CISG
number
LEGISLATIVE HISTORY
1980 Vienna Diplomatic Conference
[Outline of committee proceedings]
Document A/CONF.97/11 [Original: English 7 April 1980]
 35 |
A. UNCITRAL text [1978 draft]
B. Amendments
C. Proceedings in the First Committee
D. Subsequent proceedings
E. Overview comments
1. The text of the [1978 draft of the ] United Nations Commission on International Trade Law provided as follows:
"Article 33 [became CISG article 35 ]
"(1) The seller must deliver goods which are of the quantity, quality and description required by the contract and which are contained or packaged in the manner required by the contract. Except where otherwise agreed, the goods do not conform with the contract unless they:
"(a) are fit for the purposes for which goods of the same description would ordinarily be used;
"(b) are fit for any particular purpose expressly or impliedly made known to the seller at the time of the conclusion of the contract, except where the circumstances show that the buyer did not rely, or that it was unreasonable for him to rely, on the seller's skill and judgement;"(c) possess the qualities of goods which the seller has held out to the buyer as a sample or model;
"(d) are contained or packaged in the manner usual for such goods.
"(2) The seller is not liable under subparagraphs (a) to (d) of paragraph (1) of this article for any non-conformity of the goods if at the time of the conclusion of the contract the buyer knew or could not have been unaware of such non-conformity."
[Go to Secretariat Commentary on the above text]
[See also pre-Conference observations and proposals by Governments and International Organizations]
2. Amendments were submitted to article 33 [became CISG article 35 ] by Federal Republic of Germany (A/CONF.97/C.1/L.73), Australia (A/CONF.97/C.1/L.74), Union of Soviet Socialist Republics (A/CONF.97/C.1/L.82), Norway (A/CONF.97/C.1/L.102), Canada (A/CONF.97/C.1/L.115) and Singapore (A/CONF.97/C.1/L.143).
3. These amendments were to the following effect:
(i) Canada (A/C0NF.97/C.1/L.115):
"(2) Unless otherwise agreed, where the seller is a person who deals in goods of the description supplied under the contract, the goods do not conform with the contract unless they:
"(b) are fit for any particular purpose expressly or impliedly made known to the seller at the time of the conclusion of the contract, except where the circumstances show that the buyer did not rely, or that it was unreasonable for him to rely, on the seller's skill and judgment;
(c) possess the qualities of goods which the seller has held out to the buyer as a sample or model.
"(3) Paragraph (2) does not apply,
"(b) if the buyer examined the goods before the contract was made, with respect to any defect that a reasonable examination ought to have revealed; or
"(c) in the case of a sale by sample or model, with respect to any defect that would have been apparent on reasonable examination of the sample or model.
"(4) For the purposes of paragraph (2) (a), the goods are reasonably fit for the purposes for which goods of the same description would ordinarily be used if,
"and, without limiting the generality of clause (a),
"(b) if the goods,
"(ii) in the case of fungible goods, are of fair average quality within the description,
"(iii) within the variations permitted by the agreement, are of even kind, quality and quantity within each unit and among all units involved,
"(iv) are adequately contained, packaged and labeled as the nature of the goods or the agreement require,
"(v) conform to the representations or promises made on the container or label or other material, if any, accompanying the goods, and
"(vi) will remain fit or perform satisfactorily, as the case may be, for a reasonable length of time having regard to all the circumstances. "
(ii) Union of Soviet Socialist Republics (A/CONF.97/C.1/L.82):
[Referred to an ad hoc working group: see Consideration, 7, below.]
(iii) Federal Republic of Germany (A/CONF.97/C.1/L.73):
[Rejected: see Consideration, 5, below.]
(iv) Singapore (A/CONF.97/C.1/L.143):
[Adopted and referred to Drafting Committee: see Consideration, 5, below.]
2. Insert in paragraph (1), after subparagraph (c), a new subparagraph as follows:
[Withdrawn: see Consideration, 5, below.]
(v) Australia (A/CONF.97/C.1/L.74):
2. Add a new paragraph (3) as follows:
[Rejected: see Consideration, 6, below.]
(vi) Norway (A/CONF.97/C.1/L.102):
[Referred to Drafting Committee: see Consideration, 6, below.]
C. Proceedings in the First Committee
(i) Meetings 4. The First Committee considered article 33 [became CISG article 35 ] at its [14th meeting, 15th meeting and 25th meeting], on 19, 20 and 27 March 1980 [see also 37th meeting of First Committee]. (ii) Consideration 5. At the 15th meeting, the amendments by Singapore (A/CONF.97/C.1/L.143) relating to paragraph (1),subparagraph (d), and by Canada (A/CONF.97/C.1/L.115) were withdrawn. The amendment by Singapore relating to subparagraph (c) of paragraph (1) was adopted and referred to the Drafting Committee. The amendment by the Federal Republic of Germany (A/CONF.97/C.1/L.73) was rejected. 6. The amendment by Australia (A/CONF.97/C.1/L.74) relating to paragraph (1), subparagraph (d) was amended orally by restricting the proposed addition to the following words: "or where there is no manner usual for such goods, in a manner adequate to preserve and protect the goods". This amendment was adopted by 22 votes in favour and 19 against. An amendment to the amendment by Australia was proposed orally by Sweden, to the effect that the words to be added read as follows: "or where there is no manner usual for such goods, in a manner necessary to enable the buyer to take delivery of the goods". This amendment was rejected by 15 votes in favour and 18 votes against. The amendment by Australia (A/CONF.97/C.1/L.74) relating to a new paragraph (3) was rejected by 9 votes in favour and 27 against. The amendment by Norway (A/CONF.97/C.1/L.102) was referred to the Drafting Committee. 7. At the 15th meeting, the amendment by the Union of Soviet Socialist Republics (A/CONF.97/C.1/L.82) was referred to an ad hoc working group composed of the representatives of Argentina, France, Iraq, Republic of Korea, Singapore, USSR and United Kingdom. 8. At the 25th meeting, the ad hoc working group submitted the following proposal (A/CONF.97/C.1/L.214):
"(2) Where the contract does not require otherwise, the goods do not conform with the contract unless they:
"(3) The seller is not liable under paragraph (2) of this article for any non-conformity of the goods if at the time of the conclusion of the contract the buyer knew or could not have been unaware of such non-conformity."
9. The Committee adopted the proposal, subject to the following change: the introductory words of paragraph (2) "Where the contract does not require otherwise" were rejected by 10 votes in favour and 10 against. The corresponding phrase in the UNCITRAL text "Except where otherwise agreed" was thus retained and referred to the Drafting Committee.
10. The UNCITRAL text of article 33 [became CISG article 35 ] was adopted subject to the amendments adopted noted in paragraphs 5, 6 and 9 above.
[For subsequent Conference material on the development/approval of the final text of CISG article 35, go to Plenary Conference 7th meeting]
[English translation of report on the significance of the deliberations on this article at the Diplomatic Conference: prepared by Peter Schlechtriem, based on notes taken at the conference and published shortly thereafter]
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International Commercial Law - Last updated September 8, 2000