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2012 UNCITRAL Digest of case law on the United Nations Convention on the International Sale of Goods

Digest of Article 81 case law [reproduced with permission of UNCITRAL] [*]

[Text of article
Introduction
Consequence of avoidance under article 81(1):
          release from obligations; ineffective avoidance
Preservation of right to damages and of provisions governing
          the settlement of disputes and the consequences of avoidance
Restitution under Article 81(2)
Place of restitution; jurisdiction over actions for restitution; risk of
          loss for goods being returned; currency for restitution of payments
Requirement that mutual restitution be concurrent
Interaction between right to restitution under
          article 81(2) and rights under national law]

Article 81

1. Avoidance of the contract releases both parties from their obligations under it, subject to any damages which may be due. Avoidance does not affect any provision of the contract for the settlement of disputes or any other provision of the contract governing the rights and obligations of the parties consequent upon the avoidance of the contract.

2. A party who has performed the contract either wholly or in part may claim restitution from the other party of whatever the first party supplied or paid under the contract. If both parties are bound to make restitution, they must do so concurrently.

INTRODUCTION

1. Article 81 governs the general consequences that follow if one of the parties avoids the contract or some part thereof.

2. Article 81 and the other provisions in Chapter V, Section V, dealing with the "Effects of avoidance" have been described as creating a "framework for reversal of the contract" that, at its core, contains a "risk distribution mechanism" which overrides other risk allocation provisions of the CISG when the contract is avoided.[1] It has also been stated that, under article 81, an avoided contract "is not entirely annulled by the avoidance, but rather it is ‘changed' into a winding-up relationship."[2] Several decisions have held that article 81 does not apply to "consensual avoidance" — i.e. termination of the contract that occurs where the parties have, by mutual consent, agreed to cancel the contract and to release each other from contractual obligations — but rather is properly limited to cases where one party "unilaterally" avoids the contract because of a breach by the other party.[3] In such cases of "consensual avoidance", it has been asserted, the rights and obligations of the parties are governed by the parties' termination agreement.[4] Thus, where the parties agreed to cancel their contract and permit the seller to deduct its out-of-pocket expenses before refunding the buyer's advance payment, the seller was allowed to make such deductions but was denied a deduction for its lost profit because that was not part of the parties' agreement.[5] Where an issue arises that is not expressly addressed in the parties' termination agreement, however, a court has asserted that, pursuant to article 7(2), the gap should be filled not by recourse to national law but by reference to the principles of article 81 and related provisions of the CISG.[6]

Consequences of Avoidance under Article 81(1): Release from Obligations; Ineffective Avoidance

3. Several decisions have recognized that valid avoidance of the contract releases the parties from their executory obligations under the contract.[7] Thus it has been held that buyers who avoid the contract are released from their obligation to pay the price for the goods.[8] It has also been held that avoidance by the seller releases the buyer from its obligation to pay[9] and releases the seller from its obligation to deliver the goods.[10] On the other hand, failure to effectively avoid the contract means that the parties remain bound to perform their contractual obligations.[11] Courts have found a failure of effective avoidance where a party failed to follow proper procedures for avoidance (i.e., lack of proper notice)[12] and where a party lacked substantive grounds for avoiding (e.g., lack of fundamental breach).[13]

Preservation of Right to Damages and of Provisions Governing the Settlement of Disputes and the Consequences of Avoidance

4. As one decision has noted, under article 81 an avoided contract "is not entirely annulled by the avoidance,"[14] and certain contractual obligations remain viable even after avoidance. Thus, the first sentence of article 81(1) states that avoidance releases the parties from their contractual obligations "subject to any damages which may be due." Many decisions have recognized that liability for damages for breach survives avoidance, and have awarded damages to the avoiding party against the party whose breach triggered the avoidance.[15] One court commented, "[w]here ... the contract is terminated and damages for failure to perform are claimed under article 74 CISG et seq., one uniform right to damages comes into existence ... and prevails over the consequences of the termination of a contract provided for in articles 81-84 CISG."[16] The second sentence of article 81(1) provides that "[a]voidance does not affect any provision of the contract for the settlement of disputes." This has been applied to an arbitration clause contained in a written contract, and the result has been described as making the arbitration clause "severable" from the rest of the contract.[17] The same sentence of article 81(2) also provides that avoidance does not affect "any other provision of the contract governing the rights and obligations of the parties consequent upon the avoidance of the contract". This has been applied to preserve, despite avoidance of the contract, the legal efficacy of a "penalty" clause requiring payments from a seller who failed to deliver.[18] It has also been asserted that article 81(1) preserves other contractual provisions connected with the undoing of the contract, such as clauses requiring the return of delivered goods or other items received under the contract.[19]

