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| A Swiss buyer and an Austrian seller concluded a contract for the sale of a Lamborghini automobile. As the seller refused to perform the contract, the buyer brought an action claiming damage arisen occurred by a substitute transaction entered with another buyer for the same type of car.
Both the court of first instance and the appellate court ordered the seller to pay damages according to the domestic law applicable to the contract. The Supreme Court confirmed that CISG was not applicable to the contract in accordance with Art. 2(a) CISG since the car had been bought for the buyer's personal use. By offering an interpretation of personal use, the Court stated that regard had to be given to proposed use and not the actual use understood by the parties. Incidentally the Court pointed out that CISG could have been applicable also in the case at hand if the seller had claimed and given evidence that it neither knew nor ought to have known that the car was bought for the buyer's personal use. |