【正文】 2022 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior written permission of the publisher. Printed in the United States of America. 。 2022 1045 Case 107: Nuova Fucinati, SPA v. Fondmetall International, AB ? Plaintiff was to deliver 1,000 metric tons of chromite to the defendant in Sweden. ? The price of chromite rose 43% before delivery. ? Since Sweden had not ratified the CISG, its excuse for nonperformance based on an impediment beyond the party’s control did not apply. Pearson Education, Inc publishing as Prentice Hall 169。 2022 1043 Remedies Available to Both Buyers and Sellers ? Remedies available to both are: 1. Suspension of performance, 2. Avoidance in anticipation of a fundamental breach, ? A remedy available to either party when it bees clear that the other party will mit a fundamental breach. 3. Avoidance of an installment contract, and 4. Damages. ? A breaching party is liable only for those damages that he/she foresaw or ought to have foreseen. Pearson Education, Inc publishing as Prentice Hall 169。 2022 1041 Reduction in Price ? If a buyer is not entitled to damages when a seller delivers nonconforming goods, the buyer will be entitled to a reduction in price. ? The buyer may reduce the price in the same proportion as the value that the goods actually delivered had at the time of delivery bears to the value that conforming goods would have had at that time. The formula is: Pearson Education, Inc publishing as Prentice Hall 169。 2022 1039 Buyer’s Remedies ? The buyer may avoid a contract if either 1. The seller mits a fundamental breach or 2. The buyer gives the seller a Nachfrist notice and the seller rejects it or does not perform within the period it specifies. ? A buyer’s Nachfrist notice is the fixing of an additional period of time of reasonable length for performance by the seller of his or her obligations. ? During the Nachfrist period, the seller is entitled to correct or cure the nonconformity at his or her own expense. Pearson Education, Inc publishing as Prentice Hall 169。 2022 1037 Means of Delivery ? If the goods are to be delivered “Free Alongside Ship” (FAS) Big Ocean, New York City, NY, the seller bears the risk until the goods are delivered to NY alongside the Big Ocean. ? When a contract requires the seller to arrange transportation to a specific destination, the risk of loss does not pass to the buyer until the goods are handed over or placed at his/her disposal at that place. When a seller in China agrees to a contract containing a “Delivered Duty Paid (DDP) Los Angeles, California, the seller bears the risk of transporting the goods to LA. Pearson Education, Inc publishing as Prentice Hall 169。 2022 1035 Passage of Risk ? The legal concept of passage or risk is the point in time when the buyer bees responsible for losses to the goods. ? Once the risk passes, the buyer must pay for the goods. Even if they are damaged or destroyed. ? CISG allows the parties to allocate risk and specify when risk will pass. The parties usually show passage of risk through the usage of trade terms, such as Free on Board (FOB) or Cost, Insurance, and Freight (CIF). Sinking ship in the Strait of Gibraltar. Photo Lic: CCBY .wiki/Image:MV_New_Flame_salva Pearson Education, Inc publishing as Prentice Hall 169。 2022 933 Case 105 The Natural Gas Case ? The plaintiff, a Germany pany, negotiated to buy natural gas from an Austrian partnership. The defendant was to ship the propane from the US to the plaintiff in Belgium. The plaintiff was to obtain a letter of credit once the defendant told it where the propane was to be loaded. ? Issue: Had the defendant breached the contract by failing to deliver the propane or was its duty to perform excused by the plaintiff not obtaining a letter of credit? Pearson Education, Inc publishing as Prentice Hall 169。 2022 1031 ThirdParty Claims, Waiver, Time for Examining Goods, and Curing Defects ? Goods are nonconforming if they are subject to thirdparty claims such as ownership and rights in intellectual property. ? The parties may waive the conformity requirement. ? Buy has an obligation to examine the goods for defects within as short a period as is practicable