Restitution under Article 81(2)

5. For parties that have wholly or partially performed their contractual obligations, the first sentence of article 81(2) creates a right to claim restitution from the other side of whatever the party has "supplied or paid under the contract". It has been suggested that the restitutionary obligation imposed on a buyer by article 81 is not intended to put the seller into the position he would have been in had the contract been fully performed or had not been concluded, but instead requires the restitution of the actual goods delivered, even if those goods are damaged during that return.[20] Other provisions of the Convention elaborate on the obligation to give restitution following avoidance of the contract. Under article 82 of the Convention, a buyer's inability to make restitution of delivered goods "substantially in the condition in which he received them" will, subject to important exceptions, block the buyer's right to avoid the contract (or to require the seller to deliver substitute goods).[21] Under article 84(2), a buyer who must make restitution of goods to a seller must also "account to the seller" for all benefits it derived from the goods before making such restitution.[22] Similarly, a seller who must refund the price to the buyer is obliged, under article 84(1), to pay interest on the funds until they are restored.[23] It has been held, however, that a seller was not liable in damages for losses caused when it refused to give restitution of the price to the buyer.[24] It has been almost universally recognized that avoidance of the contract is a precondition for claiming restitution under article 81(2).[25] One decision stated that a seller is obligated to repay the purchase price under article 81(2) CISG only after an avoidance of the sales contract by the buyer, and that avoidance is thus a constitutive right of the buyer which changes the contractual relationship into a restitutionary relationship.[26] Similarly, it was held that a buyer was not entitled to claim reimbursement of the purchase price from the seller where it failed to avoid the contract within the period set out in article 49(2)(b) CISG.[27] A court has held that a party who claims restitution of unused materials bears the burden of proving the existence of the alleged claim.[28]

6. In many cases where the buyer has properly avoided the contract, tribunals have awarded the aggrieved buyer restitution of the price (or the part thereof) that it paid to the seller.[29] A breaching seller is entitled to the restitution of the goods it delivered to a buyer who thereafter avoided the contract,[30] and it has been held that an avoiding buyer has a right, under article 81(2), to force the seller to take back goods it delivered.[31] A seller who properly avoided the contract has also been awarded restitution of the goods it delivered,[32] and it has been recognized that breaching buyers are entitled to restitution of the portion of the price actually paid if the seller subsequently avoids.[33] It has been held, however, that not all restitution claims arising out of a terminated sales contract are governed by the CISG. In one decision[34] the parties mutually agreed to cancel their contract and the seller gave the buyer a refund in the amount of the buyer's payment check. The buyer's check, however, was later dishonoured. When the seller sued to recover the refund, the court found that the seller's claim was not governed by article 81(2) because that provision deals only with what a party has "supplied or paid under the contract," whereas the seller was seeking reimbursement for an excess refund made after the contract was consensually terminated. The court held that the seller's claim was based on unjust enrichment principles and was governed by applicable national law. On the other hand, it has been asserted that articles 81(2) and 84(2) establish that the Convention embodies a general principle of prevention of unjust enrichment, and that this general principle pre-empts national law on this subject[35] (see article 7(2)).

