Equapack, Inc. v. Medi-Machines S.A. Memorandum for Medi ...

eflects this characteristic. CLAIMANT did not request, nor was the contract formed, for
machines with a different product path. CLAIMANT only mentioned price and delivery as
“essential elements” of its purchasing decision. [Claimant’s Ex. 1]. The Model 14 machines
were the least expensive machines RESPONDENT could offer at the time of CLAIMANT’s
Invitation, [Proc. Order 3, Clarification 33], were available for immediate shipment,
[Claimant’s Ex. 2], and were capable of packaging all of the goods within the range stated by
CLAIMANT [see supra § I.A.1].
a) The adequacy of the Model 14 machines’ processing speed must be judged by comparison to
machines of a similar design.
25. The processing speeds of the Model 14 machines should be compared to the processing
speeds of similar machines and not to machines having polished product paths. Under the CISG,
the seller has a duty to deliver goods of the quality required by the contract. [Art. 35(1) CISG].
Sellers have an obligation to deliver goods at least of average fitness. [Enderlein/Maskow 144].
The CISG permits variations in quality, as long as they do not fall substantially below the
standard that can reasonably be expected according to the price and other circumstances.
[Netherlands Arbitration Institute, 15 Oct. 2002; BG, 28 Oct. 1998 (Switzerland);
Enderlein/Maskow 144].
26. Based on the report of the expert appointed by the Tribunal, CLAIMANT argues that
RESPONDENT delivered auger-feeder machines that were below industry average for
processing speeds. [Memorandum for Claimant 39-43]. Although RESPONDENT is not
challenging the data contained in the expert’s report, RESPONDENT would like to point out that
the expert’s report incorrectly compared the processing speeds of the Model 14 machines, which
have an unpolished product path, with auger-feeders containing a polished product path.
[Engineer’s Report]. Auger-feeders with a polished product path have average processing
speeds of 180 bags per minute for both fine and coarse products. [Engineer’s Report].
According to the expert, the reason the Model 14 machines did not reach such average
processing rates during testing is “due to the fact that the metal parts of the product paths within
the machine are not highly polished” and “similar machines are available with highly polished
and chromium plated product paths.” [Engineer’s Report]. However, machines with highly
polished and chromium plated product paths are not similar to the Model 14 machines. The
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