Facts
Pancommerce AG, a company specialised in international trade, purchased copying paper from 3M East AG, a subsidiary of an international group, to resell it in Eastern Europe. In 1974, 3M East AG refused to execute certain orders from Pancommerce AG for Romania and Bulgaria. Pancommerce AG then claimed damages from 3M East AG.
The Commercial Court of the Canton of Zurich partially granted Pancommerce AG's claim, awarding it CHF 171,955. Both parties appealed to the Federal Tribunal.
Considerations
The Federal Tribunal considered that the Commercial Court could not base itself on Art. 191(3) CO for the calculation of damages, as Pancommerce AG had failed to prove the existence of a market price. However, the Federal Tribunal ruled that the Commercial Court could nevertheless proceed with an assessment of the damage according to the general rules of Art. 42(2) CO, when precise proof of the damage is not possible.
According to the Federal Tribunal, Pancommerce AG's claim aims to compensate for the loss of profit, i.e. the difference between the agreed price with 3M East AG and the price at which Pancommerce AG could have…