卖方交货与合同不符

三、卖方交货与合同不符

第三十八条要求买方检验货物或由他人检验已向其交付的货物。该条大部分内容侧重于应何时检验货物的问题。因此，第三十八条第(1)款规定了须“在按情况实际可行的时间内”检验货物的一般规则。

第三十八条第(2)款规定了处理涉及货物运输的案例的特殊规则，允许检验可推迟到货物到达目的地后进行。至于第三十八条第(1)款与第(2)款之间的关系，一家法院解释说，检验地一般为卖方根据《销售公约》第三十一条履行其交货义务的地点。但是，如果合同涉及货物的运输，则检验可推迟到货物到达目的地后进行。

第三十八条第(3)款载有另一项特别规则，适用于如下情况:如果是由于买方在运输途中改运货物或再发运货物，而没有合理机会加以检验，而卖方在订立合同时已知道这种改运或再发运的可能性，检验可推迟到货物到达“新目的地”后进行。

第三十九条规定声称所交货物不符合同规定的买方应承担将不符合同情形通知卖方的义务。本条款分为两款，涉及所需通知的不同的时期:第三十九条第(1)款要求买方在发现或理应发现不符合同情形后一段合理时间内给出通知;第三十九条第(2)款具体规定，无论如何，买方应在货物实际交付给买方之日起两年内将货物不符合同情形通知卖方，除非这一时限与合同规定的保证期限不符。第三十九条第(1)款和第(2)款都指出，买方如果未能给出所需的通知，他就丧失声称货物不符合同的权利。这意指买方丧失任何补救不符合同情形的权利，例如包括要求卖方修补货物的权利，要求损害赔偿的权利，降低价格的权利，和宣告合同无效的权利。

如果这种不符的情况严重，要根据公约二十五条判断是否构成根本违约。构成根本违约指一方当事人违反合同的结果，如使另一方当事人蒙受损害，以致于实际上剥夺了他根据合同规定有权期待得到的东西，即为根本违反合同，除非违反合同一方并不预知而且一个同等资格、通情达理的人处于相同情况中也没有理由预知会发生这种结果。

此外，如果买方想使用解除合同这种救济方式，应当遵守公约第八十二条，买方如果不可能按实际收到货物的原状归还货物，他就丧失宣告合同无效或要求卖方交付替代货物的权利，除非(a)如果不可能归还货物或不可能按实际收到货物的原状归还货物，并非由于买方的行为或不行为所造成;或者(b)如果货物或其中一部分的毁灭或变坏，是由于按照第三十八条规定进行检验所致;或者(c)如果货物或其中一部分，在买方发现或理应发现与合同不符以前，已为买方在正常营业过程中售出，或在正常使用过程中消费或改变。

其次根据公约第五十条，可以采用减价的救济方式，如果货物不符合同，不论价款是否已付，买方都可以减低价格，减价按实际交付的货物在交货时的价值与符合合同的货物在当时的价值两者之间的比例计算。但是，如果卖方按照第三十七条或第四十八条的规定对任何不履行义务作出补救，或者买方拒绝接受卖方按照该两条规定履行义务，则买方不得减低价格。

再次也可以根据公约七十四的原则要求损害赔偿，在卖方交货与合同不符的情况下，指应当交付的货物的市价与实际交付的货物的市价之间的差价以及其他损失。

应当注意，减价与损害赔偿是两种不同的救济方式，减价的目的是使守约方恢复到合同订立前的地位;而损害赔偿是使守约方恢复到合同正常履行时的地位。

此外根据公约第四十六条，如果货物不符合同，买方只有在此种不符合同情形构成根本违反合同时，才可以要求交付替代货物，而且关于替代货物的要求，必须与依照第三十九条发出的通知同时提出，或者在该项通知发出后一段合理时间内提出。如果货物不符合同，买方可以要求卖方通过修理对不符合同之处作出补救，除非他考虑了所有情况之后，认为这样做是不合理的。修理的要求必须与依照第三十九条发出的通知同时提出，或者在该项通知发出后一段合理时间内提出。

根据公约第四十八条，卖方可以作出补救。在第四十九条的条件下，卖方即使在交货日期之后，仍可自付费用，对任何不履行义务作出补救，但这种补救不得造成不合理的迟延，也不得使买方遭受不合理的不便，或无法确定卖方是否将偿付买方预付的费用。但是，买方保留本公约所规定的要求损害赔偿的任何权利。如果卖方要求买方表明他是否接受卖方履行义务，而买方不在一段合理时间内对此一要求作出答复，则卖方可以按其要求中所指明的时间履行义务。买方不得在该段时间内采取与卖方履行义务相抵触的任何补救办法。卖方表明他将在某一特定时间内履行义务的通知，应视为包括根据上一款规定要买方表明决定的要求在内。

案例32

Delchi Carrier SpA v.Rotorex Corp.

71 F.3d 1024

WINTER，Circuit Judge:

Rotorex Corporation，a New York corporation，appeals from a judgment of $ 1 785 772.44 in damages for lost profits and other consequential damages awarded to Delchi Carrier SpA following a bench trial before Judge Munson.The basis for the award was Rotorex's delivery of nonconforming compressors to Delchi，an Italian manufacturer of air conditioners.Delchi cross-appeals from the denial of certain incidental and consequential damages.We affirm the award of damages;we reverse in part on Delchi's cross-appeal and remand for further proceedings.

Background

In January 1988，Rotorex agreed to sell 10 800 compressors to Delchi for use in Delchi's “Ariele”line of portable room air conditioners.The air conditioners were scheduled to go on sale in the spring and summer of 1988.Prior to executing the contract，Rotorex sent Delchi a sample compressor and accompanying written performance specifications.The compressors were scheduled to be delivered in three shipments before May 15， 1988.

* 1 027 Rotorex sent the first shipment by sea on March 26.Delchi paid for this shipment，which arrived at its Italian factory on April 20，by letter of credit.Rotorex sent a second shipment of compressors on or about May 9.Delchi also remitted payment for this shipment by letter of credit.While the second shipment was en route， Delchi discovered that the first lot of compressors did not conform to the sample model and accompanying specifications.On May 13，after a Rotorex representative visited the Delchi factory in Italy，Delchi informed Rotorex that 93 percent of the compressors were rejected in quality control checks because they had lower cooling capacity and consumed more power than the sample model and specifications.After several unsuccessful attempts to cure the defects in the compressors，Delchi asked Rotorex to supply new compressors conforming to the original sample and specifications.Rotorex refused，claiming that the performance specifications were“inadvertently communicated”to Delchi.

