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- Title
Art. 75 CISG erleichtert Nachweis des Nichterfüllungsschadens.
- Authors
Tebel, David
- Abstract
In the present article, a legal dispute is discussed in which a buyer demands compensation from a seller. The buyer had ordered a harvesting machine, which was not delivered. The buyer filed a lawsuit but later limited his claim to an alternative request, as he had already purchased a replacement machine. The court ruled that the buyer would have been mostly successful with his compensation claim if his lawyer had acted diligently. Therefore, the lawyer was ordered to pay compensation. This is an appeal in civil matters before the Federal Court, in which various claims for damages related to a breach of contract are being negotiated. The Federal Court examines the legal violations and is not bound by the arguments of the lower court. The hierarchy of courts must be exhausted before an appeal can be filed with the Federal Court. In the present case, the question is whether the respondent is entitled to compensation for a breach of the lawyer's duty of care by the appellant. According to Article 398 paragraph 1 of the Swiss Code of Obligations, a lawyer is liable for the damage intentionally or negligently caused to the client. There are four conditions for this liability: a breach of contractual obligations, damage, a causal connection between the breach of contract and the damage, and fault. The burden of proof for the first three conditions lies with the client, while the lawyer must prove that he is not at fault. In the present case, it was found that the lawyer had violated her duty of care regarding the purchase of cover. The appellant also complains that the respondent did not sufficiently explain how he would have proceeded in the lawsuit against C.S.A.R.L. if he had fulfilled his duties. However, the lower court found that the appellant would have had a claim for compensation in principle. Finally, the appellant complains that the cover purchase was not made within a reasonable period of time. However, the lower court decided that the requirements of Article 75 of the UN Convention on Contracts for the International Sale of Goods (CISG) were met. In the present case, the violation of Articles 74 and 75 of the CISG by the lower court is at issue. Article 74 states that compensation for a breach of contract must not exceed the loss that the breaching party could have foreseen at the time of contract conclusion. Article 75 allows the buyer to claim the difference between the contract price and the price of the cover purchase as damages. The appellant argues that the respondent did not declare the termination of the contract and that the cover purchase was not made within a reasonable period of time. The lower court decided that the appellant would have had to challenge both justifications in order to be successful. The appeal is rejected. The Swiss Federal Court has ruled in a judgment on the liability of a lawyer for violations of the duty of care. The lawyer had failed to quantify his client's damage in a previous legal dispute in a timely manner. The Federal Court confirms that the duty of care of a lawyer also applies.
- Subjects
REASONABLE care (Law); BREACH of contract; DISCHARGE of contracts; LEGAL liability; LEGAL judgments; INSURANCE crimes; ATTORNEY &; client; DATA security failures; PAY for performance
- Publication
Internationales Handelsrecht, 2023, Vol 23, Issue 2, p60
- ISSN
1617-5395
- Publication type
Article
- DOI
10.9785/ihr-2023-230203