UNCITRAL Digest of Article 7 case law

DIGEST OF ARTICLE 7 CASE LAW

Interpretation of the Convention

1. As national rules on the law of sales are subject to sharp divergences in approach and concept, it is important to avoid an interpretation of the Convention that is influenced by the concepts used in the legal system of the country of the forum.[1] It is for this reason that article 7(1) provides that in the interpretation of the Convention "regard is to be had to its international character and to the need to promote uniformity in its application".

2. In effect, according to some courts the reference to the Convention's international character [2] is to be understood as preventing courts from resorting to an interpretation of the concepts used in the Convention that is based on national law;[3] rather, courts should interpret the Convention "autonomously."[4] Nevertheless, there are courts that have stated that case law interpreting analogous domestic law provisions may also inform a court where the language of the relevant provisions of the Convention tracks that of the domestic law, even though the domestic law "is not per se applicable".[5] According to case law, reference to the Convention's legislative history is admissible [6] as well as to international scholarly writing.[7]

3. As far as the further obligation to promote uniform application of the Convention is concerned, it has been interpreted in the sense that courts should also take into account decisions rendered by foreign courts.[8] In one case, one court quoted forty foreign court decisions as well as arbitral awards.[9] In other cases, two courts quoted two foreign court decisions,[10] while there are several cases in which one foreign court decision is referred to.[11]  More recently, one court referred to 37 foreign court decisions and arbitral awards.[12]

4. What value foreign court decisions should have was dealt with by two courts both of which stated that foreign court decisions merely have persuasive, non-binding value.[13]

Observance of good faith in international trade

5. Article 7(1) also requires that the Convention be interpreted in such a manner that the observance of good faith in international trade is promoted.[14] Although an express reference to the good faith principle is to be found solely in the provision relating to the Convention's interpretation, there are numerous applications of that principle throughout the Convention. Among the manifestations of that principle are the rules contained in the following provisions:

• Article 16(2)(b) on the non-revocability of an offer where it was reasonable for the offeree to rely upon the offer being held open and the offeree acted in reliance on the offer;

• Article 21(2) on the status of a late acceptance which was sent in such circumstances that if its transmission had been normal it would have reached the offeror in due time;

• Article 29(2) in relation to the preclusion of a party from relying on a provision in a contract that modification or abrogation of the contract must be in writing;

• Articles 37 and 46 on the rights of a seller to remedy non-conformities in the goods;

• Article 40 which precludes the seller from relying on the fact that notice of non-conformity has not been given by the buyer in accordance with articles 38 and 39 if the lack of conformity relates to facts of which the seller knew or could not have been unaware and which he did not disclose to the buyer;

• Articles 47(2), 64(2) and 82 on the loss of the right to declare the contract avoided;

• Articles 85 to 88 which impose on the parties obligations to take steps to preserve the goods.[15]

Gap-filling and General Principles

6. Paragraph (2) makes sure that gaps, i.e. matters the Convention governs but which it does not expressly solve, are filled, if possible, without resorting to domestic law, but rather in conformity to the Convention's general principles. Only where no such general principles can be identified should one resort to the applicable national law.[16] Matters the Convention does not govern at all are to be solved directly by having recourse to the applicable national law.[17] As for the issues considered to fall outside the Convention's scope, they have been listed under the comments to article 4.

7. According to several courts, one of the general principles upon which the Convention is based is that of the "prevalence of party autonomy".[18]

8. The principle of good faith has also been found to be one of the general principles upon which the Convention is based.[19] In one case, that general principle has led a court to even state that an explicit declaration of avoidance of the contract was not necessary once the seller had refused to perform its obligations and that to insist on such a declaration would be against the principle of good faith, even though the Convention expressly requires a declaration of avoidance of contract.20] In another case, a court justified the order to one party to pay damages on the basis that that party's conduct was "contrary to the principle of good faith in international trade laid down in article 7 CISG"; in doing so, the court also stated that the abuse of process violates the good faith principle.[21]