In a faxed letter dated May 23，1988，Delchi cancelled the contract.Although it was able to expedite a previously planned order of suitable compressors from Sanyo，another supplier，Delchi was unable to obtain in a timely fashion substitute compressors from other sources and thus suffered a loss in its sales volume of Arieles during the 1988 selling season.Delchi filed the instant action under the United Nations Convention on Contracts for the International Sale of Goods(“CISG”or “the Convention”)for breach of contract and failure to deliver conforming goods.On January 10，1991，Judge Cholakis granted Delchi's motion for partial summary judgment， holding Rotorex liable for breach of contract.

After three years of discovery and a bench trial on the issue of damages，Judge Munson，to whom the case had been transferred，held Rotorex liable to Delchi for $ 1 248 331.87.This amount included consequential damages for:(i)lost profits resulting from a diminished sales level of Ariele units，(ii)expenses that Delchi incurred in attempting to remedy the nonconformity of the compressors，(iii)the cost of expediting shipment of previously ordered Sanyo compressors after Delchi rejected the Rotorex compressors，and(iv)costs of handling and storing the rejected compressors.The district court also awarded prejudgment interest under CISG art.78.

The court denied Delchi's claim for damages based on other expenses，including:(i )shipping， customs， and incidentals relating to the two shipments of Rotorex compressors;(ii)the cost of obsolete insulation and tubing that Delchi purchased only for use with Rotorex compressors;(iii)the cost of obsolete tooling purchased only for production of units with Rotorex compressors;and(iv)labor costs for four days when Delchi's production line was idle because it had no compressors to install in the air conditioning units.The court denied an award for these items on the ground that it would lead to a double recovery because“those costs are accounted for in Delchi's recovery on its lost profits claim.”It also denied an award for the cost of modification of electrical panels for use with substitute Sanyo compressors on the ground that the cost was not attributable to the breach.Finally，the court denied recovery on Delchi's claim of 4 000 additional lost sales in Italy.

On appeal，Rotorex argues that it did not breach the agreement，that Delchi is not entitled to lost profits because it maintained inventory levels in excess of the maximum number of possible lost sales，that the calculation of the number of lost sales was improper，and that the district court improperly excluded fixed costs and depreciation from the manufacturing cost in calculating lost profits.Delchi cross-appeals，claiming that it is entitled to the additional out-of-pocket expenses and the lost profits on additional sales denied by Judge Munson.

Discussion

［1］The district court holds，and the parties agree，that the instant matter is governed by the CISG，reprinted at 15 U.S.C.A.Appendix(West Supp.1995)，a self-executing agreement between the United States and other signatories，including Italy.［FN1］Because * 1 028 there is virtually no caselaw under the Convention，we look to its language and to “the general principles”upon which it is based.See CISG art.7(2)．The Convention directs that its interpretation be informed by its“international character and ...the need to promote uniformity in its application and the observance of good faith in international trade.”See CISG art.7(1);see generally John Honnold，Uniform Law for International Sales Under the 1980 United Nations Convention 60－62(2d ed.1991)(addressing principles for interpretation of CISG)．Caselaw interpreting analogous provisions of Article 2 of the Uniform Commercial Code(“U.C.C.”)，may also inform a court where the language of the relevant CISG provisions tracks that of the UCC.However，UCC caselaw “is not per se applicable.”Orbisphere Corp.v.United States，726 F.Supp.1344， 1355(Ct.Int'l Trade 1989)．

［2］We first address the liability issue.We review a grant of summary judgment de novo.Burgos v.Hopkins，14 F.3d 787，789(2d Cir.1994)．Summary judgment is appropriate if “there is no genuine issue as to any material fact ”regarding Rotorex's liability for breach of contract.See Fed.R.Civ.P.56(c)．

Under the CISG ，“the seller must deliver goods which are of the quantity，quality and description required by the contract， ”and “the goods do not conform with the contract unless they ...possess the qualities of goods which the seller has held out to the buyer as a sample or model.”CISG art.35.The CISG further states that“the seller is liable in accordance with the contract and this Convention for any lack of conformity.”CISG art.36.

［3］Judge Cholakis held that “there is no question that ［Rotorex's］compressors did not conform to the terms of the contract between the parties”and noted that“there are ample admissions ［by Rotorex］to that effect.”We agree.The agreement between Delchi and Rotorex was based upon a sample compressor supplied by Rotorex and upon written specifications regarding cooling capacity and power consumption.After the problems were discovered，Rotorex's engineering representative，Ernest Gamache，admitted in a May 13，1988 letter that the specification sheet was“in error”and that the compressors would actually generate less cooling power and consume more energy than the specifications indicated.Gamache also testified in a deposition that at least some of the compressors were nonconforming.The president of Rotorex，John McFee，conceded in a May 17，1988 letter to Delchi that the compressors supplied were less efficient than the sample and did not meet the specifications provided by Rotorex.Finally，in its answer to Delchi's complaint，Rotorex admitted“that some of the compressors ...did not conform to the nominal performance information.”There was thus no genuine issue of material fact regarding liability，and summary judgment was proper.See Perma Research ＆Dev.Co.v.Singer Co.，410 F.2d 572，577－78(2d Cir.1969)(affirming grant of summary judgment based upon admissions and deposition testimony by nonmoving party)．

［4］［5］Under the CISG，if the breach is“fundamental”the buyer may either require delivery of substitute goods，CISG art.46，or declare the contract void，CISG art.49，and seek damages.With regard to what kind of breach is fundamental，Article 25 provides:

A breach of contract committed by one of the parties is fundamental if it results in such detriment to the other party as substantially to deprive him of what he is entitled to expect under the contract，unless the party in breach did not foresee and a reasonable person of the same kind in the same circumstances would not have foreseen such a result.

CISG art.25.In granting summary judgment，the district court held that “there appears to be no question that ［Delchi］did not substantially receive that which ［it］was entitled to expect”and that “any reasonable * 1 029 person could foresee that shipping non-conforming goods to a buyer would result in the buyer not receiving that which he expected and was entitled to receive.”Because the cooling power and energy consumption of an air conditioner compressor are important determinants of the product's value，the district court's conclusion that Rotorex was liable for a fundamental breach of contract under the Convention was proper.

［6］［7］We turn now to the district court's award of damages following the bench trial.A reviewing court must defer to the trial judge's findings of fact unless they are clearly erroneous.Anderson v.City of Bessemer，470 U.S.564， 575， 105 S.Ct.1504，1512，84 L.Ed.2d 518(1985);Allied Chem.Int'l Corp.v.Companhia de Navegacao Lloyd Brasileiro，775 F.2d 476，481(2d Cir.1985 )，cert.denied，475 U.S.1099，106 S.Ct.1502，89 L.Ed.2d 903(1986)．However，we review questions of law，including“the measure of damages upon which the factual computation is based， ”de novo.Wolff ＆ Munier，Inc.v.Whiting-Turner Contracting Co.，946 F.2d 1003，1009(2d Cir.1991)(internal quotation marks and citation omitted);see also Travellers Int'l， A.G.v.Trans World Airlines， 41 F.3d 1570， 1574－75(2d Cir.1994)．

［8］The CISG provides:

Damages for breach of contract by one party consist of a sum equal to the loss，including loss of profit，suffered by the other party as a consequence of the breach.Such damages may not exceed the loss which the party in breach foresaw or ought to have foreseen at the time of the conclusion of the contract，in the light of the facts and matters of which he then knew or ought to have known，as a possible consequence of the breach of contract.

