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Article 35. Conformity of Goods to Contract

TEXT OF 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.

(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 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.


OUTLINE OF ISSUES

Reproduced with permission of UNCITRAL

35A Quality, quantity and description required by contract (art. 35(1))

35B Requirements implied by law (art. 35(2)

35B1 Fitness for purposes for goods of same description (art. 35(2)(a))

35B2 Fitness for particular purpose made known to seller (art. 35(2)(b))

35B21 Reliance on seller's skill and judgment

35B3 Quality of goods held out as sample or model (art. 35(c))

35B4 Packaging to protect goods in usual manner for similar goods

35C Exception to seller's liability for non-conformity:

35C1 Buyer's knowledge of non-conformity at time of contracting

35C2 Parties have agreed otherwise (arts. 6, 35(2))

35D Other issues concerning conformity of goods


DESCRIPTORS

Conformity of goods


CASE ANNOTATIONS: UNCITRAL DIGEST CASES PLUS ADDED CASES

UNCITRAL has identified relevant cases in Digests containing case annotations for each article of the CISG. UNCITRAL cites 46 cases in its Digest of Art. 35 case law:

Austria 2           Germany      11           Netherlands   1
Belgium      2 ICC   2 Stockholm Chamber        1
Canada 1 Italy   3 Switzerland   6
Finland 2 Mexico   1 United States   3
France 6 TOTAL 46

Presented below is a composite list of Art. 35 cases reporting UNCITRAL Digest cases and other Art. 35 cases. All cases are listed in chronological sequence, commencing with the most recent. Asterisks identify the UNCITRAL Digest cases, commencing with the 15 October 2002 citation reported below. Cases are coded to the UNCITRAL Thesaurus.

English texts and full-text English translations of cases are provided as indicated. In most instances researchers can also access UNCITRAL abstracts and link to Unilex abstracts and full-text original-language case texts sourced from Internet websites and other data, including commentaries by scholars to the extent available.

There are scholars who believe that there are circumstances in which the UNIDROIT Principles of International Commercial Contracts may be used to interpret or supplement this Article of the CISG. See match-up of this Article with counterpart provisions of the Principles and commentary on this subject. To the extent this reasoning fits, cases on the counterpart provisions of the UNIDROIT Principles may be relevant. To the extent available, such cases may be found on the Unilex website.
 

Netherlands 29 July 2009 Rechtbank [District Court] Arnhem (___ v. Omnibus Trading B.V.)

United States 3 April 2009 U.S. District Court [Washington State] (Barbara Berry S.A. de C.V. v. Ken M. Spooner Farms, Inc.) 35B

Austria 2 April 2009 Oberster Gerichtshof [Supreme Court] (Boiler case)

United States 26 March 2009 U.S. District Court [Ohio] (Miami Valley Paper, LLC v. Lebbing Engineering & Consulting GmbH) 35A ; 35B

Italy 16 February 2009 Tribunale di Forli [District Court] (Cisterns and accessories case) 35A ; 35B [translation available]

Netherlands 3 February 2009 Gerechtshof [Appellate Court] Leeuwarden (JPB Industrial Services B.V. v. Buchen Industrial Services N.V.) 35A [translation available]

Netherlands 16 January 2009 Rechtsbank [District Court] Breda (Watermelon case)
 

Italy 11 December 2008 Tribunale di Forli [District Court] (Mitias v. Solidea S.r.l.) 35A ; 35B [translation available]

Australia 24 October 2008 Federal Court [South Australia District] (Hannaford v Australian Farmlink Pty Ltd)

Netherlands 15 October 2008 Rechtsbank [District Court] Rotterdam (Eyroflam S.A. v. P.C.C. Rotterdam B.V.) 35A ; 35B [abstract available]

Netherlands 7 October 2008 Gerechtshof [Appellate Court] Arnhem (Arens Sondermachinen GmbH v. Smit Draad / Draad Nijmegen B.V.) [abstract available]

Switzerland 26 September 2008 Appellationsgericht [Appellate Court] Basel-Stadt (Packaging machine case)

Switzerland 18 August 2008 Obergericht [Appellate Court] Appenzell Ausseroden (Clothes case)

United States 25 July 2008 U.S. District Court [Pennsylvania] (Norfolk Southern Railway Company v. Power Source Supply, Inc.)

France 27 May 2008 Cour d'appel [Appellate Court] Rennes (Brassiere cups case) 35A [translation available]

Germany 24 April 2008 Landgericht [District Court] Wiesbaden

Serbia 23 January 2008 Foreign Trade Court of Arbitration, Serbian Chamber of Commerce (Chrystal white sugar case) 35A [translation available]

Spain 17 January 2008 Supreme Court (Used automobiles case) 35A ; 35B ; 35C1 ; 35C2 [translation available]
 

Spain 27 December 2007 Audiencia Provincial [Appellate Court] Navarra (Case involving machine to repair bricks) 35A ; 35B [translation available]

Germany 21 November 2007 Oberlandesgericht [Appellate Court] Koblenz (Shoes case) [translation available]

Netherlands 10 November 2007 Gerechtshof [Appellate Court] Amsterdam ([...] B.V. v. Produce Agencies Limited, Nieuw Zeeland)

Netherlands 31 October 2007 Rechtbank [District Court] Dordrecht

Slovak Republic 25 October 2007 Regional Court [District Court] Zilina (Elastic fitness clothing case) 35A [translation available]

American Arbitration Association 23 October 2007 [Interim Award] (Macromex Srl. v. Globex International Inc.)

Spain 23 October 2007 Juzgado de Primera Instancia [District Court] La Laguna

Denmark 19 October 2007 Rettin i Københaven [District Court] (Pony case)

Switzerland 30 August 2007 Kantonsgericht [District Court] Zug (GMS modular case) 35A [translation available]

Netherlands 29 August 2007 Rechtbank [District Court] Dordrecht (Isolcell Italia S.p.A. v. B. Numansdorp B.V)

Spain 3 July 2007 Audiencia Provincial [Appellate Court] Barcelona (Parts and machinery case) 35B21

Slovak Republic 27 June 2007 Supreme Court Zilina (Elastic fitness clothing case) 35A ; 35B [translation available]

Switzerland 27 April 2007 Tribunal cantonal [Appellate Court] Valais (Oven case) 35A ; 35B [translation available]

Austria 19 April 2007 Oberster Gerichtshof [Supreme Court] (Scaffold hooks case) 35A ; 35B [translation available]

Stockholm Chamber of Commerce 5 April 2007 (Pressure sensors case) 35A ; 35B [English text]

Spain 22 March 2007 Audiencia Provincial [Appellate Court] Madrid

Spain 20 February 2007 Audiencia Provincial [Appellate Court] Madrid (Sunprojuice DK, Als v. San Sebastian, S.c.A.) 35A [translation available]

China 14 February 2007 CIETAC Arbitration Award [CISG 2007/02] (Bellows forming machine case) 35A [translation available]

United States 31 January 2007 Federal District Court [Minnesota] (Travelers Property Casualty Company of America v. Saint-Gobain Technical Fabrics Canada Limited) 35B

Belgium 22 January 2007 Hof van Beroep [Appellate Court] Antwerp (B.V B.A. v. SA Montainer) 35A [translation available]

Germany 17 January 2007 Oberlandesgericht [Appellate Court] Saarbrücken (Marble panel case) 35B4 ; 35C1 [translation available]

Netherlands 2 January 2007 Gerechtshof [Appellate Court] 's-Hertogenbosch (G.W.A. Bernards v. Carstenfelder Baumschulen Pflanzenhandel GmbH) 35A

Arbitration Chamber of Paris Case No. 9926 of 2007 [assumed date] (Chemical compound case) 35C1 [English text]
 

France 19 December 2006 Cour d'appel [Appellate Court] Rouen (Potato seedling case) 35A [translation available]

Germany 14 December 2006 Oberlandesgericht [Appellate Court] Koblenz (Bottles case) 35B4 [translation available]

Germany 12 December 2006 Landgericht [District Court] Coburg (Plants case) 35B ; 35B2 [translation available]

China December 2006 CIETAC Arbitration Award [CISG 2006/03] (Automobile case) 35A [translation available]

Germany 17 November 2006 Oberlandesgericht [Appellate Court] München (Dust ventilator case) [translation available]

Switzerland 27 October 2006 Tribunal cantonal [Canton Appellate Court] Valais (Bicycle and motorcycle parts case) [translation available]

Germany 19 October 2006 Oberlandesgericht [Appellate Court] Koblenz (T-Shirts case) 35A [translation available]

Russia 29 September 2006 Arbitration Award 127/2005

Germany 13 September 2006 Landgericht [District Court] Berlin (Auston Martin automobile case) 35A ; 35B [translation available]

Austria 12 September 2006 Obster Gerichtshof [Supreme Court] (CD media case) [translation available]

United States 23 August 2006 Federal District Court [New York] (TeeVee Tunes v. Gerhard Schubert GmbH) 35B

China 3 August 2006 CIETAC Arbitration Award [CISG 2006/15] (Water pump case) 35A [translation available]

China August 2006 CIETAC Arbitration Award [CISG 2006/13] (Chilling press case) 35A [translation available]

Netherlands 18 July 2006 Gerechtshof [Appellate Court] Arnhem (Potting soil case) [translation available]

Belgium 28 June 2006 Rechtbank van Koophandel [District Court] Hasselt (Drukkerij Moderna NV v. IVA Groep BV)

Netherlands 28 June 2006 Rechtbank [District Court] Arnhem (Silicon Biomedical Instruments B.V. v. Erich Jaeger GmbH) [translation available]

Denmark 3 May 2006 Højesteret [Supreme Court]

Belgium 24 April 2006 Hof van Beroep [Appellate Court] Antwerpen (GmbH Lothringer Gunther Grosshandelsgesellschaft für Bauelemente und Holzwerkstoffe v. NV Fepco International) 35A [translation available]

Germany 20 April 2006 Landgericht [District Court] Aschaffenburg (Cotton twilled fabric case) 35A [translation available]

Belgium 19 April 2006 Rechtbank van Koophandel [Commercial Court] Hasselt (Bruggen Deuren BVBA v. Top Deuren VOF) 35B ; 35B3 [translation available]

Czech Republic 29 March 2006 Supreme Court (Carpet case) 35A ; 35B1 ; 35B2 [translation available]

Germany 8 February 2006 Oberlandesgericht [Appellate Court] Karlsruhe (Hungarian wheat case) 35D [translation available]

China February 2006 CIETAC Arbitration Award [CISG 2006/16] (Fluorite case) [translation available]

Austria 25 January 2006 Oberster Gerichtshof [Supreme Court] (Frozen pork case) 35A ; 35B [translation available]

Austria 23 January 2006 Oberlandesgericht [Appellate Court] Linz (Auto case) 35A ; 35B [translation available]
 

China December 2005 CIETAC Arbitration Award [CISG 2005/23] (Heat transfer oil furnace case) 35A [translation available]

Germany 29 November 2005 Landgericht [District Court] München (Frozen vegetables case) 35A ; 35B1 [translation available]

Russia 18 October 2005 Arbitration Award 21/2005 (Varnish and paint machine case) 35A [translation available]

France 13 October 2005 Cour d'appel [Appellate Court] Versailles (Caterpillar toys case) 35A ; 35B [translation available]

Switzerland 10 October 2005 Corte civile del Tribunale federale svizzero [Supreme Court]

France 4 October 2005 Cour de Cassation [Supreme Court] (Engine parts case) [translation available]

Spain 26 September 2005 Audiencia Provincial [Appellate Court] Palencia (Printing machine case) 35A [translation available]

China 23 September 2005 New Pudong District People's Court of Shanghai (Xi'an Yun Chang Trade Ltd. v. An Tai International (USA)) 35A [translation available]

Belgium 20 September 2005 Rechtbank van Koophandel [Commercial Court] Hasselt (J.M. Smithuis Pre Pain v. Bakkershuis) 35A [translation available]

Belgium 14 September 2005 Rechtbank van Koophandel [District Court] Hasselt (Drukkerij Baillien en Maris NV v. Hunterskil Howard BV)

Switzerland 5 July 2005 Obergericht [Appellate Court] Zug (Diesel oil case) [translation available]

China 27 June 2005 Shandong Higher People's Court [Appellate Court] (Norway Royal Supreme Seafoods v. China Rizhao Jixiang Ocean Food Company et al.) 35A [translation available]

Finland 24 May 2005 Hovioikeus / hovrätt [Appellate Court] Turku (Radiated spice case) 35B

United States 23 May 2005 Federal Appellate Court [7th Circuit] (Chicago Prime Packers v. Northam) 35B

United States 10 May 2005 Federal District Court [Kansas] (Guang Dong Light Headgear Factory Co. Ltd. v. ACI International Inc.)

Austria 5 May 2005 Oberster Gerichtshof [Supreme Court]

United States 30 March 2005 Federal District Court [Illinois] (Caterpillar v. Usinor Industeel) 35A ; 35B

Spain 29 March 2005 Juzgado de Primera Instancia [Court of First Instance] Tudela 35A ; 35B [translation available]

Germany 2 March 2005 Bundesgerichtshof [Federal Supreme Court] 35A ; 35B [translation available]

France 25 February 2005 Cour d'appel [Appellate Court] Paris

Switzerland 21 February 2005 Kantonsgericht [Appellate Court] Valais (CNC machine case) 35A [translation available]

Belgium 31 January 2005 Rechtbank van Koophandel [Commerical Court] Hasselt (BV Wolvega Panelen v. NV FALL) 35A [translation available]
 

Russia 29 December 2004 Arbitration Award 189/2003 [translation available]

Russia 21 December 2004 Arbitration Award 39/2003 35A [translation available]

Spain 9 November 2004 Audiencia Provincial [Appellate Court] Barcelona

Germany 26 October 2004 Landgericht [District Court] Saarbrücken [translation available]

Belgium 4 October 2004 Hof van Beroep [Appellate Court] Ghent (Deforche NV v. Prins Gebroeders Bouwstoffenhandel BV) [translation available]

Germany 6 September 2004 Landgericht [District Court] Hamburg 35A [translation available]

Switzerland 7 July 2004 Bundesgericht [Supreme Court] (Cable drum case) [translation available]

Belgium 30 June 2004 Hof van Beroep [Appellate Court] Ghent (Van Oers BV v. NV Turbo's Hoet Truckcenter Productie) [translation available]

France 4 June 2004 Cour d’appel [Appellate Court] Paris 35A [translation available]

Australia 27 May 2004 Supreme Court of Western Australia (Summit Chemicals v. Vetrotex Espana) 35A ; 35B

United States 21 May 2004 U.S. District Court [Illinois] (Chicago Prime Packers v. Norham)

Belgium 10 May 2004 Hof van Beroep [Appellate Court] Gent [translation available]

Spain 28 April 2004 Audiencia Provincial [Appellate Court] Barcelona 35B2 [translation available]

Germany 21 April 2004 Oberlandesgericht [Appellate Court] Düsseldorf [15 U 222/02] 35A [detailed abstract available]

Belgium 14 April 2004 Hof van Beroep [Appellate Court] Antwerp (ING Insurance v. HVA Koeling BVBA and Fagard Winand / HVA Koeling BVBA v. Fagard Winand and Besseling Agri-Technic BV) [translation available]

United States 29 March 2004 Federal Bankruptcy Court [Oregon] (In re: Siskiyou Evergreen, Inc. Debtor)

Netherlands 17 March 2004 Rechtbank [District Court] Arnhem [translation available]

China 12 March 2004 CIETAC Arbitration Award [CISG 2004/04] (Fireworks case) [translation available]

Germany 10 March 2004 Oberlandesgericht [Appellate Court] Celle [translation available]

Switzerland 11 February 2004 Appelationshof [Appellate Court] Bern (Cable case) 35A [translation available]

Germany 2 February 2004 Oberlandesgericht [Appellate Court] Zweibrücken [translation available]

Russia 2 February 2004 Arbitration Award 56/2003 35B [translation available]

Germany 29 January 2004 Oberlandesgericht [Appellate Court] Frankfurt 35A ; 35B [translation available]

Spain 28 January 2004 Audiencia Provincial [Appellate Court] Barcelona 35B2

Switzerland 27 January 2004 Kantonsgericht [District Court] Schaffhausen 35A ; 35B [translation available]

Switzerland 13 January 2004 Bundesgericht [Supreme Court] 35B ; 35D
 

France 18 December 2003 Cour d’appel [Appellate Court] Lyon 35B2

Switzerland 18 December 2003 Handelsgericht [Commercial Court] Aargau (Building material and timberware case) [translation available]

China 6 November 2003 CIETAC Arbitration Award [CISG 2003/15] (Fiber glass mesh case) 35A [translation available]

Spain 5 November 2003 Audiencia Provincial [Appellate Court] Vizcaya

Switzerland 20 October 2003 Kantonsgericht [District Court] Schaffhausen [detailed abstract available]

France 24 September 2003 Cour de Cassation [Supreme Court] 35A ; 35B ; 35D [translation available]

Switzerland 22 August 2003 Appellationsgericht [Appellate Court] Basel 35A [detailed abstract available]

Canada 21 August 2003 British Columbia Supreme Court (Mansonville v. Kurtz) 35A ; 35B

China 19 June 2003 CIETAC Arbitration Award [CISG 2003/09] (PTA case) 35A [translation available]

Russia 6 June 2003 Arbitration Award No. 97/2002 35A ; 35B ; 35B3 [translation available]

China 3 June 2003 CIETAC Arbitration Award [CISG/2003/01] (Clothes case) 35A ; 35B1 [translation available]

Netherlands 21 May 2003 Rechtbank [District Court] Zwolle

Spain 8 May 2003 Audiencia Provincial [Appellate Court] Madrid 35B2

Switzerland 30 April 2003 Cantonal [Appellate Court] Valais (Furniture case) [translation available]

Australia 24 April 2003 Supreme Court of Victoria (Playcorp Pty LKtd v Taiyo Kogyo Limited) 35A ; 35B

Netherlands 23 April 2003 Gerechtshof [Appellate Court] 's-Gravenhage 35A [translation available]

New Zealand 31 March 2003 High Court, Auckland (International Housewares v SEB) 35A ; 35B

Germany 25 March 2003 Landgericht [District Court] Köln [translation available]

