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Excerpt from John O. Honnold, Uniform Law for International Sales under the 1980 United Nations Convention, 3rd ed. (1999), pages 252-263. Reproduced with permission of the publisher, Kluwer Law International, The Hague.

Article 35

Conformity of the Goods

A. The Role of Rules about Quality
B. The Convention
      (1) Quality Required by the Contract: Paragraph (1)
      (2) Presumed Implications from the Contract: Paragraph (2)
            (a) Description and Ordinary Purposes
            (b) Fitness for Particular Purpose
            (c) Goods Held Out as Sample or Model
            (d) Packaging
      (3) Buyer's Knowledge of Condition of Goods at the Time of Contracting
            (a) The Scope and Role of Paragraph (3)
C. Domestic Rules Based on Innocent Misrepresentation as to Quality: 'Mistake"
      (1) The Issue Posed by the Convention

§ 222 A. The Role of Rules about Quality

Most sales controversies grow out of disputes over whether the goods conform to the contract. In many cases these disputes present only a question of fact: What was the condition of the goods? Disputes over quality, however, cannot always be resolved simply by measuring the goods against the specific terms of the contract. When an order is routine and calls for speedy shipment the parties may not even attempt to articulate the expectations that are associated with transactions in such goods. Even a carefully prepared contract will often fail to express the most basic expectations—that a machine will operate or that a steel girder will be structurally sound—because the parties assume that these points are so obvious that they "go without saying." (Compare the implied obligation that the seller will deliver goods that "are free from any right or claim of a third party," Art. 41, §§262-266, infra.) Consequently, courts and codifers have had to try to describe, in general terms, those understandings that would have been written into the contract if the parties had drafted a contract provision to deal specifically with the question that led to dispute.[1]

Domestic legal systems address this problem in various ways. In United States law, the seller’s obligations as to quality are referred to as "warranties", and are dealt with under three headings: (1) "express warranties", (UCC 2–313); (2) an implied warranty of merchantable quality (UCC 2–314); and (3) an implied warranty of fitness for a particular purpose (UCC 2–315). The (U.K.) Sale of Goods Act (1893), in general, leaves the parties’ express statements to the general law of contracts but in Sec. 14 establishes implied "conditions" and "warranties" of quality [page 252] and fitness.[2] Other legal systems use different concepts. Codes based on the French pattern tend to deal with questions of quality with a light touch that is directed to the distinction between latent defects (vices cachés) and apparent defects (vices apparents). This brief approach has been supplemented by other doctrines such as erreur; students of the civil law report that the result is complex and unclear.[3]

§ 223 B. The Convention

Article 35 presents a unified approach to the seller’s contractual obligations with respect to the goods:

Article 35 [4]

"(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.

"(2) Except where the parties have agreed otherwise, 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 [page 253] 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 or, where there is no such manner, in a manner adequate to preserve and protect the goods.

"(3) The seller is not liable under subparagraphs (a) to (d) of the preceding paragraph for any lack of 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 lack of conformity.

§224 (1) Quality Required by the Contract: Paragraph (1)

Paragraph (1) emphasizes a point that could go without saying: the parties must comply with their contract. (See the discussion of Art. 33(a), supra at §216; and Arts. 6 and 30, supra at §274 and §206.) [5] The Sales Article of the (U.S.A.) Uniform Commercial Code also emphasizes the importance of the contract. Section 2–313 (Express Warranties by Affirmation, Promise, Description, Sample) carried forward a provision, drafted by Professor Williston for the Uniform Sales Act (1906), that was designed to nullify decisions that had hesitated to give contractual effect to the seller’s "representations" and "affirmations" (as contrasted with "promises") and also to overturn decisions that had insisted on evidence that the seller "intended to be bound" by statements concerning the quality of the goods.[6]