Place of Restitution; Jurdisdiction over Actions for Restitution; Risk of Loss for Goods Being Returned; Currency for Restitution of Payments

7. Several decisions address the place of performance of the obligation to make restitution under article 81(2). This question has arisen either as a direct issue, or as a subsidiary matter related to a court's jurisdiction or to the question of who bears risk of loss for goods that are in the process of being returned by the buyer. Thus, in determining whether an avoiding buyer offered the breaching seller restitution of delivered goods at the proper location, a court has held that the issue of the place for restitution is not expressly settled in the CISG, nor can the CISG provision dealing with the place for seller's delivery (article 31) be applied by analogy, so that the matter must be resolved by reference to national law — in this case, the law governing the enforcement of a judgement ordering such restitution.[36] Employing somewhat similar reasoning for purposes of determining its jurisdiction under article 5(1) of the 1968 Brussels Convention on Jurisdiction, a court has held that the CISG does not expressly settle where a seller must make restitution of the price under article 81(2), that the CISG provision governing the place for buyer's payment of the price (article 57(1)) does not embody a general principle of the Convention that can be used to resolve the issue, and thus that the matter must be referred to applicable national law.[37] In contrast to the reasoning of the foregoing decisions, which led to the application of national law to the issue of the place for restitution, another decision asserted that jurisdiction under article 5(1) of the Brussels Convention over a buyer's claim for restitution of the price should be determined by reference to article 31 of the CISG, designating the place for performance of the obligation to deliver the goods.[38] Another court has found that the CISG does not expressly deal with the question of where, for purposes of determining who bore risk of loss, an avoiding buyer makes restitution of goods that are returned via third party carrier, but it resolved the issue by reference to the CISG itself without recourse to national law: it filled the "gap" pursuant to article 7(2) by identifying a general principle that the place for performing restitutionary obligations should mirror the place for performing the primary contractual obligations; it thus found that buyer made its delivery (and thus risk of loss transferred to the seller) when it handed the goods over to the carrier for return shipment, because under the contract risk had passed to buyer in the original delivery when the manufacturer handed the goods over to the carrier.[39] The court also found this result consistent with article 82, which creates very broad exceptions to an avoiding buyer's obligation to return goods in their original condition, thereby suggesting that the seller generally bears the risk that the condition of the goods will deteriorate. Finally, it has been concluded that an avoiding buyer's refund of the price was due in the same currency in which the price had been duly paid, at the exchange rate specified in the contract for payment of the price to the seller.[40]

Requirement that Mutual Restitution be Concurrent

8. The second sentence of article 81(2) specifies that, where both parties are required (under the first sentence of the provision) to make restitution (i.e. where both parties have "supplied or paid" something under an avoided contract), then mutual restitution is to be made "concurrently". An arbitration panel has ordered an avoiding buyer and the breaching seller to make simultaneous restitution of the goods and the price.[41] Consistently with the principle of mutual restitution, a court has ruled that a breaching seller was not in default of its obligation to give the avoiding buyer restitution of the price until the buyer actually offered to return the goods that seller had delivered, and it ordered the parties to make concurrent restitution.[42] Another decision stated that an avoiding seller need not make restitution of the buyer's payments until delivered goods were returned.[43]

Interaction between Right to Restitution under Article 81(2) and Rights under National Law

9. An avoiding seller's right to restitution of delivered goods under article 81(2) can come into conflict with the rights of third parties (e.g. the buyer's other creditors) in the goods. Such conflicts are particularly acute where the buyer has become insolvent, so that recovery of the goods themselves is more attractive than a monetary remedy (such as a right to collect the price or damages) against the buyer. Several decisions have dealt with this conflict. In one, a court found that an avoiding seller's restitutionary rights under article 81(2) were trumped by the rights of one of the buyer's creditors that had obtained and perfected, under national law, a security interest in the delivered goods: the court ruled that the question of who had priority rights in the goods as between the seller and the third party creditor was, under CISG article 4, beyond the scope of the Convention and was governed instead by applicable national law, under which the third party creditor prevailed.[44] This was the result even though the sales contract included a clause reserving title to the goods in the seller until the buyer had completed payment (which buyer had not done): the court ruled that the effect of that clause with respect to a non-party to the sales contract was also governed by national law rather than the CISG, and under the applicable law the third party's claim to the goods had priority over seller's. Another court, in contrast, found that an avoiding seller could recover goods from a buyer that had gone through insolvency proceedings after the goods were delivered.[45] In this case, however, the seller had a retention of title clause that was valid under applicable national law and that had survived the buyer's now-completed insolvency proceedings, and there apparently was no third party with a claim to the goods that was superior to the seller's under national law. Thus the two cases described in this discussion do not appear to be inconsistent. Indeed, the later case cited the earlier case in support of its analysis.