Germany 18 March 2003 Landgericht [District Court] Giessen

Austria 27 February 2003 Oberster Gerichtshof [Supreme Court] 35A ; 35B [translation available]

Russia 17 February 2003 Arbitration Award No. 168/2001 [translation available]

Netherlands 29 January 2003 Rechtbank [District Court] Zwolle

United States 29 January 2003 U.S. District Court [Illinois] (Ajax Tool Works v. Can-Eng Manufacturing)

Netherlands 22 January 2003 Rechtbank [District Court] Zwolle

Australia 17 January 2003 Supreme Court of Western Australia (Ginza Pte Ltd v Vista Corporation Pty Ltd) 35A ; 35B

France 7 January 2003 Tribunal de commerce [District Court] Aix-en-Provence (Footware case) 35A [translation available]
 

China 23 December 2002 CIETAC Arbitration Award [CISG 2002/28] (Hydraulic press case) 35A [translation available]

Belgium 16 December 2002 Hof van Beroep [Appellate Court] Antwerpen (Steel plates case) 35A ; 35B1 ; 35D [translation available]

Russia 10 December 2002 Arbitration Award No. 211/2001 [translation available]

Italy 26 November 2002 Tribunale [District Court] Rimini [translation available]

Germany 13 November 2002 Oberlandesgericht [Appellate Court] München

Switzerland 11 November 2002 Cour de Justice [Appellate Court] Genève (Iron concretes and steel bars case) 35A ; 35B [translation available]

Switzerland 5 November 2002 Handelsgericht [Commercial Court] des Kantons Aargau 35A ; 35B [translation available]

China 4 November 2002 CIETAC Arbitration Award [CISG 2002/08] (Beech log case) 35A ; 35B [translation available]

* Netherlands 15 October 2002 Netherlands Arbitration Institute Case No. 2319 35B [English text]

Germany 14 October 2002 Oberlandesgericht [Appellate Court] Köln [translation available]

Spain 3 October 2002 Audiencia Provincial [Appellate Court] Pontevedra [digest available]

Canada 20 September 2002 Manitoba Court of Queen's Bench (Brown & Root v. Aerotech) 35A

Germany 22 August 2002 Oberlandesgericht [Appellate Court] Schleswig 35A [translation available]

Germany 26 July 2002 Oberlandesgericht [Appellate Court] Zweibrücken 35A [translation available]

Argentina 21 July 2002 Cámara Nacional de Apelaciones en lo Comercial [Appellate Court] 35D [translation available]

China 18 July 2002 CIETAC Arbitration Award [CISG 2002/20] (Textile equipment case) 35B [translation available]

China 15 July 2002 CIETAC Arbitration Award [CISG 2002/19] (Coating equipment case) 35A [translation available]

Austria 11 July 2002 Oberster Gerichtshof [Supreme Court]

United States 21 June 2002 U.S. Circuit Court of Appeals [4th Cir.] (Schmitz-Werke v. Rockland)

Germany 4 June 2002 Landgericht [District Court] Stuttgart 35A [translation available]

Finland 12 April 2002 Hovrätt [Appellate Court] Turku 35A ; 35B [translation available]

Germany 11 April 2002 Amtsgericht [Lower Court] Viechtach 35A [translation available]

Switzerland 11 April 2002 Tribunal Cantonal [Appellate Court] Vaud

United States 29 March 2002 U.S. District Court [New York] (TeeVee Toons v. Gerhard Schubert)

Germany 27 February 2002 Landgericht [District Court] München 35B2 [translation available]

Germany 20 February 2002 Landgericht [District Court] München [translation available]

Denmark 31 January 2002 Sø og Handelsretten [Maritime Commercial Court] 35A ; 35C1 [translation available]

Belgium 18 January 2002 Rechtbank van Koophandel [District Court for Commercial Matters] Mechelen 35B1

Germany 9 January 2002 Bundesgerichtshof [Federal Supreme Court] 35A [translation available]

France 8 January 2002 Cour de Cassation [Supreme Court] (Ice cream cups case) 35A [translation available]

China 2002 Shanghai Yangpu District People's Court (China Xhanghai Dongda Import & Export Corp. v. Germany Laubholz – Meyer Corp) 35A [translation available]

ICC 2002 International Court of Arbitration, Case 10377 (Textile product machines case) 35A ; 35B [English text]

ICC 2002 International Court of Arbitration, Case 11333 (Machine case) [English text]
 

* Italy 13 December 2001 Tribunale [District Court] Busto Arsizio 35B3

China 28 November 2001 Higher People's Court [Appellate Court] of Jiangsu Province (Shanghai Shen He Import and Export Ltd. v. Japan Itochu Corp.) [translation available]

Germany 31 October 2001 Bundesgerichtshof [Federal Supreme Court] [translation available]

France 2 October 2001 Cour de Cassation [Supreme Court] [translation available]

Germany 28 June 2001 Landgericht [District Court] Trier

France 14 June 2001 Cour d'appel [Appellate Court] Paris [translation available]

Serbia 25 May 2001 Foreign Trade Court of Arbitration, Yugoslav Chamber of Commerce (Berries case) 35A ; 35C1 [translation available]

Canada 1 May 2001 Superior Court of Justice, Ontario (Dunn Paving Ltd. v. Aerco Trading Inc.)

Belgium 25 April 2001 Rechtbank van Koophandel [District Court] Veurne 35B [translation available]

United States 10 April 2001 U.S. Federal Bankruptcy Court [Ohio] (Victoria Alloys v. Fortis Bank)

Germany 29 March 2001 Landgericht [District Court] Trier 35B [translation available]

Germany 12 March 2001 Oberlandesgericht [Appellate Court] Stuttgart 35A [translation available]

Belgium 8 March 2001 Cour d'appel [Appellate Court] Mons

Germany 31 January 2001 Landgericht [District Court] Hamburg (Frozen pork and apple blinies case) 35A ; 35B [translation available]

* United States 30 January 2001 U.S. District Court [California] (Supermicro Computer v. Digitechnic)

Belgium 29 January 2001 Rechtbank van Koophandel [District Court] Ieper
 

Switzerland 22 December 2000 Bundesgericht [Federal Supreme Court] 35A [translation available]

Denmark 1 November 2000 Højesteret [Supreme Court]

France 24 October 2000 Cour d'appel [Appellate Court] Colmar [translation available]

Germany 23 October 2000 Oberlandesgericht [Appellate Court] Dresden (Powdered milk case) 35A [translation available]

* Italy 12 July 2000 Tribunale [District Court] Vigevano 35A ; 35B [translation available]

China 30 June 2000 Wuhan Economic and Technology Development Zone People's Court [District Court] (Shen Zhen fengshen Industry Development Co. v. INTER SERVICE INTERNATION France)

Russia 21 June 2000 Arbitration Court [Appellate Court] for Moscow Region (Case No. KG-A40/2396-00) 35A [translation available]

* Germany 9 May 2000 Landgericht [District Court] Darmstadt 35A ; 35B [translation available]

Argentina 24 April 2000 Cámara Nacional de Apelaciones en lo Comercial [Appellate Court] 7C231

Russia 21 April 2000 Appellate Division of Arbitration Court for Moscow City (Case No. A 40-39073/99-40-395) 35A [translation available]

Austria 13 April 2000 Oberster Gerichtshof [Supreme Court] 35B [translation available]

Germany 13 April 2000 Amtsgericht [Lower Court] Duisburg [translation available]

Germany 6 April 2000 Landgericht [District Court] München [translation available]

Netherlands 23 March 2000 Arrondissementsrechtbank [District Court] Rotterdam

Spain 2 March 2000 Audiencia Provincial [Appellate Court] Granada 35A ; 35B [translation available]

Russia 28 February 2000 Arbitration Court for Moscow City (Case No. A 40-39073/99-40-395) 35A [translation available]

Canada 26 January 2000 Ontario Court of Appeal (Nova Tool v. London Industries) 35A ; 35B

Russia 24 January 2000 Arbitration award 54/1999 35A [translation available]

Netherlands 20 January 2000 Arrondissementsrechtbank [District Court] Rotterdam 35A

China 19 January 2000 CIETAC Arbitration Award [CISG/2000/08] (Steel cylinders case) 35A [translation available]

China 7 January 2000 CIETAC Arbitration Award [CISG/2000/06] (Cysteine case) 35A [translation available]

China 2000 CIETAC Arbitration Award [CISG 2000/17] (Souvenir coins case) 35B [translation available]
 

China 29 December 1999 CIETAC Arbitration Award [CISG/1999/33] (Indonesian round logs case) 35A [translation available]

Germany 18 November 1999 Oberlandesgericht [Appellate Court] Koblenz

Denmark 10 November 1999 Veste Landsret [Western High Court] 35A [translation available]

Netherlands 14 October 1999 Arrondissementsrechtbank [District Court] Rotterdam [translation available]

Slovenia 13 October 1999 Higher Court [Appellate Court] Lujubljana (Dryers case) [translation available]

* Canada 31 August 1999 Ontario Superior Court of Justice (La San Giuseppe v. Forti Moulding Ltd) 35A ; 35B

ICC August 1999 International Court of Arbitration, Case 9887 [English text]

Austria 29 June 1999 Oberster Gerichtshof [Supreme Court] 35D [translation available]

ICC June 1999 International Court of Arbitration, Case 9187 [English text]

China 31 May 1999 CIETAC Arbitration Award [CISG/1999/27] (Indium ingot case) 35C2 [translation available]

Germany 25 May 1999 Landgericht [District Court] Berlin [translation available]

* United States 17 May 1999 Federal District Court [Louisiana] (Medical Marketing v. Internazionale Medico Scientifica) 35B

Netherlands 27 April 1999 Gerechtshof [Appellate Court] Arnhem 35D [translation available]

China 20 April 1999 CIETAC Arbitration Award [CISG/1999/23] (Chemical cleaning product equipment case) 35A [translation available]

China 12 April 1999 CIETAC Arbitration Award [CISG/1999/22] (Bud rice dregs case) [translation available]

China 7 April 1999 CIETAC Arbitration Award [CISG/1999/20] (PVC suspension resin case) 35A [translation available]

China 5 April 1999 CIETAC Arbitration Award [CISG/1999/19] (Air conditioner equipment case) 35A [translation available]

China 30 March 1999 CIETAC Arbitration Award [CISG/1999/17] (Electric heater case) 35A [translation available]

China 30 March 1999 CIETAC Arbitration Award [CISG/1999/16] (Flanges case) 35A ; 35B [translation available]

China 29 March 1999 CIETAC Arbitration Award [CISG/1999/14] (Flanges case) 35A [translation available]

* Germany 24 March 1999 Bundesgerichtshof [Federal Supreme Court] 35A ; 35B1[translation available]

Austria 11 March 1999 Oberster Gerichtshof [Supreme Court] [translation available]

China 1 March 1999 CIETAC Arbitration Award [CISG/1999/12] (Canned mandarin oranges case) 35A [translation available]

France 10 February 1999 Cour d’appel [Appellate Court] Paris

China 1999 CIETAC Arbitration award 35A [translation available]

ICC 1999 International Court of Arbitration, Case 9773 35A ; 35B3
 

Canada 16 December 1998 Ontario Court, General Division (Nova Tool v. London Industries) 35A ; 35B

* Switzerland 30 November 1998 Handelsgericht [Commercial Court] Zürich 35A [translation available]

China 26 November 1998 CIETAC Arbitration Award [CISG/1998/06] (Leather gloves case) 35A [translation available]

Germany 25 November 1998 Bundesgerichtshof [Federal Supreme Court] [translation available]

Denmark 4 November 1998 Randers Byret [County Court] (Christmas tree case) 35A [translation available]

United States 27 October 1998 Federal District Court [Illinois] (Mitchell Aircraft Spares v. European Aircraft Service)

Netherlands 2 October 1998 Arrondissementsrechtbank [District Court] 's Hertogenbosch 35A ; 35B [translation available]

China 25 September 1998 CIETAC Arbitration Award [CISG 1998/12] (Health supplement case) 35A [translation available]

Germany 24 September 1998 Landgericht [District Court] Regensburg 35A ; 35B21 ; 35B3 [translation available]

* Switzerland 21 September 1998 Handelsgericht [Commercial Court] Zürich (Catalogue case) 35A [translation available]

Germany 11 September 1998 Oberlandesgericht [Appellate Court] Koblenz [translation available]

* Finland 30 June 1998 Helsingin hovioikeus [Appellate Court] Helsinki 35A [translation available]

Switzerland 30 June 1998 Kantonsgericht Wallis / Tribunal cantonal Valais [Canton Appellate Court] (Granite stones case) [translation available]

* Switzerland 29 June 1998 Tribunal Cantonal [Appellate Court] Valais

* Stockholm Chamber of Commerce 5 June 1998 Arbitration award (Beijing Light Automobile Co. v. Connell) [English text]

Germany 3 June 1998 Oberlandesgericht [Appellate Court] Saarbrücken [translation available]

* Germany 31 March 1998 Oberlandesgericht [Appellate Court] Zweibrücken (Vine wax case) 35A [translation available]

Germany 24 March 1998 Landgericht [District Court] Berlin (Knitwear case) [translation available]

* France 18 March 1998 Cour d'appel [Appellate Court] Paris 35D [translation available]

Germany 11 March 1998 Oberlandesgericht [Appellate Court] München 35A [translation available]

* France 4 March 1998 Cour d'appel [Appellate Court] Paris 35D [translation available]

ICC March 1998 International Court of Arbitration, Case 9117 [English text]

* Finland 29 January 1998 Helsingfors hovrätt [Appellate Court] Helsinki [translation available]

France 19 January 1998 Tribunal de commerce [District Court] Besançon 35A ; 35B [translation available]

* Switzerland 15 January 1998 Tribunale d'appello [Appellate Court] Lugano [translation available]
 

China 16 December 1997 CIETAC Arbitration Award [CISG/1997/35] (Hot-dipped galvanized steel coils case) 35A ; 35B [translation available]

China 20 November 1997 CIETAC Arbitration Award [CISG/1997/32] (Rebar coil case) 35A [translation available]

* Switzerland 28 October 1997 Tribunal Cantonal [Appellate Court] Valais 35C

France 28 October 1997 Tribunal de commerce [District Court] Paris

China 27 October 1997 CIETAC Arbitration Award [CISG/1997/31] (Hot-rolled coils) 35A [translation available]

* Belgium 6 October 1997 Rechtbank van Koophandel [District Court] Kortrijk 35A [translation available]

China 8 September 1997 CIETAC Arbitration Award [CISG/1997/27] (BOPP film case) 35A [translation available]

Germany 21 August 1997 Oberlandesgericht [Appellate Court] Köln 35A [translation available]

China 23 July 1997 CIETAC Arbitration Award [CISG/1997/23] (Polypropylene case) 35A ; 35B4 [translation available]

Netherlands 17 July 1997 Arrondissementsrechtbank [District Court] Arnhem

Germany 9 July 1997 Oberlandesgericht [Appellate Court] München [7 U 2070/97] [translation available]

Netherlands 7 July 1997 Arrondissementsrechtbank [District Court] Arnhem 35A ; 35B

Germany 25 June 1997 Oberlandesgericht [Appellate Court] Karlsruhe [translation available]

Spain 20 June 1997 Audiencia Provincial [Appellate Court] Barcelona 35A ; 35B [translation available]

Switzerland 12 June 1997 Pretore [District Court] Lugano

China 23 April 1997 CIETAC Arbitration Award [CISG/1997/08] (Automobile case) 35B [translation available]

Germany 17 April 1997 Landgericht [District Court] Frankenthal

Switzerland 14 March 1997 Tribunal [District Court] Genève

Spain 4 February 1997 Audiencia Provincial [Appellate Court] Barcelona 35B2 [translation available]

* Germany 31 January 1997 Oberlandesgericht [Appellate Court] Koblenz [translation available]

Italy 30 January 1997 Pretura [District Court] Torino[translation available]

Russia 27 January 1997 Arbitration award 94/1996 35A ; 35B4 [translation available]

Russia 22 January 1997 Arbitration award 155/1996 35A [translation available]

Finland 17 January 1997 Tampere Court of First Instance 35A ; 35B [translation availabl

* Germany 8 January 1997 Oberlandesgericht [Appellate Court] Köln [translation available]

Belgium 6 January 1997 Rechtbank van Koophandel [District Court] Kortrijk

China 1997 Shanghai Higher People's Court [translation available]

ICC January 1997 International Court of Arbitration, Case 8786 [English text]
 

France 17 December 1996 Cour de Cassation [Supreme Court] 35B1 [translation available]

* Belgium 16 December 1996 Rechtbank van Koophandel [District Court] Kortrijk 35D

Netherlands 16 December 1996 Gerechtshof [Appellate Court] 's Hertogenbosch

* Germany 4 December 1996 Bundesgerichtshof [Federal Supreme Court] [translation available]

China 26 October 1996 CIETAC Arbitration Award [CISG/1996/49] (Cotton bath towel case) 35B1 [translation available]

China 23 October 1996 CIETAC Arbitration Award [CISG/1996/48] (Channel steel case) 35B2 [translation available]

Germany 2 October 1996 Landgericht [District Court] Heidelberg

ICC October 1996 International Court of Arbitration, Case 8740 35A [English text]

China 18 September 1996 CIETAC Arbitration Award [CISG/1996/43] (Agricultural products case) 35B3 [translation available]

China 6 September 1996 CIETAC Arbitration Award [CISG/1996/42] (Engines case) [translation available]

China 16 August 1996 CIETAC Arbitration Award [CISG/1996/39] (Dioctyl phthalate case) [translation available]

China 16 July 1996 CIETAC Arbitration Award [CISG/1996/31] (Hot-rolled steel plates case) 35A [translation available]

* Germany 25 June 1996 Landgericht [District Court] Paderborn 35A [translation available]

* ICC June 1996 International Court of Arbitration, Case 8247 35A ; 35B [English text]

China 29 May 1996 CIETAC Arbitration Award [CISG/1996/26] (Handicrafts case) 35A ; 35B3 [translation available]

China 22 May 1996 CIETAC Arbitration Award [CISG/1996/25] (Broadcasting equipment case) 35A [translation available]

* Germany 21 May 1996 Oberlandesgericht [Appellate Court] Köln 35A ; 35C1 ; 35C2 [translation available]