The technical distinctions in these early cases have been softened by more recent case law.[7] In any event, these distinctions are not useful in deciding what quality is "required by the contract" under Article 35(1). As we shall see, Article 35(2)(a) gives effect to the expectations latent in any "description" of the goods. And the basic rules on contract interpretation in Article 8 do not draw any technical distinction between different [page 254]types of "statements" and emphasize the "understanding" that statements produce in a reasonable person. (See Art. 8, supra at §105 and §109.) [8]

§225 (2) Presumed Implications from the Contract: Paragraph (2)

(a) Description and Ordinary Purposes

Paragraph (2)(a) embodies the clearest ideas that have been developed for defining the seller’s responsibility for quality. These ideas are both subtle and fundamental. Commercial law does not impose standards of quality: it accommodates sales of cars for scrap as well as sales of new cars for resale to consumers. Often, detailed specifications in the contract will resolve any question as to quality but in routine transactions the parties would think it needless and a bit absurd to say things that "go without saying." In these situations interpretation of the contract, calls for finding the full meaning of the contract description in the light of the expectations that have developed for such sales.

The Convention builds on these assumptions and goes a step further. Things are bought for use—raw materials are bought for processing; machinery is bought for use in production; commodities are bought for resale and use. Legislators could not develop detailed, technical specifications for such goods; hence, paragraph (2)(a) asks whether the goods "are fit for the purposes for which goods of the same description would ordinarily be used." (Fitness for a particular purpose is dealt with in paragraph (2)(b).)

The basic standard in paragraph (2)(a) is similar to the warranty of "merchantable quality" developed in early English case law incorporated in the Sale of Goods Act (1893). However, the meaning of "merchantable quality" was left to case law. The basic ideas developed by the cases were [page 255] used by the (U.S.A.) Uniform Commercial Code in defining "merchantable quality." Under Section 2–314(2), "goods to be merchantable" must "(a) pass without objection in the trade under the contract description" and "(c) are fit for the ordinary purposes for which such goods are used."[9]

Some writers have felt that it is necessary to give a general answer to the following question: Does subparagraph (2)(a) refer to the understanding of the contract description of the goods that prevails at the seller’s place of business or at the place where the buyer intends to use the goods? Writers have disagreed over the choice between these two places.[10]

It should not be necessary to answer this question if one accepts the view, suggested above (§222), that the role of Article 35(2) is to aid in construing the agreement of the parties. The question is this: What was the parties’ understanding of the contract provision describing the goods? More precisely (in the language of Article 35(2)) what was their understanding of the "purposes for which goods of the same description would ordinarily be used"? Since the problem concerns fitness for the "ordinary" use of goods described in the contract, serious misunderstandings should be infrequent; in domestic law disputes under this test usually arise out of a question of fact: Were the goods subject to defects that were abnormal for goods sold under the description?

If the parties do have different understandings of the connotations of the agreed description, the problem needs to be resolved pursuant to the Convention’s rules for interpreting sales contracts. These rules are set forth in Article 8, §§104-111, supplemented by the practices of the parties and trade usages Article 9, §§112-222. Under these rules the relevant facts are: Which party drafted the description? (This may be either the seller or buyer.) What, under Article 8(2), would be "the understanding [page 256] that a reasonable person of the same kind as the other party would have had in the same circumstances"? To ascertain this understanding Article 8(3) directs attention to all relevant circumstances including "the negotiations, any practices which the parties have established between themselves, usages and any subsequent conduct of the parties."

In sum, under the Convention problems of contract interpretation are to be solved on the basis of the facts of each transaction and not under a general legal rule specifying that the seller’s (or buyer’s) region controls the parties’ understanding.

