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Summary judgment is proper where the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
Plaintiff Raw Materials, Inc. ("RMI" or "Plaintiff"), an Illinois corporation dealing in used railroad rail, has brought suit against Defendant Manfred Forberich GMBH & Co., KG ("Forberich" or "Defendant"), a German limited partnership selling such rail, alleging breach of contract and fraud relating to Defendant's undisputed failure to meet its contractual obligation to deliver 15,000-18,000 metric tons of used railroad rail to Plaintiff. Defendant defended on force majeure grounds, arguing that it was prevented from performing by the freezing over a port. The parties agreed that their contract was governed by the Convention on Contracts for the International Sale of Goods, Jan. 1, 1988 (reprinted at 15 U.S.C.S. app.). The plaintiff has moved for summary judgment.
Under the circumstances, was plaintiff entitled to summary judgment?
In applying article 79 of the Convention, the court looked to caselaw interpreting § 2-615 of the Uniform Commercial Code, which required three conditions to be satisfied before performance was excused: a contingency occurred, the contingency made performance impracticable, and the nonoccurrence of that contingency was a basic assumption upon which the contract was made. In this case, there were issues of fact as to whether the frozen port prevented the defendant seller from delivering the rails by a particular date. Moreover, there was an issue of fact regarding the nature of an oral extension of the time for performance of the contract and whether that extension merely required the seller to load the rail by the specified date. There were also issues of fact as to whether the early freezing was foreseeable. Accordingly, the plaintiff’s motion for summary judgment was denied.