Concept and Legal Signs of Cargo Contract:

perform contractual obligations. The party that has performed its obligations has the right to request the other party to pay or perform its corresponding obligations.

+ Cancellation of a sales contract is a form of sanction, whereby one party terminates the performance of contractual obligations and makes the contract invalid from the time of signing. Cancellation of a contract can cancel part or all of the contract. The parties do not have to continue to perform their contractual obligations, except for agreements on rights and obligations after the cancellation of the contract and on dispute resolution. The parties have the right to claim benefits due to the performance of their contractual obligations; if both parties have the obligation to make a refund, their obligations must be performed simultaneously; in case it is not possible to make a refund with the benefits received, the obligated party must make a refund in cash.

d. Disclaimer for breach of sales contract:

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Exemption from liability for breach of a sales contract means that the party that breaches its obligations under the sales contract is not subject to sanctions. The parties to a sales contract have the right to agree on the limitation of liability and exemption from contractual liability in specific cases foreseen by the parties when concluding the contract. In addition, exemption from contractual liability is also applied in other cases prescribed by law.

According to the 2005 Commercial Law, in addition to the cases of exemption from liability agreed upon by the parties, the party violating the obligations of the sales contract is also exempted from liability when:

- Force majeure event occurs (an event that occurs objectively and cannot be foreseen and cannot be overcome despite applying all necessary and possible measures).

- The violation of one party is entirely the fault of the other party.

- Violation by one party due to implementation of a decision of a competent state management agency that the parties could not have known at the time of entering into the contract.

4.2 CARRIAGE CONTRACT:

4.2.1 Concept and legal signs of cargo transportation contract:

Freight transport is a type of service in which organizations and individuals doing business in this service carry out the necessary work to move goods from one location to another according to agreements with organizations and individuals in need to receive service fees. Freight transport activities are carried out on a contract basis.

A contract for the carriage of goods is an agreement between parties, in which one party (the carrier) is obliged to transport goods to the agreed destination and deliver the goods to the authorized recipient, while the other party (the charterer) is obliged to pay the freight and other additional charges.

A contract for the carriage of goods has the following characteristic legal features:

- The contract for the carriage of goods is a bilateral contract, of a compensatory nature and in each specific case is a consensual contract or a real contract.

Just like any other service contract, in a freight contract, the parties have equal rights and obligations, the rights of one party are the obligations of the other party and vice versa. The carrier must deliver the goods to the agreed location and is compensated.

Labor. The charterer must pay the fee and receive the goods at the location specified by him. When participating in a transportation contract, both parties gain certain economic benefits.

- The subject of the contract is the activity of transporting goods from one location to another as agreed by the parties,

The subject of the contract of carriage is the activity of transporting goods as a type of service. It is necessary to distinguish between the goods that are the subject of the transport activity and the activity of transporting goods itself.

- Subject of the transport contract relationship:

The subjects of the transportation contract include the lessee and the carrier. The carrier is an organization or individual that has registered a business to perform the service of transporting goods. Transporting goods is a conditional business and only those who meet the conditions prescribed by law can register a business to carry out actual transport activities. In each specific transport field, the law stipulates separate conditions for the subjects doing business in this service. The carrier can be the owner of the means of transport or the lessee of the means of transport.

The lessee is any organization or individual that meets the conditions to become a subject of civil legal relations and has the need to transport goods from one place to another. The lessee may be the owner of the goods to be transported or a person authorized by the owner of the goods to perform tasks related to the transportation of goods. In some cases, the lessee may be another carrier.

In reality, there are many cases where the charterer does not directly receive the goods and therefore, in the transportation relationship, there is the participation of a third party called the consignee. The consignee, although not participating in the contract, still has certain rights and obligations in transportation.

- Form of freight contract:

A contract for the carriage of goods can be concluded orally or in writing. The Civil Code and specialized legal documents on transportation do not require that a contract for the carriage of goods be established in written form.

4.2.2 Classification of freight contracts:

- Based on the means of transport, transportation contracts are divided into:

+ Railway freight contract

+ Contract of carriage of goods by sea

+ Air freight contract

+ Road freight contract

+ Inland waterway freight contract.

