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2008 UNCITRAL Digest of case law on the United Nations Convention on the International Sale of Goods

Digest of Article 74 case law [reproduced with permission of UNCITRAL] [*]

[Text of article
Overview
Relation to other articles
Right to damages
Types of losses
   -    Losses arising from death or personal injury
   -    Losses arising from damage to non-material interests
   -    Losses arising from change in value of money
Expenditures by aggrieved party
   -    Expenditures for debt collection: attorneys' fees
Lost profits
   -    Damages for "lost volume" sales
Foreseeability
Burden of proof and standard of proof
Set-off
Jurisdiction: place of payment of damages]

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.

OVERVIEW

1. Article 74 sets out the Conventions 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.[1] 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 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 of damages, but domestic procedural law may apply to the assessment of evidence of loss [2] Applicable domestic law also determines whether a party may assert a right to set off in a proceeding under the Convention (see paragraph 37 below). Domestic substantive law may also govern issues relevant to the determination of the amount of damages, such as the weighing of evidence.[3]

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.[4]

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 [5] or liquidating [6] damages. The validity of these contract terms is, by virtue of article 4(a), governed by applicable domestic law rather than the Convention.[7]

[See also the overview comments UNCITRAL has prepared to introduce the provisions of the CISG dealing with Damages (articles 74 through 77). They discuss Relation to Other Articles, Burden of Proof, Set-off, Jurisdiction, and Place of Payment of Damages.]

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.[8] 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 the Digest for 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.[9] Interest has been awarded as damages where the circumstances were not covered by article 78 because the interest claim did not relate to sums in arrears.[10]

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.[11]

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 provisions of the sales contract.[12]

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."[13]

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 are covered by the Convention. An arbitral award concluded that an aggrieved buyer failed to notify the seller of non-conformity in a timely manner as required by article 39 of the Convention, 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.[14] A court decision 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.[15]

12. When an aggrieved buyer fails, without excuse,[16] to give timely notice to a breaching seller in accordance with articles 39 or 43, the aggrieved buyer loses its right to rely on the seller's breach when making a claim for damages.[17] Under article 44 of the Convention, however, if the buyer has a "reasonable excuse" for failing to give the required notice, the aggrieved buyer may nevertheless recover damages other than lost profits.[18]

13. Article 79 excuses a breaching party from the payment of damages (but not from other remedies for non-performance) if he proves that his non-performance was due to an impediment that satisfies the conditions of paragraph (1) of article 79. 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.[19] It has been held that a buyer who has received non-conforming goods and has not avoided the contract is entitled to recover damages under article 74 measured by the difference between the value of the goods the buyer contracted for and the value of the non-conforming goods that were actually delivered.[20]

-- Losses arising from death or personal injury

16. Article 5 provides that losses arising from death or personal injury are excluded from the Conventions coverage. However, when deciding on its jurisdiction, one court implicitly assumed that the Convention covers claims by a buyer against its seller for indemnification against claims by a sub-buyer for personal injury.[21]

-- Losses arising from damage to other property

17. Article 5 does not exclude losses for damage to property other than the goods purchased.[22]

-- 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,[23] but at least one decision has denied such recovery under the Convention.[24] One court found claims for both loss of turnover and loss of reputation to be inconsistent.[25]

-- 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 non-payment or delay in the payment of money. These losses may arise from fluctuations in currency exchange rates or devaluation of the currency of payment. Tribunals differ as to the appropriate solution. Several decisions have awarded damages to reflect currency devaluation [26] or changes in the cost of living.[27] On the other hand, several other decisions refused to award damages for such losses. One decision concluded that a claimant that is to receive payment in its own currency is generally not entitled to recover losses from currency devaluation, but went on to suggest that a claimant might recover damages for currency devaluations if it was to be paid in foreign currency and it had a practice of converting such currency immediately after payment.[28] Another court stated that while devaluation of the currency in which the price was to be paid could give rise to damages recoverable 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.[29]

Expenditures by aggrieved party

20. Many decisions have recognized the right of an 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 paragraphs 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.[30]

21. Decisions have awarded incidental damages to an aggrieved buyer who had made reasonable expenditures for the following purposes: inspection of non-conforming goods;[31] handling and storing non-conforming goods;[32] preserving goods;[33] shipping and customs costs incurred when returning the goods;[34] expediting shipment of substitute goods under an existing contract with a third party;[35] installing substitute goods;[36] sales and marketing costs;[37] commissions;[38] hiring a third party to process goods;[39] obtaining credit;[40] delivering and taking back the non-conforming goods to and from a sub-buyer;[41] reimbursing sub-buyer's on account of non-conforming goods;[42] moving replacement coal from stockpiles;[43] loss incurred in sub-chartering a ship that had been chartered to transport goods under a contract that the seller properly avoided.[44] Several decisions have awarded buyer's who took delivery of non-conforming goods the reasonable costs of repair as damages.[45] At least one decision implicitly recognizes that an aggrieved buyer may recover incidental damages, although in the particular case the buyer failed to establish such damages.[46] Another decision assumed that the Convention governed a buyer's claim for indemnification for expenses incurred in reimbursing a sub-buyer for personal injury caused to an employee.[47]

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 that recovery is possible for the type of expenditure but deny recovery for failure of proof, 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.[48] 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.[49]