CISG art.74.This provision is“designed to place the aggrieved party in as good a position as if the other party had properly performed the contract.”Honnold，supra，at 503.

［9］Rotorex argues that Delchi is not entitled to lost profits because it was able to maintain inventory levels of Ariele air conditioning units in excess of the maximum number of possible lost sales.In Rotorex's view，therefore，there was no actual shortfall of Ariele units available for sale because of Rotorex's delivery of nonconforming compressors.Rotorex's argument goes as follows.The end of the air conditioner selling season is August 1.If one totals the number of units available to Delchi from March to August 1，the sum is enough to fill all sales.We may assume that the evidence in the record supports the factual premise.Nevertheless，the argument is fallacious.Because of Rotorex's breach，Delchi had to shut down its manufacturing operation for a few days in May，and the date on which particular units were available for sale was substantially delayed.For example， units available in late July could not be used to meet orders in the spring.As a result，Delchi lost sales in the spring and early summer.We therefore conclude that the district court's findings regarding lost sales are not clearly erroneous.A detailed discussion of the precise number of lost sales is unnecessary because the district court's findings were， ifanything，conservative.

［10］［11］Rotorex contends，in the alternative，that the district court improperly awarded lost profits for unfilled orders from Delchi affiliates in Europe and from sales agents within Italy.We disagree.The CISG requires that damages be limited by the familiar principle of foreseeability established in Hadley v.Baxendale， 156 Eng.Rep.145(1854)．CISG art.74.However，it was objectively foreseeable that Delchi would take orders for Ariele sales based on the number of compressors it had ordered and expected to have ready for the season.The district court was entitled to rely upon the documents and testimony regarding these lost sales and was well within its authority in deciding which orders were proven with sufficient certainty.

Rotorex also challenges the district court's exclusion of fixed costs and depreciation from the manufacturing cost used to calculate lost profits.The trial judge calculated lost profits by subtracting the 478 783 lire “manufacturing cost”—the total variable cost—of an Ariele unit from the 654 644 lire average sale price.The CISG does not explicitly state whether only variable expenses，or both fixed * 1 030 and variable expenses，should be subtracted from sales revenue in calculating lost profits.However，courts generally do not include fixed costs in the calculation of lost profits.See Indu Craft，Inc.v.Bank of Baroda， 47 F.3d 490，495(2d Cir.1995)(only when the breach ends an ongoing business should fixed costs be subtracted along with variable costs);Adams v.Lindblad Travel，Inc.，730 F.2d 89，92－93(2d Cir.1984)(fixed costs should not be included in lost profits equation when the plaintiff is an ongoing business whose fixed costs are not affected by the breach)．This is，of course，because the fixed costs would have been encountered whether or not the breach occurred.In the absence of a specific provision in the CISG for calculating lost profits，the district court was correct to use the standard formula employed by most American courts and to deduct only variable costs from sales revenue to arrive at a figure for lost profits.

In its cross-appeal，Delchi challenges the district court's denial of various consequential and incidental damages， including reimbursement for:(i)shipping，customs， and incidentals relating to the first and second shipments—rejected and returned—of Rotorex compressors;(ii)obsolete insulation materials and tubing purchased for use only with Rotorex compressors;(iii)obsolete tooling purchased exclusively for production of units with Rotorex compressors;and(iv)labor costs for the period of May 16－19，1988，when the Delchi production line was idle due to a lack of compressors to install in Ariele air conditioning units.The district court denied damages for these items on the ground that they“are accounted for in Delchi's recovery on its lost profits claim， ”and，therefore，an award would constitute a double recovery for Delchi.We disagree.

The Convention provides that a contract plaintiff may collect damages to compensate for the full loss.This includes，but is not limited to，lost profits，subject only to the familiar limitation that the breaching party must have foreseen，or should have foreseen，the loss as a probable consequence.CISG art.74;see Hadley v.Baxendale，supra.

An award for lost profits will not compensate Delchi for the expenses in question.Delchi's lost profits are determined by calculating the hypothetical revenues to be derived from unmade sales less the hypothetical variable costs that would have been，but were not，incurred.This figure，however，does not compensate for costs actually incurred that led to no sales.Thus，to award damages for costs actually incurred in no way creates a double recovery and instead furthers the purpose of giving the injured party damages“equal to the loss.”CISG art.74.

［12］The only remaining inquiries，therefore，are whether the expenses were reasonably foreseeable and legitimate incidental or consequential damages.［FN2］The expenses incurred by Delchi for shipping，customs，and related matters for the two returned shipments of Rotorex compressors，including storage expenses for the second shipment at Genoa，were clearly foreseeable and recoverable incidental expenses.These are up-front expenses that had to be paid to get the goods to the manufacturing plant for inspection and were thus incurred largely before the nonconformities were detected.To deny reimbursement to Delchi for these incidental damages would effectively cut into the lost profits award.The same is true of unreimbursed tooling expenses and the cost of the useless insulation and tubing materials.These are legitimate consequential damages that in no way duplicate lost profits damages.

［13］The labor expense incurred as a result of the production line shutdown of May 16－19，1988 is also a reasonably foreseeable result of delivering nonconforming compressors for installation in air conditioners.* 1 031 However，Rotorex argues that the labor costs in question were fixed costs that would have been incurred whether or not there was a breach.The district court labeled the labor costs“fixed costs， ”but did not explore whether Delchi would have paid these wages regardless of how much it produced.Variable costs are generally those costs that “fluctuate with a firm's output， ”and typically include labor(but not management)costs.Northeastern Tel.Co.v.AT ＆ T， 651 F.2d 76， 86(2d Cir.1981)．Whether Delchi's labor costs during this four-day period are variable or fixed costs is in large measure a fact question that we cannot answer because we lack factual findings by the district court.We therefore remand to the district court on this issue.

［14］The district court also denied an award for the modification of electrical panels for use with substitute Sanyo compressors.It denied damages on the ground that Delchi failed to show that the modifications were not part of the regular cost of production of units with Sanyo compressors and were therefore attributable to Rotorex's breach.This appears to have been a credibility determination that was within the court's authority to make.We therefore affirm on the ground that this finding is not clearly erroneous.

［15］Finally，Delchi cross-appeals from the denial of its claimed 4 000 additional lost sales in Italy.The district court held that Delchi did not prove these orders with sufficient certainty.The trial court was in the best position to evaluate the testimony of the Italian sales agents who stated that they would have ordered more Arieles if they had been available.It found the agents' claims to be too speculative，and this conclusion is not clearly erroneous.

