Introduction


The defective ventilation of the unit was also due to design.

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Dou Yishen was acting as commander of the left wing of the Chu army, and Dou Bo as commander of the right wing. The men of Chen and Cai fled, and the right wing of the Chu army was thus routed.

The Chu forces raced after in pursuit, whereupon Yuan Chen and Xi Chen, leading the duke's own select troops of the central army, fell upon them from either side. Hu Mao and Hu Yan, leading the upper army, turned about and likewise attacked Dou Yishen from either side, thereby routing the left wing of the Chu army.

Thus the Chu army suffered a resounding defeat. Only Dechen, who had kept his troops back and had not attempted to pursue the enemy, as a result managed to escape defeat. The narrative of the Battle of Chengpu is typical of Zuo zhuan battle narratives: Several of the most notable passages in the Zuo zhuan describe succession crises, which seem to have been fairly common in China during the Spring and Autumn period. This alliance accorded with good faith. In this campaign, the ruler of Jin [Chong'er] was able to attack through the power of virtue.

These "moral of the story" postfaces, which were added later by Confucian scholars, are directed toward those currently in power, reminding them of "the historical precedents and inevitable consequences of their own actions. The historian who conducted the divination replied, "The move will benefit the people but not their ruler. Heaven gave birth to the people and set up a ruler in order to benefit them.

If the people enjoy the benefit, I am bound to share in it. Whether death comes to me early or late is merely a matter of time. If the people will benefit thereby, then nothing could be more auspicious than to move the capital. In the fifth month Duke Wen of Zhu died. He understood the meaning of destiny.

The Zuo zhuan has been recognized as a masterpiece of early Chinese prose and "grand historical narrative" for many centuries. These passages are still part of the Classical Chinese curriculum in mainland China and Taiwan today. The year period the Zuo zhuan covers is now known as the Spring and Autumn period , after the Spring and Autumn Annals , but the Zuo zhuan is the most important source for the period.

From Wikipedia, the free encyclopedia. Redirected from Tso Chuan. In Loewe, Michael; Shaughnessy, Edward. The Cambridge History of Ancient China. In Mair, Victor H. The Columbia History of Chinese Literature. Commentary on the "Spring and Autumn Annals". University of Washington Press. Idema, Wilt; Haft, Lloyd A Guide to Chinese Literature. Center for Chinese Studies, University of Michigan. Harvard University Asia Center. An Anthology of Chinese Literature: In Knechtges, David R.

Ancient and Early Medieval Chinese Literature: A Reference Guide, Part Four. In Nienhauser, William H. Selections from China's Oldest Narrative History. In de Bary, Wm. Sources of Chinese Tradition, Vol. In its offer, [Seller] made reference to the application of its "delivery and payment terms" hereinafter "standard terms" printed on the reverse of its invoices. These terms included the following provisions:. Written notice is to be given for obvious defects within eight days after receipt of the goods.

The goods complained of are to be returned carriage paid. The warranty period is twelve months from delivery from our factory. Liability for damages arising from improper assembly or setting into operation, as well as defective or negligent handling by the buyer or a third party, is excluded. Consequential damages are excluded. Place of performance and exclusive venue for deliveries and payments, as well as any and all disputes arising between the parties, is the principle place of business of the seller.

The relations between the parties to the contract are governed exclusively by the laws in force in the Federal Republic of Germany. When [Seller] thereafter requested an extension of the delivery time until 13 May due to technical problems the specified noise levels were exceeded , [Buyer] saw no other possibility but to grant the request since a third party would have required four or five months to construct a two-cycle table cooler.

At the construction site on 28 May , employees of [Buyer] could only undertake a visual inspection, whereby visual and qualitative defects, namely, corrosion damage and processing defects, were ascertained. Despite these defects, due to deadline pressure [Buyer] was forced to install the table cooler immediately from 29 May to 1 June Subsequently, during a first test run it was discovered that [Seller] had incorrectly installed the temperature registers and the stipulated temperature output could not be produced.

This defect could only be provisionally rectified by reversing the ventilators, as suggested by [Seller]. On 3 June , [Buyer] notified [Seller] in writing that the operation beginnings on 31 May had to cease due to diverse, individually cited, defects for instance, because the loading air temperature already reached 70 degrees Celsius after only twenty minutes. Furthermore, [Buyer] pointed out that as a consequence of the delayed commencement, high additional costs were to be expected due to stipulated penalties.

Thereafter, employees of [Seller] attempted to repair the defects noted by [Buyer] at the construction site. On 12 June , [Seller] notified [Buyer] that it had repaired the defects. On the same day, [Buyer] once again gave notice of defects per fax. Furthermore, [Buyer] informed [Seller] that the plant was opened for provisional operation so that the unit, even with existing defects, would be available for its customer.

According to its writing of 25 June , [Seller] accepted the defects noted by [Buyer] and promised to cure them by 5 July A cure was attempted on 3 July On 12 July , [Buyer] informed [Seller] that its customer was not willing to accept the cooler in its present condition, but rather expected the complete exchange of the cooling system.