* France 15 May 1996 Cour d'appel [Appellate Court] Grenoble 35B1

* Mexico 29 April 1996 Compromex Arbitration award 35B4 [translation available]

* Germany 19 April 1996 Landgericht [District Court] Aachen

Germany 3 April 1996 Bundesgerichtshof [Federal Supreme Court] 35D [translation available]

Germany 12 March 1996 Landgericht [District Court] Bad Kreuznach

Russia 12 March 1996 Arbitration award 166/1996 35B1 ; 35B2 [translation available]

China 8 March 1996 CIETAC Arbitration Award [CISG/1996/12] (Old boxboard corrugated cartons case) 35A ; 35D [translation available]

China 14 February 1996 CIETAC Arbitration Award [CISG/1996/09] (Bicycles case) 35A ; 35B [translation available]

Germany 29 January 1996 Amtsgericht [Lower Court] Augsburg (Shoe case) 35D [translation added]

* France 23 January 1996 Cour de Cassation [Supreme Court] 35B [translation available]
 

* France 13 December 1995 Cour d'appel [Appellate Court] Paris [translation available]

* United States 6 December 1995 Federal Appellate Court [2nd Circuit] (Delchi Carrier v. Rotorex) 35A ; 35B3

Switzerland 30 November 1995 Kantonsgericht [District Court] Zug

Germany 16 November 1995 Landgericht [District Court] Köln

* Austria 9 November 1995 Oberlandesgericht [Appellate Court] Graz 35A ; 35B3 [translation available]

* Germany 12 October 1995 Landgericht [District Court] Trier [translation available]

Germany 20 September 1995 Oberlandesgericht [Appellate Court] Nürnberg

* France 13 September 1995 Cour d'appel [Appellate Court] Grenoble 35B [translation available]

* Germany 21 August 1995 Landgericht [District Court] Ellwangen 35B [translation available]

Austria 28 June 1995 Landesgericht [District Court] Graz

France 26 April 1995 Cour d'appel [Appellate Court] Grenoble (Marques Roque v. Manin Riviére) 35B2 [translation available]

Switzerland 26 April 1995 Handelsgericht [Commercial Court] Zürich 35D

Germany 5 April 1995 Landgericht [District Court] Landshut 35A [translation available]

China 22 March 1995 CIETAC Arbitration Award [CISG/1995/05] (Down jacket and winter coat case) 35A [translation available]

Germany 20 March 1995 Landgericht [District Court] München [translation available]

* Germany 8 March 1995 Bundesgerichtshof [Federal Supreme Court] 35B1 ; 35B2 ; 35B4 [translation available]

ICC March 1995 International Court of Arbitration, Case 8213 35A ; 35B [English text]

Germany 15 February 1995 Landgericht [District Court] Oldenburg

Germany 8 February 1995 Oberlandesgericht [Appellate Court] München [7 U 3758/94] (Plastic granulate case) [translation available]

Germany 8 February 1995 Landgericht München [translation available]

China 4 January 1995 CIETAC Arbitration Award [CISG/1995/02] (Shirts case) 35A [translation available]

ICC January 1995 International Court of Arbitration, Case 7754 [English text]
 

Germany 14 December 1994 Oberlandesgericht [Appellate Court] Hamburg

Russia 14 December 1994 Arbitration award 171/1994

Russia 14 December 1994 Arbitration award 172/1994

China December 1994 Fujian Higher People's Court [Appellate Court] [translation available]

Russia 17 November 1994 Arbitration award 493/1993

* Germany 15 September 1994 Landgericht [District Court] Berlin 35B [translation available]

United States 9 September 1994 Federal District Court [Northern Dist. NY] (Delchi Carrier v. Rotorex) 35A ; 35B3

China September 1994 CIETAC Arbitration award

* Germany 25 August 1994 Landgericht [District Court] Düsseldorf (Fashion goods case) 35D [translation available]

* Austria 1 July 1994 Oberlandesgericht [Appellate Court] Innsbruck 35A ; 35B [translation available]

Germany 4 May 1994 Amtsgericht [Lower Court] Charlottenburg 35B [translation available]

* Germany 20 April 1994 Oberlandesgericht [Appellate Court] Frankfurt 35B2 ; 35B4

China 30 March 1994 CIETAC Arbitration Award [CISG/1994/04] (Cow's liver fungus case) 35B4 [translation available]

Germany 2 March 1994 Oberlandesgericht [Appellate Court] München [translation available]

Germany 10 February 1994 Oberlandesgericht [Appellate Court] Düsseldorf [6 U 32/93] [translation available]

Germany 10 February 1994 Oberlandesgericht [Appellate Court] Düsseldorf [6 U 119/93] 35B2 ; 35D [translation available]

China 20 January 1994 CIETAC Arbitration Award [CISG/1994/02] (Hydraulic press case) 35C1 [translation available]

* Germany 18 January 1994 Oberlandesgericht [Appellate Court] Frankfurt [translation available]

ICC 1994 International Court of Arbitration, Case 7531 35A ; 35B [English text]

ICC 1994 International Court of Arbitration, Case 7565 [English text]
 

Germany 17 September 1993 Oberlandesgericht [Appellate Court] Koblenz [translation available]

* Switzerland 9 September 1993 Handelsgericht [Commercial Court] Zürich (Furniture case) [translation available]

China 10 July 1993 CIETAC Arbitration Award [CISG/1993/09] (Heliotropin case) 35A ; 35B3 [translation available]

Germany 24 May 1993 Landgericht [District Court] München

Germany 14 May 1993 Landgericht [District Court] Aachen [translation available]

Germany 14 April 1993 Amtsgericht [Lower Court] Cloppenburg [translation available]

Germany 12 March 1993 Oberlandesgericht [Appellate Court] Düsseldorf [translation available]

Germany 13 January 1993 Oberlandesgericht [Appellate Court] Saarbrücken (Doors case) [translation available]

China 9 January 1993 CIETAC Arbitration Award [CISG/1993/03] (Linseed cake case) 35A ; 35B [translation available]

Germany 8 January 1993 Oberlandesgericht [Appellate Court] Düsseldorf [translation available]

* ICC 1993 International Court of Arbitration, Case 6653 35D [translation available]
 

China 14 December 1992 Jiangxi Higher People's Court (Ao Long v. Jiangxi Province Export)
 

* Germany 14 August 1991 Landgericht [District Court] Baden-Baden [translation available]

Germany 13 June 1991 Oberlandesgericht [Appellate Court] Frankfurt
 

Germany 3 April 1990 Landgericht [District Court] Aachen 35A [translation available]
 

Iran/U.S. Claims Tribunal 16 June 1988 (Islamic Republic of Iran v. U.S.)


CASE DIGEST AND ANALYSIS
-   UNCITRAL's case law digest; and
-   An analysis of CISG jurisprudence

The UNCITRAL Digest of case law on the United
Nations Convention on the International Sale of Goods
[*]

A/CN.9/SER.C/DIGEST/CISG/35 [8 June 2004]
Reproduced with the permission of UNCITRAL

[Text of Article 35
Digest of Article 35 case law
-   Introduction
-   Analysis of provisions
      -   Article 35(1)
      -   Article 35(2): Overview
      -   Article 35(2)(a)
      -   Article 35(2)(b)
      -   Article 35(2)(c)
      -   Article 35(2)(d)
      -   Article 35(3)
-   Burden of proof
-   Evidence of lack of conformity
-   Jurisdictional issues]

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.

(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 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.                 

DIGEST OF ARTICLE 35 CASE LAW

Introduction

1. Article 35 of the CISG defines standards for determining whether goods delivered by the seller conform to the contract in terms of type, quantity, quality, and packaging, thereby defining the seller's obligations with respect to these crucial aspects of contractual performance. Two courts have stated that the unitary notion of conformity defined in article 35 displaces the concepts of "warranty" found in many domestic laws.[1]

2. In general, a failure by the seller to deliver goods that meet the applicable requirements of article 35 constitutes a breach of the seller's obligations,[2] although it has been stated that a failure of goods to conform to the contract is not a breach if the non-conforming goods are equal in value and utility to conforming goods.[3] A seller's breach of its obligations under article 35, furthermore, can in proper circumstances rise to the level of a fundamental breach of contract as defined in article 25 of the Convention, and thus justify the buyer in avoiding the contract under article 49(1) of the Convention.[4]

Article 35(1)

3. Article 35(1) requires a seller to deliver goods that meet the specifications of the contract in terms of description, quality, quantity and packaging. Thus it has been found that a shipment of raw plastic that contained a lower percentage of a particular substance than that specified in the contract, and which as a result produced window blinds that did not effectively shade sunlight, did not conform to the contract, and the seller had therefore breached its obligations.[5] It has also been found that a shipment of goods containing less than the quantity specified in the contract lacks conformity under article 35(1), with the court noting that a lack of conformity comprises both a lack of quality and a lack of quantity.[6] A used car that had been licensed two years earlier than indicated in the car's documents and whose odometer did not state the full mileage on the car was found to be non-conforming under article 35(1).[7] On the other hand, one court has concluded that there was no violation of article 35(1) when the seller delivered shellfish containing a high level of cadmium because the parties did not specify a maximum cadmium level in their agreement.[8]

4. In ascertaining, for purposes of article 35(1), whether the contract requires goods of a particular quantity, quality or description, or requires that the goods be contained or packaged in a particular manner, one must refer to general rules for determining the content of the parties' agreement.[9] In this connection, one court, on appeal of the decision concerning shellfish with high cadmium levels mentioned in the previous paragraph, found that the seller had not impliedly agreed to comply with recommended (but not legally mandatory) domestic standards for cadmium in shellfish existing in the buyer's country.[10] The court reasoned that the mere fact the seller was to deliver the shellfish to a storage facility located in the buyer's country did not constitute an implied agreement under article 35(1) to meet the standards for resalability in the buyer's country or to comply with public law provisions of the buyer's country governing resalability.[11]

Article 35(2): Overview

5. Article 35(2) states standards relating to the goods' quality, function and packaging that, while not mandatory, are presumed to be a part of sales contracts. In other words, these standards are implied terms that bind the seller even without affirmative agreement thereto. If the parties do not wish these standards to apply to their contract, they can (in the words of art. 35) "agree[...] otherwise."[12] Unless the parties exercise their autonomous power to contract out the standards of article 35(2), they are bound by them.[13] An arbitral tribunal has found that an agreement as to the general quality of goods did not derogate from article 35(2) if the agreement contained only positive terms concerning the qualities that the goods would possess, and not negative terms relieving the seller of responsibilities.[14] One court applied domestic law to invalidate a particular contract clause that attempted to exclude the seller's liability for a lack of conformity in the goods: the court held that the question of the validity of such a clause is an issue beyond the scope of the CISG, and is governed by the domestic law applicable under private international law rules.[15]

6. Article 35(2) is comprised of four subparts. Two of the subparts (art. 35(2)(a) and art. 35(2)(d)) apply to all contracts unless the parties have agreed otherwise. The other two subparts (art. 35(2)(b) and art. 35(2)(c)) are triggered only if certain factual predicates are present. The standards stated in these subparts are cumulative – that is, the goods do not conform to the contract unless they meet the standards of all applicable subparts.

Article 35(2)(a)

7. Article 35(2)(a) requires the seller to deliver goods "fit for the purposes for which goods of the same description would ordinarily be used." This standard was found to be violated when the seller delivered a refrigeration unit that broke down soon after it was first put into operation.[16] It was also found violated when the seller delivered wine that had been diluted with 9% water, causing domestic authorities to seize and destroy the wine,[17] and when the seller delivered chaptalized wine.[18] It was also found to be violated where the seller substituted a different component in a machine without notifying the buyer and without giving the buyer proper instructions for installation, and as a result the machine failed after three years of use, thus disappointing the buyer's expectation for "long, continuous operation of the [machine] without failure."[19]

8. The standard of article 35(2)(a), however, requires only that the goods be fit for the purposes for which they are ordinarily used. It does not require that the goods be perfect or flawless, unless perfection is required for the goods to fulfil their ordinary purposes.[20] One court has raised but not resolved the issue of whether article 35(2)(a) requires goods of average quality, or goods of merely "marketable" quality.[21]

9. Several decisions have discussed whether conformity with article 35(2)(a) is determined by reference to the quality standards prevailing in the buyer's jurisdiction. According to one decision, the fact that the seller is to deliver goods to a particular jurisdiction and can infer that they will be marketed there is not sufficient to impose the standards of the importing jurisdiction in determining suitability for ordinary purposes under article 35(2)(a).[22] Thus the fact that mussels purchased and delivered to the buyer's country contained cadmium levels exceeding the recommendations of the buyer's country's health regulations did not establish that the mussels failed to conform to the contract under article 35(2)(a).[23] The court indicated that the standards in the importing jurisdiction would have applied if the same standards existed in the seller's jurisdiction, or if the buyer had pointed out the standards to the seller and relied on the seller's expertise.[24] The court raised but did not determine the question whether the seller would be responsible for complying with public law provisions of the importing country if the seller knew or should have known of those provisions because of "special circumstances" – e.g., if the seller maintained a branch in the importing country, had a long-standing business connection with the buyer, often exported into the buyer's country, or promoted its products in the importing country.[25] A court from a different country, citing the aforementioned decision, has upheld an arbitral award finding a seller in violation of article 35(2)(a) because it delivered medical devices that failed to meet safety regulations of the buyer's jurisdiction:[26] the court concluded that the arbitration panel acted properly in finding that the seller should have been aware of and was bound by the buyer's country's regulations because of "special circumstances" within the meaning of the opinion of the court that rendered the aforementioned decision. A different court has found that a seller of cheese was required to comply with the buyer's country's standards because it had had dealings with the buyer for several months, and therefore must have known that the cheese was destined for the market in the buyer's country;[27] the seller, therefore, violated its obligations under CISG article 35 when it delivered cheese that did not have its composition marked on the packaging, as required by the buyer's country's marketing regulations.

Article 35(2)(b)

10. Article 35(2)(b) requires that the goods be fit for "any particular purpose expressly or impliedly made known to the seller at the time of the conclusion of the contract." The article 35(2)(b) obligation arises only if one or more particular purposes were revealed to the seller by the time the contract was concluded. In addition, the requirements of article 35(2)(b) do not apply if "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." With regard to the latter reliance element, one court has stated that in the usual case, a buyer cannot reasonably rely on the seller's knowledge of the importing country's public law requirements or administrative practices relating to the goods, unless the buyer pointed such requirements out to the seller.[28] The court therefore found that mussels with cadmium levels exceeding the recommendations of German health regulations did not violate the requirements of article 35(2)(b) where there was no evidence that the buyer had mentioned the regulations to the seller. By so holding, the court affirmed the decision of a lower court that the seller had not violated article 35(2)(b) because there was no evidence that the parties implicitly agreed to comply with the buyer's country's health recommendations.[29] On the other hand, one court has found that a seller violated article 35(2)(b) when it delivered skin care products that did not maintain specified levels of vitamin A throughout their shelf life.[30] The court found that the buyer intended to purchase products with the specified vitamin levels, that "the special purpose ... was known by the [seller] with sufficient clarity," and that "the buyer counted on the seller's expertise in terms of how the seller reaches the required vitamin A content and how the required preservation is carried out."

Article 35(2)(c)

11. Article 35(2)(c) requires that, in order to conform to the contract, goods must "possess the qualities of goods which the seller has held out to the buyer as a sample or model." Several courts have found that delivered goods violated this provision.[31] Article 35(2)(c), by its terms, applies if the seller has held out a sample or model to the buyer, unless the parties "have agreed otherwise." One court has nevertheless indicated that the goods must conform to a model only if there is an express agreement in the contract that the goods will do so.[32] On the other hand, it has been held that the section will apply if it is the buyer rather than the seller that has provided the model, provided that the parties agreed that the goods should conform to the model.[33]

Article 35(2)(d)

12. Article 35(2)(d) supplements the last clause of article 35(1), which requires that the goods be "contained or packaged in the manner required by the contract." Several cases have found that improperly packaged goods failed to conform to the contract under article 35(2)(d). Where a seller sold cheese that it knew would be resold in the buyer's country, and the cheese was delivered in packaging that did not comply with that country's food labelling regulations, the goods were deemed non-conforming under article 35(2)(d).[34] In another case, a seller of canned fruit was found to have violated article 35 where the containers were not adequate to prevent the contents from deteriorating after shipment.[35]

Article 35(3)

13. Article 35(3) relieves the seller of responsibility for a lack of conformity under article 35(2) to the extent that the buyer "knew or could not have been unaware" of the non-conformity at the time the contract was concluded.[36] Under this provision, a buyer has been held to have assumed the risk of defects in a used bulldozer that the buyer inspected and tested before purchasing.[37] One court has stated that, under article 35(3), a buyer who elects to purchase goods despite an obvious lack of conformity must accept the goods "as is."[38] The rule of article 35(3), however, is not without limits. Where a seller knew that a used car had been licensed two years earlier than indicated in the car's documents and knew that the odometer understated the car's actual mileage but did not disclose these facts to the buyer, the seller was liable for the lack of conformity even if the buyer (itself a used car dealer) should have detected the problems.[39] Citing articles 40 and 7(1), the court found that the Convention contains a general principle favoring even a very negligent buyer over a fraudulent seller.