Conclusion

We affirm the award of damages.We reverse in part the denial of incidental and consequential damages.We remand for further proceedings in accord with this opinion.

思考题

1.简述本案基本事实。

2.初审法院的损害赔偿是如何计算的?

3.Rotorex上诉的内容包括什么?

4.Rotorex主张Delchi不能获得利润损失赔偿的理由是什么?

5.Rotorex主张初审法院利润损失计算的方法有什么问题，是否合理?

6.Delchi上诉的初审法院判决的问题是什么，上诉法院的观点是什么?

案例33

AUSTRIA:Oberster Gerichtshof

14 January 2002

Factual Background

［Seller］corporation，whose place of business is in Germany，offered ［Buyer］as per its request of 11 November 1995，a specially to-be-produced two-cycle table cooler， which was meant for a waterworks built by the municipal water supply association F ＊ ＊ in V ＊ ＊(Germany)and which was to be delivered to ［Buyer］'s place of business in L ＊ ＊ in order to be inspected there.In its offer，［Seller］made reference to the application of its“delivery and payment terms”(hereinafter“standard terms”)printed on the reverse of its invoices.［Buyer］was already aware of these standard terms from three previous properly concluded business dealings.These terms included the following provisions:

“Notice of Defects

The seller is liable for defects only under the following circumstances:

(a)The buyer must inspect the delivered goods for amount，conformity，and any expressly warranted condition immediately upon arrival.Written notice is to be given for obvious defects within eight days after receipt of the goods.

(b)Upon justified complaints the seller has the choice to either cure the defective goods or make a substitute delivery.The goods complained of are to be returned carriage paid.

［...］

”Warranty

The warranty period is twelve months from delivery from our factory.Liability for damages arising from improper assembly or setting into operation，as well as defective or negligent handling by the buyer or a third party，is excluded.Consequential damages are excluded.

“Place of Performance，Venue，Choice of Law

Place of performance and exclusive venue for deliveries and payments，as well as any and all disputes arising between the parties，is the principle place of business of the seller.The relations between the parties to the contract are governed exclusively by the laws in force in the Federal Republic of Germany.”

［Buyer］，who for its part had promised its customer，Company S ＊＊，delivery of the table cooler by April 1996(while S ＊ ＊ facing stipulated penalties in the millions，had obliged itself to turn over the facility to its customer—the operator of the waterworks—by 1 June 1996)accepted［Seller］'s offer on 10 January 1996，thereby ordering the table cooler at the price of DM 21，144.60.

When ［Seller］thereafter requested an extension of the delivery time until 13 May 1996 due to technical problems(the specified noise levels were exceeded)，［Buyer］saw no other possibility but to grant the request since a third party would have required four or five months to construct a two-cycle table cooler.However，since ［Seller］also did not keep the extended delivery date，but rather was not able to deliver until 28 May 1996，［Buyer］directed ［Seller］to deliver the unit directly to the construction site in V ＊ ＊.Consequently，［Buyer］had to do without an inspection at its factory in L＊ ＊.At the construction site on 28 May 1996，employees of ［Buyer］could only undertake a visual inspection，whereby visual and qualitative defects，namely，corrosion damage and processing defects，were ascertained.［Seller］was immediately notified.

Despite these defects，due to deadline pressure ［Buyer］was forced to install the table cooler immediately(from 29 May to 1 June 1996 )．Subsequently，during a first test run it was discovered that ［Seller］had incorrectly installed the temperature registers and the stipulated temperature output could not be produced.This defect could only be provisionally rectified by reversing the ventilators，as suggested by ［Seller］．

On 3 June 1996，［Buyer］notified ［Seller］in writing that the operation beginnings on 31 May 1996 had to cease due to diverse，individually cited，defects(for instance，because the loading air temperature already reached 70 degrees Celsius after only twenty minutes)．Furthermore，［Buyer］pointed out that as a consequence of the delayed commencement， high additional costs were to be expected due to stipulated penalties.

Thereafter，employees of［Seller］attempted to repair the defects noted by ［Buyer］at the construction site.In the meantime， Company S ＊ ＊ had also given notice to ［Buyer］of these defects.On 12 June 1996，［Seller］notified ［Buyer］that it had repaired the defects.On the same day，［Buyer］once again gave notice of defects per fax.［Buyer］claimed defects with the arrangement of the circulation systems，that the noise levels were too high，and defects with the overflow receptacle，with the pipes container，with the welding seams，etc.Furthermore，［Buyer］informed ［Seller］that the plant was opened for provisional operation so that the unit，even with existing defects，would be available for its customer.

According to its writing of 25 June 1996，［Seller］accepted the defects noted by ［Buyer］and promised to cure them by 5 July 1996.A cure was attempted on 3 July 1996.On 12 July 1996，［Buyer］informed ［Seller］that its customer was not willing to accept the cooler in its present condition，but rather expected the complete exchange of the cooling system.In its written response dated 15 July 1996，［Seller］asserted that the notice of defects was unjustified，since it had already cured all justifiably asserted defects.In its written response to that assertion dated 23 July 1996，［Buyer］insisted on its point of view and demanded that the defects be cured by 26 July 1996 at the latest or replacement measures would be taken.［Buyer］claims that by 1 September 1996 the waterworks were obliged to perform a contract with a local energy company to supply electricity，which is the reason why the table cooler had to be free of defects and accepted by Company S ＊ ＊ by this time;otherwise，［Buyer］would be subject to considerable damage claims.On 31 July 1996，［Buyer］further notified that(as has since been confirmed)the temperature register was distorted，the contractually stipulated performance(amount of energy)was not attained，and the contractually agreed-upon noise level was far from being reached.In order to keep the damages caused by ［Seller］to a minimum，a replacement from a third party was immediately solicited.There was no(longer)any reaction to this by ［Seller］．［Buyer］was therefore constrained to procure a two-cycle table cooler that met with contract specifications itself.In agreement with Company S ＊ ＊，［Buyer］disassembled the table cooler delivered by［Seller］and brought it to its plant to address the defects.There ［Buyer］，among other things，had to rebuild the rain roof and the fluid collection receptacle and reverse the temperature registers.Subsequently(already in September 1996)，the unit was again brought to V ＊ ＊ and assembled and the visual quality was now accepted by ［Buyer］'s customer.However，during operation it was determined that the unit，as constructed by ［Seller］，could not be aerated and was therefore not fully capable of functioning.

Due to the electricity contract，from 1 September 1996 the unit necessarily remained installed for the time being;in the following winter，provisional operation was possible thanks to the low outdoor temperatures.However，［Buyer］had to commit itself to deliver a functional unit to its customer thereafter.［Seller］was no longer informed of these events.

