MEMORANDUM FOR CLAIMANT

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Rheinische Friedrich-Wilhelms-Universität Bonn VI. RESPONDENT was in breach of its obligations under the contract 76. As shown above, on 3 April 2001 CLAIMANT and RESPONDENT concluded a contract of sale for 1350 tons of polypropylene film, the price being $ 1,900 per ton with a 4% discount. RESPONDENT’s obligations under this contract were to pay the price and to take delivery of the goods, Artt. 53 et seq. CISG. RESPONDENTS’s fax of 2 May 2001 was an anticipatory breach according to Art. 72(1) CISG (A.) This fax was a repudiation of the contract (B.), and RESPONDENT was not entitled to refuse performance (C.). A. RESPONDENT’s fax of 2 May 2001 was an anticipatory breach of contract 77. With its fax of 2 May 2001 RESPONDENT repudiated and thereby breached the contract between the parties according to Art. 72(1) CISG. This article refers to a situation where “it is clear that one of the parties will commit a fundamental breach”. Such a future fundamental breach may be clear because of the words or actions of the party which constitute a repudiation of the contract [Secretariat Commentary on 1978 Draft Con. Art. 63, para. 2]. Accordingly, one party’s express and definite refusal to perform its obligations constitutes a fundamental breach of contract, except where the party is entitled to refuse performance [Zürich Chamber of Commerce, 31 May 1996 (Ch); OLG Düsseldorf, 10 February 1994 (Germany); Schlechtriem et al, Art. 25, note 17, 22; Stoll, RabelsZ 1998, pp. 624 et seq.; Koch, p. 256]. B. RESPONDENT’s fax was an anticipatory repudiation of the contract concluded on 3 April 2001 78. Like every statement or conduct of the parties relevant under the CISG, the fax has to be interpreted with regard to the guidelines of Art. 8 CISG. RESPONDENT stated in the fax that it had “. . . placed an order with Polyfilm GmbH for the polypropylene film that (it) had expected to purchase from (CLAIMANT)” [CLAIMANT’s Exhibit No. 10]. This statement unequivocally proves RESPONDENT’s intent not to perform any obligations under its contract with CLAIMANT. Moreover, the fact that RESPONDENT had entered into another contract for the supply of the same goods it was to receive from CLAIMANT makes clear that 27
Rheinische Friedrich-Wilhelms-Universität Bonn the refusal was meant to be definite. Thus, the statement RESPONDENT made in its fax of 2 May 2001 can reasonably be interpreted only as an express and definite refusal to perform any obligation under the contract. C. RESPONDENT was not entitled to refuse performance 79. Since the contract concluded on 3 April 2001 contained a 4% discount, RESPONDENT had no right to make its performance dependent on an 8% discount. Furthermore, CLAIMANT had complied with all of its own obligations under the contract until receiving RESPONDENT’s fax of 2 May 2001. There can be no doubt that CLAIMANT was ready, willing and able to perform its obligations, and that it would have done so absent RESPONDENT’s anticipatory repudiation. CLAIMANT had already booked space for shipment of the first installment [CLAIMANT’s Exhibits No. 6, No. 9]. Thus, there was neither breach of contract nor any other misconduct on behalf of CLAIMANT that could have given RESPONDENT a right to avoid the contract according to Art. 49 CISG. Likewise, RESPONDENT had no right to claim that the contract was invalid for any reason under the domestic law of Equatoriana, which applies to the contract as far as its validity is concerned, Art. 4(a) CISG. In particular, the domestic law of Equatoriana does not provide for invalidity of the contract under theories of mistake or otherwise [Procedural Order No. 2, Clarification No. 36]. Consequently, RESPONDENT had no right to repudiate the contract or to refuse performance of its obligations respectively. Thus, its fax of 2 May 2001 constituted a breach of contract. VII. EQUAFILM is entitled to claim damages for lost profit in the amount of $ 575,477.98 80. As a consequence of RESPONDENT’s breach, CLAIMANT is entitled to claim damages (A.). Since the damages have to be calculated according to Art. 74 CISG, CLAIMANT has the right to recover its loss of profit, i.e. $ 575,477.98 (B.). RESPONDENT could foresee that it would cause such damages by its repudiation of the contract (C.). Since CLAIMANT was in a lost volume situation, it did not fail to take measures to mitigate its loss (D.). Thus, CLAIMANT is entitled to claim damages in the amount of $ 575,477.98. 28
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On Behalf of TENTH ANNUAL WILLEM C.
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MEMORANDUM FOR CLAIMANT

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