Treibacher Industrie

Treibacher Industrie, A. G. v Allegheny Technologies, Inc (2006) Facts: The case proceeded to a bench trial, where TDY and Treibacher disputed the meaning of the term â€Å"consignment†-the delivery term contained in both contracts. ? TDY introduced experts in the metal industry who testified that the term â€Å"consignment,† according to its common usage in the trade, meant that no sale occurred unless and until TDY actually used the TaC. Treibacher introduced evidence of the parties' prior dealings to show that the parties, in their course of dealings (extending over a seven-year period), understood the term â€Å"consignment† to mean that TDY had a binding obligation to pay for all of the TaC specified in each contract but that Treibacher would delay billing TDY for the materials until TDY had actually used them. TDY now appeals. ? TDY contends that, under the CISG, a contract term should be construed according to its customary usage in the industry unless the parties have expressly agreed to another usage. TDY argues, in the alternative, that the district court erred in finding that, in their course of dealings, Treibacher and TDY understood the term â€Å"consignment† to require TDY to use and pay for all of the TaC specified in each contract. ? Finally, TDY contends that, if we uphold the district court's ruling that TDY breached its contracts with Treibacher, we should remand the case for a new trial on damages on the ground that the district court erroneously found that Treibacher reasonably mitigated its damages. SUMMARY AND FINDINGSA) By analysis of the CISG, which governs the formation of and rights and obligations under contracts for the international sale of goods. ? CISG, arts. 1, 4. ?Article 9 of the CISG provides the rules for interpreting the terms of contracts. ? Article 9(1) states that, â€Å"parties are certain by any usage to which they have agreed and by any practices which they have established between themse lves. † ? Article 9(2) then states that, â€Å"parties are considered, unless otherwise agreed, to have impliedly made applicable to their contract which under international trade and well known? All parties to contracts of the type involved in the particular trade concerned. † ? Article 8 of the CISG governs the interpretation of the parties' statements and conduct. ? A party's statements and conduct are interpreted according to that party's actual intent â€Å"where the other party knew ? what that intent was,† CISG, art. 8(1), but, if the other party was unaware of that party's actual intent, then â€Å"according to the understanding that a reasonable person ? would have had in the same circumstances,† CISG, art. (2). ? To determine a party's actual intent, or a reasonable interpretation thereof, â€Å"due consideration is to be given to all relevant circumstances of the case including the negotiations, any practices which the parties have established between themselves, usages and any subsequent conduct of the parties. † ? CISG, art. 8(3). Which Treibacher’s materials in consignment store, published usage reports and invoices to support the order made. One of evidence to goods receive parties are known the action made.In arguing that TDY knowing the term's customary usage takes precedence over the parties' understanding of that term in their course of dealings, in which states that, â€Å"parties are considered, unless otherwise agreed, to have made applicable to their contract† customary trade usages.? In support of its argument, TDY can points it out anytime when they are question and revise the contract in between themselves. If not, intended the word â€Å"agreed,† in article 9, to mean express agreement, as opposed to silent agreement by course of conduct. ? B)?The district court did not commit clear error in finding that, in their course of dealings, TDY and Treibacher defined the term â€Å"con signment† to require TDY to accept and pay for all of the TaC specified in each contract. ? The parties do not dispute that they executed, between 1993 and 2000, a series of contracts in which Treibacher agreed to sell certain hard metal powders, such as TaC, to TDY. ? Which TDY has number of times to discuss the contract and terms, also whereby how Treibacher agreed to sell a fixed quantity of materials at a fixed price for delivery to â€Å"consignment. In additional, some of material needs to install upon TDY's request and all the logistic issue follow in between Treibacher and TDY such kept the materials it received from Treibacher in a â€Å"consignment store,† where the materials were labeled as being from Treibacher and segregated from other vendors' materials with all the usage report and record. ?In each instance, TDY ultimately withdrew and paid for the full quantity of materials specified in each contract.Obviously they had been communicated each other for t he order. In regards of damages claims, the district court did not commit clear error in finding that Treibacher reasonably mitigated its damages. ? The CISG requires a party claiming breach of contract to â€Å"take such measures as are reasonable in the circumstances to mitigate the loss. †, but it places the burden on the breaching party to â€Å"claim a reduction in the damages in the amount by which the loss should have been mitigated. † ?In sum, the district court properly determined that, under the CISG, the meaning the parties assign to a contractual term in their course of dealings establishes the meaning of that term in the face of a conflicting customary usage of the term. Which in the normal practices for order and the judgment of the district court is affirmed.? The district court was not clearly erroneous in finding that Treibacher and TDY understood their contracts to require TDY to purchase all of the TaC specified in each contract and that Treibacher t ook reasonable measures to mitigate its losses after TDY breached. ?

