MEMORANDUM FOR CLAIMANT

UNIVERSIDAD NACIONAL DE ASUNCIÓN • MEMORANDUM FOR CLAIMANT
137. It is also necessary for the non-breaching party to behave in such a manner that would not
affect the breaching party‘s performance throughout the execution of the contract, i.e.
providing crucial and sufficient information so that the intentions of the parties are
understood [Andrew Babiak p. 122]. Claimant has diligently complied with its obligation by
informing that the squid would be used as bait and that the size needed was 100-150 g [Cl.
Ex. 1, 2] [PTA Powder Case].
iii. It was likely for the RESPONDENT to foresee that providing squid
below 100-150 g would cause a substantial detriment to
CLAIMANT
138. Finally, a reasonable person of the same kind in the same circumstances as RESPONDENT
[Art. 25 CISG] would have been able to foresee that a delivery of squid not fulfilling the
required characteristics would not fit for the purpose expressly and impliedly made known to
RESPONDENT. A reasonable person with RESPONDENT‘s vast experience in
Mediterraneo and knowledge of the fishing industry would have known that the size of the
squid would be important to the Mediterranean long-liners [Will p. 217].
139. Therefore, since it is patent that there has been a fundamental breach, CLAIMANT was
entitled to avoid the contract according to Art. 49 CISG.
B. CLAIMANT is entitled to avoid the contract in its entirety according to
Art. 51(2) CISG
140. Avoidance of the entire contract may ‗only‘ be based on fundamental breach [Honnold p.345].
A fundamental breach is a condition for the immediate avoidance of the contract in the case
of non-fulfilment of an obligation [Enderlein / Maskow, p. 111]. As demonstrated above,
RESPONDENT‘s failure to deliver conforming goods amounted to a fundamental breach,
depriving CLAIMANT of the main benefit of the contract ‗as a whole‘; consequently,
CLAIMANT was entitled to avoid the contract according to Art. 51(2) CISG.
C. CLAIMANT complied with the obligations imposed by Art. 82 CISG
141. Article 82 CISG deals with the effect of an aggrieved buyer‘s inability to make restitution of
goods substantially in the condition in which they were delivered. CLAIMANT preserves its
right to declare the contract avoided, as long as the reason for the impossibility or inability to
return the goods in substantially the same condition are not due to CLAIMANT‘S negligence
or deliberate actions [Babiak p. 136]. CLAIMANT has complied with the obligations set by
the mentioned article, in as far as CLAIMANT could have given back what had been
‗supplied under the contract‘ in the same condition it was delivered.
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