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2008 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",overriding 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 Art. 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 Arts. 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 delivery.[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 estitutionary 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 must, under article 84(1), pay interest on the funds until they are restored,[23] although it has been held 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]

6. In many cases where the buyer has properly avoided the contract, tribunals have awarded the aggrieved buyer restitution of the price (or part thereof) that it had paid to the seller.[27] A breaching seller is entitled to the restitution of the goods it delivered to a buyer who thereafter avoided the contract,[28] 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.[29] A seller who properly avoided the contract has also been awarded restitution of the goods it delivered,[30] 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.[31] 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 [32] the parties had mutually agreed to cancel their contract and the seller had given the buyer a refund for a payment check that 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 cancelled. Instead, the court held, the seller's claim was based on unjust enrichment principles and was governed by applicable national law.

Place of restitution; jurisdiction over actions for restitution; risk of loss for goods being returned; currency for restitution of payments

7. Several decisions address the problem of where the obligation to make restitution under article 81(2) should be performed. This question has arisen either as a direct issue, or as a subsidiary matter related to a courts 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 lawspecifically (in this case), the law governing the enforcement of a judgement ordering such restitution.[33] 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)) did not contain 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.[34] 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 the place of the delivery obligation under article 31 of the CISG.[35] 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 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.[36] The court also found this result consistent with the principles of article 82, which creates very broad exceptions to an avoiding buyer's obligation to return goods in their original condition and thereby suggests 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, and at the exchange rate specified in the contract for payment of the price to the seller.[37]

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.[38] 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.[39] Another decision stated that an avoiding seller need not make restitution of the buyer's payments until delivered goods were returned.[40]

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.[41] 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.[42] 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_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. [AUSTRIA Oberster Gerichtshof 29 June 1999 (Dividing wall panels case)].

2. Id.; see also [GERMANY Landgericht Düsseldorf 11 October 1995 (Generator case)] (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, Award 82/1996 of 3 March 1997 (Rolls of chips packing for food mixtures and spices for production of chips case)]; [AUSTRIA Oberster Gerichtshof 29 June 1999 (Dividing wall panels case)]; [GERMANY Oberlandesgericht München 28 January 1998 (Automobiles case)] (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 [GERMANY Oberlandesgericht Celle 24 May 1995 (Used printing press case)], 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 [AUSTRIA Oberster Gerichtshof 29 June 1999 (Dividing wall panels case)].

4. [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry, Award 82/1996 of 3 March 1997 (Rolls of chips packing for food mixtures and spices for production of chips case)]; [AUSTRIA Oberster Gerichtshof 29 June 1999 (Dividing wall panels case)].

5. [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry, Award 82/1996 of 3 March 1997 (Rolls of chips packing for food mixtures and spices for production of chips case)].

6. [AUSTRIA Oberster Gerichtshof 29 June 1999 (Dividing wall panels case)].

7. For general statements regarding the parties release from their obligations upon avoidance see, e.g. [AUSTRIA Oberster Gerichtshof 29 June 1999 (Dividing wall panels case)]; [GERMANY Oberlandesgericht Frankfurt am Main 17 September 1991 (Shoes case)] (see full text of the decision); [SWITZERLAND Bezirksgericht der Sanne 20 February 1997 (Spirits case)]; [ICC International Court of Arbitration, Award 9887 of August 1999 (Chemicals case)].

8. [GERMANY Bundesgerichtshof 25 June 1997 (Stainless steel wire case)] (partial avoidance); [SWITZERLAND Bundesgericht 28 October 1998 (Meat case)]; [GERMANY Oberlandesgericht Frankfurt am Main 17 September 1991 (Shoes case)] (see full text of the decision); [ICC International Court of Arbitration, Award 7645 of March 1995 (Crude metal case)]. See also [GERMANY Landgericht Krefeld 24 November 1992 (Shoes case)] (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); [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 International Court of Arbitration, Award 9887 of August 1999 (Chemicals case)].

