MEMORANDUM FOR RESPONDENT - CISG Database

46. JS type fuses are functionally identical to JP type fuses for use up to 400 amperes
[Respondent’s Exhibit 1]. The fuse boards delivered under the Contract were likely of equal
value because the JS type fuses used were of similar prices or the same price as JP type fuses
[Respondent’s Exhibit 2]. They were probably of the same quality since they were also
manufactured by Chat Electronics [Procedural Order No. 2, Clarification 26]. The
distribution fuse boards were therefore perfectly suitable for connection to the electricity
supply, and thus of equal utility.
2. The Respondent had no obligation to adhere to any Equatoriana public
law requirements, much less Equalec’s policy, which was neither a
public law requirement nor a term of the Fuse Board Contract.
47. Equalec’s unreasonable requirement that only JP type fuses be used for below 400
amperes was not a term of the Fuse Board Contract. The phrase “lockable to Equalec
requirements” was the only reference to Equalec. As the Claimant explains, this phrase
referred to the fuse boards being securable by padlock so that Equalec would have exclusive
access to the fuses and fuseways inside [Statement of Claim, para. 8; Procedural Order No.
2, Clarification 21]. There was no indication that Equalec would have the special policy of
not supplying electricity where JS type fuses were used for below 400 amperes [Procedural
Order No. 2, Clarification 23]. The Claimant also could not have intended [Article 8 CISG]
for the phrase to mean that the fuse boards must adhere to Equalec’s policy, since even Mr.
Konkler did not know at the conclusion of the contract that Equalec had implemented such a
policy [Statement of Claim, para. 15; Claimant’s Exhibit 3; Claimant’s Exhibit 4]. Since the
policy was not within the contemplation of the Claimant, the Claimant could not have
intended for the policy to be a contractual requirement. The Respondent was therefore not
contractually bound to deliver goods complying with Equalec’s peculiar requirement.
48. Furthermore, Article 35 of the CISG does not require sellers to deliver goods
conforming to the public law regulations in the buyer’s country [Mussel Case (Germany);
Schlechtriem, Bundesgerichtshof; Kruisinga, p. 43-52]. In view of the uncertain legal
situation in the buyer’s country, the buyer cannot assume the seller to have clear knowledge
and corresponding competence in this respect [Schlechtriem, Bundesgerichtshof].
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