9. A more recent court decision referred to the general principle of good faith and stated that it leads to the parties having to both cooperate with each other and exchange the information relevant for the performance of their respective obligations.[22]

10. According to some decisions, estoppel is also one of the general principles upon which the Convention is based; more specifically, it is a manifestation of the principle of good faith.[23] According to one court, however, estoppel is a matter the Convention is not concerned with.[24]

11. Decisions opting for the existence of a general principle upon which the Convention is based in respect of the place of performance of monetary obligations are more numerous. Thus, in determining the place of payment of compensation due for non-conformity of the goods one court stated that "if the purchase price is payable at the place of business of the seller", under article 57 of the Convention, then "this indicates a general principle valid for other monetary claims as well".[25] In a comparable situation, another court, considering an action for restitution of an excess in the price received by the seller, stated that there was a general principle under which "payment is to be made at the creditor's domicile, a principle that is be extended to other international trade contracts under article 6.1.6 of the UNIDROIT Principles".[26] The Supreme Court of another State, which had previously adopted the reverse principle, decided that the gap of the Convention in respect of the legal consequences of avoidance, particularly with regard to the performance of restitution obligations, were to be filled by means of a general principle of the Convention, according to which "the place for performance of restitution obligations should be determined by transposing the primary obligations — through a mirror effect — into restitution obligations".[27] It should be noted, however, that there is also one decision which denies the existence of a general principle under the Convention on the basis of which to determine the place of performance for all monetary obligations.[28]

12. As far as the currency of payment is concerned, one court observed that it is a question governed by, albeit not expressly settled in, the Convention.[29] The court first referred to the view that according to a general principle underlying CISG, the seller's place of business governs all questions relating to payment, at least where the parties did not agree otherwise, and therefore also governs the question of currency. The court, however, also mentioned the view that the question cannot be solved by applying a general principle of the Convention but rather by the domestic law applicable. The Court did not choose between the alternatives since in the case at hand the result was the same (currency of the seller's place of business).

13. According to some decisions,[30] the issue of burden of proof is a matter governed by, albeit not explicitly settled in, the Convention. Therefore, the issue is to be settled in conformity with the general principles on which the Convention is based.[31] According to various decisions, it is article 79(1)[32] and, at least according to one court decision, article 2(a) that evidence general principles of the Convention in respect of this issue.  These general principles have been summarized as follows: the party which wants to derive beneficial legal consequences from a legal provision has to prove the existence of the factual prerequisites of the provision,[33] any party claiming an exception has to prove the factual prerequisites of that exception.[34] It must be noted, however, that according to some courts, the issue of burden of proof is one not governed by the Convention, which is why domestic law is supposed to be applied to that issue.[35]

14. According to some arbitral tribunals, the Convention is also based upon the principle of full compensation.[36] One court restricted this general principle to cases in which, as a result of a breach of contractual obligations, a contract is declared void.[37]

15. Several tribunals expressly stated that the principle of informality, laid down in article 11, also constitutes a general principle upon which the Convention is based;[38] from this principle it follows, among other things, that the parties are also free to modify or terminate their contract in any form be it either in writing or orally or in any other form. Even an implied termination of the contract has been held possible;[39] furthermore, it has been held that a written contract may be orally changed.[40]

16. The dispatch principle appears to be the general principle of the Convention concerning communications after the parties have concluded their contract. According to the principle a notice, request or other communication becomes effective as soon as the declaring party releases it from its own sphere by an appropriate means of communication. This rule applies to the notice of non-conformity or of third-party claims (arts. 39, 43), to requests of specific performance (art. 46), price reduction (art. 50), damages (art. 45 (1)(b)) or interest (art. 78), to the declaration of avoidance (arts. 49, 64, 72, 73), to the fixing of an additional period for performance (arts. 47, 63) and other notices as in articles 32(1), 67(2) or 88. As stated in case law, as a general principle for Part III of the Convention, the dispatch principle applies as well to any other communication the parties may have provided for in their contract unless they have agreed that the communication has to be received to be effective.[41]

