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Article 74. Damages - General Rules for Measuring

TEXT OF ARTICLE 74

Damages for breach of contract by one party consist of a sum equal to the loss, including loss of profit, suffered by the other party as a consequence of the breach. Such damages may not exceed the loss which the party in breach foresaw or ought to have foreseen at the time of the conclusion of the contract, in the light of the facts and matters of which he then knew or ought to have known, as a possible consequence of the breach of contract.


OUTLINE OF ISSUES

Reproduced with permission of UNCITRAL

74A Loss suffered as consequence of breach

74A1 Includes loss of profit

74A11 Computation: loss of volume; overhead costs

74B Outer limits of damages; foreseeability of loss

74B1 As possible consequence of breach

74B2 At time of conclusion of contract

74C Other problems


DESCRIPTORS

Damages ; Consequential damages ; Fault ; Foreseeability of damages ; Proof of damages ; Profits, loss of ; Lost volume losses ; Interest as element of damages ; Legal costs ; Collection costs


CASE ANNOTATIONS: UNCITRAL DIGEST CASES PLUS ADDED CASES

UNCITRAL has identified relevant cases in Digests containing case annotations for each article of the CISG. UNCITRAL cites 90 cases in its Digest of Art. 74 case law:

Austria 3           France   2           Russian Federation        9
Belgium      1 Germany      38 Spain   1
Bulgaria 1 ICC   6 Stockholm Chamber   1
Canada 1 Italy   3 Switzerland 11
China 2 Netherlands   3 United States   5
Finland 3 TOTAL 90

Presented below is a composite list of Art. 74 cases reporting UNCITRAL Digest cases and other Art. 74 cases. All cases are listed in chronological sequence, commencing with the most recent. Asterisks identify the UNCITRAL Digest cases, commencing with the 19 November 2002 citation reported below. Cases are coded to the UNCITRAL Thesaurus.

English texts and full-text English translations of cases are provided as indicated. In most instances researchers can also access from this list UNCITRAL abstracts and link to Unilex abstracts and full-text original-language case texts sourced from Internet websites and other data, including commentaries by scholars, to the extent available.

For a case annotated analysis of issues associated with Article 74, go to CISG-AC Opinion No. 6, dated Spring 2006. Rapporteur: John Y. Gotanda. Analysis endorsed by Jan Ramberg, Chair; Eric E. Bergsten, Michael Joachim Bonell, Alejandro M. Garro, Roy M. Goode, John Y. Gotanda, Sergei N. Lebedev, Pilar Perales Viscasillas, Peter Schlechtriem, Ingeborg Schwenzer, Hiroo Sono, Claude Witz, Members; Loukas A. Mistelis, Secretary.

There are scholars who believe that there are circumstances in which the UNIDROIT Principles of International Commercial Contracts may be used to interpret or supplement this Article of the CISG. See match-up of this Article with counterpart provisions of the Principles and commentary on this subject. To the extent this reasoning fits, cases on the counterpart provisions of the UNIDROIT Principles may be relevant. To the extent available, such cases may be found on the Unilex website.
 

Netherlands 29 July 2009 Rechtbank [District Court] Arnhem (___ v. Omnibus Trading B.V.)

United States 29 May 2009 Federal District Court [New York] (Doolim Corp. v. R Doll LLC et al.) 74A

United States 26 May 2009 U.S. Circuit Court of Appeals [2d Circuit] (Macromex S.r.l. v. Globex International Inc.)

United States 15 April 2009 U.S. District Court [New Jersey] (San Lucia S.r.l. v. Import & Storage Services, LLC) 74A

Austria 2 April 2009 Oberster Gerichtshof [Supreme Court] (Boiler case)

United States 3 April 2009 U.S. District Court [Washington State] (Barbara Berry S.A. de C.V. v. Ken M. Spooner Farms, Inc.) 74B

Netherlands 21 January 2009 Rechtsbank [District Court] Rotterdam (Sleeping Europe B.V. v. Calesco Foil A.B.)

Netherlands 16 January 2009 Rechtsbank [District Court] Breda (Watermelon case) 74A [translation available]
 

Germany 18 November 2008 Oberlandesgericht [Appellate Court] Brandenburg (Beer case) 74A [translation available]

Slovak Republic 28 October 2008 Supreme Court (Wafers case) [translation available]

Netherlands 15 October 2008 Rechtsbank [District Court] Rotterdam (Eyroflam S.A. v. P.C.C. Rotterdam B.V.) 74A [abstract available]

United States 25 July 2008 U.S. District Court [Pennsylvania] (Norfolk Southern Railway Company v. Power Source Supply, Inc.)

Serbia 15 July 2008 Foreign Trade Court of Arbitration, Serbian Chamber of Commerce (Milk packaging equipment case) 74C [translation available]

United States 1 July 2008 U.S. District Court [Minnesota] (Dingxi Longhai Dairy, Ltd v. Becwood Technology Group, L.L.C.)

France 27 May 2008 Cour d'appel [Appellate Court] Rennes (Brassiere cups case) 74A [translation available]

United States 19 May 2008 U.S. District Court [California] (The Rice Corporation v. Grain Board of Iraq)

United States 19 May 2008 U.S. District Court [Florida] (Zhejiang Shaoxing Yongli Printing and Dyeing Co., Ltd v. Microflock Textile Group Corporation)

Switzerland 13 May 2008 Kantonsgericht [District Court] St. Gallen (Skid chains and adaptors case) 74A [translation available]

United States 16 April 2008 U.S. District Court [New York] (Macromex Srl. v. Globex International, Inc.) 74A ; 74A1 ; 74B

Germany 31 March 2008 Oberlandesgericht [Appellate Court] Stuttgart (Automobile case) 74A [translation available]

United States 18 March 2008 U.S. District Court [Kentucky] (Sky Cast, Inc. v. Global Direct Distribution, LLC)

Germany 5 March 2008 Oberlandesgericht [Appellate Court] München (Stolen car case) 74A [translation available]

Netherlands 27 February 2008 Rechtbank [District Court] Zutphen (Frutas Caminito Sociedad Cooperativa Valenciana v. Groente-En Fruithandel Heemskerk BV) 74A [abstract available]

Germany 25 January 2008 Oberlandesgericht [Appellate Court] Hamburg (Café inventory case) 74A [translation available]

Serbia 23 January 2008 Foreign Trade Court of Arbitration, Serbian Chamber of Commerce (Chrystal white sugar case) 74A ; 74B [translation available]
 

American Arbitration Association 12 December 2007 [Final Award] (Macromex Srl. v. Globex International Inc.) 74A

Germany 27 November 2007 Bundesgerichtshof [Federal Supreme Court] (Glass bottles case) [translation available]

Hungary 22 November 2007 Judicial Board of Szeged [Appellate Court] (Clothing case) [translation available]

Switzerland 13 November 2007 Bundesgericht [Supreme Court]

Netherlands 31 October 2007 Rechtbank [District Court] Dordrecht

American Arbitration Association 23 October 2007 [Interim Award] (Macromex Srl. v. Globex International Inc.) 74A

Denmark 19 October 2007 Rettin i Københaven [District Court] (Pony case)

Denmark 17 October 2007 Højesteret [Supreme Court] (Motorcycle case)

Serbia 1 October 2007 Foreign Trade Court of Arbitration, Serbian Chamber of Commerce (Timber case) 74A ; 74A1 ; 7B [translation available]

China October 2007 CIETAC Arbitration Award [CISG 2007/03] (CD-R and DVD-R production line systems case) 74A ; 74A1 [translation available]

Slovak Republic 17 September 2007 Regional Court [Appellate Court] in Nitra (Round wafers case) 74A [translation available]

Switzerland 30 August 2007 Kantonsgericht [District Court] Zug (GMS modular case) [translation available]

Switzerland 26 July 2007 Tribunal cantonal [Appellate Court] Jena (Industrial furnace case)

Germany 6 July 2007 Amtsgericht [Lower Court] Freiburg (Shoe case) 74A [translation available]

Austria 4 July 2007 Oberster Gerichtshof [Supreme Court] (Auto case) [translation available]

Germany 2 July 2007 Oberlandesgericht [Appellate Court] Köln (Cutter head case)

China 30 June 2007 CIETAC Arbitration Award [CISG 2007/04] (Color concrete block production line case) [translation available]

Switzerland 25 June 2007 Handelsgericht [Commercial Court] Zürich (Printed materials case) 74A [translation available]

Switzerland 19 June 2007 Handelsgericht [Commercial Court] Aargau (Railway rails case) [translation available]

Austria 3 May 2007 Handelsgericht [Commercial Court] Vienna (Poppy seed case) 74A1 [translation available]

Switzerland 19 April 2007 Pretore del Distretto [District Court] Lugano (Spring toys case)

Stockholm Chamber of Commerce 5 April 2007 (Pressure sensors case) 74A [English text]

Germany 21 March 2007 Oberlandesgericht [Appellate Court] Dresden (Stolen automobile case) 74A [translation available]

Spain 13 March 2007 Audiencia Provincial [Appellate Court] Valencia (Coconut case) [translation available]

Spain 20 February 2007 Appellate Court Madrid (Sunprojuice DK, Als v. San Sebastian, S.c.A.) 74A [translation available]

France 13 February 2007 Cour de cassation [Supreme Court] (Computer motherboard case) [translation available]

Belgium 22 January 2007 Hof van Beroep [Appellate Court] Antwerp (NV Secremo v. Helmut Papst)

Germany 17 January 2007 Oberlandesgericht [Appellate Court] Saarbrücken (Marble panel case) [translation available]

Germany 12 January 2007 Oberlandesgericht [Appellate Court] Köln (Paperboard containers case) [translation available]

Netherlands 2 January 2007 Gerechtshof [Appellate Court] 's-Hertogenbosch (G.W.A. Bernards v. Carstenfelder Baumschulen Pflanzenhandel GmbH) 74A

Arbitration Chamber of Paris Case No. 9926 of 2007 [assumed date] (Chemical compound case) [English text]
 

Russia 29 December 2006 Arbitration Award 54/2006 (Equipment case) 74A [translation in process]

France 22 December 2006 Tribunal de grande instance [District Court] Strasbourg (Cathode ray tube case) 74A ; 74A1 [translation available]

Switzerland 19 December 2006 Obergericht [Appellate Court] Zug (Stove case) [translation available]

Germany 12 December 2006 Landgericht [District Court] Coburg (Plants case) [translation available]

Switzerland 12 December 2006 Obergericht [Appellate Court] Thurgau (Building materials case) [translation available]

Germany 5 December 2006 Landgericht [District Court] Köln (Plastic faceplates for mobile telephones case) 74A [translation available]

China December 2006 CIETAC Arbitration Award [CISG 2006/05] (Rabbit skin case) 74A ; 74B [translation available]

China December 2006 CIETAC Arbitration Award [CISG 2006/03] (Automobile case) 74A [translation available]

Russia 15 November 2006 Arbitration Award 98/2006

Switzerland 8 November 2006 Zivilgericht [Civil Court] Basel-Stadt (Packaging machine case)

Russia 20 October 2006 Arbitration Award 43/2006

Germany 19 October 2006 Oberlandesgericht [Appellate Court] Koblenz (T-Shirts case) 74A [translation available]

Germany 13 September 2006 Landgericht [District Court] Berlin (Auston Martin automobile case) 74A ; 74B [translation available]

Germany 19 October 2006 Oberlandesgericht [Appellate Court] München (Auto case) 74A [translation available]

Netherlands 13 September 2006 Rechtsbank [District Court] 's-Hertogenbosch (Cruise Holdings S.A. v. Wärtsilä Propulsion Netherlands B.V.)

China September 2006 CIETAC Arbitration Award [CISG 2006/09] (Apparel case) [translation available]

Russia 31 August 2006 Arbitration Award 9/2005

United States 23 August 2006 Federal District Court [New York] (TeeVee Tunes v. Gerhard Schubert GmbH) 74A ; 74A1 ; 74B

Germany 14 August 2006 Oberlandesgericht [Appellate Court] Köln (Potatoes case) 74A [translation available]

China 3 August 2006 CIETAC Arbitration Award [CISG 2006/15] (Water pump case) 74A ; 74A1 ; 74B [translation available]

China August 2006 CIETAC Arbitration Award [CISG 2006/13] (Chilling press case) [translation available]

Netherlands 19 July 2006 Rechtsbank [District Court] Arnhem (Skoda Kovarny v. B. van Dijk Jr. Staalhandelmaatschappij B.V.) 74A ; 74A1 [translation available]

Belgium 28 June 2006 Rechtbank van Koophandel [District Court] Hasselt (Drukkerij Moderna NV v. IVA Groep BV)

Belgium 21 June 2006 Rechtbank van Koophandel [Commercial Court] Hasselt (Globachem NV v. Distriphytos SARL)

Germany 21 June 2006 Amtsgericht [Lower Court] Landsberg (Dust ventilator case) 74A [translation available]

Slovak Republic 26 May 2006 Supreme Court (Wafers case) 74A [translation available]

Switzerland 23 May 2006 Tribunal cantonal [Higher Cantonal Court] Valais (Suits case) 74A [translation available]

Spain 22 May 2006 Court of First Instance of Badalona (Bermuda shorts case) 74A ; 74A1 [translation available]

China 21 May 2006 CIETAC Arbitration Award [CISG/2006/01] (Diesel generators case) 74A [translation available]

Russia 19 May 2006 Arbitration Award 122/2005

China May 2006 CIETAC Arbitration Award [CISG 2006/06] (Canned oranges case) 74A [translation available]

Belgium 24 April 2006 Hof van Beroep [Appellate Court] Antwerpen (GmbH Lothringer Gunther Grosshandelsgesellschaft für Bauelemente und Holzwerkstoffe v. NV Fepco International) 74A [translation available]

Russia 13 April 2006 Arbitration Award 105/2005 74A ; 74A1 ; 74AC [translation available]

United States 4 April 2006 Federal District Court [New Jersey] (Valero Marketing v. Green Oy) 74A

Germany 3 April 2006 Oberlandesgericht [Appellate Court] Köln (Strawberry plants case) 74A [translation available]

Netherlands 21 March 2006 Gerechtshof [Appellate Court] Arnhem (Toys case)

Netherlands 1 March 2006 Rechtbank [District Court] Arnhem 74A ; 74A1 ; 74A11 ; 74B [translation available]

Germany 13 February 2006 Oberlandesgericht [Appellate Court] Köln (Woolen cloth case) [translation available]

Russia 13 February 2006 Arbitration Award 102/2005 (Equipment case) [translation available]

Germany 8 February 2006 Oberlandesgericht [Appellate Court] Karlsruhe (Hungarian wheat case) 74A [translation available]

China February 2006 CIETAC Arbitration Award [CISG 2006/16] (Fluorite case) 74A [translation available]

Poland 27 January 2006 Supreme Court (Metallurgical sand case) 74A [translation available]

Austria 23 January 2006 Oberlandesgericht [Appellate Court] Linz (Auto case) 74A [translation available]

Denmark 20 January 2006 Sø-og Handelsrets Domme [Maritime and Commercial Court] Copenhagen (Motorcycle case)

Russia 20 January 2006 Arbitration Award 84/2005 [translation in process]

Slovak Republic 12 January 2006 Regional Court Trnava (Pumpkins case) [translation available]

Germany 11 January 2006 Bundesgerichtshof [Supreme Court] (Automobile case) [translation available]

United States 6 January 2006 Federal District Court [Pennsylvania] (American Mint LLC v. GOSoftware, Inc.)
 

China 26 December 2005 CIETAC Arbitration Award [CISG 2005/21] (Heating system device case) 74A [translation available]

Switzerland 22 December 2005 Handelsgericht [Commercial Court] Zürich (Retail fashion clothes case) 74A [translation available]

Slovenia 14 December 2005 Higher Court [Appellate Court] Lujubljana (Door and door jamb case) 74A [translation available]

China December 2005 CIETAC Arbitration Award [CISG 2005/23] (Heat transfer oil furnace case) 74A [translation available]

China 9 November 2005 CIETAC Arbitration Award [CISG/2005/04] (DVD machines case) 74A [translation available]

Austria 8 November 2005 Oberster Gerichtshof [Supreme Court] [translation available]

China 31 October 2005 CIETAC Arbitration Award [CISG 2005/10] (Waste plastic case) 74A [translation available]

France 13 October 2005 Cour d'appel [Appellate Court] Versailles (Caterpillar toys case) 74A [translation available]

Spain 26 September 2005 Audiencia Provincial [Appellate Court] Palencia (Printing machine case) 74A [translation available]

China 23 September 2005 New Pudong District People's Court of Shanghai (Xi'an Yun Chang Trade Ltd. v. An Tai International) [translation available]

Belgium 20 September 2005 Rechtbank van Koophandel [Commercial Court] Hasselt (J.M. Smithuis Pre Pain v. Bakkershuis) 74A [translation available]

China 12 September 2005 CIETAC Arbitration Award [CISG 2005/18] (Hydraulic pressure geologic equipment case) 74C [translation available]

China 22 August 2005 CIETAC Arbitration Award [CISG 2005/13] (Valve case) 74A ; 74B [translation available]

Austria 8 August 2005 Oberlandesgericht [Appellate Court] Linz (Spacers for insulation glass case) [translation available]

Ukraine 5 July 2005 Arbitration Award (Medical equipment case) 74A [translation available]

China 24 June 2005 Shanghai No. 2 Intermediate People's Court [District Court] (Children's furniture case) 74C [translation available]

Belgium 1 June 2005 Rechtbank van Koophandel [District Court] Hasselt

Finland 31 May 2005 Hovioikeus / hovrätt [Appellate Court] Helsinki (Crudex Chemicals Oy v. Landmark Chemicals S.A.)

Russia 27 May 2005 Arbitration Award 95/2004 74A ; 74A1 ; 74B [translation available]

Mexico 26 May 2005 Distrito Federal. Acuerdo del Quinto Tribunal Colegiado en Materia Civil del Primer Circuito (Agrofrut Rengo, S.A. v. Levadura Azteca, S.A. de C.V) [Amparo proceeding No. 292/2005 (2915/2005). Appellant: Agrofrut Rengo]

China 25 May 2005 CIETAC Arbitration Award [CISG 2005/09] (Iron ore case) 74A [translation available]

Finland 24 May 2005 Hovioikeus / hovrätt [Appellate Court] Turku (Radiated spice case) 74A ; 74B ; 74C

China 10 May 2005 CIETAC Arbitration Award No. G20010386 (Hat case) 74A [translation available]

United States 27 April 2005 U.S. District Court [Alabama] (Treibacher Industrie, A.G. v. TDY Industries, Inc.) 74A ; 74B

Germany 11 April 2005 Landgericht [District Court] Frankfurt [translation available]

China 7 April 2005 CIETAC Arbitration Award [CISG/2005/01] (Cotton gin motes case) 74A ; 74A1 ; 74B [translation available]

Spain 31 March 2005 Audiencia Provincial [Appellate Court] Valencia (Oranges case) 74A [translation available]

Russia 16 March 2005 Arbitration Award 75/2004 74A [translation available]

China 28 February 2005 CIETAC Arbitration Award [CISG 2005/06] (Wool case) 74A [translation available]

China 24 February 2005 CIETAC Arbitration Award [CISG 2005/07] (Pork case) 74A [translation available]

China 24 February 2005 CIETAC Arbitration Award [CISG 2005/08] (Second pork case) 74A [translation available]

Switzerland 21 February 2005 Kantonsgericht [Appellate Court] Valais (CNC machine case) 74A [translation available]

Belgium 31 January 2005 Rechtbank van Koophandel [Commerical Court] Hasselt (BV Wolvega Panelen v. NV FALL) 74A [translation available]

Russia 24 January 2005 Arbitration Award 68/2004 74A [translation available]

Egypt 16 January 2005 Alexandria Center for International Arbitration (Semi-dried dates case) [English text]

Belgium 12 January 2005 Rechtbank van Koophandel [District Court] Hasselt

China 2005 CIETAC Arbitration Award [CISG 2005/25] (Engine block case) 74A ; 74A1 [translation available]

Ukraine 2005 Arbitration Award Case no. 48 74A1 [translation available]
 

Russia 29 December 2004 Arbitration Award 189/2003 [translation available]

Russia 23 December 2004 Arbitration Award 97/2004 74A ; 74B [translation available]

Russia 21 December 2004 Arbitration Award 39/2003

Germany 10 December 2004 Landgericht [District Court] Bayreuth (Tiles case) 74A [translation available]

Ukraine 18 November 2004 Arbitration Award (Manufactured articles case) 74A [translation available]

France 26 October 2004 Cour d'appel [Appellate Court] Poitiers [translation available]

Belgium 20 October 2004 Hof van Beroep [Appellate Court] Gent 74A [translation available]

Ukraine 19 October 2004 Arbitration Award (Iron and steel castings case) [translation available]

China 29 September 2004 CIETAC Arbitration Award [CISG 2004/05] (India rapeseed meal case) 74A ; 74A1 ; 74B [translation available]

Switzerland 21 September 2004 Amtsgericht [District Court] Luzern-Land 74A [translation available]

China 10 September 2004 Higher People's Court [Appellate Court] of Shandong Province (WS China Import GmbH v. Longkou Guanyuan Food Company) 74A [translation available]

Germany 6 September 2004 Landgericht [District Court] Hamburg [translation available]

Russia 3 September 2004 Arbitration Award 128/2002 74A [translation available]

Austria 29 July 2004 Oberlandesgericht [Appellate Court] Graz (Construction equipment case) 74A [translation available]

Germany 22 July 2004 Oberlandesgericht [Appellate Court] Düsseldorf 74C [translation available]

Germany 20 July 2004 Oberlandesgericht [Appellate Court] Karlsruhe (Shoes case) [translation available]

Belgium 30 June 2004 Hof van Beroep [Appellate Court] Ghent (Van Oers BV v. NV Turbo's Hoet Truckcenter Productie) [translation available]

France 30 June 2004 Cour de Cassation [Supreme Court] [translation available]

Russia 25 June 2004 Arbitration Award 120/2003 [translation available]

Russia 17 June 2004 Arbitration Award 186/2003 74A ; 74A1 ; 74B [translation available]

Belgium 4 June 2004 Rechtbank van Koophandel [District Court] Kortrijk 74A ; 74A1 [translation available]

Germany 1 June 2004 Landgericht [District Court] Saarbrücken (Pallets case) 74A [translation available]

Germany 28 May 2004 Oberlandesgericht [Appellate Court] Düsseldorf 74A [translation available]

Russia 28 May 2004 Arbitration Award 175/2003 74A ; 74A1 ; 74B [translation available]

United States 21 May 2004 U.S. District Court [Illinois] (Chicago Prime Packers v. Norham) 74A

Belgium 10 May 2004 Hof van Beroep [Appellate Court] Gent 74A [translation available]

Switzerland 29 April 2004 Handelsgericht [Commercial Court] St. Gallen [translation available]

Germany 21 April 2004 Oberlandesgericht [Appellate Court] Düsseldorf [15 U 88/03] [translation available]

Russia 9 April 2004 Arbitration Award 129/2003 74A [translation available]

Italy 31 March 2004 Tribunale [District Court] Padova [translation available]

Austria 29 March 2004 Oberster Gerichtshof [Supreme Court] [detailed abstract available]

Russia 19 March 2004 Arbitration Award 135/2003 74A [translation available]

Netherlands 17 March 2004 Rechtbank [District Court] Arnhem [translation available]

Switzerland 12 March 2004 Amtsgericht [County Court] Willisau [translation available]

Germany 10 March 2004 Oberlandesgericht [Appellate Court] Celle [translation available]

Belgium 25 February 2004 Rechtbank van Koophandel [District Court] Hasselt [AR 04/79] 74A [translation available]

Belgium 25 February 2004 Rechtbank van Koophandel [District Court] Hasselt [AR 04/601] 74A [translation available]

Estonia 19 February 2004 Ringkonnakohus [Appellate Court] Tallinn [translation available]

Belgium 18 February 2004 Rechtbank van Koophandel [District Court] Hasselt

Russia 16 February 2004 Arbitration Award 107/2002 74A [translation available]

France 15 February 2004 Cour de Cassation [Supreme Court]

Germany 2 February 2004 Oberlandesgericht [Appellate Court] Zweibrücken 74A [translation available]

Germany 29 January 2004 Oberlandesgericht [Appellate Court] Frankfurt 74A [translation available]

Switzerland 27 January 2004 Kantonsgericht [District Court] Schaffhausen 74A [translation available]

Canada 4 January 2004 Ontario Superior Court of Justice (Shane v. JCB Belgium) 74A
 

China 31 December 2003 CIETAC Arbitration Award [CISG/2003/03] (Clothes case) 74A [translation available]

China 18 December 2003 CIETAC Arbitration Award [CISG/2003/12] (AOE and PECVD machines case) 74A [translation available]

Germany 12 December 2003 Landgericht [District Court] Bielefeld [translation available]

China 10 December 2003 CIETAC Arbitration Award [CISG 2003/04] (Agricultural tools dumped products case) 74A ; 74B [translation available]

Ukraine 10 December 2003 Chamber of Commerce & Trade Arbitration proceeding 74A [translation available]

China 6 November 2003 CIETAC Arbitration Award [CISG 2003/15] (Fiber glass mesh case) 74A [translation available]

Spain 5 November 2003 Audiencia Provincial [Appellate Court] Vizcaya

Switzerland 24 October 2003 Handelsgericht [Commercial Court] Zürich [translation available]

Russia 22 October 2003 Arbitration Award No. 134/2001 74A ; 74A1 [translation available]

Switzerland 20 October 2003 Kantonsgericht [District Court] Schaffhausen 74A [detailed abstract available]

China 17 September 2003 CIETAC Arbitration Award [CISG 2003/14] (Australia cotton case) 74A [translation available]

Germany 15 September 2003 Oberlandesgericht [Appellate Court] Rostock [translation available]

Germany 28 August 2003 Landgericht [District Court] Düsseldorf [translation available]

Switzerland 22 August 2003 Appellationsgericht [Appellate Court] Basel 74A [translation available]

Canada 21 August 2003 British Columbia Supreme Court (Mansonville v. Kurtz) 74A ; 74A1

Switzerland 19 August 2003 Tribunal Cantonal [Appellate Court] Valais [translation available]

Russia 15 August 2003 Arbitration Award No. 57/2001 74A1 ; 74B1 [translation available]

Germany 25 July 2003 Oberlandesgericht [Appellate Court] Düsseldorf [translation available]

China 8 July 2003 CIETAC Arbitration Award [CISG 2003/13] (Copper case) 74A [translation available]

China 7 July 2003 CIETAC Arbitration Award [CISG 2003/18] (Stroller and diaper case) 74A [translation available]

China 26 June 2003 CIETAC Arbitration Award [CISG 2003/10] (Alumina case) 74A ; 74A1 [translation available]

China 19 June 2003 CIETAC Arbitration Award [CISG 2003/09] (PTA case) 74A ; 74B [translation available]

Russia 16 June 2003 Arbitration Award No. 164/2001 74B [translation available]

Spain 7 June 2003 Audiencia Provincial [Appellate Court] Valencia 74A [translation available]

Russia 6 June 2003 Arbitration Award No. 97/2002 74A ; 74C [translation available]

Russia 5 June 2003 Arbitration Award No. 2/2002 74A [translation available]

China 3 June 2003 CIETAC Arbitration Award [CISG/2003/01] (Clothes case) 74A ; 74A1 ; 74B [translation available]

Russia 23 May 2003 Arbitration Award No. 161/2002 74A [translation available]

Australia 24 April 2003 Supreme Court of Victoria (Playcorp Pty LKtd v Taiyo Kogyo Limited) 74A

China 18 April 2003 CIETAC Arbitration Award [CISG 2003/05] (Desulfurization reagent case) 74A ; 74B [English text]

Russia 4 April 2003 Arbitration Award 134/2002 74A [translation available]

Germany 25 March 2003 Landgericht [District Court] Köln 74A [translation available]

Germany 21 March 2003 Landgericht [District Court] Berlin 74A [translation available]

Switzerland 10 March 2003 Kantonsgericht [District Court] Appenzell Auserrhoden 74A [translation available]

Belgium 3 March 2003 Hof van Beroep [Appellate Court] Gent

China 17 February 2003 CIETAC Arbitration Award [CISG 2003/16] (Tire case) 74A [translation available]

Russia 17 February 2003 Arbitration Award No. 168/2001 74A [translation available]

Denmark 6 February 2003 Rettin i Grenaa [District Court] (Check valves case)

United States 29 January 2003 U.S. District Court [Illinois] (Ajax Tool Works v. Can-Eng Manufacturing) 74A ; 74B

China 19 January 2003 CIETAC Arbitration Award [CISG 2003/07] (Ferrochrome case) 74A [translation available]

Australia 17 January 2003 Supreme Court of Western Australia (Ginza Pte Ltd v Vista Corporation Pty Ltd) 74A

Greece 2003 Decision 22513/2003 of the Multi-Member Court of First Instance of Thessaloniki (Machines case)

Hungary 2003 Szegedi Itelotabla [Appellate Court] (Spray pump case) 74A [translation available]

ICC 2003 International Court of Arbitration, Case 11849 (Fashion products case) 74A [English text]
 

China 30 December 2002 CIETAC Arbitration Award [CISG 2002/30] (Manganese case) 74A [translation available]

Russia 24 December 2002 Arbitration Award No. 37/2002 74A [translation available]

China 23 December 2002 CIETAC Arbitration Award [CISG 2002/28] (Hydraulic press case) 74A [translation available]

China 18 December 2002 CIETAC Arbitration Award [CISG 2002/14] (Sausage casing case) 74A [translation available]

China 17 December 2002 CIETAC Arbitration Award [CISG 2002/27] (Production line case) 74A [translation available]

Switzerland 12 December 2002 Kantonsgericht [District Court] Zug 74A [translation available]

Switzerland 3 December 2002 Handelsgericht [Commercial Court] St. Gallen 74A ; 74B [translation available]

Belgium 2 December 2002 Hof van Beroep [Appellate Court] Gent

France 28 November 2002 Cour d’appel [Appellate Court] Grenoble 74A [translation available]

China 27 November 2002 Higher People’s Court of Ningxia Hui [translation available]

Germany 25 November 2002 Oberlandesgericht [Appellate Court] Saarbrücken 74A [translation available]

* United States 19 November 2002 U.S. Circuit Court of Appeals [7th Cir.] (Zapata v. Hearthside) 74A ; 74B

Switzerland 15 November 2002 Cour de Justice [Appellate Court] Genève

Switzerland 11 November 2002 Cour de Justice [Appellate Court] Genève (Iron concretes and steel bars case) 74A [translation available]

China 8 November 2002 CIETAC Arbitration Award [CISG/2002/05] (Canned asparagus case) 74A [translation available]

China 6 November 2002 CIETAC Arbitration Award [CISG 2002/25] (Pipe extrusion case) 74A ; 74B [translation available]

Switzerland 5 November 2002 Handelsgericht [Commercial Court] des Kantons Aargau [translation available]

China 4 November 2002 CIETAC Arbitration Award [CISG 2002/08] (Beech log case) 74A [translation available]

Denmark 30 October 2002 Vestre Landsret [Western High Court] (Potatoes case)

China 21 October 2002 CIETAC Arbitration Award [CISG 2002/16] (Engraving machine case) 74A [translation available]

