《联合国国际货物销售合同公约》中的卖方救济

第二节　《联合国国际货物销售合同公约》中的卖方救济

《联合国国际货物销售合同公约》对于损害赔偿总的原则是第七十四条规定的“一方当事人违反合同应负的损害赔偿额，应与另一方当事人因他违反合同而遭受的包括利润在内的损失额相等。这种损害赔偿不得超过违反合同一方在订立合同时，依照他当时已知道或理应知道的事实和情况，对违反合同预料到或理应预料到的可能损失”。

由此可见，销售合同公约损害赔偿的目的是使守约方恢复到合同正常履行时的地位。同时损害赔偿的限制是超过违反合同一方在订立合同时，依照他当时已知道或理应知道的事实和情况，对违反合同预料到或理应预料到的可能损失，即可预见性限制。

在《联合国国际货物销售合同公约》中规定的卖方救济包括:

1.公约第七十五条所规定的，如果卖方已以合理方式把货物转卖，可以取得合同价格和替代交易价格之间的差额以及按照第七十四条规定可以取得的任何其他损害赔偿。

2.公约第七十六条所规定的，如果卖方没有根据第七十五条规定进行转卖，则可以取得合同规定的价格和宣告合同无效时的时价之间的差额以及按照第七十四条规定可以取得的任何其他损害赔偿。

此外，卖方根据公约第七十八条，如果买方没有支付价款或任何其他拖欠金额，有权对这些款额收取利息。

案例26

GERMANY:OLG Düsseldorf

14 January 1994

Facts of the Case

On 31 March 1992，the ［buyer］ordered 140 pairs of shoes from the ［seller］．The ［seller］manufactured the shoes.However，［seller］was unwilling to dispatch the shoes without having received a security for payment of the purchase price by the ［buyer］．This was because the ［buyer］was in default of payment with respect to an earlier invoice.The ［seller］therefore informed the ［buyer］，by way of a letter of［seller］'s attorney on 9 July 1992，that ［seller］would consider avoidance of the contract if the ［buyer］failed to provide an adequate assurance of payment by 16 July 1992.As the ［seller］did not receive such an assurance，the［seller］'s attorney declared the contract avoided by letter of 5 August 1992.

Of the shoes manufactured for the ［buyer］，the ［seller］sold 21 pairs on 16 September 1992 to a company M.for Italian Lira［It￡］255 000;this was the price that the ［seller］and the ［buyer］had originally agreed upon.The ［seller］sold another 109 pairs to a company S.at a price lower than that agreed in the contract with ［buyer］，namely It￡50 000 per pair，overall It ￡5 450 000.The remaining 10 pairs are still in the ［seller］'s warehouse and are valued by him at a price of It￡50 000 per pair.

The ［buyer］'s appeal challenges this finding of the Court of First Instance.While the ［buyer］no longer denies the basis of its liability，it submits that the damages from the substitute transactions arose because the ［seller］'s efforts to find new customers were neither timely，nor were they made with sufficient diligence.The ［buyer］holds that the attorneys' fees claimed are not recoverable because the attorneys' relevant services are already covered by the attorney fee for the current proceedings.The ［buyer］furthermore objects to compensation for the currency devaluation，making the argument that there is no indication that the ［seller］had intended to exchange the amounts paid in Italian Lira to Deutsche Mark.Finally，the ［buyer］disputes the extent of the interest loss claimed by ［seller］．

Reasons for the Decision of the Appellate Court

I.Damages for Substitute Transaction After Avoidance

The right to recover the price difference stems from Art.75 CISG.According to that provision，the seller may recover the difference between the contract price and the price in the substitute transaction，if it has resold the goods in a reasonable manner and within a reasonable time after avoidance of contract.

The avoidance of contract was declared by letter of 5 August 1992，which was received by the ［buyer］on 7 August 1992.Therefore，the relevant time frame under Art.75 CISG started on 7 August 1992.The ［buyer］'s objection that the ［seller］was obliged to enter a substitute transaction before declaring the contract avoided is incorrect.It might even be doubted whether the［seller］was at all entitled to enter a substitute transaction before declaring the contract avoided.In any case， even if a seller is entitled to enter a substitute transaction before his declaration of avoidance，it is not obliged to act in such a way.Rather，it is entitled to initially insist on the performance of the contract and enter the substitute transaction only when it has declared the contract avoided.Whether the seller breaches his obligation to mitigate damages pursuant to Art.77 CISG if it delays the decision to avoid the contract in an unreasonable manner，is a different matter.Such conduct cannot be found in the present case.