NOTES

* This presentation of the UNCITRAL Digest is a slightly modified version of the original UNCITRAL text at <http://www.uncitral.org/pdf/english/clout/CISG-digest-2012-e.pdf>. The following modifications were made by the Institute of International Commercial Law of the Pace University School of Law:

   -    To enhance access to contents by computer search engines, we present in html rather than pdf;
 
   -    To facilitate direct focus on aspects of the Digests of most immediate interest, we inserted linked tables of contents at the outset of most presentations;
 
   -    To support UNCITRAL's recommendation to read more on the cases reported in the Digests, we provide mouse-click access to (i) CLOUT abstracts published by UNCITRAL (and to UNILEX case abstracts and other case abstracts); and also (ii) to full-text English translations of cases with links to original texts of cases, where available, in [bracketed citations] that we have added to UNCITRAL's footnotes; and
 
   -    To enable researchers to themselves keep the case citations provided in the Digests constantly current, we have created a series of tandem documents, UNCITRAL Digest Cases + Added Cases. The new cases and other cases that are cited in these updates are coded in accordance with UNCITRAL's Thesaurus.

1. CLOUT case No. 422 [AUSTRIA Oberster Gerichtshof 29 June 1999].

2. Ibid. See also [GERMANY Landgericht Düsseldorf 11 October 1995] (stating that avoidance "changes the contractual relationship into a restitutional relationship [winding up]").

3. [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 3 March 1997 (Arbitral award No. 82/1996)]; [AUSTRIA Oberster Gerichtshof 29 June 1999]. Compare CLOUT case No. 288 [GERMANY Oberlandesgericht München 28 January 1998] (where seller "refunded" buyer the purchase price of goods even though buyer's check for payment of the price had been dishonoured, seller's claim for restitution of the refund was not governed by article 81(1) because article 81(1) is limited to restitution of what is supplied or paid under the contract; seller's "refund" had not been made under the contract); but see CLOUT case No. 136 [GERMANY Oberlandesgericht Celle 24 May 1995], where the tribunal appears to apply article 81(2) even though the parties terminated the contract by mutual consent. See also the discussion of the application of article 81 to fill gaps in the parties' termination agreement in CLOUT case No. 422 [AUSTRIA Oberster Gerichtshof 29 June 1999].

4. [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 3 March 1997 (Arbitral award No. 82/1996)]; CLOUT case No. 422 [AUSTRIA Oberster Gerichtshof 29 June 1999].

5. [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 3 March 1997 (Arbitral award No. 82/1996)].

6. CLOUT case No. 422 [AUSTRIA Oberster Gerichtshof 29 June 1999].

7. For general statements regarding the parties' release from their obligations upon avoidance see, e.g. CLOUT case No. 422 [AUSTRIA Oberster Gerichtshof 29 June 1999]; CLOUT case No. 2 [GERMANY Oberlandesgericht Frankfurt a.M. 17 September 1991] (see full text of the decision); CLOUT case No. 261 [SWITZERLAND Bezirksgericht der Saane 20 February 1997]; [ICC Court of Arbitration of the International Chamber of Commerce, August 1998 (Arbitral award No. 9887)].

8. CLOUT case No. 235 [GERMANY Bundesgerichtshof 25 June 1997] (partial avoidance); CLOUT case No. 348 [GERMANY Oberlandesgericht Hamburg 26 November 1999]; CLOUT case No. 2 [GERMANY Oberlandesgericht Frankfurt am Main 17 September 1991] (see full text of the decision); [ICC Court of Arbitration of the International Chamber of Commerce, France, March 1995 (Arbitral award No. 7645)]. See also [GERMANY Landgericht Krefeld 24 November 1992] (implying that in a partial avoidance situation the buyer was released from its obligation to pay for the portion of the goods subject to avoidance); CLOUT case No. 214 [SWITZERLAND Handelsgericht des Kantons Zürich 5 February 1997 (Sunflower oil case)] (in a partial performance situation, court appears to presume that buyer's avoidance released both parties from remaining executory duties).