17. The mitigation principle set forth in article 77, pursuant to which a party who relies on a breach of contract must take such measures as are reasonable in the circumstances to mitigate the loss, including loss of profit, resulting from the breach, in order to avoid entitling the party in breach to be able to claim a reduction in the damages in the amount by which the loss should have been mitigated, has also been considered a general principle upon which the Convention is based.[42]

18. Another general principle, recognized by case law, is that unless otherwise agreed, the parties are bound by a usage of which the parties knew or ought to have known and which in international trade is widely known to, and regularly observed by, parties to contracts of the type involved in the particular trade concerned.[43]

19. One court suggested that the issue of set-off was governed, albeit not expressly settled, in the Convention, and that the Convention contained a general principle within the meaning of article 7(2) that permitted reciprocal claims arising under the Convention (here, the buyer's claims for damages and the seller's claim for the balance of the sale proceeds) to be offset.[44] According to other courts, however, the issue of set-off is not governed at all by the Convention.[45]

20. An arbitral tribunal stated that the entitlement to interest on all sums in arrears also constitutes a general principle of the Convention.[46] According to some tribunals, the Convention is based upon the general principle pursuant to which the entitlement to interest does not require a formal notice to the debtor in default.[47] There are, however, decisions that state that a formal notice must be given to the debtor before one is entitled to interest on sums in arrears.[48]

21. Commentators have also suggested that the Convention is based upon the favor contractus principle, pursuant to which one should adopt those solutions that favor the contract's existence rather than its avoidance. This view appears to have been adopted by two courts; one court expressly referred to the principle of favor contractus,[49] whereas the other court stated that the avoidance of the contract merely constitutes an "ultima ratio" remedy.[50]

22. Several decisions have identified Article 40 as embodying a general principle of the Convention applicable to resolve unsettled issues under the Convention. According to an arbitration panel, "Article 40 is an expression of the principles of fair trading that underlie also many other provisions of the Convention, and it is by its very nature a codification of a general principle".[51] Thus, the decision asserted, even if Article 40 did not directly apply to a lack of conformity under a contractual warranty clause, the general principle underlying Article 40 would be indirectly applicable to the situation by way of Article 7(2). In another decision, a court derived from Article 40 a general principle of the Convention that even a very negligent buyer deserves more protection than a fraudulent seller, and then applied the principle to find that a seller could not escape liability under Article 35(3)[52] for misrepresenting the age and mileage of a car even if the buyer could not have been unaware of the lack of conformity.[53]

23. One arbitral tribunal,[54] when having to decide what rate of interest to apply to the sums in arrears, applied the average bank short-term lending rate to prime borrowers, being the solution adopted both by Art. 7.4.9 of the UNIDROIT Principles of International Commercial Contracts and by Art. 4.507 of the Principles of European Contract Law; the arbitral tribunal adopted that solution on the grounds that such rules had to be considered general principles on which the Convention is based. In other cases,[55] arbitral tribunals referred to the UNIDROIT Principles of International Commercial Contracts to find corroboration of the results reached by applying the rules of the Convention; one State court also referred to the UNIDROIT Principles of International Commercial Contracts to corroborate a solution adopted on the basis of the Convention.[56] Furthermore according to a State court, the UNIDROIT Principles can also help to determine the exact meaning of a general principles upon which the CISG is based.[57]

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. See United Nations Conference on Contracts for the International Sale of Goods, Vienna, 10 March - 11 April 1980, Official Records, Documents of the Conference and Summary Records of the Plenary Meetings and of the Meetings of the Main Committee, 1981, p. 17.

2. For references in case law to the need to take the Convention's international character into account in the interpretation of the Convention, see 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>], (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>] (see full text of the decision); CLOUT case No. 84 [GERMANY Oberlandesgericht [Appellate Court] Frankfurt 20 April 1994, available online at <http://cisgw3.law.pace.edu/cases/940420g1.html>] (see full text of the decision); CLOUT case No. 201 [SWITZERLAND Laufen [District Court] Canton Berne 7 May 1993, available online at <http://cisgw3.law.pace.edu/cases/930507s1.html>] (see full text of the decision).