It is true that the ［seller］，in order to meet the requirements of Arts.75 and 77 CISG，was obliged to make a reasonable effort to sell the shoes as favorably as possible.The Appellate Court is convinced that the ［seller］satisfied this obligation.The ［seller］has submitted that it offered the shoes in Italy to merchants who buy remaining stock at the end of the season.［Seller］has also submitted that his German attorney contacted the commercial agent active in Germany and inquired about the possibility of a substitute transaction;the commercial agent replied that it did not see a chance，as all customers were already well supplied and the stocks were still filled from the previous winter season，which had been a very mild one.

The ［buyer］considers the ［seller］'s efforts in Italy as insufficient and disputes the ［seller］'s inquiry with the German commercial agent.Despite the ［buyer］'s challenge，the Appellate Court does not see a reason to conduct a hearing of evidence.In doing so，the consideration is decisive that retailers already order the desired winter goods—such as the goods in the present dispute—from manufacturers or wholesalers in spring or summer，and then start their resale in October.Therefore，there was hardly any possibility to sell further winter goods in the relevant time period from 7 August onwards.This is because there is generally no reason for a retailer to stock further goods after his supplies have been filled and the selling season has begun.It must be attributed to a piece of luck if at that point in time a sale at the original price is still possible—as in the present case the sale to company M.Such an isolated case cannot set the standard for the efforts required under Arts.75 and 77 CISG.In view of these facts，it can be assumed that the ［seller］would also not have been able to resell the goods with a reasonable effort on the German market，and that it had to accept price reductions on the Italian market.

II.Attorneys' Fees

The ［seller］may not claim damages for attorneys' fees(DM 954)incurred by the avoidance of contract.It is true that Art.74 CISG encompasses compensation for the cost of a reasonable pursuit of one's legal rights.The avoidance of contract and the communication between the ［seller］and his representing attorney in the present compensation proceedings regard the same matter.Therefore，the attorney is only allowed to demand one fee，the fee for his actions as a corresponding attorney.

It may be the case that the attorney's services regarding the avoidance of contract and his actions as a corresponding attorney are based on two different commissions.Nevertheless，the question whether several activities of an attorney regard one or more matters in the meaning of the BRAGO is determined not only by the individual commission， but also by the circumstances of fact that form the basis of the attorney's activities.Consequently，the services rendered by the ［seller］'s attorney need to be considered as a single activity.The avoidance of contract constituted solely a preliminary stage of the claim for damages，which is the subject of the current proceedings.This is already evident from the attorney's first letter of 9 July 1992，with which the ［buyer］was warned that the ［seller］might declare the contract avoided.This letter announces that，in case of avoidance of the contract，the ［seller］would enter into a substitute transaction and would request compensation from the ［buyer］for the damages incurred.The written declaration of avoidance of 5 August 1992 again announces a substitute transaction and a damages claim.It was therefore clear from the beginning that the ［seller］not only intended to free himself from the contract，but also that ［seller］primarily wanted to recover damages from the ［buyer］．Seen in this light，the announcement and the declaration of avoidance of contract constitute only a preparatory step for the claim for damages envisaged from the beginning.

III.Currency Devaluation

The ［seller］also may not recover the currency devaluation of the Italian Lira against the German Mark in the amount of It￡1 382 250.

A currency devaluation can only be compensated if it leads to damages on the part of the creditor，for instance，if the creditor usually conducts his money transfers in a third currency and therefore always converts other currencies immediately after their receipt.In such a case，the currency devaluation has an unfavorable effect.Generally，however，an unfavorable development in the exchange rate does not lead to losses if the payment was to be effected in the creditor's currency.Usually，the creditor's currency is not converted into a different currency.Nothing in the present case indicates that the ［seller］suffered losses as a result of the exchange rate fluctuation.The ［seller］'s contention that it needed German currency for visits to trade fairs and similar activities in Germany is irrelevant.The ［seller］needed and bought those foreign currencies independently of the ［buyer］'s breach of contract.In that respect，the ［seller］'s damage consists solely in the fact that it had to take further bank credit.This damage does not have anything to do with the currency devaluation.

思考题

1.简述本案基本事实。

2.买方对于卖方的索赔请求而提出的抗辩理由是什么?

3.根据公约解除合同与进行替代交易的救济行为之间的关系是什么?

4.本案卖方的转售价格是否合理，判断的标准依据是什么?

5.法官认为卖方是否可以索赔相关律师费用?

6.法官认为卖方主张的汇兑损失是否可以支持?理由是什么?