- Russian Federation
- Tribunal of Int'l Commercial Arbitration at the Russian Federation Chamber of Commerce
BUYER'S REMEDIES - FIXING AN ADDITIONAL PERIOD OF TIME FOR PERFORMANCE - REASONABLE PERIOD OF TIME (ART. 47(1) CISG)
[Case CLOUT no. 1638]
A contract for the purchase of goods was concluded between a Dutch seller and a Russian buyer. After making an advance payment, in accordance with the terms of the contract, the buyer argued that the seller had not fulfilled its obligation to deliver the goods, as the seller had not informed the buyer that the goods were placed at the buyer’s disposal. The buyer sent a request to the seller to deliver the goods according to the contract but it did not receive any reply. The buyer thus filed a lawsuit in court to declare the contract avoided pursuant to Article 49(1)(b) CISG and recover the advance payment since the seller had failed to deliver the goods even within the additional period of time fixed by the buyer in accordance with Article 47(1) CISG. The seller counterclaimed to receive compensation for the losses incurred as a result of the buyer’s non-compliance with its obligation to accept delivery of the goods and to receive the outstanding amount of the purchase price. The seller argued that it had sent an official request to the buyer to receive those sums before action was brought to court. The seller also stated that it had never received from the buyer any notice of avoidance of the contract because of its alleged failure to deliver the goods.
The Court held that since the contract was concluded between parties whose place of business was in two different Contracting States and the parties had made reference to the Convention in their contract, the Convention was applicable (Article 1(1)(a) CISG).
The Court further noted that the conduct of the seller did not constitute non-delivery in the sense of Article 49(1) CISG, since the buyer did not prove that the seller had committed a fundamental breach of its obligations (Article 25 CISG) and that the seller had not delivered the goods within the additional period of time fixed by the buyer pursuant to Article 47(1) CISG. Furthermore, the Court found that the additional period of time of ten days fixed by the buyer to deliver the goods was not of reasonable length in light of the eight months production time of the goods sold. For these reasons, the Court quashed the claim of the buyer.
Referring to the counterclaim of the seller, the Court noted that the seller had not provided evidence that it had sent the buyer notice that the goods were at the buyer’s disposal according to the practice that they had established. Referring to Article 80 CISG, the Court thus stated that the seller may not rely on the buyer’s failure to perform to the extent that such failure was caused by the seller’s omission.
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Case law on UNCITRAL texts, A/CN.9/SER.C/ABSTRACTS/176}}