CONTROL OF EXEMPTION CLAUSES ORDINANCE ——附加英文版
Hong Kong
CONTROL OF EXEMPTION CLAUSES ORDINANCE
(CHAPTER 71)
CONTENTS
ion
I PRELIMINARY
hort title
nterpretation and application
he "reasonableness" test
Dealing as consumer"
arieties of exemption clause
ower to amend Schedules 1 and 2
II CONTROL OF EXEMPTION CLAUSES
dance of liability for negligence, breach of contract, etc.
egligence liability
iability arising in contract
nreasonable indemnity clauses Liability arising from sale or
supply of
s
"Guarantee" of consumer goods
Seller's liability
Miscellaneous contracts under which goods pass Other provisions
about
racts
Effect of breach on "reasonableness" test
Evasion by means of secondary contract
Arbitration agreements
III CIRCUMSTANCES WHERE CONTROL DOES NOT APPLY
International supply contracts
Choice of law clauses
Saving for other relevant legislation
Application
IV CONSEQUENTIAL AND OTHER AMENDMENTS
(Omitted)
dule 1. Scope of sections 7, 8, 9 and 12
dule 2. "Guidelines" for application of reasonableness test
dule 3. (Omitted)
Whole document
imit the extent to which civil liability for breach of contract,
or
negligence or other breach of duty, can be avoided by
means of
ract terms and otherwise; and to restrict the
enforceability of
tration agreements. [1 December 1990] L. N. 38 of 1990
PART I PRELIMINARY
hort title
Ordinance may be cited as the Control of Exemption Clauses
Ordinance.
nterpretation and application
In this Ordinance--
iness" includes a profession and the activities of a public
body, a
ic authority, or a board, commission, committee or
other body
inted by the Governor or Government;
ds" has the same meaning as in the Sale of Goods Ordinance (Cap.
26);
ligence" means the breach--
of any obligation, arising from the express or implied terms
of a
ract, to take reasonable care or exercise reasonable skill
in the
ormance of the contract;
of any common law duty to take reasonable care or exercise
reasonable
l (but not any stricter duty);
of the common duty of care imposed by the Occupiers
Liability
nance (Cap. 314); "notice" includes an announcement, whether or
not in
hing, and any other communication or pretended communication;
sonal injury" includes any disease and any impairment of
physical or
al condition.
In the case of both contract and tort, sections 7 to 12 apply
(except
e the contrary is stated in section 11 (4)) only to
business
ility, that is liability for breach of obligations or duties
arising--
from things done or omitted to be done by a person in the course
of a
ness (whether his own business or another's); or
from the occupation of premises used for business purposes
of the
pier, and references to liability are to be read
accordingly; but
ility of an occupier of premises for breach of an obligation or
duty
rds a person obtaining access to the premises for
recreational or
ational purposes, being liability for loss or damage
suffered by
on of the dangerous state of the premises, is not a business
liability
he occupier unless granting that person such access for the
purposes
erned falls within the business purposes of the occupier.
In relation to any breach of duty or obligation, it is
immaterial
her the breach was inadvertent or intentional, or whether
liability
it arises directly or vicariously.
1977 c. 50 ss. 1&14 U. K.]
he "reasonableness" test
In relation to a contract term, the requirement of reasonableness
for
purposes of this Ordinance and section 4 of the
Misrepresentation
nance (Cap. 284) is satisfied only if the court or
arbitrator
rmines that the term was a fair and reasonable one to be
included
ng regard to the circumstances which were, or ought reasonably
to have
, known to or in the contemplation of the parties when the
contract
made.
In determining for the purposes of section 11 or 12 whether a
contract
satisfies the requirement of reasonableness, the court or
arbitrator
l have regard in particular to the matters specified in
Schedule 2;
this subsection does not prevent the court or arbitrator from
holding,
ccordance with any rule of law, that a term which purports to
exclude
estrict any relevant liability is not a term of the contract.
In relation to a notice (not being a notice having
contractual
ct), the requirement of reasonableness under this
Ordinance is
sfied only if the court or arbitrator determines that it would
be fair
reasonable to allow reliance on it, having regard to
all the
umstances obtaining when the liability arose or (but for the
notice)
d have arisen.
In determining (under this Ordinance or the
Misrepresentation
nance (Cap. 284)) whether a contract term or notice
satisfies the
irement of reasonableness, the court or arbitrator shall have
regard
articular (but without prejudice to subsection (2) to whether
(and, if
to what extent) the language in which the term or notice is
expressed
language understood by the person as against whom another
person
s to rely upon the term or notice.