Acupuncture: An Alternative Essay

To support the life of an ailing individual and to relieve pain, the application of formal and conventional medical practice is not alone that can help. The application of complementary and alternative medicine may also relieve the patient of such sufferings. The National Center for Complementary and Alternative Medicine (NCCAM), National Institutes of Health has defined complementary and alternative medicine as â€Å"a group of diverse health care and medical systems, practices and products that are not presently considered to be part of the conventional medicine† (House Select, 2006 p.10). There is a distinction between the complementary medicine alone and alternative medicine alone. Complementary medicine is applied jointly with the conventional medicine such as the use of aromatherapy in reducing the patient’s pain after undergoing a surgery while alternative medicine is applied as a substitute for conventional medicine such as the use of special diet to treat cancer instead of following the physician’s recommendation to undergo surgery or chemotherapy. The NCCAM classifies complementary and alternative medicine into five major categories. They areà § 1.Alternative Medical Systems that are built upon absolute systems of theory and practice that have often developed before and apart from the conventional medicine of the U.S.A. Some of these are homeopathy, hydropathy and naturopathy as well as the Chinese traditional medicine and Ayurveda. 2. Mind-Body Interventions that use a variety of procedures intended to enhance the mind’s capacity to affect bodily function and symptoms such as meditating, praying, mental healing, and therapies that use creative outlets like art, music, or dance. 3.Biologically Based Therapies that use substances found in nature like herbs, foods, and vitamins. These kinds of therapies include dietary supplements, herbal products, and the use of other so-called natural but non-scientifically proven methods like the use of shark cartilage to treat cancer. 4.Manipulative and Body-Based Methods which is based upon manipulation and/or movement of one or more parts of the body like massage and chiropractic or osteopathic manipulation. 5.Energy Therapies that include the use of energy fields. It is divided into two subcategories, the biofield therapies and the bioelectromagnetic-based therapies.   Biofield therapies are intended to affect energy fields that purportedly surround and penetrate the human body such as the application of pressure and/or manipulation of the body by placing the hands in, or through   these fields, i.e., qi gong, reiki, and therapeutic touch. On the other hand the bioelectromagnetic-based therapies entail the unconventional use of electromagnetic fields, such as pulsed fields, magnetic fields, or alternating-current or direct-current fields. According to NCCAM, Acupuncture is an â€Å"energy medicine involving putative energy fields†, or the biofields. (Energy Medicine, 2004) II. What is Acupuncture, Its Philosophies, Purpose, and Treatment Principles? â€Å"Acupuncture can alleviate prolonged pain, discomfort, and anxiety, and end severe dependence on a medical system so huge and impersonal that each patient feels like a forgotten cog in a machine.†Ã‚  (Cargill, 1994, p. 3) That is what Acupuncture can do according to Cargill. But what is it? NCCAM defines Acupuncture as â€Å"a family of procedures involving the stimulation of anatomical points on the body using a variety of techniques, the most common of which is the penetration in the skin with thin, solid, metallic needles that are either manipulated by the hands or by some electrical stimulation†. (An Introduction) The philosophical basis behind Acupuncture for traditional practitioners is the â€Å"qi† (Birch & Felt, 1999, p. 88) or the so called vital energy. Qi flows through the twelve major energy pathways called meridians, each of these is connected to specific internal organs of the body or organ systems and â€Å"three hundred sixty-five to two thousand acupoints† (Freeman & Lawlis, 2001, p. 311). This qi is blocked when there is imbalance of yin and yang, â€Å"two opposing and inseparable forces†(An Introduction), in the body thereby causing illnesses. Acupuncture can relieve the ailment by unblocking the qi through the insertion of needles at specific anatomic points in the body. Simply stated, the purpose of Acupuncture is to heal or therapeutic. Some healing results of acupuncture, according to research, include alleviation of low back pain, headache, pain from osteoarthritis, neck pain, musculoskeletal and myofascial pain, organic pain, and pain before and after surgery. It has also been used for the treatment of postoperative and chemotherapy-induced nausea, neurologic dysfunction, gynecologic and obstetric conditions, asthma, and substance abuse. With Acupuncture, illness or sickness is prevented while better health is restored. III. Brief Summary and Evolution of Acupuncture Acupuncture evolved from the traditional Chinese medicine (TCM). Earliest evidence regarding this practice can be found in the