Belgium 17 October 2002 Hof van Beroep [Appellate Court] Gent

Netherlands 15 October 2002 Netherlands Arbitration Institute Case No. 2319 74A [English text]

China 9 October 2002 CIETAC Arbitration Award [CISG 2002/13] (Elevator case) 74A [translation available]

China 23 September 2002 CIETAC Arbitration Award [CISG 2002/15] (Beech log case) 74A [translation available]

Canada 20 September 2002 Manitoba Court of Queen's Bench (Brown & Root v. Aerotech) 74A

Germany 20 September 2002 [District Court] Göttingen 74A11 [translation available]

China 13 September 2002 CIETAC Arbitration Award [CISG 2002/07] (Velvet clothes case) 74A [translation available]

Switzerland 13 September 2002 Cour de Justice [Appellate Court] Genève [translation available]

China 9 September 2002 CIETAC Arbitration Award [CISG 2002/22] (Elevator case) 74A [translation available]

Germany 22 August 2002 Landgericht [District Court] Freiburg 74A [translation available]

Germany 22 August 2002 Oberlandesgericht [Appellate Court] Schleswig 74A11 [translation available]

China 9 August 2002 CIETAC Arbitration Award [CISG 2002/21] (Yellow phosphorus case) 74A [translation available]

Switzerland 29 July 2002 Obergericht [Appellate Court] Luzern [translation available]

China 26 July 2002 CIETAC Arbitration Award [CISG 2002/12] (Green beans case) 74A [translation available]

Germany 26 July 2002 Oberlandesgericht [Appellate Court] Zweibrücken 74A [translation available]

China 23 July 2002 CIETAC Arbitration Award [CISG/2002/04] (DVD HiFi case) 74A [translation available]

China 15 July 2002 CIETAC Arbitration Award [CISG 2002/19] (Coating equipment case) 74A [translation available]

Austria 11 July 2002 Oberster Gerichtshof [Supreme Court]

Germany 2 July 2002 Landgericht [District Court] Saarbrücken [translation available]

Germany 1 July 2002 Oberlandesgericht [Appellate Court] München [translation available]

China 10 June 2002 CIETAC Arbitration award [translation available]

Germany 4 June 2002 Landgericht [District Court] Stuttgart 74A [translation available]

Austria 31 May 2002 Oberlandesgericht [Appellate Court] Graz (Timber case) [translation available]

China 28 May 2002 CIETAC Arbitration Award [CISG 2002/31] (Headware case) [translation available]

Belgium 22 May 2002 Rechtbank van Koophandel [District Court] Hasselt 74A

* Finland 12 April 2002 Hovrätt [Appellate Court] Turku 74A [translation available]

Germany 11 April 2002 Amtsgericht [Lower Court] Viechtach 74A [translation available]

Russia 22 March 2002 Arbitration Award No. 225/2000 74A ; 74B [translation available]

United States 13 March 2002 U.S District Court [Illinois] (Zapata v. Hearthside) 74B

Belgium 6 March 2002 Rechtbank van Koophandel [District Court] Hasselt [A.R. 2703/01] 74A

China 5 March 2002 Guangxi Beihai Maritime Court 74A [translation available]

Switzerland 1 March 2002 Zivilgericht [Civil Court] Basel 74A [translation available]

Bulgaria 28 February 2002 Bulgaria Chamber of Commerce Arbitration award, Case 26/00 74A [translation available]

Switzerland 25 February 2002 Kantonsgericht [District Court] Shaffhausen 74A [translation available]

Germany 20 February 2002 Landgericht [District Court] München 74A [translation available]

Russia 18 February 2002 Arbitration Award No. 165/2001 74A [translation available]

United States 12 February 2002 U.S District Court [Illinois] (Zapata v. Hearthside) 74A

China 4 February 2002 CIETAC Arbitration Award [CISG/2002/03] (Styrene monomer case) 74A [translation available]

China 4 February 2002 CIETAC Arbitration Award [CISG 2002/17] (Steel bar case) [translation available]

Russia 1 February 2002 Arbitration Award No. 234/2000 74A ; 74B [translation available]

Austria 24 January 2002 Oberlandesgericht [Appellate Court] Graz 74A [translation available]

Belgium 15 January 2002 Tribunal de commerce [District Court] Namur 74A [translation available]

Austria 14 January 2002 Oberster Gerichtshof [Supreme Court] 74A [translation available]

* Germany 9 January 2002 Bundesgerichtshof [Federal Supreme Court] [translation available]

China 2002 Shanghai Yangpu District People's Court (China Xhanghai Dongda Import & Export Corp. v. Germany Laubholz – Meyer Corp) 74A [translation available]
 

China 25 December 2001 CIETAC Arbitration Award [CISG 2001/04] (DVD HiFi case) 74A [translation available]

Germany 21 December 2001 Landgericht [District Court] Hamburg (Natural stones case) 74A ; 74B [translation available]

China 28 November 2001 Higher People's Court [Appellate Court] of Jiangsu Province (Shanghai Shen He Import and Export Ltd. v. Japan Itochu Corp.) [translation available]

Russia 28 November 2001 Arbitration Award No. 108/2001 74A [translation available]

Germany 12 November 2001 Oberlandesgericht [Appellate Court] Hamm (Memory module case) 74A [translation available]

Russia 8 November 2001 Arbitration Court [Appellate Court] for Moscow Region (Case No. KG-A40/6314-01) 74C [translation available]

Germany 31 October 2001 Bundesgerichtshof [Federal Supreme Court] [translation available]

Australia 12 October 2001 Supreme Court of Queensland, Court of Appeal (Downs Investments v. Perwaja Steel) 74A

Belgium 3 October 2001 Rechtbank van Koophandel [District Court] Kortrijk 74A

Italy 28 September 2001 Milan Arbitration proceeding (Steel wire case) 74A [English text]

Germany 30 August 2001 Landgericht [District Court] München 74A [translation available]

United States 28 August 2001 U.S. District Court [Illinois] (Zapata v. Hearthside)

Germany 30 July 2001 Landgericht [District Court] Braunschweig [translation available]

Russia 30 July 2001 Arbitration Award No. 198/2000 74B [translation available]

China 18 July 2001 Zhejiang Cixi People’s Court 74A [translation available]

United States 18 July 2001 U.S. District Court [Illinois] (Zapata v. Hearthside)

Belgium 27 June 2001 Hof van Beroep [Appellate Court] Antwerpen 74A [translation available]

France 12 June 2001 Cour d’appel [Appellate Court] Colmar 74A [translation available]

Russia 30 May 2001 Arbitration Award No. 185/2000 [translation available]

Belgium 4 April 2001 Rechtbank van Koophandel [District Court] Kortrijk 74A

Germany 29 March 2001 Landgericht [District Court] Trier 74C [translation available]

China 22 March 2001 CIETAC Arbitration Award [CISG/2001/02] (Mung bean case) 74A [translation available]

Belgium 14 February 2001 Hof van Beroep [Appellate Court] Gent (NV Van Heygen Staal v. GmbH Stahl- und Metalhandel Klockner)

China 11 January 2001 Supreme Court of the People's Republic of China (Singapore Da Guang Group. v. Jiangsu Machines Import & Export Ltd.) 74A [translation available]
 

China 7 December 2000 CIETAC Arbitration Award [CISG/2000/14] (Refined white sugar case) 74A ; 74A1 ; 74B [translation available]

China 6 December 2000 CIETAC Arbitration Award [CISG 2000/13] (Pharmaceutical products case) 74A [translation available]

Russia 6 December 2000 Arbitration Court [Appellate Court for the Moscow Region] [translation available]

Australia 17 November 2000 Supreme Court of Queensland (Downs Investments v. Perwaja Steel) 74A ; 74A1

* Finland 26 October 2000 Helsingin hoviokeus [Helsinki Court of Appeals] 74A ; 74B [translation available]

Germany 23 October 2000 Oberlandesgericht [Appellate Court] Dresden (Powdered milk case) 74A ; 74B [translation available]

Switzerland 15 September 2000 Bundesgericht [Federal Supreme Court] [4C.105/2000] 74A ; 74B ; 74C [translation available]

Russia 24 August 2000 Arbitation Court [Appellate Court] for the Moscow Region [translation available]

China 10 August 2000 CIETAC Arbitration award 74A [translation available]

China 27 July 2000 CIETAC Arbitration award 74A [translation available]

China 17 July 2000 Higher People's Court [Appellate Court] of He'nan Province (Minterrnet S.A. v. He'nan Local Product Import and Export Company) 74A [translation available]

Italy 12 July 2000 Tribunale [District Court] Vigevano 74A [translation available]

Russia 21 June 2000 Arbitration Court [Appellate Court] for Moscow Region (Case No. KG-A40/2396-00) 74A [translation available]

* Russia 6 June 2000 Arbitration award 406/1998 74A1 ; 74B [translation available]

* Germany 9 May 2000 Landgericht [District Court] Darnstadt 74A [translation available]

* Austria 28 April 2000 Oberster Gerichtshof [Supreme Court] 74A [translation available]

China 27 April 2000 CIETAC Arbitration Award [CISG/2000/05] (Wool case) 74A [translation available]

Russia 21 April 2000 Appellate Division of Arbitration Court for Moscow City (Case No. A 40-39073/99-40-395) 74A [translation available]

Germany 13 April 2000 Amtsgericht [Lower Court] Duisburg 74A [translation available]

Germany 6 April 2000 Landgericht [District Court] München 74A [translation available]

Spain 27 March 2000 Audiencia Provincial [Appellate Court] Navarra

Austria 9 March 2000 Oberster Gerichtshof [Supreme Court] 74A [translation available]

Russia 28 February 2000 Arbitration Court for Moscow City (Case No. A 40-39073/99-40-395) 74A [translation available]

China 11 February 2000 CIETAC Arbitration award 74A [translation available]

China 1 February 2000 CIETAC Arbitration award 74A ; 74B [translation available]

China 31 January 2000 CIETAC Arbitration Award [CISG/2000/09] (Clothes case) 74A ; 74A1 ; 74B [translation available]

Canada 26 January 2000 Ontario Court of Appeal (Nova Tool v. London Industries) 74A

* Russia 24 January 2000 Arbitration award 54/1999 74A ; 74B [translation available]

China 7 January 2000 CIETAC Arbitration Award [CISG/2000/06] (Cysteine case) 74A [translation available]

Hungary 2000 Legfelsobb Birosag [Supreme Court] (Mixing machine case) 74A ; 74B [translation available]
 

China 31 December 1999 CIETAC Arbitration Award 74A ; 74B [translation available]

* Italy 29 December 1999 Tribunale [District Court] Pavia 74A ; 74C [translation available]

Germany 27 December 1999 Oberlandesgericht [Appellate Court] Dresden [translation available]

ICC 20 December 1999 International Court of Arbitration (Copper cable case) 74A [translation available]

China 17 December 1999 Rizho Intermediate People's Court 74A [translation available]

* Germany 30 November 1999 Landgericht [District Court] Köln [translation available]

* Germany 26 November 1999 Oberlandesgericht [Appellate Court] Hamburg 74A [translation available]

Denmark 10 November 1999 Veste Landsret [Western High Court] [translation available]

Germany 28 October 1999 Oberlandesgericht [Appellate Court] Braunschweig 74A [translation available]

France 21 October 1999 Cour d'appel [Appellate Court] Grenoble 74A [translation available]

Switzerland 5 October 1999 Obergericht [Appellate Court] Basel [translation available]

China 10 August 1999 CIETAC Arbitration Award [CISG 1999/35] (Raincoat case) 74A1 [translation available]

Russia 2 August 1999 Arbitration award 516/1996 [translation available]

ICC August 1999 International Court of Arbitration, Case 9083 [translation available]

* Russia 27 July 1999 Arbitration award 302/1996 74A ; 74A1 ; 74B [translation available]

Russia 8 July 1999 Arbitration award 318/1997 74A [translation available]

ICC July 1999 International Court of Arbitration, Case 9448 [English text]

Austria 29 June 1999 Oberster Gerichtshof [Supreme Court] [translation available]

Russia 7 June 1999 Arbitration award 238/1998 74A1 [translation available]

China 4 June 1999 CIETAC Arbitration Award [CISG/1999/28] (Industrial raw material case) 74A [translation available]

Belgium 2 June 1999 Rechtbank van Koophandel [District Court] Hasselt

China June 1999 PRC Arbitration award 74A [translation available]

ICC June 1999 International Court of Arbitration, Case 9187 74A ; 74B [English text]

China 28 May 1999 CIETAC Arbitration award 74A ; 74A1 ; 74B [translation available]

Germany 25 May 1999 Landgericht [District Court] Berlin [translation available]

China 21 May 1999 CIETAC Arbitration Award [CISG/1999/26] (Excavator case) 74A [translation available]

China 20 May 1999 CIETAC Arbitration Award [CISG/1999/25] (Waste aluminum ingots case) 74A [translation available]

Belgium 18 May 1999 Hof van beroep [Appellate Court] Antwerpen (Vandermaesen Viswaren v. Euromar Seafood) 74A [translation available]

Belgium 28 April 1999 Rechtbank van Koophandel [District Court for Commercial Matters] Hasselt

Germany 27 April 1999 Oberlandesgericht [Appellate Court] Naumburg [translation available]

China 12 April 1999 CIETAC Arbitration Award [CISG/1999/22] (Bud rice dregs case) 74A [translation available]

China 8 April 1999 CIETAC Arbitration Award [CISG/1999/21] (New Zealand raw wool case) 74A [translation available]

China 7 April 1999 CIETAC Arbitration Award [CISG/1999/20] (PVC suspension resin case) 74A [translation available]

China 30 March 1999 CIETAC Arbitration Award [CISG/1999/15] (Electric heaters case) 74A [translation available]

China 30 March 1999 CIETAC Arbitration Award [CISG/1999/16] (Flanges case) 74A ; 74A1 [translation available]

China 30 March 1999 CIETAC Arbitration Award [CISG/1999/17] (Electric heater case) [translation available]

China 29 March 1999 CIETAC Arbitration Award [CISG/1999/14] (Flanges case) 74A ; 74A1 [translation available]

China 25 March 1999 CIETAC Arbitration Award [CISG/1999/13] (Women's pants case) 74A [translation available]

Germany 24 March 1999 Bundesgerichtshof [Federal Supreme Court] 74A [translation available]

* Germany 24 March 1999 Landgericht [District Court] Flensburg 74A [translation available]

Russia 22 March 1999 Arbitration award 227/1996 74A [translation available]

China 1 March 1999 CIETAC Arbitration Award [CISG/1999/12] (Canned mandarin oranges case) 74A [translation available]

ICC March 1999 International Court of Arbitration, Case 9978 [English text]

China 25 February 1999 CIETAC Arbitration Award [CISG/1999/10] (Cotton vest case) 74A [translation available]

China 25 February 1999 CIETAC Arbitration Award [CISG/1999/11] (Women's trousers case) 74A [translation available]

* Switzerland 25 February 1999 Kantonsgericht [District Court] Zug 74A [translation available]

China 12 February 1999 CIETAC Arbitration Award [CISG/1999/09] (Nickle plating production line equipment case) 74A [translation available]

China 12 February 1999 CIETAC Arbitration Award [CISG/1999/08] (Chrome plating production line equipment case) 74A ; 74B [translation available]

Switzerland 10 February 1999 Handelsgericht [Commercial Court] Zürich [translation available]

* France 4 February 1999 Cour d'appel [Appellate Court] Grenoble 74A [translation available]

Austria 19 January 1999 Oberster Gerichtshof [Supreme Court] [translation available]

* Germany 13 January 1999 Oberlandesgericht [Appellate Court] Bamberg 74B [translation available]

China 6 January 1999 CIETAC Arbitration Award [CISG/1999/04] (Australian raw wool case) 74A [translation available]

China 1999 CIETAC Arbitration award 74A [translation available]
 

Germany 29 December 1998 Hamburg Arbitration award [translation available]

China 25 December 1998 CIETAC Arbitration Award [CISG/1998/10] (Basic pig iron case) 74A ; 74B [translation available]

China 25 December 1998 CIETAC Arbitration Award [CISG/1998/11] (Pig iron case) 74A [translation available]

* Canada 16 December 1998 Ontario Court, General Division (Nova Tool v. London Industries) 74A

Austria 15 December 1998 Oberster Gerichtshof [Supreme Court] [translation available]

China 15 December 1998 CIETAC Arbitration Award [CISG/1998/09] (Shirt case) 74A [translation available]

* Italy 11 December 1998 Corte di Appello [Appellate Court] Milano 74A [translation available]

Belgium 2 December 1998 Rechtbank van Koophandel [District Court] Hasselt 74A

China 26 November 1998 CIETAC Arbitration Award [CISG/1998/06] (Leather gloves case) 74B [translation available]

Germany 25 November 1998 Bundesgerichtshof [Federal Supreme Court] [translation available]

Germany 15 November 1998 Landgericht [District Court] Karlsruhe [ULIS precedent] 74A [translation available]

Switzerland 5 November 1998 Bezirksgericht [District Court] Sissach 74C [translation available]

Belgium 4 November 1998 Hof van beroep [Appellate Court] Antwerpen [translation available]

Denmark 4 November 1998 Randers Byret [County Court] (Christmas tree case) [translation available]

Switzerland 28 October 1998 Bundesgericht [Federal Supreme Court] (Meat case) 74B [translation available]

Germany 5 October 1998 Oberlandesgericht [Appellate Court] Hamburg 74A [translation available]

China 25 September 1998 CIETAC Arbitration Award [CISG 1998/12] (Health supplement case) 74A [translation available]

Switzerland 21 September 1998 Handelsgericht [Commercial Court] Zürich

Russia 14 September 1998 Arbitration award 131/1996 74A [translation available]

* Russia 11 September 1998 Arbitration award 407/1996 [translation available]

* Germany 2 September 1998 Oberlandesgericht [Appellate Court] Celle 74A [translation available]

China 30 July 1998 CIETAC Arbitration Award [CISG/1998/04] (Cold rolled steel plates case) 74A [translation available]

* Germany 29 July 1998 Landgericht [District Court] Erfurt [translation available]

China 22 June 1998 Shanghai Second Intermediate People's Court [District Court] (China Yitou Group Company. v. Germany Gerhard Freyso LTD GmbH & Co.) 74A ; 74B [translation available]

* Germany 26 May 1998 Oberlandesgericht [Appellate Court] Thüringer, Jena [translation available]

Germany 31 March 1998 Oberlandesgericht [Appellate Court] Zweibrücken (Vine wax case) [translation available]

Germany 24 March 1998 Landgericht [District Court] Berlin (Knitwear case) [translation available]

Switzerland 24 March 1998 Obergericht [Appellate Court] Zug

Russia 5 March 1998 Arbitration award 160/1997 74A [translation available]

Austria 12 February 1998 Oberster Gerichtshof [Supreme Court] [translation available]

* Germany 28 January 1998 Oberlandesgericht [Appellate Court] München 74A [translation available]

China 22 January 1998 CIETAC Arbitration Award [CISG/1998/02] (Hot-rolled steel plate case) 74A [translation available]

China 20 January 1998 CIETAC Arbitration Award 74A [translation available]

France 19 January 1998 Tribunal de commerce [District Court] Besançon [translation available]

* Switzerland 15 January 1998 Tribunale d'appello [Appellate Court] Lugano [translation available]

* Stockholm Chamber of Commerce 1998 Arbitration award 107/1997 74A ; 74B [English text]
 

China 31 December 1997 CIETAC Arbitration Award [CISG/1997/37] (Lindane case) 74A ; 74B [translation available]

* Switzerland 19 December 1997 Handelsgericht [Commercial Court] Aargau 74A [translation available]

France 18 December 1997 Tribunal de commerce [District Court] Colmar [translation available]

Germany 11 December 1997 Landgericht [District Court] Bayreuth

Austria 10 December 1997 Vienna Arbitration award S 2/97 74A1 [translation available]

ICC December 1997 International Court of Arbitration, Case 8817 [translation available]

China 30 November 1997 CIETAC Arbitration Award [CISG/1997/33] (Canned oranges case) 74A ; 74A1 ; 74B [translation available]

China 20 November 1997 CIETAC Arbitration Award [CISG/1997/32] (Rebar coil case) 74A [translation available]

Austria 21 October 1997 Landesgericht [District Court] Leoben

Germany 15 October 1997 Landgericht [District Court] Hagen [translation available]

* Netherlands 2 October 1997 Gerechtshof [Appellate Court] 's Hertogenbosch 74A

Russia 29 September 1997 Arbitration award 470/1996 74A [translation available]

* Switzerland 26 September 1997 Handelsgericht [Commercial Court] Aargau (Cutlery case) 74A [translation available]

* Germany 15 September 1997 Landgericht [District Court] Heilbronn 74B [translation available]

China 8 September 1997 CIETAC Arbitration Award [CISG/1997/27] (BOPP film case) 74A [translation available]

ICC September 1997 International Court of Arbitration, Case 8962 [English text]

Germany 21 August 1997 Oberlandesgericht [Appellate Court] Köln [translation available]

China 18 August 1997 CIETAC Arbitration Award [CISG/1997/26] (Vitamin C case) 74A ; 74B [translation available]

China 5 August 1997 CIETAC Arbitration Award [CISG/1997/25] (Cold-rolled coils case) 74A ; 74B [translation available]

China 23 July 1997 CIETAC Arbitration Award [CISG/1997/23] (Polypropylene case) 74A ; 74A1 ; 74B [translation available]

China 21 July 1997 CIETAC Arbitration Award [CISG/1997/22] (Yam-dyed fabric case) 74A [translation available]

Germany 18 July 1997 Landgericht [District Court] Saarbrücken

China 10 July 1997 CIETAC Arbitration Award [CISG/1997/21] (Carbomide case) 74A ; 74B [translation available]

* Germany 9 July 1997 Oberlandesgericht [Appellate Court] München [7 U 2070/97] [translation available]

China 7 July 1997 CIETAC Arbitration Award [CISG/1997/20] (Isobutanol case) 74A ; 74B [translation available]

China 4 July 1997 CIETAC Arbitration Award [CISG/1997/19] (Gear processing machine case) 74A ; 74B [translation available]

China 27 June 1997 CIETAC Arbitration Award [CISG/1997/18] (Kidney beans case) 74A ; 74A1 ; 74B [translation available]

China 26 June 1997 CIETAC Arbitration Award [CISG/1997/17] (Monohydrate zinc sulphate case) 74A [translation available]

China 25 June 1997 CIETAC Arbitration Award [CISG/1997/16] (Art paper case) 74A [translation available]

* Germany 25 June 1997 Bundesgerichtshof [Federal Supreme Court] 74A [translation available]

* Spain 20 June 1997 Audiencia Provincial [Appellate Court] Barcelona 74C [translation available]

Germany 6 June 1997 Landgericht [District Court] Bielefeld

China 2 June 1997 CIETAC Arbitration Award [CISG/1997/14] (Graphite electrodes scraps case) 74A [translation available]

Austria 27 May 1997 Oberster Gerichtshof [Supreme Court]

China 22 May 1997 CIETAC Arbitration Award [CISG/1997/13] (Soybean oil case) [translation available]

Netherlands 22 May 1997 Arrondissementsrechtbank [District Court] Rotterdam

Russia 13 May 1997 Arbitration award 3/1996 74A [translation available]

Hungary 8 May 1997 Budapest Arbitration award Vb 96036

China 7 May 1997 CIETAC Arbitration Award [CISG/1997/12] (Horsebean case) 74A ; 74B [translation available]

Germany 6 May 1997 Landgericht [District Court] München

China 30 April 1997 CIETAC Arbitration Award [CISG/1997/10] (Molybdenum alloy) 74A [translation available]

China 24 April 1997 CIETAC Arbitration Award [CISG/1997/09] (Oxidized aluminum case) 74A [translation available]

Germany 24 April 1997 Oberlandesgericht [Appellate Court] Düsseldorf 74C [translation available]

China 23 April 1997 CIETAC Arbitration Award [CISG/1997/07] (Peanut case) 74A ; 74B [translation available]

Netherlands 15 April 1997 Gerechtshof [Appellate Court] Arnhem 74A

China 11 April 1997 CIETAC Arbitration Award [CISG/1997/05] (Silicon metal case) 74A [translation available]

China 4 April 1997 CIETAC Arbitration Award [CISG/1997/04] (Black melon seeds case) 74A ; 74A1 ; 74B [translation available]

China 1 April 1997 CIETAC Arbitration Award [CISG/1997/02] (Fishmeal case) [translation available]

Russia 28 March 1997 Arbitration award 38/1996 74A [translation available]

Switzerland 14 March 1997 Tribunal [District Court] Genève

* Germany 13 March 1997 Amtsgericht [Lower Court] Berlin-Tiergarten 74A [translation available]

China 6 March 1997 CIETAC Arbitration award 74A [translation available]

Germany 28 February 1997 Oberlandesgericht [Appellate Court] Hamburg [translation available]

* Switzerland 20 February 1997 Bezirksgericht [District Court] Saane 74C [translation available]

* Switzerland 5 February 1997 Handelsgericht [Commercial Court] Zürich 74A1 ; 74C [translation available]

* ICC February 1997 International Court of Arbitration, Case 8716 74A ; 74B [English text]

* Germany 31 January 1997 Oberlandesgericht [Appellate Court] Koblenz [translation available]

* Italy 30 January 1997 Pretura [District Court] Torino 74A ; 74B [translation available]

ICC 23 January 1997 International Court of Arbitration, Case 8611 74A1 [translation available]

Russia 22 January 1997 Arbitration award 155/1996 74A [translation available]

Belgium 21 January 1997 Rechtbank van Koophandel [District Court] Hasselt

Finland 17 January 1997 Tampere Court of First Instance 74A ; 74B [translation available]

* Germany 8 January 1997 Oberlandesgericht [Appellate Court] Köln 74A11 ; 74B [translation available]

Germany 8 January 1997 Landgericht [District Court] Siegen

* Switzerland 8 January 1997 Obergericht [Appellate Court] Luzern [translation available]

ICC January 1997 International Court of Arbitration, Case 8786 74A ; 74B [English text]

ICC 1997 International Court of Arbitration, Case 8855

ICC 1997 International Court of Arbitration, Case 8782 [English text]
 

China 23 December 1996 CIETAC Arbitration Award [CISG/1996/57] (Carbazole case) 74A [translation available]

China 18 December 1996 CIETAC Arbitration Award [CISG/1996/56] (Lentil case) 74A ; 74B [translation available]

Germany 12 December 1996 Landgericht [District Court] Bielefeld

Germany 9 December 1996 Landgericht [District Court] München

ICC December 1996 International Court of Arbitration, Case 8769 74A [English text]

China 28 November 1996 CIETAC Arbitration Award [CISG/1996/54] (Moly-oxide case) 74A ; 74B [translation available]

China 25 November 1996 CIETAC Arbitration award 74A ; 74B [translation available]

France 21 November 1996 Cour d'appel [Appellate Court] Aix-en-Provence 74A [translation available]

Netherlands 21 November 1996 Arrondissementsrechtbank [District Court] Rotterdam

* Germany 12 November 1996 Amtsgericht [Lower Court] Koblenz 74A [translation available]

China 7 November 1996 CIETAC Arbitration Award [CISG/1996/50] (Stone products case) 74A ; 74B [translation available]

* Finland 5 November 1996 [District Court] Kuopio 74A ; 74B [translation available]

China 26 October 1996 CIETAC Arbitration Award [CISG/1996/49] (Cotton bath towel case) 74A ; 74A1 ; 74B [translation available]

* France 23 October 1996 Cour d'appel [Appellate Court] Grenoble 74A [translation available]

China 17 October 1996 CIETAC Arbitration Award [CISG/1996/47] (Tinplate case) 74A ; 74A1 [translation available]

China 10 October 1996 CIETAC Arbitration Award [CISG/1996/45] (Petroleum coke case) 74A [translation available]

Belgium 9 October 1996 Rechtbank van Koophandel [District Court] Hasselt 74A

Belgium 8 October 1996 Rechtbank van Koophandel [District Court] Hasselt

Germany 2 October 1996 Landgericht [District Court] Heidelberg

* ICC October 1996 International Court of Arbitration, Case 8740 74A [English text]

China 28 September 1996 CIETAC Arbitration Award [CISG/1996/44] (Gloves case) 74A [translation available]

Russia 26 September 1996 Arbitration award 433/1994 74A [translation available]

China 18 September 1996 CIETAC Arbitration Award 74A ; 74A1 [translation available]

China 18 September 1996 CIETAC Arbitration Award [CISG/1996/43] (Agricultural products case) 74A [translation available]

Germany 13 September 1996 Oberlandesgericht [Appellate Court] Düsseldorf

China 4 September 1996 CIETAC Arbitration Award [CISG/1996/41] (Natural rubber case) 74A ; 74A1 ; 74B [translation available]

Germany 4 September 1996 Hamburg Arbitration award [translation available (excerpt)]

ICC September 1996 International Court of Arbitration, Case 8574 74A [English text]

China 30 August 1996 CIETAC Arbitration Award [CISG/1996/40] (Brake pads case) [translation available]

China 16 August 1996 CIETAC Arbitration Award [CISG/1996/39] (Dioctyl phthalate case) 74A ; 74A1 ; 74B [translation available]

China 8 August 1996 CIETAC Arbitration Award [CISG/1996/36] (Diaper machine case) 74A [translation available]

China 6 August 1996 CIETAC Arbitration Award [CISG/1996/35] (Lacquer handicraft case) 74A ; 74B [translation available]

* Germany 2 August 1996 Landgericht [District Court] Bielefeld 74A [translation available]

China 31 July 1996 CIETAC Arbitration Award [CISG/1996/34] (Sport shoes case) 74A [translation available]

China 30 July 1996 CIETAC Arbitration Award [CISG/1996/32] (Molybdenum iron case) 74A [translation available]

China 30 July 1996 CIETAC Arbitration Award [CISG/1996/33] (Ferro-molybdenum alloy case) [translation available]

China 16 July 1996 CIETAC Arbitration Award [CISG/1996/31] (Hot-rolled steel plates case) 74A [translation available]

China 12 July 1996 CIETAC Arbitration Award [CISG/1996/30] (Nickel-plating machines production-line equipment case) 74A [translation available]

China 12 July 1996 CIETAC Arbitration Award [CISG/1996/29] (Chromate plating machine case) 74A [translation available]

China 12 July 1996 CIETAC Arbitration Award [CISG/1996/28] (Chrome-plating machines production-line equipment) 74A [translation available]

Germany 11 July 1996 Oberlandesgericht [Appellate Court] Düsseldorf 74A [translation available]

* Switzerland 10 July 1996 Handelsgericht [Commercial Court] Zürich 74A [translation available]

* Germany 25 June 1996 Landgericht [District Court] Paderborn 74A [translation available]

Germany 25 June 1996 Amtsgericht [Lower Court] Bottrop 74A

* Germany 21 June 1996 Hamburg Arbitration award 74A [translation available]

Germany 17 June 1996 Landgericht [District Court] Hamburg 74A11 [translation available]

Switzerland 31 May 1996 Zürich Chamber of Commerce, Arbitration ZHK 273/1995 74A ; 74B [English text]

China 29 May 1996 CIETAC Arbitration Award [CISG/1996/26] (Handicrafts case) 74A [translation available]

* Germany 21 May 1996 Oberlandesgericht [Appellate Court] Köln 76B [translation available]

