In his letter dated 25th May 2008, Jack Williams stated that he believed Frank Wu to be in breach of several contracts, and that he would be pursuing this in the manner stipulated in the contract, that being Arbitration in accordance with the Swiss Rules of Arbitration. However, in the same letter Mr Williams stated that he would soon commence actions against Mr Wu in the Supreme Court of Victoria, thus leaving us with much ambiguity as to the applicable judiciary. However, regardless of where and before who the matter is heard, the substantive issues of law are still the same. Mr Williams is refusing to pay Mr Wu, as he is holding him to be in breach of several contractual obligations.
It seems as though Mr
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Furthermore, Mr Wu’s statement implied that the rig ould operate at varying speeds, not that the speed was in direct correlation with the terrain. Assuming that the bulk of the pre-contractual negations available to us were included in the contract, we can assume, that Mr Wu’s above description of goods was included in the contract. Therefore, by supplying Mr Williams with a Rig that has different levels of performance based on terrain, Mr Wu is In breach of Article 35(1). Under article 46, Mr Williams can seek remedy through either substitute goods or repair of the initial goods, which he has done in his letter dated 15th of April 2008, or claim damages under article 74.
There is no question of fundamental breach here, as article 51 tells that part performance cannot constitute a fundamental breach. From the facts it appears that both the sale of the drill and rig are within the same contract. As Mr Wu has fulfilled his obligations regarding the drill, any failure to do so with the spraying rig constitutes part performance, and thus ordinary breach.
During the pre-contractual negotiations, Mr Williams stated that he required deliver of goods within 20 days, on the25th of Feb 2008. Mr Wu replied on the 27th Feb 2008, stating his method of delivery for the drill, and thus implying that he could so within 20 days. On the 1st March, Mr Williams accepted Mr Wu’s offer. 29 Days later, on the