10. [SWITZERLAND Berzirksgericht der Sanne, 20 February 1997 (Spirits case)]. See also [SWITZERLAND Arbitration Award 273/95, Zürich Handelskammer 31 May 1996 (Aluminum case)] 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: [GERMANY Oberlandesgericht Köln 21 August 1997 (Aluminium hydroxide case)]; [GERMANY Landgericht München 20 March 1995 (Rancid bacon case)]; [GERMANY Bundesgerichtshof 4 December 1996 (Printing system and software case)]; [GERMANY Oberlandesgericht Frankfurt a.M. 18 January 1994 (Shoes case)]. See also [GERMANY Oberlandesgericht Düsseldorf 10 February 1994 (Shirts case)] (implying that, because buyer did not validly avoid the contract it was not released from its obligation to pay) and [GERMANY Oberlandesgericht München 2 March 1994 (Coke case)] (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 Arbitration Award 273/95, Zürich Handelskammer 31 May 1996 (Aluminum case)].

12. [GERMANY Bundesgerichtshof 4 December 1996 (Printing system and software case)] (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 (Rancid bacon case)] (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)); [GERMANY Oberlandesgericht Düsseldorf 10 February 1994 (Shirts case)] (buyer lacked right to avoid because its notice of lack of conformity was not timely under article 39) (see full text of the decision); [GERMANY Oberlandesgericht München 2 March 1994 (Coke case)] (buyer did not have right to avoid because its declaration of avoidance was untimely under article 49(2)); [ICC International Court of Arbitration, Award 9887 of August 1999 (Chemicals case)] (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. [GERMANY Oberlandesgericht Köln 21 August 1997 (Aluminium hydroxide case)] (buyer lacked right to avoid because it either failed to prove or had waived its right to complain of lack of conformity); [GERMANY Oberlandesgericht Frankfurt a.M. 18 January 1994 (Shoes case)], (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); [GERMANY Oberlandesgericht München 2 March 1994 (Coke case)] (buyer had no right to avoid because the inferior quality of the goods did not constitute a fundamental breach); [SWITZERLAND Arbitration Award 273/95, Zürich Handelskammer 31 May 1996 (Aluminum case)] (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 International Court of Arbitration, Award 9887 of August 1999 (Chemicals case)] (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. [AUSTRIA Oberster Gerichtshof 29 June 1999 (Dividing wall panels case)], see also [GERMANY Landgericht Düsseldorf 11 October 1995 (Generator case)] (stating that avoidance changes the contractual relationship into a restitutional relationship [winding up]).

15. [SWITZERLAND Cantone del Ticino Tribunale d'appello 15 January 1998 (Cocoa beans case)] (see full text of the decision); [GERMANY Landgericht Heilbronn 15 September 1997 (Film coating machine case)]; [SWITZERLAND Handelsgericht des Kantons Zürich 5 February 1997 (Sunflower oil case)]; [GERMANY Oberlandesgericht Hamburg 26 November 1999 (Jeans case)]; [AUSTRIA Oberster Gerichtshof 29 June 1999 (Dividing wall panels case)]; [SWITZERLAND Arbitration Award 273/95, Zürich Handelskammer 31 May 1996 (Aluminum case)]; [GERMANY Arbitration-Schiedsgericht der Handelskammer Hamburg, 21 March 1996 and 21 June 1996 (Chinese goods case)] (see full text of the decision).

16. [GERMANY Arbitration-Schiedsgericht der Handelskammer Hamburg, 21 March 1996 and 21 June 1996 (Chinese goods case)] (see full text of the decision).

17. [UNITED STATES Federal District Court, Southern District of New York, 14 April 1992 (Filanto v. Chilewich)] (see full text of the decision).

18. [ICC International Court of Arbitration, Award 9978 of March 1999 (Goods case)].

19. [AUSTRIA Oberster Gerichtshof 29 June 1999 (Dividing wall panels case)].

20. Id.

21. See the Digest for article 82.

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

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

24. [ICC International Court of Arbitration, Award 9978 of March 1999 (Goods case)]; but see [GERMANY Landgericht Landshut 5 April 1995 (Sport clothing case)] 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. [GERMANY Arbitration-Schiedsgericht der Hamburger freundschaftlichen Arbitrage, 29 December 1998 (Cheese case)] (The claimant's claim as buyer under Art. 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); [SWITZERLAND Handelsgericht des Kantons Zürich 5 February 1997 (Sunflower oil case)] (see full text of the decision); [GERMANY Landgericht Düsseldorf 11 October 1995 (Generator case)] (denying buyer restitution because it had not properly avoided the contract); [GERMANY Landgericht Heilbronn 15 September 1997 (Film coating machine case)]; [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry, Award 1/1993 of 15 April 1994]; [GERMANY Landgericht Krefeld 24 November 1992 (Shoes case)]; but see [MEXICO Compromex arbitration 4 May 1993 (Garlic case)] (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 (Generator case)].