Decisions; Conformity: Standards in Buyer’s State; Compliance Required:   (1) FR. CA Montpelier, 15 April 1993. Excessive sugar basis for rejection; confirmed: C. de Cass. (Sup.Ct.) 173P. 23 January 1996. CLOUT 150, UNILEX D. 1996–2.  (2) FR. CA Grenoble, 48992, 13 September 1995, Ciato v. SFF. S knew that the cheese was to be resold in France; French standards were required. UNILEX D. 1994–24, CLOUT 202.  (3) GER. LG Ellwangen, 1 KfH O 32/95, 21 August 1995. Paprica from Spain did not conform to German food standards; B avoided contract. UNILEX D.1995–20.  (4) FR. C. de Cass. (Sup. Ct.), Ceramique v. Musgrave, 2205D, 17 December 1996. C. de Cass. reversed lower courts because, inter alia, French rules on vice cache were applied in stead of CISG 35(2)(a). UNILEX D. 1996–11.   See also: MEX. ARB: COMPROMEX, M/21/95, 29 April 1996. S (Argentine via Chile) shipped defective canned fruit. Deterioration in transit was S’s responsibility. UNILEX D.1996–3.5.

Compliance with Standards Satisfied or not Required. GER. OLG Frankfurt a M., 13 U 51/93, 20 April 1994, confirmed by BGH (Sup. Ct.), VIII ZR 159/94, 8 March 1995. Claim that calcium of shellfish exceeded German standards; claim rejected. S can not be expected to observe standards or regulations in B’s State unless they are the same as in S’s State or B has informed S. CLOUT 84, UNILEX D.1994–10, D. 1995–9 (BGH).

Comments: Veneziano, A., Current Case Law, 1 Int. Bus. L. J. 39–65 (1997); Goto, K., Warranties, 3 Studies in L. & Econ. (Kyushu Int. U. Assn. L. & Econ. 40 (1991); Zamir, 52 La. L Rev. 1–90 (1991); Bonell/Liguiri, ULR (1997–3) 590–592, n.91–102 (numerous cases); Schlechtriem, Com. (1998) 276–284 (Schwenzer).

§226 (b) Fitness for Particular Purpose

The role of Article 35(2)(b) may be illustrated as follows:

Example 35A. Buyer wrote as follows to Seller, a manufacturer of drills. "Please ship me a set of drills [giving sizes] for drilling holes in plates of carbon steel." Seller shipped the Buyer a set of drills that were [page 257] of the size designated by Buyer. The drills were satisfactory for drilling holes in ordinary steel, but were not sufficiently hard for carbon steel.

Relationship to Contract. In this example, as in most (perhaps all) of the sales that fall within paragraph (2)(b), it would be possible to conclude that the shipment of the drills created an "understanding" (Art. 8(2) & 8(3)) that the drills would meet the standards specified in Buyer’s order; conformity of the goods with this understanding would be required by Article 35(1) although Seller had said nothing about whether the drills would cut through carbon steel. Thus, paragraph (2)(b) of Article 35 may not have been necessary, but may help to reduce uncertainty over whether a seller may be responsible for an understanding to which he was a party but which he did not articulate.

Reliance on Seller’s Skill and Judgment. The structure of paragraph (2)(b) may lead tribunals to conclude that the buyer makes a prima facie case by showing that the seller knew of the buyer’s particular purpose at the time of the conclusion of the contract and that the goods were unfit for that purpose; the seller then has the burden to show that "the buyer did not rely, or that it was unreasonable for him to rely, on the seller’s skill and judgment."[11]

In Example 35A, Seller would find it difficult to disprove reliance by Buyer. Seller, the manufacturer of the drills, would know more about their cutting qualities than Buyer, and Buyer relied on the Seller to select a drill that would cut through carbon steel, or inform Buyer that Seller had no such drill. Indeed, the crux of Article 35(2)(b) is the buyer’s known reliance on the seller to select and furnish a commodity that will satisfy a stated purpose.[12]

Decision; Fitness for Purpose.   FR. CA Grenoble, RG 93/4879, 26 April 1995, M. Roque v. SARL. Purpose of hangar made known to S (Art. 31(b)); S was responsible for repairs . . . UNILEX 1995–14, CLOUT 152.

