MEMORANDUM FOR CLAIMANT

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UNIVERSIDAD NACIONAL DE ASUNCIÓN • MEMORANDUM FOR CLAIMANT sole obligation to deliver squid as required by the contract (i.e. as per sample and in the 100- 150 g range). There were no acts or omissions from CLAIMANT that could have caused RESPONDENT‘s failure to perform [UNCITRAL Digest Art. 80]. Secondly, CLAIMANT did not contribute to RESPONDENT‘s failure to deliver the non-conforming squid. CLAIMANT‘S specifications regarding the quality of the squid were clear and precise, in such a manner that said specifications could not in any way have led to RESPONDENT‘S failure. Given this situation, RESPONDENT‘s breach of the contract is not exempted by Art. 80 CISG. 148. CONCLUSION ON ISSUE IV: RESPONDENT‘s contractual breach was fundamental enabling CLAIMANT to avoid the contract under Arts. 49 and 51(2) CISG. CLAIMANT preserved the squid in accordance with Art. 82 CISG and has thus not lost the right to declare the contract avoided. CLAIMANT‘s notice of avoidance was CISG compliant. CLAIMANT is entitled to rely on RESPONDENT's failure to perform, because said failure was not caused by an act or omission of CLAIMANT‘s regarding Art. 80. V. CLAIMANT TOOK ALL NECESSARY MEASURES TO MITIGATE LOSSES AND IS ENTITLED TO DAMAGES UNDER ART. 45 CISG 149. In accordance with Art. 77 CISG, CLAIMANT must take the steps that a reasonable creditor acting in good faith would have taken under the same circumstances [UNCITRAL Digest] so as to mitigate the losses caused by the failure of RESPONDENT to comply with the contract. In compliance with this principle CLAIMANT took all measures that were reasonable to mitigate the losses [A.]. In any case, the burden of the proof of lack of mitigation lies on RESPONDENT, who must provide detailed facts and supporting evidence [B.]. A. CLAIMANT took all measures that were reasonable to mitigate the losses 150. Article 77 CISG requires that a party relying on breach of contract take measures as are reasonable in the circumstances to mitigate the loss. This criterion of reasonableness has been said to be that of a prudent person in the position of the party claiming damages [Huber/Mullis p. 290], or, in other words the bona fides (good faith) conduct that could have been expected from a reasonable person in the position of the claimant under the same circumstances [OG 06/02/96]. 151. This raises the question: What kind of business person is CLAIMANT? CLAIMANT is a company whose line of business includes the sale of supplies to fishing fleets operating in Mediterraneo, including the supply of bait to the long-line fisheries and the production of pelagic, wet salted and dry fish for human consumption [R. for A. ¶2]. In regard to the bait, 30
UNIVERSIDAD NACIONAL DE ASUNCIÓN • MEMORANDUM FOR CLAIMANT the Mediterraneo long-liners use both mackerel and squid [R. for A. ¶2]. The sale of squid for human consumption (as seafood) is not part of CLAIMANT‘s line of business. 152. We must recall that the major portion of squid delivered by RESPONDENT was unfit for bait and the lesser portion that resulted adequate for this purpose could not however be sold even at a discount price. The long-liners had in fact outweighed the sales price to the risk of purchasing undersized bait that would give poor results and that in the long run, despite a discount price, could result more costly. 153. In this situation, a reasonable person like CLAIMANT to mitigate the losses had only two options, conserve the squid and await RESPONDENT‘s instructions and, bearing in mind that the entire stock was suitable for human consumption [Cl. Ex. 9], it could attempt to sell some of the lot as human foodstuff. 154. In this respect, upon receiving TGT‘s Report [Cl. Ex. 8], in an act of good faith CLAIMANT immediately informed RESPONDENT by email that it would store the squid delivered in its warehouse until November, and that at that point it would have to rent out additional warehouse space at its expense while awaiting instructions in regard to the disposition of the squid. CLAIMANT also mentioned that it would seek to sell the squid on RESPONDENT‘s account [Cl. Ex. 8]. 155. However, CLAIMANT did not sell squid as seafood in its line of business as it lacked a local or international market in which to place the delivered goods; the local market of squid for human consumption was already saturated [R. for A. ¶20], and demand was small, especially because restaurants are accustomed to buying squid by the kilo and not by the tonne [Cl. Ex. 10 ¶15], thus placing 20 tonnes of squid in the seafood market for someone like CLAIMANT was utterly unachievable. Consequently, despite CLAIMANT‘s efforts it did not achieve to sell any of the squid in the local market [R. for A. ¶20; Cl. Ex. 10 ¶15]. 156. In spite of this, CLAIMANT did not rest inactive, exceeding the standards of its duty to mitigate losses, it did what was at the point the only reasonable alternative for someone in its position, it turned to a third party with proper contacts outside of Mediterraneo (Reliable Trading House) and requested that they sell as much of the squid as they possibly could in any foreign market [Cl. Ex. 10 ¶15], through this alternative it succeeded in selling 20 tonnes of squid, the equivalent to 10% of the lot delivered [Cl. Ex. 10 ¶15; St. of D. ¶18]. 157. Though the amount sold is but a small portion of the entire delivery, for the claim of damages under Art. 45(1)(b) CISG to be awarded it is only necessary that the buyer undertakes all reasonable measures, even if these measures have been unsuccessful[Huber¶12]. 31
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MEMORANDUM FOR CLAIMANT

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