Netherlands 21 May 1996 Gerechtshof [Appellate Court] Arnem [translation available]

Netherlands 15 May 1996 Arrondissementsrechtbank [District Court] Amsterdam

China 14 May 1996 CIETAC Arbitration Award [CISG/1996/23] (Down coat case) 74A [translation available]

China 10 May 1996 CIETAC Arbitration Award [CISG/1996/22] (Hot-rolled steel plates case) 74A [translation available]

China 2 May 1996 CIETAC Arbitration Award [CISG/1996/21] ("FeMo" alloy case) 74A ; 74B [translation available]

China 30 April 1996 CIETAC Arbitration Award [CISG/1996/20] (Jacks and bearing brackets case) 74A [translation available]

* Bulgaria 24 April 1996 award, Case 56/1995 74C [translation available]

Germany 19 April 1996 Landgericht [District Court] Aachen

China 17 April 1996 CIETAC Arbitration Award [CISG/1996/19] (Air purifier case) 74A ; 74C [translation available]

China 3 April 1996 CIETAC Arbitration Award [CISG/1996/17] (Plastic bags case) 74A [translation available]

China 29 March 1996 CIETAC Arbitration Award [CISG/1996/16]

China 29 March 1996 CIETAC Arbitration Award [CISG/1996/15] (Caffeine case) 74A [translation available]

* Germany 21 March 1996 Hamburg Arbitration award 74A1 ; 74B [translation available]

China 14 March 1996 CIETAC Arbitration Award [CISG/1996/14] (Dried sweet potatoes case) 74A ; 74A1 [translation available]

Russia 12 March 1996 Arbitration award 166/1996 74A ; 74B [translation available]

Switzerland 11 March 1996 Tribunal Cantonal [Appellate Court] Vaud [01 93 0661]

Switzerland 11 March 1996 Tribunal Cantonal [Appellate Court] Vaud [01 93 1061] 74A [translation available]

China 8 March 1996 CIETAC Arbitration Award [CISG/1996/12] (Old boxboard corrugated cartons case) 74A ; 74B [translation available]

Germany 5 March 1996 Landgericht [District Court] Düsseldorf 74A ; 74A1

Germany 28 February 1996 Landgericht [District Court] Oldenburg (Egg case) 74A [translation available]

* Germany 15 February 1996 Landgericht [District Court] Kassel [11 O (Marble slabs cases) [translation available]

Germany 15 February 1996 Landgericht [District Court] Kassel [11 O 4187/95] (Clothes case) [translation available]

China 14 February 1996 CIETAC Arbitration Award [CISG/1996/09] (Bicycles case) [translation available]

China 12 February 1996 CIETAC Arbitration Award [CISG/1996/08] (Art paper case) 74A ; 74A1 ; 74B [translation available]

Austria 6 February 1996 Oberster Gerichtshof [Supreme Court] 74A [translation available]

China 5 February 1996 CIETAC Arbitration Award [CISG/1996/07] (Antimony ingot case) 74A [translation available]

China 5 February 1996 CIETAC Arbitration Award [CISG/1996/06] (Peanut case) 74A [translation available]

China 30 January 1996 CIETAC Arbitration Award [CISG/1996/05] (Compound fertilizer case) 74A ; 74A1 [translation available]

Germany 29 January 1996 Amtsgericht [Lower Court] Augsburg (Shoe case) 74A [translation available]

Germany 25 January 1996 Landgericht [District Court] München 74A [translation available]

China 22 January 1996 CIETAC Arbitration Award [CISG/1996/04] (Palm oil case) 74A ; 74A1 [translation available]

Russia 22 January 1996 Arbitration award 40/1995 74A [translation available]

China 12 January 1996 CIETAC Arbitration Award [CISG/1996/03] (Scrap copper case) 74A [translation available]
 

Germany 19 December 1995 Landgericht [District Court] Krefeld

China 15 December 1995 CIETAC Arbitration Award [CISG 1995/12] (Used re-rolling rails case ) 74A [translation available]

* United States 6 December 1995 Federal Appellate Court [2nd Circuit] (Delchi Carrier v. Rotorex) 74A ; 74A11 ; 74B1

Hungary 5 December 1995 Budapest Arbitration award Vb 94131 [translation available]

Russia 1 December 1995 Arbitration award 22/1995 74A [translation available]

Switzerland 30 November 1995 Kantonsgericht [District Court] Zug

Germany 16 November 1995 Landgericht [District Court] Köln

Belgium 18 October 1995 Rechtbank van Koophandel [District Court] Hasselt 74A

* Germany 12 October 1995 Landgericht [District Court] Trier [translation available]

Germany 11 October 1995 Landgericht [District Court] Düsseldorf [translation available]

Austria 5 October 1995 Oberlandesgericht [Appellate Court] Linz

Egypt 3 October 1995 Arbitration award (Cairo Chamber of Commerce & Industry) [translation available]

Germany 21 September 1995 Landgericht [District Court] Kassel (Wooden poles case) 74A ; 74B [translation available]

* Switzerland 21 September 1995 Handelsgericht [Commercial Court] Zürich 74A

China 18 September 1995 Chansha Intermediate People's Court Economic Chamber (Skandinaviska v. Hunan Co) 74A [translation available]

Germany 21 August 1995 Landgericht [District Court] Ellwangen [translation available]

China 5 August 1995 CIETAC Arbitration Award [CISG/1995/11] (Hot-rolled steel plates case) 74A ; 74B [translation available]

* Germany 27 July 1995 Oberlandesgericht [Appellate Court] Rostock 74A [translation available]

* Germany 20 July 1995 Landgericht [District Court] Aachen [translation available]

Switzerland 30 June 1995 Gerichtskommission [Judicial Commission] Oberrheintal (Sliding doors case) [translation available]

Germany 23 June 1995 Amtsgericht [Lower Court] München 74B [translation available]

* Germany 9 June 1995 Oberlandesgericht [Appellate Court] Hamm 74A [translation available]

Germany 29 May 1995 Landgericht [District Court] München (Computer hardware case) [translation available]

Austria 23 May 1995 Oberlandesgericht [Appellate Court] Linz

Germany 23 May 1995 Oberlandesgericht [Appellate Court] Frankfurt [translation available]

China 15 May 1995 CIETAC Arbitration Award [CISG/1995/09] (Copper cable case) 74A [translation available]

* Germany 12 May 1995 Amtsgericht [Lower Court] Alsfeld 74A [translation available]

Belgium 2 May 1995 Rechtbank van Koophandel [District Court] Hasselt 74A

Germany 2 May 1995 Landgericht [District Court] Kassel [Benetton I]

Australia 28 April 1995 Federal District Court, Adelaide (Roder v. Rosedown)

China 28 April 1995 CIETAC Arbitration Award [CISG/1995/08] (Rolled wire rod coil case) 74A ; 74A1 [translation available]

* Switzerland 26 April 1995 Handelsgericht [Commercial Court] Zürich 74A [translation available]

Russia 25 April 1995 Arbitration award 142/1994 74A [translation available]

China 23 April 1995 CIETAC Arbitration Award [CISG/1995/07] (Australian raw wool case) 74A [translation available]

China 18 April 1995 CIETAC Arbitration Award [CISG/1995/06] (Clothes case) 74A [translation available]

Germany 5 April 1995 Landgericht [District Court] Landshut [translation available]

China 22 March 1995 CIETAC Arbitration Award [CISG/1995/05] (Down jacket and winter coat case) 74A ; 74B1 [translation available]

Germany 20 March 1995 Landgericht [District Court] München 74A [translation available]

* Russia 16 March 1995 Arbitration award 155/1994 74A [translation available]

China 10 March 1995 CIETAC Arbitration Award [CISG/1995/03] (Polyethylene film case) 74A [translation available]

China 10 March 1995 CIETAC Arbitration Award [CISG/1995/04] (Wool case) 74A [translation available]

Germany 8 March 1995 Amtsgericht [Lower Court] Wangen (Shoes case) [translation available]

* Russia 3 March 1995 Arbitration award 304/1993 [commentary available]

Netherlands 1 March 1995 Arrondissementsrechtbank [District Court] Zwolle

ICC March 1995 International Court of Arbitration, Case 7645 74A [English text]

China 23 February 1995 CIETAC Arbitration award 74A [translation available]

Germany 8 February 1995 Oberlandesgericht [Appellate Court] München [7 U 1720/94] [translation available]

* Germany 8 February 1995 Oberlandesgericht [Appellate Court] München [7 U 3758/94] (Plastic granulate case) [translation available]

* Germany 8 February 1995 Oberlandesgericht [Appellate Court] Hamm [translation available]

Austria 13 January 1995 Landesgericht [District Court] Salzburg

ICC Arbitration Case No. 7754 of January 1995 [English text]

ICC 1995 International Court of Arbitration, Case 8128 74A [translation available]
 

China 28 December 1994 CIETAC Arbitration Award [CISG/1994/15] (Round steel case) 74A [translation available]

Switzerland 15 December 1994 Kantonsgericht [District Court] Zug 74A

Germany 14 December 1994 Oberlandesgericht [Appellate Court] Hamburg

China December 1994 Fujian Higher People's Court [Appellate Court] [translation available]

* Russia 23 November 1994 Arbitration award 251/1993 74A

Russia 17 November 1994 Arbitration award 493/1993

Germany 9 November 1994 Landgericht [District Court] Oldenburg [translation available]

China 25 October 1994 CIETAC Arbitration Award [CISG/1994/13] (High tensile steel bars case) 74A ; 74A1 ; 74B [translation available]

China 19 September 1994 CIETAC Arbitration Award [CISG/1994/11] (Steel case) 74A ; 74B [translation available]

* Russia 9 September 1994 Arbitration award 375/1993 74A

* United States 9 September 1994 Federal District Court [Northern Dist. NY] (Delchi Carrier v. Rotorex) 74A ; 74A11 ; 74B1

China 5 September 1994 CIETAC Arbitration Award [CISG/1994/10] (Weaving machines case) 74A ; 74B [translation available]

* Switzerland 1 September 1994 Kantonsgericht [District Court] Zug 74A

Germany 25 August 1994 Landgericht [District Court] Düsseldorf (Fashion goods case) 74A [translation available]

China 11 August 1994 CIETAC Arbitration Award [CISG/1994/09] (Bicycle case) 74A ; 74B [translation available]

Germany 14 July 1994 Landgericht [District Court] Kassel

Germany 23 June 1994 Landgericht [District Court] Düsseldorf [translation available]

China 17 June 1994 CIETAC Arbitration Award [CISG/1994/08] (Warm rolled steel plates case) 74A ; 74A1 ; 74B [translation available]

* Austria 15 June 1994 Vienna Arbitration award SCH-4318 [translation available]

* Austria 15 June 1994 Vienna Arbitration award SCH-4366 74A [translation available]

Netherlands 15 June 1994 Arrondissementsrechtbank [District Court] Amsterdam 74A

Germany 14 June 1994 Amtsgericht [Lower Court] Nordhorn [translation available]

Germany 4 May 1994 Amtsgericht [Lower Court] Charlottenburg [translation available]

Russia 21 April 1994 Arbitration award 61/1993

Belgium 16 March 1994 Rechtbank van Koophandel [District Court] Hasselt

Netherlands 16 March 1994 Arrondissementsrechtbank [District Court] Zwolle

Germany 2 March 1994 Oberlandesgericht [Appellate Court] München [translation available]

Belgium 23 February 1994 Rechtbank van Koophandel [District Court] Hasselt

Germany 10 February 1994 Oberlandesgericht [Appellate Court] Düsseldorf [6 U 32/93] 74A [translation available]

* Germany 10 February 1994 Oberlandesgericht [Appellate Court] Düsseldorf [6 U 119/93] [translation available]

Netherlands 4 February 1994 Arrondissementsrechtbank [District Court] 's Hertogenbosch

Germany 24 January 1994 Kammergericht [Appellate Court] Berlin [translation available]

Germany 18 January 1994 Oberlandesgericht [Appellate Court] Frankfurt 74C [translation available]

Hungary 17 January 1994 Budapest Arbitration award Vb 92068

* Germany 14 January 1994 Oberlandesgericht [Appellate Court] Düsseldorf 74A [translation available]

* ICC 1994 International Court of Arbitration, Case 7531 74A ; 74B [English text]

ICC 1994 International Court of Arbitration, Case 7565 74A1 [English text]

* ICC 1994 International Court of Arbitration, Case 7660 74C [English text]
 

China 20 December 1993 CIETAC Arbitration Award [CISG/1993/13] (Equipment case) 74A ; 74A1 ; 74B [translation available]

Switzerland 6 December 1993 Tribunal Cantonal [Appellate Court] Vaud [translation available]

Germany 1 December 1993 Landgericht [District Court] Hanover

Germany 1 December 1993 Landgericht [District Court] Memmingen

China 26 October 1993 CIETAC Arbitration Award [CISG/1993/12] (Frozen beef case) 74A1 [translation available]

* Germany 17 September 1993 Oberlandesgericht [Appellate Court] Koblenz 74A [translation available]

Switzerland 9 September 1993 Handelsgericht [Commercial Court] Zürich (Furniture case) 74A [translation available]

Switzerland 1 September 1993 Handelsgericht [Commercial Court] Zürich

Israel 22 August 1993 Supreme Court (Examin v. Textile and Footware) [translation available]

China 7 August 1993 CIETAC Arbitration Award [CISG/1993/11] (Semi-automatic weapons case) [translation available]

China 20 July 1993 CIETAC Arbitration Award [CISG/1993/10] (Shaping machine case) 74A [translation available]

China 10 July 1993 CIETAC Arbitration Award [CISG/1993/09] (Heliotropin case) 74A [translation available]

China 5 July 1993 CIETAC Arbitration Award [CISG/1993/08] (Copperized steel tubes case) 74A [translation available]

* Germany 2 July 1993 Oberlandesgericht [Appellate Court] Düsseldorf 74A [translation available]

Germany 24 May 1993 Landgericht [District Court] München

* Germany 14 May 1993 Landgericht [District Court] Aachen 74B [translation available]

Switzerland 7 May 1993 Richteramt [District Court] Laufen [translation available]

* Netherlands 6 May 1993 Arrondissementsrechtbank [District Court] Roermond 74A

Germany 28 April 1993 Landgericht [District Court] Krefeld 74A

China 20 April 1993 Xiamen Intermediate People's Court [District Court] (Lianzhong Enterprise Resources (Hong Kong) Ltd. v. Xiamen International Trade & Trust Co.) 74A [translation available]

Germany 14 April 1993 Amtsgericht [Lower Court] Cloppenburg [translation available]

China 1 April 1993 CIETAC Arbitration award 74A ; 74B [translation available]

China 27 February 1993 CIETAC Arbitration Award [CISG/1993/01] (Bread improving tablet case) [translation available]

China 25 February 1993 CIETAC Arbitration Award [CISG/1993/05] (Terylene texturing machine case) 74A ; 74B [translation available]

China 20 January 1993 CIETAC Arbitration Award [CISG/1993/04] (Ferrosilicon case) 74A [translation available]

Germany 13 January 1993 Oberlandesgericht [Appellate Court] Saarbrücken (Doors case) [translation available]

China 9 January 1993 CIETAC Arbitration Award [CISG/1993/03] (Linseed cake case) 74A [translation available]

China 1993 People's Court (International Industrial Company C of Hong Kong v. Five Mines Machinery Industrial Chemichas and Chinese Medicine Import-Export Company)

China Post-1992 CIETAC Arbitration Award [CISG/1993/14] (White cardboard scrap paper case) 74A [translation available]
 

* China 31 December 1992 Xiamen Intermediate People's Court (Lian Zhong v. Xiamen Trade)

Germany 24 November 1992 Landgericht [District Court] Krefeld (Shoes case) [translation available]

Germany 19 November 1992 Landgericht [District Court] Göttingen 74B1

* Belgium 13 November 1992 Tribunal commercial [District Court] Bruxelles 74A [translation available]

Germany 14 October 1992 Amtsgericht [Lower Court] Zweibrücken (Shoes case) 74A [translation available]

* Germany 6 October 1992 Landgericht [District Court] Berlin 74A [translation available]

Germany 30 September 1992 Landgericht [District Court] Berlin 74A [translation available]

Germany 22 September 1992 Oberlandesgericht [Appellate Court] Hamm (Frozen bacon case) 74A [translation available]

Germany 3 July 1992 Landgericht [District Court] Heidelberg [translation available]

* ICC 1992 International Court of Arbitration, Case 7197 74A

* ICC 1992 International Court of Arbitration, Case 7585 74A ; 74B [English text]
 

China 16 December 1991 CIETAC Arbitration Award [CISG/1991/05] (Cold-rolled steel plates case) 74A [translation available]

* Netherlands 27 November 1991 Gerechtshof [Appellate Court] 's Hertogenbosch 74A

* China 30 October 1991 CIETAC Arbitration award 74A [translation available]

Germany 27 September 1991 Oberlandesgericht [Appellate Court] München [ULIS precedent] 74A

Germany 16 September 1991 Landgericht [District Court] Frankfurt 74A [translation available]

Netherlands 13 September 1991 Hoge Raad [Supreme Court]

Germany 2 September 1991 Oberlandesgericht [Appellate Court] Celle 74A1

* Germany 14 August 1991 Landgericht [District Court] Baden-Baden [translation available]

China 19 April 1991 CIETAC Arbitration proceeding 74A [translation available]

* Germany 31 January 1991 Amtsgericht [Lower Court] Frankfurt 74A [translation available (excerpt)]

Germany 18 January 1991 Landgericht [District Court] Bielefeld
 

Germany 21 December 1990 Amtsgericht [Lower Court] Ludwigsburg 74A [translation available]

Germany 28 November 1990 Bundesgerichtshof [Supreme Court] [ULIS precedent] 74A [translation available]

Netherlands 13 November 1990 Arrondissementsrechtbank [District Court] Breda 74A

Germany 26 September 1990 Landgericht [District Court] Hamburg 74A

* Germany 24 April 1990 Amtsgericht [Lower Court] Oldenburg 74A

Germany 3 April 1990 Landgericht [District Court] Aachen [translation available]
 

China post-1989 [date claim filed] CIETAC Arbitration award (Contract #QFD890011) 74A [translation available]

* Germany 31 August 1989 Landgericht [District Court] Stuttgart 74A [translation available]

Iran/U.S. Claims Tribunal 28 July 1989 (Watkins-Johnson v. Islamic Republic of Iran) [English text]

Germany 3 July 1989 Landgericht [District Court] München [translation available]

China 13 June 1989 CIETAC Arbitration award [translation available]

ICC 1989 International Court of Arbitration, Case 6281 74A [English text]
 

Iran/U.S. Claims Tribunal 16 June 1988 (Islamic Republic of Iran v. U.S.) [English text]
 

Germany 9 December 1987 Oberlandesgericht [Appellate Court] München [ULIS precedent] 74A
 

Germany 10 December 1986 Bundesgerichtshof [Supreme Court] [ULIS precedent] 74A [translation available]
 

Germany 26 October 1983 Amtsgericht [Lower Court] Singen [ULIS precedent] 74A

Germany 3 June 1983 Landgericht [District Court] Konstanz [ULIS precedent] 74B [translation available]
 

Germany 29 April 1982 Oberlandesgericht [Appellate Court] Hamm [ULIS precedent] 74A

Germany 24 April 1982 Landgericht [District Court] Bonn [ULIS precedent] 74A
 

Germany 27 January 1981 Landgericht [District Court] Heidelberg [ULIS precedent] 74B [translation available]
 

Germany 26 June 1980 Oberlandesgericht [Appellate Court] Hamm [ULIS precedent] 74B [translation available]

Germany 10 June 1980 Landgericht [District Court] Essen [ULIS precedent] 74B [translation available]
 

Germany 24 October 1979 Bundesgerichtshof [Federal Supreme Court] [ULIS precedent] 74B [digest available]
 

Germany 23 March 1978 Oberlandesgericht [Appellate Court] Hamm [ULIS precedent] 74B [translation available]
 

Germany 24 May 1977 Landgericht [District Court] Münster [ULIS precedent] 74B [translation available]


CASE DIGEST AND ANALYSIS
-   UNCITRAL's case law digest; and
-   An analysis of CISG jurisprudence

The UNCITRAL Digest of case law on the United
Nations Convention on the International Sale of Goods
[*]

A/CN.9/SER.C/DIGEST/CISG/74 [8 June 2004]
Reproduced with the permission of UNCITRAL

[Chapter V. Provisions Common to the
Obligations of the Seller and the Buyer
Section II. Damages
-    Overview
-    Relation to other articles
-    Burden of proof
-    Set off
-    Jurisdiction; place of payment of damages

Text of Article 74
Digest of Article 74 case law
-    Overview
-    Relation to other articles
-    Right to damages
-    Types of issues
      -    Losses arising from death or personal injury
      -    Losses arising from damage to other property
      -    Losses arising from damage to non-material interests
      -    Losses arising from change in value of money
-    Expenditures by aggrieved party
      -    Expenditures for debt collection; attorney's fees
-    Lost profits
      -    Damages for "lost volume" sales
-    Foreseeability
-    Burden and standard of proof
-    Set off
-    Jurisdiction; place of payment of damages]

SECTION II. DAMAGES

1. Articles 45 and 61 provide that the aggrieved buyer and the aggrieved seller, respectively, may claim damages as provided in articles 74 to 77 if the other party "fails to perform any of his obligations under the contract or this Convention". CISG arts. 45(1)(b); 61(1)(b). Articles 74 to 77, which comprise Section 2 of Chapter V, set out the damage formulas that apply to the claims of both aggrieved sellers and aggrieved buyers. These damage provisions are exhaustive and exclude recourse to domestic law.[1]

Overview

2. Article 74 establishes the general formula applicable in all cases where an aggrieved party is entitled to recover damages. It provides for the recovery of all losses, including loss of profits, caused by the breach to the extent that these losses were foreseeable by the breaching party at the time the contract was concluded. An aggrieved party may choose to claim under article 74 even if entitled to claim under article 75 or 76.[2] The latter articles explicitly provide that an aggrieved party may recover additional damages under article 74.

3. Articles 75 and 76 apply only in cases where the contract has been avoided. Article 75 calculates damages concretely by reference to the price in a substitute transaction, while article 76 calculates damages abstractly by reference to the current market price. Article 76(1) provides that an aggrieved party may not calculate damages under article 76 if it has concluded a substitute transaction under article 75.[3] If, however, an aggrieved party concludes a substitute transaction for less than the contract quantity, both articles 75 and 76 may apply.[4]

4. Pursuant to article 77 damages recoverable under articles 74, 75 or 76 are reduced if it is established that the aggrieved party failed to mitigate these damages. The reduction is the amount by which the loss should have been mitigated.

5. Several courts have deduced general principles from the articles of Section 2. One decision concludes that full compensation to an aggrieved party is a general principle on which the Convention is based.[5] Another decision states that the Convention prefers "concrete" calculation of damages by reference to actual transactions or losses over abstract calculation by reference to the market price.[6]

Relation to other articles

6. Article 6 provides that parties may agree to derogate from or vary the provisions of the Convention, including the damage provisions set out in Section 2 of Chapter V. Several decisions implicitly rely on article 6 when enforcing contract terms limiting [7] or liquidating [8] damages. One decision concluded that where the parties had agreed that an aggrieved party was entitled to a "compensation fee" if the contract was avoided because of the acts of the other party, the aggrieved party was entitled to recover both the compensation fee and damages under article 75.[9] Another decision concluded that a post-breach agreement settling a dispute with respect to a party's nonperformance displaces the aggrieved party's right to recover damages under the damage provisions of the Convention.[10] The validity of these terms is governed by applicable domestic law rather than the Convention. CISG art. 4(a).

7. A breaching party is not liable for damages if he proves that article 79 or article 80 is satisfied. Under article 79, the breaching party must show that "the failure was due to an impediment beyond his control" and "that he could not reasonably be expected to have taken the impediment into account at the time of the conclusion of the contract or to have avoided or overcome it or its consequences". CISG art. 79(1). The breaching party will, however, be liable for damages resulting from the other party's non-receipt of a timely notice of the impediment and its effects. CISG art. 79(4). Under article 80, an aggrieved party may not rely on a breach by the other party to the extent that the breach was caused by the aggrieved party's act or omission.

8. Article 44 provides that a party who fails to give due notice of nonconformity as required by articles 39 or 43 nevertheless has the option to recover damages "except for loss of profit" if he establishes a reasonable excuse for his failure.

9. Article 50 authorizes an aggrieved buyer to reduce the price according to a stated formula when it receives and keeps nonconforming goods. The buyer may waive its right to damages under articles 74 to 76 by claiming instead for the reduction of the price under article 50.[11]

10. If the contract is avoided, the aggrieved party who claims damages under article 75 or 76 is also subject to articles 81 to 84 on the effects of avoidance. Although avoidance generally releases the parties from their obligations under the contract, a party's right to any damages due survives avoidance.[12] CISG art. 81(1).

11. Other articles of the Convention may require a party to take specific measures to protect against losses. Articles 85 to 88 state, for example, when and how a buyer or seller must preserve goods in their possession.[13] The party taking such measures is entitled by these articles to recover reasonable expenses.[14]

Burden of proof

12. Although none of the damage formulas in articles 74, 75 and 76 expressly allocates the burden of proof, one court has concluded that the Convention recognizes the general principle that the party who invokes a right bears the burden of establishing that right and that this principle excludes application of domestic law with respect to burden of proof.[15] Thus, the aggrieved party claiming damages under articles 74, 75 and 76, as well as the breaching party claiming a reduction in damages under article 77,[16] will bear the burden of establishing his entitlement or amount of damages or the reduction in damages. The same opinion concludes, however, that domestic law rather than the Convention governs how a judge should reach his opinion (e.g. the weight to be given evidence) as this is a matter not covered by the Convention.[17]

Set off

13. Although the Convention does not address the issue of whether a counterclaim may be set off against a claim under the Convention,[18] the Convention does determine whether a counterclaim arising from the sales contract exists.[19]

If it does exist then the counterclaim may be set off against a claim arising under the Convention.[20]

Jurisdiction; place of payment of damages

14. Several decisions have concluded that, for the purposes of determining jurisdiction, damages for breach of contract are payable at the claimant's place of business.[21] These decisions reason that there is a general principle on which the Convention is based that a creditor is to be paid at its domicile unless the parties otherwise agree.


ARTICLE 74

     Damages for breach of contract by one party consist of a sum equal to the loss, including loss of profit, suffered by the other party as a consequence of the breach. Such damages may not exceed the loss which the party in breach foresaw or ought to have foreseen at the time of the conclusion of the contract, in the light of the facts and matters of which he then knew or ought to have known, as a possible consequence of the breach of contract.

DIGEST OF ARTICLE 74 CASE LAW

Overview

1. Article 74 sets out the Convention's general formula for the calculation of damages. The formula is applicable if a party to the sales contract breaches its obligations under the contract or the Convention.[22] The first sentence of article 74 provides for the recovery of all losses, including loss of profits, suffered by the aggrieved party as a result of the other party's breach. The second sentence limits recovery to those losses caused by the breach that the breaching party foresaw or could have foreseen at the time the contract was concluded. The formula applies to the claims of both aggrieved sellers and aggrieved buyers.

2. The Convention determines the grounds for recovery but domestic procedural law may apply to the assessment of evidence of loss.[23] Applicable domestic law also determines whether a party may assert a right to set off in a proceeding under the Convention (see para. 37 below). Domestic substantive law may also govern relevant issues for the determination of the amount of damages, such as the weighing of evidence.[24]

3. One tribunal has derived from the damage formula in article 74 a general principle of full compensation. Pursuant to article 7(2) the tribunal used this general principle to fill the gap in article 78, which provides for the recovery of interest in stated circumstances but does not indicate how the rate of interest is to be determined.[25]

4. In accordance with article 6 a seller and buyer may agree to derogate from or vary article 74. Several decisions enforce contract terms limiting [26] or liquidating[27] damages. The validity of these contract terms is, by virtue of article 4(a), governed by applicable domestic law rather than the Convention.[28]

Relation to other articles

5. An aggrieved party may choose to claim under article 74 even if entitled to claim under articles 75 and 76.[29] The latter provisions explicitly provide that an aggrieved party may recover additional damages under article 74.

6. Damages recoverable under articles 74 are reduced if it is established that the aggrieved party failed to mitigate these damages as required by article 77. The reduction is the amount by which the loss should have been mitigated. See commentary on article 77.

7. Article 78 expressly provides for the recovery of interest in specified cases but states that its provisions are "without prejudice to any claim for damages recoverable under Article 74". Several decisions have awarded interest under article 74.[30] Interest has been awarded as damages in cases not covered by article 78 because such damages were not due for sums in arrears.[31]

8. An aggrieved seller may require the buyer to pay the price pursuant to article 62. An abstract of an arbitral opinion suggests that the tribunal awarded the seller the price as damages under article 74.[32]

Right to damages

9. Article 74 provides a general formula for the calculation of damages. The right to claim damages is set out in articles 45(1)(b) and 61(1)(b). These paragraphs provide that the aggrieved buyer and the aggrieved seller, respectively, may claim damages as provided in articles 74 to 77 if the other party "fails to perform any of his obligations under the contract or this Convention". Thus, the article 74 formula may be used for calculating damages for breach of obligations under the Convention as well as breach of the sales contract.[33]

10. Article 74 states that damages may be awarded for "breach of contract" that causes loss without any qualification as to the seriousness of the breach or the loss. An abstract of one arbitral award suggests nevertheless that damages may be recovered under article 74 for "fundamental non-performance".[34]

11. Under articles 45 and 61 an aggrieved party is entitled to recover damages without regard to the "fault" of the breaching party. Several decisions consider whether claims based on a party's negligence is covered by the Convention. An arbitral award concluded that an aggrieved buyer failed to notify the seller of non-conformity in a timely manner and the tribunal applied domestic civil law to divide the loss equally between the seller and the buyer on the ground that the Convention did not govern the issue of joint contribution to harm.[35] A court decision also concluded that the Convention did not cover a claim that the alleged seller had made a negligent misrepresentation inducing the conclusion of the sales contract.[36]

12. When the aggrieved party fails, without excuse,[37] to give timely notice to the breaching party in accordance with articles 39 or 43 the aggrieved party loses its right to rely on the nonconformity when making a claim for damages.[38] If excused from giving timely notice, the aggrieved party may nevertheless recover damages other than lost profits in accordance with article 44.[39]

13. Article 79 excuses a breaching party from the payment of damages (but not from other remedies for nonperformance) if he proves that the conditions of paragraph (1) of article 79 are satisfied. Paragraph (4) of article 79 provides, however, that the breaching party will be liable for damages resulting from the other party's non-receipt of a timely notice of the impediment and its effects.

14. Article 80 provides that an aggrieved party may not rely on a breach by the other party to the extent that the breach was caused by the aggrieved party's act or omission.