Where by reference to a contract term or notice a person
seeks to
rict liability to a specified sum of money, and the question
arises
er this Ordinance or the Misrepresentation Ordinance (Cap.
284))
her the term or notice satisfies the requirement of
reasonableness,
court or arbitrator shall have regard in particular (but
without
udice to subsection (2) or (4)) to--
the resources which he could expect to be available to him for
the
ose of meeting the liability should it arise; and
how far it was open to him to cover himself by insurance.
It is for the person claiming that a contract term or notice
satisfies
requirement of reasonableness to prove that it does.
1977 c. 50 s. 11 U. K.]
Dealing as consumer"
A party to a contract "deals as consumer" in relation to another
party
he neither makes the contract in the course of a business nor
holds
elf out as doing so;
the other party does make the contract in the course of a
business;
in the case of a contract governed by the law of sale of goods
or by
ion 12, the goods passing under or in pursuance of the contract
are of
pe ordinarily supplied for private use or consumption.
Notwithstanding subsection (1), on a sale by auction or by
competitive
er the buyer is not in any circumstances to be regarded as dealing
as
umer.
It is for the person claiming that a party does not deal as
consumer
rove that he does not.
1977 c. 50 s. 12 U. K.]
arieties of exemption clause
To the extent that this Ordinance prevents the
exclusion or
riction of any liability it also prevents--
making the liability or its enforcement subject to
restrictive or
ous conditions;
excluding or restricting any right or remedy in respect
of the
ility, or subjecting a person to any prejudice in consequence of
his
uing any such right or remedy;
excluding or restricting rules of evidence or procedure, and (to
that
nt) sections 7, 10, 11 and 12 also prevent excluding or
restricting
ility by reference to terms and notices which exclude or
restrict
relevant obligation or duty.
An agreement in writing to submit present or future
differences to
tration is not to be treated under this Ordinance as
excluding or
ricting any liability. [cf. 1977 c. 50 s. 13 U. K.]
ower to amend Schedules 1 and 2
Legislative Council may by resolution amend Schedules 1 and 2.
PART II CONTROL OF EXEMPTION CLAUSES
dance of liability for negligence, breach of contract, etc.
egligence liability
A person cannot by reference to any contract term or to a notice
given
ersons generally or to particular persons exclude or
restrict his
ility for death or personal injury resulting from negligence.
In the case of other loss or damage, a person cannot so
exclude or
rict his liability for negligence except in so far as the
term or
ce satisfies the requirement of reasonableness.
Where a contract term or notice purports to exclude or
restrict
ility for negligence a person's agreement to or awareness of it
is not
tself to be taken as indicating his voluntary acceptance of any
risk.
1977 c. 50 s. 2 U. K.]
iability arising in contract
This section applies as between contracting parties where one of
them
s as consumer or on the other's written standard terms of
business.
As against that party, the other cannot by reference to any
contract
--
When himself in breach of contract, exclude or restrict any
liability
is in respect of the breach; or
claim to be entitled--
to render a contractual performance substantially different from
that
h was reasonably expected of him; or
in respect of the whole or any part of his contractual obligation,
to
er no performance at all,
pt in so far as (in any of the cases mentioned above
in this
ection) the contract term satisfies the requirement of
reasonableness.
1977 c. 50 s. 3 U. K.]
nreasonable indemnity clauses
A person dealing as consumer cannot by reference to any contract
term
ade to indemnify another person (whether a party to the
contract or
in respect of liability that may be incurred by the
other for
igence or breach of contract, except in so far as the contract
term
sfies the requirement of reasonableness.
This section applies whether the liability in question--
is directly that of the person to be indemnified or is incurred
by him
riously;
is to the person dealing as consumer or to someone else. [cf. 1977
c.
. 4 U. K.]
ility arising from sale or supply of goods
"Guarantee" of consumer goods
In the case of goods of a type ordinarily supplied for private
use or
umption, where loss or damage--
arises from the goods proving defective while in consumer use;
and
results from the negligence of a person concerned in the
manufacture
istribution of the goods, liability for the loss or damage
cannot be
uded or restricted by reference to any contract term or
notice
ained in or operating by reference to a guarantee of the goods.