27. [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry, Award 1/1993 of 15 April 1994]; [ICC International Court of Arbitration, Award 7660 of 23 August 1994 (Battery machinery case)] (see full text of the decision); [FRANCE Cour d'appel Paris 14 January 1998 (Two elephants case)] (see full text of the decision); [CHINA CIETAC Arbitration Award of 30 October 1991 (Roll aluminum and aluminum parts case)]; [GERMANY Landgericht Heilbronn 15 September 1997 (Film coating machine case)]; [SWITZERLAND Cantone del Ticino Tribunale d'appello 15 January 1998 (Cocoa beans case)] (see full text of the decision); [SWITZERLAND Handelsgericht des Kantons Zürich 5 February 1997 (Sunflower oil case)]; [ICC International Court of Arbitration, Award 6653 of 26 March 1993 (Steel bars case)] (without citing art. 81); [GERMANY Oberlandesgericht Celle 24 May 1995 (Used printing press case)]; [FRANCE Cour d'appel Aix-en-Provence 21 November 1996 (Laminated sheet metal case)] (affirmed in [FRANCE Cour de cassation, 26 May 1999 (Laminated sheet metal case)]; [GERMANY Landgericht Düsseldorf 11 October 1995 (Generator case)]; [FINLAND Käräjäoikeus of Kuopio 5 November 1996 (Butter case)]; [ICC International Court of Arbitration, Award 9978 of March 1999 (Goods case)]; [GERMANY Arbitration-Schiedsgericht der Hamburger freundschatlichen Arbitrage, 29 December 1998 (Cheese case)] (awarding restitution of the buyer's prepayment for a delivery because "[t]he rendered prepayment is, in the meaning of art. 81(2) first sentence CISG, performance of the contract on the part of the claimant as buyer") (see full text of the decision).

28. 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 CIETAC Arbitration Award of 30 October 1991 (Roll aluminum and aluminum parts case)]; [GERMANY Oberlandesgericht Oldenburg 1 February 1995 (Furniture case)] (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).

29. [GERMANY Landgericht Krefeld 24 November 1992 (Shoes case)].

30. [AUSTRALIA Federal Court of Adelaide, 28 April 1995 (Roder v. Rosedown)] (see full text of the decision).

31. [SWITZERLAND Bezirksgericht der Sanne 20 February 1997 (Spirits case)]; [AUSTRALIA Federal Court of Adelaide, 28 April 1995 (Roder v. Rosedown)] (see full text of the decision).

32. [GERMANY Oberlandesgericht München 28 January 1998 (Automobiles case)].

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

34. [FRANCE Cour d'appel Paris 14 January 1998 (Two elephants case)].

35. [GERMANY Oberlandesgericht Hamm 5 November 1997 (In-line skates case)] (see full text of the decision).

36. [AUSTRIA Oberster Gerichtshof 29 June 1999 (Dividing wall panels case)].

37. [ICC International Court of Arbitration, Award 7660 of 23 August 1994 (Battery machinery case)].

38. [CHINA CIETAC Arbitration Award of 30 October 1991 (Roll aluminum and aluminum parts case)] (ordering avoiding buyer to return goods and breaching seller to return price); see also [FRANCE Cour d'appel Aix-en-Provence 21 November 1996 (Laminated sheet metal case)] ("the avoidance of the sale has, as a consequence, the restitution of the goods against restitution of the price").

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

40. [AUSTRALIA Federal Court of Adelaide, 28 April 1995 (Roder v. Rosedown)] (see full text of the decision).

41. [UNITED STATES Federal District Court, Northern District of Illinois, 28 March 2002 (Usinor Industeel v. Leeco Steel Products, Inc.)].

42. [AUSTRALIA Federal Court of Adelaide 28 April 1995 (Roder v. Rosdown)] (see full text of the decision).


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