Types of losses

15. The first sentence of article 74 provides that an aggrieved party's damages consist of a monetary sum to compensate him for "loss, including loss of profit, suffered . . . as a consequence of the breach". Except for the explicit inclusion of lost profits, article 74 does not otherwise classify losses. Decisions sometimes refer to the classification of damages under domestic law.[40]

Losses arising from death or personal injury

16. Article 5 provides that losses arising from death or personal injury are excluded from the Convention's coverage. However, when deciding on its jurisdiction, one court implicitly assumed that the Convention covers claims by a buyer against its seller for indemnification for claim by sub-buyer for personal injury.[41]

Losses arising from damage to other property

17. Article 5 does not exclude losses for damage to property other than the good purchased.[42]

Losses arising from damage to non-material interests

18. Article 74 does not exclude losses arising from damage to non-material interests, such as the loss of an aggrieved party's reputation because of the other party's breach. Some decisions have implicitly recognized the right to recover damages for loss of reputation or good will,[43] but at least one other has denied such recovery under the Convention.[44] One court found claims for both loss of turnover and loss of reputation to be inconsistent.[45]

Losses arising from change in value of money

19. Article 74 provides for recovery of "a sum equal to the loss" but does not expressly state whether this formula covers losses that result from changes in the value of money. Several courts have recognized that an aggrieved party may suffer losses as a result of nonpayment or delay in the payment of money. These losses may arise from fluctuations in currency exchange rates or devaluation of the currency of payment. The courts differ as to the appropriate solution. Several decisions have awarded damages to reflect devaluation [46] or the changes in the cost of living.[47] On the other hand, several other decisions refused to award damages for such losses. One decision concluded that in principle a claimant is not entitled to recover losses from currency devaluation but went on to suggest that a claimant might recover damages if it carried out transactions in foreign currency which it exchanged immediately after receiving the currency.[48] Another court stated that while devaluation of the currency in which the price was to be paid could be damages under the Convention no damages could be awarded in the case before it because future losses could be awarded only when the loss can be estimated.[49]

Expenditures by aggrieved party

20. Many decisions have recognized the right of the aggrieved party to recover reasonable expenditures incurred in preparation for or as a consequence of a contract that has been breached. The second sentence of article 74 limits recovery to the total amount of losses the breaching party could foresee at the time the contract was concluded (see paras. 32-34 below). Although the Convention does not expressly require that expenditures be reasonable several decisions have refused to award damages when the expenditures were unreasonable.[50]

21. Decisions have awarded incidental damages to an aggrieved buyer who had made reasonable expenditures in the following cases: inspection of nonconforming goods;[51] handling and storing non-conforming goods;[52] preserving goods;[53] shipping and customs costs incurred when returning the goods;[54] expediting shipment of substitute goods under an existing contract with third party;[55] installing substitute goods;[56] sales and marketing costs;[57] commissions;[58] hiring a third party to process goods;[59] obtaining credit;[60] delivering and taking back the nonconforming goods to and from a sub-buyer;[61] payments made to sub-buyers on account of non-conforming goods;[62] moving replacement coal from stockpiles.[63] Several decisions have awarded buyers who have taken over non-conforming goods the reasonable costs of repair as damages.[64] At least one decision implicitly recognizes that an aggrieved buyer may recover incidental damages although in the particular case the buyer failed to establish the damages.[65] Another decision assumed that the Convention governed a buyer's claim for indemnification for personal injury caused to an employee of the sub-buyer.[66]

22. Decisions may recognize that an aggrieved buyer may recover for particular types of expenditure but deny recovery in a particular case. Some decisions explicitly recognize the type of expenditure but deny recovery for failure to prove them, lack of causation, or their unforeseeability by the breaching party. Thus one decision recognized the potential recovery of a buyer's advertising costs but declined to award damages because the buyer failed to carry its burden of proof.[67] Other decisions may implicitly assume the right to recover particular expenditures. When deciding on its jurisdiction, one court implicitly assumed that the Convention covers claims by a buyer against its seller for indemnification of a sub-buyer's claim for personal injury.[68]

23. An aggrieved seller recovered damages for the following incidental expenses: storage of goods at the port of shipment following the buyer's anticipatory breach;[69] storage and preservation of undelivered machinery;[70] cost of modifying a machine in order to resell it;[71] costs related to the dishonour of the buyer's cheques.[72] A seller who has delivered nonconforming goods and subsequently cures the nonconformity is not entitled to recover the cost of cure.[73]

Expenditures for debt collection; attorney's fees

24. Decisions are split on whether the cost of using a debt collection agency other than a lawyer may be recovered as damages. One decision awarded the seller the cost,[74] but several other decisions state that an aggrieved party may not recover compensation for the cost of hiring a debt collection agency because the Convention does not cover such expenses.[75]

25. A number of courts and arbitral tribunals have considered whether an aggrieved party may recover the costs of a lawyer hired to collect a debt arising from a sales contract. Several decisions award damages to compensate for legal fees for extra-judicial acts such as the sending of collection letters.[76] One decision distinguished between the extra-judicial fees of a lawyer in the forum and similar fees of a lawyer in another jurisdiction, including the fees of the former in the allocation of litigation costs under the forum's rules and awarding the fees of the latter as damages under article 74.[77]

26. Decisions are split as to whether attorney's fees for litigation may be awarded as damages under article 74.[78] Several arbitral tribunals have awarded, citing article 74, recovery of attorney's fees for the arbitration proceedings.[79] In a carefully reasoned award, another arbitral tribunal concluded that a supplemental interpretation of the arbitration clause by reference to both article 74 and local procedural law authorized the award of attorney's fees before a tribunal consisting of lawyers.[80] Another court stated that, in principle, legal costs could be recovered although the court in that case did not award them.[81] Many cases award attorney's fees without indicating whether the award is for damages calculated under article 74 or pursuant to the court's rules on the allocation of legal fees.[82] Several decisions have limited or denied recovery of the amount of the claimant's attorney's fees on the grounds that the fees incurred were unforeseeable [83] or that the aggrieved party had failed to mitigate these expenses as required by article 77.[84] An appellate court reversed a decision awarding attorney's fees as damages under article 74 on the ground, inter alia, that the Convention did not implicitly overturn the "American rule" that the parties to litigation normally bear their own legal expenses, including attorneys' fees.[85]

Lost profits

27. The first sentence of article 74 expressly states that damages for losses include lost profits. Many decisions have awarded the aggrieved party lost profits.[86] When calculating lost profits, fixed costs (as distinguished from variable costs incurred in connection with fulfilling the specific contract) are not to be deducted from the sales price.[87] One decision awarded a seller who had been unable to resell the goods the difference between the contract price and the current value of those goods.[88]

28. The second sentence of article 74 limits the damages that can be awarded for losses caused by the breach to the amount that the breaching party foresaw or should have foreseen at the time the contract was concluded. One decision reduced the recovery of profits because the breaching seller was not aware of the terms of the buyer's contract with its sub-buyer.[89]

29. Damages for lost profits will often require predictions of future prices for the goods or otherwise involve some uncertainty as to actual future losses. Article 74 does not address the certainty with which these losses must be proved. One decision required the claimant to establish the amount of the loss according to the forum's "procedural" standards as to the certainty of the amount of damages.[90]

30. Evidence of loss of profits, according to one decision, might include evidence of orders from customers that the buyer could not fill, evidence that customers had ceased to deal with the buyer, and evidence loss of reputation as well as evidence that the breaching seller knew or should have known of these losses.[91]

Damages for "lost volume" sales

31. In principle, an aggrieved seller who resells the goods suffers the loss of a sale when he has the capacity and market to sell similar goods to other persons. In the absence of the buyer's breach he would have been able to make two sales. Under these circumstances a court concluded that the seller was entitled to recover the lost profit from the first sale.[92] Another court, however, rejected a claim for a "lost sale" because it did not appear that that the seller had been planning to make a second sale at the time the breached contract was negotiated.[93] An aggrieved buyer may have a similar claim to damages. A court concluded that a buyer could recover for damages caused by its inability to supply the market demand for its product because of the non-conforming components supplied by his seller.[94]

Foreseeability

32. The second sentence of article 74 limits recovery of damages to those losses that the breaching party foresaw or could have foreseen at the time the contract was concluded might be a possible consequence of its breach.

33. Decisions have found that the breaching party could not have foreseen the following losses: rental of machinery by buyer's sub-buyer;[95] the processing of goods in a different country following late delivery;[96] exceptionally large payments to freight forwarder;[97] attorney's fees in dispute with freight forwarder;[98] the cost of resurfacing grinding machine where cost exceeded price of wire to be ground;[99] lost profits where breaching seller did not know terms of contract with sub-buyer;[100] inspection of the goods would take place in importing country rather than exporting country.[101]

34. On the other hand, several decisions have explicitly found that claimed damages were foreseeable. One decision states that the seller of a good to a retail buyer should foresee that the buyer would resell the good,[102] while an arbitration tribunal found that the breaching seller could have foreseen the buyer's losses because they had corresponded extensively on supply problems.[103] Another decision concluded that a breaching buyer could foresee that an aggrieved seller of fungible goods would lose its typical profit margin.[104] A majority of another court awarded ten per cent of the price as damages to a seller who had manufactured the cutlery to the special order of the buyer and the majority noted that a breaching buyer could expect that sum.[105]

Burden and standard of proof

35. Although none of the damage formulae in articles 74, 75 and 76 expressly allocates the burden of proof, those decisions that address the issue more or less expressly agree that the party making the claim bears the burden of establishing its claim.[106] One court gave effect to a national law rule that where a breaching seller acknowledged defects in the delivered goods the burden of establishing that the goods conformed to the contract shifted to the seller.[107] Another decision expressly placed the burden of establishing damages on the claimant.[108]

36. Several decisions state that domestic procedural and evidentiary law rather than the Convention governs the standard of proof and weight to be given evidence when determining damages.[109]

Set off

37. Although the Convention does not address the issue of whether a counterclaim may be set off against a claim under the Convention,[110] the Convention does determine whether a counterclaim arising from the sales contract exists [111] and, if it does, then the counterclaim may be set off against a claim arising under the Convention.[112]

Jurisdiction; place of payment of damages

38. Several decisions have concluded that, for the purpose of determining jurisdiction, damages for breach of contract are payable at the claimant's place of business.[113]


FOOTNOTES

* The present text was prepared using the full text of the decisions cited in the Case Law on UNCITRAL Texts (CLOUT) abstracts and other citations listed in the footnotes. The abstracts are intended to serve only as summaries of the underlying decisions and may not reflect all the points made in the digest. Readers are advised to consult the full texts of the listed court and arbitral decisions rather than relying solely on the CLOUT abstracts.

[Citations to cisgw3 case presentations have been substituted [in brackets] for the case citations provided in the UNCITRAL Digest. This substitution has been made to facilitate online access to CLOUT abstracts, original texts of court and arbitral decisions, and full text English translations of these texts (available in most but not all cases). For citations UNCITRAL had used, go to <http://www.uncitral.org/english/clout/digest_cisg_e.htm>.]

1. CLOUT case No. 345 [GERMANY Landgericht [District Court] Heilbronn 15 September 1997; available at <http://cisgw3.law.pace.edu/cases/970915g1.html>] (recourse to national law on damages excluded).

2. CLOUT case No. 427 [AUSTRIA Oberster Gerichtshof [Supreme Court] 28 April 2000; available at <http://cisgw3.law.pace.edu/cases/000428a3.html>] (aggrieved party may claim under art. 74 even if it could also claim under arts.75 or 76).

3. [ICC International Court of Arbitration, case No. 8574 of September 1996; available at <http://cisgw3.law.pace.edu/cases/968574i1.html>] (no recovery under art. 76 because aggrieved party had entered into substitute transactions within the meaning of art. 75). See, however, CLOUT case No. 227 [GERMANY Oberlandesgericht [Appellate Court] Hamm 22 September 1992; available at <http://cisgw3.law.pace.edu/cases/920922g1.html>] (damages calculated under art. 76 rather than art. 75 where aggrieved seller resold goods for one-fourth of contract price and for less than current market price).

4. CLOUT case No. 130 [GERMANY Oberlandesgericht [Appellate Court] Düsseldorf 14 January 1994; available at <http://cisgw3.law.pace.edu/cases/940114g1.html>]. See also [ICC International Court of Arbitration, case No. 8740 of 1996; available at <http://cisgw3.law.pace.edu/cases/968740i1.html>] (aggrieved buyer unable to establish market price not entitled to recover under art. 76 and entitled to recover under art. 75 only to the extent it had made substitute purchases); but compare [CHINA CIETAC Arbitration Award of 20 October 1991; available at <http://cisgw3.law.pace.edu/cases/911020c1.html>] (aggrieved buyer who had made purchases for only part of the contract quantity nevertheless awarded damages under art. 75 for contract quantity times the difference between the contract price and the price in the substitute transaction).

5. CLOUT case No. 93 [AUSTRIA Vienna Arbitration Award case No. SCH-4336 of 15 June 1994; available at <http://cisgw3.law.pace.edu/cases/940615a3.html>] (citing art. 74 for general principle within meaning of art. 7(2)).

6. CLOUT case No. 166 [GERMANY Hamburg Arbitration award case of 21 March / 21 June 1996; available at <http://cisgw3.law.pace.edu/cases/960321g1.html> / <http://cisgw3.law.pace.edu/cases/960621g1.html>] (CISG prefers concrete calculation of damages to the reference to market price in the art. 76 formula) (see full text of the decision). See also CLOUT case No. 348 [GERMANY Oberlandesgericht [Appellate Court] Hamburg 26 November 1999; available at <http://cisgw3.law.pace.edu/cases/991126g1.html>] (damages not calculated under art. 76 because damages could be calculated by reference to actual transactions).

7. [FINLAND Hovrätt [Appellate Court] Turku 12 April 2002; available at <http://cisgw3.law.pace.edu/cases/020412f5.html>] (warranty term limiting recovery of damages enforceable).

8. [RUSSIA Arbitration Award case No. 302/1996 of 27 July 1999; available at <http://cisgw3.law.pace.edu/cases/990727r1.html>] (liquidated damages substantiated: aggrieved buyer's damages calculated on basis of lost profits); [RUSSIA Arbitration Award case No. 251/1993 of 23 November 1994; available at <http://cisgw3.law.pace.edu/cases/941123r1.html>] (damages for delay granted only to extent of contract clause stipulating penalty for delay).

9. CLOUT case No. 301 [ICC International Court of Arbitration, case No. 7585 of 1992; available at <http://cisgw3.law.pace.edu/cases/927585i1.html>].

10. [CHINA CIETAC Arbitration Award of 1 April 1993; available at <http://cisgw3.law.pace.edu/cases/930401c1.html>].

11. CLOUT case No. 474 [RUSSIA Arbitration Award case No. 54/1999 of 24 January 2000; available at <http://cisgw3.law.pace.edu/cases/000124r1.html>].

12. CLOUT case No. 166 [GERMANY Hamburg Arbitration award case of 21 March / 21 June 1996; available at <http://cisgw3.law.pace.edu/cases/960321g1.html> / <http://cisgw3.law.pace.edu/cases/960621g1.html>] (damage provisions prevail over consequences of avoidance under arts. 81-84).

13. [CHINA CIETAC Arbitration Award case of 6 June 1991; available at <http://cisgw3.law.pace.edu/cases/910606c1.html>] (cost of freight for return of goods split between buyer who failed to return goods in a reasonable manner and seller who did not cooperate in return).

14. See, e.g. CLOUT case No. [ICC International Court of Arbitration, case No. 7531 of 1994; available at <http://cisgw3.law.pace.edu/cases/947531i1.html>] (awarding damages under art. 74 for expenses incurred to preserve goods under arts 86, 87 & 88(1)). See also CLOUT case No. [ICC International Court of Arbitration, case No. 7197 of 1993; available at <http://cisgw3.law.pace.edu/cases/937197.html>] (damages for expenses incurred in preserving perishable goods even though not required to do so by arts. 85 to 88) (see full text of the decision).

15. FCF S.A. v. Adriafil Commercial S.r.l. [SWITZERLAND Bundesgericht [Supreme Court] 15 September 2000; available at <http://cisgw3.law.pace.edu/cases/000915s1.html>] . See also CLOUT case No. 217 [SWITZERLAND Handelsgericht [Commercial Court] Aargau 26 September 1997; available at <http://cisgw3.law.pace.edu/cases/970926s1.html>] (aggrieved party has burden of establishing loss); [ICC International Court of Arbitration, case No. 7645 of March 1995; available at <http://cisgw3.law.pace.edu/cases/957645i1.html>] ("Under general principles of law" the party claiming damages has burden of establishing existence and amount of damages caused by the breach of the other party). See generally CLOUT case No. 378 [ITALY Tribunale [District Court] Vigevano 12 July 2001; available at <http://cisgw3.law.pace.edu/cases/010712i3.html>] (deriving general principle that claimant has burden of establishing its claim from art. 79).

16. Article 77 of the Convention expressly provides that the party in breach may claim a reduction if the other party fails to take measures to mitigate the loss.

17. FCF S.A. v. Adriafil Commercial S.r.l. [SWITZERLAND Bundesgericht [Supreme Court] 15 September 2000; available at <http://cisgw3.law.pace.edu/cases/000915s1.html>] (construing art. 8 of Swiss Civil Code). See also CLOUT case No. 261 [SWITZERLAND Bezirksgericht [District Court] Sanne 20 February 1997; available at <http://cisgw3.law.pace.edu/cases/970220s1.html>] (domestic law, rather than Convention, determines how damages are to be calculated if the amount cannot be determined); CLOUT case No. 214 [SWITZERLAND Handelsgericht [Commercial Court] Zürich 5 February 1997; available at <http://cisgw3.law.pace.edu/cases/970205s1.html>] (domestic law determines whether estimate of damages for future losses is sufficiently definite).

18. CLOUT case No. 288 [GERMANY Oberlandesgericht [Appellate Court] München 28 January 1998; available at <http://cisgw3.law.pace.edu/cases/980128g1.html>] (Applicable law, not Convention, determines whether set off permitted); CLOUT case No. 281 [GERMANY Oberlandesgericht [Appellate Court] Koblenz 17 September 1993; available at <http://cisgw3.law.pace.edu/cases/030917g1.html>] (applicable domestic law determines whether set off allowed).

19. CLOUT case No. 125 [GERMANY Oberlandesgericht [Appellate Court] Hamm 9 June 1995; available at <http://cisgw3.law.pace.edu/cases/950609g1.html>] (set-off permitted under applicable national law; counterclaim determined by reference to Convention). But see CLOUT case No. 170 [GERMANY Landgericht [District Court] Trier 12 October 1995; available at <http://cisgw3.law.pace.edu/cases/951012g1.html>] (counterclaim arose under Convention; set off permitted under Convention).

20. CLOUT case No. 348 [GERMANY Oberlandesgericht [Appellate Court] Hamburg 26 November 1999; available at <http://cisgw3.law.pace.edu/cases/991126g1.html>] (buyer's counterclaim offset against seller's claim for price); CLOUT case No. 318 [GERMANY Oberlandesgericht [Appellate Court] Celle 2 September 1998; available at <http://cisgw3.law.pace.edu/cases/980902g1.html>] (buyer damages set off against price); CLOUT case No. 273 [GERMANY Oberlandesgericht [Appellate Court] München 9 July 1997; available at <http://cisgw3.law.pace.edu/cases/970709g1.html>] (buyer's counterclaim would have been allowable as set off but seller had not breached). See also CLOUT case No. 280 [GERMANY Oberlandesgericht [Appellate Court] Jena 26 May 1998; available at <http://cisgw3.law.pace.edu/cases/980526g1.html>] (implicitly recognizing the possibility that buyer's tort claim could be raised to set off against seller's claim for the price, court applies CISG notice provisions to bar tort claim).

21. CLOUT case No. 205 [FRANCE Cour d'appel [Appellate Court] Grenoble 23 October 1996; available at <http://cisgw3.law.pace.edu/cases/961023f1.html>] (deriving general principle from art. 57(1) that place of payment is domicile of creditor); CLOUT case No. 49 [GERMANY Oberlandesgericht [Appellate Court] Düsseldorf 2 July 1993; available at <http://cisgw3.law.pace.edu/cases/930702g1.html>] (deriving general principle on place of payment from art. 57(1)).

22. Articles 45(1)(b) and 61(1)(b) provide that the aggrieved buyer and the aggrieved seller, respectively, may recover damages as provided in articles 74 to 77 if the other party fails to perform as required by the contract or the Convention.

23. [FINLAND Helsingfors hovrätt [Appellate Court] Helsinki 26 October 2000; available at <http://cisgw3.law.pace.edu/cases/001026f5.html>] (grounds of recovery under CISG but calculation of damages under art. 17 of the Finnish Law of Civil Procedure); CLOUT case No. 261 [SWITZERLAND Bezirksgericht [District Court] Sanne 20 February 1997; available at <http://cisgw3.law.pace.edu/cases/970220s1.html>] (applicable domestic law determines how to falfulate damages when amount cannot be determined); CLOUT case No. 85 [UNITED STATES Delchi Carrier v. Rotorex Federal District Court [Northern Dist. of New York] 9 September 1994; available at <http://cisgw3.law.pace.edu/cases/940909u1.html>] ("sufficient evidence [under common law and law of New York] to estimate the amount of damages with reasonable certainty"), affirmed CLOUT case No. 138 [UNITED STATES Delchi v. Rotorex Federal Circuit Court of Appeals [2d Circ.] 5 December 1995; available at <http://cisgw3.law.pace.edu/cases/951205u1.html>].

24. See, e.g., CLOUT case No. 377 [GERMANY Landgericht [District Court] Flensburg 24 March 1999; available at <http://cisgw3.law.pace.edu/cases/990324g1.html>] (aggrieved seller recovers damages under art. 74 for losses caused by the buyer's delay in payment but applicable domestic law determines whether payment delayed because Convention is silent on time of payment).

25. CLOUT case No. 93 [AUSTRIA Vienna Arbitration Award case No. SCH-4336 of 14 June 1994; available at <http://cisgw3.law.pace.edu/cases/940615a3.html>] (deriving general principle from art. 74 for purpose of filling gap in art. 78 in accordance with art. 7(2)). See also CLOUT case No. 138 [UNITED STATES Delchi Carrier v. Rotorex Federal Circuit Court of Appeals [2d Circ.] 5 December 1995; available at <http://cisgw3.law.pace.edu/cases/951205u1.html>] (art. 74 is "designed to place the aggrieved party in as good a position as if the other party had properly performed the contract") (see full text of the decision).

26. [FINLAND Hovrätt [Appellate Court] Turku 12 April 2002; available at <http://cisgw3.law.pace.edu/cases/020412f5.html>] (contract term limiting recovery of damages enforceable).

27. [RUSSIA Arbitration Award case No. 302/1996 of 27 July 1999; available at <http://cisgw3.law.pace.edu/cases/990727r1.html>] (liquidated damage clause displaces remedy of specific performance; liquidated damages reasonable and foreseeable under art. 74 as measure of expected profit); [RUSSIA Arbitration Award case No. 251/1993 of 23 November 1994; available at <http://cisgw3.law.pace.edu/cases/941123r1.html>] (damages for delay granted only to extent contract penalty for delay clause).

28. See CLOUT case No. 318 [GERMANY Oberlandesgericht [Appellate Court] Celle 2 September 1998; available at <http://cisgw3.law.pace.edu/cases/980902g1.html>] (term in seller's general conditions limiting damages not validly incorporated into contract ) ( see full text of the decision); CLOUT case No. 345 [GERMANY Landgericht [District Court] Heilbronn 15 September 1997; available at <http://cisgw3.law.pace.edu/cases/970915g1.html>] (validity of standard term excluding liability determined by domestic law but reference in domestic law to non-mandatory rule replaced by reference to equivalent Convention provision).

29. CLOUT case No. 427 [AUSTRIA Oberster Gerichtshof [Supreme Court] 28 April 2000; available at <http://cisgw3.law.pace.edu/cases/000428a3.html>] (aggrieved party may claim under art. 74 even if it could also claim under arts. 75 or 76). See CLOUT case No. 140 [RUSSIA Arbitration Award case No. 155/1994 of 16 March 1995; available at <http://cisgw3.law.pace.edu/cases/950316r1.html>] (citing art. 74, tribunal awards buyer difference between contract price and price in substitute purchase); CLOUT case No. 93 [AUSTRIA Vienna Arbitration Award case No. SCH-4366 of June 1994; available at <http://cisgw3.law.pace.edu/cases/940615a3.html>] (awarding seller, without citation of specific Convention article, difference between contract price and price in substitute transaction).

30. See, e.g., Van Dongen Waalwijk BV v. Concercia Adige S.p.A. [NETHERLANDS Gerechtshof [Appellate Court] 's-Hertogenbosch 2 October 1997; available at <http://cisgw3.law.pace.edu/cases/971002n1.html>] (interest awarded under both arts 74 and 78); [ITALY Pretura [District Court] Torino 30 January 1997; available at <http://cisgw3.law.pace.edu/cases/970130i3.html>] (aggrieved party entitled to statutory rate of interest plus additional interest it had established as damages under art. 74); CLOUT case No. 193 [SWITZERLAND Handelsgericht [Commercial Court] Zürich 10 July 1996; available at <http://cisgw3.law.pace.edu/cases/960710s1.html>] (seller awarded interest under art. 74 in amount charged on bank loan needed because of buyer's non-payment); [GERMANY Amtsgericht [Lower Court] Koblenz 12 November 1996; available at <http://cisgw3.law.pace.edu/cases/961112g1.html>] (bank certificate established that aggrieved seller was paying higher interest rate than official rate under applicable law); [FINLAND Käräjäoikeus [District Court] Kuopio 5 November 1996; available at <http://cisgw3.law.pace.edu/cases/961105f5.html>] (breaching party could foresee aggrieved party would incur interest charges but not actual rate in Lithuania); CLOUT case No. 195 [SWITZERLAND Handelsgericht [Commercial Court] Zürich 21 September 1995; available at <http://cisgw3.law.pace.edu/cases/950921s1.html>] (seller entitled to higher interest under art. 74 if he established damages caused by non-payment); CLOUT case No. 281 [GERMANY Oberlandesgericht [Appellate Court] Koblenz 17 September 1993; available at <http://cisgw3.law.pace.edu/cases/930917g1.html>]; Clout case No. 130 [GERMANY Oberlandesgericht [Appellate Court] Düsseldorf 14 January 1994; available at <http://cisgw3.law.pace.edu/cases/940114g1.html>] (damages includes interest paid by aggrieved seller for bank loans); CLOUT case No. 104 [ICC International Court of Arbitration, case No. 7197 of 1993; available at <http://cisgw3.law.pace.edu/cases/937197i1.html>] (interest awarded at commercial bank rate in Austria); [GERMANY Landgericht [District Court] Berlin 6 October 1992; available at <http://cisgw3.law.pace.edu/cases/921006g1.html>] (assignee of aggrieved party's claim entitled to recover 23% interest rate charged by assignee); CLOUT case No. 7 [GERMANY Amtsgericht [Lower Court] Oldenburg in Holstein 24 April 1990; available at <http://cisgw3.law.pace.edu/cases/900424g1.html>] (seller recovered price and interest at the statutory rate in Italy plus additional interest as damages under art. 74). See also Clout case No. 377 [GERMANY Landgericht [District Court] Kassel 15 February 1996; available at <http://cisgw3.law.pace.edu/cases/960215g1.html>] (failure to establish additional damages under art. 74); CLOUT case No.132 [GERMANY Oberlandesgericht [Appellate Court] Hamm 8 February 1995; available at <http://cisgw3.law.pace.edu/cases/950208g3.html>] (claimant awarded statutory interest rate under art. 78 but it failed to establish loss of higher interest rate under art. 74).

31. See, e.g., [STOCKHOLM CHAMBER OF COMMERCE Arbitration Award case No. 107/1997 of 1998; available at <http://cisgw3.law.pace.edu/cases/970107s5.html>] (aggrieved buyer entitled to recover interest on reimbursable costs it incurred following sub-buyer's rightful rejection of goods).

32. [ICC International Court of Arbitration, case No. 8716 of February 1997; available at <http://cisgw3.law.pace.edu/cases/978716i1.html>] (damages awarded in amount of price).

33. See, e.g., CLOUT case No. 51 [GERMANY Amtsgericht [Lower Court] Frankfurt 31 January 1991; available at <http://cisgw3.law.pace.edu/cases/910131g1.html>] (seller's failure to notify the buyer that the seller was suspending performance in accordance with art. 71(3) itself a breach of the Convention entitling buyer to damages).

34. [ICC International Court of Arbitration, case No. 8716 of February 1997; available at <http://cisgw3.law.pace.edu/cases/978716i1.html>].

35. [BULGARIA Arbitration Award case No. 56/1995 of 4 April 1996; available at <http://cisgw3.law.pace.edu/cases/960404bu.html>] (50/50 division of the 10 percent of price held back by buyer because of non-conformity of goods).

36. [UNITED STATES Geneva Pharmaceuticals Tech. Corp. v. Barr Laboratories, Inc. Federal District Court [Southern Dist. of New York] 10 May 2002; available at <http://cisgw3.law.pace.edu/cases/020510u1.html>] (domestic "tort" claim of negligent misrepresentation not preempted by Convention). See also CLOUT case No. 420 [UNITED STATES Viva Vino v. Farnese Vini Federal District Court [Eastern Dist. of Pennsylvania] 29 August 2000; available at <http://cisgw3.law.pace.edu/cases/000829u1.html>] (Convention does not govern non-contractual claims).

37. See CISG arts. 40 (buyer's failure excused when seller could not have been unaware of non-conformity) and 44 (excuse for failure to notify). See also CLOUT case No. 294 [GERMANY Oberlandesgericht [Appellate Court] Bamberg 13 January 1999; available at <http://cisgw3.law.pace.edu/cases/990113g1.html>] (buyer need not declare avoidance when seller stated it would not perform); CLOUT case No. 94 [AUSTRIA Vienna Arbitration Award, case No. SCH-4318 of 15 June 1994; available at <http://cisgw3.law.pace.edu/cases/940615a4.html>] (seller estopped from asserting buyer's failure to give timely notice).

38. See, e.g., CLOUT case No. 364 [GERMANY Landgericht [District Court] Köln 30 November 1999; available at <http://cisgw3.law.pace.edu/cases/991130g1.html>] (failure to give sufficient specific notice); CLOUT case No. 344 [GERMANY Landgericht [District Court] Erfurt 29 July 1998; available at <http://cisgw3.law.pace.edu/cases/980729g1.html>] (failure to give sufficiently specific notice); CLOUT case No. 280 [GERMANY Oberlandesgericht [Appellate Court] Jena 26 May 1998; available at <http://cisgw3.law.pace.edu/cases/980526g1.html>] (failure to satisfy art. 39 bars both CISG and tortuous claim for damages); CLOUT case No. 282 [GERMANY Oberlandesgericht [Appellate Court] Koblenz 31 January 1997; available at <http://cisgw3.law.pace.edu/cases/970131g1.html>] (failure to give sufficiently specific notice); CLOUT case No. 196 [SWITZERLAND Handelsgericht [Commercial Court] Zürich 26 April 1995; available at <http://cisgw3.law.pace.edu/cases/950426s1.html>] (failure to give timely notice); CLOUT case No. 192 [SWITZERLAND Obergericht [Appellate Court] Luzern 8 January 1997; available at <http://cisgw3.law.pace.edu/cases/970108s1.html>] (failure to give timely notice); CLOUT case No. 50 [GERMANY Landgericht [District Court] Baden-Baden 14 August 1991; available at <http://cisgw3.law.pace.edu/cases/910814g1.html>] (failure to give timely notice of non-conformity); CLOUT case No. 4 [GERMANY Landgericht [District Court] Stuttgart 31 August 1989; available at <http://cisgw3.law.pace.edu/cases/890831g1.html>] (failure to examine and notify of non-conformity of goods).

