United Nations A/CN.9/SER.

C/ABSTRACTS/213
General Assembly Distr.: General
25 January 2022
English
Original: English/French

United Nations Commission on

International Trade Law

CASE LAW ON UNCITRAL TEXTS

(CLOUT)

Contents
Page

Cases relating to the United Nations Convention on Contracts for the International
Sale of Goods (CISG) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Case 1954: CISG 39(2) – France: Court of Cassation, Commercial Chamber,
No. 19-13260, Appeal No. 18-22216, Caterpillar Energy Solutions GmbH v. Allianz IARD
(17 June 2020) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Case 1955: CISG 39 – France: Court of Cassation, Commercial Chamber, Appeal
No. 19-13.260 (P), Bois et matériaux v. Ceramiche, (3 February 2021) . . . . . . . . . . . . . . . . . 4
Case 1956: CISG 1(1), 4, 30, 53, 57(1)(a), 59, 78 – Greece: Monomeles Protodikeio
Thessalonikis, Case No. 17162/2017 (3 November 2017) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Case 1957: CISG 7(1); 39 – Italy: Corte Suprema di Cassazione, sezione seconda civile,
No. 1605/2021, Decopress Printing GmbH v. DEA S.p.A. in AS (26 January 2021) . . . . . . . . . . . . 6
Case 1958: CISG 7(1); 71(2); 71(3) – Norway: Høyesterett, HR-2019-231-A, Genfoot Inc. v.
SCHENKERocean Ltd. (6 February 2019) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Case 1959: CISG 8(2); [58(1)]; 74 – Switzerland: Kreisgericht Rheintal (Court of First Instance
Rheintal), No. OV.2011.4-RH3ZK-REU, Party names, (6 November 2012) . . . . . . . . . . . . . . . . . . . 8
Case 1960: CISG 8; 9; [53; 54] – Switzerland: Tribunale d’appello Ticino (Court of Appeal
of the Canton Ticino), No. 12.2018.110 (3 February 2020) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Case 1961: CISG 39; 50 – Switzerland: Bundesgericht/Tribunal fédéral (Federal Supreme
Court), No. 4A 493/2020 (4 January 2021) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Case 1962: CISG 45(1)(b); 74 – United States of America: U.S. [Federal] District Court
for the Middle District of Pennsylvania, No. 1:20-cv-01764, Minh Dung Aluminum Co., Ltd.
v. Aluminum Alloys Mfg. LLC, 2021 WL 3290686 (2 August 2021) . . . . . . . . . . . . . . . . . . . . . 10
Cases relating to the United Nations Convention on Contracts for the International
Sale of Goods (CISG) and to the Convention on the Limitation Period in the
International Sale of Goods (1980, amended text) (Limitation Convention) . . . . . . . . . . 11
Case 1963: CISG 7(2); Limitation Convention (3) – Russian Federation: Judicial
Chamber on Economic Disputes of the Supreme Court of the Russian Federation,
308-ЭС20-18927 (11 March 2021) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

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Introduction
This compilation of abstracts forms part of the system for collecting and
disseminating information on court decisions and arbitral awards rela ting to
Conventions and Model Laws that emanate from the work of the United Nations
Commission on International Trade Law (UNCITRAL). The purpose is to facilitate
the uniform interpretation of these legal texts by reference to international norms,
which are consistent with the international character of the texts, as opposed to strictly
domestic legal concepts and tradition. More complete information about the
features of the system and its use is provided in the User Guide
(A/CN.9/SER.C/GUIDE/1/Rev.3). CLOUT documents are available on the
UNCITRAL website at: https://uncitral.un.org/en/case_law.
Each CLOUT issue includes a table of contents on the first page that lists the full
citation of each case contained in this set of abstracts, along with the individual
articles of each text which are interpreted or referred to by the court or arbitral
tribunal. The Internet address (URL) of the full text of a decision in its original
language is included in the heading to each case, along with the Internet addresses,
where available, of translations in official United Nations language(s) (please note
that references to websites other than official United Nations websites do not
constitute an endorsement of that website by the United Nations or by UNCITRAL;
furthermore, websites change frequently; all Internet addresses contained in this
document are functional as of the date of submission of this document). Abstracts on
cases interpreting the UNCITRAL Model Law on International Commercial
Arbitration include keyword references which are consistent with those contained in
the Thesaurus on the Model Law, prepared by the UNCITRAL Secretariat in
consultation with National Correspondents. Abstracts on cases interpreting the
UNCITRAL Model Law on Cross-Border Insolvency also include keyword
references. The abstracts are searchable on the database available on the UN CITRAL
website by reference to all key identifying features, i.e. country, legislative text,
CLOUT case number, CLOUT issue number, decision date or a combination of any
of these.
The abstracts are prepared by National Correspondents designated by their
Governments, by individual contributors, or by the UNCITRAL secretariat itself. It
should be noted that neither the National Correspondents nor anyone else directly or
indirectly involved in the operation of the system assumes any responsibility for any
error or omission or other deficiency.

