IT FOLLOWS THAT IF THE SALES IN QUESTION TOOK PLACE UNDER REGULATIONS NOS 1929/82 AND 2267/82, A HYPOTHESIS WHICH THE NATIONAL COURT ALONE MUST VERIFY, BUT WHICH, AS APPEARS FROM THE DOCUMENTS BEFORE THE COURT, IS THE MOST PROBABLE, IT IS NOT APPROPRIATE TO GIVE A REPLY TO THE FIRST QUESTION .
THE SECOND QUESTION
11 AS REGARDS THE CONCEPT OF FORCE MAJEURE, THE COURT HAS CONSISTENTLY HELD THAT, WHILST THAT CONCEPT DOES NOT PRESUPPOSE ABSOLUTE IMPOSSIBILITY, IT NEVERTHELESS REQUIRES THE NON-PERFORMANCE OF THE ACT IN QUESTION TO BE DUE TO CIRCUMSTANCES BEYOND THE CONTROL OF THE PERSON CLAIMING FORCE MAJEURE, WHICH ARE ABNORMAL AND UNFORESEEABLE AND OF WHICH THE CONSEQUENCES COULD NOT HAVE BEEN AVOIDED DESPITE THE EXERCISE OF ALL DUE CARE ( SEE, MOST RECENTLY, THE JUDGMENT OF 27 OCTOBER 1987 IN CASE 109/86 IOANNIS THEODORAKIS VIOMIKHANIA ELEOU AE V THE GREEK STATE (( 1987 )) ECR 4319 ).
12 IT FOLLOWS THAT A TRADER WHO, ON PURCHASING THE GOODS, ENTERED INTO A CONTRACTUAL OBLIGATION TO EXPORT THEM CANNOT ESCAPE THAT OBLIGATION BY CLAIMING FORCE MAJEURE WHERE THE GOODS ARE STOLEN AS A RESULT OF FRAUD OR NEGLIGENCE ON THE PART OF HIS OWN EMPLOYEES .
13 IN A CASE CONCERNING THE MISAPPROPRIATION OF A CONSIGNMENT OF BUTTER FROM INTERVENTION STOCKS PURCHASED FOR THE PURPOSE OF EXPORTATION ( JUDGMENT OF 13 DECEMBER 1979 IN CASE 42/79 MILCH -, FETT - UND EIERKONTOR GMBH V BUNDESANSTALT FOER LANDWIRTSCHAFTLICHE MARKTORDNUNG (( 1979 )) ECR 3703 ), THE COURT HELD THAT IF THE FIRST PURCHASER DECIDES TO RESELL THE PRODUCT TO A THIRD PARTY FOR THE PURPOSE OF EXPORTATION HE THEREBY ASSUMES, WITH REGARD TO THE AGRICULTURAL INTERVENTION AGENCY, ALL THE RISKS WHICH A DILIGENT TRADER CAN AND SHOULD REASONABLY FORESEE IN THE CONTEXT OF THAT TRANSACTION, INCLUDING THAT OF MISAPPROPRIATION OF THE PRODUCT THROUGH THE FRAUDULENT CONDUCT OF A DULY AUTHORIZED AGENT OF THE THIRD-PARTY PURCHASER . THE SAME RULE APPLIES WHERE THE FIRST PURCHASER ENTRUSTS THE EXPORTATION OF THE GOODS TO A THIRD PARTY AND THAT THIRD PARTY CONCLUDES A CONTRACT OF CARRIAGE FOR THAT PURPOSE WITH A FOURTH UNDERTAKING . IN SUCH A CASE, THE PURCHASER MUST THEREFORE BE ANSWERABLE TO THE INTERVENTION AGENCY FOR ANY UNLAWFUL CONDUCT OR NEGLIGENCE ON THE PART OF THOSE OTHER TWO UNDERTAKINGS . SUCH CIRCUMSTANCES CANNOT BE REGARDED AS UNFORESEEABLE IN CONTRACTUAL RELATIONS AND ARE THEREFORE AN INHERENT PART OF THE COMMERCIAL RISK .
14 IT FOLLOWS THAT THE PURCHASER MUST ALSO BE ANSWERABLE FOR THE CONDUCT OF AN INDEPENDENT CONTRACTOR TO WHOM THE TRANSPORT OF THE GOODS WAS SUBCONTRACTED, EVEN IF, BY TAKING THAT COURSE OF ACTION, THE FIRST CARRIER WAS IN BREACH OF HIS OWN CONTRACTUAL OBLIGATIONS .
15 IT MUST THEREFORE BE STATED IN REPLY TO THE HIGH COURT' S SECOND QUESTION THAT THE FAILURE OF A PURCHASER OF BEEF HELD IN INTERVENTION STORAGE AND INTENDED FOR EXPORTATION TO FULFIL HIS OBLIGATION TO EXPORT IT, AS A RESULT OF FRAUD OR NEGLIGENCE OR A COMBINATION OF FRAUD AND NEGLIGENCE