Burden of proof

14. A number of decisions have discussed who bears the burden of proving that goods fail to conform to the contract under article 35. One court has twice indicated that the seller bears that burden.[40] On the other hand, several tribunals have concluded that the buyer bears the burden of proving lack of conformity, although the decisions adopt different theories to reach that result. For example, after noting that the CISG does not expressly address the burden of proof issue, one arbitral tribunal applied domestic law to allocate the burden to the buyer as the party alleging a lack of conformity.[41] Other courts have concluded that the Convention itself, although it does not expressly answer the burden of proof question, contains a general principle that the party who is asserting or affirming a fact bears the burden of proving it, resulting in an allocation of the burden to a buyer who asserts that goods did not conform to the contract.[42] Some decisions suggest that the burden of proof varies with the context. Thus, one court has stated that the buyer bears the burden of proving a lack of conformity if it has taken delivery of the goods without giving immediate notice of non-conformity.[43] Similarly, another court has indicated that the seller bears the burden of proving that goods were conforming at the time risk of loss passed, but the buyer bears the burden of proving a lack of conformity after the risk shifted if it has accepted the goods without immediately notifying the seller of defects.[44]

Evidence of lack of conformity

15. Several decisions address evidentiary issues relating to a lack of conformity under article 35. Direct evidence that the standards of article 35 were violated has been adduced and accepted by courts in several instances. Thus a showing that delivered wine had been seized and destroyed by authorities in the buyer's country because it had been diluted with water was accepted by the court as establishing that the wine did not conform with the contract for sale.[45] Similarly, one court has found that, once the buyer established that a refrigeration unit had broken down shortly after it was first put into operation, the seller was presumed to have violated article 35(2)(a) and thus bore the burden of showing it was not responsible for the defects.[46] Expert opinion has also been accepted as establishing a lack of conformity,[47] although the results of an investigation into the quality of the goods have been held insufficient to establish a lack of conformity where the buyer ignored a trade usage requiring that the seller be permitted to be present at such investigations.[48] On the other hand, it has been found that the early failure of a substituted part in a machine did not by itself establish that the machine was not in conformity with the contract, since the failure might have been due to improper installation.[49] Furthermore, a buyer's failure to complain of obvious defects at the time the goods were received has been taken as affirmative evidence that the goods conformed to the contract.[50] In another case, deliveries of allegedly non-conforming chemicals had been mixed with earlier deliveries of chemicals; thus, even though the buyer showed that glass produced with the chemicals was defective, it could not differentiate which deliveries were the source of the defective chemicals; and since the time to give notice of non-conformity for the earlier deliveries had expired, the buyer failed to prove a lack of conformity:[51] Finally, it has been found that a seller's offer to remedy any defects in the goods did not constitute an admission that the goods lacked conformity.[52]

Jurisdictional issues

16. For purposes of determining jurisdiction under article 5(1) of the Brussels Convention, several courts have concluded that the conformity obligation imposed on the seller by CISG article 35 is not independent of the obligation to deliver the goods, and both obligations are performed at the same place.[53]


FOOTNOTES

* The present text was prepared using the full text of the decisions cited in the Case Law on UNCITRAL Texts (CLOUT) abstracts and other citations listed in the footnotes. The abstracts are intended to serve only as summaries of the underlying decisions and may not reflect all the points made in the digest. Readers are advised to consult the full texts of the listed court and arbitral decisions rather than relying solely on the CLOUT abstracts.

[Citations to cisgw3 case presentations have been substituted [in brackets] for the case citations provided in the UNCITRAL Digest. This substitution has been made to facilitate online access to CLOUT abstracts, original texts of court and arbitral decisions, and full text English translations of these texts (available in most but not all cases). For citations UNCITRAL had used, go to <http://www.uncitral.org/english/clout/digest_cisg_e.htm>.]

1. CLOUT case No. 256 [SWITZERLAND Tribunal Cantonal [Appellate Court] Valais 29 June 1998, available online at <http://cisgw3.law.pace.edu/cases/980629s1.html>] (see full text of the decision); CLOUT case No. 219 [SWITZERLAND Tribunal Cantonal [Appellate Court] Valais 28 October 1997, available online at <http://cisgw3.law.pace.edu/cases/971028s1.html>] (see full text of the decision).

2. See, e.g., CLOUT case No. 123 [GERMANY Bundesgerichtshof [Supreme Court] 8 March 1995, available online at <http://cisgw3.law.pace.edu/cases/950308g3.html>] (see full text of the decision), (stating that a fundamental breach of contract "can be caused by a delivery of goods that do not conform with the contract") [English translation by Alston & Bird]; [GERMANY Landgericht [District Court] Paderborn 25 June 1996, available online at <http://cisgw3.law.pace.edu/cases/960625g1.html>] (stating that the seller had breached its obligations by delivering goods that failed to conform to the technical specifications of the contract) [English translation by Jarno Varno, translation edited by Ruth M. Janal].

3. CLOUT case No. 251 [SWITZERLAND Handelsgericht [Commercial Court] Zürich 30 November 1998, available online at <http://cisgw3.law.pace.edu/cases/981130s1.html>].

4. CLOUT case No. 123 [GERMANY Bundesgerichtshof [Supreme Court] 8 March 1995, available online at <http://cisgw3.law.pace.edu/cases/950308g3.html>] (see full text of the decision) [supra note 2]; CLOUT case No. 79 [GERMANY Oberlandesgericht [Appellate Court] Frankfurt 18 January 1994, available online at <http://cisgw3.law.pace.edu/cases/940118g1.html>] [English translation by Journal of Law and Commerce].  See also [ITALY Tribunale [District Court] Busto Arsizio 13 December 2001, available online at <http://cisgw3.law.pace.edu/cases/011213i3.html>] (delivery of a machine totally unfit for the particular use which was made known to the seller and which was incapible of reaching the promised production level represented a "serious and fundamental" breach of   the contract, since the promised production level had been an essential condition for the conclusion of the contract, and therefore forming the basis for termination).

5. [GERMANY Landgericht [District Court] Paderborn 25 June 1996, available online at <http://cisgw3.law.pace.edu/cases/960625g1.html>] [supra note 2].

6. CLOUT case No. 282 [GERMANY Oberlandesgericht [Appellate Court] Koblenz 31 January 1997, available online at <http://cisgw3.law.pace.edu/cases/970131g1.html>].

7. CLOUT case No. 168 [GERMANY Oberlandesgericht [Appellate Court] Köln 21 May 1996, available online at <http://cisgw3.law.pace.edu/cases/960521g1.html>] [English translation by Dr. Peter Feuerstein, translation edited by Chantal Niggemann].

8. CLOUT case No. 84 [GERMANY Oberlandesgericht [Appellate Court] Frankfurt 20 April 1994, available online at <http://cisgw3.law.pace.edu/cases/940420g1.html>].

9. Such general rules for determining the contents of the parties' agreement would include the general standards in the CISG relating to the meaning and contents of a contract for sale, including article 8 (standards for determining a party's intent) and article 9 (usages and practices to which the parties are bound).

10. CLOUT case no. 123 [GERMANY Bundesgerichtshof [Supreme Court] 8 March 1995, available online at <http://cisgw3.law.pace.edu/cases/950308g3.html>] (see full text of the decision) [supra note 2].

11. Id., (see full text of the decision).

12. The parties' power to contract out of the implied standards of article 35(2) (i.e., to agree otherwise) is a specific application of the parties' power under article 6 to "derogate from or vary the effect of any of [the Convention's] provisions." See CLOUT case No. 229 [GERMANY Bundesgerichtshof [Supreme Court] 4 December 1996, available online at <http://cisgw3.law.pace.edu/cases/961204g1.html>] [English translation by Alston & Bird]. ("If the [buyer] has warranty claims against the seller – and of what kind – primarily depends upon the warranty terms and conditions of [seller], which became part of the contract. They have priority over the CISG provisions (CISG Art. 6).") (see full text of the decision).

13. One court has held that machinery was sold "as is" – in effect, without the protections of article 35(2)(a) – because it was second-hand, but the court of appeal chose not to rely on this approach and instead affirmed this portion of the lower court decision on other grounds. See [GERMANY Oberlandesgericht [Appellate Court] Köln 8 January 1997, available online at <http://cisgw3.law.pace.edu/cases/970108g1.html>] [English translation by Ruth M. Janal, translation edited by Camilla Baasch Andersen], affirming in relevant part [GERMANY Landgericht [District Court] Aachen 19 April 1996, available online at <http://cisgw3.law.pace.edu/cases/960419g1.html>].

14. CLOUT case No. 237 [STOCKHOLM CHAMBER OF COMMERCE Arbitration Award of 5 June 1998, available online at <http://cisgw3.law.pace.edu/cases/980605s5.html>] (see full text of the decision) [English text].

15. CLOUT case No. 168 [GERMANY Oberlandesgericht [Appellate Court] Köln 21 May 1996, available online at <http://cisgw3.law.pace.edu/cases/960521g1.html>] [English translation by Dr. Peter Feuerstein, translation edited by Chantal Niggemann]. See also [UNITED STATES Supermicro Computer, Inc. v. Digitechnic, S.A. Federal District Court [California] 30 January 2001, available online at <http://cisgw3.law.pace.edu/cases/010130u1.html>] wherein a United States District Court declined to hear a dispute that was already subject to litigation in France because resolving the matter would require the court to determine the validity of a warranty disclaimer clause under the CISG (145 F. Supp. 2d at 1151).

16. CLOUT case No. 204 [FRANCE Cour d'appel [Appellate Court] Grenoble 15 May 1996, available online at <http://cisgw3.law.pace.edu/cases/960515f1.html>].

17. CLOUT case No. 170 [GERMANY Landgericht [District Court] Trier 12 October 1995, available online at <http://cisgw3.law.pace.edu/cases/951012g1.html>] [English translation by Ruth M. Janal, translation edited by Camilla Baasch Andersen].

18. [FRANCE Cour de Cassation [Supreme Court] 23 January 1996, available online at <http://cisgw3.law.pace.edu/cases/960123f1.html>] [English translation by Charles Sant 'Elia].

19. CLOUT case No. 237 [STOCKHOLM CHAMBER OF COMMERCE Arbitration Award of 5 June 1998, available online at <http://cisgw3.law.pace.edu/cases/980605s5.html>] (see full text of the decision) [supra note 14].

20. [ICC Court of Arbitration, case No. 8247 of June 1996, available online at <http://cisgw3.law.pace.edu/cases/968247i1.html>] (microcrystaline chemicals that had solidified but could easily be re-transformed into crystals did not fail to conform to the contract); CLOUT case No. 252 [SWITZERLAND Handelsgericht [Commercial Court] Zürich 21 September 1998, available online at <http://cisgw3.law.pace.edu/cases/980921s1.html>] (one misplaced line of text, which did not impede the legibility of the text, did not render an art exhibition catalogue non-conforming); CLOUT case No. 341 [CANADA La San Giuseppe v. Forti Moulding Ltd. [Ontario Superior Court of Justice] 31 August 1999, available online at <http://cisgw3.law.pace.edu/cases/990831c4.html>] (shipments containing a small percentage of defective picture frame mouldings did not fail to conform to the contract when the evidence indicated that shipments from any supplier would include some defective mouldings) (see full text of the decision).

21. CLOUT case No. 123 [GERMANY Bundesgerichtshof [Supreme Court] 8 March 1995, available online at <http://cisgw3.law.pace.edu/cases/950308g3.html>] (see full text of the decision). One court has stated that, to comply with article 35(2)(a), goods must be of average quality, and not merely marketable; see [GERMANY Landgericht [District Court] Berlin 15 September 1994, available online at <http://cisgw3.law.pace.edu/cases/940915g1.html>] [English translation by Martin Eimer, translation edited by Ruth M. Janal]. Compare [NETHERLANDS Arbitration Institute case no. 2319 of 15 October 2002, available online at <http://cisgw3.law.pace.edu/cases/021015n1.html>] (rejecting both average quality and merchantability tests, and applying a "reasonable quality" standard) [English text].

22. CLOUT case No. 123 [GERMANY Bundesgerichtshof [Supreme Court] 8 March 1995, available online at <http://cisgw3.law.pace.edu/cases/950308g3.html>] [supra note 2] ("a foreign seller can simply not be required to know the not easily determinable public law provisions and/or administrative practices of the country to which he exports, and ... the purchaser, therefore, cannot rationally rely upon such knowledge of the seller, but rather, the buyer can be expected to have such expert knowledge of the conditions in his own country or in the place of destination, as determined by him, and, therefore, he can be expected to inform the seller accordingly"). The court raised but did not resolve the issue of whether goods must meet the standards of the seller's own jurisdiction in order to comply with article 35(2)(a) (see full text of the decision).

23. Id. Compare CLOUT case No. 343 [GERMANY Landgericht [District Court] Darmstadt 9 May 2000, available online at <http://cisgw3.law.pace.edu/cases/000509g1.html>] [English translation by Ruth M. Janal, translation edited by Camilla Baasch Andersen], where a Swiss purchaser of video recorders complained that the German seller had only supplied instruction booklets in German and not in the other languages spoken in Switzerland. The court rejected the argument because the recorders had not been produced specially for the Swiss market and the buyer had failed to stipulate for instruction booklets in other languages.

24. In a later decision involving vine wax that failed to protect vines grafted using the wax, the German Supreme Court found that the wax did not meet the requirements of article 35(2)(a) because it "did not meet the industry standards – of which both parties were aware and which both parties applied...". CLOUT case No. 272 [GERMANY Oberlandesgericht [Appellate Court] Zweibrücken 31 March 1998, available online at <http://cisgw3.law.pace.edu/cases/980331g1.html>] (see full text of the decision).

25. One court has concluded that, in the following circumstances, a Spanish seller of pepper agreed that the goods had to comply with German food safety laws: the seller had a long-standing business relationship with the German buyer; the seller regularly exported into Germany; and in a previous contract with the buyer the seller had agreed to special procedures for ensuring compliance with German food safety laws; [GERMANY Landgericht [Appellate Court] Ellwangen 21 August 1995, available online at <http://cisgw3.law.pace.edu/cases/950821g2.html>] [English translation by Alston & Bird]. The court, citing article 35(1), found that pepper products containing ethylene oxide at levels exceeding that permitted by German food safety laws did not conform to the contract; it therefore ruled in favor of the buyer, who had argued (presumably on the basis of article 35(2)(a)) that the pepper products "were not fit for the purposes for which the goods would ordinarily be used and not fit to be sold in Germany."

26. CLOUT case No. 418 [UNITED STATES Medical Marketing v. Internazionale Medico Scientifica Federal District Court [Louisiana] 17 May 1999 available online at <http://cisgw3.law.pace.edu/cases/990517u1.html>].

27. CLOUT case No. 202 [FRANCE Cour d'appel [Appellate Court] Grenoble 13 September 1995, available online at <http://cisgw3.law.pace.edu/cases/950913f1.html>] [English translation by Annabel Teiling, translation edited by Yvonne Salmon].

28. CLOUT case No. 123 [GERMANY Bundesgerichtshof [Supreme Court] 8 March 1995, available online at <http://cisgw3.law.pace.edu/cases/950308g3.html>] [supra note 2].

29. CLOUT case No. 84 [GERMANY Oberlandesgericht [Appellate Court] Frankfurt 20 April 1994, available online at <http://cisgw3.law.pace.edu/cases/940420g1.html>], opinion described in CLOUT case No. 123 [GERMANY Bundesgerichtshof [Supreme Court] 8 March 1995, available online at <http://cisgw3.law.pace.edu/cases/950308g3.html>] [supra note 2].

30. [FINLAND Court of First Instance [Appellate Court] Helsinki 30 June 1998, available online at <http://cisgw3.law.pace.edu/cases/980630f5.html>] English translation available; see also [ITALY Tribunale [District Court] Busto Arsizio 13 December 2001, available online at <http://cisgw3.law.pace.edu/cases/011213i3.html>].

31. CLOUT case No. 79 [GERMANY Oberlandesgericht [Appellate Court] Frankfurt 18 January 1994, available online at <http://cisgw3.law.pace.edu/cases/940118g1.html>] (holding that the goods (shoes) failed to conform to a sample supplied by the seller, but that the lack of conformity was not shown to be a fundamental breach) (see full text of the decision); CLOUT case No. 138 [UNITED STATES Delchi Carrier v. Rotorex, [Federal Appellate Court] [2nd Circuit] 6 December 1995, available online at <http://cisgw3.law.pace.edu/cases/951206u1.html>] (finding that air conditioner compressors delivered by the seller did not conform to the contract, and that such lack of conformity constituted a fundamental breach: "The agreement between Delchi and Rotorex was based upon a sample compressor supplied by Rotorex and upon written specifications regarding cooling capacity and power consumption ... . The president of Rotorex ... conceded in a May 17, 1988 letter to Delchi that the compressors supplied were less efficient than the sample ... .") (see full text of the decision).

32. [GERMANY Landgericht [District Court] Berlin 15 September 1994 , available online at <http://cisgw3.law.pace.edu/cases/940915g1.html>] [supra note 21].

33. CLOUT case No. 175 [AUSTRIA Oberlandesgericht [Appellate Court] Graz 9 November 1995, available online at <http://cisgw3.law.pace.edu/cases/951109a3.html>] (see full text of the decision) [English translation by Ruth M. Janal, translation edited by Todd Fox].

34. CLOUT case No. 202 [FRANCE Cour d'appel [Appellate Court] Grenoble 13 September 1995, available online at <http://cisgw3.law.pace.edu/cases/950913f1.html>] (see full text of the decision) [English translation by Annabel Teiling, translation edited by Yvonne Salmon].

35. Conservas La Costella S.A. de C.V. v. Lanín San Luis S.A. & Agroindustrial Santa Adela S.A., Arbitration Proceeding before Compromex (Comisión pare la Protección del Comercio Exterior de Mexico) [MEXICO Compromex Arbitration Award 29 April 1996, available online at <http://cisgw3.law.pace.edu/cases/960429m1.html>] [English translation by Journal of Law and Commerce]. The Compromex decision did not specifically cite CISG article 35(2)(d).

36. Note that article 35(3) only relieves the seller of responsibility for non-conformity under article 35(2)(a)-(d). A lack of conformity under article 35(1) (requiring the goods to be of "the quantity, quality and description required by the contract") is not subject to the rule of article 35(3). Nevertheless, a buyer's awareness of defects at the time the contract is concluded should presumably be taken into account in determining what the parties' agreement requires as to the quality of the goods. Secretariat Commentary to (then) Article 33 of the Convention, p. 32, para. 14.

37. CLOUT case No. 219 [SWITZERLAND Tribunal Cantonal [Appellate Court] Valais 28 October 1997, available online at <http://cisgw3.law.pace.edu/cases/971028s1.html>]. After the buyer inspected the bulldozer, the parties agreed that the seller would replace three specific defective parts. The seller replaced the parts before delivering the machine, but the buyer then complained of other defects. (see full text of the decision)

38. CLOUT case No. 256 SWITZERLAND Tribunal Cantonal [Appellate Court] Valais 29 June 1998, available online at <http://cisgw3.law.pace.edu/cases/980629s1.html>] (see full text of the decision).