39. CLOUT case No. 474 [RUSSIA Arbitration Award case No. 54/1999 of 24 January 2000; available at <http://cisgw3.law.pace.edu/cases/000124r1.html>].

40. See, e.g., CLOUT case No. 427 [AUSTRIA Oberster Gerichtshof [Supreme Court] 28 April 2000; available at <http://cisgw3.law.pace.edu/cases/000428a3.html>] (loss of profit in case was "positive damage") (see full text of the decision); CLOUT case No. 138 [UNITED STATES Delchi Carrier v. Rotorex Federal Circuit Court of Appeals [2d Circ.] 6 December 1995; available at <http://cisgw3.law.pace.edu/cases/951206u1.html>] ("incidental and consequential" damages) (see full text of the decision) affirming CLOUT case No. 85 [UNITED STATES Delchi Carrier v. Rotorex Federal District Court [Northern Dist. of New York] 9 September 1994; available at <http://cisgw3.law.pace.edu/cases/940909u1.html>].

41. CLOUT case No. 49 [GERMANY Oberlandesgericht [Appellate Court] Düsseldorf 2 July 1993; available at <http://cisgw3.law.pace.edu/cases/930702g1.html>].

42. See CLOUT case No. 196 [SWITZERLAND Handelsgericht [Commercial Court] Zürich 26 April 1995; available at <http://cisgw3.law.pace.edu/cases/950426s1.html>] (recovery for damage to house in which container for weightless floating installed).

43. [FINLAND Helsingfors hovrätt [Appellate Court] Helsinki 26 October 2000; available at <http://cisgw3.law.pace.edu/cases/001026f5.html>] (recovery of good will calculated in accordance with national rules of civil procedure); CLOUT case No. 331 [SWITZERLAND Handelsgericht [Commercial Court] Zürich 10 February 1999; available at <http://cisgw3.law.pace.edu/cases/990210s1.html>] (art. 74 includes recovery for loss of good will but aggrieved party did not substantiate claim) (see full text of the decision); CLOUT case No. 313 [FRANCE Cour d'appel [Appellate Court] Grenoble 21 October 1999; available at <http://cisgw3.law.pace.edu/cases/991021f1.html>] (no recovery under CISG for loss of good will unless loss of business proved); CLOUT case No. 210 [SPAIN Audiencia Provincial [Appellate Court] Barcelona 20 June 1997; available at <http://cisgw3.law.pace.edu/cases/970620s4.html>] (aggrieved party did not provide evidence showing loss of clients or loss of reputation) (see full text of the decision).

44. [RUSSIA Arbitration Award case No. 304/1993 of 3 March 1995; available at <http://cisgw3.law.pace.edu/cases/950303r2.html>] ("moral harm" not compensable under CISG).

45. CLOUT case No. 343 [GERMANY Landgericht [District Court] Darmstadt 9 May 2000; available at <http://cisgw3.law.pace.edu/cases/000509g1.html>] (damaged reputation insignificant if there is no loss of turnover and consequent lost profits) (see full text of the decision).

46. Gruppo IMAR S.p.A. v. Protech Horst BV [NETHERLANDS Rechtbank [District Court] Roermond 6 May 1993; available at http://cisgw3.law.pace.edu/cases/930506n1.html>] (damages in amount of devaluation because payment not made when due).

47. See, e.g., Maglificio Dalmine S.l.r. v. S.C. Covires [BELGIUM Tribunal commercial [Commercial Court] Bruxelles 13 November 1992; available at <http://cisgw3.law.pace.edu/cases/921113n1.html>] (failure to pay price; court allowed revaluation of receivable under Italian law to reflect change in cost of living).

48. CLOUT case No. 130 [GERMANY Oberlandesgericht [Appellate Court] Düsseldorf 14 January 1994; available at <http://cisgw3.law.pace.edu/cases/940114g1.html>] (seller did not establish its loss from devaluation of currency in which price was to be paid).

49. CLOUT case No. 214 [SWITZERLAND Handelsgericht [Commercial Court] Zürich 5 February 1997; available at <http://cisgw3.law.pace.edu/cases/970205s1.html>] (citing general principle of tort law).

50. CLOUT case No. 235 [GERMANY Bundesgerichtshof [Federal Supreme Court] 25 June 1997; available at <http://cisgw3.law.pace.edu/cases/970625g1.html>] (expense of resurfacing grinding machine not reasonable in relation to price of wire to be ground); [RUSSIA Arbitration award case No. 375/93 of 9 September 1994; available at <http://cisgw3.law.pace.edu/cases/940909r1.html>] (recovery of storage expenses shown to be amounts normally charged).

51. [STOCKHOLM CHAMBER OF COMMERCE Arbitration Award, case No. 107/1997 of 1998; available at <http://cisgw3.law.pace.edu/cases/970107s5.html>] (examination).

52. [STOCKHOLM CHAMBER OF COMMERCE Arbitration Award, case No. 107/1997 of 1998; available at <http://cisgw3.law.pace.edu/cases/970107s5.html>] (storage); CLOUT case No. 138 [UNITED STATES Delchi Carrier v. Rotorex Federal Circuit Court of Appeals [2d Circ.] 6 December 1995; available at <http://cisgw3.law.pace.edu/cases/951206u1.html>] (reversing CLOUT case No. 85 [UNITED STATES Delchi Carrier v. Rotorex Federal District Court [Northern Dist. of New York] 9 September 1994; available at <http://cisgw3.law.pace.edu/cases/940909u1.html>] decision that denied recovery of storage costs).

53. CLOUT case No. 304 [ICC International Court of Arbitration, case No. 7531 of 1994; available at <http://cisgw3.law.pace.edu/cases/947531i1.html>].

54.CLOUT case No. 138 [UNITED STATES Delchi Carrier v. Rotorex Federal Circuit Court of Appeals [2d Circ.] 6 December 1995; available at <http://cisgw3.law.pace.edu/cases/951206u1.html>] (reversing CLOUT case No. 85 [UNITED STATES Delchi Carrier v. Rotorex Federal District Court [Northern Dist. of New York] 9 September 1994; available at <http://cisgw3.law.pace.edu/cases/940909u1.html>] decision that denied recovery of shipping costs and customs duties).

55. CLOUT case No. 138 [UNITED STATES Delchi Carrier v. Rotorex Federal Circuit Court of Appeals [2d Circ.] 6 December 1995; available at <http://cisgw3.law.pace.edu/cases/951206u1.html>] (affirming CLOUT case No. 85 [UNITED STATES Delchi Carrier v. Rotorex Federal District Court [Northern Dist. of New York] 9 September 1994; available at <http://cisgw3.law.pace.edu/cases/940909u1.html>] decision that awarded costs of expediting shipment of goods under existing contract).

56. CLOUT case No. 125 [GERMANY Oberlandesgericht [Appellate Court] Hamm 9 June 1995; available at <http://cisgw3.law.pace.edu/cases/990609g1.html>].

57. [FINLAND Helsingfors hovrätt [Appellate Court] Helsinki 26 October 2000; available at <http://cisgw3.law.pace.edu/cases/001026f5.html>] (damages recovered for sales and marketing expenses of aggrieved buyer).

58. CLOUT case No. 253 [SWITZERLAND Tribunale d'appello [Appellate Court] Lugano, Cantone del Ticino 15 January 1998; available at <http://cisgw3.law.pace.edu/cases/980115s1.html>] (commissions) (see full text of the decision).

59. CLOUT case No. 311 [GERMANY Oberlandesgericht [Appellate Court] Köln 8 January 1997; available at <http://cisgw3.law.pace.edu/cases/970108g1.html>].

60. CLOUT case No. 304 [ICC International Court of Arbitration, case No. 7531 of 1994; available at <http://cisgw3.law.pace.edu/cases/947531i1.html>].

61. CLOUT case No. 318 [GERMANY Oberlandesgericht [Appellate Court] Celle 2 September 1998; available at <http://cisgw3.law.pace.edu/cases/980902g1.html>] (recovery allowed for handling complaints and for costs of unwrapping, loading and unloading returned non-conforming goods from sub buyers); [STOCKHOLM CHAMBER OF COMMERCE Arbitration Award case No. 107/1997 of 1998; available at <http://cisgw3.law.pace.edu/cases/980107s5.html>] (freight, insurance and duties connected with delivery to sub-buyer: storage with forwarder; freight back to aggrieved buyer; storage before resale by aggrieved buyer; examination).

62. CLOUT case No. 168 [GERMANY Oberlandesgericht [Appellate Court] Köln 21 May 1996; available at <http://cisgw3.law.pace.edu/cases/960521g1.html>] (buyer entitled to damages in amount of compensation paid to sub-buyer for non-conforming good); [GERMANY Landgericht [District Court] Paderborn 25 June 1996; available at <http://cisgw3.law.pace.edu/cases/960625g1.html>] (damages for reimbursement of sub-buyer travel expenses to examine product, costs of examination, cost of hauling defective products, costs of loss on a substitute purchase). See also CLOUT case No. 302 [ICC International Court of Arbitration, case No. 7660 of 1994; available at <http://cisgw3.law.pace.edu/cases/947660i1.html>] (no indemnity awarded because third party's pending claim against buyer not yet resolved).

63. [ICC International Court of Arbitration, case No. 8740 of October 1996; available at <http://cisgw3.law.pace.edu/cases/968740i1.html>] (cost of moving replacement coal from stockpiles recoverable).

64. CLOUT case No. 138 [UNITED STATES Delchi Carrier v. Rotorex Federal Circuit Court of Appeals [2d Circ.] 6 December 1995; available at <http://cisgw3.law.pace.edu/cases/951206u1.html>] (expenses incurred when attempting to remedy the non-conformity) (see full text of the decision), affirming CLOUT case No. 85 [UNITED STATES Delchi Carrier v. Rotorex Federal District Court [Northern Dist. of New York] 9 September 1994; available at <http://cisgw3.law.pace.edu/cases/940909u1.html>] ; [CANADA Nova Tool & Mold Inc. v. London Industries Inc. Ontario Court - General Division 16 December 1998; available at <http://cisgw3.law.pace.edu/cases/981216c4.html>] (reimbursing expenses of having third party perform regraining overlooked by seller and repairing non-conforming goods); CLOUT case No. 49 [GERMANY Oberlandesgericht [Appellate Court] Düsseldorf 2 July 1993; available at <http://cisgw3.law.pace.edu/cases/930702g1.html>] (cost of repair).

65. CLOUT case No. 318 [GERMANY Oberlandesgericht [Appellate Court] Celle 2 September 1998; available at <http://cisgw3.law.pace.edu/cases/980902g1.html>] (advertising costs not sufficiently particularized) (see full text of decision).

66. CLOUT case No. 49 [GERMANY Oberlandesgericht [Appellate Court] Düsseldorf 2 July 1993; available at <http://cisgw3.law.pace.edu/cases/930702g1.html>] (relying on the Convention but without analysis of art. 5, court concluded that it had jurisdiction in action by buyer against its supplier to recover cost of its indemnification of sub-buyer for personal injury caused by defective machine sold by supplier) (see full text of decision).

67. CLOUT case No. 318 [GERMANY Oberlandesgericht [Appellate Court] Celle 2 September 1998; available at <http://cisgw3.law.pace.edu/cases/980902g1.html>] (advertising costs not sufficiently particularized) (see full text of decision).

68. CLOUT case No. 49 [GERMANY Oberlandesgerich [Appellate Court] Düsseldorf 2 July 1993; available at <http://cisgw3.law.pace.edu/cases/930702g1.html>].

69. CLOUT case No. 93 [AUSTRIA Vienna Arbitration Award, case No. SCH-4336 of 15 June 1994; available at <http://cisgw3.law.pace.edu/cases/940615a3.html>] (storage expense incurred because of lateness in taking delivery) (see full text of decision); [RUSSIA Arbitration Award case No. 375/93 of 9 September 1994; available at <http://cisgw3.law.pace.edu/cases/940909r1.html>] (recovery of storage expenses that were in amounts normally charged); CLOUT case No. 104 [ICC International Court of Arbitration, case No. 7197 of 1993; available at <http://cisgw3.law.pace.edu/cases/937197i1.html>] (recovery of cost of storage but not for damage to goods because of prolonged storage) (see full text of decision).

70. CLOUT case No. 301 [ICC International Court of Arbitration, case No. 7585 of 1992; available at <http://cisgw3.law.pace.edu/cases/927585i1.html>] (storage and preservation of undelivered machinery). See also CISG art. 85 (seller must take steps to preserve goods when buyer fails to take over the goods).

71. CLOUT case No. 301 [ICC International Court of Arbitration, case No. 7585 of 1992; available at <http://cisgw3.law.pace.edu/cases/927585i1.html>] (cost of modifying machine in order to resell) (see full text of the decision).

72. CLOUT case No. 288 [GERMANY Oberlandesgericht [Appellate Court] München 28 January 1998; available at <http://cisgw3.law.pace.edu/cases/980128g1.html>] (dishonoured cheque); CLOUT case No. 376 [GERMANY Landgericht [District Court] Bielefeld 2 August 1996; available at <http://cisgw3.law.pace.edu/cases/960802g1.html>] (buyer responsible for dishonoured checques drawn by third party).

73. CLOUT case No. 125 [GERMANY Oberlandesgericht [Appellate Court] Hamm 9 June 1995; available at <http://cisgw3.law.pace.edu/cases/950609g1.html>] (citing arts. 45 and 48 but not art. 74, court concludes that breaching seller must bear cost of repair or delivery of replacement goods).

74. CLOUT case No. 327 [SWITZERLAND Kantonsgericht [District Court] Zug 25 February 1999; available at <http://cisgw3.law.pace.edu/cases/990225s1.html>] (recovery of debt collection costs allowed).

75. CLOUT case No. 296 [GERMANY Amtsgericht [Lower Court] Berlin-Tiergarten 13 March 1997; available at <http://cisgw3.law.pace.edu/cases/970313g1.html>] (costs of collection agency and local attorney in debtor's location not recoverable because not reasonable); CLOUT case No. 228 [GERMANY Oberlandesgericht [Appellate Court] Rostock 27 July 1995; available at <http://cisgw3.law.pace.edu/cases/950727s1.html>] (CIG does not provide for expenses incurred by collection agency).

76. CLOUT case No. 254 [SWITZERLAND Handelsgericht [Commercial Court] Aargau 19 December 1997; available at <http://cisgw3.law.pace.edu/cases/971219s1.html>] (extra-judicial costs); CLOUT case No. 169 [GERMANY Oberlandesgericht [Appellate Court] Düsseldorf 11 July 1996; available at <http://cisgw3.law.pace.edu/cases/960711g1.html>] (reminder letter); [GERMANY Landgericht [District Court] Aachen 20 July 1995; available at <http://cisgw3.law.pace.edu/cases/950720g1.html>] (pre-trial costs recoverable under art. 74); [SWITZERLAND Kantonsgericht [District Court] Zug 1 September 1994; available at <http://cisgw3.law.pace.edu/cases/940901s1.html>] (expenses for non-judicial requests for payment reimbursable if payment overdue at time of request). See also CLOUT case No. 410 [GERMANY Landgericht [District Court] Alsfeld 12 May 1995; available at <http://cisgw3.law.pace.edu/cases/950512g1.html>] (seller failed to mitigate loss in accordance with art. 77 when it hired a lawyer in buyer's location rather than a lawyer in seller's location to send a collection letter); CLOUT case No. 130 [GERMANY Oberlandesgericht [Appellate Court] Düsseldorf 14 January 1994; available at <http://cisgw3.law.pace.edu/cases/940114g1.html>] (although in principle legal costs incurred before avoidance of the contract are recoverable under art. 74, they are not recoverable here because the fees were recovered in special proceedings); [NETHERLANDS Gerechtshof [Appellate Court] 's-Hertogenbosch 27 November 1991; available at <http://cisgw3.law.pace.edu/cases/911127n1.html>] (construing ULIS art. 82, predecessor of art. 74, court allowed extra-judicial costs). See also [UNITED STATES Zapata Hermanos Sucesores, S.A. v. Hearthside Baking Co., Inc. Federal Circuit Court of Appeals [7th Circ.] 19 November 2002; available at <http://cisgw3.law.pace.edu/cases/.021119u1.html>] (leaving open whether certain pre-litigation expenditures might be recovered as damages when, e.g., expenditures were designed to mitigate the aggrieved party's losses).

77. CLOUT case No. 254 [SWITZERLAND Handelsgericht [Commercial Court] Aargau 19 December 1997; available at <http://cisgw3.law.pace.edu/cases/971219s1.html>] (reasonable pre-litigation costs of lawyer in seller's country compensable; pre litigation costs of lawyer in buyer's country [the forum] to be awarded as part of costs).

78. Many decisions award attorneys' fees but support the award by citation to domestic law on the allocation of litigation costs.

79. CLOUT case No. 166 [GERMANY Hamburg Arbitration Award of 21 March / 21 June 1996; available at <http://cisgw3.law.pace.edu/cases/960321g1.html> / <http://cisgw3.law.pace.edu/cases/960621g1.html>] (supplemental interpretation of arbitration clause provided compensation for attorney's fees when arbitral tribunal composed exclusively of lawyers) (see full text of the decision): CLOUT case No. 301 [ICC International Court of Arbitration, case No. 7585 of 1992; available at <http://cisgw3.law.pace.edu/cases/927585i1.html>] (damages for expenses for attorneys and arbitration).

80. CLOUT case No. 166 [GERMANY Hamburg Arbitration Award of 21 March / 21 June 1996; available at <http://cisgw3.law.pace.edu/cases/960321g1.html> / <http://cisgw3.law.pace.edu/cases/960621g1.html>] (referring, inter alia, to inconclusive survey of local trade practice with respect to attorney's fees in arbitral proceedings) (see full text of the decision)

81. CLOUT case No. 130 [GERMANY Oberlandesgericht [Appellate Court] Düsseldorf 14 January 1994; available at <http://cisgw3.law.pace.edu/cases/940114g1.html>] (legal costs incurred in actions to enforce claims under two different contracts).

82. See, e.g., [FINLAND Hovioikeus [Appellate Court] Turku 12 April 2002; available at <http://cisgw3.law.pace.edu/cases/020412f5.html>] (without citing art. 74, court provides for recovery of attorneys' fees).

83. [STOCKHOLM CHAMBER OF COMMERCE Arbitration Award case No. 107/1997 of 1998; available at <http://cisgw3.law.pace.edu/cases/980107s5.html>] (attorney's fees in dispute with freight forwarder about storage not recoverable because unforeseeable).

84. CLOUT case No. 410 [GERMANY Landgericht [District Court] Alsfeld 12 May 1995; available at <http://cisgw3.law.pace.edu/cases/950512g1.html>] (seller failed to mitigate loss in accordance with art. 77 when it hired a lawyer in buyer's location rather than a lawyer in seller's location to send collection letter).

85. [UNITED STATES Zapata Hermanos Sucesores, S.A. v. Hearthside Baking Co. Inc Federal Circuit Court of Appeals [7th Circ.] 19 November 2002; available at <http://cisgw3.law.pace.edu/cases/021119u1.html>] (leaving open whether certain pre-litigation expenditures might be recovered as damages). (The United States Supreme Court denied certiorari on this case on 1 December 2003).

86. [FINLAND Helsingfors hovrätt [Appellate Court] Helsinki 26 October 2000; available at <http://cisgw3.law.pace.edu/cases/001026f5.html>] (lost profit calculated in accordance with national law of civil procedure); CLOUT case No. 476 [RUSSIA Arbitration Award case No. 406/1998 of 6 June 2000; available at <http://cisgw3.law.pace.edu/cases/000606r1.html>] (aggrieved buyer entitled in principle to recover for lost profit from sale with sub-buyer); CLOUT case No. 348 [GERMANY Oberlandesgericht [Appellate Court] Hamburg 26 November 1999; available at <http://cisgw3.law.pace.edu/cases/991126g1.html>] (aggrieved buyer entitled to recover difference between value that contract would have had if seller had performed and costs saved by buyer); CLOUT case No. 214 [SWITZERLAND Handelsgericht [Commercial Court] Zürich 5 February 1997; available at <http://cisgw3.law.pace.edu/cases/970205s1.html>] (buyer entitled to lost profits); CLOUT case No. 168 [ GERMANY Oberlandesgericht [Appellate Court] Köln 21 May 1996; available at <http://cisgw3.law.pace.edu/cases/960521g1.html>] (breaching seller liable in amount of buyer's lost profits when buyer had to reimburse sub-buyer); CLOUT case No. 138 [UNITED STATES Delchi Carrier v. Rotorex Federal Circuit Court of Appeals [2d Circ.] 6 December 1995; available at <http://cisgw3.law.pace.edu/cases/951206u1.html>] {buyer's lost profits), affirming CLOUT case No. 85 [UNITED STATES Delchi v. Rotorex Federal District Court [Northern Dist. of New York] 9 September 1994; available at <http://cisgw3.law.pace.edu/cases/940909u1.html>] ; CLOUT case No. 301 [ICC International Court of Arbitration, case No. 7585 of 1992; available at <http://cisgw3.law.pace.edu/cases/927585i1.html>] (seller's lost profits measured by art. 75). See also CLOUT case No. 243 [FRANCE Cour d'appel [Appellate Court] Grenoble 4 February 1999; available at <http://cisgw3.law.pace.edu/cases/990204f1.html>] (buyer did not produce evidence of lost profits) (see full text of decision).

87. CLOUT case No.348 [GERMANY Oberlandesgericht [Appellate Court] Hamburg 26 November 1999; available at <http://cisgw3.law.pace.edu/cases/991126g1.html>] (fixed court not costs aggrieved buyer saved when calculating lost profits); CLOUT case No. 138 [UNITED STATES Delchi Carrier v. Rotorex Federal Circuit Court of Appeals [2d Circ.] 6 December 1995; available at <http://cisgw3.law.pace.edu/cases/951206u1.html>] (in absence of specific direction in Convention for calculating lost profits, standard formula employed by most US courts appropriate) (see full text of the decision).

88. CLOUT case No. 130 [GERMANY Oberlandesgericht [Appellate Court] Düsseldorf 14 January 1994; available at <http://cisgw3.law.pace.edu/cases/940114g1.html>].

89. CLOUT case No. 476 [RUSSIA Arbitration Award case No. 406/1998 of 6 June 2000; available at <http://cisgw3.law.pace.edu/cases/000606r1.html>] (buyer's damages for lost profit reduced to 10% of price because breaching seller did not know terms of sub-sale; 10% derived from Incoterms CIF term which provides that insurance should be taken out in amount of 110% of price).

90. CLOUT case No. 85 [UNITED STATES Delchi Carrier v. Rotorex Federal District Court [Northern Dist. of New York] 9 September 1994; available at <http://cisgw3.law.pace.edu/cases/940909u1.html>] ("sufficient evidence [under common law and law of New York] to estimate the amount of damages with reasonable certainty, affirmed CLOUT case No. 138 [UNITED STATES Delchi Carrier v. Roterex Federal Circuit Court of Appeals [2d Circ.] 6 December 1995; available at <http://cisgw3.law.pace.edu/cases/951206u1.html>].

91. CLOUT case No. 210 [SPAIN Audiencia Provincial [Appellate Court] Barcelona 20 June 1997; available at <http://cisgw3.law.pace.edu/cases/970620s4.html>] (aggrieved party did not provide any evidence to show his profits in previous years or the loss it suffered, such as orders given to him that could not be filled, loss of clients or loss of reputation) (see full text of the decision),

92. CLOUT case No. 427 [AUSTRIA Oberster Gerichtshof [Supreme Court] 28 April 2000; available at <http://cisgw3.law.pace.edu/cases/000428a3.html>] (aggrieved seller may recover profit margin on assumption that could sell at the market prices). See also [STOCKHOLM CHAMBER OF COMMERCE Arbitration Award case No. 107/1997 of 1998; available at <http://cisgw3.law.pace.edu/cases/980107s5.html>] (aggrieved buyer's loss of profits on its sale to first sub-buyer, who rejected, and on resale to second sub-buyer at price below original contract price); CLOUT case No. 217 [SWITZERLAND Handelsgericht [Commercial Court] 26 September 1997; available at <http://cisgw3.law.pace.edu/cases/970926s1.html>] (majority of court awarded seller, who had resold goods, global amount of 10 percent of price stating that breaching buyer could expect such an amount of loss; dissenting opinion questioned whether sufficient proof of damages); [CHINA Xiamen Intermediate People's Court 31 December 1992; available at <http://cisgw3.law.pace.edu/cases/921231c1.html>] (aggrieved seller's lost profits calculated as difference between contract price and price in contract with its supplier).

93. [ITALY Tribunale [District Court] Milano 11 December 1998; available at <http://cisgw3.law.pace.edu/cases/981211i3.html>] (noting that claim of lost sale conflicted with claim for damages under art. 75).

94. CLOUT case No. 85 [UNITED STATES Delchi Carrier v. Rotorex Federal District Court [Northern Dist. of New York] 9 September 1994; available at <http://cisgw3.law.pace.edu/cases/940909u1.html>] (distinguishing between lost sales for which there was sufficient certain evidence of damage and other "indicated orders for which evidence was too uncertain) (see full text of decision), affirmed by CLOUT case No. 138 [UNITED STATES Delchi Carrier v. Rotorex Federal Circuit Court of Appeals [2d Circ.] 6 December 1995; available at <http://cisgw3.law.pace.edu/cases/951206u1.html>].

95. [CHINA CIETAC Arbitration Award of 30 October 1991; available at <http://cisgw3.law.pace.edu/cases/911030c1.html>] (rental of machinery by buyer's sub-buyer not foreseeable by breaching seller).

96. CLOUT case No. 294 [GERMANY Oberlandesgericht [Appellate Court] Bamberg 13 January 1999; available at <http://cisgw3.law.pace.edu/cases/990113g1.html>] (breaching party could not foresee that late delivery would require processing in Germany rather than Turkey).

97. [STOCKHOLM CHAMBER OF COMMERCE Arbitration Award case No. 107/1997 of 1998; available at <http://cisgw3.law.pace.edu/cases/980107s5.html>] (aggrieved buyer's payments to freight forwarder exceptionally large and therefore reduced by 50%).

98. [STOCKHOLM CHAMBER OF COMMERCE Arbitration Award case No. 107/1997 of 1998; available at <http://cisgw3.law.pace.edu/cases/980107s5.html>] (aggrieved buyer's attorneys' fees for dispute with freight forwarder).

99. CLOUT case No. 235 [GERMANY Bundesgerichtshof [Federal Supreme Court] 25 June 1997; available at <http://cisgw3.law.pace.edu/cases/970625g1.html>] (expense of resurfacing grinding machine not foreseeable because not reasonable in relation to price of wire to be ground).

100. CLOUT case No. 476 [RUSSIA Arbitration Award case No. 406/1998 of 6 June 2000; available at <http://cisgw3.law.pace.edu/cases/000606r1.html>] (buyer's damages for lost profit reduced to 10% of price because breaching seller did not know terms of sub-sale).

101. CLOUT case No. 474 [RUSSIA Arbitration Award case No. 54/1999 of 24 January 2000; available at <http://cisgw3.law.pace.edu/cases/000124r1.html>] (seller could not foresee inspection abroad which was alleged to lead to loss of reputation of goods sold).

102. CLOUT case No. 168 [GERMANY Oberlandesgericht [Appellate Court] Köln 21 May 1996; available at <http://cisgw3.law.pace.edu/cases/960521g1.html>] (the seller of a good to a retail buyer should foresee that the buyer will resell the good). See also CLOUT case No. 47 [GERMANY Landgericht [District Court] Aachen 14 May 1993; available at <http://cisgw3.law.pace.edu/cases/930514g1.html>] (buyer who failed to take over electronic ear devices could foresee the seller's delivery losses) (see full text of the decision).

103. CLOUT case No. 155 [GERMANY Hamburg Arbitration Award of 21 March / 21 June 1996; available at <http://cisgw3.law.pace.edu/cases/960321g1.html> / <http://cisgw3.law.pace.edu/cases/960621g1.html>] (tribunal assumed, in its discretion as provided by domestic law, that amount of loss caused could be foreseen) (see full text of decision).

104. CLOUT case No. 427 [AUSTRIA Oberster Gerichtshof [Supreme Court] 28 April 2000; available at <http://cisgw3.law.pace.edu/cases/000428a3.html>] (breaching buyer can foresee that aggrieved seller of fungible goods would lose its typical profit margin).

105. CLOUT case No. 217 [SWITZERLAND Handelsgericht [Commercial Court] Aargau 26 September 1997; available at <http://cisgw3.law.pace.edu/cases/970926s1.html>] (dissent argues that seller had not sufficiently proved the amount of its damages).

106. CLOUT case No. 467 [RUSSIA Arbitration Award case No. 406/1998 of 6 June 2000; available at <http://cisgw3.law.pace.edu/cases/000606r1.html>] (aggrieved buyer had burden); CLOUT case No. 294 [GERMANY Oberlandesgericht [Appellate Court] Bamberg 13 January 1999; available at <http://cisgw3.law.pace.edu/cases/990113g1.html>] (aggrieved party failed to carry burden); CLOUT case No. 243 [FRANCE Cour d'appel [Appellate Court] Grenoble 4 February 1999; available at <http://cisgw3.law.pace.edu/cases/990204f1.html>] (aggrieved party carried burden of proof) (see full text of the decision); CLOUT case No. 380 [ITALY Tribunale [District Court] Pavia 29 December 1999; available at <http://cisgw3.law.pace.edu/cases/991229i3.html>] (aggrieved party failed to carry burden); CLOUT case No. 318 [GERMANY Oberlandesgericht [Appellate Court] Celle 2 September 1998 ; available at <http://cisgw3.law.pace.edu/cases/980902g1.html>] (aggrieved party failed to produce evidence of actual loss under art. 74 or current market price under art. 76); CLOUT case No. 467 [RUSSIA Arbitration Award case No. 407/1996 of 11 September 1998; available at <http://cisgw3.law.pace.edu/cases/980911r1.html>] (aggrieved buyer established amount of breach) (see full text of the decision); [RUSSIA City of Moscow Arbitration Court case No. 18-40 of 3 April 1995; available at <http://cisgw3.law.pace.edu/cases/950403r1.html>] (aggrieved buyer "substantiated" relevant current price and currency conversion rate).

107. [GERMANY Bundesgerichtshof [Federal Supreme Court] 9 January 2002; available at <http://cisgw3.law.pace.edu/cases/020109.html>] (breaching seller failed to show conformity at time risk shifted to buyer).

108. CLOUT case No. 294 [GERMANY Oberlandesgricht [Appellate Court] Bamberg 13 January 1999; available at <http://cisgw3.law.pace.edu/cases/990113.html>] (aggrieved buyer had burden of establishing damages).

109. [FINLAND Helsingfors hovrätt [Appellate Court] Helsinki 26 October 2000; available at <http://cisgw3.law.pace.edu/cases/001025f5.html>] (grounds of recovery under CISG but calculation of damages under art. 17of the Finnish Law of Civil Procedure); CLOUT case No. 261 [SWITZERLAND Bezirksgericht [District Court] Saane 20 February 1997; available at <http://cisgw3.law.pace.edu/cases/970220s1.html>] (applicable domestic law determines how to calculate damages when amount cannot be determined); CLOUT case No. 85 [UNITED STATES Delchi Carrier v. Rotorex Federal District Court [Northern Dist. of New York] 9 September 1994; available at <http://cisgw3.law.pace.edu/cases/940909u1.html>]. ("sufficient evidence [under common law and law of New York] to estimate the amount of damages with reasonable certainty") affirmed CLOUT case No. 138 [UNITED STATES Delchi Carrier v. Rotorex Federal Circuit Court of Appeals [2d Circ.] 6 December 1995; available at <http://cisgw3.law.pace.edu/cases/951206u1.html>].