23. Aggrieved sellers have recovered damages for the following incidental expenses: storage of goods at the port of shipment following the buyer's anticipatory breach;[50] storage and preservation of undelivered machinery;[51] the cost of modifying a machine in order to resell it;[52] costs related to the dishonour of the buyer's cheques.[53] A seller who has delivered non-conforming goods and subsequently cures the non-conformity is not entitled to recover the cost of cure.[54]

-- Expenditures for debt collection; attorneys' 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,[55] 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.[56]

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.[57] One decision distinguished between the extra-judicial fees of a lawyer in the forum and similar fees of a lawyer in another jurisdiction it included the fees of the former in the allocation of litigation costs under the forums rules and awarded the fees of the latter as damages under article 74 of the Convention.[58]

26. Decisions are split as to whether attorneys' fees for litigation may be awarded as damages under article 74.[59] Citing article 74, several arbitral tribunals have awarded recovery of attorneys' fees for the arbitration proceedings.[60] 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 attorneys' fees before a tribunal consisting of lawyers.[61] Another court stated that, in principle, legal costs could be recovered, although the court denied them in the particular case.[62] Many cases award attorneys' fees without indicating whether the award is for damages calculated under article 74 or is made pursuant to the tribunals rules on the allocation of legal fees.[63] Several decisions have limited or denied recovery of the amount of the claimant's attorneys' fees on the grounds that the fees incurred were unforeseeable [64] or that the aggrieved party had failed to mitigate these expenses as required by article 77.[65] An appellate court in the United States reversed a decision awarding attorneys' 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.[66]

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.[67] 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.[68] 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.[69]

28. The second sentence of article 74 limits the damages that can be awarded for losses caused by the breach to losses 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.[70]

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 forums procedural standards as to the certainty of the amount of damages.[71]

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 of loss of reputation as well as evidence that the breaching seller knew or should have known of these losses.[72]

-- 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 because, without the buyer's breach, he would have been able to make two sales. Under these circumstances a court has concluded that the seller was entitled to recover the lost profit from the first sale.[73] 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.[74] 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 meet the market demand for its product as a result of the selle's delivery of non-conforming components.[75]

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 as a possible consequence of its breach. It has been noted that it is the possible consequences of a breach, not whether a breach would occur or the type of breach, that is subject to the foreseeability requirement of article 74; and it has been suggested that article 74 does not demand that the specific details of the loss or the precise amount of the loss be foreseeable.[76]

33. Decisions have found that the breaching party could not have foreseen the following losses: rental of machinery by buyer's sub-buyer;[77] processing goods in a different country following late delivery;[78] an exceptionally large payments to freight forwarder;[79] attorneys' fees in dispute with freight forwarder;[80] the cost of resurfacing a grinding machine where that cost exceeded price of wire to be ground;[81] lost profits where breaching seller did not know terms of contract with sub-buyer;[82] the cost of inspecting the goods in the importing country rather than exporting country.[83]

34. On the other hand, several decisions have explicitly found that claimed damages were foreseeable. One decision states that the seller of goods to a retail buyer should foresee that the buyer would resell the good,[84] while an arbitration tribunal found that a breaching seller could have foreseen the buyer's losses because the parties had corresponded extensively on supply problems.[85] Another decision concluded that a breaching buyer who failed to pay the price in advance, as required by the contract, could foresee that an aggrieved seller of fungible goods would lose its typical profit margin.[86] A majority of another court awarded ten per cent of the price as damages to a seller who had manufactured the goods to the special order of the buyer; the majority noted that a breaching buyer could expect such a seller's profit margin.[87] It has also been held that a buyer could foresee that its failure to establish a letter of credit as required by the sales contract would leave the seller with a chartered vessel, intended to transport the goods, that it could not use; the loss the seller incurred in sub-chartering that vessel was thus recoverable under article 74.[88]

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 agree, more or less expressly, that the party making the claim bears the burden of establishing its claim.[89] One court gave effect to a national law rule that, if a breaching seller acknowledges defects in the delivered goods, the burden of establishing that the goods conformed to the contract shifts to the seller.[90] Another decision expressly placed the burden of establishing damages on the claimant.[91]

36. Several decisions state that domestic procedural and evidentiary law rather than the Convention governs the standard of proof and the weight to be given evidence when determining damages.[92]

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,[93] the Convention does determine whether a counterclaim arising from a sales contract exists [94] and, if it does, the counterclaim may then be subject to set off against a claim arising under the Convention.[95]

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.[96]


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_second_edition.pdf>. The following modifications were made by the Institute of International Commercial Law of the Pace University School of Law:

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1. 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.

2. [FINLAND Helsingin hoviokeus (Helsinki Court of Appeals) 26 October 2000 (Plastic carpets case)] (grounds for recovery determined under the CISG but calculation of damages made under article 17 of the Finnish Law of Civil Procedure); [SWITZERLAND Bezirksgericht der Sanne 20 February 1997 (Spirits case)] (applicable domestic law determines how to calculate damages when amount cannot be determined); [UNITED STATES Federal District Court, Northern District of New York, 9 September 1994 (Delchi Carrier, S.p.A. v. Rotorex Corp.)] (referring to sufficient evidence [under common law and law of New York] to estimate the amount of damages with reasonable certainty), affirmed [UNITED STATES Federal Court of Appeals for the Second Circuit 6 December 1995 (Delchi Carrier, S.p.A. v. Rotorex Corp.)].

