- Russian Federation
- Tribunal of Int'l Commercial Arbitration at the Russian Federation Chamber of Commerce
PARTIAL DELIVERY - BUYER'S RIGHT TO BE REFUNDED THE PRICE PAID FOR UNDELIVERED GOODS
CONTRACTUAL PENALTY CLAUSE - FOR DELAY IN DELIVERY - BUYER NOT ENTITLED TO DAMAGES EXCEEDING THE AMOUNT OF THE PENALTY CLAUSE
DAMAGES - FOR LACK OF CONFORMITY - BUYER'S BURDEN OF PROOF
The seller was to deliver certain goods for a sum which had been paid by the buyer in advance. The buyer received a smaller quantity of goods than had been agreed: 415 pieces of the goods were missing. The buyer requested the Tribunal, with reference to Art. 74 CISG, to order the seller to return the payment of the price of the undelivered goods and to award damages for the damage sustained by the buyer as a result of the seller's breach of the contract with regard to the time of deliver and to the quality of the goods. Damages included the loss of profit on the sale of these goods to the buyer's customers, mainly because the goods were of a seasonal nature.
The Tribunal held that the buyer was entitled to be reimbursed the amount it had paid for the undelivered goods. As regards the claim for damages the Tribunal came to the conclusion that the clause in the contract which stipulated the payment of a penalty in case of a delay in delivery was of an exclusive nature and did not provide for payment of damages in excess of the sum due in accordance with this clause. The Tribunal decided to award damages for the delay only to the limited amount indicated in the penalty clause. The Tribunal refused to award damages relating to the poor quality of the goods since the buyer had not been able to prove the amount of the loss sustained as a result of the poor quality of the goods.
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Original in Russian:
A.S. Komarov, President of the Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce, Moscow}}