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CISG Advisory Council Opinion No. 6: Annex (Case Overview)

Country/ Arbitration Court / Tribunal Date Docket No. CISG-online No. Details
Arbitral Ad Hoc 15 March 1963

Case Name:

Sapphire International Petroleums Ltd. v. National Iranian Oil Co.

    
  • The tribunal stated that damages for breach of contract are based on full compensation for economic loss.
  • Reprinted in 35 I.L.R. 136 (1967).
Arbitral ICC 1 Jan. 1992 Case No. 7585 105
Arbitral Arbitration Institute of the Stockholm Chamber of Commerce 13 July 1993 Interim Award of 17 July 1992 and Final Award of 13 July 1993  
  • The tribunal held the Chinese battery manufacturer liable for damages, because the loss of profit experienced by the Swedish buyer was foreseeable and a fair representation of prospective earnings during the relevant time period.
  • Reprinted in pertinent part in XXII Y.B. Com. Arb. (1997).
Arbitral Tribunal
(Russia)		 ICAC 21 Apr. 1994 61/1993  
Arbitral ICC 1995 Final Award in Case No. 8362 of 1995  
  • In this non-CISG case, the tribunal held that when calculating damages, the following "counterbalancing factors" are considered: while there must be a sound basis for calculation, the breaching party cannot escape liability simply because the amount of damages cannot be determined.
  • Reprinted in pertinent part in XXII Y.B. Com. Arb. 164, 177 (1997).
Arbitral ICC 1996 Final Award in Case No. 78445 of 1996  
  • The tribunal held the Indian manufacturer met its burden of providing reasonable proof of its lost profits, because the claimant only has to provide a "reasonable estimate of the loss, based on such elements as are available" and not prove them with absolute certainty.
  • Reprinted in XXVI Y.B. Com. Arb. 167, 175 (2001)
Arbitral ICC 23 Jan. 1997 8611/HV/JK 236
  • The tribunal ruled that the question concerning the extent the aggrieved party has to prove that they suffered damages is a procedural matter beyond the scope of the Convention.
  • Case Text, Abstract, and Commentary:
    <http://cisgw3.law.pace.edu/cases/978611i1.html>
Arbitral Arbitration Institute of the Stockholm Chamber of Commerce 1997 Case No. 107/1997  
  • The tribunal held the seller's goods did not conform to the contract and awarded the buyer foreseeable damages including, the cost of storing and preserving goods, the cost of freight, insurance, and duties associated with delivery to customers.
  • Case Text, Abstract, and Commentary:
    <http://cisgw3.law.pace.edu/cases/980107s5.html>
Arbitral Ad Hoc 4 May 1999

Case Name:

Himpurna California Energy Ltd. V. P.T. (Persero) Perusahaan Listruik Negara

Final Award of 4 May 1999
  • The tribunal stated that if damages were limited to what the aggrieved party has spent in reliance on the contract, the breaching party would have an incentive to breach when the contract is no longer in their financial interest.
  • Reprinted in XXV Y.B. Com. Arb. 13, 83-84 (2000).
Arbitral Tribunal

(Russia)

 ICAC 27 July 1999 302/1996 779
  • The tribunal ruled that the Russian seller had failed to give the Swedish buyer notice of avoidance of the contract within a reasonable time after the seller knew or should have known the relevant facts.
  • Case Text, Abstract, and Commentary:
    <http://cisgw3.law.pace.edu/cases/990727r1.html>
Austria Vienna Arbitral Tribunal 15 June 1994 SCH-4366 691
Austria OGH 14 Jan. 2002 7 Ob 301/01t 643
  • The court held that the buyer was entitled to recover losses as a result of the seller's non-performance, including loss of foreseeable profits and the cost of repairing the defective goods. However, since the seller's contract excluded consequential damages, the buyer could not recover other damages it suffered in relation to its contract with another consumer.
  • Case Text, Abstract, and Commentary:
    <http://cisgw3.law.pace.edu/cases/020114a3.html>
Canada Supreme Court of Canada 1979

Case Name:

Asamera Oil Corp. v. Sea Oil & General Corp

    
  • The court awarded damages for the failure to return shares of Asamera stock based on the "highest intermediate value of the stock between the time of its conversion and a reasonable time after the owner" had notice to replace it. p. 662 Avoidable losses are not recoverable.
  • Citation: 1 S.C.R. 633
Canada Ontario Court 16 Dec. 1998

Case Name:

Nova Tool and Mold Inc. v. London Industries Inc.