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Cases relating to the United Nations Convention on Contracts for the

International Sale of Goods (CISG)
Case 1954: CISG 39(2)
France: Court of Cassation, Commercial Chamber
No. 19-13260, Appeal No. 18-22216
Caterpillar Energy Solutions GmbH v. Allianz IARD
17 June 2020
Original in French
Available from Légifrance at www.legifrance.gouv.fr and the CISG France database
at www.cisg-france.org, Decision No. 312
Commentary: JCP G 2020, 1000, Droit du commerce international, p. 1545,
obs. Cyril Nourissat
Abstract prepared by Claude Witz, National Correspondent
In August 1999, a company based in Germany (C) delivered two generators to a
company based in France (X). The generators began to malfunction in December
2001. In January 2003, French buyer X brought legal proceedings against German
seller C before the Commercial Court of Meaux in order to obtain compensation for
the damage suffered. In a decision rendered on 27 June 2014, the Paris Court of
Appeal upheld the judgment whereby the buyer’s claim had been accepted (CISG
France No. 265). The seller filed an appeal before the Court of Cassation, which
overturned that judgment on the ground that article 39(2) of the CISG and the rules
governing the limitation period had been violated (Court of Cassation, Commercial
Chamber, 21 June 2016, No. 14-25359, CISG France No. 272, CLOUT No. 1633).
The case was referred back to the Paris Court of Appeal with a different composition.
The Paris court’s ruling (Paris Court of Appeal, 4 Ma y 2018, No. 16/20799, CISG
France No. 288) was the subject of a second appeal filed by the seller on a point of
law. This appeal, too, was successful. The Court of Cassation, in its decision of
17 June 2020, overturned the judgment delivered by the Paris Court of Appeal, on two
grounds.
The first ground was procedural. In dismissing the respondent’s argument that the
claim was time-barred, the Paris Court of Appeal had based its ruling, ex proprio
motu, on article 200 of the German Civil Code (BGB), without first inviting the
parties to present their observations. The Court of Cassation noted that “the judge
must, in all circumstances, observe and ensure observance of the adversarial
principle”, citing article 16, paragraph 3, of the Code of Civil Procedur e.
The Court of Cassation gave as its second ground for overturning the judgment the
violation of article 39(2) of the Vienna Convention, observing that “according to this
text, the buyer, in any event, loses the right to rely on a lack of conformity if h e does
not give the seller notice thereof at the latest within a period of two years from the
date on which the goods were actually handed over to the buyer.” It ruled that the
Paris Court of Appeal had violated the Convention by declaring the claim admiss ible
on the sole ground that the limitation period had not expired, even though the Court
of Appeal had previously noted in its judgment that “the goods were delivered in
August 1999 and the claim based on lack of conformity had been brought on 6 and
20 January 2003”. While the reasons given for the decision were brief, its message
was clear. The Paris Court of Appeal should have declared the buyer’s claim
inadmissible on the basis of the buyer’s loss of right pursuant to article 39(2) of the
Vienna Convention. The case was referred back to the Paris Court of Appeal with a
different composition.

