Caso Superb

Response to the lawsuit of SUPERB versus CONTROLS

CONTROLS shall not be condemned to the payment of what SUPERB is asking to CONTROLS to be paid before the arbitration panel because:

1. SUPERB didn’t have the right to resolve the agreement because of what article 48 number 2) of the United Nations Convention on Contracts for the International Sale of Goods (“CCIM”) establishes:

“Article 48

(1) …

(2) If the seller requests the buyer to make known whether he will accept performance and the buyer does not comply with the request within a reasonable time, the seller may perform within the time indicated in his request…

(3) …

(4) …”

According to the facts CONTROLS did replied to SUPERB if they would be satisfied if the installation was completed, including the testing, within the next six weeks, i.e., by 30 October 1996. The following is a transcript of said part of the facts.

“The following day, 19 September 1996, CONTROLS replied that it had given Reliable notice that if it did not send a new installation team to SUPERB within the next three weeks, it would terminate the contract and seek a new firm to do the installation. CONTROLS asked whether SUPERB would be satisfied if the installation was completed, including the testing, within the next six weeks, i.e., by 30 October 1996.”

In that understanding, as CONTROLS didn’t receive a complaint of SUPERB about their petition of getting the installation and testing done by the 30th day of October, 1996, within a reasonable time, CONTROLS had the right to perform its obligation within the time indicated in his request.

What SUPERB asks before the arbitration panel is that the agreement is declared resolved and to condemn CONTROLS to the payment of the reimbursement, the interests and the damages. The arbitration panel should not declare resolved the agreement because CONROLS, according to the before mentioned was within the time of performing his obligation.

2. SUPERB did have the right to suit CONTROLS before the arbitration panel, but not for the reimbursement, the interests neither the damages because, in accordance with what the second part of the number 2) of article 48 CCIM establishes, which is the following:

“Article 48

(1) …

(2) …The buyer may not, during that period of time, resort to any remedy which is inconsistent with performance by the seller.

(3) …

(4) …”

Regarding what this second part of the number 2) of article 48 CCIM establishes, SUPERB, would only have the right to ask the arbitration panel to oblige CONTROLS to perform his obligation of the installation of the control system.

3. SUPERB asked to the arbitration panel to declare resolved the agreement because of the lack of installation by the side of CONTROLS for having CONTROLS incurred in a fundamental breach of the contract.

A fundamental breach of a contract is defined as “a breach that causes the other party a perjury that does not let it substantially get what it had the right to expect in virtue of the contract, unless the other party that did not performed his obligation would not have foreseen that result and that a reasonable person of the same condition would not have foreseen the same situation.”

In this case, CONTROLS did not foreseen that the airplane of Reliable could crash and neither would a reasonable person of the same condition could have foreseen that result, so this lets us to that the breach of the contract could not have been fundamental and in accordance to what article 49, number 1), letter a) CCIM establishes, SUPERB could not have resolved the contract.

Article 49, number 1), letter a) CCIM establishes the following:

“Article 49

(1) The buyer may declare the contract avoided:

(a) if the failure by the seller to perform any of his obligations under the contract or this Convention amounts to a fundamental breach of contract; or…”

According to the before mentioned, SUPERB could not have declared the contract avoided and therefore did not have the right to suit CONTROLS what it is asking for and also CONTROLS has the right to claim that SUPERB has breached the contract by avoiding the contract on 9 October 1996 and to claim its right to recover its damages from the advance payment.

4. SUPERB claims that there is a fundamental breach of the contract because by the 9th day of October 1996 Reliable didn’t have installed the control system but according to the

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