3. See CLOUT case No. 222 [UNITED STATES MCC-Marble Ceramic Center v. Ceramica Nuova D'Agostino [Federal Court of Appeals] [11th Circuit] 29 June 1998, available online at <http://cisgw3.law.pace.edu/cases/980629u1.html>] (see full text of the decision); CLOUT case No. 413 [UNITED STATES Calzaturificio Claudia v. Olivieri Footwear [Federal District Court] Southern District of New York 6 April 1998, available online at <http://cisgw3.law.pace.edu/cases/980406u1.html>] (see full text of the decision); CLOUT case No. 230 [GERMANY Oberlandesgericht [Appellate Court] Karlsruhe 25 June 1997, available online at <http://cisgw3.law.pace.edu/cases/970625g1.html>] (see full text of the decision); CLOUT case No. 171 [GERMANY Bundesgerichtshof [Supreme Court] 3 April 1996, available online at <http://cisgw3.law.pace.edu/cases/960403g1.html>] (see full text of the decision); CLOUT case No. 201 [SWITZERLAND Richteramt [District Court] Laufen Canton Berne 7 May 1993, available online at <http://cisgw3.law.pace.edu/cases/930507s1.html>] (see full text of the decision).

4. CLOUT case No. 333 [SWITZERLAND Handelsgericht [Commercial Court] Aargau 11 June 1999, available online at <http://cisgw3.law.pace.edu/cases/990611s1.html>]; CLOUT case No. 271 [GERMANY Bundesgerichtshof [Federal Supreme Court] 24 March 1999, available online at <http://cisgw3.law.pace.edu/cases/990324g1.html>] (see full text of the decision); CLOUT case No. 217 [SWITZERLAND Handelsgreicht [Commercial Court] Aargau 26 September 1997, available online at <http://cisgw3.law.pace.edu/cases/970926s1.html>] (see full text of the decision).

5. 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>] (see full text of the decision); for a more recent case stating the same, see  [UNITED STATES Schmitz-Werke v. Rockland Federal Appellate Court [4th Circuit] 21 June 2002, available online at <http://cisgw3.law.pace.edu/cases/020621u1.html>]

6. [GERMANY Landgericht [District Court] Aachen 20 July 1995, available online at <http://cisgw3.law.pace.edu/cases/950720g1.html>] (referring to the legislative history of article 78); CLOUT case No. 84 [GERMANY Oberlandesgericht [Appellate Court] Frankfurt 20 April 1994, available online at <http://cisgw3.law.pace.edu/cases/940420g1.html>].

7. [AUSTRIA Oberster Gerichtshof [Supreme Court] 13 April 2000, available online at <http://cisgw3.law.pace.edu/cases/000413a3.html>].

8. [SPAIN Audiencia Provincial [Appellate Court] Valencia 7 June 2003, available online at <http://cisgw3.law.pace.edu/cases/030607s4.html>].

9. See CLOUT case No. 378 [ITALY Tribunale [District Court] Vigevano 12 July 2000, available online at <http://cisgw3.law.pace.edu/cases/000712i3.html>].

10. [BELGIUM Rechtbank [District Court] Hasselt 2 December 1998, available online at <http://cisgw3.law.pace.edu/cases/981202b1.html>]; [ITALY Tribunale [District Court] Cuneo 31 January 1996, available online at <http://cisgw3.law.pace.edu/cases/960131i3.html>].