110. CLOUT case No. 288 [GERMANY Oberlandesgericht [Appellate Court] München 28 January 1998; available at <http://cisgw3.law.pace.edu/cases/980128g1.html>] (applicable law, not Convention, determines whether set off permitted); CLOUT case No. 281 [GERMANY Oberlandesgericht [Appellate Court] Koblenz 17 September 1993; available at <http://cisgw3.law.pace.edu/cases/930917g1.html>] (domestic law applicable by virtue of private international law rules determines whether set off allowed).

111. CLOUT case No. 125 [GERMANY Oberlandesgericht [Appellate Court] Hamm 9 June 1995; available at <http://cisgw3.law.pace.edu/cases/950609g1.html>] (set-off permitted under applicable national law; counterclaim determined by reference to Convention). But see CLOUT case No. 170 [GERMANY Landgericht [District Court] Trier 12 October 1995; available at <http://cisgw3.law.pace.edu/cases/951012g1.html>] (counterclaim arose under Convention; set off permitted under Convention).

112. CLOUT case No. 348 [GERMANY Oberlandesgericht [Appellate Court] Hamburg 26 November 1999; available at <http://cisgw3.law.pace.edu/cases/991126g1.html>] (buyer's counterclaim set off against seller's claim for price); CLOUT case No. 318 [GERMANY Oberlandesgericht [Appellate Court] Celle 2 September 1998; available at <http://cisgw3.law.pace.edu/cases/980902g1.html>] (buyer damages set off against price); [STOCKHOLM CHAMBER OF COMMERCE Arbitration Award case No. 107/1997 of 1998; available at <http://cisgw3.law.pace.edu/cases/980107s5.html>] (damages for non-conformity set off against claim for price); CLOUT case No. 273 [GERMANY Oberlandesgericht [Appellate Court] München 9 July 1997; available at <http://cisgw3.law.pace.edu/cases/970709g1.html>] (buyer's counterclaim would have been allowed as set off but seller had not breached). See also CLOUT case No. 280 [GERMANY Oberlandesgericht [Appellate Court] Jena 26 May 1998; available at <http://cisgw3.law.pace.edu/cases/980526g1.html>] (implicitly recognizing the possibility that buyer's tort claim could be raised to set off against seller's claim for the price, court applies CISG notice provisions to bar tort claim).

113. CLOUT case No. 205 [FRANCE Cour d'appel [Appellate Court] Grenoble 23 October 1996; available at <http://cisgw3.law.pace.edu/cases/961023f1.html>] (deriving general principle from art. 57(1) that place of payment is domicile of creditor); CLOUT case No. 49 [GERMANY Oberlandesgericht [Appellate Court] Düsseldorf 2 July 1993; available at <http://cisgw3.law.pace.edu/cases/930702g1.html>] (deriving general principle on place of payment from art. 57(1)).


ANALYSIS OF CISG CASE LAW

Reprinted by special permission of Northwestern University School of Law. 34 Northwestern Journal of International Law and Business (Winter 2004) 299-440.[*]

excerpt from

The Interpretive Turn in International Sales Law:
An Analysis of Fifteen Years of CISG Jurisprudence

Larry A. DiMatteo, Lucien Dhooge, Stephanie Greene,
Virginia Maurer and Marisa Pagnattaro

[...]

[Damages]

1. Calculation of Damages

Articles 74, 75, and 76 set out general formulas for the calculation of damages.[732] Pursuant to Article 74, damages consist of a sum equal to the loss, including loss of profit, suffered by the other party as a consequence of the breach.[733] Under Article 75, if the contract is avoided, and the buyer has bought goods in replacement or the seller has resold the goods, the party claiming damages may recover "the difference between the contract price and the price in the substitute transaction."[734] The substitute transaction must be made in a reasonable manner and within a reasonable time after avoidance.[735] If the substitute transaction occurs in a different place from the original transaction or is on different terms, the amount of damages must be adjusted to recognize any increase in costs, less any expenses saved as a consequence of the breach.[736] Moreover, the time limit within which the resale or cover purchase must be made does not begin until the injured party has in fact declared the contract avoided.[737] Failure to abide by the requirements of Article 75 will result in a party being precluded from recovering damages.[738] Consequently, the buyer who does not declare a [page 418] contract avoided is not entitled to recover the expenses incurred in procuring replacement goods.[739]

If the contract has been avoided but no substitute transaction followed, then Article 76 sets forth an alternative means of measuring damages. Article 76 provides that if the contract is avoided and there is a current sale price for the goods, the party claiming damages may, if he has not made a purchase or sale under Article 75, recover "the difference between the price fixed by the contract and the current price at the time of avoidance."[740] If, however, the party claiming damages avoided the contract after taking the goods, then the current price at the time of the taking over shall be applied.[741] If no current price is presented in connection with a claim for damages under Article 76, a party is precluded from recovering under this Article.[742] A party collecting under Articles 75 and 76 may also recover additional damages under Article 74.[743]

A number of cases have dealt with the ability of the claiming party to recover interest. Generally, interest is awarded for any claim of damages.[744] In fact, one arbitration tribunal awarded a rate above the legal rate.[745] The rationale given was that the entitlement to interest under Article 78 is independent of any claim for damages under Article 74. The tribunal found that the seller operated on the basis of credit for which it had to pay interest at the rate of 12%. It then applied that rate since the seller would have to obtain credit in order to replace the funds missing due to non-payment by the buyer [page 419]

2. Limiting Doctrines: Articles 74 and 77

The damages available under Articles 74 and 75 are subject to the limiting doctrines of foreseeabilty, found in Article 74, and the principle of mitigation, found in Article 77. Under Article 74, damages "may not exceed the loss which the party in breach foresaw or ought to have foreseen at the time of the conclusion of the contract," in light of the facts and matters of which he then knew or ought to have known, as a possible consequence of the breach of contract.[746] A party may increase the scope of foreseeability by communicating to the other party that a breach would cause him exceptionally heavy losses or losses of an unusual nature.[747]

Issues arising under Article 74 fall into two major categories. First, there are cases addressing whether or not certain damages are foreseeable. The burden of proof is on the non-breaching party to prove that the damages were a foreseeable consequence of breach. Second, there is the issue of whether attorneys' fees and the costs of debt collection are allowed under Article 74. Article 77 places a duty on the non-breaching party to mitigate damages. A key determination in the application of the doctrine of mitigation is the timing of the mitigation.

a. Doctrine of Foreseeability

The Supreme Court of Germany applied the foreseeability limitation at the time of contract formation, rather than, as under national law, at the time of the breach.[748] In that case, the buyer was a German cheese importer who entered into a contract to purchase cheese from a Dutch exporter. Because three percent of the cheese delivered was defective, the buyer sought damages, including lost profits as a result of the loss of four wholesale customers, damages paid to one of buyer's customers who lost his own customers as a result of the defective cheese, and the loss of a group delivery arrangement causing an increase in the buyer's transportation costs.[749] Two lower courts denied the buyer's claims, stating that he could only recover lost profits if the seller could have foreseen such damages [page 420] because 3% of the cheese was defective. The German Supreme Court reversed and remanded noting that the seller knew at the time of the formation of the contract that the buyer was a middleman or reseller of the goods.

In Delchi Carrier S.p.A. v. Rotorex Corp.,[750] the Court of Appeals for the Second Circuit emphasized that the CISG requires damages to be limited by the "familiar principle of foreseeability established in Hadley v. Baxendale."[751] Accordingly, the court found that a CISG plaintiff may collect damages to compensate for the full loss, including lost profits, "subject only to the familiar limitation that the breaching party must have foreseen, or should have foreseen, the loss as a probable consequence."[752] The court held that damages were foreseeable and could be recovered for lost profits due to lost sales from having to shut down manufacturing operations, along with expenses for storage, shipping and retooling.[753] In so holding, the court stated that to award damages for such costs actually incurred in no way creates a double recovery and instead furthers the purpose of giving the injured party damages "equal to the loss" as provided for by Article 74.[754]

As demonstrated in Delchi Carrier S.p.A. v. Rotorex Corp., the general principle that there should be "full compensation" for damages under the CISG not only allows for recovery of lost profits, but also additional out of pocket expenses.[755] Damages have been awarded for a variety of expenses including costs of obtaining credit,[756] damages caused by liability to a customer when goods are sold to a dealer who intends to resell them,[757] and damages for the costs relating to a dishonored check.[758] Damages were not awarded where they were not reasonably foreseeable and damages have been denied where the party seeking damages fails to do the following: [page 421] prove that additional costs of obtaining goods were foreseeable at the time the contract was concluded; [759] where the buyer was forewarned by complaints concerning an initial delivery, but still failed to carefully examine a second shipment for defects in a timely manner; [760] where the buyer lost profits associated with general distribution agreement with other parties; [761] where the buyer failed to state a claim for damages within a reasonable time; [762] where a party sought compensation for impairment to its "trading image"; [763] where the buyer claiming damages failed to specify the nature of the lack of conformity of the goods; [764] and where the buyer did not produce any evidence that the seller knew about the terms and conditions of a contract between the buyer and a third party.[765]

b. Attorney Fees and Debt Collection

A second major issue under Article 74 is whether attorneys' fees are recoverable.[766] Authority is split on this point. German courts have required parties to pay attorneys' fees under Article 74. [767] Recently, a German district court held that the buyer was responsible to pay the seller's attorneys' fee incurred as a result of the buyer's failure to pay in a timely manner, plus interest accrued since the commencement of the legal action.[768] In the United States, however, the Court of Appeals for the Seventh Circuit held in Zapata Hermanos Sucesores v. Hearthside Baking Co. that the loss recoverable in Article 74 does not include attorneys' fees.[769] In reaching this conclusion, Judge Posner noted that there was [page 422] nothing in the background of the CISG about whether "loss" was intended to include attorneys' fees.[770] In Ajax Tool Works, Inc. v. Can-Eng Manufacturing Ltd.,[771] the Federal District Court for the Northern District of Illinois held that since the granting of "attorneys' fees [is] a procedural matter governed by the law of the forum," they are not recoverable in the United States under Article 74.[772]

In the related area of debt collection, a German court held that debt collection costs are not recoverable under Article 74.[773] The court, however, did not totally exclude the possibility of recovering the costs associated with debt collection. It rejected the claim because it found that the plaintiff failed to follow the most economical means to collect the debt.[774] In another case, a Swiss court held that the buyer had to indemnify the seller for debt collection costs.[775] The seller was awarded default interest and reimbursement of debt collection costs. [page 423]

[...]


FOOTNOTES

* For a subsequent text on this subject by these authors, see Larry A. DiMatteo, Lucien Dhooge, Stephanie Greene, Virginia Maurer & Marisa Pagnattaro, "International Sales Law: A Critical Analysis of CISG Jurisprudence", Cambridge University Press (2005) 241 p.

[...]

732. CISG, supra note 4, at arts. 74-76. See generally Harry M. Flechtner, Remedies Under the New International Sales Convention: The Perspective from Article 2 of the U.C.C., 8 J.L. & Com. 53 (1988) (elaborating on the use of Article 2 of the UCC to interpret the remedy provisions of the CISG) [available at <http://cisgw3.law.pace.edu/cisg/biblio/flecht.html>]; Jeffrey S. Sutton, Measuring Damages Under the United Nations Convention on the International Sale of Goods, 50 Ohio S. L.J. 737 (1989) (comparing Article 2 of the UCC with the CISG) [available at <http://cisgw3.law.pace.edu/cisg/biblio/sutton.html>].

733. CISG, supra note 4, at art. 74.

734. Id. at art. 75.

735. See id. The time limit does not begin to run until the injured party has in fact declared the contract avoided.

736. Secretariat Commentary to art. 75, available at <http://cisgw3.law.pace.edu/cisg/text/secomm/secomm-75.html>.

737. Id.

738. Issues of proof can be raised as to whether a substitute purchase was carried out at the price claimed or whether the purchase is justifiable. LG Braunschweig 21 0 703/01 (028), Jul. 30, 2001 (F.R.G.), available at <http://cisgw3.law.pace.edu/cases/010730g1.html> [English translation by Dr. Andrea Vincze]. A plaintiff, however, is not obliged to resell the goods before the date of avoidance. OLG Düsseldorf 17 U 146/93, Jan. 14, 1994, supra note 718 (resale nearly two months after avoidance was still within a reasonable time). Furthermore, a substitute purchase cannot replace a notice of declaration of avoidance of a contract. OLG Bamberg 3 U 83/98, Jan. 13, 1999 (F.R.G.), available at <http://cisgw3.law.pace.edu/cases/990113g1.html> [English translation by Ruth M. Janal]. Likewise, once avoidance of the contract is clear, a buyer does not need to wait before purchasing substitute goods. FCF S.A. v. Adriafil Commerciale S.r.l. BGE, 4C.105/2000, supra note 646 (except in the case in which the seller could prove that the buyer was able to find goods at a more favorable price).

739. OLG Bamberg 3 U 83/98, Jan. 13, 1999, supra note 738.

740. CISG, supra note 4, at art. 76. The "current price" is that for goods of the contract description in the contract amount; the concept of "current price" does not require the existence of official or unofficial market quotations, but the lack thereof may raise the question whether there is a current price for the goods. Secretariat Commentary to Art. 76, available at <http://cisgw3.law.pace.edu/cisg/text/secomm/secomm-76.html>.

741. CISG, supra note 4, at art. 76. See KG Zug, A3 1997 61, Oct. 21, 1999 (Switz.), available at <http://cisgw3.law.pace.edu/cases/991021s1.html> [English translation by Dr. Andrea Vincze] (court held that damages resulting from non-performance of the contract by the seller had to be assessed on the basis of an abstract calculation under Article 76).

742. OLG Celle 3 U 246/97, Sept. 2, 1998 (F.R.G.), available at <http://cisgw3.law.pace.edu/cases/980902g1.html> [English translation by Ruth M. Janal, translation edited by Camilla Baasch Andersen] (the court was not able to make a calculation under Article 76 for damages because the buyer failed to present any evidence of the current market price of the goods).

743. CISG, supra note 4, at art. 74.

744. Id. at art. 78.

745. International Chamber of Commerce Arbitration 7197 [(1992)], CLOUT Case No. 104, available at [<http://cisgw3.law.pace.edu/cases/927197i1.htm>].

746. CISG, supra note 4, at art. 74. See Arthur G., Murphy, Jr., Consequential Damages in Contracts for the International Sale of Goods and the Legacy of Hadley, 23 Geo. Wash. J. Int'l L. & Econ. 415 (1989); see generally CA Grenoble, RG 98/02700, Feb. 4, 1999, supra note 504 (judges applied art. 74 to calculate the damages awarded to the buyer after seller refused to deliver and buyer obtained supplies elsewhere) [available at <http://cisgw3.law.pace.edu/cisg/biblio/murphey.html>].

747. Secretariat Commentary to Art. 74, available at <http://cisgw3.law.pace.edu/cisg/text/secomm/secomm-74.html>.

748. BGH VIII ZR 210/78, Oct. 24, 1979 (F.R.G.), available at <http://cisgw3.law.pace.edu/cases/791024g1.html>; see also Arbitral Tribunal Vienna, SCH-4366, Jun. 15, 1994, supra note 78 (issue of foreseeability). For a discussion of this case, see Eric C. Schneider, Consequential Damages in the International Sale of Goods: Analysis of Two Decisions, 16 U. Penn. J. of Int'l B.L. 615 (1995) [available at <http://cisgw3.law.pace.edu/cisg/wais/db/articles/schnedr2.html>].

749. Id.

750. 71 F.3d 1024 (2d Cir. 1995).

751. Id. at 1029 (citing Hadley v. Baxendale, 156 Eng. Rep. 145 (1854)).

752. Id. at 1030.

753. Id. at 1029-30. See also HG Zürich, HG 95 0347, Feb. 5, 1997, supra note 618 (buyer proved that it had the opportunity to resell the first shipment from the seller at a higher price) compare OLG Celle 3 U 246/97, Sept. 2, 1998, supra note 742 (court held that the buyer was not entitled to a claim for loss of profit, in view of the fact that it had omitted to assess its damages on the basis of a specific calculation as required by art. 74).

754. Delchi Carrier S.p.A, 71 F.3d at 1030. In so doing, the Second Circuit disagreed with lower court holdings that denied recovery of such damages as "double recovery." Id.

755. See generally OLG Hamburg 1 U 31/99, Nov. 26, 1999, supra note 710 (damages cover the whole loss resulting from non-performance).

756. ICC International Court of Arbitration 7531.

757. See generally OLG Köln 22 U 4/96, May 21, 1996, supra note 607; BGer I. Zivilabteilung 4C.179/1998/odi, Oct. 28, 1998 (Switz.), available at <http://cisgw3.law.pace.edu/cases/981028s1.html>

758. OLG Stuttgart, 5 U 195/94, Aug. 21, 1995 (F.R.G), available at <http://cisgw3.law.pace.edu/cases/950821g1.html> [English translation by Walter, Conston, Alexander & Green, P.C., editors: William M. Barron, Esq. & Birgit Kurtz, Esq.].

759. OLG Bamberg 3 U 83/98, Jan. 13, 1999, supra note 738.

760. LG Stuttgart 3 KfH O 97/89, Aug. 31, 1989, supra note 359.

761. Schiedsgericht der Handelskammer Hamburg, Mar. 21, 1996, supra note 618.

762. HG Zürich, HG 92 0670, Apr. 26, 1995 (Switz.), available at <http://cisgw3.law.pace.edu/cases/950426s1.html>.

763. Société Calzados Magnanni v. SARL Shoes General International, Oct. 21, 1999 (Fr.), CLOUT Case No. 313, available at [<http://cisgw3.law.pace.edu/cases/991021f1.html>] [English translation by Charles Sant 'Elia, translation edited by Kirsten Stadtländer].

764. LG Köln 89 O 20/99, Nov. 30, 1999 (F.R.G.), available at <http://cisgw3.law.pace.edu/cases/991130g1.html> [English translation by Ruth M. Janal].

765. ICA Arbitral Tribunal 406/1998, Jun. 6, 2000 (Russ.), available at <http://cisgw3.law.pace.edu/cases/000606r1.html> [English translation by Mykhaylo Danylko, translation edited by Yelena Kalika].

766. See Peter Schlechtriem, Attorneys' Fees as Part of Recoverable Damages, 14 Pace Int'l L. Rev. 205 (2002) (note that this discussion precedes the most recent cases discussed below).

767. In one case, the court held that the plaintiff could claim attorneys' fees for a reminder that was sent prior to the lawsuit. OLG Düsseldorf 6 U 152/95, Jul. 11, 1996 (F.R.G.), available at <http://cisgw3.law.pace.edu/cases/960711g1.html>.

768. LG Berlin 103 0 213/02, Mar. 23, 2003 (F.R.G.), available at <http://cisgw3.law.pace.edu/cases/030321g1.html> [English translation by Stefan Kuhm, translation edited by Camilla Baasch Andersen].

769. Zapata Hermanos Sucesores v. Hearthside Baking Co., 313 F.3d 385, 389 (7th Cir. 2002).

770. Id. at 388.

771. Prod. Liab. Rep. (CCH) P16,516, 01C 5938 2003 WL 223187, at *7 (N.D. Ill. Jan. 30, 2003).

772. Id.

773. AG Berlin-Tiergarten 2 C 22/97, Mar. 13, 1997 (F.R.G.), available at <http://cisgw3.law.pace.edu/cases/970313g1.html>

774. Id.

775. KG Zug, A3 1998 153, Feb. 25, 1999, supra note 742.

[...]

Go to complete text of Analysis of Fifteen Years of CISG Jurisprudence


CASE ANNOTATED COMPARATIVES
-  UNIDROIT Principles
-  
PECL comparative

Remarks on the Manner in which the UNIDROIT Principles of International Commercial Contracts May Be Used to Interpret or Supplement Article 74 of the CISG

Sieg Eiselen [*]
October 2004

a. The right to claim damages as a result of a breach of contract is probably the single most important remedy available to the aggrieved party.[1] The law of damages is a complex set of rules and principles hiding behind the fairly simple-looking formulae such as those found in CISG articles 74 to 76. The interpretation of article 74 CISG is therefore fraught with all kinds of difficulties of which the interpreter should be aware. Not least of these difficulties could be the different notions and understanding of damages in the particular legal system that the interpreter itself comes from.

b. Although the CISG deals with damages in some detail, a number of vexing practical issues, which are dealt with in most legal systems and also in the UNIDROIT Principles, have been left open or unresolved. These issues include the time at which damages are to be calculated, the liability and calculation of future damages, contributory conduct of the claimant increasing the amount of damages, saved expenses, loss of an opportunity or chance, penalty clauses and proof of damages. The provisions of articles 7.4.1 and 7.4.2 of the UNIDROIT Principles may be helpful in interpreting and applying article 74 CISG.

c. The basic premise underlying both the provisions of article 74 CISG and articles 7.4.1 and 7.4.2 of the UNIDROIT Principles are that the breaching party is liable to compensate the aggrieved party in full for all pecuniary damages suffered by the aggrieved party, including the loss of profit.[2] The second shared premise in the CISG and the UNIDROIT Principles is that the claim for damages is available over and above any other remedies that the aggrieved party may have or exercise.[3] The third shared premise is that the breaching party is only liable for damages that were either actually foreseen or foreseeable by the breaching party at the time of the conclusion of the contract -- that is, according to the so-called contemplation principle.[4] The UNIDROIT Principles, however, contain more detailed provisions than the CISG in respect of what is to be understood under full compensation. These provisions and their applicability in the interpretation of article 74 CISG will be discussed below.

d. There is one radical difference between the damages provisions in the CISG and those in the UNIDROIT Principles, namely in respect of non-pecuniary damages or damages resulting from personal injury or death. Article 5 CISG excludes the claim for such damages from the scope of the Convention.[5] Therefore, whether a party will be entitled to such damages will depend on the provisions of the applicable national legal system. However, article 7.4.2 of the UNIDROIT Principles specifically includes liability for such damages. This does not so much reflect a difference in the basic approach between the CISG and UNIDROIT Principles as the fact that the drafters of the CISG wished to remove the complex area of products liability from the sphere of the CISG.[6] The fact that such a provision is included in the UNIDROIT Principles provides good grounds for arguing that the provisions of article 5 CISG should be restrictively interpreted and only the liability for personal injury or death should be excluded, but not other personal damages such as damage to reputation.[7]

e. The provisions of article 74 CISG are reflected in articles 7.4.1 and 7.4.2 of the UNIDROIT Principles. In article 7.4.2 of the UNIDROIT Principles the emphasis is on full compensation for harm sustained as a result of breach.[8] The wording "harm sustained" in the UNIDROIT Principles is probably wider than the words "a sum equal to the loss suffered" in the CISG reflecting the difference in approach to personal injuries discussed above. In case of doubt the interpretation of article 74 CISG should also lean toward full compensation for harm as far as harm has not been excluded from the scope of the CISG by article 5.

f. Article 7.4.2 of the UNIDROIT Principles further requires that any gain received by the aggrieved party should be taken into account when calculating the loss.[9] This issue is not pertinently dealt with in the CISG and therefore article 7.4.2 of the UNIDROIT Principles might be useful in interpreting article 74 of the CISG with reference to such gain. This interpretation is further strengthened when the principles underlying CISG articles 77 (duty to mitigate) and 80 (prevention or causation by the creditor) are also taken into account.[10]

g. The extent of the liability of a party for breach of contract is restricted in both instruments by the so-called contemplation principle.[11] The test of foreseeability is worded differently in the two instruments. In article 74 CISG, the emphasis is on loss which was actually foreseen or which the party ought to have foreseen in the light of circumstances known to him or of which he should have known as a possible consequence of the breach.[12] The test is therefore either subjective (where there is actual knowledge) or objective (where there is no subjective knowledge).[13] This accords with the provisions of article 7.4.4 of the UNIDROIT Principles.

h. In article 7.4.4 of the UNIDROIT Principles, however, emphasis is placed on the "foreseeability of harm being likely to result from its non-performance".[14] The CISG standard as formulated in Article 74 however is "foresaw or ought to have foreseen … as a possible consequence of the breach of contract." This standard seems to be much wider than the standard contained in the UNIDROIT Principles. Ziegel [15] explains the difference between "likely to result" and "a possible consequence" with reference to the following example: "if one takes a well-shuffled pack of cards it is quite possible, though not likely, that the top card will prove to be the nine of diamonds even though the odds are 51 to 1 against." Farnsworth,[16] however, in comparing Article 74 with the American Restatement provision, remarks quite correctly that the wide ambit of the word "possible" is cut back by the preceding requirement of "in the light of the facts". In the Official Comments [17] on article 7.4.4, the test of foreseeability is also linked to the requirement in article 7.4.3 of the UNIDROIT Principles that the harm must be certain. Therefore, it must have been foreseeable that harm will with certainty (is likely to) flow from such a breach. The Comment further makes it clear that the breaching party is not liable for harm that was not foreseeable even if the breach was willful, as is the case in some legal systems.[18] Foreseeability must therefore be narrowly interpreted. This is also important for the restrictive interpretation of article 74 CISG in the light of the wide phrasing of Article 74. The Comment to article 7.4.4 further makes it clear that the emphasis is on the conduct of a "normally diligent person" in foreseeing the consequences of non-performance. This should also be the approach in the interpretation and application of article 74 of the CISG.[19] Finally the Comment also makes it clear that the foreseeability relates to "the nature or type of harm but not to its extent". This should also be the approach under article 74 of the CISG.[20]

i. The liability for damages is further limited in both the CISG and the UNIDROIT Principles by the causality requirement. In the CISG, this requirement is found in the words "as a consequence of" and in the UNIDROIT Principles in the words "as a result of".[21] Stoll argues that there is only a need for factual causation (conditio sine qua non) inquiry as the foreseeability rule is employed in the place of the legal causation requirement.[22] The UNIDROIT Principles shed no further light on this issue as the Comments to Article 7.4.2 simply refer to causation without further elaboration.

j. Neither article 74 CISG nor the UNIDROIT Principles contain an express provision about the time at which damages are to be calculated.[23] However, the underlying principle is suggested by the provisions in article 76 CISG and article 7.4.6 of the UNIDROIT Principles dealing with the current price of goods as presumptive measure for the calculation of damages. This would suggest that damages are to be calculated at the time that the action is lodged and not at the time of the breach.

k. Article 74 CISG contains an apparent gap in that it does not deal with the issue of future damages.[24] The UNIDROIT Principles may be helpful in that this issue is fully dealt with in article 7.4.3 under the heading "Certainty of Harm". The principle that the party is not liable for harm which has not occurred and which also is not likely to occur can be assumed. Such interpretation of article 74 CISG is strengthened by the interpretation of article 7.4.3 of the UNIDROIT Principles. In calculating the harm, there are two approaches that a court may follow: Where the amount of harm, including future harm, can be established with certainty, the court will award that amount. However, where it is certain that harm has resulted or will result, but where the amount cannot be established with sufficient certainty, the court has a discretion in assessing the amount.

l. It is submitted that article 7.4.3 of the UNIDROIT Principles may be helpful in interpreting article 74 CISG and to fill the apparent gap which exists. The UNIDROIT Principles clearly accept the principle that the defaulting party is liable for future damages and provide a practical, reasonable and equitable approach for the determination of such damages.

m. A specific application of the liability for future damages is the liability for the loss of a chance or opportunity. Article 7.4.3 of the UNIDROIT Principles makes express provision for liability in such a case. It establishes two principles, namely, (a) the defaulting party is liable; and (b) the calculation of the loss is in proportion to the probability of the occurrence of the chance.

It is submitted that article 7.4.3 of the UNIDROIT Principles can be used to fill the gap in article 74 CISG establishing liability for a loss of a chance as well as the manner of calculating the amount of damages. Loss of profit which is included specifically in article 74 CISG may further indicate that liability for future damages and loss of a chance should be accounted for in terms of the CISG.

n. The CISG contains no indication of the currency in which the loss is to be calculated [25] or where it is to be paid.[26] Article 7.4.12 of the UNIDROIT Principles allow a discretion to the court by stipulating that loss can be calculated either in the currency in which the monetary obligation (price) was expressed in the contract or the currency in which the harm was suffered, whichever is more appropriate. For instance, where replacement goods were bought or where the current market price presumption is used to calculate damages, those currencies would prima facie seem most appropriate. It is suggested that this approach should be used in the interpretation and application of CISG articles 74 et. seq.[27] The CISG also does not deal with losses due to a devaluation of a currency or drop in the exchange rate in the cases of late payment. There are conflicting decisions in the case law on this issue.[28] In principle, such damages ought to be awarded.

o. The CISG consciously does not deal with so-called liquidated damages and penalty clauses. The framers of the Convention agreed that the validity and application of such clauses were to be dealt with in terms of the applicable legal system due to widely divergent approaches in the different legal systems.[29] Article 7.4.13 of the UNIDROIT Principles, however, is based on the validity of such clauses subject to a judicial discretion to reduce the amount where it is grossly excessive. The vagaries of private international law will therefore decide this issue and the UNIDROIT Principles cannot provide any interpretative assistance to the CISG.[30]

p. Except indirectly, the CISG does not deal with the issue of contributory conduct of the aggrieved party which adds to the loss of harm suffered.[31] Article 77 CISG deals with the duty of the aggrieved party to mitigate damages, which covers only one aspect of the issue at stake here. This is clear from the fact that the issue of contributory conduct is dealt with separately in the UNIDROIT Principles in article 7.4.7, whereas the mitigation duty is dealt with in article 7.4.8 of the UNIDROIT Principles. If it is a separate issue, there is a gap in the CISG that can be filled by interpretation of either article 74 or article 77. In a German case [32] it seems that the court simply assumed, without further reference to authority, that contributory conduct could play a role.[33]

q. The principle that damages are to be reduced to the extent that they were caused by the aggrieved party or by circumstances for which it bore the risk, is found in the general principle established in article 7.1.2 of the UNIDROIT Principles which restricts its remedies where non-performance is partly due to the conduct of the aggrieved party.

r. The principle contained in article 7.1.2 of the UNIDROIT Principles is reflected in the similar provisions found in CISG articles 77 and 80. Article 7.4.7 of the UNIDROIT Principles can therefore be helpful in the interpretation of article 74 of the CISG read together with articles 77 and 80 in establishing the extent to which the defaulting party is excused from liability for damages due to the conduct of the aggrieved party.[34] The formulation of article 7.4.7 of the UNIDROIT Principles and the Official Comments are helpful in this process. It is clear that in such a case the amount of damages ought to be reduced proportionally. Such apportionment of damages will often involve a judicial discretion in weighing the different facts contributing to the eventual damages suffered.

s. As far as the burden of proof is concerned, it is generally accepted that the burden of proving the extent of damages lies on the aggrieved party.[35] However, where parties have failed to prove the exact extent of their loss, there is a divergence in the case law about the consequences. Belgian and Swiss courts seem to award an estimated amount ex aequo et bono where it is clear that damages have been suffered, but not clear what the extent thereof was.[36] German and American courts seem to dismiss the claim for damages under similar circumstances.[37] On the available doctrine, Lookofsky is of the opinion that problems of proof and certainty of loss are procedural matters which remain within the province of national law.[38]

t. Neither the CISG nor the UNIDROIT Principles devote explicit attention to the issue of legal fees or litigation costs. It is therefore unlikely that the UNIDROIT Principles can come to the aid in the solution of this controversy which has erupted after the decision in the Zapata Hermanos case [39] where the court on appeal overturned an earlier decision.[40] The court held that attorneys' fees are not covered by Article 74 of the CISG, but that this is a procedural matter falling outside the scope of the CISG and that it must therefore be dealt with in terms of the domestic law of the forum.[41] This is in contrast to certain German decisions where legal fees have been awarded as part of the damages recoverable under Article 74.[42]


FOOTNOTES

* Professor in Private Law, University of South Africa; Advocate of the High Court of South Africa.