 97-GD-41311 Windsor 572
  • The court held that the buyer was entitled to damages for the measures undertaken to place the buyer in the position it would have been in if the seller had performed the contract, i.e. the extra costs incurred by changing producers and "graining" the molds.
  • Case Text, Abstract, and Commentary:
    <http://cisgw3.law.pace.edu/cases/981216c4.html>
Finland Helsinki Court of Appeals 26 Oct. 2000 S 00/82 1078
  • In a case where, the seller wrongfully refused to deliver a product the buyer had not previously been in the business of selling, the court, in estimating the buyer's damage as a result of the seller's breach, held that the buyer's sales goal could not be used as basis for estimating lost profits.
  • Case Text, Abstract, and Commentary:
    <http://cisgw3.law.pace.edu/cases/001026f5.html>
France CA Grenoble 21 Oct. 1999

Case Name:

Sté Calzados Magnanni v. SARL Shoes General International

 96J/00101 574
  • The court held that the French buyer was, in principle, entitled to damages resulting from the Spanish seller's breach of contract and that the buyer could recover its loss of commercial reputation only if it could prove that such loss resulted in monetary damages.
  • Case Text, Abstract, and Commentary:
    <http://cisgw3.law.pace.edu/cases/991021f1.html>
Germany LG Heidelberg 27 Jan. 1981 O 116/81  
  • The court ruled that the seller bears the risk of suffering exchange rate damages based on "financial nominalism" [ULIS precedent]. The Court held that since the contract did not evidence an agreement to the contrary, the nominal value of the sum stated was definitive and the seller could not claim damages from the buyer based on currency fluctuation.
  • Case Text, Abstract, and Commentary:
    <http://cisgw3.law.pace.edu/cases/810127g1.html>
Germany OLG Düsseldorf 14 Jan. 1994 17 U 146/93 119
  • The court awarded damages for exchange rate losses under Article 74. Exchange rate damages are available when the aggrieved party can show that if it had received payment when due it would have obtained a higher value by converting the money into its local currency.
  • Case Text, Abstract, and Commentary:
    <http://cisgw3.law.pace.edu/cases/940114g1.html>
Germany LG Landshut 5 Apr. 1995 54 O 644/94 193
Germany AG München 23 June 1995 271 C 18968/94 368
  • The court ruled that the aggrieved party is entitled to recover the costs of measures undertaken to place it in the same position it would have been had the contract been properly performed. Thus, the aggrieved party was compensated for repairing defective goods.
  • Case Text, Abstract, and Commentary:
    <http://cisgw3.law.pace.edu/cases/950623g1.html>
Germany LG Trier 12 Oct. 1995 7 HO 78/95 160
  • The court ruled that nonperformance loss is calculated by taking the difference between the value to the aggrieved party of the expected performance and the value to the aggrieved party of what, if anything, was actually received.
  • Case Text, Abstract, and Commentary:
    <http://cisgw3.law.pace.edu/cases/951012g1.html>
Germany LG Bielefeld 2 Aug. 1996 12 O 120/95  
Germany OLG Köln 8 Jan. 1997 27 U 58/96 217
  • The seller of tanning machines did not return, by the agreed upon date, machines that it had taken back to adjust. The buyer then hired a third party to treat its leather goods. The court ruled that, under Article 74, the buyer was entitled to recover the sum paid to the third party because the hiring of that party was viewed as reasonable under the circumstance.
  • Case Text, Abstract, and Commentary:
    <http://cisgw3.law.pace.edu/cases/970108g1.html>
Germany OLG Hamburg 28 Feb. 1997 1 U 167/95 261
Germany BGH 25 June 1997 VIII ZR 300/96 277
Germany OLG München 28 Jan. 1998 7 U 3771/97 339
Germany BGH 25 Nov. 1998 VIII ZR 259/97 353
  • The court stated that "[t]he seller's liability includes the consequential damages that the buyer suffered through reimbursement to her customer for the damages caused by the foil non-conformity."
  • Case Text, Abstract, and Commentary:
    <http://cisgw3.law.pace.edu/cases/981125g1.html>
Germany LG München 6 Apr. 2000 12 HKO 4174/99 665
  • The court denied the buyer's claim for lost profits on the grounds that awarding damages to buyer based on substitute transaction formula under Article 75 made the buyer whole.
  • Case Text, Abstract, and Commentary:
    <http://cisgw3.law.pace.edu/cases/000406g1.html>
Germany LG Darmstadt 9 May 2000 10 O 72/00 560
Germany LG München 30 Aug. 2001 12 HKO 5593/01 668
Italy District Court Pavia 29 Dec. 1999

