A Study on the Buyer's Duty to Mitigate Seller's Damages in CISG

CISG상의 매수인의 손해경감의무에 관한 고찰

A party who relies on a breach of contract must take such measures as are reasonable in the circumstances to mitigate the loss, including loss of profit, resulting from the breach. Appropriate measures are those aimed at lessing the loss as far as reasonably possible. Such measures will typically be a resale of the goods by the seller or a cover purchase by the buyer. The measures the injured party is expected to take in order to mitigate the loss must be reasonable in the circumstances. Article 77 will be applied to the difference between the amount by which the loss should have been mitigated under Article 77. A reduction of damages is the only remedy available to the party in breach in cases covered by Article 77. If the buyer has received the goods and intends to exercise any right under the contract or this Convention to reject them, he must take such steps to preserve them as are reasonable in the circumstances. If goods dispatched to the buyer have been placed at his disposal at their destination and he exercises the right to reject them, he must take possession of them on behalf of the seller. Article 86(1) requires that the buyer manifest his intention at the moment of receipt of the goods. Article 86(2) envisages that the goods have been dispatched to the buyer and that they have been placed at his disposal at their destination. Article 87 allows him to deposit them in the warehouse of a third person. It is not necessary that the warehouse by public, or that it be a general warehouse for storage. A party who is bound to preserve the goods in accordance with articles 86 may sell them by any appropriate means taking possession of the goods or in taking them back or in paying the price or the cost of preservation. If the goods are subject to rapid deterioration or their preservation world involve unreasonable expense, a party who is bound to preserve the goods must take reasonable measures to sell them. A difference exists between paragraph Article 88 (1) which grants the right to sell, and paragraph (2 )which imposes the duty to take reasonable measures to sell the goods. According to Article 88(2), the party who wishes to sell must give notice to the other party of such intention, to the extent possible.