3. See, e.g., [GERMANY Landgericht Flensburg 24 March 1999 (Vine wax case)] (aggrieved seller recovers damages under article 74 for losses caused by the buyer's delay in payment but applicable domestic law determines whether payment was delayed because Convention is silent on time of payment).

4. [AUSTRIA Arbitration-Internationales Schiedsgericht der Bundeskammer der gewerblichen Wirtschaft Wien, 15 June 1994 (SCH-4366) (Rolled metal sheets case)] (deriving general principle from article 74 for purposes of filling gap in article 78, in accordance with article 7(2)). See also [UNITED STATES Federal Court of Appeals for the Second Circuit 6 December 1995 (Delchi Carrier, S.p.A. v. Rotorex Corp.)] (article 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).

5. [FINLAND Hovioikeus (Court of Appeal) Turku 12 April 2002 (Forestry equipment case)] (contract term limiting recovery of damages is enforceable).

6. [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry, Award 302/1996 of 27 July 1999 (Goods case)] (liquidated damage clause displaces remedy of specific performance; amount of liquidated damages was reasonable and foreseeable under article 74 as measure of expected profit); [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry, Award 251/93 of 23 November 1994 (Seasonal goods case)] (damages for delay granted only to extent of contract penalty for delay clause).

7. See [GERMANY Oberlandesgericht Celle 2 September 1998 (Vacuum cleaners case)] (term in seller's general conditions limiting damages not validly incorporated into contract) (see full text of the decision); [GERMANY Landgericht Heilbronn 15 September 1997 (Film coating machine case)] (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).

8. [AUSTRIA Oberster Gerichtshof 28 April 2000 (Jewelry case)] (aggrieved party may claim under article 74 even if it could also claim under articles 75 or 76). See also [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry, Award 155/1994 of 16 March 1995 (Metallic sodium case)] (citing article 74, the tribunal awarded buyer the difference between contract price and price in substitute purchase); [AUSTRIA Arbitration-Internationales Schiedsgericht der Bundeskammer der gewerblichen Wirtschaft Wien, 15 June 1994 (SCH-4366) (Rolled metal sheets case)] (awarding seller, without citation of specific Convention article, difference between contract price and price in substitute transaction).

9. See, e.g., [NETHERLANDS Gerechtshof 's-Hertogenbosch 2 October 1997 (Van Dongen Waalwijk Leder BV v. Conceria Adige S.p.A.)] (interest awarded under both articles 74 and 78); [ITALY Pretura di Torino 30 January 1997 (Cotton fabric case)] (aggrieved party entitled to statutory rate of interest plus additional interest it had established as damages under article 74); [SWITZERLAND Handelsgericht des Kantons Zürich 10 July 1996 (Plastic chips case)] (seller awarded interest under article 74 in amount charged on bank loan to seller that was needed because of buyer's nonpayment); [GERMANY Amtsgericht Koblenz 12 November 1996 (Shoes case)] (bank certificate established that aggrieved seller was paying higher interest rate than official rate under applicable law); [FINLAND Käräjäoikeus of Kuopio 5 November 1996 (Butter case)] (breaching party could foresee aggrieved party would incur interest charges, but not the actual rate of interest in Lithuania); [SWITZERLAND Handelsgericht des Kantons Zürich 21 September 1995 (Air conditioners case)] (seller entitled to higher interest under article 74 if he established damages caused by non-payment); [GERMANY Oberlandesgericht Koblenz 17 September 1993 (Computer chip case)]; [GERMANY Oberlandesgericht Düsseldorf 14 January 1994 (Shoes case)] (damages includes interest paid by aggrieved seller on bank loans); [ICC International Court of Arbitration, Award 7197 of 1992 (Failure to open letter of credit and penalty clause case)] (interest awarded at commercial bank rate in Austria); [GERMANY Landgericht Berlin 6 October 1992 (Wine case)] (assignee of aggrieved party's claim entitled to recover 23% interest rate charged by assignee); [GERMANY Amtsgericht Oldenburg in Holstein 24 April 1990 (Fashion textiles case)] (seller recovered price and interest at the statutory rate in Italy plus additional interest as damages under article 74). See also [GERMANY Landgericht Flensburg 24 March 1999 (Vine wax case)] (aggrieved party had right to recover damages under the Convention for losses resulting from delay in payment but applicable domestic law determines when delay becomes culpable); [GERMANY Landgericht Kassel 15 February 1996 (Marble slab case)] (failure to establish additional damages under article 74); [GERMANY Oberlandesgericht Hamm 8 February 1995 (Socks case)] (claimant awarded statutory interest rate under article 78 but claimant failed to establish payment of higher interest rate for purposes of recovering damages under article 74).

10. See, e.g., [SWEDEN Stockholm Chamber of Commerce Arbitration Award 107/1997 of 1998 (Steel bars case)] (aggrieved buyer entitled to recover interest on reimbursable costs it incurred following sub-buyer's rightful rejection of goods).

11. [ICC International Court of Arbitration, Award 8716 of February 1997 (Goods case)] (damages awarded in amount of price).

12. See, e.g., [GERMANY Amtsgericht Frankfurt a.M. 31 January 1991 (Shoes case)] (seller's failure to notify the buyer that the seller was suspending performance in accordance with article 71(3) was itself a breach of the Convention entitling buyer to damages).

13. [ICC International Court of Arbitration, Award 8716 of February 1997 (Goods case)].

