15Second, the Bundesfinanzhof found that a situation in which the composition of goods manufactured by a third party differs from that stipulated in the contract (or simply does not fulfil the requirements which the exporter tacitly assumed to be self-evident) does not constitute force majeure for the exporter within the meaning of the first indent of the third subparagraph of Article 11(1) of Regulation 3665/87. In its previous judgments concerning the concept of force majeure, the Court had not regarded a failure by an exporter's business partner to fulfil his contractual obligations as an abnormal and unforeseeable circumstance but required that the trader take proper precautions against such eventualities, either by including appropriate clauses in the contract in question or by effecting specific insurance (Case 109/86 Theodorakis [1987] ECR 4319; Case C-347/93 Boterlux [1994] ECR I-3933). The Court had not even recognised fraudulent conduct on the part of the exporter's contracting partner as constituting force majeure (Case 296/86 McNicholl and Others [1988] ECR 1491; Boterlux, cited above).
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