39. CLOUT case No. 168 [GERMANY Oberlandesgericht [Appellate Court] Köln 21 May 1996, available online at <http://cisgw3.law.pace.edu/cases/960521g1.html>] [supra note 7].

40. [BELGIUM Rechtbank [District Court] Kortrijk 6 October 1997, available online at <http://cisgw3.law.pace.edu/cases/971006b1.html>]; [BELGIUM Rechtbank [District Court] Kortrijk 16 December 1996, available online at <http://cisgw3.law.pace.edu/cases/961216b1.html>].

41. CLOUT case No. 103 [ICC Court of Arbitration, case No. 6653 of 26 March 1993, available online at <http://cisgw3.law.pace.edu/cases/936653i1.html>]. A Swiss court has acknowledged the view that the burden of proving a lack of conformity should be allocated by applying domestic law, but it neither adopted nor rejected this approach because the contrary view led to the same result (buyer bore the burden). CLOUT case No. 253 [SWITZERLAND Tribunale d'appello [Appellate Court] Lugano, Cantone del Ticino 15 January 1998, available online at <http://cisgw3.law.pace.edu/cases/980115s1.html>] [English translation by Charles Sant 'Elia, translation edited by Angela Maria Romito].

42. CLOUT case No. 378 [ITALY Tribunale [District Court] Vigevano 12 July 2000, available online at <http://cisgw3.law.pace.edu/cases/000712i3.html>] [English translation by Journal of Law and Commerce] (containing an extended discussion of the issue). To the same general effect, see CLOUT case No. 97 [SWITZERLAND Handelsgericht [Commercial Court] Zürich 9 September 1993, available online at <http://cisgw3.law.pace.edu/cases/930909s1.html>]. One court has noted the view that the Convention contains a general principle allocating the burden to the buyer, but it neither adopted nor rejected this approach because the contrary view led to the same result (buyer bore the burden). CLOUT case No. 253 [SWITZERLAND Tribunal Cantonal [Appellate Court] Lugano, Cantone del Ticino 15 January 1998, available online at <http://cisgw3.law.pace.edu/cases/980115s1.html>] [supra note 41]; see also [NETHERLANDS Arbitration Institute case no. 2319 of 15 October 2002, available online at <http://cisgw3.law.pace.edu/cases/021015n1.html>] [supra note 21]. Without expressly discussing the issue, several decisions appear to have impliedly adopted the view that the CISG allocated the burden of proving lack of conformity to the buyer. See CLOUT case No. 107 [AUSTRIA Oberlandesgericht [Appellate Court] Innsbruck 1 July 1994, available online at <http://cisgw3.law.pace.edu/cases/940701a3.html>] [English translation by Ruth M. Janal, translation edited by Todd Fox] (buyer failed to prove that the goods did not conform to the contract); [GERMANY Landgericht [District Court] Düsseldorf 25 August 1994, available online at <http://cisgw3.law.pace.edu/cases/940825g1.html>] (buyer failed to prove lack of conformity).

43. CLOUT case No. 123 [GERMANY Bundesgerichtshof [Supreme Court] 8 March 1995, available online at <http://cisgw3.law.pace.edu/cases/950308g3.html>] [supra note 2] (see full text of the decision). One court has found that, because it was shown that a refrigeration unit had broken down soon after it was first put into operation, the seller bore the burden of proving that it was not responsible for the defect. CLOUT case No. 204 [FRANCE Cour d'appel [Appellate Court] Grenoble 15 May 1996, available online at <http://cisgw3.law.pace.edu/cases/960515f1.html>].

44. CLOUT case No. 251 [SWITZERLAND Handelsgericht [Commercial Court] Zürich 30 November 1998, available online at <http://cisgw3.law.pace.edu/cases/981130s1.html>].

45. CLOUT case No. 170 [GERMANY Landgericht [District Court] Trier 12 October 1995, available online at <http://cisgw3.law.pace.edu/cases/951012g1.html>] [English translation by Ruth M. Janal, translation edited by Camilla Baasch Andersen] (see full text of the decision).

46. CLOUT case No. 204 [FRANCE Cour d'appel [Appellate Court] Grenoble 15 May 1996, available online at <http://cisgw3.law.pace.edu/cases/960515f1.html>].

47. CLOUT case No. 50 [GERMANY Landgericht [District Court] Baden-Baden 14 August 1991, available online at <http://cisgw3.law.pace.edu/cases/910814g1.html>] [English translation by Journal of Law and Commerce] (see full text of the decision). But see CLOUT case No. 378 [ITALY Tribunale [District Court] Vigevano 12 July 2000, available online at <http://cisgw3.law.pace.edu/cases/000712i3.html>] [supra note 42] where the court rejected expert opinion evidence offered by the seller because under Italian civil procedure law only an expert appointed by the court can offer such an opinion  (see full text of the decision). For cases in which courts appointed experts to evaluate the conformity of the goods, see CLOUT case No. 123 [GERMANY Bundesgerichtshof [Supreme Court] 8 March 1995, available online at <http://cisgw3.law.pace.edu/cases/950308g3.html>] [supra note 2] (reporting that the trial court had obtained an expert opinion of public health authorities on the cadmium level in mussels) (see full text of the decision); CLOUT case No. 271 [GERMANY Bundesgerichtshof [Supreme Court] 24 March 1999, available online at <http://cisgw3.law.pace.edu/cases/990324g1.html>] [English translation by Alston & Bird] (expert opinion that damage to vines was caused by defective vine wax) (see full text of the decision); [BELGIUM Rechtbank [District Court] Kortrijk 6 October 1997, available online at <http://cisgw3.law.pace.edu/cases/971006b1.html>] (appointing judicial expert to determine the conformity of yarn); [BELGIUM Rechtbank [District Court] Kortrijk 16 December 1996, available online at <http://cisgw3.law.pace.edu/cases/961216b1.html>].

48. [FINLAND [Appellate Court] Helsinki 29 January 1998, available online at <http://cisgw3.law.pace.edu/cases/980129f5.html>] [English translation by Jarno Vanto].

49. CLOUT case No. 237 [STOCKHOLM CHAMBER OF COMMERCE Arbitration Award of 5 June 1998, available online at <http://cisgw3.law.pace.edu/cases/980605s5.html>] (see full text of the decision) [supra note 14].

50. CLOUT case No. 341 [CANADA La San Giuseppe v. Forti Moulding Ltd. [Ontario Superior Court of Justice] 31 August 1999, available online at <http://cisgw3.law.pace.edu/cases/990831c4.html>] (see full text of the decision).

51. CLOUT case No. 50 [GERMANY Landgericht [District Court] Baden-Baden 14 August 1991, available online at <http://cisgw3.law.pace.edu/cases/910814g1.html>] [supra note 47] (see full text of the decision).

52. CLOUT case No. 97 [SWITZERLAND Handelsgericht [Commercial Court] Zürich 9 September 1993, available online at <http://cisgw3.law.pace.edu/cases/930909s1.html>] (see full text of the decision).

53. CLOUT case No. 245 [FRANCE Cour d'appel [Appellate Court] Paris 18 March 1998, available online at <http://cisgw3.law.pace.edu/cases/980318f1.html>] [English translation by Charles Sant 'Elia]; CLOUT case No. 244 [FRANCE Cour d'appel [Appellate Court] Paris 4 March 1998, available online at <http://cisgw3.law.pace.edu/cases/980304f1.html>] [English translation by Charles Sant 'Elia]; CLOUT case No. 203 [FRANCE Cour d'appel [Appellate Court] Paris 13 December 1995, available online at <http://cisgw3.law.pace.edu/cases/951213f1.html>] [English translation by Charles Sant 'Elia].


ANALYSIS OF CISG CASE LAW

Reprinted by special permission of Northwestern University School of Law. 34 Northwestern Journal of International Law and Business (Winter 2004) 299-440.[*]

excerpt from

The Interpretive Turn in International Sales Law:
An Analysis of Fifteen Years of CISG Jurisprudence

Larry A. DiMatteo, Lucien Dhooge, Stephanie Greene,
Virginia Maurer and Marisa Pagnattaro

[...]

B. Express and Implied Warranties

This section addresses the issues of the seller's obligation for non-conforming goods or for goods with respect to which third parties assert claims. These obligations are found in Articles 35-44 of the CISG. Article 35 states the basic obligation of the seller to deliver goods of the quantity, quality, and description [550] required by the contract.[551] Unless the parties have otherwise agreed, this obligation is not met unless the goods conform to any express warranties, or if there are no such warranties, then certain implied warranties. The basic implied warranty requires that goods be "fit for the purposes for which goods of the same description would ordinarily be used."[552] They must be fit for the special purposes of the buyer, where that purpose is expressly or impliedly made known to the seller at the time of the contract. The seller also warrants, unless otherwise agreed, that the goods will be "contained or packaged in the usual manner for such goods or, where there is no such manner, in a manner adequate to preserve and protect the goods."[553] The implied warranties do not attach where circumstances indicate that the buyer did not rely on the seller's skill or judgment or where the circumstances indicate that it would be unreasonable [page 390] for the buyer to do so.[554] In addition, these warranties do not apply to non-conformities the buyer knew about, or should have known, at the time of the conclusion of the contract.[555]

While Article 35 establishes the obligations of the seller with respect to conformity of the goods, Article 36 governs the seller's liability for lack of conformity of the goods. It identifies the point of reference for the non-conformity at the time the risk passes to the buyer.[556] The CISG permits the seller to cure any lack of conformity if he has delivered the goods before the "date for delivery," which would be the date fixed in the contract for delivery or a date within the period for delivery identified in the contract. The cure may include delivering missing parts or making up deficiencies in quantity of the goods or replacing non-conforming goods with conforming goods. The cure must not cause unreasonable inconvenience or unreasonable expense to the buyer.[557]

The seller's obligation to deliver conforming goods relates to the reciprocal obligations of the buyer to examine the goods (Article 38) and to give notice to the seller of non-conformities (Article 39). [558] Failure to do either within a practicable or reasonable time causes the buyer to lose the right to rely on a lack of conformity of the goods, unless the seller knew, or should have been aware of the non-conformity and failed to disclose the non-conformity to the buyer.[559]

Third-party claims pose special issues of lack of conformity. The seller is obligated under Article 41 to "deliver goods which are free from any right or claim of a third party unless the buyer agreed to take the goods subject to that claim or right."[560] However, Article 41 does not apply to rights or claims based on "industrial property or other intellectual property" rights.[561] In that case, Article 42 governs the obligations of the seller. [page 391]

Article 42 requires generally that the seller deliver goods "which are free from any right or claim of a third party based on industrial property or intellectual property, of which at the time of the conclusion of the contract the seller knew or could not have been unaware." This obligation only pertains to third-party claims [562] based on the law of the State in which the buyer has his place of business or the law of the State where the goods will be resold or used, provided that the parties contemplated their resale or use in that State at the time the contract was concluded.[563] This obligation of the seller does not extend to cases where the buyer knew "or could not have been unaware" of the right or claim, and the seller has complied with technical drawings, designs, formulae or other such specifications that are the basis for the third party claim or right.[564] Unless he has a reasonable excuse for failing to do so,[565] or unless the seller knew of the right or claim of the third party and the nature of it, the buyer loses the right to rely on Article 41 or Article 42 if he fails to give notice to the seller of the right or claim and the nature of it, within a reasonable time after he has become, or ought to have become, aware of it.[566]

1. Warranties: Article 35

Article 35 is implicated in many commercial sales disputes, undoubtedly because it goes to the very heart of the seller's contract obligation. Many conflicts involve reconciling Article 35 with related Articles identifying the rights of buyers when sellers breach their obligations under Article 35. [567] A variety of issues, both factual and [page 392] interpretive, arise under Article 35(1) that govern the seller's obligation to provide goods of the "same quality, quantity and description required by the contract."[568] The factual cases, often in courts of first instance, involve evidentiary inquiry to identify whether there was a non-conformity and, if so, its nature,[569] whether the buyer inspected the goods in a timely manner and gave the seller adequate notice of the non-conformity,[570] and whether the goods were adequately packaged.[571] Other cases involve interpretation of the contract description. Since national law may vary on this, court applications have provided insight into questions of homeward trends [572] and uniformity of interpretation.[573]

In a 1999 case,[574] the Austrian Supreme Court heard a dispute involving wall panels that were to be sold "ex factory" from a business in Germany to a buyer in Vienna. The panels that were shipped were non-conforming panels, in that they were not "formatted" (cut and drilled) as agreed in the contract. The parties agreed, by telephone, that the panels would be shipped back by the buyer. On inspection by the seller, the panels were found to be badly damaged and useless for resale. The seller invoiced the buyer for the value of the panels, claiming that they were not shipped correctly and that buyer had assumed the transportation risk.

The appellate court held that the shipping of non-conforming panels constituted a delivery of non-conforming goods and a breach of contract [page 393] under Article 35 rather than a non-delivery of goods. The significance of the distinction lay in the seller's retention of the risk of loss under CISG Article 82(2)(a) and (b). Under the Austrian Commercial Code ("HGB") a distinction would have been made between delivery of non-conforming goods (Falschlieferung) and non-delivery of conforming goods (Nichtlieferung). The distinction would turn on the extent of the deviation from the contract and on whether the incorrect delivery was subject to approval. In refraining from applying the domestic law, the court drew the distinction based on the authoritative CISG commentary [575] used to interpret and apply the CISG Articles. Reliance on such commentary indicates a commitment to interpret the CISG in a manner that tends to promote uniformity of interpretation.[576]

Resistance to homeward trend interpretations was demonstrated again in a 2001 Belgian case. [577] In that case, the buyer sought avoidance of the obligation to pay the contract price. The buyer framed its case on "non-conforming delivery" and "latent defects," drawing on the Belgian Civil Code for authority. Relying on existing case law [578] and authoritative commentary,[579] the Belgian court further held the CISG alone to be applicable law and insisted that "[t]he CISG knows only one uniform concept of conformity."[580] Within the CISG "no distinction is made between a guarantee against latent defects and the seller's obligation to deliver. The seller must deliver conforming goods and that is all."[581] [page 394]

An example of a court's application of CISG interpretive methodology is the 2000 Italian decision in Rheinland Versicherungen v. S.r.l. Atlarex and Allianz Subalpina S.p.A.[582] The case turned on whether adequate and timely notice of the non-conformity was given by the buyer to the seller. In making the determination, the court referenced CISG case law from several nations, including Italy,[583] Germany,[584] Austria, The Netherlands,[585] United States,[586] France,[587] and Switzerland.[588] The court recognized the non-binding nature of these cases, pointing out that the purpose of the case analysis was not to observe binding authority but "to assure and promote uniform enforcement of the United Nations Convention."[589] This opinion serves as an example of using CISG interpretive methodology to advance the goal of uniformity and discourage resort to homeward trend analysis.[590] [page 395]

Article 35(2)(b) addresses the sale of goods in which the seller is aware of the particular purpose for which the buyer will use the goods and the buyer is relying upon the seller to use skill and judgment to provide the goods. In effect, it creates an implied warranty for a particular purpose. The implied warranty for a particular purpose [591] has been the subject of [page 396] several court cases. [592] Some of these cases involved simply an analysis of whether the facts constituted a failure to conform to the contract.[593] Others, discussed below, involved legal analysis that provides greater insight into the courts and arbitral panels interpretation of this warranty.

As is the case under Article 35(2)(a) (implied warranty of merchantability), a seller is not responsible to conform its products to the nuances of the national law of the buyer's country. However, the seller may be responsible for such conformity under Article 35(2)(b) (implied warranty for a particular purpose). In a German case,[594] the issue of whether a Spanish paprika seller had to certify that its product complied with the German Food Safety Laws demonstrates this nuance. The court found that the seller had prior knowledge of the laws and, therefore, could not argue that it was ignorant of the requirement that the goods comply with the German laws. The court held that since the paprika contained more ethylene oxide than permitted under German law, the goods failed to conform to the contract and specifically failed to meet the buyer's purpose known to the seller.[595]

The crucial factors for applying the implied warranty for a particular purpose are the buyer communicating the intended use of the product and the seller's knowledge of the nuances of the foreign law or standards. A Netherlands Arbitration Institute case involving a dispute concerning the conformity of a petroleum product illustrates the intended use criterion.[596] The buyer argued that the product contained excessive amounts of mercury, which the seller knew -- because it was in the refining business -- would [page 397] make the product unusable to the buyer. The arbitral tribunal concluded as a factual matter that the buyer did not expressly or impliedly indicate to the seller the use it intended to make of the product, and that the product had other uses in the refining industry. Thus, the panel rejected the Article 35(2)(b) claim.[597]

The panel, however, did find for the buyer on its Article 35(2)(a) claim. In doing so it reviewed different interpretation of merchantability. It first drew on the concept of "merchantability" or "merchantable quality," a standard of conformity found in English common law. The second interpretation is the average quality rule found in the German, Austrian, French, and Swiss civil codes. The tribunal also found this interpretation to be unsatisfactory. Instead, the panel drew on the history of the drafting of the CISG and its interpretive methodology. First, the panel looked to general principles, namely, that "[i]n the interpretation of this Convention, regard is to be had to its international character and to the need to promote uniformity in its application and the observance of good faith in international trade."[598] Second, it attempted to find an appropriate interpretation through the use of implied principles taken from the different Articles of the CISG. [599]

It interpreted this mandate to suggest that neither the merchantability test nor the average quality test should apply, based as they are in domestic notions of quality. Rather, it resorted to the history of the CISG and the legislative history preceding its adoption. In reviewing these documents, the tribunal became convinced that the drafters declined to articulate a standard, leaving an "open-textured" provision. In the final analysis, emphasizing the absence of alternative buyers willing to pay the contract price for product with that level of mercury, the tribunal concluded that the goods were not merchantable judged by any of the available interpretations.[600]

In sharp contrast, the U.S. court in Circuit Schmitz-Werke GmbH & Co. v. Rockland Industries, Inc.[601] disregarded CISG interpretive methodology and resorted to a homeward trend analysis. The court cited only U.S. cases and ignored other national court or arbitral decisions and scholarly commentaries on the CISG. The court expressly ignored those sources by concluding that if the CISG is "not settled under its own terms," [page 398] then a court could resort to private international law. It then proceeded to analyze the problem under Article 2 of the Uniform Commercial Code. [602]

Often times a contract is based upon a sample or model. Article 35(2)(c) requires the seller to provide goods of equivalent quality to a sample or model upon which the contract was formed. A Finnish court dealt with the issue of a contract based upon a sample and a seller's representation that the product had a "shelf life" of 30 months.[603] The sample of the product tested before delivery contained the specified vitamin content, but the product -- both on delivery and increasingly over its life on the shelf -- deteriorated in Vitamin A content. The seller argued, pursuant to Article 35(3),[604] that buyer was aware of the Vitamin A deterioration over time and thus could not have expected the content to remain in constant conformance with the sample for thirty months.