14. [BULGARIA Arbitration Award 56/1995 of the Bulgarska turgosko-promishlena palata 24 April 1996 (Coal case)] (setting a 50/50 division of the 10 percent of price held back by buyer because of non-conformity of goods).

15. [UNITED STATES Federal District Court, Southern District of New York, 10 May 2002 (Geneva Pharmaceuticals Tech. Corp. v. Barr Laboratories, Inc.)] (domestic law tort claim of negligent misrepresentation not preempted by Convention). See also [UNITED STATES Federal District Court, Eastern District of Pennsylvania, 29 August 2000 (Viva Vino v. Farnese Vini)] (Convention does not govern non-contractual claims).

16. See CISG arts. 40 (buyer's failure is excused when seller could not have been unaware of non-conformity and failed to disclose non-conformity to buyer) and 44 (preserving specified remedies for the buyer if he has reasonable excuse for failure to notify). See also [GERMANY Oberlandesgericht Bamberg 13 January 1999 (Fabric case)] (buyer need not give notice declaring avoidance of contract when seller stated it would not perform); [AUSTRIA Arbitration - Internationales Schiedsgericht der Bundeskammer der gewerblichen Wirtschaft Wien 15 June 1994 (SCH-4318) (Rolled metal sheets case)] (seller estopped from asserting buyer's failure to give timely notice).

17. See, e.g., [GERMANY Landgericht Köln 30 November 1999 (Facade stones case)] (failure to give sufficiently specific notice); [GERMANY Landgericht Erfurt 29 July 1998 (Shoe soles case)] (failure to give sufficiently specific notice); [GERMANY Oberlandesgericht Jena 26 May 1998 (Live fish case)] (failure to satisfy article 39 bars both CISG and tortious claims for damages); [GERMANY Oberlandesgericht Koblenz 31 January 1997 (Acrylic blankets case)] (failure to give sufficiently specific notice); [SWITZERLAND Handelsgericht des Kantons Zürich 26 April 1995 (Saltwater isolation tank case)] (failure to give timely notice); [SWITZERLAND Obergericht des Kantons Luzern 8 January 1997 (Blood infusion devices case)] (failure to give timely notice); [GERMANY Oberlandesgericht München 8 February 1995 (Plastic granules case)] (failure to notify); [GERMANY Oberlandesgericht Düsseldorf 10 February 1994 (Fabrics case)] (failure to notify); [GERMANY Landgericht Baden-Baden 14 August 1991 (Wall tiles case)] (failure to give timely notice of non-conformity); [GERMANY Landgericht Stuttgart 31 August 1989 (Shoes case)] (failure to examine and notify of non-conformity of goods).

18. [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry, Award 54/1999 of 24 January 2000].

19. See, e.g., [AUSTRIA Oberster Gerichtshof 28 April 2000 (Jewelry case)] (loss of profit in case was positive damage) (see full text of the decision); [UNITED STATES Federal Court of Appeals for the Second Circuit 6 December 1995 (Delchi Carrier, S.p.A. v. Rotorex Corp.)] ("incidental and consequential" damages) (see full text of the decision) affirming [UNITED STATES Federal District Court, Northern District of New York, 9 September 1994 (Delchi Carrier, S.p.A. v. Rotorex Corp.)].

20. [GERMANY Oberlandesgericht Zweibrücken 2 February 2004 (Milling equipment case)] (see full text of the decision).

21. [GERMANY Oberlandesgericht Düsseldorf 2 July 1993 (Veneer cutting machine case)].

22. See [SWITZERLAND Handelsgericht des Kantons Zürich 26 April 1995 (Saltwater isolation tank case)] (recovery for damage to house in which a container for weightless floating installed).

23. [FINLAND Helsingin hoviokeus (Helsinki Court of Appeals) 26 October 2000 (Plastic carpets case)] (recovery of good will calculated in accordance with national rules of civil procedure); [SWITZERLAND Handelsgericht des Kantons Zürich 10 February 1999 (Art books case)] (stating that article 74 includes recovery for loss of goodwill but aggrieved party did not substantiate claim) (see full text of the decision); [FRANCE Cour d'appel, Grenoble 21 October 1999 (Footwear case)] (no recovery under CISG for loss of good will unless loss of business proved); [SPAIN Audienca Provincial Barcelona 20 June 1997 (Dye for clothes case)] (aggrieved party did not provide evidence showing loss of clients or loss of reputation) (see full text of the decision).

24. [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce, Award 304/93, of 3 March 1995 (Implicit agreement on price case)] (moral harm not compensable under CISG).

25. [GERMANY Landgericht, Darmstadt 9 May 2000 (Video recorders case)] (damaged reputation insignificant if there is no loss of turnover and consequent lost profits) (see full text of the decision).

26. [NETHERLANDS Rechtbank Roermond 6 May 1993 (Gruppo IMAR S.p.A. v. Protech Horst BV, Arrondissementsrechtbank Roermond) (Electric kettles case)] (damages in amount of devaluation because payment not made when due).

27. See, e.g., [BELGIUM Tribunal Commercial de Bruxelles 13 November 1992 (Magnificio Dalmine v. Coveres) (Clothes case)] (failure to pay price; court allowed revaluation of receivable under Italian law to reflect change in cost of living in seller's country).

28. [GERMANY Oberlandesgericht Düsseldorf 14 January 1994 (Shoes case)] (seller did not establish its loss from devaluation of currency in which price was to be paid).

