MEMORANDUM FOR CLAIMANT

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UNIVERSIDAD NACIONAL DE ASUNCIÓN • MEMORANDUM FOR CLAIMANT advice and it was utterly reasonable of CLAIMANT to do so as everything indicated that it was safe to rely on RESPONDENT‘s judgement [Maley p. 119] (see also ¶¶61,62). 90. RESPONDENT has consequently also failed against the benchmark of Art. 35(2)(b) CISG. iii. The squid did not possess the qualities of the squid RESPONDENT held out to CLAIMANT as a sample [Art. 35(2)(c) CISG] 91. Apart from being an indisputable contractual provision RESPONDENT was absolutely bound to observe under Art. 35(1) CISG [Bianca p. 276]—as the Order Form and Sale Conformation [Cl. Ex. 3, 4] tallied exactly with each other in this respect [arts. 18(1), 19(2) CISG]—, Art. 35(2)(c) imposed on RESPONDENT the obligation to deliver squid whose qualities precisely correspond to those of the squid in the sample it held out to CLAIMANT. Nevertheless, the supplied squid lacked a main feature of the squid RESPONDENT showed CLAIMANT as way of a sample [1.]. RESPONDENT contends that the sample was of unsized squid just like the squid it delivered [2.]. 1. The delivered squid lacked a main feature of the squid in the sample 92. On the one hand, the vast majority of the squid in the sample RESPONDENT lured CLAIMANT into the contract with fell within the 100-150 g range [R. for A. ¶14]; on the other, a substantial portion of the squid delivered did not [R. for A. ¶18, Cl. Ex. 8]. 93. The weight was one of the key features and the most conspicuous property of the squid found in the sample. By failing to deliver squid with a quality inherent in the sample that would have been apparent on a reasonable examination, RESPONDENT breached Art. 35(2)(c) [Huber/Mullis p.139; Delchi Carrier v. Rotorex ; Marble slabs case]. 2. RESPONDENT contends that the sample and the supplied squid were unsized 94. RESPONDENT maintains that the sample was of unsized squid. Unsized squid are squid that were not grouped according to their weight and that are sold in bulk. RESPONDENT affirms that, at that early stage of the harvesting season, CLAIMANT should have expected that unsized 2008 squid would tend to be small (see also ¶74). However, CLAIMANT ignored and could not have known that the sample was of unsized squid [a.]; either way, the fact that the sample was of unsized squid is immaterial to the case [b.]. a. CLAIMANT ignored and could not have known that the sample it was shown was of unsized squid 20
UNIVERSIDAD NACIONAL DE ASUNCIÓN • MEMORANDUM FOR CLAIMANT 95. CLAIMANT did not know that the sample of squid was unsized and neither could CLAIMANT have been aware of this fact [Art. 8(1) CISG]. RESPONDENT never pointed out to CLAIMANT that the sample was of unsized squid. All that the sample‘s label, ‗illex danubecus 2007‘ [PO 3 ¶32], indicated was that the sample consisted of Danubian squid caught in the year 2007; nothing in this short legend suggested that the sample was unsized. A reasonable person in CLAIMANT‘s position and in view of the circumstances would not even have suspected that the sample was of unsized squid [Art. 8(2)(3) CISG]. b. The fact that the sample was of unsized squid is immaterial to the case 96. On any account, the fact that the sample was of unsized squid has no bearing whatsoever on RESPONDENT‘s obligation to deliver squid mostly within the 100-150 g bracket. 97. Just like not all of the squid in the sample weighed 100-150 g, under the contractual provision ‗[a]s per sample already received‘ [Cl. Ex. 4] and Art. 35(2)(c) CISG all RESPONDENT was obliged to deliver was a lot in which the proportion of squid within and without the 100-150 g bracket corresponded to that of the sample. RESPONDENT would have achieved this by striking the correct balance in the consignment between unsized squid from the late and early stages of the 2007 and 2008 harvesting seasons. By choosing to deliver 60% of undersized 2008 squid, RESPONDENT patently disregarded this obligation [Cl. Ex. 8]. 98. CONCLUSION ON ISSUE II: RESPONDENT failed to deliver squid of the size required by the contract. Hence, RESPONDENT did not comply with Art. 9(2) CISG; and, either Art. 35(1) CISG or Art. 35(2) CISG. III. THE EXAMINATION OF THE SQUID AND THE NOTICE OF NON-CONFORMITY WERE CISG COMPLIANT 99. The examination of the squid was made in accordance with Art. 38 CISG [A.]. CLAIMANT notified RESPONDENT pursuant to Art. 39(1) CISG of the nature of the lack of conformity within a reasonable time after it was discovered [B.]. Notwithstanding, if the examination or notification of non-conformity are found to have been insufficient, RESPONDENT would still be liable for the lack of conformity under Art. 40 CISG [C.]. A. The examination of the squid was made in accordance with Art. 38 CISG 100. CLAIMANT examined the squid in accordance with Art. 38(1) CISG [i.]. Alternatively, if CLAIMANT‘s examination is found wanting, the Mediterranean long-liners were swift in inspecting the squid after their reception [ii.]. i. CLAIMANT examined the squid in accordance with Art. 38(1) CISG 21
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MEMORANDUM FOR CLAIMANT

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