Study on Original Design Manufacturing Contract

• Main Authors: Chih-Yu Tai, 戴志宇
• Other Authors: Chung-Jau Wu
• Format: Others
• Language: zh-TW
• Published: 2019
• Online Access: http://ndltd.ncl.edu.tw/handle/h4sr5w

碩士 === 國立臺灣大學 === 事業經營法務碩士在職學位學程 === 107 === The defining characteristic of the ODM (Original Design Manufacturing) lies not only in its manufacturing and assembly services, but also the categorical importance of the research, development, and design services that are provided and performed as part of the ODM process. The explicit difference between the ODM service and its often-compared OEM service counterpart is that it provides the additional effort in research, development, and design on top of the common manufacturing and assembly services. The typical sequence of events that accompanies an ODM service can be divided into two phases: the first performs the research, development, and design; and, the second performs the manufacturing or assembly actions. Simultaneously, while the preceding phase is a prerequisite for an ODM service, this is only to serve the ultimate purpose of creating products and goods to turn a profit via making these products and goods available for purchase. In view of the aforementioned feature of the ODM relationship, the said preceding phase shall be governed by the contract which is in the nature of the innominate contract because none of the provisions, rules, requirements relating to the nominate contracts described and stipulated in existing laws is applicable to this preceding phase, and none of the legal customs or practices can be applied to clarify the nature of the preceding phase; furthermore, the nature of the contract governing the said subsequent phase shall be the contract of sale, and thus the parties of the ODM relationship are no different from the buyer and seller in the relationship undertaken by parties during a sale, under the Civil Code since the affairs of manufacture, delivery, receipt, inspection and examination, notice of the result of examination, and payment of the price of the products undertaken during the subsequent phase are the same as those affairs of transfer, delivery, payment, receipt, inspection and examination pertaining to the sale of products and goods under the Civil Code. Moreover, the transfer of rights over property, performance, warranties against defects, warranties of quality, rescission of contracts, reductions in price, delivery of the thing without defects in exchange for a defective thing, compensation for any injury arising from non-performance, payment of the sale price, accepting delivery of the object sold, defense of simultaneous performance, assumption of the profits and dangers of the object sold, and cost burden are the rights and liabilities of the parties in the sale relationship defined in the Civil Code, and the said sale relationship shall include the relationship of sale of personal property, real property and right; provided that only the rights and liabilities, described in the Civil Code, in relation to the relationship of sale of the personal property can be applied to the ODM relationship. Accordingly, the purpose of this thesis is to clarify the nature of the contract governing the ODM relationship, and to specify the rights and liabilities of the buyer and seller in a sale relationship under the Civil Code, and to study the results of applying the provisions and requirements described and set forth in the Civil Code regarding the sale relationship to the ODM relationship. Ultimately, since the nature of the contract governing the ODM relationship still has not been clarified by any decision or judgment of the court of R.O.C. to present date, a perspective has been brought out in the Chapter 5 Conclusion of this thesis, which states that the provisions and requirements described and set forth in the General Provisions of the Part II Obligations of the Civil Code can be applied to the research, development, and design phase of the ODM relationship are essentially the basic rules and criterions applicable to the manufacturing and assembly phase of the ODM relationship, and therefore some provisions and requirements described and set forth in the above General Provisions will be applied repeatedly if necessary and, in consequence, the entire ODM relationship can be defined equally to the sale relationship.