Case Name:

Tessile v. Ixela

   678
  • Losses resulting from declining exchange rates are generally regarded as not being compensable. According to the court, ordinary currency devaluation is intended to be compensated through the awarding of interest. The tribunal denied the right to recover losses due to monetary devaluation where currency of agreement was also creditor's local currency.
  • Case Text, Abstract, and Commentary:
    <http://cisgw3.law.pace.edu/cases/991229i3.html>
Netherlands District Court Roermond 6 May 1993

Case Name:

Gruppo IMAR v. Protech Horst

920159 454
New Zealand Court of Appeal, Wellington 14 August 1981

Case Name:

Isaac Naylor & Sons Ltd. v. New Zealand Cooperative Wool Marketing

    
  • The court awarded damages for exchange rate losses.
  • Citation: 1 N.Z.L.R. 361
Switzerland

(Arbitral Award).

 HG Zürich 31 May 1996 ZHK 273/95  
Switzerland HG Zürich 5 Feb. 1997 HG 95 0347 327
Switzerland Bezirksgericht der Saane 20 Feb. 1997 T 171/95 426
  • The court ruled that the question of to what extent the aggrieved party has to prove that they suffered damages is a procedural matter beyond the scope of the Convention.
  • Case Text, Abstract, and Commentary:
    <http://cisgw3.law.pace.edu/cases/970220s1.html>
Switzerland HG Zürich 10 Feb., 1999 HG 970238.1 488
Switzerland HG St. Gallen 3 Dec. 2002

Case Name:

DT Ltd. v. B. AG

 HG.1999.82-HGK 727
  • The court awarded damages for exchange rate losses under Article 74. A creditor is entitled to claim damages for any suffered exchange rate loss due to the breach. She may claim the amount calculated on the more favorable exchange rate at maturity. When a creditor of a foreign currency debt usually conducts its business in a different currency, presumably such a party would immediately convert the foreign currency and therefore be entitled to the value determined by the exchange rate at maturity of the obligation.
  • Case Text, Abstract, and Commentary:
    <http://cisgw3.law.pace.edu/cases/021203s1.html>
United Kingdom Court of Appeal 1911

Case Name:

Chaplin v. Hicks

    
  • The court ruled that an aggrieved party could recover damages for loss of chance to win a beauty pageant, because such damages should have been within the contemplation of the parties at the time the contract was formed.
  • Citation: 2 K.B. 786
United Kingdom Court of Appeal 1976

Case Name:

Milliangos v. George Frank (Textiles) Ltd.