For these purposes--
goods are to be regarded as "in consumer use" when a person is
using
, or has them in his possession for use, otherwise than
exclusively
the purposes of a business; and
anything in writing is a guarantee if it contains or
purports to
ain some promise or assurance (however worded or
presented) that
cts will be made good by complete or partial replacement,
or by
ir, monetary compensation or otherwise.
This section does not apply as between the parties to a contract
under
n pursuance of which possession or ownership of the goods passed.
1977 c. 50 s. 5 U. K.]
Seller's liability
Liability for breach of the obligations arising from section 14
of the
of Goods Ordinance (Cap. 26) (seller's implied undertakings
as to
e, etc.) cannot be excluded or restricted by reference to any
contract
.
As against a person dealing as consumer, liability for breach of
the
gations arising from section 15, 16 or 17 of the Sale of
Goods
nance (Cap. 26) (seller's implied undertakings as to
conformity of
s with description or sample, or as to their quality or fitness
for a
icular purpose) cannot be excluded or restricted by reference to
any
ract term.
As against a person dealing otherwise than as consumer, the
liability
ified in subsection (2) can be excluded or restricted by reference
to
ntract term, but only in so far as the term satisfies the
requirement
easonableness.
The liabilities referred to in this section are not only the
business
ilities defined by section 2 (2), but include those arising under
any
ract of sale of goods. [cf. 1977 c. 50 s. 6 U. K.]
Miscellaneous contracts under which goods pass
Where the possession or ownership of goods passes
under or in
uance of a contract not governed by the law of sale of
goods,
ection (2) to (4) apply in relation to the effect (if any) that
the
t or arbitrator is to give to contract terms excluding or
restricting
ility for breach of obligation arising by implication of law from
the
re of the contract.
As against a person dealing as consumer, liability in respect of
the
's correspondence with description or sample, or their
quality or
ess for any particular purpose, cannot be excluded or
restricted by
rence to any such term.
As against a person dealing otherwise than as consumer, that
liability
be excluded or restricted by reference to such a term, but only
in so
as the term satisfies the requirement of reasonableness.
Liability in respect of--
the right to transfer ownership of the goods, or give possession;
or
the assurance of quiet possession to a person taking
goods in
uance of the contract, cannot be excluded or restricted by
reference
ny such term except in so far as the term satisfies the requirement
of
onableness. [cf. 1977 c. 50 s. 7 U. K.]
r provisions about contracts
Effect of breach on "reasonableness" test
Where for reliance upon it a contract term has to
satisfy the
irement of reasonableness, it may be found to do so and be
given
ct accordingly notwithstanding that the contract has been
terminated
er by breach or by a party electing to treat it as repudiated.
Where on a breach the contract is nevertheless affirmed by a
party
tled to treat as repudiated, this does not of itself
exclude the
irement of reasonableness in relation to any contract term.
1977 c. 50 s. 9 U. K.]
Evasion by means of secondary contract
rson is not bound by any contract term prejudicing or taking
away
ts of his which arise under, or in connection with the performance
of,
her contract, so far as those rights extend to the
enforcement of
her's liability which this Ordinance prevents that
other from
uding or restricting.
1977 c. 50 s. 10 U. K.]
Arbitration agreements
As against a person dealing as consumer, an agreement to submit
future
erences to arbitration cannot be enforced except--
with his written consent signified after the differences in
question
arisen; or
where he has himself had recourse to arbitration in pursuance of
the
ement in respect of any differences.
Subsection (1) does not affect--
the enforcement of an international arbitration agreement
within the
ing of section 2 (1) of the Arbitration Ordinance (Cap. 341);
laced 76 of 1990 s. 2)
the resolution of differences arising under any contract so far
as it
by virtue of Schedule 1, excluded from the operation of section
7, 8,
12.
PART III CIRCUMSTANCES WHERE CONTROL DOES NOT APPLY
International supply contracts
The limits imposed by this Ordinance on the extent to which a
person
exclude or restrict liability by reference to a contract term do
not
y to liability arising under an international supply contract.
The terms of an international supply contract are not subject to
any
irement of reasonableness under section 8 or 9.
