Case number: 214
Article number: sales convention / 45 (1) (b); 49 (1) (b); 73 (1) (2); 74; 81 (2); 84 (1)
Thessaurs issue:
Country of decision: Switzerland
Year of decision: 1997
Type of decision: Judicial decision

Case 214: CISG 45 (1) (b); 49 (1) (b); 73 (1) (2); 74; 81 (2); 84 (1)
Switzerland: Handelsgericht des Kantons Zürich, HG950347
5 February 1997
Original in German
Unpublished
Abstract published in German in 1 Schweizerische Zeitschrift für Internationales und Europäisches Recht 75 [1998]
A German plaintiff (buyer) had entered into a contract with a French defendant (seller) for the delivery to Romania of 2 to 4 million liters of sunflower oil per month at a specified price. Although the buyer had paid a timely instalment for the first delivery, the seller did not ship the goods to Romania. The buyer declared the contract avoided and sued the seller for restitution of the first instalment and for damages.

The court held that the buyer had a right to declare the contract avoided as the seller did not deliver the goods and this failure to perform its obligation gave reason to believe that a fundamental breach of contract was to be expected for further instalments (article 49 (1) (b), 73 (1) and (2) CISG). Therefore, the seller had to refund the price (article 81 (2) CISG) of the first instalment. As the buyer had proved that it had the opportunity to resell the first delivery at a higher price per liter, the seller furthermore had to pay damages for profits the buyer could not realize as a consequence of the breach of contract (article 45 (1) (b), 74 CISG).

The court also found that the buyer was not entitled to damages for losses it suffered because of the fluctuating rate of the currency the price had to be paid in. Although it was recognized that currency losses can be damages under article 45 (1) (b) and 74 CISG, the claim for damages in this case was not granted by the court because, pursuant to a general principle (of Swiss tort law), damages for future losses can only be awarded when the amount at least can be estimated. However, the rate of interest the seller had to pay (article 84 (1) CISG) was determined on the basis of the prevailing rate of interest at the seller=s place of business.