1. Honnold J.O., Uniform Law for International Sales Under the 1980 United Nations Convention 3rd ed. (1999 Deventer) para 403 - 404, at pp. 445-446; Enderlein F. & Maskow D., International Sales Law - United Nations Convention on Contracts for the International Sale of Goods (1992 New York) 297-302, also available online at <http://www.cisg.law.pace.edu/cisg/biblio/enderlein.html>; Magnus U., in Martinek M. (ed) J. von Staudingers Kommentar zum Bürgerlichen Gesetzbuch mit Einführungsgesetz und Nebengesetze: Wiener UN-Kaufrecht (1999 Berlin) Art 74, Rn 2 & 3; Bernstein H & Lookofsky J., Understanding the CISG in Europe (1997 The Hague) 96; Schönle in Honsell 1 & 10; Witz W., Salger H.C. & Lorenz M., Internationales Einheitliches Kaufrecht (2000 Heidelberg) Art 74, Rn 1 & 2; Kritzer A.H., Guide to the Practical Applications of the United Nations Convention on Contracts for the International Sale of Goods (1989 Deventer) 474-482; Stoll H in Schlechtriem P.H. & Bacher K. (eds) Kommentar zum einheitlichen UN Kaufrecht 3rd ed (2000 München) Art 74, Rn 1 & 2.

2. Honsell/Schönle Art 74 Rn 10; Honnold para 417 at 456; Enderlein/Maskow (1992) Notes 1 & 4, at pp 297-298; Witz/Salger/Lorenz Art 74, Rn 12 & 19; Staudinger/Magnus, Art 74, Rn 12, 16 & 19; Liu C., "Remedies for Non-performance: Perspectives from CISG, UNIDROIT Principles & PECL", September 2003 at 13.2 available at <http://www.cisg.law.pace.edu/cisg/biblio/chengwei-74.html>. For relevant case law, see ICC Arbitration Case No. 8574 of September 1996, available online at <http://cisgw3.law.pace.edu/cases/968574i1.html>; Germany 21 September 1995 Landgericht [District Court] Kassel, available online at <http://cisgw3.law.pace.edu/cases/950921g1.html>; Austria 9 March 2000 Oberster Gerichtshof [Supreme Court], available online at <http://cisgw3.law.pace.edu/cases/000309a3.html>; United States 9 September 1994 Federal District Court [New York] (Delchi Carrier v. Rotorex), available online at <http://cisgw3.law.pace.edu/cases/940909u1.html>; Austria 14 January 2002 Supreme Court, available online at <http://cisgw3.law.pace.edu/cases/020114a3.html>.

3. Staudinger/Magnus, Art 74, Rn 8.

4. See para g., infra.

5. Staudinger/Magnus, Art 5, Rn 1; Enderlein/Maskow (1992), Note 1 at p 46; Liu at 13.4. Cf. Germany 2 July 1993 Oberlandesgericht [Appellate Court] Düsseldorf, available online at <http://cisgw3.law.pace.edu/cases/930702g1.html>. This case involved a claim for indemnification for an obligation stemming from a personal injury related to defects in the goods. The court erroneously regarded indemnification of such an obligation as an allowable element of damages under the CISG. For criticism of the court for overlooking article 5 CISG in so ruling, see commentary by Schlechtriem, P. at the above URL.

6. See legislative history of article 5 CISG at the 1980 Vienna Diplomatic Conference, available online at <http://www.cisg.law.pace.edu/cisg/chronology/chrono05.html>; see also Staudinger/Magnus, Art 74, Rn Art 5 Rn 3; Bianca C.M. & Bonell J.M., Commentary on the International Sales Law - the 1980 Vienna Sales Convention (1987 Milan), Art. 5, Note 2.1.

7. Liability for a loss of reputation seem to be generally recognized as one such instance, see relevant case law: Russia 24 January 2000 Arbitration proceeding 54/1999, available online at <http://cisgw3.law.pace.edu/cases/000124r1.html>; Switzerland 28 October 1998 Bundesgericht [Supreme Court], available online at <http://cisgw3.law.pace.edu/cases/981028s1.html>; Germany 21 September 1995 Landgericht [District Court] Kassel, available online at <http://cisgw3.law.pace.edu/cases/950921g1.html>. See also Staudinger/Magnus, Art 74, Rn 27, 45 & 50; Witz/Salger/Lorenz, Art 74, Rn 14; Honsell/Schönle, Art 74, Rn 2 & 7.

However, for a contrary decision, see France 21 October 1999 Cour d'appel [Appellate Court] Grenoble (Calzados Magnanni v. Shoes General International), available online at <http://cisgw3.law.pace.edu/cases/991021f1.html>.

8. Honsell/Schönle, Art 74, Rn 9-17; Witz/Salger/Lorenz, Art 74, Rn 15-20; Austria 9 March 2000 Oberster Gerichtshof [Supreme Court], available online at <http://cisgw3.law.pace.edu/cases/000309a3.html>.

9. Schlechtriem/Stoll 32; Honsell/Schönle, Art 74, Rn 11.

10. Liu at 13.5.

11. Kritzer 479; Witz/Salger/Lorenz, Art 74, Rn 2 & 27; Honnold, para 406 at p. 447; Staudinger/Magnus, Art 74, Rn 5; Vékás L., "The Foreseeability Doctrine in Contractual Damage Cases, (2002) 43 Acta Juridica Hungarica 145-174, available at <http://www.cisg.law.pace.edu/cisg/biblio/vekas.html>; Saidov D., 2001, "Methods of Limiting Damages under the Vienna Convention on Contracts for the International Sale of Goods" <http://www.cisg.law.pace.edu/cisg/biblio/saidov.html>; Liu at 14.2.2; Austria 14 January 2002 Supreme Court, available online at <http://cisgw3.law.pace.edu/cases/020114a3.html>. In United States 6 December 1995 Federal Appellate Court [2d Circuit] (Delchi Carrier v. Rotorex), available online at <http://cisgw3.law.pace.edu/cases/951206u1.html>, the American court dealt with a number of issues reflecting on damages and foreseeability. Unfortunately, the court relied on domestic interpretations of foreseeability rather than an approach free of domestic legal influence; see the editorial discussion of Kritzer A.H. on the case at <http://www.cisg.law.pace.edu/cisg/wais/db/editorial/951206u1editorial.html>. Cook S.V., "The UN Convention on Contracts for the International Sale of Goods: A Mandate to Abandon Legal Ethnocentricity", (1997) 16 Journal of Law and Commerce 257-263, available online at <http://cisgw3.law.pace.edu/cisg/biblio/1cook.html>, correctly points out at 258-259 that the court made use of the Hadley v. Baxendale approach and jurisprudence which is not supported on the wording of the CISG. See also Schneider E.C., "Consequential Damages in the International Sale of Goods: Analysis of Two Decisions", (1995) 16 Journal of International Business Law 615-668, available online at <http://www.cisg.law.pace.edu/cisg/wais/db/articles/schnedr2.html>.

See also relevant case law, Germany 21 September 1995 Landgericht [District Court] Kassel, available online at <http://cisgw3.law.pace.edu/cases/950921g1.html> where it was held that it was foreseeable that a failure to perform to a wholesaler would negatively influence its trade relationships with retailers; Switzerland 28 October 1998 Bundesgericht [Supreme Court], available online at <http://cisgw3.law.pace.edu/cases/981028s1.html>.

12. Germany 24 October 1979 Bundesgerichshof [Federal Supreme Court] [ULIS precedent], available online at <http://cisgw3.law.pace.edu/cases/791024g1.html>; United States 6 December 1995 Federal Appellate Court [2d Circuit] (Delchi Carrier v. Rotorex), available online at <http://cisgw3.law.pace.edu/cases/951206u1.html>; Stockholm Chamber of Commerce Arbitration Award of 1998, available online at <http://cisgw3.law.pace.edu/cases/980107s5.html>; Finland 5 November 1996 District Court of Kuopio, available online at <http://cisgw3.law.pace.edu/cases/961105f5.html; ICC Arbitration Case No. 8769 of December 1996, available online at <http://cisgw3.law.pace.edu/cases/968769i1.html>; Germany 2 October 1996 Landgericht [District Court] Heidelberg, available online at <http://cisgw3.law.pace.edu/cases/961002g1.html>.

13. Enderlein/Maskow, Note 7-10 at pp. 300-301; Honsell/Schönle, Art 74, Rn 23-27; Witz/Salger/Lorenz, Art 74, Rn 2; Bernstein & Lookofsky 100-101.

14. Germany 23 March 1978 Oberlandesgericht [Appellate Court] Hamm [ULIS precedent], available online at <http://cisgw3.law.pace.edu/cases/780323g1.html>.

15. Ziegel J., Parker School Text as quoted in Kritzer H. Guide to Practical Applications of the United Nations Convention on Contracts for the International Sale of Goods (Kluwer 1994) 587-588.

16. "Damages and Specific Relief" 27 Am J of Comp L 253.

17. The Official Comments on the UNIDROIT Principles cited are available online at <http://www.cisg.law.pace.edu/cisg/principles/uni74.html#official>.

18. This is also the case with the CISG; see Enderlein/Maskow, Note 8 at p. 301.

19. See Staudinger/Magnus Art 74, Rn 35; Honsell/Schönle, Art 74, Rn 24.

20. See, however, Germany 15 September 1997 Landgericht [District Court] Heilbronn, available online at <http://cisgw3.law.pace.edu/cases/970915g1.html> where the court seems to have taken the opposite view. See also Staudinger/Magnus, Art 74, Rn 34; Witz/Salger/Lorenz, Art 74, Rn 31; Austria 14 January 2002 Supreme Court, available online at <http://cisgw3.law.pace.edu/cases/020114a3.html>.

21. Saidov D., "Causation in Damages: The Convention on Contracts for the International Sale of Goods, the UNIDROIT Principles of International Commercial Contracts, the Principles of European Contract Law" at fn 1-3; Schlechtriem/Stoll Art 74 Rn 12. See also Staudinger/Magnus, Art 74, Rn 28. Saidov, "Limiting Damages" at fn 22-25, however, expresses doubt whether the combination of factual causality and foreseeability is adequate to deal with complex situations of causality.

22. Schlechtriem/Stoll art 74 Rn 12.

23. Staudinger/Magnus, Art 74, Rn 55; Schlechtriem/Stoll 33.

24. Enderlein/Maskow, Note 5 at p. 299-300. Liu at 14.3. In Switzerland 5 February 1997 Handelsgericht [Commercial Court] Zürich, available online at <http://cisgw3.law.pace.edu/cases/970205s1.html>, the issue was raised but not pertinently decided. The court in its exposition apparently relied on the principles of Swiss law.

25. In Switzerland 3 December 2002 Commercial Court St. Gallen, available online at <http://cisgw3.law.pace.edu/cases/021203s1.html>, the court dealt with this matter according to Swiss law without any reference to the CISG and any possible gap. This recourse to domestic law should be rejected as the issue is clearly one that falls within the scope of the CISG. The gap needs to be filled in accordance with Article 7.

26. In Germany 2 July 1993 Oberlandesgericht [Appellate Court] Düsseldorf, available online at <http://cisgw3.law.pace.edu/cases/930702g1.html>, it was decided that damages had to be paid at the place of business of the creditor. In United States 6 December 1995 Federal Appellate Court [2d Circuit] (Delchi Carrier v. Rotorex), available online at <http://cisgw3.law.pace.edu/cases/951206u1.html>, the court employed the American "breach day rule" without proper justification or reference to any other possible approaches -- see Kritzer's editorial comment at <http://www.cisg.law.pace.edu/cisg/wais/db/editorial/951206u1editorial.html>. See also Darkey J.M., "A U.S. Court's Interpretation of Damage Provisions under the U.N. Convention on Contracts for the International Sale of Goods: A Preliminary Step towards an International Jurisprudence of CISG or a Missed Opportunity?", (1995) 15 Journal of Law and Commerce 139-152 at 138-139, also available online at <http://www.cisg.law.pace.edu/cisg/biblio/darkey2.html>; Murray J.E. Jr., "The Neglect of CISG: A Workable Solution", Journal of Law and Commerce (1998) 17 365-379, also available on line at <http://www.cisg.law.pace.edu/cisg/wais/db/articles/murray.html>.

27. In Germany 28 February 1997 Oberlandesgericht [Appellate Court] Hamburg, available online at <http://cisgw3.law.pace.edu/cases/970228g1.html>, it was decided that the damages had to be calculated in the currency in which they were suffered. See also Staudinger/Magnus, Art 74, Rn 56.

28. See Germany 27 January 1981 Landgericht [District Court] Heidelberg, available online at <http://cisgw3.law.pace.edu/cases/810127g1.html> [ULIS case]; Germany 14 January 1994 Oberlandesgericht [Appellate Court] Düsseldorf , available online at <http://cisgw3.law.pace.edu/cases/940114g1.html> where such claims were rejected. See also Enderlein Maskow 302.

Cf. the following case law: Netherlands 6 May 1993 Arrondissementsrechtbank [District Court] Roermond (Gruppo IMAR v. Protech Horst), available online at <http://cisgw3.law.pace.edu/cases/930506n1.html>; Germany 28 April 1993 Landgericht [District Court] Krefeld, available online at <http://cisgw3.law.pace.edu/cases/930428g1.html>; Netherlands 15 April 1997 Gerechtshof [Appellate Court] Arnhem (Celli v. Agrolang), available online at <http://cisgw3.law.pace.edu/cases/970415n1.html>; Switzerland 5 February 1997 Handelsgericht [Commercial Court] Zürich, available online at <http://cisgw3.law.pace.edu/cases/970205s1.html> where such a claim was recognized.

This is also the practical effect of the "day of breach rule" applied in United States 9 September 1994 Federal District Court [New York] (Delchi Carrier v. Rotorex), available online at <http://cisgw3.law.pace.edu/cases/940909u1.html>. See also Honnold 446 fn 4; Staudinger/Magnus, Art 74, Rn 48; Witz/Salger/Lorenz, Art 74, Rn 21.

29. Staudinger/Magnus, Art 74, Rn 59 & 60; Honsell/Schönle Art 74, Rn 32; Witz/Salger/Lorenz, Art 74, Rn 42.

30. Russia 23 November 1994 Arbitration proceeding 251/1993, available online at <http://cisgw3.law.pace.edu/cases/941123r1.html>, restricting the damages to the extent of the penalty clause.

31. Enderlein/Maskow, Note 1 at p. 308 & Note 5 at p. 309; Bernstein & Lookofsky 103-104; Honnold. para 417 at p. 456; Saidov at fn 77078, 84-86; Liu at 14.4. In respect of the issue of causality, see Austria 9 March 2000 Oberster Gerichtshof [Supreme Court], available online at <http://cisgw3.law.pace.edu/cases/000309a3.html> and the editorial comment by A.H. Kritzer.

32. Germany 23 March 1978 Oberlanesgericht [Appellate Court] Hamm [ULIS precedent], available online at <http://cisgw3.law.pace.edu/cases/780323g1.html>.

33. In the Israeli case of 22 August 1993 Supreme Court (Eximin v. Textile and Footwear), available online at <http://cisgw3.law.pace.edu/cases/930822i5.html>, the court relied on Israeli law to deal with apportionment without reference to CISG authority. See also the critical comments of Reich A. at the above reference. In Germany 25 June 1996 Landgericht [District Court] Paderborn, available online at <http://cisgw3.law.pace.edu/cases/960625g1.html> reliance on contributory causation was rejected.

34. See generally Enderlein/Maskow, Art 80, Note 1 at p. 335 and Note 6 at p. 339. Liu at 14.4.1.

35. Enderlein/Maskow, Art 74, Note 6 at p. 300; Witz/Salger/Lorenz, Art 74, Rn 40; Honsell/Schönle, Art 74, Rn 33; Staudinger/Magnus, Art 74, Rn 61; Australia 17 January 2003 Supreme Court of Western Australia (Ginza Pte Ltd v Vista Corporation Pty Ltd), available online at <http://cisgw3.law.pace.edu/cases/030117a2.html>; Switzerland 10 March 2003 District Court Appenzell Auserrhoden, available online at <http://cisgw3.law.pace.edu/cases/030310s1.html>; Germany 2 February 2004 Appellate Cout Zweibrücken, available online at <http://cisgw3.law.pace.edu/cases/040202g1.html>

For other relevant case law, see Switzerland 26 April 1995 Handelsgericht [Commercial Court] Zürich, available online at <http://cisgw3.law.pace.edu/cases/950426s1.html>; Spain 20 June 1997 Audiencia Provincial [Appellate Court] Barcelona, available online at <http://cisgw3.law.pace.edu/cases/970620s4.html>; Germany 15 February 1996 Landgericht [District Court] Kassel, available online at <http://cisgw3.law.pace.edu/cases/960215g1.html>; Italy 11 December 1998 Corte di Appello [Appellate Court] Milano (Bielloni Castello v. EGO), available online at <http://cisgw3.law.pace.edu/cases/981211i3.html>.

36. Belgium 18 May 1999 Hof van Beroep [Appellate Court] Antwerp (Vandermaesen Viswaren v. Euromar Seafood), available online at <http://cisgw3.law.pace.edu/cases/990518b1.html>; Belgium 8 October 1996 Rechtbank van Koophandel [District Court] Hasselt (Vandermaesen Viswaren v. Euromar Seafood), available online at <http://cisgw3.law.pace.edu/cases/961008b1.html>; Netherlands 15 April 1997 Gerechtshof [Appellate Court] Arnhem (Celli v. Agrolang), available online at <http://cisgw3.law.pace.edu/cases/970415n1.html>; Belgium 2 May 1995 Rechtbank van Koophandel [District Court] Hasselt (Vital Berry Marketing v. Dira-Frost), available online at <http://cisgw3.law.pace.edu/cases/950502b1.html>; Switzerland 26 September 1997 Handelsgericht [Commercial Court] Aargau, available online at <http://cisgw3.law.pace.edu/cases/970926s1.html>. Cf. Switzerland 10 March 2003 District Court Appenzell Auserrhoden, available online at <http://cisgw3.law.pace.edu/cases/030310s1.html>.

37. Germany 5 March 1996 Landgericht [District Court] Düsseldorf, available online at <http://cisgw3.law.pace.edu/cases/960305g1.html>; Germany 17 June 1996 Landgericht [District Court] Hamburg, available online at <http://cisgw3.law.pace.edu/cases/960617g1.html>. In Germany 2 February 2004 Appellate Court Zweibrücken, available online at <http://cisgw3.law.pace.edu/cases/040202g1.html>, the court held that it was entitled to decide damages cases in two stages in appropriate circumstances. In the first stage, it is established whether a breach has occurred entitling a party to damages. In the second stage, the quantum of the damages is established.

38. Bernstein & Lookofsky 101. See also Honsell/Schönle, Art 74, Rn 35; Staudinger/Magnus Art 74 Rn 61 ; Giovannucci Orlandi, C., "Procedural Law Issues and Uniform Law Conventions" 2000-2001 Uniform Law Review 23-41, available online at <http://cisgw3.law.pace.edu/cisg/biblio/orlandi.html>. In Germany 9 January 2002 Bundesgerichshof [Federal Supreme Court], available online at <http://cisgw3.law.pace.edu/cases/020109g1.html> the court held that "however, [] the burden of proof rules of the CISG cannot go farther than the scope of its substantive applicability" clearly and quite correctly indicating that the application of the CISG in respect of issues of burden of proof is limited to those instances where those issues are regulated by the CISG expressly or by necessary implication. For a discussion of this case see Perales Battle of the Forms and the Burden of Proof: An Analysis of BGH 9 January 2002, 2002 (6) Vindobona Journal of International Law and Arbitration 217, available online at <http://cisgw3.law.pace.edu/cisg/biblio/perales2.html>. A distinction must be drawn between general issues of proof and procedure which is governed by the lex fori unless the CISG contains a clear provision on that aspect and issues of burden of proof where the express or implied provisions of the CISG will take precedence over the lex fori. In the latter instance the lex fori will only be applied if the issue to be determined falls outside the general scope of the CISG.

39. United States, 19 November 2002 Federal Appellate Court [7th Circuit] (Zapata Hermanos v. Hearthside Baking), available online at <http://cisgw3.law.pace.edu/cases/021119a1.html>.

40. United States, 28 August 2001 Federal District Court [Illinois] (Zapata Hermanos v. Hearthside Baking), available online at <http://cisgw3.law.pace.edu/cases/010828u1.html>.

41. Schlechtriem P., "Attorneys' Fees as Part of Damages", (2002) 14 Pace International Law Review 205-209, available online at <http://cisgw3.law.pace.edu/cisg/biblio/schlechtriem4.html>; Felemegas J., "An Interpretation of Article 74 by the U.S. Circuit Court of Appeals" (2003) 15 Pace International Law Review 91-147, available online at <http://cisgw3.law.pace.biblio/felemegas4.html>; Vanto J., "Attorneys' fees as damages in international commercial litigation" (2003) 5 Turku Law Journal 89-83 and 15 Pace International Law Review (2003) 203-222, also available at <http://cisgw3.law.pace.biblio/vanto1.html>; Flechtner H. & Lookofsky J., "Viva Zapata! American Procedure and CISG Substance in a U.S. Circuit Court of Appeal", (2003) 7 Vindobona Journal of International Commercial Law and Arbitration 93-104, also available at <http://cisgw3.law.pace.biblio/flechtner5.html>; Keily T., "How Does the Cookie Crumble? Legal Costs under a Uniform Interpretation of the United Nations Convention on Contracts for the International Sale of Goods", (2003) Nordic Journal of Commercial Law, available online at <http://www.njcl.utu.fi> and at <http://cisgw3.law.pace.edu/biblio/keily2.html>; Zeller B., "Interpretation of Article 74 -- Zapata Hermanos v. Hearthside Baking -- Where Next?, (2004) Nordic Journal of Commercial Law, available online at <http://www.njclfi/1_2004/commentary1.pdf>.

42. Germany 11 April 2002 Lower Court Viechtach, available online at <http://cisgw3.law.pace.edu/cases/020411g1.html>; Germany 14 January 1994 Appellate Court Düsseldorf, available online at <http://cisgw3.law.pace.edu/cases/940114g1.html>; Vanto at II; Felemegas at 4(c).


PECL COMPARATIVE

Remarks on the Damages Provisions in the CISG, Principles of European Contract Law (PECL) and UNIDROIT Principles of International Commercial Contracts (UPICC) [*]

Friedrich Blase and Philipp Höttler [**]
December 2004

1. Damages in International Sales Law: CISG, PECL and UPICC
2. Matters governed by CISG Art. 74 and expressly settled in it
     (a) Breach of contract: right to damages
     (b) Measure of damages: full compensation
     (c) Foreseeability of loss
3. Matters governed by the Convention, but not expressly settled in it
     (a) Offsetting losses with gains
     (b) Loss partly attributable to aggrieved party
     (c) Proof of non-pecuniary loss
     (d) Currency of damages
     (e) Loss of profit
     (f) Incidental losses
4. Matters not governed by the Convention
     (a) Civil liability for personal injury
     (b) Reliance interest
     (c) Punitive damages and penalty clauses
5. Conclusions

1. Damages in International Sales Law: CISG, PECL and UPICC

Contract law, whether national or international, is -- almost universally and entirely -- at the disposition of the parties when they are modeling their individual contractual situation; very few of its provisions are usually considered mandatory.[1] The latter rules are confined to popular issues of validity due to immorality, illegality or incapacity as well as the rudimentary protection of the balance of the duties owed between the parties. Even in situations where the contract partners actively negotiate the terms of their contract and especially in the manifold situations in which they do not discuss the conditions, the commercial parties of cross-border transactions often do not consider the substantive law applicable to their contract. This holds true not only for the contract drafting stage, but also for the fulfillment by performing the duties owed under the contract. Somewhat prematurely, the parties (and their legal counsel) might even believe that their elaborate contract deals with all the issues of fulfillment and no reference to the underlying law must be made.[2] Whatever the scenario, this view dramatically changes, when the relationship deteriorates and one or both of the parties deliberate about damages. In practice virtually all less extensively negotiated, elaborated and documented contracts -- and thus the vast majority of them [3] -- do not provide any rules of either accounting or awarding damages.[4] The pursuit of compensation almost invariably leads the parties to turn to the applicable law. In more and more cases, such a search will lead to the U.N. Convention on Contracts for the International Sale of Goods (CISG).[5]

The success of the CISG since its creation at a diplomatic conference in Vienna in 1980 has fueled the hopes of uniform law supporters around the world that more global standardization of private law aspects would be possible. Even before the CISG came to see the light of day, various groups had been formed to measure the scope of international harmonization beyond the realm of sales transactions by focusing on nothing less than the general rules applied to all business transactions, i.e., the law of international commercial contracts. Albeit not anticipated, the political changes in Central and Eastern Europe and the former Soviet Union at the verge of the last decade of the last century provided additional stamina for the hard-working groups [6] and made a possible formulation of such general contract law that much more likely -- especially now that the world was to seemingly unite behind the principles of democracy, market forces and capitalism.[7] The 1990's therefore saw the presentation of the results of two such projects: the UNIDROIT Principles of International Commercial Contracts [8] (UPICC [9]) and the Principles of European Contract Law [10] (PECL[11]). The UPICC were released by the Institute for the Unification of Private Law (UNIDROIT)[12] in 1993,[13] were received with considerable laudatio and an unusually high level of promotion.[14] Their first version of 1994 still stands ten years later, due to be updated by an extended version in 2004.[16] The European-focused PECL were released in 1994,[16] thus losing the first race against their global counterpart.[17] However, the PECL were already updated in 1999, now covering more ground than their rival UPICC.[18] Most recently, they have been called on by the European institutions [19] as the centerpiece of a possible European-wide unification of contract law.[20]

Should the CISG apply to a contract, a search for a claim for damages brings to light its Art. 74 and a few further provisions on damages. The result of a first scan, however, can hardly be satisfying, as more questions seem to be raised than answered. Unfamiliar and broad terminology is found in a surprisingly brief description of the legal mechanisms. By comparison, the provisions of the PECL [21] and UPICC [22] both display a higher degree of regulation on the matter of damages. As the latter two instruments deal with contractual agreements in general, not just contracts for the sale of goods, and since it is said that they have often been inspired by the CISG, it has been asserted that the UPICC and PECL could help to interpret certain provisions of the Sales Convention.[23] This may also hold true for the provisions on damages, in particular its central provision contained in Art. 74 CISG. The following remarks will attempt to shed further light on this.

In line with the interpretive canon required by Art. 7(1) and (2) CISG, we will first examine matters that are expressly settled in the Convention (infra at 2). Then we will deal with those matters that are governed by the Convention, but are not expressly settled in it (infra at 3). Finally, we will provide an outlook at those matters that are not governed by the CISG, but may call for an application of the PECL or UPICC (infra at 4).

2. Matters governed by CISG Art. 74 and expressly settled in it

A number of matters that are governed by Art. 74 and expressly settled in the Convention can be reaffirmed by turning to the UPICC and PECL as persuasive authority:

(a) Breach of contract: right to damages

While Art. 74 CISG does not define the term "breach of contract", it can be interpreted as any non-performance of a contractual obligation as reflected in Art. 9:501(1) PECL and Art. 7.4.1 UPICC, each providing that damages can be claimed for by the other party's "non-performance". Also, neither PECL nor UPICC demand that the aggrieved party is only entitled to damages if the non-performing party was at fault.

(b) Measure of damages: full compensation

The general principle of full compensation, which is generally held to be an underlying principle of the CISG,[24] is expressly laid down and defined in Art. 9:502 PECL and Art. 7.4.2(1) UPICC. Hence, both the latter instruments follow the same principle which will be useful when addressing some issues not expressly settled in the CISG.

(c) Foreseeability of loss

A foreseeability test as contained in Art. 74 CISG is also applied in both Art. 9:503 PECL and Art. 7.4.4 UPICC. Like Art. 74 CISG, both other instruments do provide for a subjective and objective test of foreseeability.[25] Art. 9:503 PECL and Art. 7.4.4 UPICC require, however, that the loss suffered is a "likely result" of the non-performance. The CISG seems to apply a wider standard by providing that the loss must have been foreseen as a "possible consequence" of the breach.[26] There is a distinct difference in the wording resulting in a different standard to be applied by the CISG, on the one hand, and the UPICC and PECL, on the other. Hence, the UPICC and the PECL cannot serve as a persuasive authority to clarify a real question concerning a matter which, despite being expressly settled in the Convention, arguably remains ambiguous.[27]

3. Matters governed by the Convention, but not expressly settled in it

Turning to other matters which are governed by the Convention, but are not expressly settled in it, one could find a number of ways in which both PECL and UPICC might aid in the interpretation of CISG Art. 74.

(a) Offsetting losses with gains

The Convention does not expressly stipulate whether the amount of damages should be reduced by any advantages which the breach brings for the promisee.[28] However, by applying the principle of full compensation, which is a general principle underlying the Convention, this question is generally answered in the affirmative. Whereas the UPICC address this issue in Art. 7.4.2(1), second sentence in the same manner, the PECL do not provide for an express rule on the issue. However, the Official Commentary on Art. 9:502 PECL highlights the same principles by stating that "[t]he aggrieved party must bring into account in reduction of damages any compensating gains which offset its loss".[29] Hence the mechanics of both PECL and UPICC can be used as persuasive authority in confirming the solution predominantly favored under the regime of the CISG.

(b) Loss partly attributable to aggrieved party

Another matter not expressly settled in the CISG is that of joint responsibility for losses. Most legal scholars agree that it falls into the scope of the Convention.[30] The correct legal approach is to turn to the underlying principles of the CISG.[31] The amount of damages is thus to be apportioned between the parties in accordance with the degree of causation by the respective parties. This result is also found expressly in both PECL (Art. 9:504) and UPICC (Art. 7.4.7). Both regimes require an apportionment of damages that reflects the parties' contribution to causation. PECL and UPICC are therefore again persuasive authority for resolving this issue.