29. [SWITZERLAND Handelsgericht des Kantons Zürich 5 February 1997 (Sunflower oil case)] (citing general principle of tort law).

30. [AUSTRIA Oberster Gerichtshof 14 January 2002 (Cooling system case)] (see full text of the decision); [GERMANY Bundesgerichtshof 25 June 1997 (Stainless steel wire case)] (expense of resurfacing grinding machine not reasonable in relation to price of wire to be ground); [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce, Award 375/93 of 9 September 1994] (recovery of storage expenses shown to be in amounts normally charged).

31. [SWEDEN Stockholm Chamber of Commerce Arbitration Award 107/1997 of 1998 (Steel bars case)] (examination).

32. [SWEDEN Stockholm Chamber of Commerce Arbitration Award 107/1997 of 1998 (Steel bars case)] (storage); [UNITED STATES Federal Court of Appeals for the Second Circuit 6 December 1995 (Delchi Carrier, S.p.A. v. Rotorex Corp.)] (reversing [UNITED STATES Federal District Court, Northern District of New York, 9 September 1994 (Delchi Carrier, S.p.A. v. Rotorex Corp.)] decision that denied recovery of storage costs).

33. [ICC International Court of Arbitration, Award 7531 of 1994 (Scaffold fittings case)].

34. [UNITED STATES Federal Court of Appeals for the Second Circuit 6 December 1995 (Delchi Carrier, S.p.A. v. Rotorex Corp.)] (reversing [UNITED STATES Federal District Court, Northern District of New York, 9 September 1994 (Delchi Carrier, S.p.A. v. Rotorex Corp.)] decision that denied recovery of shipping costs and customs duties).

35. [UNITED STATES Federal Court of Appeals for the Second Circuit 6 December 1995 (Delchi Carrier, S.p.A. v. Rotorex Corp.)] (affirming [UNITED STATES Federal District Court, Northern District of New York, 9 September 1994 (Delchi Carrier, S.p.A. v. Rotorex Corp.)] decision that awarded costs of expediting shipment of goods under existing contract).

36. [GERMANY Oberlandesgericht Hamm 9 June 1995 (Window elements case)].

37. [FINLAND Helsingin hoviokeus (Helsinki Court of Appeals) 26 October 2000 (Plastic carpets case)] (damages recovered for sales and marketing expenses of aggrieved buyer).

38. [SWITZERLAND Cantone del Ticino Tribunale d'appello 15 January 1998 (Cocoa beans case)] (commissions) (see full text of the decision).

39. [GERMANY Oberlandesgericht Köln 8 January 1997 (Tannery machines case)].

40. [ICC International Court of Arbitration, Award 7531 of 1994 (Scaffold fittings case)].

41. [GERMANY Oberlandesgericht Celle 2 September 1998 (Vacuum cleaners case)] (recovery allowed for handling complaints and for costs of unwrapping, loading and unloading returned non-conforming goods from buyer's customers); [SWEDEN Stockholm Chamber of Commerce Arbitration Award 107/1997 of 1998 (Steel bars case)] (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).

42. [GERMANY Oberlandesgericht Köln 21 May 1996 (Used automobile case)] (buyer entitled to damages in amount of compensation paid to sub-buyer for non-conforming goods); [GERMANY Landgericht Paderborn 25 June 1996 (Granulated plastic case)] (damages for reimbursement of sub-buyer's travel expenses to examine product, costs of examination, cost of hauling defective products, costs of loss on a substitute purchase). See also [ICC International Court of Arbitration, Award 7660 of 23 August 1994 (Battery machinery case)] (no indemnity awarded because third party's pending claim against buyer was not yet resolved).

43. [ICC International Court of Arbitration, Award 8740 of October 1996 (Russian coal case)] (cost of moving replacement coal from stockpiles recoverable).

44. [AUSTRALIA Supreme Court of Queensland 17 November 2000 (Scrap steel case)].

45. [AUSTRIA Oberster Gerichtshof 14 January 2002 (Cooling system case)]; [UNITED STATES Federal Court of Appeals for the Second Circuit 6 December 1995 (Delchi Carrier, S.p.A. v. Rotorex Corp.)] (expenses incurred when attempting to remedy the non-conformity) (see full text of the decision), affirming [UNITED STATES Federal District Court, Northern District of New York, 9 September 1994 (Delchi Carrier, S.p.A. v. Rotorex Corp.)]; [CANADA Ontario Court, General Division, 16 December 1998 (Nova Tool and Mold Inc. v. London Industries Inc.) (Molds used in manufacture of automobiles case)] (reimbursing expenses of having third party perform regraining that had been overlooked by seller, and of repairing non-conforming goods); [GERMANY Oberlandesgericht Düsseldorf 2 July 1993 (Veneer cutting machine case)] (cost of repair).

46. [GERMANY Oberlandesgericht Celle 2 September 1998 (Vacuum cleaners case)] (advertising costs not sufficiently particularized) (see full text of the decision).

47. [GERMANY Oberlandesgericht Düsseldorf 2 July 1993 (Veneer cutting machine case)] (relying on the Convention but without analysis of article 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 the decision).

48. [GERMANY Oberlandesgericht Celle 2 September 1998 (Vacuum cleaners case)] (advertising costs not sufficiently particularized) (see full text of the decision).

49. [GERMANY Oberlandesgericht Düsseldorf 2 July 1993 (Veneer cutting machine case)].