In accordance with the agreement with its customer，in early 1997 ［Buyer］again brought the cooler to L ＊ ＊.There，the unit was once again dismantled and newly designed temperature registers were installed so that，regarding this，an entirely new delivery was submitted with which all defects were finally cured.The table cooler was subsequently brought to its correct destination，installed，and is since in proper operation.

In the meantime，［Seller］had delivered to ［Buyer］four single-cycle ventilator coolers as per its further order of April 1996 and presented its invoice for DM 60，815.20.［Buyer］did not pay this invoice.Instead，it responded by way of a letter from its attorney dated 2 January 1997 announcing its intention to set-off the costs of curing the defects with the table cooler，which it figured at DM 175， 299，against ［Seller］'s claim.

Judgment of the Court of Second Instance

According to Art.38 CISG，the buyer must examine the goods，or cause them to be examined，within as short a period as is practicable in the circumstances.Under Art.39(1)CISG，the buyer must give notice to the seller specifying the nature of the lack of conformity within a reasonable time after he has discovered it or ought to have discovered it.The inspection period began the moment the goods are made available to the buyer at the place of delivery.The duration of this period depended on the objective conditions of the individual case，especially regarding the type of goods and defect，as well as the necessities and time expenditure required，as for instance with technical test procedures， test runs， etc.As a rough assessment for orientation purposes，an inspection period of one week(five work days)could apply.A reasonable inspection customary in the trade should occur that is thorough and business like.With characteristics of the goods that are difficult to inspect(such as technically complicated functions)，the buyer might have to bring in experts;however，unreasonably expensive or demanding inspections were not required.

According to Art.39 CISG，notice must be given within a reasonable time period.With discoverable defects，the notice period began immediately after the short inspection period of Art.38 CISG had run.With hidden defects，it began as soon as the buyer actually discovers such a defect.However，the buyer must investigate serious reasons to suspect error.As a rough norm for orientation，a notice period of one week could be set.Thus resulted an orientation time-frame of approximately fourteen days for the entire inspection and notice period.［Seller］'s standard terms deviated from this only in that written notice of obvious defects was to be given expressly within eight days after receipt of the goods.The obligation to immediately inspect the goods upon receipt，however，did not indicate that demands stricter than those of Art.38(1)had been desired.The requirements regarding the contents of notice should not be pushed too far.Notice must specify the nature of the lack of conformity adequately enough to put the seller in a position to be able to reasonably react to it.The buyer was obliged to provide further details only inasmuch as he could discover the extent of the lack of conformity(except for deviations in quantity)with reasonable effort during the notice period.Each defect was to be substantiated.Notice of one defect did not mitigate the duty to give notice regarding further defects，either present or arising later.Notice for these must also be given，should that be the case.In giving notice of a lack of conformity，the buyer did not yet need to communicate the rights he wants to assert.Whether for claims demanding substitute goods or repair(see Art.46(2)and(3)CISG)or demanding contract avoidance(Art.49 CISG)，the buyer had a further reasonable time period available.The buyer could claim price reduction and money damages，subject only to Art.39(2)CISG and statute of limitations provisions.

Based on this legal position，［Seller］claimed(wrongly)that notice of defects was late.The defect of not reaching the stipulated temperature output was due to the design and first became discoverable during provisional operation in the fall of 1996.The defective ventilation of the unit was also due to design.Notice that would have given ［Seller］enough cause to remedy these design related defects(at most by substitute delivery)，had long existed.Already during the first test run it was ascertained that the temperature gauges were incorrectly installed，so that the stipulated temperature output could not be reached.Notice of this defect was given immediately.The instructions of ［Seller］to reverse the direction of the ventilators did not present a long-term solution，and therefore were not a remedy of the defect.Only after correct arrangement of the temperature gauges could［Buyer］first discover that also in this condition the stipulated temperature performance values were not reached.

Besides the visual defects， for which［Buyer］gave notice by 3 July 1996，there is also the notice regarding the excessive noise levels given by fax of 12 June 1996.Due to the waiver of notice(which is to be presumed from the conclusion that ［Seller］accepted the notified defects with its writing from 25 June 1996)，a timely notice was given here as well.In the written notice of defects of 3 June 1996，it was already specified，among other things，that the loading air temperature was too high.

The right to demand a cure(Art.46(3)CISG)is，like the right to demand substitute delivery，a special expression of the general right to performance.It presupposes that the delivered goods are defective and that notice of the defect was timely given，which can be presumed in the case at hand.A natural requirement is that the defect be one that is capable of being repaired.Also，having regard to all the circumstances，a repair must not be unreasonable for the seller(Art.46(3 )CISG )．Particularly， it is unreasonable if the cure is disproportionately expensive for the seller.However，the relation between the cost to cure and the purchase price is irrelevant.The seller has the burden to prove(and to claim)the facts from which the unreasonableness of the cure is alleged，since the obligation to cure is the rule and unreasonableness the exception.If it is unreasonable to cure，in the case of an objectively serious defect the buyer can require delivery of substitute goods(Art.46(2)CISG)or declare the contract avoided(Art.49 CISG)，which the seller can avert by an offer to promptly deliver substitute goods.Within a reasonable time after giving notice，the buyer must clearly declare that it is requesting a cure or it will lose this right.

The facts of this case are characterized by the peculiarity that，due to technical design defects，an impossibility to effect the requested cure(repair)of the visual defects was not yet ascertainable at the time the cure was requested.If the seller does not effect a cure within a reasonable time，the buyer can remedy the defect itself or through a third party and claim the costs from the seller as damages(Art.45(1)(b)CISG)．The buyer can also remedy the defect itself(claiming the cost as damages against the seller)，if a cure is not expected by the seller，i.e.，a claim for cure under Art.46(3)CISG is not available.However，in doing so，the buyer may not undertake any unreasonable expenditures(Art.77 CISG):if the costs to effect a cure stand in no reasonable proportion to the benefit of the cure for the buyer，then they are not recoverable.From this follows that the expense counterclaim is proper insofar as the cost of obtaining a substitute is reasonable(measured by the benefit of the cure for the buyer，having regard to his situation)．Thus，it is significant that ［Buyer］would have been subject to considerable damages claims，of which it had also informed ［Seller］．

In reason of the situation，(deadline pressure，ordering a substitute unit from a third party would have taken months，the fundamental design defects were not yet ascertainable，substantial damages claims were threatening)and the costs to remedy the defects，which are recoverable as damages under these principles， the costs to obtain a substitute to remedy the“visual”damages were therefore correctly charged against the ［Seller］．Despite the disparity between the value of the original delivery(approx.DM 21 000)and the amount of ［Seller］'s claim set-off here，they do not seem unreasonable.

思考题

1.简述本案基本事实。

2.公约对于买方检验货物的时间限制是如何规定的?

