A German seller and a Swiss buyer concluded a contract for the supply of plastic material (PVC). The seller however did not deliver and the buyer declared the contract avoided, refusing to pay the price. The seller commenced an action to recover payment and the buyer counterclaimed damages.
The Court held that the buyer was entitled to avoid the contract for non performance by the seller and to obtain damages. As to the calculation of the damages suffered by the buyer, the Court observed that lacking a cover purchase by the buyer, the provisions in Art. 76 applied, according to which the buyer was entitled to the difference between the price fixed by the contract and the current average market price at the time of avoidance of the contract. The buyer was further granted interest on such sums (Art. 78 CISG), accruing from the time damages were due, at the rate determined by the domestic law otherwise applicable to the contract. |