memorandum for respondent - CISG Database

- 18 - CONTROLS
employees in the air crash Nonetheless, he tried to assemble a new team, but there had been unexpected
problems with an installation on which RELIABLE’S key personnel, qualified to do the installation at
Claimant’s, was committed. 84 Another team from RELIABLE was not available as RELIABLE was a small
firm.
2. CONTROLS Has not Refused to Install Before Expiration of the Additional Period of Time Ending
on 9 October 1996
Additionally, in contrast to Claimant’s assumption, 85 CONTROLS has not refused to install before expiration
of the additional period of time ending on 9 October 1996 as fixed by Claimant. A refusal to deliver
requires that the seller seriously and definitely declares that he will not deliver at all. 86 Moreover, the buyer
bears the onus of proof when alleging a refusal to perform on the seller’s side. 87 Claimant argues that
CONTROLS gave notice in his letter dated 19 September 1996 that he would not be able to finish the
installation until 9 October. 88 However, by the respective letter CONTROLS only informed Claimant that the
installation of the control system would certainly be completed by 30 October 1996, even if CONTROLS had
to turn to another installation firm. 89 Nonetheless, CONTROLS has never ever said that he would not meet his
contractual obligation to install at all. To the contrary, he offered another additional period for performance.
Thus, Claimant’s assumption 90 that he was authorized to declare the contract avoided upon receipt of
CONTROLS’ letter dated 19 September 1996 is ill-founded.
With regard to this assumptions, CONTROLS respectfully draws the Tribunal’s attention to the judgement of
the State Supreme Court Düsseldorf (Germany) 10.02.1994 – No. 6U 119/93 . 91 In this case an Italian seller
informed a German buyer that he could not deliver the goods at the moment. The Court decided that such a
declaration does not meet the legal requirements of a serious and definite refusal to perform. In the case
under consideration, CONTROLS has not even declared that the installation would not have been possible by
his letter dated 19 September 1996. CONTROLS merely informed Claimant about the problems RELIABLE
had.
84
Claimant’s Ex. No. 5; Respondent’s Ex. No. 3.
85
Memorandum for Claimant, at 14.
86
Ulrich Huber, in Schlechtriem/Commentary on the CISG, supra note 7, at 417, 422; Ulrich Magnus, in Staudinger, supra note 43,
at 414; Anton K. Schnyder & Ralf Michael Straub, in Honsell, supra note 5, at 576, 530.
87
Ulrich Huber, in Schlechtriem/Commentary on the CISG, supra note 7, at 422.
88
Memorandum for Claimant, at 13, 14.
89
Claimant’s Ex. No. 5.
90
Memorandum for Claimant, at 14.
91
Judgement of 10 February 1994, Oberlandesgericht Düsseldorf, No. 6U 119/93, reprinted in Neue Juristische Wochenschrift–
Rechtsprechungsreport 506 et seq. (1994).