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Case 1955: CISG 39

France: Court of Cassation, Commercial Chamber
Appeal No. 19-13.260 (P)
Bois et matériaux v. Ceramiche
3 February 2021
Original in French
Published in the digital bulletin of judgments rendered by the civil chambers of the
Court of Cassation, February 2021, pp. 95–98
Available from Légifrance at www.legifrance.gouv.fr and the CISG France database
at www.cisg-france.org, Decision No. 313
Commentary by Jean-Denis Pellier, available at www.dalloz-actualite.fr/flash/
soumission-de-l-action-recursoire-du-vendeur-final-contre-son-fournisseur-
convention-de-vienne
Abstract prepared by Claude Witz, National Correspondent, and Björn Schümann
The decision was rendered by the Court of Cassation in the context of a lo ng-standing
dispute between a company A, based in Italy, and its French distributor company B,
to which, on 18 April 2003, company A had sold tiles of which it was the
manufacturer. Company B had resold the goods on 9 May 2003 to two private
individuals (a couple) residing in France (C). Claiming that the tiles were defective,
the buyers (C) sued their seller (B) for compensation, whereupon B proceeded against
the Italian manufacturer A as guarantor. The dispute was settled in two successive
proceedings as a result of which the Bordeaux Court of Major Jurisdiction rendered
two decisions, the first relating to the claim brought by end buyers C against their
seller B (judgment of 29 September 2009) and the second relating to the claim filed
by French company B against Italian company A (judgment of 24 January 2012).
Italian company A appealed the judgment of 24 January 2012 before the Bordeaux
Court of Appeal. The decision of the appeal court 1 was the subject of an application
for judicial review. The Court of Cassation overturned the decision 2 and the case was
referred to the Poitiers Court of Appeal.
In a decision rendered on 13 March 2018, 3 the Poitiers Court of Appeal first ruled on
the admissibility of Company A’s claim against Company B, accepting the claim’s
admissibility on the basis of European Directive No. 1999/44/EC of the Parliament
and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods
and associated guarantees, article 4 of which states that “the person or persons liable
against whom the ... seller may pursue remedies...shall be determined by national
law.” The Court of Appeal also ruled on the merits of the claim. Whereas the parties
had debated the application of article 39(2) and article 40 of the Vienna Convention,
the Court ruled out the application of both provisions. According to the Poitiers
judges, those two articles did not apply because the appeal “was based not on the lack
of conformity but on the claim brought by the consumer” (buyers C) against the final
seller (company B). The Court added that while the Vienna Convention “regulates
the contractual relations between seller and buyer, includ ing in the case of
non-conformity, for example, in the event of a problem arising before (the) resale to
a consumer within the meaning of the Directive, [it] does not regulate the final seller’s
right of recourse against his own seller.”
The Italian company A applied for judicial review of the decision of the Poitiers Court
of Appeal. In its appeal it alleged, inter alia, a violation arising from the
misapplication of Directive 1999/44/EC, on the grounds that company B was a
professional seller and not a consumer within the meaning of the Directive. The Court
of Cassation rejected that allegation because under article 4 of the Directive, the final
seller is entitled to pursue remedies against the person or persons liable in the
contractual chain. With regard to the merits of the claim, the appellant complained
__________________
1
Bordeaux Court of Appeal, 12 September 2013; CISG France No. 216; CLOUT case 1508 .
2
Court of Cassation, Commercial Chamber, No. 14-22144, 2 November 2016; CISG France
No. 307; CLOUT case 1715.
3
Available from CISG France, Decision No. 322.

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that the Court of Appeal had rejected the argument, based on article 39 of the Vienna
Convention, that the buyer had lost the right to rely on a lack of conformity of the
goods. The Court of Cassation accepted the appellant’s argument on that point and,
on the basis of article 39 of the Vienna Convention, ruled that “the Court of Appeal
violated said text by rejecting its application”. In other words, the Poitiers Court of
Appeal should have applied the Vienna Convention to the claim brought by French
company B against Italian company A. Consequently, the Court of Cassation
overturned the Poitiers judgment, except insofar as it declared the claim brought
against the Italian seller admissible, and referred the parties to the Bourges Court of
Appeal.