9. [ICC Court of Arbitration of the International Chamber of Commerce, August 1998 (Arbitral award No. 9887)].

10. CLOUT case No. 261 [SWITZERLAND Bezirksgericht der Saane 20 February 1997]. See also [SWITZERLAND Arbitral Panel of the Zurich Chamber of Commerce 31 May 1996 (Arbitral award No. ZHK 273/95)], where the tribunal indicates that the buyer's action for damages based on avoidance was an alternative to an action to require seller to deliver.

11. In the following cases, the tribunal indicated that the buyer was not released from its obligation to pay because it had failed to avoid the contract: CLOUT case No. 284 [GERMANY Oberlandesgericht Köln 21 August 1997]; [GERMANY Landgericht München 20 March 1995]; CLOUT case No. 229 [GERMANY Bundesgerichtshof 4 December 1996]; CLOUT case No. 79 [GERMANY Oberlandesgericht Frankfurt am Main 18 January 1994]. See also CLOUT case No. 81 [GERMANY Oberlandesgericht Düsseldorf 10 February 1994] (implying that, because buyer did not validly avoid the contract, it was not released from its obligation to pay) and CLOUT case No. 83 [GERMANY Oberlandesgericht München 2 March 1994] (same). It has also been found that a seller who fails to validly avoid the contact is not released from its obligation to deliver the goods. [SWITZERLAND Arbitral Panel of the Zurich Chamber of Commerce 31 May 1996 (Arbitral award No. ZHK 273/95)].

12. CLOUT case No. 229 [GERMANY Bundesgerichtshof 4 December 1996] (buyer did not have right to avoid because its notice of lack of conformity was not sufficiently specific to satisfy article 39); [GERMANY Landgericht München 20 March 1995] (buyer lost right to avoid because it did give sufficient notice of lack of conformity under article 39 and its notice of avoidance was untimely under article 49(2)); CLOUT case No. 81 [GERMANY Oberlandesgericht Düsseldorf 10 February 1994] (buyer lacked right to avoid because its notice of lack of conformity was not timely under article 39) (see full text of the decision); CLOUT case No. 83 [GERMANY Oberlandesgericht München 2 March 1994] (buyer did not have right to avoid because its declaration of avoidance was untimely under article 49(2)); [ICC Court of Arbitration of the International Chamber of Commerce, August 1998 (Arbitral award No. 9887)] (seller's delivery of non-conforming goods did not release buyer from its obligation to pay because buyer did not give notice declaring the contract avoided as required by article 49(2)(b)(i) (although seller's subsequent avoidance released both parties from their obligations)).

13. CLOUT case No. 284 [GERMANY Oberlandesgericht Köln 21 August 1997] (buyer lacked right to avoid because it either failed to prove or had waived its right to complain of lack of conformity); CLOUT case No. 79 [GERMANY Oberlandesgericht Frankfurt am Main 18 January 1994] (buyer did not have right to avoid for late delivery because it did not fix an additional period of time for seller to perform under articles 47 and 49(1)(b), and buyer lacked right to avoid for lack of conformity because it failed to prove that the defects constituted a fundamental breach) (see full text of the decision); CLOUT case No. 83 [GERMANY Oberlandesgericht München 2 March 1994] (buyer had no right to avoid because the inferior quality of the goods did not constitute a fundamental breach); [SWITZERLAND Arbitral Panel of the Zurich Chamber of Commerce 31 May 1996 (Arbitral award No. ZHK 273/95)] (seller lacked right to avoid because buyer's failure to make one instalment payment did not constitute a fundamental breach of the contract, buyer had not committed an anticipatory repudiation of the contract, and seller had not fixed an additional deadline period under article 64 for buyer to pay); [ICC Court of Arbitration of the International Chamber of Commerce, August 1998 (Arbitral award No. 9887)] (seller's late delivery did not release buyer from its obligation to pay because buyer did not grant seller additional time for performance under article 47(1) (although seller's subsequent avoidance released both parties from their obligations)).