In its written response dated 15 July , [Seller] asserted that the notice of defects was unjustified, since it had already cured all justifiably asserted defects. In its written response to that assertion dated 23 July , [Buyer] insisted on its point of view and demanded that the defects be cured by 26 July at the latest or replacement measures would be taken.

On 31 July , [Buyer] further notified that as has since been confirmed the temperature register was distorted, the contractually stipulated performance amount of energy was not attained, and the contractually agreed-upon noise level was far from being reached. In order to keep the damages caused by [Seller] to a minimum, a replacement from a third party was immediately solicited.

There was no longer any reaction to this by [Seller]. There [Buyer], among other things, had to rebuild the rain roof and the fluid collection receptacle and reverse the temperature registers. However, during operation it was determined that the unit, as constructed by [Seller], could not be aerated and was therefore not fully capable of functioning. Due to the electricity contract, from 1 September the unit necessarily remained installed for the time being; in the following winter, provisional operation was possible thanks to the low outdoor temperatures.

However, [Buyer] had to commit itself to deliver a functional unit to its customer thereafter. There, the unit was once again dismantled and newly designed temperature registers were installed so that, regarding this, an entirely new delivery was submitted with which all defects were finally cured.

The table cooler was subsequently brought to its correct destination, installed, and is since in proper operation. In the meantime, [Seller] had delivered to [Buyer] four single-cycle ventilator coolers as per its further order of April and presented its invoice for DM 60, Instead, it responded by way of a letter from its attorney dated 2 January announcing its intention to set-off the costs of curing the defects with the table cooler, which it figured at DM , , against [Seller]'s claim.

In the case at hand, [Seller] is seeking from [Buyer] payment in the amount of DM 60, Further complaints, it claims, were too late, both under the standard terms of the contract and under commercial law. According to the standard terms, notice of defects could only be given in writing within eight days. Furthermore, liability for improper installation or operation is excluded, as well as liability for consequential damages.

Moreover, the alleged repair expense of DM , is disproportionate since it bears no relation to the value of the goods. An irreparable defect is therefore to be presumed. The delivered unit was not returned, so [Buyer] owes compensation of DM 21, The Trial Court dismissed the case.

The facts were essentially already summarized here. Further determinations were that in the process of repairing the table cooler and procuring a replacement, [Buyer] incurred costs of DM 73, With regards to legal findings, the Trial Court was of the opinion that [Seller]'s standard terms became part of the contract. In the court's view, the UN Sales Law did not apply since the ventilator coolers and the table cooler were each individually built to order and therefore the performance of a service was the preponderant part of the obligation.

Since [Seller] delivered a defective two-cycle table cooler to [Buyer] and was no longer willing after 15 July to either cure the legitimately claimed defects or effect an exchange, [Buyer] was presumably obliged to repair the defects itself.

The costs of this surpassed the damages claim, so the claim was settled out of court by a set-off. It modified the rest of the decision by partially granting [Seller]'s appeal in that it reversed the Trial Court regarding rejection of the remaining DM 25, It also pronounced that appeal to the Supreme Court was permissible. This was by virtue of the fact that between the parties, whose places of business are in different States Contracting States of the Convention , a contract for work and materials was formed, which, under Art.

The CISG did not contain a complete ordering of all rights that could arise from a delivery of goods. Particularly, the CISG did not contain any special rules for the assessment of whether standard terms and conditions were to be qualified as part of an offer. This question was to be determined according to the general principles of Art.

Accordingly, in order for the standard terms to be incorporated into the contract, they must have become part of the offer for the offeree according to the discernable intent of the offeror Art. This could also occur impliedly or on the basis of dealings between the parties or from a practice they have established between themselves.

In the present case, it was established that [Buyer] had known the contents of [Seller]'s standard terms. Moreover, it was established that [Seller] referred to the application of its standard terms in its offer to deliver the two-cycle table cooler and [Buyer] did not raise any objection.

The provision within the standard terms, that the relations between the parties to the contract were governed exclusively by the laws in force in the Federal Republic of Germany did not imply a complete exclusion of the Convention, which was possible under Art.

It could not be inferred from the relevant provision of the standard terms that such wording meant only domestic non-uniform law. Insofar as no other clause of the standard terms provides otherwise, the CISG applied to the present case.

According to [Seller]'s standard terms, the immediate inspection of the goods and the timely notice of obvious defects was meaningful for the seller's liability. However, if the buyer does not give proper notice of the defects in accordance with Art. CISG, as long as the exceptions of Art.

In particular, a damages claim for defective goods required that the buyer give proper notice of non-conformity within the given time limits in accordance with Art. Also, claims for delivery of substitute goods and repair under Art. However, the legal consequences of Art. A waiver of notice could be, for example, that the seller accepted a late or unsubstantiated notice and offers a remedy. Such a waiver of notice must also be presumed here on the basis of [Seller]'s standard terms, insofar as [Seller] accepted what under its terms would constitute a late or unsubstantiated notice and offered a remedy.