Case 1956: CISG 1(1), 4, 30, 53, 57(1)(a), 59, 78

Greece: Monomeles Protodikeio Thessalonikis
Case No. 17162/2017
3 November 2017
Original in Greek
A Danish seller and Greek buyer entered into two agre ements for the sale of
professional refrigerators (“products”), with the second contract being concluded two
months later. Pursuant to the agreements, the buyer had to pay the price of
EUR 39,372 within 90 days from when the two commercial invoices were i ssued by
the seller. Despite prompt delivery to the buyer, it only paid EUR 12,872 as partial
payment of the first invoice.
The seller sought redress before the Greek courts for the judicial recognition that the
buyer had a contractual obligation to pay the remaining balance of EUR 26,500
immediately after expiration of the 90-day period or alternatively upon the notice of
lawsuit, temporary enforceability of the court’s judg ment, and payment of legal fees
incurred.
The Single-Member Court of First Instance of Thessaloniki (the Court) first addressed
the issue of jurisdiction in light of the Brussels I Regulation (Reg. No. 44/2001), the
Brussels I Regulation recast (Reg. No. 1215/2012), and the 1968 Brussels Convention
with its amending Protocols and concluded that it had international jurisdiction to
resolve the dispute.
The Court stated that pursuant to CISG article 1(1), the Convention governs all sale
of goods contracts whereby the seller and the buyer maintain their place of business
in different contracting States. Alternatively, the private international law rules of the
forum indicate that the laws of a contracting State would apply.
The Court also noted that the applicability scenario of CISG article 1(1)(a) constitutes
a self-executing regulation, which does not enshrine private international law rules,
but, rather, directly applicable substantive rules, which on the basis of article 28(1) of
the Greek Constitution prevail over the private international law mechanism of
identifying the applicable law.
Turning to the obligations of the contracting parties, the Court recalled the obligations
of the parties under the CISG, namely, that the price must be paid without any request
or compliance with any formality on the part of the seller (CISG article 59), and in
the event of delay in the payment of the price, the buyer had the right to claim interest
on the delayed balance without the need for request, or fault of the buyer, or even
damage to the seller (CISG articles 59, 78, and 79).
Due to the defendant’s absence in the hearing, the Court rendered its judg ment in
absentia in favour of the seller. In its ruling, the Court recognized the seller’s right to
seek payment of the outstanding balance, including legal interest 4 calculated from
the expiration of the 90-day period for each commercial invoice. The Court

__________________
4
Author’s note: “legal interest” is the interest owed by default, absent an agreement between the
parties; the interest rate is set by the Greek legislator.

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also condemned the losing party to pay EUR 850 as legal costs of the seller under
articles 176 and 191(2) of the Greek Code of Civil Procedure.

Case 1957: CISG 7(1); 39

Italy: Corte Suprema di Cassazione, sezione seconda civile
No. 1605/2021, ECLI:IT:CASS:2021:1605CIV
Decopress Printing GmbH v. DEA S.p.A. in AS
26 January 2021
Original in Italian
Available on the online database of the Italian Supreme Court at:
http://www.italgiure.giustizia.it/xway/application/nif/clean/hc.dll?verbo=attach&db
=snciv&id=./20210126/snciv@s20@a2021@n01605@tS.clean.pdf; and on CISG-
France Database: www.cisg-france.org, No. 5551
This case deals primarily with the interpretation of the “reasonable time” for giving
notice of the lack of conformity of the goods under article 39 CISG.
DEA S.p.A., a company with place of business in Italy, sued Decopress Printing
GmbH, a company with place of business in Germany, for the payment of an
outstanding balance of more than 840,000 euros for the supply of decor paper. In the
Court of First Instance, the German company resisted the claim indicating that the
goods had defects and asking for compensation of damages arising from the lack of
conformity. The Italian company prevailed in the First Instance Court as well as in
the Appellate Court.
The German company appealed to the Supreme Court against the decision of the
Supreme Court on several grounds. One of them related to the fact that the Court of
Appeal had interpreted the notion of “reasonable time” for the timely notice of the
non-conformity of the goods under article 39 CISG in light of the terms set in article
1490 of the Italian civil code. It recalled that, under precedents of the same Supreme
Court, 5 the CISG should be applied under its own scope because of the prevalence of
uniform contract law treaties over private international law rules.
The Supreme Court noted that the Court of First Instance had indicated that the
reasonable term for giving notice had expired without further qualification. It also
noted that the Court of Appeal had referred on that point to the relevant provision of
the Italian civil code without further explanation. Given the lack of adequate
reasoning on the point, the Supreme Court remanded the case to the Court of Appeal.

Case 1958: CISG 7(1); 71(2); 71(3)

Norway: Høyesterett
HR-2019-231-A
Genfoot Inc. v. SCHENKERocean Ltd.
6 February 2019
Original in Norwegian
Published in: https://www.domstol.no/enkelt-
domstol/hoyesterett/avgjorelser/2019/hoyesterett-sivil/krav/
English translation provided by the Supreme Court:
https://www.domstol.no/globalassets/upload/hret/decisions-in-english-translation/hr-
2019-231-a.pdf
This case deals primarily with the carrier’s duty to carry out the seller’s instruction to
exercise stoppage in transit under article 71(2) CISG when the buyer already holds
the transport documents and demands delivery of the goods. It also deals with the
legal effects of not giving notice of stoppage in transit under article 71(3) CISG.
In June 2014, the seller – a Canadian company – bought shoes from two factories in
China, which were sold FOB to a Norwegian buyer. The parties were under a long -
term distribution agreement, and the buyer could buy the shoes on credit. The buyer
__________________
5
Corte Suprema di Cassazione, n. 1867/2018, 25.01.2018, not reported in CLOUT.

