the resale purchases the goods on its own account. Here, in particular, regard is to be had to the requirement that the resale price be reasonable. 88-1

A resale pursuant to Art. 88(2) CISG only requires a notification where such notification is possible. The criterion is whether the resale would be made impossible were prior notice to be given.

Tribunal of International Commercial Arbitration at the Russian Federation, Arbitral Award No. 340/1999,

10 February 2000, CISG-online 1084284

(For a summary of the facts see C 78-2 above.)

[Judgment] The [buyer] has admitted during the hearings that it had not refused to take the delivery of the second lot of the goods [. . .]. [. . .] The [seller], in turn, based on [buyer]’s failure to perform contract provisions, had not shipped the second lot of the goods to the [buyer] and instead left them in his warehouse. In connection with this it has to be mentioned that in accordance with Article 77 CISG, the [seller], as the party relying on a breach of contract, should have taken such measures as are reasonable in the circumstances to mitigate the loss resulting from the breach. Pursuant to Article 88 CISG, if the goods are subject to rapid deterioration or their preservation would involve unreasonable expenses, the party who is bound to preserve the goods (the [seller] in this case) must take reasonable measures to sell them. However, the [seller] has not provided any evidence of any measures taken to sell the goods or inability to make such a sale, and

admitted during the hearings that due to long preservation a significant part of goods was spoiled and the rest was given without payment to charity organizations. Resulting from this, the price of the goods manufactured by the [seller] cannot be imposed fully on the [buyer]. It should be also considered that from the price of the goods should be deducted expenses for insurance and transportation costs, which are components of the price of the goods to be shipped under the contract on the term “C.I.F. Russian port (St. Petersburg)”. Considering the aforesaid and taking into account that both parties had breached both the contractual provisions and the rules of applicable law, the claims of the [seller] as to recovery of the contract price of this lot of goods have to be granted in the amount proportional to 25% of the price. [. . .]

Art. 88(3) CISG states that the party undertaking the resale may deduct the reasonable costs for preservation and resale from the sum obtained in the resale.