• If the par+es to a sales contract have their establishment in different States,
being member States to the CISG, when they enter into their sales contract, the CISG
shall be applicable and govern the contract (Art. 1(1)(a) and Art. 100(2) CISG).
Require reasonable certainty not absolute certainty: reasonably be expected - có thể
dung cho chắc gì bán hết - mình nói là expected chứ kg đòi absolute chắc chắn bán hết
Nature of the loss prevent from presen+ng evidence proving with absolute certainty
+ Lost profits involve guesswork either in rela+on to hypothe+cal future or past events
(inten+on bán hang vào ngày lễ của t không đạt được - căn cứ vào horn cản
circumstance ngày lễ đó thì t có thể có expected revenue mà) and the occurrence of
such events will depend on different con+ngencies such as economic condi+ons, prices,
preferences of consumers => Không biết là cho ngày lễ lớn
=> Nếu ko bán được thì t đã không order số lượng lớn, với giá trị đơn hàng lớn, và
preference của customer là có - mà còn rõ hơn là t thấy m đảm bảo quality nên +êu
chuẩn mới theo m nữa
=> Đã ấn định thời gian giao hàng ở 2 đợt khác biệt nhau with a fixed +me of delivery và
liên tục yêu cầu replace chứng tỏ cái vấn đề quan trọng với t là nhận được hàng để
resale
=> Taken these circumstances into considera+on, a prudent commercial trader should
have been aware that any breach of contractual obliga+ons would result in our failure
to resell and meet our demand at such +me
=> Failing to meet demand would mean lost profits
Not exceed for foresee - equal to the cost of these boxes - that mean at least have to be
at such price
Nếu có hang vậy thì m sẽ bán rồi có được profit thì có lost nữa đâu:
And when resale, it is common sense to acknowledge that any resell would not be at the
same price as the purchased price (equivalent amount to the Claimant’s prepaid amount
of all the Goods - the number of non-conforming goods no challenge from the
Respondent), that is the nature of business. This requirement is to prevent the
aggrieved party from claiming for substan+al lost of money - since it is unreasonable to
expect they must foresee the exact price or how much would the price gap be
Vấn đề evidence: even ì không có evidence cụ thể thì based ơn circumstances Á
demonstrated in thesse cases vẫn có thể đòi lót profits
h‚ps://[Link]/files/cases/6397/transla+onFile/426_29944100.pdf Case No T
171/95 District Court Saane (Switzerland) 20 February 1997 (Spirits case)
639
The UPICC refer to the applicability of the standard to a ‘harm’15 and since no par+cular
type of harm or loss is specified, it follows that any type of recoverable loss must be
proved with ‘reasonable cer- tainty’
• The same is generally the case in the US law: ‘The requirement with respect the
certainty of
proof is the same when the plain+ff is asking damages to reimburse his pecuniary losses
as when he is asking damages to make up for gains prevented’
Members of the Tribunal, under Ar+cle 77 CISG, while the Claimant must take
reasonable steps, it is well established that the burden lies on the Respondent to prove
both a failure to mi4gate and the extent of loss that could have been avoided, as
reflected in
In the absence of such proof, the mi+ga+on defense cannot succeed.
“Members of the Tribunal, while the Claimant detected the defects upon receipt,
detec+on does not equate to the ability to prevent all consequences of the breach.
It is unreasonable to expect Claimant to have control of all possible sources that could
have been made known of these defects
In a retail se“ng, even short disrup+ons—par+cularly during peak demand—can
undermine customer trust.
Moreover, the reputa+onal harm arose not only from defec+ve goods, but also from the
Respondent’s failure to deliver sufficient quan+ty, which prevented the Claimant from
mee+ng demand.
=> However, no ma‚er who distributed these informa+on, the primary fault lies with
the Respondent. Had they not delivered defec+ve Goods and con+nuously failed to
supply the required demand, these chain of events would not have happened
Under Ar+cle 77 CISG, the Claimant is only required to take reasonable steps, and the
Respondent has not proven that further mi+ga+on would have avoided the loss.
Did any defec+ve Goods reach customer?
Members of the Tribunal, the case file does not specify the exact extent of distribu+on.
However, even aside from that, the inability to meet demand due to the Respondent’s
breach was sufficient to damage the Claimant’s reputa+on.”