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organized for the shoes to be sent in containers from Xiamen, China to Oslo, Norway.
Shortly after obtaining the bills of lading from the Chinese manufacturer, the seller
endorsed them in blank to the carrier’s Canadian agent and instructed them to send
them directly to the buyer, who in turn passed them on to the carrier’s Norwegian
agent. When the containers arrived at the port of Oslo, the seller instructed the carrier
to release the containers. However, on the same day, the buyer’s bank terminated the
overdraft facility with the buyer, who consequently could no longer pay the seller.
The buyer notified the seller of the bank’s termination, which prompted the seller to
order the carrier to retain the containers until further notice. However, the carrier’s
Norwegian agent replied that ownership had already passed to the buyer since the
buyer had passed the bills of lading over to them, and that the seller no longer had the
power to retain the goods. Nevertheless, as the containers had not yet been delivered,
the seller made repeated attempts to prevent the goods from being handed over to the
buyer. In the meantime, the carrier pressed the buyer for outstanding claims for duty,
VAT, port rent and warehouse rent, including for previously unpaid deliveries,
threatening to sell the containers. Upon payment of an agreed sum, the carrier’s
Norwegian agent delivered the containers to the buyer, who became subject to
bankruptcy proceedings one week later.
The seller brought an action against the carrier for not complying with the stoppage
instructions. The case was eventually appealed in front of the Supreme Court
(Høyesterett).
The suit required determining both whether the seller could validly exercise stoppage
in transit against the buyer and whether the carrier had to comply with the stoppage
order. As for the former, the distribution agreement between the buyer and the seller
was governed by Quebec law, and since the CISG applied both as state legislation in
Quebec and as national legislation in Canada, the Court concluded that the conditions
for exercising stoppage in transit would be governed by article 71(2) CISG.
The carrier made several objections against the seller’s alleged right of stoppage.
The first objection was that the seller was already aware of the buyer’s financial
difficulties before the goods were shipped from China, which prevented effecting
stoppage in transit under article 71(1)(a) and (2) CISG. However, the Supreme Court
found that the buyer’s inability to pay became apparent to the seller only when it
received news of the bank’s termination.
Secondly, the carrier claimed that the goods had already been delivered to the buyer
before the seller made its stoppage order because the carrier’s Norw egian agent had
acted as a forwarding agent representing the buyer from the moment when the buyer
presented them with the bills of lading. While the Supreme Court agreed that an agent
for the carrier at some point could become a representative of the buyer, it added that
it was important that this point in time could be clearly determined since it affected
the seller’s right of stoppage. In this case, there was no documentation suggesting that
such a representation had been agreed, and the carrier’s Norwegi an agent had also
exercised its right of retention against the buyer. Consequently, the Court concluded
that there had been no delivery to the buyer before the stoppage order.
Thirdly, the carrier suggested that the right of stoppage had been lost because no
stoppage notice had been given to the buyer under article 71(3) CISG. On this issue,
the Supreme Court observed that article 71(3) CISG did not specify the effects of not
giving notice and that the words “immediately give notice” suggested that a seller was
not required to provide notice earlier than immediately after stoppage had already
been completed. Moreover, the fact that the notice requirement was placed separately
in the third paragraph suggested that giving notice was not a requirement for
exercising stoppage in transit under article 71(2) CISG. With reference to the need for
uniform interpretation under article 7(1) CISG, the Court further observed that the
foreign judgments presented before it were not conclusive on whether the right of
stoppage was lost if the buyer was not notified, noting that these judgments were in
any case judgments from lower courts rather than from supreme courts. In addition,
the Court noted that the legal literature had expressed different views on this issue.

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The Court explained that the purpose of the duty to give notice was to give the buyer
a chance to adjust to the stoppage order and mitigate any loss as a result. The Court
concluded that article 71(3) CISG did not make notice to the buyer a requirement for
exercising the right of stoppage in transit under article 71(2) CISG but failure to do
so could lead to a claim in damages from the buyer.
Having concluded that the seller had validly exercised its right of stoppage, the Court
turned to the question whether the carrier was obliged to comply with the seller’s
stoppage order. It indicated that this was not a matter governed by the CISG as the
Convention did not regulate this relationship between the seller and the carrier due to
the last sentence of article 71(2) CISG, and that it was an issue of duty of care and
tort governed by Norwegian tort law since the loss had been sustained in Norway.