In deciding in favor of the buyer, the court relied not on Swiss law or trade usage but pointed instead to the fact that the seller "must have been aware of the international content of the shelf-life concept." [605] With respect to the seller's argument under Article 35(3), the court found it irrelevant that the buyer knew Vitamin A deteriorated. "[I]t appears that the buyer counted on the seller's expertise in terms of how the seller reaches the required Vitamin A content and how the required preservation is carried out."[606] The court resisted a homeward trend solution by rejecting application of domestic law. However, it also failed to consider the experience of other national courts in interpreting the CISG.[607] [page 399]

[...]


FOOTNOTES

* For a subsequent text on this subject by these authors, see Larry A. DiMatteo, Lucien Dhooge, Stephanie Greene, Virginia Maurer & Marisa Pagnattaro, "International Sales Law: A Critical Analysis of CISG Jurisprudence", Cambridge University Press (2005) 241 p.

[...]

550. In addition, if the seller has held out a sample or a model to show the qualities of the goods, the seller warrants that the goods possess the qualities exemplified in the model or sample. CISG, supra note 4, at art. 35.

551. CISG, supra note 4, at art. 5(1). Professor Kazimierska traces this basic obligation to the pacta sunt servanda of Roman law, the obligation to perform a contract "in a way that complies to its terms, even if the performance becomes unfavorable for one of the parties or excessively difficult." Kazimierska, Remedy of Avoidance, supra note 50, at 80.

552. CISG, supra note 4, at art. 35(2)(a).

553. Id. at art. 35(2)(c).

554. Id. at art. 35(2)(b).

555. Id. at art. 35(3).

556. The seller, however, remains liable for lack of conformity that occurs after the passage of the risk of loss if the lack of conformity is due to "a breach of any of his obligations, including a breach of any guarantee that for a period of time the goods will remain fit for their ordinary purpose or for some particular purpose, or will retain specified qualities or characteristics." CISG, supra note 4, at art. 36(2).

557. Id. at art. 37.

558. See supra Parts IV.A.1. & IV.A.2.

559. CISG, supra note 4, at art. 40. See Arbitration Institute of the Stockholm Chamber of Commerce Award, Jun. 5, 1998, available at <http://cisgw3.law.pace.edu/cases/980605s5.html> [English text]; Francis Limbach and Brandon Ahearn, Conformity of Goods, Derogation from Article 40 by the Parties and Conditions of Art 40 CISG (Case Commentary), available at <http://cisgw3.law.pace.edu/cisg/biblio/limbach.html>.

560. CISG, supra note 4, at art. 41. The rights or claims referenced in Article 41 include "rights of title, rights to possession, and possessory/non-possessory pledges." Enderlein & Maskow, supra note 20, at 141.

561. CISG, supra note 4, at art. 41.

562. While industrial property refers, most likely, to patents, the broader term "intellectual property" suggests a broader set of rights including not only patents but also, registered designs, copyrights, company names, trade names, trademarks, and other similar intangibles. See Enderlein & Maskow, supra note 20, at 141.

563. CISG, supra note 4, at art. 42(1).

564. Id. at art. 42(2).

565. Id. at art. 44.

566. Id. at art. 43.

567. OLG München 7 U 4419/93, Mar. 2, 1994 (F.R.G.), available at <http://cisgw3.law.pace.edu/cases/940302g1.html> [English translation by Ruth M. Janal] (reconciling art. 35 with art. 45); Rheinland Versicherungen v. S.r.l.Atlarex and Allianz Subalpina S.p.A., n. 405 Tribunale [District Court] di Bigevano, (It.), July 12, 2000, available at <http://cisgw3.law.pace.edu/cases/000712i3.html> [English translation by Francesco G. Mazzotta] (reconciling art. 35 with art. 44); 2 U 27/01OLG Zweibrucken [Provincial Court of Appeal], Jul. 26, 2002 (F.R.G.), available at <http://cisgw3.law.pace.edu/cases/020726g1.html> [English translation by Julian Waiblinger, translation edited by Mark Beamish] (reconciling art. 35 with art. 45); BGH VIII ZR 121/98 Mar. 24, 1999, supra note 95 (reconciling art. 35 with art. 45); VIII BGH ZR 304/00 Jan. 9, 2002, supra note 289 (reconciling art. 35 with art. 45); S.A. Vetimo v. SARL Aubert, R.G. 242/99 CA, Mar. 8, 2000 (Belg.), available at <http://cisgw3.law.pace.edu/cases/010308b1.html> [English translation by Katarina Kunce Kern] (reconciling art 35 with art. 49); Tampere Court of First Instance, Jan. 17, 1997 (Fin.), available at <http://cisgw3.law.pace.edu/cases/970117f5.html> [English translation by Jarno Vanto] (reconciling art. 35 with art. 50); OLG Graz, 6 R 194/95 Nov. 9, 1995 (Aus.), available at <http://cisgw3.law.pace.edu/cases/951109a3.html> [English translation by Ruth M. Janal, translation edited by Todd Fox] (reconciling art. 35 with art. 50).

568. CISG, supra note 4, at art. 31(1).

569. See, e.g., Tampere Court of First Instance, Fin. Jan. 17, 1997, supra note 567; La San Giuseppe v. Forti Moulding Ltd., 98-CV-1493CM, 1999 Ont. Sup. C.J. LEXIS 853 (Aug. 31, 1999), available at <http://cisgw3.law.pace.edu/cases/990831c4.html>; S.A. Vetimo v. SARL Aubert, R.G. 242/99 CA, Mar. 8, 2000, supra note 567; BGH VIII ZR 121/98 Mar. 24, 1999, supra note 95 (reconciling art. 35 with art. 45); Landergericht [LG][Trial Court] Berlin 52 S 247/94 Sept. 15, 1994 (F.R.G.), available at <http://cisgw3.law.pace.edu/cases/940915g1.html> [English translation by Martin Eimer, translation edited by Ruth M. Janal] (last updated Jun. 2003); Societe Sorhofroid SARL, CA Grenoble, 94/0258, May 15, 1996 (Fr.), available at <http://cisgw3.law.pace.edu/cases/960515f1.html> (last updated May 2002).

570. See, e.g., Audiencia Provincial de Barcelona, R.J.C., IV, Jun. 20, 1997 supra note 529, [...] Trib. di Vigevano, July 12, 2000, n. 405, supra note 340.

571. See, e.g., CA Paris, Dec. 13, 1995, J.C.P. 1997, I, 53-55, available at [<http://cisgw3.law.pace.edu/cases/951213f1.html>] [English translation by Charles Sant 'Elia] (last visited Jan. 2004).

572. See infra Part VII.B.

573. See supra Part I.B.

574. OGH, SZ 1 Ob 74/99k, Jun. 29, 1999 (Aus.), available at <http://cisgw3.law.pace.edu/cases/990629a3.html> [English translation by Dr. Peter Feuerstein, translation edited by Todd J. Fox]; see Posch & Petz, supra note 541, at 15. See also Rolf Herber & Beate Czerwenka, Internationales Kaufrecht: Kommentar zu dem Ubereinkommen der Vereinten Nationen vom 11. April 1980, at art. 29 UN-K (München 1991); Peter Schlechtriem et al., Kommentar zum Einheitlichen UN-Kaufrecht (2nd ed. 1995).

575. Id.

576. See also BGH VIII ZR 51/95, Apr. 3, 1996 (F.R.G.), available at <http://cisgw3.law.pace.edu/cases/960403g1.html> [English translation by Dr. Peter Feuerstein, translation edited by Ruth M. Janal] (last updated Sep. 2003). The German Supreme Court held that the CISG does not differentiate between delivery of different goods and delivery of goods that do not conform to the contract. The court noted that the CISG diverged from German civil law on this point, citing scholarly commentary as authority.

577. Rechtbank van Koophandel Veurne A/00/00665, Apr. 25, 2001, supra note 270.

578. Id.

579. The Belgian court cited the following sources as authoritative: S. DeGroot, "Nonconformiteit volgens het Weens Koopverdrag", 3 T.P.R. (1999); H. Van Houtte et al., Het Weenskoopverdrag, 129, at n. 4.36. Id.

580. Rechtbank van Koophandel Veurne A/00/00665, Apr. 25, 2001, supra note 270.

581. Id.; But see Cass. ass. Plen., Dec. 17, 1996, D. 1997, 337 (Fr.), available at [<http://cisgw3.law.pace.edu/cases/961217f1.html>] [English translation by Annabel Teiling, translation edited by Dr Loukas Mistelis] (distinguishing between the application of "latent defect" in the French Civil Code and Article 31(2)(a) in such as way as to apply the homeward trend law in the face of conflicting CISG jurisprudence). Similarly, in 2000, the Swiss Federal Supreme Court rejected "homeward trend" attempts by the parties to impose concepts of local law in a dispute over whether a rotary printing machine met contract specifications. Under Swiss law, issues associated with the impressions of the buyer with respect to the quality of the goods would have been significant, or even dispositive. The Supreme Court overturned the Court of First Instance, applied CISG Article 35(1), and relied upon authoritative commentary for its application. Roland Schmidt GmbH c. Textil-Werke Blumenegg [Supreme Court], 4C.296/2000/rnd Dec. 22, 2000 (Switz.), available at <http://cisgw3.law.pace.edu/cases/001222s1.html> [English translation by Ruth M. Janal].

582. See Trib. di Vigevano, July 12, 2000, n. 405, supra note 340. See also Franco Ferrari, Tribunale di Vigevano: Specific Aspects of the CISG Uniformly Dealt With, 20 J.L. & Com. 225-39 (2001) [hereinafter Ferrari, Tribunale de Vigevano] [available at <http://cisgw3.law.pace.edu/cisg/biblio/ferrari6.html>]; Franco Ferrari, Truly Uniform Application of CISG: Tribunale de Vigevano, Uniform L. Rev. 203 (2001-01) [available at <http://cisgw3.law.pace.edu/cisg/biblio/ferrari4.html>]; Pilar P. Viscsillas, Battle of the Forms and Burden of Proof: An Analysis of the BGH 9 January 2002, 6 2002 Vindobona J. Int'l L. 217 (2002) at n.23 [available at <http://cisgw3.law.pace.edu/cisg/biblio/perales2.html>].

583. See, e.g., Pret. di Torino [District Court of First Instance], 30 Jan. 1997, Giur. I. 1998, II, 982-985 (It.), available at <http://cisgw3.law.pace.edu/cases/970130i3.html> [English translation by Charles Sant 'Elia, translation edited by Angela Maria Romito]. See also Trib. Civile di Cuneo [District Court], Sez. 145/96, Jan. 31, 1996 (It.), available at <http://cisgw3.law.pace.edu/cases/960131i3.html> [English translation by Bruno Cilio, translation edited by Angela Maria Romito].

584. See OLG Düsseldorf Recht der Internationalen Wirtschaft [RIW] 1050-51, Feb 10, 1994, supra note 340; OLG München, 7 U 3758/94, Feb. 8, 1995, supra note 346; AG Augsburg n. 11 C 4004/95, Jan. 29, 1996, supra note 378 (shoes); see AG Kehl 3 C 925/93, Oct. 6, 1995, supra note 285.

585. See, e.g., W.M.J.M. Bronneberg/Ceramica Belvedere S.p.A., HR 20 Feb. 1998, NJ 568, available at [<http://cisgw3.law.pace.edu/cases/980220n1.html>]; Rb. Roermond, Dec. 19, 1991, supra note 345; Rb. Zwolle, Mar. 5, 1997, supra note 345.

586. See, e.g., Orbisphere Corp. v. United States, 726 F. Supp. 1344 (Ct. Int'l Trade 1989), available at <http://cisgw3.law.pace.edu/cases/891024u1.html> (last updated May 2002).

587. See, e.g., Cass. ass. Plen., Dec. 17, 1996, D. 1997, supra note 581; CA Colmar [Regional Court of Appeal], 94-00488, Sept. 26, 1995 (Fr.), available at <http://cisgw3.law.pace.edu/cases/950926f1.html>.

588. See, e.g., HG Zürich, 930634/0, Nov. 30, 1998, supra note 339; HG Zürich, 920670, Apr. 26, 1995, supra note 499.

589. Trib. di Vigevano, July 12, 2000, n. 405, supra note 340.

590. A U.S. example of the proper application of CISG interpretive methodology is Medical Marketing International, Inc., v. Internazionale Medico Scientifica, S.R.L., 99-0380, 1999 U.S. Dist. LEXIS 7380, at *6 (E.D. La. May 17, 1999), available at <http://cisgw3.law.pace.edu/cases/990517u1.html>. The District Court cited a German Supreme Court case for the proposition that Article 35 of the CISG does not require the seller to supply goods that conform to laws and regulations in effect in the buyer's country. See Einscheidunger des BGH VIII ZR 159/94, Mar. 8, 1995 (F.R.G.), available at <http://cisgw3.law.pace.edu/cases/950308g3.html> [English translation by Walter, Conston, Alexander & Green, P.C., editors: William M. Barron, Esq. & Birgit Kurtz, Esq.] (last updated Dec. 2003). The German case involved the sale of New Zealand mussels by a Swiss company to a German importer. The cadmium content of the mussels exceeded the allowable limits under German law but was acceptable under Swiss law. The decision process under Article 35 required the court to first determine whether a violation of government regulations constitutes a defect under Article 35(2)(a), which requires that the goods be "fit for the purposes for which goods of the same description would ordinarily be used or whether the regulations are simply a feature of the local environment affecting use of the goods. Since health, safety, and environmental regulations vary dramatically from country to country, the real question -- assuming that regulations affect fitness of purpose -- is whether it is the regulations of the seller's country or the buyer's country that affect fitness." CISG, supra note 4, at art. 35(2)(a). The German Supreme Court held for the seller's country, unless the buyer stipulated its own country requirements should have been met. The German court depended heavily upon authoritative commentary to reason to this conclusion, stating: "According to the absolutely prevailing opinion in the legal literature, which this Court follows, the compliance with specialized public law provisions of the buyer's country or the country of use cannot be expected." BGHZ, VIII ZR 159/94, supra note 590; see generally, Peter Schlechtriem, Case Commentary, Conformity of the Goods and Standards Established by Public Law: Treatment of Foreign Court Decision as Precedent, available at <http://cisgw3.law.pace.edu/cases/990517u1.html> (last updated Dec. 2003); Andrew J. Kennedy, Recent Developments: Non-conforming Goods Under the CISG -- What's a Buyer to Do?, 16 Dick. J. Int'l L. 319 (1998). An abundant literature has chronicled and commented upon this decision. See, e.g., Honnold, Uniform Law for International Sales, supra note 53; Karollus, Cornell Review of the CISG (1995) 51 [Arts. 67-68] (comment on conformity-of-the-goods ruling); Schwenzer in Schlechtriem, Commentary on the UN Convention on the International Sale of Goods 280 (1998) [Art. 35] at n.57; Bernstein & Lookofsky, Understanding the CISG in Europe, 2d ed. (2003), § 2-8 at n. 113 & § 4-7 at n.94. The Medical Marketing decision is an example of the convergence in CISG interpretation based first on learned commentary and then the integration of the thinking of the best foreign decisions on the given issue. Courts in both Argentina and Austria came to similar results drawing upon reasoning from other national courts' experience to produce more uniform interpretation of the CISG. See Second Instance Court of Appeal, Apr. 24, 2000, (Arg.), available at <http://cisgw3.law.pace.edu/cases/000424a1.html>; OG 2 Ob 100/00w, Apr. 13, 2000 (Aus.) available at <http://cisgw3.law.pace.edu/cases/000413a3.html> [English translation by Schönherr Rechtsanwälte OEG, Vienna, Austria, editor: Dr. Elke Napokoj, Esq.]. The Austrian court noted,

"[a] seller cannot be expected to know all special rules of the buyer's country or the country of usage ... . It is rather for the buyer to observe her country's public law provisions and specify these requirements -- either according to Art. 35(1) or (2)(b) CISG -- in the sales contract ... [t]he requirements of the buyer's country should only be taken into account if they also apply in the seller's country, in they are agreed on, or if they are submitted to the seller at the time of the formation of the contract, according to Art. 35(2)(b)."

This use of uniformity principle is not without critics. See, e.g., Fletcher, Several Texts, supra note 6, arguing that the German court applied an unduly rigid standard of uniformity.

591. See UCC § 2-315, supra note 117.

592. See, e.g., BGH VIII ZR 121/98, Mar. 24, 1999, supra note 95; Netherlands Arbitration Institute, No. 2319, Oct. 15, 2002 (Neth.), available at <http://cisgw3.law.pace.edu/cases/021015n1.html> [English text]; Schmitz-Werke GmbH & Co. v. Rockland Industries, 37 Fed. Appx. 687 (4th Cir. 2002), available at <http://cisgw3.law.pace.edu/cases/020621u1.html>; Mayer Alejandro v. Onda Hofferle, Camara Nacional de Apelaciones en lo Comercial, Second Instance Court of Appeal, Apr. 24, 2000, available at <http://cisgw3.law.pace.edu/cases/000424a1.html>; LG Ellwangen 1 KfH O 32/95, Aug. 21, 1995, supra note 483; Manipulados del Papel y Carton SA v. Sugem Europa SL RA 340/1997 Audiencia Provincial de Carclona, seccion 16a, Appellate Court Barcelona, RA 340/1997, Feb. 4, 1997 (Spain), available at <http://cisgw3.law.pace.edu/cases/970204s4.html> [English translation by Alejandro Osuna-González, translation edited by Patricia Rincón Martín]; CA Grenoble, 93/4879, Apr. 26, 1995, supra note 498.