3.公约对于买方关于货物与合同规定不符所发出的通知有何要求?

4.本案中买方何时发现的货物与合同规定不符的情况?

5.公约第46条第(3款)对于买方索赔通知的要求是如何规定的?

6.根据本案事实买方是否已经丧失了索赔权利?

案例34

Court of Appeal(Oberlandesgericht)

of Koblenz

31 January 1997 ［2 U 31/96］

Facts of the Case

The Plaintiff-Appellee［Seller］，a textile producing company under Dutch law，claims for payment of acrylic blankets against Defendant-Appellant ［Buyer］，a German company trading in beddings and blankets.On 24 November 1993，［Buyer］confirmed by signature an offer(made on 4 November 1993)in which Seller proposed to sell blankets in a couple of designs.

Delivery took place on 3 December 1993 at ［Buyer］'s place of business.The goods were unloaded on Saturday，4 December 1993.In its bill of 3 December 1993，［Seller］invoiced an amount of 73，409.10 DM(Deutsche Mark)for this delivery.

By letter of 8 December 1993，［Buyer］complained about defective wrapping and packaging，about the overall quality of the delivered goods，and about one box and five rolls of blankets that were missing.

In a meeting at［Buyer］'s place of business on 28 January 1994， ［Buyer］alleged that［Buyer］'s managing director， ［Seller］'s managing director and the Spanish manufacturer of the fabrics were unable to agree on how to deal with this situation.

［Buyer］'s letter of 25 April expressed its will to overcome the differences between the parties but did not entail any kind of settlement.

［Seller］has acknowledged that one box and two rolls of blankets had been missing in its delivery.Therefore，［Seller］credited ［Buyer］an amount of 1 001.40 DM.Taking this into account， ［Seller］in the Court of First Instance claimed for payment of the remaining 72 407.70 DM.Subsequently，［Seller］also reduced its claim by another 350 DM to compensate ［Buyer］for efforts taken.

Position of the Parties

［Seller］'s position

A right to exclusive distributorship of the goods had never been part of the parties' agreement.Also，［Seller］'s offer to firm(X)concerned goods which were incomparably different than the blankets ［Buyer］had ordered.

［Buyer］'s position

［Seller］had breached the exclusive distributorship agreement between the parties;and the goods that［Seller］delivered did not conform to the contract in quantity and in quality;apart from the acknowledged two missing rolls of blankets，three more rolls of blankets were missing.

On 29 July 1993，the parties had discussed the prospects of their business relationship and ［Seller］had guaranteed ［Buyer］the exclusive supply of socalled Telan blankets within the German market.In turn， it had been bindingly agreed that from then on ［Buyer］'s products should be distributed in the Netherlands and Belgium exclusively through ［Seller］and its Belgian sister company，firm(Y)．

Immediately after the delivery，［Buyer］came to realize that［Seller］was supplying another German company，firm(Z)in A.，with exactly the same kind of blankets—for a lower price.Due to this violation of their agreement，［Buyer］had lost any economic interest in the transaction.

Further，the goods that ［Seller］delivered were deficient and poorly packaged.［Buyer］notified［Seller］of this immediately.Among other things，the plush of the acrylic blankets had been too thin and thus did not conform to the specifications made in the contract.As concerns the rolls of blankets，the fabric of these goods did not have the requested roughened finish.At their meeting of 28 January 1994，［Seller］acknowledged these defects.Even so，considering all viable options，the parties could not reach final agreement on how to deal with the situation.

Opinion

The court held that the seller's claim was justified(article 53 CISG)．Lack of conformity includes lack of both quality and quantity(article 35(1)CISG)，but the buyer had lost its right to rely on the lack of conformity under the Convention.Although the buyer gave notice that five reels of blankets were missing， it did not specify of which design.As the seller had delivered blankets in different designs，the notice did not enable the seller to remedy the nonconformity.Therefore，the notification was said to lack sufficient specification(article 39(1)CISG)．

As to the sale being conditional upon compliance with an exclusive distributorship agreement，the court stated that，if any such condition existed，which the buyer had failed to prove，the buyer had lost its right to declare the contract avoided as it failed to do so within a reasonable time(article 49(2)(b)(i)CISG)．The period of time considered reasonable must be determined in the light of the seller's interest in certainty and whether the seller has to arrange for alternative use of the goods.Even taking into account the time required for consideration，to obtain legal advice，and for negotiations between the parties，eight weeks was held to be unreasonable.These considerations also would apply to the time period within which the buyer could declare the contract avoided due to the lack of conformity of the goods.

Moreover，since the seller had made an offer to deliver new goods，which was refused by the buyer，the lack of quality did not amount to a fundamental breach of contract(article 25 CISG )．In considering a breach to be fundamental，account has to be taken not only of the gravity of the defect，but also of the willingness of the party in breach to provide substitute goods without causing unreasonable inconvenience to the other party(article 48(1)CISG)．Thus，in the given case，even a serious lack of quality was said not to constitute a fundamental breach as the seller had offered to furnish additional blankets(article 49(1)CISG)．Therefore，the buyer was not entitled to damages as it had rejected the seller's offer for new delivery without justification(article 80 CISG)．It thereby also lost its right to reduce the price(article 50(second clause)CISG)．

The seller was entitled to interest(article 78 CISG )， determined according to Dutch law.

Art.35(1)CISG obligates the seller to deliver goods which are of the quantity，quality and description required by the contract.But，according to Art.39(1)CISG，the buyer loses the right to rely on a lack of conformity of the goods—i.e.，deficient quantity of the goods—if he does not give notice to the seller specifying the nature of the lack of conformity within a reasonable time after he has discovered it or ought to have discovered it.［Buyer］failed to give sufficiently specific notice in the sense required by Art.39(1)CISG.［Seller］'s bill of 3 December 1993 listed rolls of blankets of different design.Yet，［Buyer］'s complaint notice of 8 December 1993 merely mentioned that five rolls were missing.Such notice does not suffice to enable［Seller］to provide for remedy of its failure to perform.Therefore， it cannot suffice under Art.39 CISG and the other relevant CISG provisions.Moreover， ［Buyer］did not give specific and timely notice in any other way either.

In addition，［Buyer］cannot rely on the claimed violation of a right to exclusive distributorship.This must be concluded irrespective of whether one assumes that the parties have indeed stipulated such an exclusive right—as claimed by［Buyer］．［Buyer］does not provide any evidence to substantiate its allegation that，by the parties' agreement，compliance to such a right to exclusive distributorship had been made an essential legal condition，affecting all the other transactions between the parties，thus derogating from CISG provisions pursuant to Art.6 CISG.

