MEMORANDUM FOR CLAIMANT
MEMORANDUM FOR CLAIMANT
MEMORANDUM FOR CLAIMANT
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Rheinische Friedrich-Wilhelms-Universität Bonn<br />
D. <strong>CLAIMANT</strong> did not fail to take measures to mitigate its loss according to Art. 77<br />
CISG<br />
92. Since RESPONDENT bears the burden of proof if it wants to invoke Art. 77 CISG<br />
[Schlechtriem et al, Art. 77 note 12], unless RESPONDENT raises this issue, it need not be<br />
discussed in detail. However, it is obvious that due to the lost volume situation <strong>CLAIMANT</strong><br />
did not fail to mitigate its loss as stipulated in Art. 77 CISG. There were no mitigation<br />
measures that were “reasonable in the circumstances to mitigate the loss", Art. 77 CISG [cf.<br />
Saidov, II.4.(d)]. The only mitigation measure one could think of would have been finding a<br />
substitute buyer and reselling the polypropylene film originally reserved for RESPONDENT.<br />
However, as shown above [cf. paras. 85, 86], no sale following RESPONDENT’s breach can<br />
be regarded as a resale because each and every subsequent sale would have been made even if<br />
RESPONDENT had not breached the contract with <strong>CLAIMANT</strong>. Accordingly, no subsequent<br />
transaction could help to avoid <strong>CLAIMANT</strong>’s loss. Accordingly, <strong>CLAIMANT</strong> did not fail to<br />
mitigate the damages. Thus, it is entitled to recover the entire lost profit.<br />
93. After all, <strong>CLAIMANT</strong> is entitled to claim damages in the amount of $ 575,477.98.<br />
VIII. <strong>CLAIMANT</strong> is entitled to interest on the damages<br />
94. Art. 78 CISG grants the right to claim interest on damages (A.). The period of time during<br />
which interest has to be charged begins with the date when the damages occurred and ends<br />
with payment (B.).<br />
A. Art. 78 CISG grants the right to claim interest on damages<br />
95. Art. 78 CISG grants the right to interest on any “sum that is in arrears”. This wording<br />
includes damages that are due even though such damages are not explicitly mentioned in Art.<br />
78 CISG [Schlechtriem et al, Art. 78 note 15]. Accordingly, it is not a requirement for the<br />
right to claim interest that there is a claim liquidated or established by judgment [Delchi<br />
Carrier SpA v. Rotorex Corporation (U.S.); Margon Srl v. VN Sadelco (Belgium);<br />
Commercial Court Zürich, 5 February 1997 (Ch); Arbitral Award 52/97, 10 December 1997<br />
(Austria)].<br />
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