14. CLOUT case No. 422 [AUSTRIA Oberster Gerichtshof 29 June 1999]. See also [GERMANY Landgericht Düsseldorf 11 October 1995] (stating that avoidance "changes the contractual relationship into a restitutional relationship [winding up]").

15. CLOUT case No. 253 [SWITZERLAND Cantone del Ticino Tribunale d'appello 15 January 1998] (see full text of the decision); CLOUT case No. 345 [GERMANY Landgericht Heilbronn 15 September 1997]; CLOUT case No. 214 [SWITZERLAND Handelsgericht des Kantons Zürich 5 February 1997 (Sunflower oil case)]; CLOUT case No. 348 [GERMANY Oberlandesgericht Hamburg 26 November 1999]; CLOUT case No. 422 [AUSTRIA Oberster Gerichtshof 29 June 1999]; [SWITZERLAND Arbitral Panel of the Zurich Chamber of Commerce 31 May 1996 (Arbitral award No. ZHK 273/95)]; CLOUT case No. 166 [GERMANY Schiedsgericht der Handelskammer Hamburg 21 March 21 June 1996] (see full text of the decision).

16. CLOUT case No. 166 [GERMANY Schiedsgericht der Handelskammer Hamburg 21 March 21 June 1996] (see full text of the decision).

17. CLOUT case No. 23 [UNITED STATES U.S. District Court, Southern District of New York, 14 April 1992] (see full text of the decision).

18. [ICC Arbitration Court of the International Chamber of Commerce, March 1999 (Arbitral award No. 9978)].

19. CLOUT case No. 422 [AUSTRIA Oberster Gerichtshof 29 June 1999].

20. Ibid.

21. See the Digest for article 82.

22. See the Digest for article 84, paragraphs 5-6.

23. See the Digest article 84, paragraphs 2-4.

24. [ICC Arbitration Court of the International Chamber of Commerce, March 1999 (Arbitral award No. 9978)]. But see [GERMANY Landgericht Landshut 5 April 1995], in which the court apparently held a breaching seller liable for failing to make restitution to a buyer that had properly avoided the contract (although the remedy granted for this liability, if any, is unclear).

25. CLOUT case No. 293 [GERMANY Schiedsgericht der Hamburger freundschatlichen Arbitrage 29 December 1998] ("The claimant's claim as buyer under article 81(2) first sentence CISG for reimbursement of the prepayment first requires contract avoidance (article 81(1) first sentence CISG)") (see full text of the decision); CLOUT case No. 214 [SWITZERLAND Handelsgericht des Kantons Zürich 5 February 1997 (Sunflower oil case)] (see full text of the decision); [GERMANY Landgericht Düsseldorf 11 October 1995] (denying buyer restitution because it had not properly avoided the contract); CLOUT case No. 345 [GERMANY Landgericht Heilbronn 15 September 1997]; [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 15 April 1994 (Arbitral award No. 1/1993)]; [GERMANY Landgericht Krefeld 24 November 1992]. But see [MEXICO Comisión para la Protección del Comercio Exterior de México (Compromex) 4 May 1993] (invoking article 81(2) to justify the seller's claim for the price of delivered goods where it does not appear the contract was avoided).

26. [GERMANY Landgericht Düsseldorf 11 October 1995].

27. [GERMANY Oberlandesgericht Stuttgart 31 March 2008].

28. [GERMANY Oberlandesgericht Brandenburg 18 November 2008 (Beer case)].