For the purposes of this section, an international supply
contract
s a contract--
that is either a contract of sale of goods or a contract under
or in
uance of which the possession or ownership of goods passes;
that is made by parties whose places of business (or, if they
have
, habitual residences) are in the territories of different
States or
in and outside Hong Kong; and
in the case of which--
the goods in question are, at the time of the conclusion
of the
ract, in the course of carriage, or will be carried,
from the
itory of one State to the territory of another, or to or from
Hong
from or to a place outside Hong Kong; or
the acts constituting the offer and acceptance have been done in
the
itories of different States or in and outside Hong Kong; or
) the contract provides for the goods to be delivered to the
territory
State other than that within whose territory the acts
constituting
offer and acceptance were done; or
the acts constituting the offer and acceptance were done in Hong
Kong
the contract provides for the goods to be delivered outside Hong
Kong;
the acts constituting the offer and acceptance were done outside
Hong
and the contract provides for the goods to be delivered to Hong
Kong.
1977 c. 50 s. 26 U. K.]
Choice of law clauses
Where the proper law of a contract is the law of Hong Kong only
by
ce of the parties (and apart from that choice would be the law
of some
r country) sections 7 to 12 do not operate as part of the proper
law.
This Ordinance has effect notwithstanding any contract
term which
ies or purports to apply the law of some other country, where
(either
oth)--
the term appears to the court or arbitrator to have been
imposed
ly or mainly for the purpose of enabling the party imposing
it to
e the operation of this Ordinance; or
in the making of the contract one of the parties dealt as
consumer,
he was then habitually resident in Hong Kong, and the essential
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国家商检局关于执行欧盟普惠制新方案有关问题的通知
国家商检局
国家商检局关于执行欧盟普惠制新方案有关问题的通知
（国检务函〔１９９５〕１４３号 一九九五年六月二日）
各直属商检局：
随着欧洲联盟的建立，欧盟对有关工业品的普惠制给惠方案作了重大修改，同时，对其普惠制原产地规则也作了修改和调整，欧盟普惠制新方案自１９９５年１月１日起实施。国家商检局已委托上海商检局将欧盟普惠制新方案编译成册印发各局。现将执行欧盟普惠制新方案有关问题通知如下：
一、请各局组织产地证签证人员认真学习、研究和掌握欧盟普惠制新方案及有关规定，严格按欧盟新方案签发Ｆｏｒｍ Ａ产地证书。为便于外贸人员及时了解欧盟普惠制新方案，各签证局应积极为出口单位做好宣传咨询和培训工作，争取在欧盟将我国产品毕业之前，进一步积极扩大普惠制的利用，使我国产品进入欧盟市场时，能够较多地享受减免关税的待遇。
二、欧盟１９９４年１２月１９日第３２５４／９４号条例发布的新的原产地规则，与１９８８年３月４日第６３９／８８号条例相比，在内容上主要有以下不同之处，各签证机构在执行中加以注意：
１、增加了有关给惠国成份的规定，这有利于包括我国在内的发展中国家充分有效地利用欧盟普惠制。在采用给惠国成份时，各签证机构签发Ｆｏｒｍ Ａ产地证书时，应参考欧盟成员国海关签发的流动证书欧洲第１号（ＭＯＶＥＭＥＮＴ ＣＥＲＴＩＦＩＣＡＴＥ ＥＵＲ．１）（其样式详见上海商检局编译的欧盟普惠制方案），并在Ｆｏｒｍ Ａ证书第４栏注明“ＥＣ Ｃｕｍｕｌａｔｉｏｎ”。出口商或授权代表应在流动ＥＵＲ．１的第２栏填上“ＧＳＰ ｂｅｎｅｆｉ－
ｃｉａｒｙ ｃｏｕｎｔｒｉｅｓ”和“ＥＣ”。
２、增加了有关区域性原产地累计的规定。在确定产品的原产资格时，东南亚国家联盟、中美洲共同市场和安第斯集体这三个区域性集团的成员国提供的原料和劳务价值要累计。
３、在加工清单中，对个别品目号项下产品的加工要求作出了相应的修改；对原来原产地标准暂未统一的产品现制订了统一的原产地标准，并列入加工工序清单中。
４、明确规定休达和梅利利亚不列入“共同体”的概念范围。
５、为对原产地证书Ｆｏｒｍ Ａ进行事后核实，出口受惠国签证机构应将有关的出口单证及产地证副本至少保存３年。
三、各局应加强对欧盟签发Ｆｏｒｍ Ａ产地证书的签证管理工作，针对欧盟普惠制新方案将产品划分为非常敏感产品、敏感产品、半敏感产品和非敏感产品四大类，认真落实国家商检局提出的加强签证管理的要求，对非常敏感产品、敏感产品重点加强调查管理，同时做好注册、年审、抽查和退证查询四个环节的调查，对出口产品的原产地标准进行严格审核把关。
