Superwines Case

58.According to Art. 74 CISG, only when the loss was foreseeable by the other party can the injured party be entitled to demand compensation of profit lost as a consequence of the breach of contract by the other party. [UNCITRAL CISG DIGEST, p. 347]. In this case, however, CLAIMANT’s loss was unforeseeable for RESPONDENT.

1. RESPONDENT could not have foreseen that CLAIMANT would accept the orders from other customers

59.RESPONDENT known that CLAIMANT may receive some pre-orders before communicate with RESPONDENT. However, the main purpose of the pre-orders is to allow CLAIMANT to calculate the quantity its customers need before entering into negotiations with RESPONDENT [PO 2, p. 53, para. 6]. Thus, the only significance of the pre-orders is

Like CLAIMANT, SuperWines is also one of the RESPONDENT’s selected customers. Although SuperWines was willing to pay the RESPONDENT a premium, SuperWines was only promised that 30% of the 15,000 bottles it intended to order could be purchased, and SuperWines accepted that [PO 2, p. 56, para. 22]. All other customers also showed understanding. Only CLAIMANT did not, but insisted in the delivery of sufficient bottles, which entailed forcing RESPONDENT to breach the contracts with its other customers. CLAIMANT’s attitude was breach of the good faith obligation in the contract, and was unforeseeable for

51, para. 4], UPICC shall be applied in this case. Pursuant to UPICC Art. 7.4.8, the non-performing party is not liable for harm suffered by the aggrieved party to the extent that the harm could have been reduced by the latter party’s taking reasonable steps. The aggrieved party is entitled to recover any expenses reasonably incurred in attempting to reduce the harm. Therefore, it is CLAIMANT’s obligation to look for a substitute seller, and mitigate its loss. RESPONDENT merely needs to compensate the mitigation cost occurred in CLAIMANT’s substitute