§ 227 (c) Goods Held Out as Sample or Model

Where the seller has "held out" goods to the buyer "as a sample or model" he has created an "understanding" (Art. 8) that the goods would conform to the sample or [page 258] model. Thus, paragraph (2)(c) of Article 35, even more clearly than paragraph (2)(b), articulates contractual understandings that are given effect by paragraph (1). Such is the approach of Section 2–313(1)(c) of the (U.S.A.) Uniform Commercial Code: "Any sample or model which is made part of the basis of the bargain creates an express warranty that the whole of the goods shall conform to the sample or model." See also the (U.K.) Sale of Goods Act Sec. 15. All of these provisions are of modest value to a tribunal that is equipped to give full effect to the contract made by the parties.[13]

§ 228 (d) Packaging

On occasion advocates for sellers have gone so far as to argue that implied obligations ("warranties") with respect to the quality of "goods" do not extend to the container or package. Whether the packaging is part of the goods is a false issue; the relevant question is whether the seller’s contractual duty extends to packaging. This question is answered by Article 35(2)(d): The goods shall be "contained or packaged in a manner usual for such goods.... " The reference to what is "usual" gives effect to reasonable expectations, and is consistent with the approach of Article 35(2)(a) (ordinary use) and the Convention’s general rules for interpretation of the contract. See Articles 8(3) and 9(2), supra at §104 and §112.

The corresponding provision of the 1978 Draft Convention did not include the concluding clause: "or, where there is no such manner, in a manner adequate to preserve and protect the goods." At the Diplomatic Conference it was suggested that the Draft failed to deal with contracts for new types of commodity for which no "usual" manner of packaging had yet developed; language was added to assure that in such cases packaging should be "adequate." In considering this proposal it was noted that this new language should not be construed to require packaging where packaging was not usual (e.g., new cars; bulk shipments of coal or ore). Nor was it contemplated that packaging must be able to withstand unprecedented shocks and hazards; what is required is the degree of protection that is usual for goods of comparable fragility.[14][page 259]

§ 229 (3) Buyer’s Knowledge of Condition of Goods at the Time of Contracting

(a) The Scope and Role of Paragraph (3)

The case that will fall most clearly within paragraph (3) is the sale of a specific, "identified" object (e.g., a secondhand lathe) that the buyer inspects and then agrees to purchase. Paragraph (3) provides that in such cases the seller is not liable under the implied obligations of paragraph (2) for those facts of which "the buyer knew or could not have been unaware." Paragraph (3) does not affect the obligations "required by the contract" under paragraph (1).[15]

"Could not have been unaware." Paragraph (3) is applicable when the buyer "could not have been unaware" of the condition of the goods when he made the contract. Is this different from knowledge?

The Convention differentiates among: (A) facts that a party "knows" or of which he is "aware"; (B) facts of which a party "could not have been unaware"; and (C) facts that a party knew or "ought to have known."[16]

The facts one " ought to have known" include those facts that would be disclosed by an investigation or inquiry that the party should make. But an obligation based on facts of which one "could not have been unaware" does not impose a duty to investigate—these are the facts that are before the eyes of one who can see. This expression is used at various places in the Conventions slightly to lighten the burden of proving that facts that were before the eyes reached the mind. However, since a tribunal would normally draw this inference, there is little practical difference between the provisions that refer to facts that a party "knows" and provisions that refer to facts of which a party "could not have been unaware."[17] This [page 260] choice of language significantly narrows the impact of paragraph (3) on the buyer’s protection afforded by paragraph (2).

§238 (C) Domestic Rules Based on Innocent Misrepresentation as to Quality; "Mistake"

We now meet another significant question concerning the boundary-line between domestic rules and the uniform law of the Convention. Under Article 5, §§72-73 supra, we met this question in relation to domestic rules, such as "product liability", that apply to the same facts as those governed by the Convention but under a label such as "tort" rather than "contract". The commentary to Article 4, supra at §64, noted that domestic remedies for international fraud would remain in full force but that further attention would be given to domestic remedies for innocent but erroneous statements regarding the quality of the goods.