    
  • The court awarded damages for exchange rate losses.
  • Citation: 1976 A.C. 443, 465
United States Tx. Ct. of Civil Appeals 1917

Case Name:

Kansas City, M & O. Ry. Co. v. Bell

    
  • The court held that damages for loss of chance are special damages that are only recoverable if the contracting parties are aware of these potential damages at the time the contract is made.
  • Citation: 197 S.W. 322
United States Iowa Supreme Court 1920

Case Name:

Wachtel v. National Alfalfa Journal Co.

    
  • The court held damages for loss of chance were recoverable by a person actively participating in a sales contest that was unexpectedly cancelled, because both parties could have anticipated such damages at the time the contract was made.
  • Citation: 176 N.W. 801
United States Texas Supreme Court 1938

Case Name:

Southwest Battery Corp. v. Owen et al.

    
  • Since the plaintiff failed to promptly meet the defendants' car battery needs, the court awarded the plaintiff the difference between money owed and defendants' lost profits, holding that the party in breach cannot escape liability simply because it is impossible for the aggrieved party to precisely calculate his damages.
  • Citation: 115 S.W.2d 1097
United States Cal. Court of Appeals 1942

Case Name:

Oakland California Towel Co. v. Sivils

   
  • As a result of the defendant's breach of the linen supply contract, the court awarded the plaintiff the difference between what payments would have accrued if the contract were completed, less the expenses plaintiff would have incurred by performance. The court held that overhead costs are fixed costs that were unaffected by non-performance of the contract, and thus, not deducted from the plaintiff's damages.
  • Citation: 126 P.2d 651
United States California Supreme Court 1955

Case Name:

California Lettuce Growers v. Union Sugar Co.

    
  • The court stated that, even though the aggrieved party has the burden of proving damages, such damages need not be plead with mathematical precision.
  • Citation: 289 P.2d 785
United States California Court of Appeals 1958

Case Name:

Edwards v. Container Kraft & Paper Supply Co.

   
  • The court held that the plaintiff, whose former employer enjoined him from building a competitive business, could recover for loss of prospective profits for an unestablished business, because the occurrence and extent of such damages were established with reasonable certainty. The court noted that an aggrieved party can establish the extent of damages through the use of expert testimony, economic and financial data, market surveys and analyses, or business records of similar enterprises.
  • Citation: 327 P.2d 622
United States United States Court of Claims 1960

Case Name:

Locke v. United States

    
  • The court held that where the loss of chance for profit is not outweighed by risk of loss and where the aggrieved party can prove calculable damages with reasonable certainty, the court should value those lost opportunity damages.
  • Citation: 283 F.2d 521
United States United States Supreme Court 1965

Case Name:

Hanna v. Plumer

    
  • The U.S. Supreme Court abandoned the substance-procedure distinction for determining the validity of a federal rule of civil procedure where it may conflict with a state law because such test was unworkable.
  • Citation: 380 U.S. 460
United States NY Court of Appeals 1972

Case Name:

Neri v. Retail Marine Corp.

    
  • The court held that, although the breaching buyers are entitled to recover their deposit, this amount must be offset by the seller's loss of profit on the sale and incidental damages.
  • Citation: 285 N.E.2d 311
United States Kansas Supreme Court 1979

Case Name:

Butler v. Westgate State Bank

    
  • The court held that an aggrieved party could establish the extent of damages through the use of expert testimony, economic and financial data, market surveys and analyses, or business records of similar enterprises.
  • Citation: 596 P.2d 156
United States Nebraska Supreme Court 1979

Case Name:

Alliance Tractor & Implement Co. v. Lukens Tool & Die Co.