11. [UNITED STATES Usinor Industeel v. Leeco Steel Products Federal District Court [Illinois] 28 March 2002, available online at <http://cisgw3.law.pace.edu/cases/020328u1.html>]; [BELGIUM Rechtbank [District Court ] Hasselt 6 March 2002, available online at <http://cisgw3.law.pace.edu/cases/020306b1.html>]; [AUSTRIA Oberster Gerichtshof [Supreme Court] 13 April 2000, available online at <http://cisgw3.law.pace.edu/cases/000413a3.html>]; CLOUT case No. 380 [ITALY Tribunale [District Court] Pavia 29 December 1999, available online at <http://cisgw3.law.pace.edu/cases/991229i3.html>] (see full text of the decision); CLOUT case No. 205 [FRANCE Cour d'appel [Appellate Court] Grenoble 23 October 1996, available online at <http://cisgw3.law.pace.edu/cases/961023f1.html>] (see full text of the decision).

12. [ITALY Tribunale [District Court] Rimini 26 November 2002, available online at <http://cisgw3.law.pace.edu/cases/021126i3.html.html>].

13. CLOUT case No. 378 [ITALY Tribunale [District Court] Vigevano 12 July 2000, available online at <http://cisgw3.law.pace.edu/cases/000712i3.html>]; CLOUT case No. 380 [ITALY Tribunale [District Court] Pavia 29 December 1999, available online at <http://cisgw3.law.pace.edu/cases/991229i3.html>].  [ITALY Tribunale [District Court] Rimini 26 November 2002, available online at <http://cisgw3.law.pace.edu/cases/021126i3.html.html>]

14. See United Nations Conference on Contracts for the International Sale of Goods, Vienna, 10 March - 11 April 1980, Official Records, Documents of the Conference and Summary Records of the Plenary Meetings and of the Meetings of the Main Committee, 1981, p. 18.

15. United Nations Conference on Contracts for the International Sale of Goods, Vienna, 10 March - 11 April 1980, Official Records, Documents of the Conference and Summary Records of the Plenary Meetings and of the Meetings of the Main Committee, 1981, p. 18.

16. [ICC Court of Arbitration case No. 8611/HV/JK of 23 January 1997, available online at <http://cisgw3.law.pace.edu/cases/978611i1.html.html>].

17. [FRANCE Cour d'appel [Appellate Court] Paris 6 November 2001, available online at <http://cisgw3.law.pace.edu/cases/011106f1.html>], expressly referring to article 7 of the Convention when stating that issues not governed by the Convention have to be solved by means of the applicable law; for a similar statement, [ARGENTINA Mayer Alejandro v. Onda Hofferle [Appellate Court] Cámara 24 April 2000, available online at <http://cisgw3.law.pace.edu/cases/000424a1.html>] (stating the same); CLOUT case No. 333 [SWITZERLAND Handelsgericht [Commercial Court] Aargau 11 June 1999, available online at <http://cisgw3.law.pace.edu/cases/990611s1.html>]; [NETHERLANDS Arrondissementsrechtbank [District Court] Zutphen 29 May 1997, available online at <http://cisgw3.law.pace.edu/cases/970529n1.html>] (stating the same); [RUSSIA Arbitration Award case No. 38/1996, available online at <http://cisgw3.law.pace.edu/cases/970328r1.html>] [GERMANY Amtsgericht [ Lower Court] Mayen 6 September [1994], available online at <http://cisgw3.law.pace.edu/cases/940906g1.html>] (stating the same); CLOUT case No. 97 [SWITZERLAND Handelsgericht [Commercial Court] Zürich 9 September 1993, available online at <http://cisgw3.law.pace.edu/cases/930909s1.html>] (stating the same) (see full text of the decision).

18. [BELGIUM Hof van Beroep [Appellate Court] Gent [15] May 2002, available online at <http://cisgw3.law.pace.edu/cases/020515b1.html>]; [BELGIUM Rechtbank van Koophandel [District Court] Ieper 29 January 2001, available online at <http://cisgw3.law.pace.edu/cases/010129b1.html>]; [GERMANY Landgericht [District Court] Stendal 12 October 2000, available online at <http://cisgw3.law.pace.edu/cases/001012g1.html>]; [ITALY Tribunale [District Court] Rimini 26 November 2002, available online at <http://cisgw3.law.pace.edu/cases/021126i3.html.html>]