It is not feasible to describe the various rules of domestic law that might be encountered under headings such as "rescission for innocent misrepresentation" or "mistake" (erreur). Instead, our discussion will address a concrete factual situation in which such domestic remedies might arguably be applicable.

Example 35B. Seller made the following offer: "I have purchased a cargo of 200 bales of No. 1 quality Manilla hemp now en route from Singapore to Liverpool. I offer you this cargo ex ship Liverpool, at £100 per bale." Buyer accepted this offer and paid the agreed price. When the hemp arrived in Liverpool it was discovered that, prior to the shipment from Singapore and prior to the sale to Seller, the hemp had been so seriously damaged by water that it graded No. 6 rather than No. 1 and was unfit for the purposes for which Manilla hemp was normally used.[25] Seller did not know and could not have known of the poor condition of the hemp.

Assume that the sale was subject to the Convention but that under domestic law, selected by conflicts rules, the buyer’s only remedy is to rescind the contract for innocent misrepresentation or for "mistake" (erreur).[26][page 261]

§ 240 (1) The Issue Posed by the Convention

One should not hastily decide to apply a dividing line like that suggested by the above domestic statutes to international sales governed by the Convention.[28] It is true that one of the objectives of these domestic statutes was to provide uniform law, and that this is the dominant purpose of the Convention. But each of these domestic laws was prepared with an eye to domestic rules that were familiar to the domestic parties and their advisors.

The unifying role of the Convention is more dominant and more difficult; as we have seen in various settings, this role would be crippled by domestic rules that govern the same situations and issues as those governed by the Convention.[29] To cope with this problem it is necessary to ask a pointed question: Does the Convention address the situation presented by Example 35B?

In Example 35B, the seller made an innocent but important mistatement that the hemp was "No. 1 quality." This statement must be regarded as part of his contract with the buyer for reasons discussed supra at §224. In addition, this statement was a "description" which, under Article 35(1) and (2)(a), is given legal effect as part of the seller’s contract. Indeed, such statements are indistinguishable from the other aspects of the seller’s obligation as to quality specified in Article 35.

When (as in Example 35B) the goods do not conform to the contract, the Convention provides a full battery of powerful remedies prepared specifically for international sales. See Articles 45–50, §§272-313, infra. Hence the buyer’s rights resulting from innocent misrepresentation of the type presented in Example 35B should be derived only from the Convention.[30] Of course, other types of representations by the seller [page 262] (such as his identity and similar statements by the buyer) may not be addressed by the Convention; in this event the line of analysis suggested above may call for the application of domestic law. The important point is to focus on whether the Convention addresses the situation in question; if so, the uniform international rules should not be displaced merely because of the labels attached to various doctrines of domestic law.[31][page 263]

FOOTNOTES: Chapter on Article 35

1. Developments of the past century have not advanced beyond (and indeed have only obscured) the insight of L. J. Brett in Randall v. Newson, 2 Q.B. 102 (C.A. 1877): "The governing principle...is that the thing offered or delivered under a contract of purchase and sale must answer the description of it which is contained in words in the contract, or which would be so contained if the contract were accurately drawn out." A similar approach to interpretation was suggested by Jeremy Bentham in A General View of a Complete Code of Laws, 3 Works of Jeremy Bentham, 157, 191 (Bowring ed. 1843). See also Rebel, The Nature of the Warranty of Quantity, 24 Tul. L. Rev. 273 (1950); Schlechtriem, in Parker Colloq. §6.03 p. 620 (approving the above basic principle stated by L. J. Brett, as quoted in the first edition.

2. Atiyah 103–153, Benjamin §§755–853. (U.K.) SGA (1893) 13, 15 (in many cases applies to express contractual provisions).

