- Arbitral Award
- Hungarian Chamber of Commerce and Industry Court of Arbitration
SELLER'S OBLIGATION TO DELIVER THE GOODS - DELIVERY BY INSTALMENTS - NON DELIVERY OF PART OF THE GOODS - BUYER'S RIGHT TO TERMINATE THE CONTRACT AND TO CLAIM DAMAGES (ART. 73(2) CISG)
SELLER'S RIGHT TO REQUIRE PAYMENT FOR DELIVERED GOODS (ART. 62 CISG)
An Austrian buyer, defendant, and a Hungarian seller, claimant, signed a contract for the purchase and sale of sour cherries. A part of the goods had already been delivered when the price of cherries rose significantly. The seller was willing to bear the consequences of the increase in price for the goods that had already been delivered, but terminated the contract in respect of the non-delivered goods. The seller claimed that the buyer had given its oral consent to the termination. The buyer denied having given such consent and did not pay for the delivered goods. The buyer claimed that non-delivery of the goods outstanding under the contract had caused the buyer more damaged than the value of the goods it had received. The seller claimed payment of the purchase price and the buyer counterclaimed for the damage that it had sustained due to non-delivery.
As each party had its place of business in Contracting State, the tribunal stated that the Convention was applicable (article 1(1)(a) CISG). The tribunal held that the claim was partially founded, so the buyer had to pay for the goods already delivered (article 62 CISG). As the seller was unable to prove the buyer's consent to the termination of the contract, the tribunal found that the seller was responsible for the damages of the buyer and the buyer was entitled to make a covering purchase (article 47 CISG). The buyer was entitled to terminate the contract concerning the non-delivered part of the goods (article 73(2) CISG). On the other hand, the buyer did not fulfil its duty to mitigate its loss (article 77 CISG). The tribunal held that both the claim and counterclaim were only partially founded and therefore divided the damage between the parties.
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Original in Hungarian:
Abstract CLOUT Case 265 in A/CN.9/SER.C/ABSTRACTS/31 reproduced with kind permission of the Secretary, United Nations Publications Broad}}