Provisions for Concluding a Contract for the Sale of Goods Transported by Sea via a Bill of Lading: A Study under the Omani Legal System
Dr. Maen Al-Qassaymeh
Assistant Professor of Commercial Law – College of Law – Sultan Qaboos University Muscat – Oman
This research deals with the issue of concluding a contract for the sale of goods transported by sea through a bill of lading, within the framework of the Omani legal system. It aims at studying the extent to which the provisions relating to the conclusion of this contract are consistent with the general provisions for the conclusion of the sale contract, especially since the goods are at sea when the contract is being concluded. In addition, the sale may take place one or two times or even more before the goods reach the port of destination. This research also aims to study the formal element – which is endorsement – without which this contract does not take place.
The problem that the research seeks to address is that the Omani Maritime Law did not regulate the provisions for endorsement, but rather referred the subject of endorsement of the bill of lading to the endorsement rules that regulate the bill in the commercial law. It is known that these rules are located on a commercial paper with a monetary sum, whereas, the endorsement of the promissory note of lading refers to goods. Therefore, this research comes to study this topic through two sections, the first of which discusses the substantive elements for holding a contract for the sale of goods transported by means of a bill of lading, while the second sheds light on the formal elements of holding this contract.
The research is based on the descriptive and analytical approach; through collecting the legal materials regulating this topic in commercial law and maritime law and then analyzing them to conclude with legal results that govern the holding of this contract. The research has concluded with a number of results, the most important of which is that although the general rules of the sale contract apply to the contract under study, the rule of clearance of defenses may prevent the application of some rules, especially those related to defects of consent.
The research also concluded that the subject of the contract is the commodity itself, and not the bill of lading, which is nothing, but a tool used by the parties to complete the contract. The research presented a number of recommendations, the most prominent of which is the need to establish special rules for endorsing the transfer of ownership that is located on the bill of lading, due to the difference between this bond and commercial papers in terms of the position and parties.
Keywords: bill of lading, general elements of the contract, formal elements of the contract, endorsed seller, endorsing buyer, clearance of defenses.