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CISG number

Art. 35

166. The text of article 19 as adopted by the Working Group on the International Sale of Goods is as follows:

Subparagraph (1)(b)

167. The Committee considered a proposal that this subparagraph apply only to those particular purposes which are expressly made known to the seller and that the exception to the seller's responsibility contained in the latter part of the subparagraph be deleted. The proposal would thus amend the subparagraph to read as follows:

The two aspects of this proposal are considered separately.

(i) Limitation of subparagraph to those particular purposes expressly made known to the seller

168. In support of the proposal to delete reference to particular purposes impliedly made known to the seller, it was stated that the present text of article 19(1)(b) imposes the difficult task on a tribunal of determining whether the seller had the requisite implied knowledge. However, the Committee did not retain this proposal as it found little support.

(ii) Deletion of exceptions to the seller's responsibility

169. Under this aspect of the proposal the words "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" would have been deleted from article 19(1)(b). In support of this proposal, it was stated that it would avoid complicated litigation in which the seller sought to establish that the buyer did not rely, or that it was unreasonable for him to rely, on the seller's skill and judgement. It was noted that the proposal also had the advantage of greatly simplifying the language of article 19(1)(b). In addition, the proposed text would ensure that the seller must supply goods which conform to the contract. It was pointed out that should the seller consider that the goods may not be fit for the particular purposes stated by the buyer, the seller should decline to enter into the contract. It was also suggested that article 19(1)(b) may be superfluous because the seller would be responsible under the first sentence of article 19(1) for any failure of the goods to be fit for any purposes expressly or impliedly made part of the contract. Article 19(1)(b) simply contained a rule of interpretation which may aid a court to decide whether those particular purposes were part of the contract. As this result would follow under most national rules of interpretation, it would do little harm to delete this portion of article 19(1)(b) which was couched in language which caused considerable difficulty.

170. In opposition to the proposal to delete the second part of the subparagraph, it was stated that it was equitable for the seller to escape responsibility where it demonstrated that a buyer did not rely upon the seller's skill and judgement or where the special expertise of the buyer made it unreasonable for him to claim reliance on the general expertise of the seller. It was also stated that since all the subparagraphs of article 19(1) were prefaced by the expression "except where otherwise agreed" it followed that if the last part of article 19(1)(b) Were deleted, the rules of interpretation in many jurisdictions may entail the result that the seller would be liable for any failure of the goods to be fit for a particular purpose made known to the seller whether or not that particular purpose was made part of the contract. It was pointed out that the existing text created an equitable balance between seller and buyer. Furthermore, under article 19(1)(a) the seller would, unless otherwise agreed, always be responsible for goods which were not fit for the purposes for which goods of the same description would ordinarily be used.

171. After considerable discussion and deliberation, the Committee did not retain the proposal.

Other proposals relating to subparagraph (1)(b)

172. The Committee also considered a proposal that article 19(1)(b) be replaced by the following:

173. In support of this proposal, it was stated that the buyer should be able to rely upon the goods not being suitable for a particular purpose only if that particular purpose was made part of the contract. A further advantage of this proposal was stated to be that it avoided the complications of the second part of the present text of article 19(1)(b). However, it was pointed out that limiting the provision to particular purposes which were made part of the contract was an unjustified narrowing of the seller's obligations and that accordingly it was desirable to retain the original text.

174. After considerable discussion the Committee did not retain this proposal.

175. The Committee also considered, during its deliberations on the major proposals discussed above, the following proposals which were designed to overcome some of the difficulties expressed in relation to article 19(1)(b):

176. None of these proposals commanded sufficient support in the Committee and were not retained.

Burden of proof

177. The Committee considered a proposal that the following paragraph be added to article 19:

178. There was little support for this proposal as it was considered inappropriate for the Convention, which relates to the international sale of goods, to deal with matters of evidence or procedure. The Committee, accordingly did not retain the proposal.

Contracts where buyer supplies a small part of the materials

179. The Committee considered a proposal to introduce a rule into article 19 to deal with the situation where the goods do not conform with the contract because of a defect in materials supplied by the buyer. It was pointed out that article 3(2) did not exclude such cases from the scope of application of the Convention where the amount of material supplied by the buyer was less than a substantial part of the materials necessary for the manufacture and production of the goods. The Committee also considered a proposal that article 3(2) be amended to deal with this problem to achieve essentially the same result.

180. These proposals, in their final form, were as follows:

(i) That the following paragraph be added to article 19: [page 37]

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Decision

185. The Committee concludes that no change of substance is called for in respect of article 19. It therefore recommends that the Commission should adopt the following text:

"Article 19

"(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 nonconformity." [page 38]

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