Case 1959: CISG 8(2); [58(1)]; 74

Switzerland: Kreisgericht Rheintal (Court of First Instance Rheintal)
No. OV.2011.4-RH3ZK-REU
6 November 2012
Original in German
Published in: CISG-online database (www.cisg-online.org) No. 4859.
Abstract prepared by Ulrich G. Schroeter, National Correspondent
After lengthy negotiations, a Swiss chicory farmer (buyer) concluded a contract f or
the purchase of a self-propelled chicory harvesting machine for the price of EUR
300,000 with the harvesting machine’s manufacturer, a French company (seller). The
payment terms of the contract provided for the price to be paid by the buyer in
instalments (40 per cent upon contract conclusion, 40 per cent upon delivery of the
machine, 20 per cent upon the machine’s acceptance and its functioning free from
defects). The contract furthermore called for a bank guarantee, in the French words –
the rest of the contract was written in German – “(1) 40% pour l’acompte, 2) 10%
d’une garantie”. After the contract’s conclusion, both parties initially remained
passive – neither did the buyer make the down payment of 40 per cent, nor did the
seller provide a bank guarantee. After a further two months, the seller declared the
contract avoided because the buyer had not made the down payment, citing article 64
CISG.
The buyer thereupon sued the seller for damages. Both parties were in agreement that
the CISG applied to their contract.
The Court of First Instance Rheintal first discussed which of the parties had breached
the contract by remaining passive. As the contract’s wording did not specify when the
price payment and the provision of the bank guarantee had to be made, the Court
resorted to an interpretation of the contract in accordance with article 8 CISG. It
concluded that the purpose of a bank guarantee – namely to secure the buyer against
the seller keeping the down payment without making delivery – made clear that the
seller would have had to act first and had accordingly breached the contract by not
doing so, while the buyer only needed to pay once the guarantee had been provided.
The buyer was therefore, in principle, entitled to claim damages according to article
45(1)(b) in conjunction with articles 74–77 CISG.
However, the Court held that the question on how and when the loss incurred by an
innocent party had to be substantiated in a court proceeding was a procedural question
and therefore governed by the lex fori, and not by articles 74 et seq. CISG. In the
present proceedings, the buyer’s attorney had in her first and her second briefs only
claimed delivery of the harvesting machine and (broadly) damages for the loss
incurred, without specifying this loss in any way. Only subsequently did she detail
and offer evidence for an overall loss amounting to CHF 514,000, mostly consisting
of the buyer’s expenses for a replacement machine acquired for the chicory harvests
in 2010 and 2011. Applying Swiss procedural law (notably article 229 of the Swiss
Code of Civil Procedure), the Court ruled that the buyer’s loss thereby had been
substantiated too late, given that his attorney – whom the buyer, at this stage, had
replaced by a new attorney – had been aware of and therefore should have presented

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this information already in her second brief. The buyer’s claim for damages was
therefore dismissed in its entirety. (The buyer subsequently sued his first attorney for
professional malpractice.)

Case 1960: CISG 8; 9; [53; 54]

Switzerland: Tribunale d’appello Ticino (Court of Appeal of the Canton Ticino)
No. 12.2018.110
3 February 2020
Original in Italian
Published in: CISG-online database (www.cisg-online.org) No. 5493.
Abstract prepared by Ulrich G. Schroeter, National Correspondent
The present appellate decision touches upon the borderland between the CISG and
tax law, namely the question of which of the parties to a cross-border CISG contract
has to pay VAT, if the parties have not addressed this point in their sales contract.
The sales transaction underlying the decision was a CISG sale of steel coils by an
Italian steel producer to a Swiss trading company. The parties had fixed the price in
their contract but had not specifically mentioned therein whether Value Added Tax
(VAT) would be added to the price. The Swiss buyer had initially sold the steel coils
on to a Turkish (sub-)buyer, but subsequently asked the seller to instead deliver the
coils to a sub-buyer in Spain. The Italian seller’s invoice to the Swiss buyer stipulated
the agreed price, together with the clause “VAT exempt”.
When the Italian tax authorities later charged VAT to the Italian seller because the
delivery had been made to the Spanish sub-buyer, the Italian seller (after failed
negotiations) sued the Swiss buyer for payment of the VAT amount, arguing that the
VAT should be borne by the buyer. The Court of Appeal first affirmed the Court of
First Instance’s holding that principles of tax law determined whether the buyer had
to bear the VAT costs in relation to the seller and also agreed with the Court of First
Instance’s conclusion that in the present case, the answer was in the negative.
As an alternative line of argument, the Court of Appeal applied the CISG’s rules on
contract interpretation (arts. 8 and 9 CISG), and concluded that also under these rules
the result was that the seller could not expect that the buyer would bear the VAT.
Given that the VAT is a tax imposed by the law of the seller’s country, the seller could
be expected to know the tax regulations of its own country and to calculate the
contract price taking into account this tax as one of his costs. The Court of Appeal
accordingly affirmed the dismissal of the case.

