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

inspection, [see supra § II.A]. Even though CLAIMANT had evidence of the corrosion of the
machines long before it reached the current extent, [Claimant’s Ex. 6], there is no evidence that
CLAIMANT attempted to contact RESPONDENT or any other experts until the machines were
seriously damaged. Thus it was not RESPONDENT’s actions, but rather CLAIMANT’s, that are
to blame for the damage.
54. Moreover, even if RESPONDENT were to blame for the current state of the Model 14
machines, damages would be sufficient to compensate CLAIMANT for any harm suffered.
CLAIMANT incorrectly states that it is now impossible for the machines to be put to any
“reasonable use.” [Memorandum for Claimant 49]. In fact, at least two Model 14 machines
are currently usable for production line packaging. [Engineer’s Report]. Moreover, even if the
other four machines are not presently usable, damages could easily compensate any of
CLAIMANT’s losses. Avoidance is not appropriate in such a situation.
55. CLAIMANT also alleges that the purpose of its contract with RESPONDENT was
“frustrated since CLAIMANT was unable to satisfy the main contract with A2Z.”
[Memorandum for Claimant 48]. However, CLAIMANT presents no evidence for this
proposition beyond than the bare assertion of its counsel. [See Letter of Joseph Langweiler, 24
Sept. 2003]. Furthermore, even if it is true that CLAIMANT was unable to satisfy its contract, it
has only itself to blame; as explained above, the damage to the machines was a result of
CLAIMANT’s misuse of the machines and failure to conduct a proper inspection. [See supra
53].
B. No “substantial detriment” to CLAIMANT was foreseeable to RESPONDENT.
56. Even if CLAIMANT were able to persuade the Tribunal that RESPONDENT caused it
substantial detriment, CLAIMANT could not prove its claim of fundamental breach unless the
detriment was foreseeable to a reasonable person in RESPONDENT’s circumstances. [Art. 25
CISG; Duncan 1379; Koch 265]. Since none of the harm of which CLAIMANT complains was
objectively or subjectively foreseeable, its claim must fail.
57. Article 25 CISG does not explicitly state the relevant time for applying the foreseeability
inquiry. [Gabriel 295]. The majority of commentators agree that the relevant question is
whether the harm could reasonably have been foreseen at the formation of the contract.
[Enderlein/Maskow 116; Koch 266; Piche 530; Schlechtriem 180; Speidel 440-442; Will 220].
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