In any case，this does not entitle ［Buyer］to declare the contract avoided for fundamental breach of contract under Art.49(2)(b)(i)CISG.According to Art.49(1)(a)CISG，the buyer may declare the contract avoided if the failure by the seller to perform any of his obligations under the contract or the CISG amounts to a fundamental breach of contract.A fundamental breach of contract may well lie in the violation of a secondary obligation such as adherence to an agreed right to exclusive distributorship(see:Caemmerer / Schlechtriem;CISG，2nd ed.，Art.49 note 17)．Yet，the buyer needs to declare the avoidance of the contract within a reasonable time after he knew about the fundamental breach of contract;otherwise he loses his right according to Art.49(2)(b)(i)CISG.［Buyer］itself has submitted that it realized that ［Seller］supplied other German companies with the same kind of goods for a lower price immediately after the deliveries on 3 and 4 December 1993 had taken place(see p.27)．On the assumption that this had actually been the case，［Buyer］would have been allotted a certain amount of time to consider its legal options，to seek legal counselling and to initiate negotiations with ［Seller］．However，this time frame would have certainly expired before 28 January 1994，when ［Buyer］'s and ［Seller］'s managing directors met with the Spanish manufacturer.

Considering the various statements ［Buyer］claimed to have made on occasion of this meeting，one cannot assume that ［Buyer］had unambiguously declared the contract avoided，thus refusing any further performance from ［Seller］．In its writing to ［Seller］of 25 April 1994，［Buyer］mentioned ［Seller］'s supply of other customers in Germany for a lower rate.Yet，［Buyer］did not declare the contract avoided then， but instead made suggestions on how the transaction could be completed in the current situation to both sides' satisfaction.If at all，one could assume that ［Buyer］had threatened to avoid the contract during the meeting.However，in no way did the statements and suggestions that ［Buyer］made amount to a definite declaration to avoid the contract.

Neither the spirit of Art.49(2)(b)，which aims to ensure the seller has enough information and clarity to arrange for alternative use of the goods，nor the circumstances of the particular case indicate that ［Buyer］should have been allotted a more generous period of time—until 28 January 1994 or even later—to consider its options or seek a settlement agreement.［Buyer］'s own submissions do not suggest this.At the crucial point of time，［Buyer］had been well informed about all relevant facts as well as about ［Seller］'s position in the dispute.［Buyer］could not rightfully assume ［Seller］would make further concessions.Hence，it must be concluded that if ［Buyer］wanted to rely on ［Seller］'s breach of contract，i.e.，the violation of the exclusive distribution agreement，［Buyer］would have needed to declare the contract avoided before 28 January 1994.［Buyer］'s declaration in its letter of 25 April 1994 was too late and by no means appropriate under the requirements of Art.49(2)CISG.Furthermore，this letter does not even entail a declaration to avoid the contract，but merely addresses ways how to complete the transaction.

［Buyer］'s loss of its right to rely on ［Seller］'s breaches of contract for failure to declare the contract avoided also extents to the claimed deficiencies of the delivered goods.As far as ［Buyer］'s submissions could possibly constitute a fundamental breach of contract，again ［Buyer］had failed to unambiguously declare the contract's avoidance within reasonable time as required under Art.49(2)(b)(i)CISG.The Court hereby refers to its reasoning above.

Even on the assumption that the delivered goods had been deficient，［Seller］'s conduct does not amount to a fundamental breach of contract as required under Art.49(1)(a)CISG;［Buyer］itself has admitted that ［Seller］had offered to remedy the defects in the conversation on 28 January 1994.［Buyer］rejected this offer.Subject to Art.49，the seller may，even after the date for delivery，remedy at his own expense any failure to perform his obligations，if he can do so without unreasonable delay and without causing the buyer unreasonable inconvenience or uncertainty of reimbursement by the seller of expenses advanced by the seller(Art.48(1)CISG)．Compliant to this provision，［Seller］，within the conversation of 28 January 1994，offered delivery of blankets of the required standards through its Spanish manufacturer.By its reference to Art.49 CISG，Art.48 CISG gives priority to the buyer's right to avoid the contract over the seller's right to remedy for his failure to perform as stated in Art.48(1)CISG.However，this can only apply in cases in which the delivery of defective goods amounts to a fundamental breach of contract in the sense of Art.49(1)(a)CISG and Art.25 CISG.This again depends not only on the gravity of the defect， but also on the seller's willingness to remedy the defect without causing unreasonable delay or inconvenience to the buyer.Even a severe defect may not constitute a fundamental breach of contract in the sense of Art.49 CISG，if the seller is able and willing to remedy without causing unreasonable inconvenience to the buyer(see von Caemmerer / Schlechtriem，ibidem，Art.48 note 20 with further references)．［Seller］expressed its sincere intention to remedy in the sense of the provision to ［Buyer］in the conversation of 28 January 1994.［Buyer］was not justified to refuse ［Seller］'s offer to remedy without giving any reason.［Buyer］merely argued that ［Seller］had breached the exclusive distribution agreement.But，as ［Buyer］failed to declare the contract avoided，［Buyer］lost its right to rely on this breach of contract by ［Seller］．［Buyer］'s chosen strategy to unfairly keep to itself all options available—to the other party's detriment—must not pay off.Irrespective of whether or not the delivered blankets had been deficient，［Seller］'s delivery did not constitute a fundamental breach of contract.

思考题

1.简述本案基本事实。

2.买方的索赔内容和理由是什么?

3.买方何时通知卖方货物与合同不符的情况?

4.关于买方所主张的卖方少交的五卷毯子是否可以索赔?

5.买方所主张的卖方违反独家经销协议的主张能否成立?

6.买方所主张的卖方交付货物存在质量问题的主张能否成立?

7.买方是否满足了公约第38条和第39条关于检验货物和提出索赔的条件?

8.双方在1月28日举行的会议所具有的法律上的意义是什么?

9.买方是否有权依据公约第49条解除合同?

10.公约第49条解除合同与第48条卖方补救权利之间的关系是什么?

案例35

Court of Appeals(Oberlandesgericht)Karlsruhe

19 December 2002 ［19 U 8/02］

The plaintiff contracted with a Swiss company，the defendant，for a machine to be manufactured by the defendant according to the plaintiff's requirements.The plaintiff refused to accept the machine upon an inspection at the defendant's place of business as well as a result of another inspection which took place after the good was delivered to the plaintiff.The plaintiff alleged defects and a lack of conformity with respect to the machine's clock speed，although it was not clear whether an agreement on a certain clock speed had in fact been reached by the parties.The defendant agreed，however，to take the machine back and improve it so that it would meet the requirements as described in the defendant's offer and in the confirmation of the plaintiff's order.In a subsequent letter the plaintiff fixed the deadline for performance and made it clear that after that he would not accept any performance.However，the machine was damaged while being returned to the manufacturer due to its negligent loading.The defendant refused to take delivery and to perform any upgrade，whereupon the plaintiff declared in a letter his refusal to accept performance and sued for the repayment of the payments already made in advance.