Accordingly, [Seller] could not claim that [Buyer] did not immediately inspect the goods and did not give written notice of obvious defects within eight days, when [Seller] offered a remedy regarding the defects here obvious defects discoverable with immediate inspection and notice not given within eight days. The inspection period began the moment the goods are made available to the buyer at the place of delivery. The duration of this period depended on the objective conditions of the individual case, especially regarding the type of goods and defect, as well as the necessities and time expenditure required, as for instance with technical test procedures, test runs, etc.

As a rough assessment for orientation purposes, an inspection period of one week five work days could apply. A reasonable inspection customary in the trade should occur that is thorough and business like. With characteristics of the goods that are difficult to inspect such as technically complicated functions , the buyer might have to bring in experts; however, unreasonably expensive or demanding inspections were not required.

With discoverable defects, the notice period began immediately after the short inspection period of Art. With hidden defects, it began as soon as the buyer actually discovers such a defect. However, the buyer must investigate serious reasons to suspect error. As a rough norm for orientation, a notice period of one week could be set.

Thus resulted an orientation time-frame of approximately fourteen days for the entire inspection and notice period. The obligation to immediately inspect the goods upon receipt, however, did not indicate that demands stricter than those of Art.

The requirements regarding the contents of notice should not be pushed too far. Notice must specify the nature of the lack of conformity adequately enough to put the seller in a position to be able to reasonably react to it.

The buyer was obliged to provide further details only inasmuch as he could discover the extent of the lack of conformity except for deviations in quantity with reasonable effort during the notice period.

Each defect was to be substantiated. Notice of one defect did not mitigate the duty to give notice regarding further defects, either present or arising later. Notice for these must also be given, should that be the case. In giving notice of a lack of conformity, the buyer did not yet need to communicate the rights he wants to assert. Whether for claims demanding substitute goods or repair see Art.

The buyer could claim price reduction and money damages, subject only to Art. Based on this legal position, [Seller] claimed wrongly that notice of defects was late. The defect of not reaching the stipulated temperature output was due to the design and first became discoverable during provisional operation in the fall of The defective ventilation of the unit was also due to design.

Notice that would have given [Seller] enough cause to remedy these design related defects at most by substitute delivery , had long existed. Already during the first test run it was ascertained that the temperature gauges were incorrectly installed, so that the stipulated temperature output could not be reached.

Notice of this defect was given immediately. The instructions of [Seller] to reverse the direction of the ventilators did not present a long-term solution, and therefore were not a remedy of the defect. Only after correct arrangement of the temperature gauges could [Buyer] first discover that also in this condition the stipulated temperature performance values were not reached.

Besides the visual defects, for which [Buyer] gave notice by 3 July , there is also the notice regarding the excessive noise levels given by fax of 12 June Due to the waiver of notice which is to be presumed from the conclusion that [Seller] accepted the notified defects with its writing from 25 June , a timely notice was given here as well. In the written notice of defects of 3 June , it was already specified, among other things, that the loading air temperature was too high.

The right to demand a cure Art. It presupposes that the delivered goods are defective and that notice of the defect was timely given, which can be presumed in the case at hand. A natural requirement is that the defect be one that is capable of being repaired.

Also, having regard to all the circumstances, a repair must not be unreasonable for the seller Art. Particularly, it is unreasonable if the cure is disproportionately expensive for the seller. However, the relation between the cost to cure and the purchase price is irrelevant. The seller has the burden to prove and to claim the facts from which the unreasonableness of the cure is alleged, since the obligation to cure is the rule and unreasonableness the exception.

If it is unreasonable to cure, in the case of an objectively serious defect the buyer can require delivery of substitute goods Art. Within a reasonable time after giving notice, the buyer must clearly declare that it is requesting a cure or it will lose this right. The facts of this case are characterized by the peculiarity that, due to technical design defects, an impossibility to effect the requested cure repair of the visual defects was not yet ascertainable at the time the cure was requested.

If the seller does not effect a cure within a reasonable time, the buyer can remedy the defect itself or through a third party and claim the costs from the seller as damages Art. The buyer can also remedy the defect itself claiming the cost as damages against the seller , if a cure is not expected by the seller, i.

However, in doing so, the buyer may not undertake any unreasonable expenditures Art. From this follows that the expense counterclaim is proper insofar as the cost of obtaining a substitute is reasonable measured by the benefit of the cure for the buyer, having regard to his situation. Thus, it is significant that [Buyer] would have been subject to considerable damages claims, of which it had also informed [Seller]. In reason of the situation, deadline pressure, ordering a substitute unit from a third party would have taken months, the fundamental design defects were not yet ascertainable, substantial damages claims were threatening and the costs to remedy the defects, which are recoverable as damages under these principles, the costs to obtain a substitute to remedy the "visual" damages were therefore correctly charged against the [Seller].