Finland

Helsinki 26 S 00/82 1078 Court of Oct. Appeals 2000

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.h tml> 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> 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> FURNITURE CASE

Germany

OLG Kln

8 Jan. 1997

27 U 58/96

217

Germany

LG 6 Apr. 12 HKO 665 Mnchen 2000 4174/99

[No claim for loss of profits with regard to another re-sale contract] The [buyer] may not recover damages from the sales contract regarding the goods to be delivered to [buyer]'s customer XXX & Partner. The delivery date named in the [buyer]'s order, namely the end of the 27th calendar week, was not agreed between the [buyer] and the [seller]. The contract was not formed -- according to trade usage and the parties' practices -before the confirmation of order was sent to the [buyer]. Any prior confirmations of the delivery time

stipulated by the [buyer]'s offer are consequently not to be considered binding. The confirmation of order, however, named 20 September 1997 as the date of dispatch and therefore materially differed from the [buyer]'s offer. [Seller] thus made a new offer [counter-offer] as to the terms of entering into a sales contract (see Sec. 150 Par. 2 BGB[*]), which [buyer] did not object to, but solely asked [seller] for a confirmation of 3 July 1997 as the agreed date of taking delivery of the goods. However, [buyer] did not have the right to ask for such a confirmation, as no contract had as yet been concluded. By holding on to the order and continuously requesting the [seller] to effect an expeditious delivery, the [buyer] concurrently and implicitly accepted the [seller]'s offer. For this reason, [buyer] accepted in particular to enter into a sales contract based on distinguished terms concerning the date for delivery of the goods. [Buyer] bore the duty to refuse [seller]'s new offer after [seller] had not confirmed the prior date for the delivery of the goods which [buyer] requested. Since the [buyer] held on to [seller]'s delivery obligation, the contract was formed with the content of [seller]'s confirmation of order. Hence, [seller] was not under any duty to effect delivery of the goods before 20 September 1997.

Austria

OGH

14 Jan. 7 Ob 643 2002 301/01t

The court held that the buyer was entitled to recover losses as a result of the seller's nonperformance, 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.h tml> Cooling system case

Finally, the Supreme Court noted that the right to

damages under article 74 CISG follows the principle of foreseeability and full compensation, and that all losses, including expenses made in view of the performance of the contract and loss of profit, are to be compensated to the extent they were foreseeable at the time of the conclusion of the contract. According to the Court, the foreseeability requirement is met if, all the circumstances of the case considered, a reasonable person could have foreseen the consequences of the breach of contract, even if not in all details and in their final amount (article 8(2) CISG). Consequential loss may also be compensated, if not excluded by parties' agreement, as it was not in this case. Germany LG 9 May 10 O Darmstad 2000 72/00 t 560

Video recorders case

The court ruled that damages due to loss of goodwill are available only if financial loss is established. Case Text, Abstract, and Commentary: <http://cisgw3.law.pace.edu/cases/000509g1. html>

Germany

LG 30 12 HKO 668 Mnchen Aug. 5593/01 2001

Wine case
The court held that damages due to loss of goodwill are not available under Convention. Case Text, Abstract, and Commentary: <http://cisgw3.law.pace.edu/cases/010830g1. html>

Switzerlan HG d Zrich

10 HG 488 Feb., 970238. 1999 1

Art books case

The court denied the recoverability of damages under Article 74 for the loss of chance. Case Text, Abstract, and Commentary: <http://cisgw3.law.pace.edu/cases/990210s1.h tml>

United States

Tx. Ct. of 1917 Civil

The court held that damages for loss of chance are special damages that are only recoverable

Appeals Case Name: Kansa s City, M& O. Ry. Co. v. Bell

if the contracting parties are aware of these potential damages at the time the contract is made. Citation: 197 S.W. 322