29. [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 15 April 1994 (Arbitral award No. 1/1993)]; CLOUT case No. 302 [ICC Arbitration Court of the International Chamber of Commerce, 23 August 1994 (Arbitral award No. 7660)] (see full text of the decision); CLOUT case No. 312 [FRANCE Cour d'appel de Paris 14 January 1998] (see full text of the decision); [CHINA International Economic and Trade Arbitration Commission, People's Republic of China, 30 October 1991]; CLOUT case No. 345 [GERMANY Landgericht Heilbronn 15 September 1997]; CLOUT case No. 253 [SWITZERLAND Cantone del Ticino Tribunale d'appello 15 January 1998] (see full text of the decision); CLOUT case No. 214 [SWITZERLAND Handelsgericht des Kantons Zürich 5 February 1997 (Sunflower oil case)]; CLOUT case No. 103 [ICC Court of Arbitration of the International Chamber of Commerce, 1993 (Arbitral award No. 6653)] (without citing article 81); CLOUT case No. 136 [GERMANY Oberlandesgericht Celle 24 May 1995]; [FRANCE Cour d'appel Aix-en-Provence, 21 November 1996], affirmed in CLOUT case No. 315 [FRANCE Cour de Cassation 26 May 1999]; [GERMANY Landgericht Düsseldorf 11 October 1995]; [FINLAND Käräjäoikeus of Kuopio 5 November 1996 (Butter case)]; [ICC Arbitration Court of the International Chamber of Commerce, March 1999 (Arbitral award No. 9978)]; CLOUT case No. 293 [GERMANY Schiedsgericht der Hamburger freundschatlichen Arbitrage 29 December 1998] (awarding restitution of the buyer's prepayment for a delivery because "[t]he rendered prepayment is, in the meaning of article 81(2) first sentence CISG, performance of the contract on the part of the claimant as buyer") (see full text of the decision).

30. See [GERMANY Landgericht Landshut 5 April 1995 (Sport clothing case)] (ordering a breaching seller to make restitution of price to the avoiding buyer concurrently with buyer making restitution of goods to seller); [CHINA International Economic and Trade Arbitration Commission, People's Republic of China, 30 October 1991]; CLOUT case No. 165 [GERMANY Oberlandesgericht Oldenburg 1 February 1995] (stating that buyer who avoided contract for the purchase of furniture must make restitution of defective furniture it received under the contract) (citing article 84) (see full text of the decision). See also article 82 (stripping a buyer of the right to avoid the contract if it cannot make restitution of the goods substantially in the condition in which it received them, unless one of the exceptions in article 82(2) applies).

31. [GERMANY Landgericht Krefeld 24 November 1992].

32. CLOUT case No. 308 [AUSTRALIA Federal Court of Australia 28 April 1995] (see full text of the decision).

33. CLOUT case No. 261 [SWITZERLAND Bezirksgericht der Saane 20 February 1997]; CLOUT case No. 308 [AUSTRALIA Federal Court of Australia 28 April 1995] (see full text of the decision).

34. CLOUT case No. 288 [GERMANY Oberlandesgericht München 28 January 1998] .

35. [GREECE Polimeles Protodikio Athinon 2009 (docket no. 4505/2009)].

36. [GERMANY Landgericht Landshut 5 April 1995 (Sport clothing case)].

37. CLOUT case No. 312 [FRANCE Cour d'appel de Paris 14 January 1998].

38. CLOUT case No. 295 [GERMANY Oberlandesgericht Hamm 5 November 1997] (see full text of the decision).

39. CLOUT case No. 422 [AUSTRIA Oberster Gerichtshof 29 June 1999].

40. CLOUT case No. 302 [ICC Arbitration Court of the International Chamber of Commerce, 23 August 1994 (Arbitral award No. 7660)].

41. [CHINA International Economic and Trade Arbitration Commission, People's Republic of China, 30 October 1991] (ordering avoiding buyer to return goods and breaching seller to return price); see also [FRANCE Cour d'appel Aix-en-Provence, 21 November 1996] ("the avoidance of the sale has, as a consequence, the restitution of the goods against restitution of the price").

42. [GERMANY Landgericht Landshut 5 April 1995 (Sport clothing case)].

43. CLOUT case No. 308 [AUSTRALIA Federal Court of Australia 28 April 1995] (see full text of the decision).

44. CLOUT case No. 613 [UNITED STATES U.S. District Court, Northern District of Illinois, 28 March 2002 (Usinor Industeel v. Leeco Steel Products, Inc.)].

45. CLOUT case No. 308 [AUSTRALIA Federal Court of Australia 28 April 1995] (see full text of the decision).


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