(c) Proof of non-pecuniary loss

Courts and arbitral tribunals face immense difficulties with claims for non-pecuniary losses. Especially the proof of harm and the extent of it seem to cause problems for judges and arbitrators, in particular when loss of reputation or good will is at stake and the economic disadvantages are not quantifiable.[32] The different approaches taken by legal scholars do not really clear up the problem, but rather contribute to more confusion.[33]

To deny such claims altogether seems to be the wrong approach here. Both PECL (Art. 9:501(2)(a)) and UPICC (Art. 7.4.2(2)) acknowledge the recoverability of such losses, including loss of good will and reputation. The same should apply cases governed by the CISG, especially since the principle of full compensation is underlying the Convention.[34]

As far as the proof of the existence and the extent of the harm is concerned, the foreseeability test contained in Art. 74 CISG could be made more compatible when supplemented with the rules of Art. 7.4.3 UPICC. According to that provision, compensation for harm is only to be granted for such harm that is established with a reasonable degree of certainty. The PECL do not explicitly address the question of proof for harm; Art. 9:501(2) PECL only specifies the foreseeability test for future loss. The test contained in Art. 7.4.3(1) UPICC, however, applies to both the existence and the extent of the harm. It is thus also helpful in cases where the harm is difficult to quantify, e.g., when non-material harm is at stake. Where the amount of damages cannot be established with a sufficient degree of certainty, the assessment is at the discretion of the court (or arbitral tribunal), pursuant to Art. 7.4.3(3) UPICC. The application of Art. 7.4.3 UPICC would thus allow for compensation of commercial damages even in cases where the degree of damages is difficult to quantify and the applicable procedural law does not provide for an abstract sum to be granted.[35] As a consequence, however, domestic procedural rules on proof and certainty of loss would find no application -- a result that is in line with the position taken by most legal scholars. This result is justified if one does not qualify questions of certainty of loss and other similar questions as procedural, but as substantive matters, which are to be settled by substantive rather than procedural law.[36] The application of the UPICC then helps to further the ultimate goal of fostering uniformity in the application of the CISG.

(d) Currency of damages

Art. 74 CISG does not provide for the currency in which the damages are to be paid. The predominant view is that damages are payable in the currency in which the loss was suffered or in which a particular profit would have been made.[37] Art. 9:510 PECL points to the same direction as it provides that damages are to be measured by the currency which most appropriately reflects the aggrieved party's loss. A similar, yet more specific solution is offered by Art. 7.4.12 UPICC which provides that damages are to be assessed either in the currency in which the monetary obligation was expressed or in which the harm was suffered, whichever is more appropriate. This suggests that under the Convention damages should generally be measured in the currency which most appropriately reflects the aggrieved party's loss. This may in single cases be the currency in which the monetary obligation was expressed.

(e) Loss of profit

The CISG does not provide for specific rules as to the degree of probability to be applied when assessing whether a certain profit would have been made and what the amount of that profit would be.[38] As a consequence thereof courts and arbitral tribunals take recourse to the general law of evidence of the lex fori [39] or reject damages for future loss, including the loss of a chance altogether. Here similar problems are faced as in the case of non-pecuniary losses and losses of good will. Again, the approaches taken in both PECL and UPICC suggest that such recourse to domestic law is not necessary. Art. 9:501(2)(b) PECL provides that recoverable loss comprises future loss that is reasonably likely to occur. This means that the judge or arbitrator would have to evaluate both the likelihood that the future loss will occur and its likely amount. Such future loss may also take the form of the loss of a chance.[40] The UPICC apply a similar test by providing in their Art. 7.4.3(1) that was mentioned earlier in the context of proof of existence and extent of harm that had already accrued. The provision applies the same rule to future harm by demanding that it is recoverable only when established with a reasonable degree of certainty. If there is no sufficient degree of certainty, the assessment is at the discretion of the court or tribunal, Art. 7.4.3(3). Moreover, compensation may be due for the loss of a chance in proportion to the probability of its occurrence, Art. 7.4.3(2). As has been shown before, when asked to assess the existence and the extent of loss, including future loss, the user of the CISG is called upon to apply either the UPICC or the PECL to avoid recourse to domestic law for promoting uniformity in the application of the CISG.

(f) Incidental losses

It is widely assumed that incidental losses [41] are only recoverable if they prove to be reasonable.[42] Such restriction, however, is not to be found in the wording of Art. 74 CISG. It is submitted that the artificial bar imposed by the reasonableness test serves no purpose and should be abandoned. This position is supported by looking at the PECL and UPICC counterpart regimes, both of which do not apply a reasonableness test. It is a false concern that without the reasonableness requirement doors would open for the compensation of losses that would otherwise not be recoverable. The foreseeability test, which is entrenched in the CISG, enables the user to achieve the same results as with such a reasonableness test. The inclusion of the reasonableness test stems primarily from the writings of American scholars. However, in American law incidental losses need to pass only the test of reasonableness, but are not subject to a foreseeability test.[43] The requirement of reasonableness makes the foreseeability test redundant as reasonable expenses are always foreseeable.[44] The same, however, can also be said to be true of the reverse situation. Unreasonable expenses must generally be considered as not foreseeable according to Art. 74 CISG. Such analysis of the CISG receives persuasive backing from the PECL and the UPICC. Both instruments only provide for the foreseeability test in Art. 9:503 PECL and Art. 7.4.4 UPICC. Both sets of Principles get by without the additional requirement of a reasonableness test. The same arguably could be held for the CISG.

4. Matters not governed by the Convention

Finally, we turn to matters that are not governed by the CISG, but require to be dealt with in the complete assessment of damage claims. Turning to PECL and UPICC is possible in these cases, when the general conflicts of laws provision allows for the application of "rules of law" to the contract. Conversely, if the application of "law" is required, the courts and tribunals may be barred from applying either set of Principles.

(a) Civil liability for personal injury

The compensation covered by Art. 74 CISG comprises both expectation interest and indemnity interest.[45] However, Art. 5 CISG states that the CISG does not deal with any liability issues for death or personal injury caused by the goods. Damages claims in these circumstances are beyond the scope of the CISG, since the Convention was not intended to intervene with the rules and regulations that signatory states had in place for such situations. In particular, the European Union member States had incorporated an EU directive on defective goods into national law. The PECL and UPICC also do not seem to deal with this matter. Although they govern certain damage claims that some jurisdictions may qualify as tort claims, such as damages for negotiations contrary to good faith, for incorrect information or for fraud and threat during the formation of the contract, neither framework deals with damages for death or personal injury caused by the goods. Neither the wording of the provisions nor the commentaries by either group of authors leads to the assumption that such damage claims should be addressed through the general damages provisions. On the contrary, while the UPICC authors do not even discuss this question in their commentary, the PECL authors state that "[t]he Principles may be applied to claims which arise out of the contract, even if under some national systems the claim might be qualified as delictual rather than contractual".[46] They list the issues which they deem to cover, but that list does not include the situation of a damage claim for personal injury or death from defective goods.[47] Hence, the arbitral tribunal or court will not find grounds in the PECL or UPICC to decide such a claim, but will have to rely on applicable national laws.

(b) Reliance interest

The intensely debated matter of reliance interest [48] may fall outside the scope of the Convention and may thus be addressed by the PECL and UPICC. The two private codifications themselves suggest that damages to compensate for the reliance interest must be seen as different and separate from the damages awarded with respect to a contractual non-performance. Both Art. 4:117 PECL and Art. 3.18 UPICC explicitly deal with damage claims to put the aggrieved party in the same position in which it would have been, if it had not concluded the contract. The authors of both works emphasize the need to differentiate between this claim and those concerning non-performance [49] that are dealt with in very different parts of the codifications. Hence, the PECL and UPICC may -- firstly -- serve as persuasive authority to suggest that a damage claim based on the reliance interest is not covered by the CISG. Following that, both sets of rules will -- secondly -- apply with their respective provisions to cover those claims.

(c) Punitive damages and penalty clauses

It is generally assumed that punitive damages and penalty clauses can be agreed upon by the parties, whereas the admissibility and validity of such clauses is not governed by the CISG.[50] In contrast, both PECL, in Art. 9:509, and the UPICC, in Art. 7.4.13, deal with this matter and both frameworks are coherent as to the way they deal with it. Where the contract provides for a specified sum of damages for non-performance, this sum is to be awarded irrespective of the actual sum that the aggrieved party has suffered. Despite any agreement to the contrary the specified sum may be reduced to a reasonable amount where it is grossly excessive in relation to the loss or harm resulting from the non-performance and the other circumstances. As both the PECL and the UPICC provide a complete set of regulations on the issue of penalty clauses and liquidated damages, both may be applied by the courts and tribunals rather than turning to any domestic law when dealing with agreed arrangements for non-performance.[51]

5. Conclusions

The furtherance of international trade law is no easy business. Despite intense debate and increasing practical use of the CISG, many questions remain unresolved. In fact, it is most likely that more debate and more practice will increase the number of questions in doubt as it will shed light on previously unconsidered situations requiring judgment. The PECL and the UPICC are both very able legal instruments that can be used to fill or to assist in filling some of the gaps of the Convention. With respect to damage claims under the Convention there are several questions, towards the resolution of which the Principles could provide practical assistance.


FOOTNOTES

* Adapted version of a research paper on the use of the UNIDROIT Principles on International Commercial Contracts (UPICC) and the Principles of European Contract Law (PECL) to help interpret regulations of the Convention on Contracts for the International Sale of Goods (CISG): "Claiming Damages in Export Trade".

** Dr. Friedrich Blase is Rechtsanwalt and Of Counsel at MPK -- Michaelis Pfeifer König Rechtsanwälte, Frankfurt, Germany; Philipp Höttler, LL.M. (Queensland) is Ph.D. candidate at the University of Cologne, Germany.

1. Cf. for these fundamental principles the regulations in the sets of rules discussed here: CISG Art. 6; UPICC Arts. 1.1, 1.4, 1.5; PECL Arts. 1.102, 1.103.

2. See the reference by the arbitral tribunal in ICC Award No. 7375 of 5 June 1996, reprinted in Mealeys Publications, Document # 05-961223-101, at 85: "In many international disputes, the question of the law which is applicable to a contract is of rather peripheral importance only, as the dispute will be decided on the basis of the relevant contract and, as far as necessary an interpretation thereof, such that in most cases it will not be necessary to resort to an underlying applicable law for obtaining 'legal guidance'"; see also Berger, "The Relationship Between the UNIDROIT Principles of International Commercial Contracts and the New Lex Mercatoria", 5 Uniform Law Review (2000), at 153, 164: "The contract becomes the 'substitute law' for the parties by virtue of its self-sufficient character"; Lundmark, Die detaillierte Natur anglo-amerikanischer Kaufverträge, in Festschrift Otto Sandrock, at 623, 625; cf. also Merkt, Grundsatz- und Praxisprobleme der Angloamerikanisierungstendenzen im Recht des Unternehmenskauf, in Festschrift Otto Sandrock, at 657, 659.

3. For an interesting observation on the detailed nature of investment contracts, see Berger, "Renegotiation and Adaptation of International Investment Contracts: The Role of Contract Drafters and Arbitrators", 36 Vanderbilt Journal of Transnational Law (2003), at 153 et seq.

4. Two issues are more frequently dealt with in respect of damages: 1) the inclusion of liquidated penalty clauses and similar concepts of penalties and abstractly calculated damages, on this see also Berger, Vertragsstrafen und Schadenspauschalierungen im Internationalen Wirtschaftsvertragsrecht, Recht der internationalen Wirtschaft (1999), at 401 et seq.; 2) clauses on the method of determining the amount of damages (often through arbitral tribunals or expert reports).

5. For thoughts on a uniform abbreviation see Flessner/Kadner, CISG? -- Zur Suche nach einer Abkürzung für das Wiener Übereinkommen über Verträge über den internationalen Warenkauf vom 11. April 1980, 3 ZEuP (1995), at 347 et seq.

6. However, it should not be forgotten at this point that the political changes also brought a similar project started by representatives of socialist and communist countries to a premature end: the Project of the Former Council for Mutual Economic Assistance for a General Law on International Commercial Contracts, cf. Berger, Creeping Codification of the Lex Mercatoria, at 123 et seq.

7. The fall of communism in Europe and the Soviet Union also meant that a number of legal systems and laws, namely those of the socialist/communist nature, would no longer be significantly taken into consideration. The Chinese, as the only remaining considerable economic power with communist rule, has recently changed its contract law, drawing substantially on the CISG and further international sources", for a brief overview see Will (ed.), CISG and China -- An Intercontinental Exchange, passim; see also for a review of this book Blase, "CISG and China -- An Intercontinental Exchange", 4 Vindobona Journal (2000), at 95 et seq.

8. UNIDROIT (ed.), Principles of International Commercial Contracts, Rome 1994. For various language versions see <http://www.unidroit.org>.

9. The abbreviation for the Principles is not universally applied. However, it conforms to the typical method of abbreviation for many laws and Conventions and is based on the English version of the Principles' name.

10. Lando/Beale (eds.), Principles of European Contract Law -- Parts I and II -- Combined and Revised - Prepared by The Commission on European Contract Law (2000). Other language versions are now available.

11. Supra note 9.

12. For more information on the work of the Institute see <http://www.unidroit.org>.

13. For an extensive description of the UPICC see Bonell, An International Restatement of Contract Law - The UNIDROIT Principles of International Commercial Contracts (2nd ed. 1997).

14. For some observations on support for and activity around the UPICC, see Blase , "Leaving the Shadow for the Test of Practice -- On the Future of the Principles of European Contract Law", 3 Vindobona Journal (1999), at 3 et seq.

15. UNIDROIT Principles 2004 contains 5 new chapters (Authority of Agents; Third Party Rights; Set-off; Assignment of Rights, Transfer of Obligations and Assignment of Contracts; Limitation Periods) as well as an expanded Preamble and new provisions on Inconsistent Behavior and on Release by Agreement. Moreover wherever appropriate the 1994 edition of the Principles was adapted to meet the needs of electronic contracting.

16. For an extensive description of the PECL see Blase, Die Grundregeln des Europäischen Vertragsrechts als Recht grenzüberschreitender Verträge (2000).

17. Experts involved in the drafting of both UPICC and PECL stress the common elements of both sets of rules and the mutual benefit that the drafters received from the work of the other group. See particularly the publications by the two respective chairmen, Ole Lando and Michael Joachim Bonell. Cf. Bonell, "The UNIDROIT Principles of International Commercial Contracts and the Principles of European Contract Law: Similar Rules for the Same Purposes?", 1 Uniform Law Review (1996), at 229, 233. For a detailed comparison of the two sets of rules see Bonell, An International Restatement of Contract Law -- The UNIDROIT Principles of International Commercial Contracts, at 88 et seq.; Blase, Die Grundregeln des Europäischen Vertragsrechts (2000), at 125. On the existence of such a race see Blase, "Leaving the Shadow for the Test of Practice", 3 Vindobona Journal (1999), at 3 et seq.

18. The PECL also contain rules on direct as well as indirect agency in the formation of contracts, whereas the UPICC have not addressed this issue.

19. See the note on European contract law by the European Commission, KOM (2000), at 398 (final), passim, the working paper on the approximation of civil and trade law of the member states by the committee on law and internal markets of the European Parliament, DT\424755EN.doc, passim.

20. For substantive work on this, see the results and ambitions of the Study Group on a European Civil Code (SGEEC) at <http://www.sgeec.net>, which in many ways has inherited the role of the Commission on European Contract Law, drafters of the PECL.

21. The PECL deals with Damages and Interest in Arts. 9:501 -- 9:510.

22. The UPICC deals with Damages and Interest in Arts. 7.4.1 -- 7.4.13.

23. For detailed research on this interaction see Burkart, Interpretatives Zusammenwirken von CISG und UNIDROIT Principles (2000), passim.

24. See relevant case law:

    -     Austria 14 January 2002 Oberster Gerichtshof [Supreme Court], case presentation including English translation available at <http://cisgw3.law.pace.edu/cases/020114a3.html>;
    -     Austria 28 April 2000 Oberster Gerichtshof [Supreme Court], case presentation including English translation available at <http://cisgw3.law.pace.edu/cases/000428a3.html>;
    -     Germany 26 November 1999 Oberlandesgericht [Appellate Court] Hamburg, case presentation including English translation available at <http://cisgw3.law.pace.edu/cases/991126g1.html>;
    -     Austria 15 June 1994 Vienna Arbitration proceeding SCH-4318, case presentation including English translation available at <http://cisgw3.law.pace.edu/cases/940615a4.html>; and
    -     Austria 15 June 1994 Vienna Arbitration proceeding SCH-4366, case presentation including English translation available at <http://cisgw3.law.pace.edu/cases/940615a3.html>;

See also Stoll/Gruber, in Schlechtriem/Schwenzer (ed.), UN-Kaufrecht (2004), Art. 74 para 2; Knapp, in Bianca/Bonell (ed.), The 1980 Vienna Sales Convention (1987), Art. 74, note 3.2; Enderlein/Maskow (ed.), International Sales Law (1992), Art. 74, note 4, also available online at <http://cisgw3.law.pace.edu/cisg/biblio/enderlein-art74.html>;

25. See, for instance, Austria 14 January 2002 Oberster Gerichtshof [Supreme Court], case presentation including English translation available at <http://cisgw3.law.pace.edu/cases/020114a3.html>, see relevant excerpt:

"Generally an objective standard is applied for foreseeability here. The obligor must reckon with the consequences that a reasonable person in his situation (Art. 8(2) CISG) would have foreseen considering the particular circumstances of the case. Whether he actually did foresee this is as insignificant as whether there was fault [...]. Yet, subjective risk evaluation cannot be completely ignored: if the obligor knows that a breach of contract would produce unusual or unusually high losses, then these consequences are imputable to him."

See also Enderlein/Maskow (ed.), International Sales Law (1992), Art. 74, note 8 and 10, also available at <http://cisgw3.law.pace.edu/cisg/biblio/enderlein-art74.html>.

26. Stoll/Gruber, in Schlechtriem (ed.), UN-Kaufrecht (2004), Art. 74, para 35; Ferrari, "Comparative Ruminations on the Foreseeability of Damages in Contract Law", 53 Louisiana Law Review (1993), at 1257, 1268; see also Faust, Die Vorhersehbarkeit des Schadens gemäß Art. 74 Satz 2 UN-Kaufrecht (CISG)(1996), at 50 et seq. and 71, 72, who proves that not only the wording but also historical considerations speak in favor of a wider interpretation.

27. The opposite view -- i.e., that the foreseeability test should be interpreted narrowly as in the case of PECL and UPICC -- is held by Prof. Sieg Eiselen; see Eiselen, "Remarks on the Manner in which the UNIDROIT Principles of International Commercial Contracts May Be Used to Interpret or Supplement Article 74 of the CISG", para h., available at <http://cisgw3.law.pace.edu/cisg/principles/uni74.html#editorial>.

For further points of view on both sides of this issue, see:

    -     Jacob S. Ziegel, Report to the Uniform Law Conference of Canada on Convention on Contracts for the International Sale of Goods (July 1981), available at <http://cisgw3.law.pace.edu/cisg/text/ziegel74.html>: "The test of foreseeability in art. 74 is substantially broader than the test in Hadley v. Baxendale, as refined by the House of Lords in The Heron II (1969 1 A.C. 350. In the latter case Lord Reid expressly rejected the test of 'possible' damages adopted in art 74. Its retention in art. 74 could lead to the admissibility of damage claims that have hither-to been rejected and enlarge the seller's already very substantial exposure to liability."
    -     E. Allan Farnsworth, Damages and Specific Relief, 27 American Journal of Comparative Law (1979) 247-253, available at <http://cisgw3.law.pace.edu/cisg/biblio/farns.html>: "The requirement of foreseeability, known throughout the common law world as 'the rule of Hadley v. Baxendale, appears as the second sentence of art. [74] ... Any such formula is inevitably imprecise. It comes close to blending the [U.S.] Restatement of Contracts § 330, which allows recovery for 'injuries that the defendant had reason to foresee as a possible result of his breach when the contract was made and UCC 2-715(2)(a), which allows the buyer recovery for 'any loss resulting from general or particular requirements and needs of which the seller at the time of contracting had reason to know." Although the use in art.[74] of "possible consequences" may seem at first to cast a wider net than the Restatements "probable result", the preceding clause ('in the light of the facts ...') cuts this back at least to the scope of the Code language."

28. Cf. Witz, in Witz/Salger/Lorenz (ed.), International Einheitliches Kaufrecht: Praktiker-Kommentar und Vertragsgestaltung zum CISG (2000), Art. 74, para 14; Magnus, in Staudinger, Wiener UN-Kaufrecht (CISG)(1999), Art. 74, para 22; Neumayer/Ming, Convention de Vienne sur les contrats de vente internationales de merchandises (1993), Art. 74, note 2.

29. Cf. Lando/Beale (ed.), Principles of European Contract Law -- Parts I and II, at 439. Official Comment on Art. 9:502 PECL, Comment C, also available online at <http://cisgw3.law.pace.edu/cisg/text/peclcomp74.html#cnpc>, reads:

"The aggrieved party must bring into account in reduction of damages any compensating gains which offset its loss; only the balance, the net loss, is recoverable. Similarly, in computing gains of which the aggrieved party has been deprived, the cost it would have incurred in making those gains is a compensating saving which must be deducted to produce a net gain [...]."

30. See Tallon, in Bianca/Bonell (ed.), The 1980 Vienna Sales Convention (1987), Art. 80, note 2.5; Herber/Czerwenka, Internationales Kaufrecht (1991), Art. 80, paras 7 and 8; Stoll/Gruber, in Schlechtriem/Schwenzer (ed.), UN-Kaufrecht (2004), Art. 80, para 7; Enderlein/Maskow (ed.), International Sales Law (1992), Art. 80, note 6, available at available at <http://cisgw3.law.pace.edu/cisg/biblio/enderlein-art74.html>; Neumayer/Ming, Convention de Vienne sur les contrats de vente internationales de merchandises (1993), Art. 80, note 3; Magnus, in Staudinger, Wiener UN-Kaufrecht (CISG)(1999), Art. 80, para 14, 15; Magnus, in Honsell (ed.), UN-Kaufrecht (1997), Art. 80, para 12; Rathjen, Haftungsentlastung des Verkäufers und Käufers nach Art. 79, 80 CISG, Recht der Internationalen Wirtschat (1999), at 561, 565; cf. Lüderitz/Dettmeier, in Soergel, CISG (2000), Art. 80, para 4, Art. 77, para 3.

31. Stoll, in Schlechtriem (ed.), UN-Kaufrecht (2000), Art. 80, para 6; for an overview of the different approaches taken to tackle this problem see Stoll/Gruber, in Schlechtriem/Schwenzer (ed.), UN-Kaufrecht (2004), Art. 80, para 7.

32. Courts have rejected claims for loss of good will as no actual loss was proven. See, for instance:

    -     Germany 9 May 2000 Landgericht [District Court] Darmstadt, case presentation including English translation available at <http://cisgw3.law.pace.edu/cases/000509g1.html>

A similar approach is to be found in the following cases:

    -     France 21 October 1999 Cour d'appel [Appellate Court] Grenoble(Calzados Magnanni v. Shoes General International), case presentation including English translation available at <http://cisgw3.law.pace.edu/cases/991021f1.html>; and
    -     Switzerland 10 February 1999 Handelsgericht [Commercial Court] Zürich, case presentation including English translation available at <http://cisgw3.law.pace.edu/cases/990210s1.html>.

33. See, for instance, the different approaches of: Faust, Die Vorhersehbarkeit des Schadens gemäß Art. 74 Satz 2 UN-Kaufrecht (CISG) (1996), at 19 et seq.; Schönle, in Honsell (ed.), UN-Kaufrecht (1997), Art. 74 para 7; Karollus, UN-Kaufrecht, Eine systematische Darstellung für Studium und Praxis (1991), at 218; Honsell, Die Vertragsverletzung des Verkäufers nach dem Wiener Kaufrecht, 88 Schweizerische Juristen-Zeitung (1992), at 361, 364.

34. Cf. Eiselen, "Remarks on the Manner in which the UNIDROIT Principles of International Commercial Contracts May Be Used to Interpret or Supplement Article 74 of the CISG", paras d. and e., available online at <http://cisgw3.law.pace.edu/cisg/principles/uni74.html#editorial>.

35. Such use of the UPICC has also been proposed by Eiselen, op. cit., note k.; Garro, "The Gap-Filling Role of the UNIDROIT Principles in International Sales Law: Some Comments on the Interplay between the Principles and the CISG", Tulane Law Review (1995), p. 1188.

36. Saidov, "Methods of Limiting Damages under the Vienna Convention on Contracts for the International Sale of Goods", available at <http://cisgw3.law.pace.edu/cisg/biblio/saidov.html>.

37. See, for instance, Remien, Die Währung von Schaden und Schadensersatz, 53 Rabels Zeitschrift (1989), at 245, 260 et seq.; Stoll/Gruber, in Schlechtriem/Schwenzer (ed.), UN-Kaufrecht (2004), Art. 74, para 30; Magnus, in Staudinger, Wiener UN-Kaufrecht (CISG) (1999), Art. 74 para 56.

38. Stoll, in Schlechtriem (ed.) UN-Kaufrecht (2000), Art. 74, para 24.

39. See, for instance, United States 6 December 1995 Federal Appellate Court [2nd Circuit] (Delchi Carrier v. Rotorex), case presentation available at <http://cisgw3.law.pace.edu/cases/951206u1.html>, affirming United States 9 September 1994 Federal District Court [New York], case presentation available at <http://cisgw3.law.pace.edu/cases/940909u1.html>.

40.Cf. Land/Beale, Principles of European Contract Law, Parts I and II, at 436.

41. These are qualified as expenditures suffered by the aggrieved party which have occurred as a consequence of the breach of contract.

42. See relevant case law:

    -     Germany 25 June 1997 Bundesgerichtshof [Supreme Court], case presentation including English translation available at <http://cisgw3.law.pace.edu/cases/970625g2.html>;
    -     Germany 8 January 1997 Oberlandesgericht [Appellate Court] Köln, case presentation including English translation available at <http://cisgw3.law.pace.edu/cases/970108g1.html>;
    -     Russia 9 September 1994 Arbitration proceeding, Award No. 375/93, CISG online case No. 450 cited in by Peter Winship, in Ferrari/Flechtner/Brand (ed.), The Draft UNCITRAL Digest and Beyond (2004), at 784 (Fn. 29); case presentation also available at <http://cisgw3.law.pace.edu/cases/940909r1.html>. See case Abstract available on Unilex database at <http://www.unilex.info/case.cfm?pid=1&do=case&id=249&step=Abstract>: The seller performed the contract in accordance with its terms and conditions and delivered the goods to the buyer. The buyer did not present any claims with regard to the goods nor did it pay the price of these goods. The seller requested the buyer to pay for the goods as well as compensation for the loss sustained as a result of the buyer's breach of contract. This loss included the cost of storage of the goods at the port of loading on account of the delay of the ship which was to be provided by the buyer. The seller presented to the tribunal the bills it had paid for storage. The amount indicated on these bills corresponded to the charges usually made for this kind of operation. The Tribunal decided in favor of the seller and ordered the buyer to pay the price of the goods as well as damages as provided in Art. 74 CISG. The Tribunal also awarded, on the basis of Art. 78 CISG, interest on all the sums the seller owed at the rate provided for by the law of the seller's country.

For concrete examples of such expenditures, see Winship, at 784; see also Magnus, in Staudinger, Wiener UN-Kaufrecht (CISG) (1999), Art. 74, para 53; Stoll/Gruber, in Schlechtriem/Schwenzer (ed.), UN-Kaufrecht (2000), Art. 74, para 18.

See also Austria 14 January 2002 Oberster Gerichtshof [Supreme Court], case presentation including English translation available at <http://cisgw3.law.pace.edu/cases/020114a3.html>. See excerpt from case Abstract available on Unilex database at <http://www.unilex.info/case.cfm?pid=1&do=case&id=858&step=Abstract>:

As to the amount of damages claimed by the buyer, the Court held that, according to Art. 74 CISG, the aggrieved party is entitled to full compensation of the losses suffered as a result of the other party´s non-performance, including loss of profit, provided that the losses were foreseeable at the time of the conclusion of the contract. However, in the case at hand the seller´s standard terms expressly excluded the compensability of the so-called consequential damages. As a consequence the buyer was entitled to recover the expenses it had incurred in repairing the goods, but not the other losses it had suffered in its relationship with its costumer as a consequence of the seller´s non-performance.

For the role of reasonableness as a general principle of the Convention, see Kritzer, Editorial remarks, which include further citations and references, at <http://cisgw3.law.pace.edu/cisg/text/reason.html>: "Reasonableness is specifically mentioned in thirty-seven provisions of the CISG and clearly alluded to elsewhere in the Uniform Sales Law. Reasonableness is a general principle of the CISG. [...] Although not specifically defined in the CISG, reasonableness is so defined in the Principles of European Contract Law. Moreover, the PECL definition of reasonableness [Art. 1:302] also fits the manner in which this concept is used in the CISG. This definition can help researchers apply reasonableness to the CISG provisions in which it is specifically mentioned and as a general principle of the CISG. [...] regarding reasonableness as a fundamental principle of the CISG and reading reasonableness into every article of the CISG, whether specifically mentioned in the article or not... is required by virtue of the good-faith and uniform-law mandate recited in Article 7(1) of the CISG."

43. Cf. Anderson, "Incidental and Consequential Damages", 7 Journal of Law & Commerce (1987), at 327, 338 set seq. and 343; Faust, Die Vorhersehbarkeit des Schadens gemäß Art. 74 Satz 2 UN-Kaufrecht (CISG) (1996) at 100.

44. Anderson, op. cit.

45. See Magnus, in Staudinger, Wiener UN-Kaufrecht (CISG) (1999), Art. 74 para 20; Lüderitz/Dettmeier, in Soergel, CISG (2000), Art. 74, para 8; Stoll/Gruber, in Schlechtriem/Schwenzer (ed.), UN-Kaufrecht (2004), Art. 74 para 2.

46. Lando/Beale (ed.), Principles of European Contract Law, Parts I and II, at 97.

47. Lando/Beale (ed.), Principles of European Contract Law, Parts I and II, at xxv.

48. Reliance interest does generally call for placing the party in the position in which it would have been if it had not relied on the due performance of the contract. But not only the recoverability of reliance interest under the CISG is a fairly unresolved issue, but it also seems to be unclear which losses fall under it and what preconditions need to be met for such claims to be successful; see e.g., Stoll, in Schlechtriem (ed.), UN-Kaufrecht (2000), Art. 74, para 3.

49. UNIDROIT (ed.), Principles of International Commercial Contracts, at 87. Lando/Beale (ed.), Principles of European Contract Law, Parts I and II, at 281.

50. See relevant case law:

    -     ICC Arbitration Case No. 7197 of 1992, case presentation available at <http://cisgw3.law.pace.edu/cases/927197i1.html>; see excerpt from case Abstract available on Unilex database at <http://www.unilex.info/case.cfm?pid=1&do=case&id=37&step=Abstract>: In the court's opinion, as CISG does not contain any provision concerning penalty clauses, Austrian law had to be applied pursuant to Art. 7(2) CISG. Applying Austrian law, the court held that the seller had the right to recover all damages suffered notwithstanding the limit fixed by the penalty clause.
    -     Germany 8 February 1995 Oberlandesgericht [Appellate Court] München, case presentation including English translation available at <http://cisgw3.law.pace.edu/cases/950208g1.html>.

51. The opposing view is held by Prof. Eiselen, see Eiselen, "Remarks on the Manner in which the UNIDROIT Principles of International Commercial Contracts May Be Used to Interpret or Supplement Article 74 of the CISG", para o., available online at <http://cisgw3.law.pace.edu/cisg/principles/uni74.html#editorial>.


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