Judgment

［Buyer］'s claim for restitution for paid installments is sustainable under Art.81(2)，sentence two，CISG.Contrary to the District Court's judgment，this Court holds that［Buyer］could rely on Art.49(1)CISG and declare the contract avoided as ［Seller］had definitely refused delivery of the purchased goods.Moreover，［Buyer］did not forfeit this right to declare the contract avoided under Art.82(1)CISG.

1.After damage had occurred during carriage of the goods，［Seller］refused to render the required corrective measures and to deliver a wrapping machine that did conform with the contract.In turn， ［Buyer］refused to accept performance，after an additionally set time limit for delivery had expired.Thus，［Buyer］was entitled to declare the contract avoided in accordance with Arts.45(1)， 46， 47 and 49(1)CISG.It is true that the ［Buyer］did not make a distinct declaration of avoidance of the contract(Art.26 CISG)by notice to［Seller］，nevertheless his intentions were clearly expressed in a letter dated 29 January 1999，in which he notified ［Seller］that he would deny acceptance of any further delivery and asked for reimbursement of installments on the purchase price that were already paid.

2.［Buyer］did not forfeit his claim for restitution(Art.81(1)CISG)by the provisions of Art 82 CISG，as he cannot be held responsible for the damage that had occurred during the transit.［Seller］delivered the wrapping machine in April 1998.It is undisputed that ［Buyer］did not accept the machine as it did not conform with the contract.Instead，［Buyer］gave notice of the lack of conformity and ［Seller］agreed to take the machine back to ［Seller］'s factory in order to correct the lack of conformity.The Court does not need to inquire as to what corrections ［Seller］exactly bound herself to perform.In particular it is irrelevant，whether it was part of the agreement，that the machine should be made adaptable to a certain production speed(or accurate clock rate)．However，the letters dated 30 October 1998 and 1 December 1998 clearly indicate，that ［Seller］agreed to optimize the machine to the extent that it would meet the standards that had been the basis of the negotiations between ［Buyer］and ［Seller］．Hence，［Seller］conceded that the machine，as it had been delivered，did not fully conform with the contract，and that the defects had to be remedied.For that reason，［Buyer］was asked to hand the delivered goods back to ［Seller］，so that the machine could be taken back to the factory.

Irrespective of whether delivery had taken place，or whether the risk for damage had passed or not，in any case ［Buyer］was obligated to take all reasonable steps to preserve the goods ［Buyer］received，as stated in Art.86(1)CISG.Yet，this duty was limited to the time when the machine was actually in ［Buyer］'s possession，i.e.，before ［Seller］would take the machine back to［Seller］'s factory.It did not entail the carriage of the machine itself，as this carriage fell within［Seller］'s responsibility.Therefore，［Buyer］'s obligation was only to place the machine ready and fit for transportation at ［Seller］'s disposal，just as Art.31(c)CISG reduces the seller's liability to place the goods at the buyer's disposal at the place where the seller had his place of business at the time of the conclusion of the contract(see:Huber，ibidem，Art.31(c)CISG note 56;Achilles，UN-Kaufrecht(2000)，Art.31 CISG，note 11)．This duty to offer the goods ready and fit for carriage includes all necessary packaging(Huber，ibidem note 55，Achilles，ibidem)．As in case of Art.31(c)CISG， proper stowage would fall within the［Buyer］'s responsibility，it was ［Seller］'s obligation to dispatch the machine that ［Buyer］placed at ［Seller］'s disposal in the present case.

The delivered stand for the machine，which also had to be given back to ［Seller］，cannot be considered as a part of the package.It must be assumed that packaging was not necessary and that the machine was ready and fit for dispatch and transportation just as it was.

There is no clause in the agreement between ［Seller］and ［Buyer］，that requires the stand to be installed for transportation of the machine.［Seller］'s order to［Seller］'s carrier，given on 17 December 1998，(even provided it had been known to ［Buyer］)did not indicate that it was ［Seller］'s wish that the machine should only be transported together with its stand.Naturally，a carriage together with the stand would have made the transportation of the machine safer.However，this does not change the fact that the machine was offered to［Seller］in a state in which it was ready and fit for transportation just as it was.

It cannot be derived from the contract that ［Buyer］had assumed liability for the proper stowage of the machine on the van of the carrier.Hence，［Buyer］cannot be held responsible for the lack of safety mechanism on the van which caused the damage to the machine.Therefore，the case depends on who actually assumed liability for the stowage of the machine according the agreement between ［Buyer］and ［Seller］．According to the submissions of ［Seller］that had been approved in the judgment of the District Court(Landgericht)，it was［Buyer］who，in placing the machine separated from its stand，at the disposal of ［Seller］，set the main cause for the accident and the damage of the machine.This conclusion cannot be upheld.The main reason for the damage was not the separation of machine and its stand，but it was the improper stowage of the machine on the van of the carrier.This cause does not fall within ［Buyer］'s responsibility.The case would have had to be considered differently if ［Buyer］had actually assumed liability for the proper stowage of the goods，or if ［Buyer］had been aware，or could have easily been aware of the improper stowage of the machine.In this case，a liability for the preservation of the goods could have been derived from either Art.86(1)CISG or from the principle of good faith.However，there is no evidence for this being the case.

The testimonies of witness O and witness M.put doubt on ［Seller］'s submission that［Buyer］was responsible for the stowage.Both testified that the stowage was not conducted by［Buyer］but by witness O who directed a forklift and its driver.Witness O asserted that he did not receive any instructions from ［Buyer］as regards how to dispatch the machine.Hence，a liability of ［Buyer］cannot be assumed.

According to O，the machine had been properly dispatched:It had been fixed on a firm grounding and had been sufficiently secured against falling off the van.O decided that additional safety belts were not necessary.However，O had wrongly estimated the center of gravity of the machine to be lower than it actually was.

［Buyer］does not dispute that he failed to draw O's attention to the relatively high center of gravity of the machine.But this does not constitute a liability of［Buyer］under Art.82(2)(a)CISG.A duty to warn could have only been laid on ［Buyer］，if it had been obvious for either himself or for witness M， that witness O grossly underestimated the gravity of the machine and thus failed to take precautions that would have been necessary for a secure stowage.Only under these conditions，would it have been appropriate for ［Buyer］to insist on additional safety measures for the dispatch of the machine.However，this has not been the case.As transportation and stowage were mandated to a professional carrier， who sequalification to retain a knowledgeable driver was unquestionable，there was no point for ［Buyer］whatsoever，that would have raised doubt on the proper dispatch and carriage of the machine.

思考题

1.请简述本案基本事实。

2.买方在公约第82条项下的义务是什么?

3.买方在公约第86条项下的义务是什么?

4.在买方将货物返还卖方的过程中的风险由哪一方承担?

5.在本案中买方是否满足了公约第82条和公约第86条项下的义务?