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CISG CASE PRESENTATION

Hungary 25 May 1999 Budapest Arbitration proceeding Vb 97142 (Sour cherries case)
[Cite as: http://cisgw3.law.pace.edu/cases/990525h1.html]

Primary source(s) of information for case presentation: UNCITRAL abstract

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Case identification

DATE OF DECISIONS: 19990525 (25 May 1999)

JURISDICTION: Arbitration ; Hungary

TRIBUNAL: Arbitration Court of the Chamber of Commerce and Industry of Budapest

JUDGE(S): Unavailable

CASE NUMBER/DOCKET NUMBER: VB 97142

CASE NAME: Unavailable

CASE HISTORY: Unavailable

SELLER'S COUNTRY: Hungary (claimant)

BUYER'S COUNTRY: Austria (defendant)

GOODS INVOLVED: Sour cherries


Case abstract

HUNGARY: 25 May 1999 Arbitration Court of Budapest Chamber of Commerce and Industry

Case law on UNCITRAL texts (CLOUT) abstract no. 265

Reproduced with permission from UNCITRAL

An Austrian buyer, defendant, and a Hungarian seller, claimant, signed a contract for the purchase and sale of sour cherries. A part of the goods had already been delivered when the price of cherries rose significantly. The seller was willing to bear the consequences of the increase in price for the goods that had already been delivered, but terminated the contract in respect of the non-delivered goods. The seller claimed that the buyer had given its oral consent to the termination. The buyer denied having given such consent and did not pay for the delivered goods. The buyer claimed that non-delivery of the goods outstanding under the contract had caused the buyer more damage than the value of the goods it had received. The seller claimed payment of the purchase price and the buyer counterclaimed for the damage that it had sustained due to non-delivery.

As each party had its place of business in a Contracting State, the tribunal stated that the Convention was applicable (article 1(1)(a) CISG). The tribunal held that the claim was partially founded, so the buyer had to pay for the goods already delivered (article 62 CISG). As the seller was unable to prove the buyer's consent to the termination of the contract, the tribunal found that the seller was responsible for the damages of the buyer and the buyer was entitled to make a covering purchase (article 47 CISG) [sic?) article 75 CISG?]. The buyer was entitled to terminate the contract concerning the non-delivered part of the goods (article 73(2) CISG). On the other hand, the buyer did not fulfill its duty to mitigate its loss (article 77 CISG). The tribunal held that both the claim and counterclaim were only partially founded and therefore divided the damage between the parties.

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Classification of issues present

APPLICATION OF CISG: Yes [Article 1(1)(a)]

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 51 ; 62 ; 73(2) ; 75 ; 77

Classification of issues using UNCITRAL classification code numbers:

51A [Delivery or conformity of only part of goods];

62A [Seller may compel performance of any of buyer's obligations];

73B [Avoidance in installment contracts: refusal of future installments];

75A [Damages established by substitute transaction];

77A [Obligation to take reasonable measures to mitigate damages]

Descriptors: Specific performance ; Avoidance ; Installment contracts ; Damages ; Cover transactions ; Mitigation of loss

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Editorial remarks

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Citations to other abstracts, case texts and commentaries

CITATIONS TO OTHER ABSTRACTS OF DECISION

English: Unilex database [CLOUT abstract]

CITATIONS TO TEXT OF DECISION

Original language (Hungarian): Printed text available from UNCITRAL

Translation: Unavailable

CITATIONS TO COMMENTS ON DECISION

English: Larry A. DiMatteo et al., 34 Northwestern Journal of International Law & Business (Winter 2004) 299-440 at nn.718, 782; [2005] Schlechtriem & Schwenzer ed., Commentary on UN Convention on International Sale of Goods, 2d (English) ed., Oxford University Press, Art. 73 para. 23a

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Pace Law School Institute of International Commercial Law - Last updated February 15, 2007
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