50. [AUSTRIA Arbitration-Internationales Schiedsgericht der Bundeskammer der gewerblichen Wirtschaft Wien, 15 June 1994 (SCH-4366) (Rolled metal sheets case)] (storage expenses incurred because buyer was late in taking delivery) (see full text of the decision); [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce, Award 375/93 of 9 September 1994] (recovery of storage expenses in amounts normally charged for storage); [ICC International Court of Arbitration, Award 7197 of 1992 (Failure to open letter of credit and penalty clause case)] (recovery of cost of storage but not for damage to goods because of prolonged storage) (see full text of the decision).

51. [ICC International Court of Arbitration, Award 7585 of 1992 (Foamed board machinery case)] (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).

52. [ICC International Court of Arbitration, Award 7585 of 1992 (Foamed board machinery case)] (cost of modifying machine in order to resell) (see full text of the decision).

53. [GERMANY Oberlandesgericht München 28 January 1998 (Automobiles case)] (dishonoured cheque); [GERMANY Landgericht Bielefeld 2 August 1996 (Pig case)] (buyer responsible for dishonoured cheques drawn by third party).

54. [GERMANY Oberlandesgericht Hamm 9 June 1995 (Window elements case)] (citing articles 45 and 48 but not article 74, court concluded that breaching seller must bear cost of repair or delivery of replacement goods).

55. [SWITZERLAND Kantonsgericht des Kantons Zug 25 February 1999 (Roofing materials case)] (recovery of debt collection costs allowed).

56. [GERMANY Amtsgericht Berlin-Tiergarten 13 March 1997] (costs of collection agency and local attorney in debtor's location not recoverable because not reasonable); [GERMANY Oberlandesgericht Rostock 27 July 1995 (Plants case)] (CISG does not provide recovery for expenses incurred by collection agency).

57. [GERMANY Landgericht Berlin 21 March 2003 (Fabrics case)] (reminder letter) (see full text of the decision); [SWITZERLAND Handelsgericht des Kantons Aargau 19 December 1997 (Garments case)] (extra-judicial costs); [GERMANY Oberlandesgericht Düsseldorf 11 July 1996 (Lawn mower engines case)] (reminder letter); [GERMANY Landgericht Aachen 20 July 1995] (pre-trial costs recoverable under article 74); [SWITZERLAND Kantonsgericht Zug 1 September 1994 (Fashion textiles case)] (expenses for non-judicial requests for payment reimbursable if payment was overdue at time of request). See also [GERMANY Landgericht Alsfeld 12 May 1995 (Flagstone tiles case)] (seller failed to mitigate loss in accordance with article 77 when it hired a lawyer in buyer's location rather than a lawyer in seller's location to send a collection letter); [GERMANY Oberlandesgericht Düsseldorf 14 January 1994 (Shoes case)] (although in principle legal costs incurred before avoidance of the contract are recoverable under artcile 74, they were not recoverable in this case because the fees were recovered in special proceedings); [NETHERLANDS Gerechtshoof 's-Hertogenbosch 27 November 1991 (De Vos en Zonen v. Reto Recycling) (Granulator case)] (construing ULIS article 82, predecessor of article 74, court allowed extrajudicial costs). See also [UNITED STATES Federal Court of Appeals for the Seventh Circuit, 19 November 2002 (Zapata Hermanos Sucesores, S.A. v. Hearthside Baking Co., Inc.)] (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).

58. [SWITZERLAND Handelsgericht des Kantons Aargau 19 December 1997 (Garments case)] (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).

59. Many decisions award attorneys' fees but support the award by citation to domestic law on the allocation of litigation costs.

60. [GERMANY Arbitration-Schiedsgericht der Handelskammer Hamburg, 21 March 1996 and 21 June 1996 (Chinese goods case)] (supplemental interpretation of arbitration clause provided compensation for attorneys' fees when arbitral tribunal was composed exclusively of lawyers) (see full text of the decision); [ICC International Court of Arbitration, Award 7585 of 1992 (Foamed board machinery case)] (damages for expenses for attorneys and arbitration).

61. [GERMANY Arbitration-Schiedsgericht der Handelskammer Hamburg, 21 March 1996 and 21 June 1996 (Chinese goods case)] (referring, inter alia, to inconclusive survey of local trade practice with respect to attorneys' fees in arbitral proceedings) (see full text of the decision).

62. [GERMANY Oberlandesgericht Düsseldorf 14 January 1994 (Shoes case)] (legal costs incurred in actions to enforce claims under two different contracts).

63. See, e.g., [FINLAND Hovioikeus Turku (Court of Appeals]) Turku, 12 April 2002 (Forestry equipment case)] (without citing article 74, court provides for recovery of attorneys' fees).

64. [SWEDEN Stockholm Chamber of Commerce Arbitration Award 107/1997 of 1998 (Steel bars case)] (attorneys' fees in dispute with freight forwarder about storage not recoverable because unforeseeable).

65. [GERMANY Landgericht Alsfeld 12 May 1995 (Flagstone tiles case)] (seller failed to mitigate loss in accordance with article 77 when it hired a lawyer in buyer's location rather than a lawyer in seller's location to send collection letter).

66. [UNITED STATES Federal Court of Appeals for the Seventh Circuit 19 November 2002 (Zapata Hermanos Sucesores, S.A. v. Hearthside Baking Co., Inc.)] (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.)