19. [BELGIUM Hof van Beroep [Appellate Court] Gent [15] May 2002, available online at <http://cisgw3.law.pace.edu/cases/020515b1.html>]; [GERMANY Bundesgerichtshof [Supreme Court] 9 January 2002, available online at <http://cisgw3.law.pace.edu/cases/020109g1.html>]; [GERMANY Bundesgerichtshof [Supreme Court] 31 October 2001, available online at <http://cisgw3.law.pace.edu/cases/011031g1.html>]; CLOUT case No. 297 [GERMANY Oberlandesgericht [Appellate Court] München 21 January 1998, available online at <http://cisgw3.law.pace.edu/cases/980121g1.html>] (see full text of the decision); CLOUT case No. 251 [SWITZERLAND Handelsgericht [Commercial Court] Zürich 30 November 1998, available online at <http://cisgw3.law.pace.edu/cases/981130s1.html>] (see full text of the decision); [ITALY Corte di Appello [Appellate Court] Milano 11 December 1998, available online at <http://cisgw3.law.pace.edu/cases/981211i3.html>]; [MEXICO Compromex Arbitration Award 30 November 1998, available online at <http://cisgw3.law.pace.edu/cases/981130m1.html>]; CLOUT case No. 277 [GERMANY Oberlandesgericht [Appellate Court] Hamburg 28 February 1997, available online at <http://cisgw3.law.pace.edu/cases/970228g1.html>]; [NETHERLANDS Rechtbank [District Court] Arnhem 17 July 1997, available online at <http://cisgw3.law.pace.edu/cases/970717n1.html>]; [GERMANY Landgericht [District Court] München 6 May 1997, available online at <http://cisgw3.law.pace.edu/cases/970506g1.html>] (stating the same); CLOUT case No. 337 [GERMANY Landgericht [District Court] Saarbrücken 26 March 1996, available online at <http://cisgw3.law.pace.edu/cases/960326g1.html>]; CLOUT case No. 166 [GERMANY Schiedsgericht [Arbitral Tribunal] Hamburg 21 June 1996, available online at <http://cisgw3.law.pace.edu/cases/960621g1.html>] (see full text of the decision); CLOUT case No. 136 [GERMANY Oberlandesgericht [Appellate Court] Celle 24 May 1995, available online at <http://cisgw3.law.pace.edu/cases/950524g1.html>] (see full text of the decision); [ICC Court of Arbitration, case No. 8128/1995 of 17 November 1995, available online at <http://cisgw3.law.pace.edu/cases/958128i1.html>]; [HUNGARY Court of Arbitration Award No. Vb 94124 of 17 November 1995, available online at <http://cisgw3.law.pace.edu/cases/951117h1.html>]; CLOUT case No. 154 [FRANCE Cour d'appel [Appellate Court] Grenoble 22 February 1995, available online at <http://cisgw3.law.pace.edu/cases/950222f1.html>].

20. See CLOUT case No. 277 [GERMANY Oberlandesgericht [Appellate Court] Hamburg 28 February 1997, available online at <http://cisgw3.law.pace.edu/cases/970228g1.html>].

21. CLOUT case No. 154 [FRANCE Cour d'appel [Appellate Court] Grenoble 22 February 1995, available online at <http://cisgw3.law.pace.edu/cases/950222f1.html>].

22. [GERMANY Bundesgerichtshof [Supreme Court] 31 October 2001, available online at <http://cisgw3.law.pace.edu/cases/011031g1.html>].

