent defect and hidden defects Patent defects and hidden defects g)Responsibility in tort h) Total Quality and Responsibility Total Quality and Responsibility i)Reception and Responsibility Buyer and the Competition Law Competition Law, in practice Buyer and the Vienna Convention Vienna Convention : main points Vienna Convention : bad points General Conditions of Sale (GCS) GCS : Seller's heaven, Buyer's hell GCP : Buyer's heaven, Seller's hell GCP : Buyer'sheaven, Seller's hell General Conditions

Copyright Xavier Leclercq –


Should buyers be lawyers ?
Certainly Not : - Their job is commercial. Legal attitudes are not always commercial. - Buyers are too busy to possibly keep abreast of latest legal developments. - Buyers need to refer to a disinterested company lawyer, not too directly involved in operations. Certainly Yes : -More and more legal Pressure everywhere (legal culture universally requested at a certain level of responsibility) - Recent developments of the purchasing function increase it's legal dimension : • Longer term agreements (==>legal bonds tighter and more committing) • Subcontracting, commission manufacturing • Liability questions become dramatic Intellectual property is an increasing issue inPurchasing, with a lot of legal • concepts to be handled • Competition law structures the trade • More international business, source of More, diverse, legal matters In practice : Buyers have to acquire some legal vocabulary, and keep in touch with the lawyer

The Law
Purpose : To make social life organized (and society prosperous ?) Origins : People's choice, +/- direct, or agreement to preparedchoices A wise man's dictation, a king or a leader's grant (France's Fifth Republic "loi fondamentale") God's direct dictation to a prophet (Judaism, Islam ...) Combinations Sources Civil law : Roman law (through church law + Napoleon's reading) + custom (local) + case law Common law : custom through case law International conventions : negotiation (EC conventions takes precedence over nationallaws) Lex mercatoria : custom (Venice ...) Equity : common sense and moral principles et caetera. Sorts : Constitutional, penal, civil (of commerce, of labor, of contracts and obligations ...) Founded on : Power. No law is applicable where your army and police cannot enforce it.




Copyright Xavier Leclercq –


Juridical bonds have an effect on Buyer's job