|
||||||||||||||||||
| Abstract | ||||||||||||||||||
| ||||||||||||||||||
| In order to perform a contract with an Austrian enterprise, a German buyer ordered via fax from a US (Massachusetts) seller eleven computer components, indicating the price of five of the components. The seller delivered only five out of the ordered eleven components. The German buyer refused to pay the price of the five components, arguing that as a consequence of the partial delivery it had to obtain substitute goods to fulfil the contract with the Austrian enterprise. The US seller claimed payment of the price.
The Court held that the contract was governed by CISG, as at the time of the conclusion of the contract the parties had their places of business in contracting States (Germany and US) (Art. 1 (1)(a) CISG). The Court left open whether a contract had been concluded in respect of eleven or five computer components. The Court held that for partial delivery to constitute a fundamental breach giving the right to avoid the contract, the breach must deprive the buyer of what it was entitled to expect under the entire contract. In this case, as the purpose of the contract could be fulfilled by the buyer obtaining substitute goods, there was no fundamental breach (Arts. 25 and 51(2) CISG). The seller was therefore entitled to the payment of the price (Art. 53 CISG). In addition, the Court granted the seller the right to interest (Art. 78 CISG). The interest rate was determined in accordance with the law applicable by virtue of German private international law rules (Massachusetts law as the law chosen by the parties). The interest accrued from the expiration of the additional period of time fixed by the seller for performance. |