- Based on territorial signs, it is divided into domestic freight transport and international freight transport.

- Based on the nationality of the parties, the contract for the carriage of goods with foreign elements is divided into a contract for the carriage of goods without foreign elements.

- Based on the level of participation in the transportation process of transport enterprises and means of transport, single-modal freight transport contracts and multimodal freight transport contracts are divided.

4.2.3 Rights and obligations of the parties in the freight transport relationship:

a. Rights and obligations of the carrier:

In participating in the transportation relationship, the carrier must perform the following obligations and enjoy the following rights:

- Receiving goods transported by the shipping company:

The carrier must provide the means of transport to receive the transported goods according to the agreement of the parties in the transport contract. The means of transport must meet the requirements for receiving, transporting and preserving the goods in accordance with the nature of the goods.

The carrier is obliged to receive the goods transported by the charterer at the agreed time and place. In case the carrier is late in receiving the goods, causing the charterer to incur costs for preserving the goods, the carrier must compensate for such damages. In case the charterer is late in delivering the goods, the carrier has the right to request the charterer to compensate for damages arising from the detention of the means of transport.

- The carrier has the right to refuse to transport property that is not the type of property agreed upon in the contract, goods that do not meet the necessary packaging standards as agreed upon by the parties, goods prohibited from circulation, and goods of a dangerous or toxic nature.

- If the contract stipulates that the lessee is obliged to load the goods onto the means of transport, the carrier is obliged to provide instructions on the arrangement of the goods on the means of transport and has the right to request the lessee to arrange the goods in accordance with the instructions.

- Organize the transportation of goods according to the agreed conditions:

+ Transport goods to the correct delivery location as agreed by the parties. The delivery location can be a railway station, bus station, seaport, river port, airport or any other location specified in the transportation contract.

+ Preservation of goods during transportation: this obligation arises from the time the carrier receives the goods delivered by the charterer and ends when the goods are delivered to the recipient at the delivery location.

- Return goods to the person entitled to receive the goods:

The carriage of goods ends with the carrier delivering the goods to the person entitled to receive the goods. Delivery of the goods is the carrier's basic obligation to the shipper as well as to the person entitled to receive the goods (if the shipper is not also the consignee). To deliver the goods to the person entitled to receive the goods, the carrier must perform the following obligations:

+ Return the transported goods to the correct recipient, return the goods to the person legally entitled to receive the goods with the original bill of lading or waybill or shipping documents.

+ Notify the person entitled to receive the goods of their arrival. If the carrier fails to notify the arrival of the goods, the right to claim compensation for the costs of storing the goods due to late receipt of the goods is lost.

+ Return the goods according to the agreed method: such as delivery by quantity, weight, volume, by counting, weighing, measuring; delivery of containers by lead seal... different delivery methods have different loss rates of goods. Therefore, the return of goods to the person entitled to receive the goods must be carried out according to the method agreed upon by the parties. A principle that must be respected is that when the carrier receives the goods by a method, the goods must be returned by that method.

- The carrier has the right to refuse to return the goods and has the right to retain the goods if the charterer and the consignee have not fully paid the freight and transportation costs or have not received satisfactory assurance for the payment of the above freight and costs.

b. Rights and obligations of the charterer:

The charterer must perform the following obligations:

- Delivery of goods to the carrier:

The charterer is obliged to deliver the goods to the carrier on time and at the agreed location. If not, he must pay the waiting costs and the costs of transporting the goods to the agreed location in the contract. Before delivering the goods to the carrier, the charterer must prepare all legal documents on the goods. The goods must be packaged properly, with full and clear markings and codes. The charterer must bear the costs of loading the goods onto the means of transport unless otherwise agreed by the parties.

The charterer has the right to refuse to load goods onto the means of transport if the means of transport does not meet the technical requirements as agreed or as prescribed by law for transporting such goods.

- Payment of shipping fees:

This is the most basic obligation of the lessee. The fee is based on the agreement of the parties or the fee schedule of public transport business units. The fee can be paid by the lessee or the recipient depending on the agreement. In addition to the transportation fee, the lessee may have to pay other additional transportation fees... The payment period for the fee is based on the agreement of the parties, if there is no agreement, it will be based on the provisions of law.