3. For an illuminating comparison of French, German and common law approaches in relation to CISG see Tallon in Rechtsvergleichung 753, 754–757 (French); Nicholas, Fault and Liability, Freiburg Colloq. 283 (1987). See also Ghestin, Les Obligations du Vendeur selon [CISG], Int. Bus. L. J. No. 1, 1988, 5, 8–9, 26, Kahn, La Convention de la Haye, 17 Revue Tri. de Dr. Comm. 689, 712 (1964); Québec Civ. Code, Rev’n, Sales 50–55; Durnford, What is an Apparent Defect In Sale? 10 McGill L. J. 60, 341 (1964); Tallon, Erreur sur la Substance at Guarantie des Vices, Mélanges Hamel 435 (Paris: Dalloz, 1961); Rabel, n. 1 supra at 271, 283, 286: "utter confusion" in various legal systems; need for a "sound theory." But cf. Field, The Law of Latent Defects in Quebec, 2 Can. Bus. L. J. 209 (1976).

4. Art. 35 closely follows Art. 33 of the 1978 Draft Convention. In paragraph (2)(d), the concluding phrase ("or, where...) was added at the Diplomatic Conference and there were minor drafting changes. O.R. 308–309, 315–318, 103–105, Docy. Hist. 529–530, 536–539, 675–677. Cf. ULIS 33 and 36 and Rep. S-G, "Obligations of the Seller" paras. 58–61, IV Yearbook 44, Docy. Hist. 121.

5. Some sales laws do not articulate this point. E.g., (U.K.) SGA (1983).

6. Uniform Sales Act §12; Williston, What Constitutes an Express Warranty In the Law of Sales, 21 Harv. L. Rev. 555 (1908); 1 Williston, Sales §§194–201. Under UCC 2–313, an "express warranty" may be based on an "affirmation of fact" as well as a "promise" and does not require that the seller use "formal words such as ‘warrant’ or ‘guarantee’" or that the seller "have a specific intention to make a warranty."

7. Savage v. Blakney (1970) 119 C.L.R. 435 (H. Ct. of Australia); Howard Marine v. Ogden [1978] Q.B. 574. See Benjamin §§755–851. Cf. New Zealand Contractual Remedies Act 1979.

8. For the evolution of Article 35 see WG3d (1972), III YB 86–87, Docy. Hist. 103–104; Rep. S-G, IV YB 43–46, Docy. Hist. 120–123, WG 4th (1973), VI YB 64–65, Docy. Hist. 142–143; UNCITRAL (1977)), VIII YB 36–37, Docy. Hist. 329–330; O.R. 308, 315–318, 103–105, 207–208, Docy. Hist. 529, 536–539, 675–677, 742–743.

Art. 35(2)(a), in referring to the expectations implicit in a "description" of the goods, fortunately avoids the phrase " sale of goods by description," which, in early cases, generated litigation over whether the phrase embraced "sales" of specific goods and goods the buyer has seen. (U.K.) SGA (1893) 13(1); Benjamin §§760, 780–781; Feltham, The Sale by Description of Specific Goods, (1969) J. Bus. L. 16. On the difficulties produced in other legal systems by distinctions based on whether the goods were "specific" see Rabel, n. 1 supra at 275–278.

9. A definition of "merchantable quality" was added to the (U.K.) SGA (1893) 62(1A) by the Supply of Goods (Implied Terms) Act 1973. The background for this amendment appears in (English) Law Commission Report No. 24, Scottish Law Commission, Report No. 12, Exemption Clauses in Contracts, First Report: Amendments to the Sale of Goods Act 1893, para. 43 (1969). The Ontario Law Reform Commission discussed the concept of "merchantable quality" and proposed a definition based on the U.K. Act. Ont. L. Ref. Com. I Sales 210–220. Cf. German (F.R.G.) Civil Code 459. On the relevance of fitness for ordinary purpose in the G.D.R. Code of International Commercial Contracts see Enderlein in Dubrovnik Lectures 157.

10. Bianca in B-B Commentary 274 (seller’s place); Schlechtriem in Parker Colloq. §6.03, p. 6–21 referred to the country or region in which the buyer intends to use the goods, but did not refer to this issue in his 1986 Commentary.