593. See, e.g., CA Grenoble, 93/4879, Apr. 26, 1995, supra note 498; See OLG Düsseldorf Recht der Internationalen Wirtschaft [RIW] 1050-51, Feb 10, 1994, supra note 340; Manipulados del Papel y Carton SA v. Sugem Europa SL RA 340/1997, supra note 592; Mayer Alejandro v. Onda Hofferle, Camara Nacional de Apelaciones en lo Comercial, Second Instance Court of Appeal, Apr. 24, 2000, available at <http://cisgw3.law.pace.edu/cases/000424a1.html>.; Netherlands Arbitration Institute, No. 2319, Oct. 15, 2002, supra note 592; BGH VIII ZR 121/98 Mar. 24, 1999, supra note 95 (reconciling art. 35 with art. 45)

594. LG Elwangen 1 KfH O 32/95, Aug. 21, 1995, supra note 483.

595. Id.

596. Netherlands Arbitration Institute, No. 2319, Oct. 15, 2002, supra note 592.

597. Id.

598. CISG, supra note 4, at art. 7(1).

599. See Netherlands Arbitration Institute, No. 2319, Oct. 15, 2002, supra note 592.

600. Id.

601. See Schmitz-Werke GmbH & Co. v. Rockland Industries, Inc., 37 Fed. Appx. 687 (4th Cir. 2002). While ultimately the circuit court upheld the lower court ruling, which was apparently reached using the CISG, the praxis of the circuit court in applying the CISG is noteworthy.

602. Another example of homeward trend analysis is the Italian decision of the Corte d'Appello di Milano Italdecor S.A.S. v. Yiu's Industries (H.K.) Ltd, Corte app di Milano, Mar. 20, 1998 (It.), available at <http://cisgw3.law.pace.edu/cases/980320i3.html> [English translation by Angela Maria Romito, translation edited by Charles Sant 'Elia].

603. See Helsinki Court of Appeals, EP S.A. v. FP Oy, s96/1215, Jun. 30, 1998 (Fin.), available at <http://cisgw3.law.pace.edu/cases/980630f5.html> [English translation by Jarno Vanto].

604. CISG, supra note 4, at art. 35(3).

605. See Helsinki Court of Appeals, EP S.A. v. FP Oy, s96/1215, Jun. 30, 1998, supra note 603; see also Kuoppala, Examination of the Goods under the CISG and the Finnish Sale of Goods Act, § 3.4.1 (2000), available at <http://cisgw3.law.pace.edu/cisg/biblio/kuoppala.html>.

606. See Helsinki Court of Appeals, EP S.A. v. FP Oy, s96/1215, Jun. 30, 1998, supra note 603.

607. The other cases involving Article 35(3), which negates implied warranties if at time of the conclusion of the contract the buyer knew of the non-conformity, tend to involve the factual question of what the buyer knew, and when. See generally Tribunal Cantonal Valais, CI 97 167 28, Oct. 28, 1997 (Switz.), available at <http://cisgw3.law.pace.edu/cases/971028s1.html>; see also Só og Handelsretten [Maritime Commercial Court] 31 H-0126-98, Jan. 31, 2002, supra note 341; OLG Köln 22 U 4/96, available at <http://cisgw3.law.pace.edu/cases/960521g1.html> [English translation by Dr. Peter Feuerstein, translation edited by Chantal Niggemann]. A 1996 German case provided an opportunity for an appellate court to place a gloss on 35(3), denying the defendant the ability to invoke the provision where he himself had engaged in fraud. The case involved the international sale of a late model apparently low mileage car in which the date of original sale had been adjusted. The buyer resold the car to someone who detected the deception and exacted damages, which the buyer sought to recover from the seller. The German court denied the seller access to the defense that the buyer could have detected the car's lack of conformity to the contract because the seller himself knew of the age of the car and thus behaved fraudulently. "The [seller] thus had to reckon that the delivery of non-conforming goods would make the [buyer] liable towards his customer." Id.

[...]

Go to complete text of Analysis of Fifteen Years of CISG Jurisprudence


ANNOTATED COMPARATIVES
-  UNIDROIT and PECL

Interpreting or supplementing Article 35 of the CISG by
using the UNIDROIT Principles of International Commercial
Contracts and the Principles of European Contract Law

René Franz Henschel [*]
November 2004

a. The provisions in the CISG on the conformity of goods to the sales contract are included in Article 35.[1] This article is in three sections, of which the first, the conformity of the goods to the terms of the contract, consists of the primary rule for assessing lack of conformity. Only where the parties have not agreed otherwise will the secondary rule in Article 35(2) apply, laying down a number of positively expressed assumptions about the contractual requirements for the goods. Finally, Article 35(3) contains an exception to the seller's liability for some lack of conformity of goods, where the buyer knew or could not have been unaware of the lack of conformity.

b. Unlike the CISG, the UNIDROIT Principles and the PECL cover not only sales contracts, but also other types of contracts, e.g., contracts of service. To provide maximum flexibility, and to facilitate future development of the two sets of principles, the fundamental rules regarding the conformity of performance have been described in more general terms. In Article 7.1.1. of the UNIDROIT Principles, non-performance is defined as a failure by a party to perform any of its obligations under the contract, including defective performance or late performance. The same approach is taken in PECL, see Article 8:101(1)[2] with comment A.[3] Although the UNIDROIT Principles and the PECL do not have any rules which directly resemble CISG Article 35, several articles may be used to interpret or supplement the said article. In the following paragraphs, it will be analyzed in which manner Articles in the UNIDROIT Principles and the PECL may be used to interpret or supplement the different parts of CISG Article 35, in particular Article 35(1), Article 35(2)(a) and Article 35(2)(b).

c. According to Article 35(1) of the Convention, 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. This provision is the primary rule on the assessment of the conformity of goods to the contract, and it covers all kinds of defects except defects of title which are dealt with under CISG Article 41, and defects in intellectual property rights, cf. CISG Article 42. The rule establishes that the assessment of conformity depends primarily on what the parties have agreed. This is also emphasized by the Commentary prepared by the UNCITRAL Secretariat, which states that the agreement between the parties is the primary source for assessing conformity.[4] As mentioned above, the primary role of the contract is also emphasized in the UNIDROIT Principles Article 7.1.1 and the PECL Article 8:101 with comment A.

d. Under the CISG, the establishment of the specific content of a contract is based on the interpretation of the agreement between the parties, cf. CISG Article 8 and Article 9. Here, the articles on interpretation in the UNIDROIT Principles chapter 4 and the PECL chapter 5 are of relevance to interpret or supplement CISG Article 8 and Article 9, and therefore also for the interpretation of the conformity of the goods to the contract in CISG Article 35.[5]

e. If the parties have not agreed otherwise, the secondary rule in Article 35(2) applies. According to Article 35(2)(a) of the Convention, cf. Article 35(2), except where otherwise agreed, goods do not conform with the contract unless they are fit for the purposes for which goods of the same description would ordinarily be used. With these default rules, the parties do not need to specify the purpose, as long as the goods are to be used for their ordinary purposes. This rule is by some considered the most important rule in practice in Article 35(2),[6] expressing one of the clearest and most fundamental rules about the seller's implied obligation to provide goods which conform to the contract.[7] This rule is so widely accepted,[8] that Article 35(2)(a) can probably be considered as a codification of a basic principle of international sales law.

f. In relation to Article 35(2)(a), the general assumption is that, among the ordinary purposes of goods, that they should be capable of being resold.[9] In connection with the purpose that goods should be capable of being resold, there is a dispute about whether, in order to be fit for this purpose, they should be of average quality or merely of merchantable quality, so that goods of below average quality but still merchantable may also be said to conform to the contract.[10] During the drafting negotiations of the CISG, a Canadian proposal that goods should be of average quality was withdrawn, since several common law countries did not support it.[11] The practice in English law was of particular importance, as under English law goods that were of below average quality could be considered as conforming to the contract as long as they were merchantable.[12] As suggested by Schwenzer,[13] this argument, which is rooted in the practice of the English courts, has been somewhat weakened since the English Sale of Goods Act has been amended so it now requires goods to be of "satisfactory quality", which is decided on the basis of the expectations of a reasonable buyer.[14] In Schwenzer's opinion, this means that the two viewpoints will become closer to one another, which seems probable.

g. In the famous Mussels case,[15] the German Federal Supreme Court declined to decide this question, on practical grounds, since no evidence had been given as to whether the cadmium levels in the mussels were higher than in corresponding mussels from New Zealand.[16] However, the court did say that, even if it was assumed that the goods should be merchantable, this did not mean that the mussels did not conform to the contract, as the seller could not be expected to know the special public law regulations on product safety, public health, etc., in the destination State.

h. In this connection, it should be relevant to consult both the UNIDROIT Principles and the PECL. Article 5.1.6 of the UNIDROIT Principles provides: "Where the quality of performance is neither fixed by, nor determinable from, the contract a party is bound to render a performance of a quality that is reasonable and not less than average in the circumstances." The relevance of this article in the interpretation of CISG article 35(2)(a) is supported by the illustration used in the comment to performance of average quality, which involves the sale of goods.[17] According to the comment to performance of a quality that is reasonable, the purpose of a reasonableness test is, that a party should not be able to perform what would be an average quality in the buyers market, if this quality is most unsatisfactory in the market of the seller.[18] There is still no available case law which makes use of Article 5.1.6.[19]

i. Similar provisions apply under PECL Article 6:108: "If the contract does not specify the quality, a party must tender performance of at least average quality." In the comments to this Article it is stressed that the various factors mentioned in the Article on reasonableness (Article 1:302) should be taken into account when applying Article 6:108. Therefore, factors such as the normal price for the same performance as the performance in question, the contract itself, previous dealings between the parties, and trade usages should be taken into consideration.

j. In connection to this, the view of Bianca on Article 35(2)(a) can also be given:[20] "In the absence of an express Convention provision it is not possible to determine once and for all the precise degree of quality to which the buyer is entitled. It must be said, however, that the quality can be more or less good within a tolerable degree, at least not conspicuously below the standard reasonable expected according to the price and other circumstances." Whether goods shall be of average quality, or of higher or lower quality will therefore usually be decided on the basis of other factors, for example, the price of the goods.[21]

k. This view is supported by a recent arbitral award on the CISG, in which the arbitrators refused to use either the "average quality test" or the "merchantability test".[22] Instead, the test of a reasonable quality was used, as this was considered to be a truly uniform solution to the problem.[23] According to the present author, this solution is in conformity with the UNIDROIT Principles Article 5.1.6., which explicitly refers to a reasonable quality that is not less than average in the circumstances. In this way, a rigid, mathematical average level is avoided an instead factors like the price and expectations of the parties should be taken into consideration. The same solution could be reached using PECL Article 6:108 with comments, although the wording of the Article seems a bit more inflexible.

l. The conclusion is, that the Arbitral Tribunal could have supported its findings by a reference to the UNIDROIT Principles Article 5.1.6. However, the solution in the PECL seems to favor more the average quality test, although the corresponding comment to that provision softens this approach considerably. At the same time, it should not be forgotten that if both parties to a sales contract come from the same legal culture, this might indicate that the parties' reasonable expectations[24] point towards either the "average quality test" or the "merchantable quality test", although the supporters of the last mentioned test seems to decrease in number.

m. As stated in Article 35(2), cf. Article 35(2)(b), unless otherwise agreed by the parties, goods do not conform with the contract unless they are fit for any particular purpose expressly or impliedly made known to the seller at the time of the conclusion of the contract. The rule in Article 35(2)(b) can be derogated from if the circumstances show that the buyer did not rely on, or that it was unreasonable for him to rely on, the seller's skill and judgment. Reasonableness is a general principle of the CISG,[25] and as mentioned above, it should be relevant to consult the concepts of reasonableness in both the UNIDROIT Principles and the PECL[26] in this connection.

n. As mentioned above, in the Mussels case, the court did say that, even if it was assumed that the goods should be merchantable, this did not mean that the mussels did not conform to the contract, as the seller could not be expected to know the special public law regulations on product safety, public health, etc., in the destination State. In general, the seller should not be obliged to deliver goods which conform with special law requirements in the buyer's country, unless other circumstances indicate otherwise.[27] This has been confirmed in other cases, including decisions from common law jurisdictions.[28] Furthermore, the UNIDROIT Principles Article 6.2.14(a) seems to support this view. It follows from the said Article, that where the law of a State requires a public permission affecting the validity of the contract or its performance and neither that law nor the circumstances indicate otherwise, if only one party has its place of business in that State, that party shall take the measures necessary to obtain the permission. In the comment to this article it is said, that the term "public permission" should be given a broad interpretation, and it includes all permission requirements established pursuant to a concern of a public nature, such as health, safety, or particular trade policies. Thus, the findings of the German Supreme Court and later decisions could be supported by a reference to the principle in the UNIDROIT Principles Article 6.2.14(a), too.

o. The question of mistake and of mistaken assumptions is closely linked to the issue of conformity of goods to the contract. According to ULIS Article 34, a buyer could not make claims on the basis of other legal remedies in connection with the conformity of goods, which was primarily directed against objections to validity on the basis of mistake. The prevailing view on Article 35, in theory, is that it ought to displace or exhaust national rules on validity, cf. also the principle of the functionally adequate solution.[29] This means that the buyer will not be able to get around CISG Article 39 and the rules on making complaints.[30] However, this does not apply if there is a mistake on matters other than the conformity of the goods to the contract, since then the matter will likely be dealt with under national law.[31]

p. However, this view is resisted in some jurisdictions, where a buyer is not regarded as being prevented from relying on the rules on validity when there is a mistake as to the characteristics of the goods, etc. This is the prevailing view in France, Belgium, Italy, Spain, Austria and Switzerland.[32] For example, in France and in Austria the same period is allowed for making complaints about lack of conformity of goods to the contract under sale of goods law as for objections under the rules on validity of contracts, which is an attempt to avoid a buyer making objections to the validity of the contract after several years, when some mistake is identified.[33] In Portugal, each case of complaint about lack of conformity of the goods is treated as a complaint about a mistake, so the doctrine of lack of conformity is wholly subordinate to the doctrine of contractual validity.[34]

q. In other jurisdictions the rules on lack of conformity must be regarded as exhaustive special regulations, so that claims of invalidity due to mistake must be considered as excluded. For example, this is the prevailing view in Germany,[35] while in Denmark there is de facto disagreement,[36] and the new European Directive on consumer sales does not take a view on the question.[37] The practice of the courts when interpreting CISG Article 35 seems to be split, depending on which tradition is followed in national law and the factual circumstances of the case.[38]

r. Altogether, the conclusion must be that courts may be expected to reach divergent decisions, depending on the legal tradition of the jurisdiction in question, and the extent to which a dynamic or a restrictive approach is used. However, there seems to be a development towards acknowledging the primacy of Article 35, even in jurisdictions which have traditionally used a restrictive interpretation, cf. the decision of the Austrian Supreme Court of 13 April 2000.[39]

s. This development could be supported by a reference to the UNIDROIT Principles Article 3.7, which maintains the principle of the exhaustion of rights: "A party is not entitled to avoid the contract on the ground of mistake if the circumstances on which that party relies afford, or could have afforded, a remedy for non-performance." In the Commentary on this article,[40] the following example (mutual mistake)[41] is given of the application of this rule: "A, a farmer, who finds a rusty cup on the land sells it to B, an art dealer, for 100,000 Austrian schillings. The high price is based on the assumption of both parties that the cup is made of silver (other silver objects had previously been found on the land). It subsequently turns out that that the object in question is an ordinary iron cup worth only 1,000 schillings. B refuses to accept and to pay for it on the ground that it lacks the assumed quality. B also avoids the contract on the ground of mistake as to the quality of the cup. B is entitled only to the remedies for non-performance."

t. However, according to PECL Article 4:119, a party which is entitled to a remedy under the validity chapter in circumstances which afford that party a remedy for non-performance may pursue either remedy. This reveals a striking difference between the solutions given in the UNIDROIT Principles and the PECL.

u. Neither the UNIDROIT Principles nor the PECL seems to contain any provisions which might help in interpreting or supplement the rest of CISG Article 35, (Art. 35(2)(b)-(d) (the conformity of goods according to special purpose, sample or model and the packaging of the goods) or CISG Article 35(3) (the buyer's knowledge of the non-conformity)), although the general rules on the interpretation of the contract in the UNIDROIT Principles and the PECL still have to be taken into consideration, cf. para d. above.


FOOTNOTES

* Assistant professor (Law of Obligations), Aarhus School of Business. The author expresses his sincere thanks to Professor Albert Kritzer, Executive Secretary of the Institute of International Commercial Law, Pace University School of Law, Dr. John Felemegas, Lecturer, Faculty of Law, University of Technology, Sydney, and Associate Professor Hans Henrik Edlund, Aarhus School of Business, for reviewing a prior version of this Article.