- Look after goods during transportation:

The parties may agree that the lessee shall assign someone to look after the goods during transportation for the transportation of certain types of goods of great value or goods requiring special care and preservation.

c. Rights and obligations of the person entitled to receive the goods:

In a transportation relationship, the charterer may not be the consignee of the transported goods at the same time. The charterer has the right to designate another person to receive the transported goods. Although not directly entering into a contract, the consignee also has the following rights and obligations:

- Receive the transported goods on time and at the agreed location. To receive the goods, the person entitled to receive the goods must present to the carrier the bill of lading or other documents proving the right to receive the property. If the goods are received late, the incurred costs must be paid.

- Pay the carrier the freight, compensation for vehicle detention, loading and unloading costs or other costs related to the transportation of goods if such amounts have not been paid in advance.

- Notify the lessee of the receipt of the transported goods and other necessary information as required by that party. If no notification is made, the recipient of the goods does not have the right to request the lessee to protect the rights and interests related to the goods.

- The right to check the quantity and quality of goods upon receipt of the transported goods. If there is suspicion that the goods have been lost or damaged during transportation, the recipient and the carrier may request a goods appraisal to assess the extent of the loss and find the cause.

- Require the carrier to pay the costs incurred due to waiting to receive the goods if the carrier is late in delivering the goods.

- Directly request or notify the shipping party to request the shipping party to compensate for damages caused by lost or damaged goods.

4.2.4 Property liability in freight transport relations:

Like all other forms of contractual liability, property liability for breach of a transport contract is only applied when there are specific grounds, the first and most important of which is that there is a breach of obligations arising from the transport relationship. Violations may arise from the conduct of the carrier, the charterer or the party entitled to receive the goods. Each breach may lead to different consequences for the breached party, so the breached party may request the application of different forms of property liability such as: compensation for damages, penalty for overdue payment, penalty for deposit, penalty for breach of payment obligation.

In transportation relations, the form of property liability is often applied and shows many characteristics of compensation for damages. Compensation for damages is often applied to acts of violating the obligation to preserve goods of the carrier, for example, the carrier causes loss or damage to goods.

In principle, the carrier must compensate the charterer for all actual losses, which are the value of the lost goods (in case of lost goods) or the actual decrease in value of the goods (in case of damaged goods).

The carrier is exempted from liability for compensation for loss or damage to goods in the following cases:

- Due to natural characteristics or inherent defects of the transported goods

- Loss of goods at the level allowed by agreement of the parties or according to the provisions of law.

- Due to the fault of the transport hirer, consignee or cargo escort

- Other force majeure...

4.3 LOGISTICS SERVICES CONTRACT:

4.3.1 Concept of logistics service contract:

A logistics service contract is an agreement under which one party (the service provider) is obliged to perform or organize the performance of one or several services related to the circulation of goods, and the other party (the customer) is obliged to pay for the service.

4.3.2 Characteristics of logistics service contracts:

- Is a bilateral contract, a consensual contract and has a compensatory nature.

- The subject of the contract requires one party (the service provider) to have merchant status; the other party (the customer) may or may not be a merchant.

- The subject of the contract is services related to the purchase and sale of goods, such as: organizing the transportation of goods, delivering goods to the carrier, completing necessary paperwork to transport goods, receiving goods from the carrier to deliver to the person entitled to receive the goods...

- Form of contract: the contract is not required to be signed in writing.

4.3.3 Contents of logistics service contract:

- The content of the work that the customer authorizes the freight forwarding service provider to perform.

- Specific requirements for the service

- Service fees and costs related to the performance of freight forwarding services; obligations to pay service fees and costs.

- Time and place of service

- Limitation of liability and disclaimers for service providers.

In addition, depending on each specific case, the parties can agree and record other contents in the contract.

4.3.4 Rights and obligations of the parties in the logistics service relationship:

a. Rights and obligations of logistics service providers:

- Perform the work in accordance with the agreement with the customer.

