MEMORANDUM FOR RESPONDENT - CISG Database

3.1]. Since Mr. Stiles’ reliance on Mr. Hart’s statements was reasonable [Supra para 63-66],
the Claimant is precluded from relying on the Writing Clause to deny the oral amendment.
III. THE CLAIMANT IS NOT ENTITLED TO DAMAGES UNDER THE CISG.
75. Even if this Tribunal holds that the Respondent had breached the Fuse Board
Contract, the Claimant is still not entitled to damages under the CISG. The Claimant’s
failure to complain to the Equatoriana Commission of Equalec’s refusal to connect the
electrical supply excuses the Respondent, because the Claimant’s inaction was not
foreseeable [A], and the Claimant had a duty to do so to mitigate its losses [B]. Further, the
Claimant is excused because Equalec’s failure to connect constitutes an impediment beyond
the Respondent’s control [C].
A. THE CLAIMANT MAY NOT RECOVER DAMAGES UNDER CISG, ARTICLE 74
BECAUSE ITS LOSS WAS NOT A FORSEEABLE CONSEQUENCE OF THE
RESPONDENT’S BREACH.
76. Under Article 74, a party is entitled to damages for foreseeable losses suffered by the
other party as a consequence of the breach [Schlechtriem/Schwenzer-Stoll-Gruber, p. 745;
Bianca/Bonnell-Knapp, Article 74, para. 1.4]. It is unclear whether the CISG makes a
distinction between losses that are directly and indirectly caused by the breach
[Bianca/Bonnell-Knapp, Article 74, para. 2.6]. Instead, the criterion of forseeability suffices
to limit the strict objective liability of a promisor for the breach of a contractual promise
[Schlechtriem/Schwenzer-Stoll-Gruber, p. 763]. A party may only be liable for a loss directly
or indirectly caused to another party if that loss was foreseeable [Bianca/Bonnell-Knapp,
Article 74, para. 2.5].
77. Even if the Respondent was in breach of the Fuse Board Contract, the $200,000 cost
incurred by the Claimant in replacing the fuse boards was not a foreseeable consequence of
the Respondent’s provision of JS fuses. Forseeability of loss is determined according to the
facts and matters which the Respondent knew or ought to have known at the time of the
conclusion of the contract [Schlechtriem-1998, p. 554, 567-568; Schneider, footnote 45;
Vékás, p. 164; Saidov, p. 122]. In assessing such knowledge, the usual or intended use by the
buyer should be the decisive factor [Schlechtriem-1986, p. 97].
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