On August 20, 1987, an Egyptian buyer and a Yugoslav seller concluded a contract for the sale of 80,000 metric tons of steel bars at an average effective price of US $190.00 per metric ton. The buyer had the option to increase the quantity to 160,000 metric tons at the same price and conditions provided that he declared his option to purchase the additional 80,000 metric tons at the latest by December 15, 1987. On November 26, the buyer informed the seller that he was exercising his option, requiring the delivery of the additional quantity at the originally agreed price. Since the seller refused to sell the goods at the same price, the buyer bought 80,000 metric tons of steel of the same type and dimension from another firm at US $216.50 per metric ton, and claimed compensation in the amount of the price difference.
The court held that CISG did not apply in the case at hand as the contract had been concluded before the Convention's entry into force on January 1, 1988.
Obiter, the court observed that, had Arts. 74 to 77 CISG been considered, 'if the cover purchase is not made in a reasonable manner or within a reasonable time, damages should [have been] calculated as though no substitute transaction [had] taken place, that is to say in conformity with the other dispositions on damages, especially with Art. 74 CISG (which is the general rule for assessing damages). Under certain circumstances, further damages may be claimed according to Art. 74 CISG also beyond the damages that are due on the basis of a purchase in replacement, in keeping with Art. 75 CISG'. |