67. [FINLAND Helsingin hoviokeus (Helsinki Court of Appeals) 26 October 2000 (Plastic carpets case)] (lost profit calculated in accordance with national law of civil procedure); [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry, Award 406/1998 of 6 June 2000 (Goods case)] (aggrieved buyer entitled in principle to recover for lost profit from sale to its customer); [GERMANY Oberlandesgericht Hamburg 26 November 1999 (Jeans case)] (aggrieved buyer entitled to recover difference between value that contract would have had if seller had performed and the costs saved by buyer); [SWITZERLAND Handelsgericht des Kantons Zürich 5 February 1997 (Sunflower oil case)] (buyer entitled to lost profits); [GERMANY Oberlandesgericht Köln 21 May 1996 (Used automobile case)] (breaching seller liable in amount of buyer's lost profits when buyer had to reimburse sub-buyer); [UNITED STATES Federal Court of Appeals for the Second Circuit 6 December 1995 (Delchi Carrier, S.p.A. v. Rotorex Corp.)] (buyer's lost profits), affirming [UNITED STATES Federal District Court, Northern District of New York, 9 September 1994 (Delchi Carrier, S.p.A. v. Rotorex Corp.)] [ICC International Court of Arbitration, Award 7585 of 1992 (Foamed board machinery case)] (seller's lost profits measured by article 75). See also [FRANCE Cour d'appel, Grenoble 4 February 1999 (Orange juice case)] (buyer did not produce evidence of lost profits) (see full text of the decision).

68. [GERMANY Oberlandesgericht Hamburg 26 November 1999 (Jeans case)] (in calculating lost profits, holding that fixed costs are not costs the aggrieved buyer saved); [UNITED STATES Federal Court of Appeals for the Second Circuit 6 December 1995 (Delchi Carrier, S.p.A. v. Rotorex Corp.)] (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).

69. [GERMANY Oberlandesgericht Düsseldorf 14 January 1994 (Shoes case)].

70. [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry, Award 406/1998 of 6 June 2000 (Goods case)] (buyer's damages for lost profit reduced to 10 per cent of price because breaching seller did not know terms of sub-sale; 10 per cent derived from Incoterms definition of CIF term which provides that insurance should be taken out in amount of 110 per cent of price).

71. [UNITED STATES Federal District Court, Northern District of New York, 9 September 1994 (Delchi Carrier, S.p.A. v. Rotorex Corp.)] (sufficient evidence [under common law and law of New York) to estimate the amount of damages with reasonable certainty), affirmed [UNITED STATES Federal Court of Appeals for the Second Circuit 6 December 1995 (Delchi Carrier, S.p.A. v. Rotorex Corp.)].

72. [SPAIN Audienca Provincial Barcelona 20 June 1997 (Dye for clothes case)] (aggrieved party did not provide any evidence to show his profits in previous years or the loss it suffered; such evidence might have included orders given to him that could not be filled, loss of clients or loss of reputation) (see full text of the decision).

73. [AUSTRIA Oberster Gerichtshof 28 April 2000 (Jewelry case)] (aggrieved seller may recover profit margin on assumption that it could sell at the market price). See also [SWEDEN Stockholm Chamber of Commerce Arbitration Award 107/1997 of 1998 (Steel bars case)] (awarding 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); [SWITZERLAND Handelsgericht des Kantons Aargau 26 September 1997 (Cutlery case)] (majority of court awarded seller, who had resold goods, global standard of 10 per cent of price, stating that breaching buyer could expect such an amount of loss; dissenting opinion questioning whether sufficient proof of damages); [CHINA Xiamen Intermediate People's Court 31 December 1992 (Fish meal case)] (aggrieved seller's lost profits calculated as difference between contract price and price in contract with its supplier).

74. [ITALY Tribunale di Milano 26 January 1995 (Bielloni Castello v. EGO) (Printer device case)] (noting that claim of lost sale conflicted with claim for damages under article 75).

75. [UNITED STATES Federal District Court, Northern District of New York, 9 September 1994 (Delchi Carrier, S.p.A. v. Rotorex Corp.)] (distinguishing between lost sales for which there was sufficiently certain evidence of damage and other indicated orders for which evidence was too uncertain) (see full text of the decision), affirmed by [UNITED STATES Federal Court of Appeals for the Second Circuit 6 December 1995 (Delchi Carrier, S.p.A. v. Rotorex Corp.)].

76. [AUSTRIA Oberster Gerichtshof 14 January 2002 (Cooling system case)] (see full text of the decision).

77. [CHINA CIETAC Arbitration Award of 30 October 1991 (Roll aluminum and aluminum parts case)] (rental of machinery by buyer's sub-buyer not foreseeable by breaching seller).

78. [GERMANY Oberlandesgericht Bamberg 13 January 1999 (Fabric case)] (breaching party could not foresee that late delivery would require processing in Germany rather than Turkey).

79. [SWEDEN Stockholm Chamber of Commerce Arbitration Award 107/1997 of 1998 (Steel bars case)] (aggrieved buyer's payments to freight forwarder exceptionally large and therefore reduced by 50 per cent).

80. [SWEDEN Stockholm Chamber of Commerce Arbitration Award 107/1997 of 1998 (Steel bars case)] (aggrieved buyer's attorneys' fees for dispute with freight forwarder).

81. [GERMANY Bundesgerichtshof 25 June 1997 (Stainless steel wire case)] (expense of resurfacing grinding machine not foreseeable because not reasonable in relation to price of wire to be ground).