23. [RUSSIA Arbitration Award case No. 302/1996 of 27 July 1999, available online at <http://cisgw3.law.pace.edu/cases/990727r1.html>]; CLOUT case No. 230 [GERMANY Oberlandesgericht [Appellate Court] Karlsruhe 25 June 1997, available online at <http://cisgw3.law.pace.edu/cases/970625g1.html>] (see full text of the decision); CLOUT case No. 94 [AUSTRIA Vienna Arbitration Award, case No. SCH-4318 of 15 June 1994; available at <http://cisgw3.law.pace.edu/cases/940615a4.html>]; CLOUT case No. 93 [AUSTRIA Vienna Arbitration Award, case No. SCH-4366 of 15 June 1994; available at <http://cisgw3.law.pace.edu/cases/940615a3.html>] (see full text of the decision); [NETHERLANDS Gerechtshof [Appellate Court] 's-Hertogenbosch 26 February 1992, available online at <http://cisgw3.law.pace.edu/cases/920226n1.html>].

24. [NETHERLANDS Arrondissementsrechtbank [District Court] Amsterdam 5 October 1994, available online at <http://cisgw3.law.pace.edu/cases/941005n1.html>].

25. CLOUT case No. 49 [GERMANY Oberlandesgericht [Appellate Court] Düsseldorf 2 July 1993, available online at <http://cisgw3.law.pace.edu/cases/930702g1.html>].

26. [FRANCE Cour d'appel [Appellate Court] Grenoble, 23 October 1996, available online at <http://cisgw3.law.pace.edu/cases/961023f1.html>].

27. [AUSTRIA Oberster Gerichtshof [Supreme Court] 29 June 1999, available online at <http://cisgw3.law.pace.edu/cases/990629a3.html>].

28. CLOUT case No. 312 [FRANCE Cour d'appel [Court] Paris 14 January 1998, available online at <http://cisgw3.law.pace.edu/cases/980114f1.html>].

29. [GERMANY Landgericht [District Court] Berlin 24 March 1998, available online at <http://cisgw3.law.pace.edu/cases/980324g1.html>].

30. See CLOUT case No. 378 [ITALY Tribunale [District Court] Vigevano 12 July 2000, available online at <http://cisgw3.law.pace.edu/cases/000712i3.html>]; CLOUT case No. 380 [ITALY Tribunale [District Court] Pavia 29 December 1999, available online at <http://cisgw3.law.pace.edu/cases/991229i3.html>]; CLOUT case No. 196 [SWITZERLAND Handelsgericht [Commercial Court] Zürich 26 April 1995, available online at <http://cisgw3.law.pace.edu/cases/950426s1.html>] (see full text of the decision); CLOUT case No. 97 [SWITZERLAND Handelsgericht [Commercial Court] Zürich 9 September 1993, available online at <http://cisgw3.law.pace.edu/cases/930909s1.html>].

31. See CLOUT case No. 97 [SWITZERLAND Handelsgericht [Commercial Court] Zürich 9 September 1993, available online at <http://cisgw3.law.pace.edu/cases/930909s1.html>].

32. CLOUT case No. 378 [ITALY Tribunale [District Court] Vigevano 12 July 2000, available online at <http://cisgw3.law.pace.edu/cases/000712i3.html>]; [GERMANY Bundesgerichtshof [Supreme Court] 9 January 2002, available online at <http://cisgw3.law.pace.edu/cases/020109g1.html>]; CLOUT case No. 380 [ITALY Tribunale [District Court] Pavia 29 December 1999, available online at <http://cisgw3.law.pace.edu/cases/991229i3.html>].

33. For references to this principle, see CLOUT case No. 378 [ITALY Tribunale [District Court] Vigevano 12 July 2000, available online at <http://cisgw3.law.pace.edu/cases/000712i3.html>]; [GERMANY Landgericht [District Court] Frankfurt 6 July 1994, available online at <http://cisgw3.law.pace.edu/cases/940706g1.html>]; CLOUT case No. 107 [AUSTRIA Oberlandesgericht [Appellate Court] Innsbruck 1 July 1994, available online at <http://cisgw3.law.pace.edu/cases/940701a3.html>] (see full text of the decision).

34. See CLOUT case No. 378 [ITALY Tribunale [District Court] Vigevano 12 July 2000, available online at <http://cisgw3.law.pace.edu/cases/000712i3.html>].