text, â€Å"The Yellow Emperor’s Inner Classic (Huang Di Nei Jing), a collection of 81 treatises compiled between 206 BC and 220 AD†Ã‚  (Freeman ; Lawlis, 2001, p. 316) However, Freeman and Lawlis further noted that â€Å"the oldest surviving classical text dedicated entirely to acupuncture was written sometime in 282 AD by Huang-Fu Mi† entitled, The Comprehensive Manual of Acupuncture and Moxibustion (Zhen Jiu Jia Yi Jing). This book contains the â€Å"combined classical concepts concerning the theories and teachings of acupuncture points, channels, and the cause of illness, diagnosis, and therapeutic needling†Ã‚  (Freeman ; Lawlis, 2001, p. 316) It was in 618 AD when the practice reached its peak in China with the foundation of the Imperial Medical College. During this period, the practice was spreading its influence over other Asian nations such as Japan, Korea and Southeast Asia. Acupuncture attained maximum refinements at the end of the sixteenth century. Although it was in 1971 when Acupuncture became popularly recognized in the United States of America (USA), awareness about this therapeutic practice has been introduced in the country long before this period. The first records and studies of the practice became known to the Americans in 1825 in the publication of Morand’s Memoir on Acupuncturation, a document translated from French by Franklin Bache. However, it was in 1971 when the New York Times correspondent James Reston note down his experience about Acupuncture describing how medical professionals in China utilized needles to alleviate his pain after he have undergone surgery. Currently, the NCCAM reported that in the USA Acupuncture is being â€Å"widely† practiced by thousands of   related medical practitioners such as physicians, dentists, acupuncturists, and other practitioners mainly for alleviation and avoidance of pain and for other health purposes. In fact it was reported that in 2002, the survey showed that 8.2 million of the American adults have made use of Acupuncture. IV. Hazards of the Practice and Its Licensing and Regulatory Requirements The NCCAM provides in its website that the use of Acupuncture has a relatively lower account in terms of health problems and complication despite the huge number of treated individuals in America. Generally the negative complications resulted from the use of inadequately sterilized needles causing serious undesirable effects, including infections and punctured organs. Moreover improper needle placement, patient movements, or a defective needle may cause to tenderness, discomfort, soreness and pain during treatment. The Food and Drug Administration (FDA) regulates acupuncture needles. These needles should be used by licensed practitioners only and need to be manufactured and labeled according to the required standards on   sterilization, nontoxic quality, and must be labeled for single use by qualified practitioners only. Public hearings held   on April 25, 2006 in Asheville, and on September 27, 2006 in New Bern in North Carolina have acknowledged issues regarding the following safety measures in alternative medical practice: a.  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚   Practitioners Training, Qualifications and Credentials of Acupuncturists b.  Ã‚  Ã‚  Ã‚  Ã‚   Consumer Protection of patients c.  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚   Insurance Coverage of patients for possible health problems and side effects d.  Ã‚  Ã‚  Ã‚  Ã‚   An Oversight- Regulatory Board to regulate and control the practice ensuring public safety. Finally, for public awareness the NCCAM Clearinghouse provides information on CAM and NCCAM, as well as publications and searches of Federal databases of medical and scientific texts in service to the American nation regarding alternative medicines. References An Introduction to Acupuncture. (2007). NCCAM Publication No.  D404, NCCAM, National Institutes of Health. Retrieved 15 May 2008 from http://nccam.nih.gov/health/acupuncture/ Birch, S. J., & Felt, R. L. (1999).  Understanding Acupuncture. New York: Churchill Livingstone. Retrieved May 15, 2008, from Questia database: http://www.questia.com/PM.qst?a=o&d=100223449 Cargill, M. (1994).  Acupuncture: A Viable Medical Alternative. Westport, CT: Praeger Publishers. Retrieved May 15, 2008, from Questia database: http://www.questia.com/PM.qst?a=o&d=81902256 Energy Medicine: An Overview. (2004). NCCAM Publication No.  D235, NCCAM, National Institutes of Health. Retrieved 15 May 2008 from http://nccam.nih.gov/health/backgrounds/energymed.htm Freeman, L. W., & Lawlis, G. F. (2001).  Mosby’s Complementary Alternative Medicine: A Research-Based Approach. St. Louis, MO: Mosby. Retrieved May 15, 2008, from Questia database: http://www.questia.com/PM.qst?a=o;d=100735773 House Select Study on Complementary and Alternative Medicine, Final Report to the House of Representatives 2007 North Carolina General Assembly. (2006). Retrieved 15 May 2008, from http://www.ncga.state.nc.us/documentsites/legislativepublications/Study%20Reports%20to%20the%202007%20NCGA/Complementary%20and%20Alternative%20Medicine.pdf