Go to Database Directory || Go to Bibliography


Reproduced with the permission of Oceana Publications

excerpt from

INTERNATIONAL SALES LAW

United Nations Convention on Contracts for the International Sale of Goods

Convention on the Limitation Period in the International Sale of Goods

Commentary by
Prof. Dr. jur. Dr. sc. oec. Fritz Enderlein
Prof. Dr. jur. Dr. sc. oec. Dietrich Maskow

Oceana Publications, 1992

Article 36 [Seller's liability for lack of conformity]

[TEXT OF THE UNIFORM LAW]

(1) The seller is liable [1] in accordance with the contract and this Convention for any lack of conformity which exists at the time when the risk passes [2] to the buyer, even though the lack of conformity becomes apparent [3] only after that time.

(2) The seller is also liable for any lack of conformity which occurs [4] after the time indicated in the preceding paragraph and which is due [5] to a breach of any of his obligations, including a breach of any guarantee [6] that for a period of time [9] the goods will remain fit for their ordinary purpose [7] or for some particular purpose [8], or will retain specified qualities or characteristics.

[WORDS AND PHRASES, CONCEPTS

1. liability for lack of conformity of goods
2. seller's responsibility begins when risk is passed; claimed non-conformity: burden of proof
3. even though the lack of conformity becomes apparent only after the risk passes to the buyer
4. defects which become evident later
5. passing of risk does not free seller from consequences of breach of contract
6. breach includes breach of any guarantee
7. goods will remain fit for their ordinary purpose: cross-reference
8. goods will remain fit for some particular purpose: cross-reference
9. if no guarantee given, goods must remain fit for reasonable time ]

[COMMENTARY]

[1] [liability for lack of conformity of goods]

What is dealt with here is lack of conformity of the goods and not necessarily a lack of conformity in the conduct of the seller (Bydlinski/Doralt, 140, would prefer the latter). The responsibility of the seller for such lack of conformity comprises quality, quantity and description of the goods as well as the manner in which they are packed (Article 35).

[2] [seller's responsibility begins when risk is passed; claimed non-conformity: burden of proof]

The seller's responsibility traditionally begins the moment when the risk is passed (Article 66 fol). This rule is clearly intended to distinguish between buyer's risk and lack of conformity in the quality of goods (Bianca/BB, 285). In the practice of international economic relations, however, the moment when the risk passes is frequently difficult to prove. The CISG does not answer the question of who bears the burden of proof. Does the seller have to prove that the goods, at the time of the passing of risk, conformed with the contract (as believes Huber, 479 fol) or does the buyer have to prove [page 149] that the goods, already at that time, did not conform with the contract (as holds Welser/Doralt, 110). In the international trade practice it is always the party that claims non-conformity of the other party with the contract who has to furnish proof (Bianca/BB, 288).

[3] [even though the lack of conformity becomes apparent only after the risk passes to the buyer]

It is only in rare cases that the lack of conformity becomes obvious at the time of risk passing and may, for instance, be taken note of by the carrier in the documents relating to the goods. Mostly the buyer will detect deficiencies in the quantity, damages to the packing, and apparent defects when he receives the goods. Latent defects will become evident only after careful examination of the goods or their being put to use (c. Article 38).

An obvious breach of contract is given when the lack of conformity in quality is the result of a natural process which requires more time than the time that elapsed between the moment the risk passed and the goods were received by the buyer, hence a process which must have started even before the risk was passed (Bianca/BB, 288).

[4] [defects which become evident later]

Here we are dealing not only with defects which become evident after risk passing but also with those which become obvious later, provided that the seller has breached his obligations (note 5) or given a guarantee (note 6). Welser (Doralt, 110) obviously believes that in delivering goods which do not conform with a contract, one party has always committed a breach and conversely, the judging of goods to be non-conform[ing] to a contract implicates a breach of an obligation.

[5] [passing of risk does not free seller from consequences of breach of contract]

A defect may have been caused by the seller before the risk was passed, e.g. using inappropriate containers or insufficient packing which damage the goods during transportation. It may also occur that additional requirements were not fulfilled, e.g. the wrong ship was chosen or containers were badly piled (Herber/Doralt, 142). The passing of the risk does not free the seller from the consequences of his breach of contract (c. Articles 66 and 70 as well as the relevant comments).

Under specific circumstances. the defect may also have been the result of acts which the seller commits after the risk has passed (Article 69, paragraph 1).

[6] [breach includes breach of any guarantee]

Guarantee is not a given right, but requires an agreement between the parties or a unilateral promise by the seller. It is hardly imaginable that guarantee is given impliedly (as believes Schlechtriem, 58); compare Article 35, note 8. [page 150]

It is not a breach of guarantee when goods become unusable, but only when the guarantee is not fulfilled (Bydlinski/Doralt, 141).

[7] [goods will remain fit for their ordinary purpose: cross-reference]

Compare Article 35, note 8.

[8] [goods will remain fit for some particular purpose: cross-reference]

Compare Article 35, note 9.

[9] [if no guarantee given, goods must remain fit for reasonable time]

Also, if no guarantee is given, the goods have to remain fit for use for a reasonable time; otherwise they are not fit for ordinary use. Ordinary use includes a certain durability (Bianca/BB, 288 fol; doubting Welser/Doralt, 111; Article 35, note 8). The developing countries generally advocate a certain durability, a fixed time limit during which the goods have to retain their fitness. Such time may be relatively short and is expressly agreed, for instance for parts subject to wear and tear, and/or such parts [that] are excluded from the guarantee. As to Welser, the wording "for a certain time" indicates a time that is fixed in the contract; but this relates to the German translation and the English version only mentions "a period of time".

This would leave open the question of who would fix such a time, the contract or the court (Welser/Doralt, 111, following Schlechtriem (58), who does not exclude a different interpretation, but rather tends to a contractual stipulation).

In so far as a guarantee was given, no breach of obligation at the moment of risk passing has to be proved. The giving of a guarantee does not preclude the seller from proving that lesser quality is the result of improper handling of the goods by the buyer or a third party and the seller is not responsible. An improper handling involves, e.g., not following the instructions given by the seller or use of the goods without the normal or specific skills that are required (Bianca/BB, 287). [page 151]

Go to Table of Abbreviations || Go to Explanation of Abbreviated Bibliographic References
Go to entire contents of Enderlein & Maskow text


Pace Law School Institute of International Commercial Law - Last updated August 14, 2002
Go to Database Directory || Go to Bibliography
Comments/Contributions