Case 1961: CISG 39; 50

Switzerland: Bundesgericht/Tribunal fédéral (Federal Supreme Court)
No. 4A 493/2020
4 January 2021
Original in German
Published in: Internationales Handelsrecht (2021), 95–98; Swiss Federal Supreme
Court database (www.bger.ch); CISG-online database (www.cisg-online.org)
No. 5508.
Abstract prepared by Ulrich G. Schroeter, National Correspondent
The Swiss Respondent (buyer) is operating a mountain lodge in Switzerland, which
it renovated in 2014. For this purpose, the buyer purchased façade panels from two
German manufacturers (sellers). After a dispute about both the delay of the delivery
and the quality of the panels had arisen, the buyer refused to pay part of the contract
price. The sellers in turn assigned their payment claim to a German factoring company
(Claimant), which eventually sued the buyer for payment in a Swiss court. After the
Claimant had prevailed in both the Court of First Instance and the Court of Appeal,
the Respondent appealed to the Federal Supreme Court.
Two of the points of law raised upon appeal concerned the CISG.

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The first point concerned the Respondent’s allegation that the sellers had tacitly
waived any right to rely on the buyer’s late notice of non -conformity (article 39(1)
CISG) by investigating the source of the alleged quality defic iency and negotiating
with the buyer. The Federal Supreme Court pointed out that article 39(1) CISG is a
non-mandatory provision, so that a seller can waive his right to rely on it. A waiver
can occur even tacitly, if clear indications (“eindeutige Anhaltspunkte”) for such a
step exist. Such a tacit waiver may occur if a seller unconditionally (“ vorbehaltslos”)
acknowledges the non-conformity, if it unconditionally takes the goods back, if it
declares his willingness to repair the goods or to deliver substitute goods, or if it
unconditionally promises to investigate the alleged defects. By contrast, no waiver
can be seen in the mere commencement of negotiations about the alleged defects, in
a promise of repair that is combined with a request of full payment of the contract
price, or in the fact that the lateness of a notice of non-conformity is for the first time
raised during court proceedings. In light of this standard, the Supreme Court affirmed
the lower courts’ ruling that the sellers in the present case had not tacitly waived their
right to rely on article 39(1) CISG, because they had never unconditionally
acknowledged the defects.
The second point concerned the buyer’s earlier refusal to pay a part of the outstanding
contract price, and whether this refusal had constituted a reduction of the contract
price (article 50 CISG) or merely a temporary retention of the payment. The Supreme
Court affirmed the Court of Appeal’s position that the buyer’s right to reduce the price
under article 50 CISG has to be exercised through an express declaration (although
free of form), and that a mere notice of non-conformity combined with a partial
payment of the price is insufficient. Although the remedy of price reduction
(article 50 CISG) is not subject to a specific time frame, it presupposes that a notice
of non-conformity has been timely given (article 39(1) CISG). In the present case, the
buyer had refused to pay in order to compensate for the late delivery, and no defect
had been timely notified in accordance with article 39(1) CISG. Accordingly, no
reduction of the price had occurred.