1. See Henschel, R.F., Conformity of Goods in International Sales. An analysis of article 35 in the United Nations Convention on the International Sale of Goods (CISG) (forthcoming, Copenhagen, 2005); Kruisinga, S., (Non-)Conformity in the 1980 UN Convention on Contracts for the International Sale of Goods: a uniform concept? (2004); Schwenzer, I. in Schlechtriem, P. & Bacher, K.(eds.), Kommentar zum Einheitlichen UN-Kaufrecht 3rd ed. (München, 2000), Art. 35; Schlechtriem, P., Einheitliches Kaufrecht und nationales Obligationenrecht (Baden-Baden, 1987), Art. 35; Bianca, C.M. & Bonell, M.J., Commentary on the International Sales Law (Milan, 1987), Art. 35; Honnold, J.O., Uniform Law for International Sales under the 1980 United Nations Convention (The Hague, 1999); Kritzer, A., Guide to the Practical Application of the 1980 United Nations Convention on Contracts for the International Sale of Goods (Deventer, 1994); Bernstein, H. & Lookofsky, J., Understanding the CISG Europe 2nd ed.(The Hague, 2003), p. 74 et seq.; von Staudinger, J., Kommentar zum Bürgerlichen Gesetzbuch mit Einführungsgesetz und Nebengesetzen: Wiener UN-Kaufrecht (CISG) (Berlin, 2000), Art. 35; Ramberg, J. & Herre, J., Internationella köplagen (CISG) (Stockholm, 2001), Art. 35; Bridge, M., The International Sale of Goods. Law and Practice (Oxford, 2000); Achilles, W., Kommentar zum UN-Kaufrechtsübereinkommen (CISG) (Neuwied, 2000), Art. 35; Enderlein, F. & Maskow, D., International Sales Law (New York, 1994), Art. 35, also available online at <http://cisgw3.law.pace.edu/cisg/biblio/enderlein.html#art35>; Audit, B., La vente internationale de machandises (Paris, 1990), Article 35; Heuzé, V., La vente internationale de merchandises (Paris, 2000), Article 35; Bergem, J. & Rognlien, R., Kjøpsloven 1988 og FN-konvensjonen 1980 om internasjonale løsørekjøp (Oslo, 1995), Art. 35; Gomard, B. & Rechnagel, H., International Købelov (Copenhagen, 1990), Art. 35; Piltz, B., Internationales UN-Kaufrecht (München, 1993), Art. 35; Galston, N. M. & Smit, H., International Sales. The United Nations Convention on Contracts for the International Sale of Goods (New York, 1984), Art. 35; Herber, R. & Czerwenka, B., Internationales Kaufrecht (München, 1991), Art. 35; Bucher, E., Wiener Kaufrecht (Bern, 1991), Art. 35; Karollus, M., UN-Kaufrecht (Wien, 1991), Art. 35; Heilmann, S., Mängelgewährleistung im UN-Kaufrecht (Berlin, 1994); Veneziano, A., "Non Conformity of Goods in International Sales. A Survey of Current Caselaw on CISG", International Business Law Journal no. 1 (1997), p. 39-65; Poikela, T., "Conformity of Goods in the 1980 United Nations Convention on the International Sale of Goods", Nordic Journal of Commercial Law, No. 1, 2003, available at <http://www.njcl.fi/1_2003/article5.htm>; Henschel, R.F., "Conformity of Goods Governed by CISG Article 35: Caveat Venditor, Caveat Emptor and Contract Law as background Law and as a Competing Set of Rules", Nordic Journal of Commercial Law, No. 1, 2004, available at: <http://www.njcl.fi/1_2004/article2.htm>; Aue, J., Mängelgewährleistung im UN-Kaufrecht unter besonderer Berücksichtigung Stillschweigender Zusicherungen (Frankfurt A.M., 1989); Krüger, U., Modificierte Erfolgshaftung im UN-Kaufrecht (Frankfurt A.M., 1989); Su, X., Die vertragsgemäße Beschaffenheit der Ware im UNCITRAL-Kaufrecht im vergelich zum deutschen und chinesischen Recht (Münster, 1996); Ziegler, U., Leistungsstüringsrecht nach dem UN-Kaufrecht (Baden-Baden, 1995); Flesch, K., Mängelhaftung und Beschaffenheitsirrtum beim Kauf (Baden-Baden, 1994); Zeller, B., Methodology for the Interpretation and Application of the United Nations Convention for the International Sale of Goods (Melbourne, 2003) available at <http://cisgw3.law.pace.edu/cisg/biblio/4corners.html>; Felemegas, J., "The United Nations Convention for the International Sale of Goods: Article 7 and Uniform Interpretation", Pace Review of the Convention on Contracts for the International Sale of Goods (CISG), Kluwer Law International (2000-2001) 115-265 (New York, 2001), also available online at <http://cisgw3.law.pace.edu/cisg/biblio/felemegas.html>.

2. Article 8.101(1) states: "Whenever a party does not perform an obligation under the contract and the non-performance is not excused under Article 8:108, the aggrieved party may resort to any of the remedies set out in chapter 9." See Lando, O. & Beale, H., The Principles of European Contract Law. Parts I and II. Combined and Revised (Hague, 2000), Article 8:101.

3. See Lando, O. & Beale, H., op. cit., in comment A: "Under the system adopted by the Principles there is non-performance whenever a party does not perform any obligation under the contract. The non-performance may consist in a defective performance or in a failure to perform at the time performance is due, be it a performance which is effected to early, too late or never" (the second sentence is omitted by this author).

4. See Honnold, J.O., Documentary History of the 1980 Uniform Law for International Sales (Deventer, 1989): Secretariat Commentary to Article 35(1) (Section 33(1) of the Commentary): "Paragraph (1) states the standards by which the seller's obligation to deliver goods which conform to the contract is measured. The first sentence emphasizes that the goods must conform to the quantity, quality and description required by the contract and must be contained or packaged in the manner required by the contract. This provision recognizes that the overriding source for the standard of conformity is the contract between the parties. The remainder of paragraph (1) describes specific aspects of the seller's obligations as to conformity which apply except where otherwise agreed." Comment 4. The Secretariat Commentary is also available online at <http://cisgw3.law.pace.edu/cisg/text/secomm/secomm-35.html>.

5. For an analysis of the connection between Article 35 and Articles 8 and 9, see Henschel, R.F., Conformity of Goods in International Sales. An analysis of article 35 in the United Nations Convention on the International Sale of Goods (CISG), chapter 3.

6. Cf. Lookofsky, J., Understanding the CISG in Scandinavia, 2nd ed. (Copenhagen, 2002), p.88.

7. Cf. Honnold, J.O., op. cit., p. 255.

8. Cf. Schwenzer, I., in Schlechtriem, P., op. cit., p 377, note 38.

9. Cf. Schwenzer, I. in Schlechtriem, P., op. cit., p. 377, pt. 14; Veneziano, A.: op. cit., p. 44.

10. Those in favour of the average quality standard include: Herber, R. in Herber, R. & Czerwenka, B., op. cit., p. 164, pt. 4; Ziegler: op. cit., p. 70; Su: op. cit., p. 28. Those who are undecided or leave the question open include: Schwenzer, I. in Schlechtriem, P., op. cit., p. 378, pt. 15; Bianca, C.M., in Bianca, C.M. & Bonell, M.J., op. cit., p. 281; Honnold, J.O., Uniform Law for International Sales under the 1980 United Nations Convention, p. 255 et seq., pt. 225; Ramberg, J. in Ramberg, J. & Herre, J., op. cit., p. 233 et seq., pt. 4; Achilles: op. cit., p. 95, pt. 6; Lookofsky J., Understanding the CISG in Europe, 2nd ed., p. 83 et seq..

11. Cf. Honnold, J.O., op. cit., p. 120 et seq.; Bianca, C.M., op. cit., p. 271, pt. 1.5., p. 274, pt. 2.5.1, and p. 280 et seq., pt. 3.1.

12. For a general discussion of this, see Hyland, T., in Schlechtriem, P., Einheitliches Kaufrecht und nationales Obligationenrecht, p. 316 et seq..

13. Schwenzer, I. in Schlechtriem, P., op. cit., p. 378, pt. 15.

14. Cf. Bridge, M.: op. cit., p. 81.

15. Germany 8 March 1995 Bundesgerichtshof [Supreme Court], case presentation including English translation available at <http://cisgw3.law.pace.edu/cisg/cases/950308g3.html>; see also the Unilex database at <http://www.unilex.info/case.cfm?pid=1&id=108&do=case>.

16. In one instance, the average quality test has been adopted in favour of the merchantability test, see Germany 15 September 1994 Landgericht [District Court] Berlin, case presentation including English translation available at <http://cisgw3.law.pace.edu/cisg/cases/940915g1.html>; see also Unilex at <http://www.unilex.info/case.cfm?pid=1&id=218&do=case>.

17. In the Commentary to UNIDROIT Principles 2004 the following example is given at p. 136: "A buys 500 kgs. of oranges from B. If the contract says nothing more precise, and no other circumstances call for a different solution, those oranges may not be of less than average quality. Average quality will however suffice unless it is unreasonable defective."

18. Cf. the Commentary to Article 5.1.6 of the UNIDROIT Principles 2004, at p. 137: "A company based in country X organises a banquet to celebrate its 50th anniversary. Since the cuisine in country X is mediocre, the company orders the meal from a renowned restaurant in Paris. In these circumstances the quality of the food provided must not be less than the average standards of the Parisian restaurant; it would clearly not be sufficient simply to meet the average standards of country X." One may assume that in such cases the price will often be decisive.

19. Cf. <http://www.unilex.info> as of 1 November 2004.

20. Bianca, C.M., in Bianca, C.M. & Bonell, M.J., op. cit., p. 281, pt. 3.1.

21. Cf. Achilles, W., op. cit., p. 95.

22. See Netherlands 15 October 2002 Netherlands Arbitration Institute, Case no. 2319, case presentation including English translation available at <http://cisgw3.law.pace.edu/cisg/cases/021015n1.html>; see also Unilex at <http://www.unilex.info/case.cfm?pid=1&id=836&do=case>.

23. Cf. the award, paragraphs 117 and 118:

[117] "On the basis of the arguments above, the Tribunal holds that neither the merchantability test nor the average quality test are to be used in CISG cases and that the reasonable quality standard referred to above (see No. 71) is to be preferred."

[118] "The choice in favour of a test of reasonable quality is supported by the authors and the case cited above in No. 71 as well as by those scholarly writings that have rejected the average quality test. It is compatible with the travaux préparatoires since the Canadian amendment does not exclude an interpretation in favour of reasonable quality since it provided that under article 35(2)(a) CISG goods are fit for their ordinary use if it is reasonable to expect a certain quality having regard to price and all other relevant circumstances. Also, any such interpretation complies with article 7(1) CISG imposing to take into account the international character of CISG and its reluctance to rely immediately on notions based on domestic law. Furthermore, the interpretation preferred by the Arbitral Tribunal is consistent with article 7(2) CISG, which primarily refers to the general principles of CISG as possible gap fillers. In this respect, it may be noted that CISG often uses open-textured provisions referring to reasonableness (e.g., articles 8, 18, 25, 33, 34, 37, 38, 39, 43, 44, 46, 48, 49, 65, 72, 75, 77, 79, 86, 87 and 88). Finally, even if one were to rely on domestic law by virtue of article 7(2) CISG, Dutch law would be applicable and would also impose a standard of reasonable quality."

24. Cf. CISG Article 8.

25. Cf. Albert Kritzer: Reasonableness (Editorial remarks on reasonableness), available at <http://cisgw3.law.pace.edu/cisg/text/reason.html#def> with further references, and PECL Article 1:302 with comments in Lando & Beale: PECL, p. 126 et seq. See also Guillaume Weiszberg: Le "Raisonnable en Droit du Commerce International (Paris, 2003), available at the <http://cisgw3.law.pace.edu/cisg/biblio/Reasonableness.html>, and the reasoning in the award from the Netherlands Arbitration Institute, Case no. 2319, above note 23.

26. Cf. PECL Article 1:302, with comments in Lando & Beale: Ibid.

27. Whether the decision would have been different if, for example, the seller knew of the public health regulations in the buyer's state, or if the buyer could have assumed that the seller either knew or ought to have known of these regulations, perhaps because

(i) the seller had a branch in the buyer's State,
(ii) the parties had had a long-term trading arrangement,
(iii) the seller had regularly exported to the buyer's State, or
(iv) the seller had marketed his goods in the buyer's State,

was according to the German Supreme Court irrelevant in this case, as the buyer had not asserted any of these circumstances. Compare with CISG Article 42 on industrial property or other intellectual property.

28. See relevant case law:

    -     United States 17 May 1999 Federal District Court [Louisiana] (Medical Marketing v. Internazionale Medico Scientifica), case presentation available at <http://cisgw3.law.pace.edu/cisg/cases/990517u1.html>; see also Unilex at <http://www.unilex.info/case.cfm?pid=1&id=360&do=case>;
    -     Spain 3 October 2002 Audiencia Provincial [Appellate Court] Pontevedra, case presentation available at <http://cisgw3.law.pace.edu/cisg/cases/021003s4.html>; see also Unilex at <http://www.unilex.info/case.cfm?pid=1&id=895&do=case>;
    -     Spain 2 March 2000 Audiencia Provincial [Appellate Court] Granada, case presentation including English translation available at <http://cisgw3.law.pace.edu/cisg//cases/000302s4.html>; see also Unilex at <http://www.unilex.info/case.cfm?pid=1&do=case&id=889&step=Keywords>;
    -     Germany 21 August 1995 Landgericht [District Court] Ellwangen , case presentation including English translation available at <http://cisgw3.law.pace.edu/cisg/cases/950821g2.html>; see also Unilex at <http://www.unilex.info/case.cfm?pid=1&id=164&do=case>;
    -     Germany 29 January 2004 Oberlandesgericht [Appellate Court] Frankfurt am Main, case presentation including English translation available at <http://cisgw3.law.pace.edu/cisg/cases/040129g1.html>; see also Unilex at <http://www.unilex.info/case.cfm?pid=1&id=970&do=case>;
    -     Australia 17 January 2003 Supreme Court of Western Australia (Ginza Pte Ltd v Vista Corporation Pty Ltd), case presentation available at <http://cisgw3.law.pace.edu/cisg/cases/030117a2.html>; see also Unilex at <http://www.unilex.info/case.cfm?pid=1&id=961&do=case>;
    -     Austria 13 April 2000 Oberster Gerichtshof [Supreme Court]; caser presentation including English translation available at <http://cisgw3.law.pace.edu/cases/000413a3.html>; see also Unilex at <http://www.unilex.info/case.cfm?pid=1&id=687&do=case>.

29. Cf. Ferrari, F., in Schlechtriem, P., Kommentar zum Einheitlichen UN-Kaufrecht (CISG), p. 97, pt. 4; Honnold, J.O., op. cit., p. 261 et seq.; Ramberg, R. in Ramberg, R. & Herre, J., op. cit., p. 112; Achilles, W., op. cit., p. 19; Flesch, K., op. cit., p. 140 et seq., especially at pp. 156-159; Heilmann, J., op. cit., p. 146, though here the view is that only the buyer's mistake is covered, not the seller's; Zeller, B., op. cit., p. 194 et seq.; but opposed to this, see Gomard, B. & Rechnagel, H., op. cit., p. 38, where it is argued that national law should apply, and correspondingly Gstoehl, M., Das Verhältnis von Gewährleistung nach UN-Kaufrecht und Irrtumsanfechtung nach nationalem Recht (Zeitschrift für Rechtsvergleichung, Internationales Privatrecht und Europarecht, 1998/1, p. 1 et seq.).

30. Compare with Flesch, K., op. cit., p. 151 et seq., where, by referring to the two-year rule in Article 39 as a general principle, cf. Article 7(2), it is argued that there is no scope for national rules on validity of contracts which obviate this Convention principle. This is indeed a dynamic interpretation of the Convention which not everybody (including the present writer) will support.

31. Cf. Switzerland 24 August 1995 Handelsgericht [Commercial Court] St. Gallen, where a buyer was unsure whether the agreement concerned the purchase of samples to a value of DM 500 or a full delivery to a value of SFr 90,000; case presentation is available at <http://cisgw3.law.pace.edu/cisg/cases/950824s1.html>; see also Unilex at <http://www.unilex.info/case.cfm?pid=1&do=case&id=162&step=Abstract>

32. Cf. Schwartze, A., Europäische Sachmängelgewährleistung Beim Warenkauf (Tübingen, 2000), p. 47 et seq.; Gstoehl, M., op. cit., p. 1 et seq.; Flesch, K., op. cit., p. 23 et seq..

33. Cf. Schwartze, A., op. cit., p. 50.

34. Cf. Schwartze, A., op. cit., p. 51 et seq..

35. With certain qualifications, cf. Schwartze, A., op. cit., p. 50 et seq.. In relation to CISG Article 35, cf. Germany 14 May 1993 Landgericht [District Court] Aachen, case presentation available at <http://www.cisg.law.pace.edu/cisg/cases/930514g1.html>, see also Unilex <http://www.unilex.info/case.cfm?pid=1&do=case&id=23&step=Keywords>.

36. Cf. Andersen, M.B. & Lookofsky, J., Lærebog i Obligationsret, p. 185 et seq.; see also Werlauff, E., Review of Lærebog i Obligationsret by Andersen, M.B. & Lookofsky, J. (Juristen October 2002, p. 307 et seq.) with reference to the decision of the Danish Supreme Court in the case against Dansk Eternit (Ugeskrift for Retsvæsen 2002, p. 249 et seq.), but refer also to Gomard, B., Obligationsret, Vol. 1, p. 133.

37. Cf. Schwartze, A.: Op. cit., p. 53 et seq.

38. See Germany 14 May 1993 Landgericht [District Court] Aachen, supra note 33, but compare that decision with the following decisions:

    -     Austria 20 March 1997 Supreme Court, case presentation available at <http://cisgw3.law.pace.edu/cisg/cases/970320a3.html>; see also Unilex at <http://www.unilex.info/case.cfm?pid=1&do=case&id=254&step=Keywords>;
    -     Hungary 1 July 1997 Fovárosi Biróság [Metropolitan Court] Budapest, case presentation available at <http://cisgw3.law.pace.edu/cisg/cases/970701h1.html>; see also Unilex at <http://www.unilex.info/case.cfm?pid=1&do=case&id=270&step=Keywords>;
    -     Switzerland 11 December 2000 Federal Supreme Court (Rhomberg GmbH v. Ruth & Walter Ott), case presentation including English translation available at <http://cisgw3.law.pace.edu/cisg/cases/001211s1.html>; see also Unilex at <http://www.unilex.info/case.cfm?pid=1&id=750&do=case> (although the case was about mutual mistake, and not unilateral mistake);
    -     Switzerland 22 December 2000 Federal Supreme Court (Roland Schmidt GmbH v. Textil-Werke Blumenegg AG), case presentation including English translation available at <http://cisgw3.law.pace.edu/cisg/cases/001222s1.html>; see also Unilex at <http://www.unilex.info/case.cfm?pid=1&do=case&id=729&step=Keywords>;
    -     Austria 13 April 2000 Supreme Court, case presentation including English translation available at <http://cisgw3.law.pace.edu/cisg/cases/000413a3.html>, referred to below.

39. Austria 13 April 2000 Supreme Court, case presentation including English translation available at <http://cisgw3.law.pace.edu/cisg/cases/000413a3.html>; see also Unilex at <http://www.unilex.info/case.cfm?pid=1&id=687&do=case>.

40. Cf. p. 103 et seq.

41. Compare this with the decision from the Swiss Federal Supreme Court of 22 December 2000, referred to above, note 36.


Pace Law School Institute of International Commercial Law - Last updated September 14, 2009
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