82. [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry, Award 406/1998 of 6 June 2000 (Goods case)] (buyer's damages for lost profit reduced to 10% of price because breaching seller did not know terms of sub-sale).

83. [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry, Award 54/1999 of 24 January 2000] (seller could not foresee inspection abroad which was alleged to lead to a loss of reputation of the goods sold).

84. [GERMANY Oberlandesgericht Köln 21 May 1996 (Used automobile case)] (the seller of goods to a retail buyer should foresee that the buyer will resell the good). See also [GERMANY Landgericht Aachen 14 May 1993 (Electronic hearing aid case)] (buyer who failed to take delivery of electronic ear devices could foresee the seller's delivery losses) (see full text of the decision).

85. [GERMANY Arbitration-Schiedsgericht der Handelskammer Hamburg, 21 March 1996 and 21 June 1996 (Chinese goods case)] (tribunal assumed, in its discretion as provided by domestic law, that the amount of loss caused could be foreseen) (see full text of the decision).

86. [AUSTRIA Oberster Gerichtshof 28 April 2000 (Jewelry case)] (breaching buyer can foresee that aggrieved seller of fungible goods would lose its typical profit margin).

87. [SWITZERLAND Handelsgericht des Kantons Aargau 26 September 1997 (Cutlery case)] (dissent argues that seller had not sufficiently proven the amount of its damages).

88. [AUSTRALIA Supreme Court of Queensland 17 November 2000 (Scrap steel case)] (see full text of the decision).

89. See [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry, Award 406/1998 of 6 June 2000 (Goods case)] (aggrieved buyer had burden); [GERMANY Oberlandesgericht Bamberg 13 January 1999 (Fabric case)] (aggrieved party failed to carry burden); [FRANCE Cour d'appel, Grenoble 4 February 1999 (Orange juice case)] (aggrieved party carried burden of proof) (see full text of the decision); [ITALY Tribunale di Pavia 29 December 1999 (High fashion textiles case)] (aggrieved party failed to carry burden); [GERMANY Oberlandesgericht Celle 2 September 1998 (Vacuum cleaners case)] (aggrieved party failed to produce evidence of actual loss under article 74 or current market price under article 76); [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry, Award 407/1996 of 11 September 1998 (Goods case)] (aggrieved buyer established amount of loss) (see full text of the decision); [RUSSIA City of Moscow Arbitration Court 3 April 1995 (Petroleum case)] (aggrieved buyer substantiated relevant current price and currency conversion rate).

90. [GERMANY Bundesgerichtshof 9 January 2002 (Powdered milk case)] (breaching seller failed to show conformity at time risk shifted to buyer).

91. [GERMANY Oberlandesgericht Bamberg 13 January 1999 (Fabric case)] (aggrieved buyer had burden of establishing damages).

92. [FINLAND Helsingin hoviokeus (Helsinki Court of Appeals) 26 October 2000 (Plastic carpets case)] (grounds for recovery were governed by the CISG, but the calculation of damages was governed by article 17 of the Finnish Law of Civil Procedure); [SWITZERLAND Bezirksgericht der Sanne 20 February 1997 (Spirits case)] (applicable domestic law determines how to calculate damages when amount cannot be determined); [UNITED STATES Federal District Court, Northern District of New York, 9 September 1994 (Delchi Carrier, S.p.A. v. Rotorex Corp.)] (sufficient evidence [under common law and law of New York] to estimate the amount of damages with reasonable certainty), affirmed [UNITED STATES Federal Court of Appeals for the Second Circuit 6 December 1995 (Delchi Carrier, S.p.A. v. Rotorex Corp.)].

93. [GERMANY Oberlandesgericht München 28 January 1998 (Automobiles case)] (applicable law, not Convention, determines whether set-off permitted); [GERMANY Oberlandesgericht Koblenz 17 September 1993 (Computer chip case)] (domestic law applicable by virtue of private international law rules determines whether set off allowed).

94. [GERMANY Oberlandesgericht Hamm 9 June 1995 (Window elements case)] (set-off permitted under applicable national law; counterclaim determined by reference to Convention). But see [GERMANY Landgericht Trier 12 October 1995 (Wine case)] (counterclaim arose under Convention; set-off permitted under Convention).

95. [GERMANY Oberlandesgericht Hamburg 26 November 1999 (Jeans case)] (buyer's counterclaim set off against seller's claim for price); [GERMANY Oberlandesgericht Celle 2 September 1998 (Vacuum cleaners case)] (buyer damages set off against price); [SWEDEN Stockholm Chamber of Commerce Arbitration Award 107/1997 of 1998 (Steel bars case)] (damages for non-conformity set off against claim for price); [GERMANY Oberlandesgericht München 9 July 1997 (Leather goods case)] (buyer's counterclaim would have been allowable as set off had seller breached). See also [GERMANY Oberlandesgericht Jena 26 May 1998 (Live fish case)] (implicitly recognizing the possibility that buyer's tort claim could be raised in order to be set off against seller's claim for the price, but applying CISG notice provisions to bar tort claim).

96. [FRANCE Cour d'appel Grenoble 23 October 1996 (Stock equipment: live stock pens, drinking troughs, etc. case)] (deriving general principle from article 57(1) that place of payment is domicile of creditor); [GERMANY Oberlandesgericht Düsseldorf 2 July 1993 (Veneer cutting machine case)] (deriving general principle on place of payment from article 57(1)).


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