This is the most basic obligation of a logistics service provider. The service provider must perform tasks related to goods such as packaging, marking, delivering or receiving goods according to the conditions agreed with the customer. These conditions can be recorded in the contract or specifically instructed by the customer based on the provisions of the contract. The service provider has the right to refuse to carry out instructions that are not in accordance with the conditions of the service contract signed with the customer or instructions that are illegal.

- Receive remuneration and costs for performing services:

The service fee is agreed upon by the parties and recorded in the contract. This fee can be determined as an absolute amount or as a percentage of the value of the goods. The fee is agreed upon by the parties and depends on the content and complexity of the delivery work that the customer entrusts to the delivery service provider.

In addition to remuneration, the logistics service provider may require the customer to pay reasonable expenses related to the performance of the service if this is agreed upon by the parties in the contract.

To ensure the obligation to pay remuneration and other reasonable expenses, the service provider has the right to retain and dispose of the goods. However, this only arises when the following conditions exist:

+ Customers do not pay their due debts to service providers.

+ Service providers are only allowed to hold the quantity of goods with value equivalent to the value of the debt that the customer has not paid.

+ The service provider must immediately notify the customer in writing about the retention of goods.

The right to dispose of retained goods of the logistics service provider only arises if after 45 days from the date of retention of goods the customer still fails to pay the debt to the service provider. For goods showing signs of damage, the right to dispose of goods arises immediately when there is any debt of the customer. The disposal of retained goods must comply with the provisions of current law, the costs related to the retention and disposal of goods shall be borne by the customer. The amount of money collected from the disposal of goods, after deducting the costs, shall be used to pay the customer's debts, the remaining amount shall belong to the customer. In case of wrongful retention and disposal of goods causing damage to the customer, the service provider must compensate according to the provisions of law.

b. Customer rights and obligations:

- The right to choose logistics service providers according to the needs and capabilities of the service providers.

- Check and supervise the implementation of service contracts

- Obligation to provide full, detailed and accurate information about goods to service providers

- Provide complete, specific and clear instructions to service providers.

- Pack and mark goods according to the contract, except in cases where the service provider undertakes this work.

- Pay wages and other reasonable costs related to the delivery of goods as agreed in the contract signed between the parties.

4.3.5 Responsibilities of logistics service providers:

Failure of one party to strictly perform its contractual obligations will give rise to contractual liability. This liability may be the liability to properly perform the contract, to cancel the contract, to compensate for damages arising from breach of contract or to impose contractual penalties.

The Commercial Law has some specific provisions on property liability for breach of logistics service contracts as follows:

- Regarding the limitation of liability: Article 238 of the 2005 Commercial Law stipulates: "Unless the parties have agreed otherwise, the total liability of a logistics service trader shall not exceed the liability limit for damage to goods". With this provision, the limitation of liability for compensation for damages of a freight forwarder is an exception to the compensation regime.

In general, Article 302 of the Commercial Law 2005 stipulates that "The value of compensation for damages includes the value of actual, direct loss that the injured party must bear due to the violation and the direct profit that the injured party would have enjoyed if there had been no violation."

A general principle of liability for damages as stipulated in the Civil Code is that the party breaching the contract must be liable for the same amount of damage. However, the logistics service provider is not entitled to limit liability for damages if the person with related rights and interests proves that the loss, damage or delayed delivery was caused by the service provider's intentional action or failure to act to cause the loss, damage or delay or acted or failed to act recklessly and knew that the loss, damage or delay would certainly occur.

- Regarding cases of exemption from liability: Freight forwarders are exempted from contractual liability in the following cases:

+ The logistics service provider is not at fault for breaching the contract.

+ Objective reasons beyond the control of the service provider such as force majeure, strikes or changes in legal policies.

SUMMARY OF CHAPTER IV

Chapter 4 presents regulations on types of contracts in commerce including:

1. Contract for sale of goods:

- Concept: A sales contract is an agreement to establish, change or terminate rights and obligations in a sales relationship.

- Characteristics of goods sale contracts:

+ Regarding the subject of the contract: established mainly between traders

+ In terms of form: the contract is concluded verbally, in writing or by specific actions.

+ Regarding the subject: goods allowed to be circulated commercially

+ Regarding content: includes provisions regulating the rights and obligations of each party in the contract for the sale of goods.