A Spanish seller and a Cuban buyer concluded a contract for the sale by installments of 2386 liters of soy oil. As the buyer suspended payments after having received only a third of this quantity, the seller declared the contract partially avoided and brought an action claiming damages. The first instance Spanish Court granted the seller’s claim awarding damages, including the difference between the contract price of the unsold quantity of oil and the price obtained for the same oil by the seller in four substitute transactions. The buyer appealed alleging, inter alia, that the four resales made by the seller could not be considered as substitute transactions and that price there obtained was not lower than the original contract price if correctly calculated.
The appellate Court held that the first resale could not be considered as a substitute sale under art. 75 CISG, because it had been made by the seller more than 30 days before contract avoidance, when the parties were still in good contractual relationships; the Court observed that it was not even proved that, according to seller's allegations, the seller made that sale anticipating the buyer's breach, in order to mitigate the resulting loss according to art. 77 CISG. The Court confirmed the other substitute sales damages awarded to the seller, holding that the comparison of FOB sales prices was correct according to art. 75 CISG, because transport costs were not included.
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