    
  • The court affirmed plaintiff's award of damages from machine manufacturer, because the evidence "was sufficient to furnish a reasonable certain factual basis for the computation of probable losses" of this relatively new business.
  • Citation: 281 N.W.2d 778, 782.
United States US Court of Appeals (5th Cir.) 1986

Case Name:

Bagwell Coatings v. Middle S. Energy

    
  • A fireproofing contractor on a nuclear power station was awarded damages when the defendant breached a contract provision regarding access, because the court held that plaintiff proved to a reasonable certainty that a loss was sustained or will be sustained even though the exact amount of the loss was unknown.
  • Citation: 797 F.2d 1298
United States Nevada Supreme Court 1986

Case Name:

Houston Exploration, Inc. v. Meredith

    
  • The court held that the plaintiff's expert testimony should have been admitted at trial in order proffer an evidenciary basis for lost profits of a new business enabling the jury to weigh the testimony and reasonably ascertain the losses.
  • Citation: 728 P.2d 437
United States Supreme Court of Alabama 1987

Case Name:

Super Valu Stores, Inc. v. Peterson

    
  • The court held that the inability of the aggrieved party to precisely calculate one's damages does not enable the breaching party who caused the damage to escape liability. Therefore, the risk of uncertainty of the jury's calculation must fall on the breaching party.
  • Citation: 506 So. 2d 317, 330
United States Wash. Supreme Court 1993

Case Name:

Lewis River Golf v. O.M. Scott & Sons

  
  • The court held that expert testimony assessing plaintiff's loss of business goodwill was not too speculative; therefore, the plaintiff buyer was entitled to damages for loss of profits and for loss of business reputation that resulted from weeds in the seller's seed supply.
  • Citation: 845 P.2d 987
United States US Court of Appeals (7th Cir.) 1996

Case Name:

Mid-America Tablewares, Inc. v. Mogi Trading Co

    
  • The court held the plaintiff was entitled to damages for lost profits, because the defendant contractor could have anticipated them and bore the risk of uncertainty in establishing damages as the breaching party.
  • Citation: 100 F.3d 1353
United States US Court of Appeals (2nd Cir.) 6 December 1995

Case Name:

Delchi Carrier SpA v. Rotorex Corp.

 95-7182,

95-7186

140
  • The question of to what extent the aggrieved party has to prove that they suffered damages is a procedural matter beyond the scope of the Convention. Damages only need to be proved with reasonable certainty. The aggrieved party is entitled to recover the costs of measures undertaken to place it in the same position it would have been had the contract been properly performed.
  • Citation: 71 F.3d 1024
  • Case Text, Abstract, and Commentary:
    <http://cisgw3.law.pace.edu/cases/951206u1.html>
United States United States Supreme Court 1998

Case Name:

Sun Oil Co. v. Wortman

    
  • "Except at the extremes, the terms 'substance' and 'procedure' precisely describe very little except dichotomy, and what they mean in a particular context is largely determined by the purposes for which the dichotomy is drawn."
  • Citation: 486 U.S. 717
United States US Court of Appeals (7th Cir.) 2002

Case Name:

Zapata Hermanos Sucesores v. Hearthside Baking Co.

    
  • The court held that issues concerning the awarding of attorneys' fees and costs were to be resolved under domestic procedural law and not under CISG Article 74.
  • Citation: 13 F.3d 385, 388
  • Case Text, Abstract, and Commentary:
    <http://cisgw3.law.pace.edu/cases/021119u1.html>
United States US Court of Appeals (4th Cir.) 21 June 2002

Case Name:

Schmitz-Werke v. Rockland

   625
United States US District Court, Southern District of New York 12 August 2006

Case Name:

TeeVee Toons, Inc. (d/b/a TVT Records) & Steve Gottlieb, Inc. (d/b/a Biobox) v. Gerhard Schubert GmbH

 00 Civ. 5189 (RCC)  
  • The court denied the defendant's summary judgment motion with respect to TVT's claims under CISG Article 74 for funds paid for the Schubert System, its labor and service, administration of the Biobox Project, and lost profits, because TVT is entitled to seek damages equal to losses resulting from the breach that were foreseeable at the time the contract was created.
  • Case Text, Abstract, and Commentary:
    <http://cisgw3.law.pace.edu/cases/060823u1.html>