11. The (U.K.) SGA (1893) 14(3), as amended and renumbered by the Supply of Goods (Implied Terms) Act (1973), is similar in substance and structure to Art. 35(2)(b). As to burden of proof, see Benjamin §§823–825.

12. The Convention did not lay down a general rule on whether the seller must supply goods that meet with special restrictions or prohibitions in the buyer’s country. This question must be decided in each case on the basis of the contract, the practices of the parties and trade usage, Articles 8 and 9, supra. See Bianca in B-B Commentary 282–283.

13. White & Summers §9–6; Benjamin §§838–844.

14. Com 1; SR. 15, paras. 72–89; O.R. 316–317, Docy. Hist. 537–538. See (U.S.A.) UCC 2–314(2)(e): To satisfy the implied warranty of merchantable quality the goods must be "adequately contained, packaged and labelled as the agreement may require."

15. When the buyer agrees to purchase goods in conformity with a sample and later objects to a condition that was apparent from the sample, the seller may be able to show that the parties impliedly agreed on the quality exhibited by the sample. Accord: Bianca in B-B Commentary §2.9.1, p. 279.

16. Examples of these three forms of expression: (A) "knows" or is "aware"—Arts. 43(2), 49(2), 64(2)(a);(B) "could not have been unaware"—Arts. 35(3), 40, 42(1), 42(2); (C) knew or "ought to have known"—Arts. 38(3), 39(1), 43(1), 49(2)(b)(i), 64(2)(b)(i), 68, 79(4). ULIS 36, which corresponds to Article 35(3), similarly uses the expression "knew or could not have been unaware."

17. Accord: ULIS 36. Compare with Art. 35(3); (U.K.) SGA (1893) 14(2)(b) ("defects which that examination ought to reveal"); (U.S.A.) UCC 2–316(3)(b) ("defects which an examination ought in the circumstances to have revealed"). Field, supra n.3, examines (212–215) the buyer’s obligation under Quebec law to inspect goods when he relies on a "latent" defect, and (224) discusses proposals to lighten that burden.

[Editor's note: Footnotes 18 through 24 not present in the text]

25. Students of English law may recognize a resemblance between this example and Jones v. Just, [1868] L.R. 3 Q.B. 197.

26. Tallon, Erreur sur la substance et garantie des vices dans la vente mobilière, Hamel Festschrift (1961) 435; Hoff, Error in the Formation of Contracts in Louisiana: A Comparative Analysis, 53 Tul. L. Rev. 329 (1979) at 351–358 (error in substantia ); B. Nicholas, An Introduction to Roman Law 178 (1962); Lawson, Error in Substantia, 62 Law Q. Rev. 79 (1936). This writer does not suggest that these legal systems give only limited relief in Example 35B, which is used for analysis.

[Editor's note: Footnote 27 not present in the text]

28. The (U.K.) SGA does not deal fully with the seller’s promises, Contrast (U.S.A.) UCC 2–313. Nevertheless there seems to be doubt as to whether common law rules on "mistake" may supplement the SGA on points where the statutory rules supply an answer. See Atiyah 154–159; Benjamin §§204–205.

29. E.g., Art. 5, supra at §71 ("Product liability"); Art. 7 at §99 (gap-filling); Art. 16 at §146 (domestic remedies for revocation); Art. 35 at §230 (domestic rules on warranty disclaimers).

30. Accord, Schlechtriem, 1986 Commentary 33 (approving the above discussion in the First Edition): Tallon in Rechtsvergleichung 753, 755 at n. 6, 759 (confusion in French law between garantie and erreur; overcome in CISG).

31. See accord: Heiz, Validity of Contracts under CISG and Swiss Contract Law, 20 Vanderbilt J. Tr. L. 639 (1987) for a brilliant analysis of decisions on mistake under Swiss law in relation to CISG. At 649–651 Heiz discusses the legislative history of the decision by the UNCITRAL Working Group not to include rules on validity and mistake. See WG 9th Sess., IX YB 65–66, Docy. Hist. 297–298.

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