Case 1962: CISG 45(1)(b); 74

United States of America: U.S. [Federal] District Court for the Middle District of
Pennsylvania
No. 1:20-cv-01764
Minh Dung Aluminum Co., Ltd. v. Aluminum Alloys Mfg. LLC
2 August 2021
Original in English
Published in: 2021 U.S. Dist. LEXIS 143459; 2021 WL 3290686
Available at: https://cisg-online.org/search-for-cases?caseId=13547
Abstract prepared by Sam Walker
The case deals with the determination of damages under the CISG.
Minh Dung Aluminum Co., Ltd., a Vietnamese company (the buyer), entered into a
contract with Aluminum Alloys Mfg. LLC, an American company (the seller), for the
sale and delivery of aluminium ingots. The seller agreed to ship the aluminium ingots
for $118,978.20 and subsequently shipped four containers to the buyer in Viet Nam.
Only two of the four containers arrived in Viet Nam and the rest were rerouted back
to the United States of America. The two containers that arrived were filled with
hazardous waste rather than ingots. The buyer informed the seller of the hazardous
waste and the seller acknowledged that they shipped non-conforming goods and
promised to issue a refund and arrange for the return of waste to the United States.
The buyer brought proceedings for breach of contract in the federal district court of
Pennsylvania to which the seller failed to respond, and the buyer resorted to default
judgment in the amount of $245,097.20.
The district court applied articles 45 and 74 CISG in determining whether the sel ler
had breached the contract and, if so, how much the buyer was entitled to. The court

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stated that the elements of a breach under the CISG are generally recognized to be:
(1) formation; (2) performance; (3) breach; and (4) damages.
The court found that the buyer’s claim established that: (1) the buyer and the seller
entered into a contract; (2) the buyer paid the seller $118,978.20 for the ingots;
(3) the seller failed to deliver those ingots; and (4) the buyer suffered loss due to the
non-performance under the contract. Under article 45(1)(b) CISG, an aggrieved buyer
is entitled to damages as provided in article 74 CISG.
The district court then looked at article 74 CISG for the appropriate damages. The
buyer sought damages in the amount of $245,097.20. T his included the $118,978.20
originally paid to the seller, $58,394 for hazardous waste storage at the port, $67,000
in lost profits, and $725 in court costs and fees. The district court found that the
original amount paid, the storage costs, and the lost profits were either direct or
foreseeable losses stemming from the seller’s breaches of the sale agreements and
therefore recoverable under the CISG. The court costs and fees, however, were found
not to be a direct or foreseeable loss stemming from the seller’s breaches. As such,
the court granted part of the buyer’s claim regarding damages. Specifically, it found
the recoverable damages to be $244,372.20 ($245,097.20 less the $725 in costs and
fees).

Cases relating to the United Nations Convention on Contracts for the

International Sale of Goods (CISG) and to the Convention on the Limitation
Period in the International Sale of Goods (1980, amended text)
(Limitation Convention)
Case 1963: CISG 7(2); Limitation Convention (3)
Russian Federation: Judicial Chamber on Economic Disputes of the Supreme Court
of the Russian Federation
308-ЭС20-18927
11 March 2021
Original in Russian
Available on the Supreme Court’s judgments online database:
https://vsrf.ru/lk/practice/acts (Russian language text)
This case deals with the determination of the law applicable to the limitation period
in international sale contracts.
Derways, a company with its place of business in the Russian Federation, concluded
several contracts with companies belonging to the GEELY Group and having their
place of business in China. The contracts contained a clause indicating that they
should be “interpreted and regulated under the CISG; [and that] in all matters of
contracts not governed by the CISG, the parties shall apply Swedish national law.”
Derways did not comply with its obligation to pay the price of the goods. The claims
against Derways were subsequently assigned to GEELY Motors, a company with its
place of business in the Russian Federation. GEELY Motors started proceedings
against Derways to recover the outstanding sums.
The Commercial Court of first instance found, among others, that the limitation period
had passed and dismissed the claim on that ground. Upon appeal, the Court of Appeal
and the Supreme Court upheld the decision. These courts stated that t he limitation
period had expired pursuant to Russian law, Swedish law, Chinese law, and the
Limitation Convention, which they applied to the contracts as an integral part of the
CISG.
Upon a second recourse, the Supreme Court recognized that the parties had agreed on
the application to the contracts of the CISG and, for matters outside the scope of the
CISG, of Swedish law. The Supreme Court indicated that, since the CISG did not deal
with matters relating to the limitation period, Swedish law should apply to t his issue.
The Supreme Court also noted that the Limitation Convention was a stand -alone treaty
and not a part of the CISG and that for that reason the choice of the parties to apply
the CISG did not entail the application of the Limitation Convention. Fin ally, the

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Supreme Court held that since neither Sweden, the State whose law had been chosen
by the parties as the applicable law, nor China and the Russian Federation, the States
in which the parties had their place of business, were parties to the Limitation
Convention, the Limitation Convention did not apply to the dispute.

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