35. See CLOUT case No. 261 [SWITZERLAND Berzirksgericht [District Court] Sanne 20 February 1997, available online at <http://cisgw3.law.pace.edu/cases/970220s1.html>]; CLOUT case No. 103 [ICC Court of Arbitration, case No. 6653 of 26 March 1993, available online at <http://cisgw3.law.pace.edu/cases/956653i1.html>]; in one case, a state court referred to the problem of whether the Convention is based upon a particular general principle in respect of the issue of burden of proof or whether the issue is one not governed by the Convention, but left the issue open; see CLOUT case No. 253 [SWITZERLAND Tribunale d'appello [Appellate Court ] Lugano 15 January 1998, available online at <http://cisgw3.law.pace.edu/cases/980115s1.html>].

36. [AUSTRIA Oberster Gerichtshof [Supreme Court] 9 March 2000, available online at <http://cisgw3.law.pace.edu/cases/000309a3.html>]; CLOUT cases Nos. 93 [AUSTRIA Vienna Arbitration Award, case No. SCH-4366 of 15 June 1994; available at <http://cisgw3.law.pace.edu/cases/940615a3.html>] and 94 [AUSTRIA Vienna Arbitration Award, case No. SCH-4318 of 15 June 1994; available at <http://cisgw3.law.pace.edu/cases/940615a4.html>].

37. [AUSTRIA Oberster Gerichtshof [Supreme Court] 9 March 2000, available online at <http://cisgw3.law.pace.edu/cases/000309a3.html>].

38. [MEXICO Compromex Arbitration Award 29 April 1996 , available online at <http://cisgw3.law.pace.edu/cases/960429m1.html>].

39. [AUSTRIA Oberster Gerichtshof [Supreme Court] 29 June 1999, available online at <http://cisgw3.law.pace.edu/cases/990629a3.html>].

40. CLOUT case No. 176 [AUSTRIA Oberster Gerichtshof [Supreme Court] 6 February 1996, available online at <http://cisgw3.law.pace.edu/cases/960206a3.html>] (see full text of the decision).

41. [GERMANY Landgericht [District Court] Stuttgart 13 August 1991, available online at <http://cisgw3.law.pace.edu/cases/910813g1.html>] (according to the contract the notice of non-conformity had to be by registered letter. The court held that that meant that the notice had to be received by the other party. Moreover, the declaring party had also to prove that the notice had been received by the other party). See also CLOUT case No. 305 [AUSTRIA Oberster Gerichtshof [Supreme Court] 30 June 1998, available online at <http://cisgw3.law.pace.edu/cases/980630a3.html>].

42. [GERMANY Landgericht [District Court] Zwickau 19 March 1999, available online at <http://cisgw3.law.pace.edu/cases/990319g1.html>]; [ICC Court of Arbitration case No. 8817 of December 1997 , available online at <http://cisgw3.law.pace.edu/cases/978817i1.html>]; [ITALY Tribunale [District Court] Rimini 26 November 2002, available online at <http://cisgw3.law.pace.edu/cases/021126i3.html.html>].

43. [BELGIUM Rechtbank Koophandel [District Court] Ieper 29 January 2001, available online at <http://cisgw3.law.pace.edu/cases/010129b1.html>].

44. CLOUT case No. 348 [GERMANY Oberlandesgericht [Appellate Court] Hamburg 26 November 1999, available online at <http://cisgw3.law.pace.edu/cases/991126g1.html>].

45. [AUSTRIA Oberster Gerichtshof [Supreme Court] 22 October 2001, available online at <http://cisgw3.law.pace.edu/cases/011022a4.html>]; CLOUT case No. 378 [ITALY Tribunale [District Court] Vigevano 12 July 2000, available online at <http://cisgw3.law.pace.edu/cases/000712i3.html>] (see full text of the decision); [GERMANY Amtsgericht [Lower Court] Duisburg 13 April 2000, available online at <http://cisgw3.law.pace.edu/cases/000413g1.html>]; CLOUT case No. 232 [GERMANY Oberlandesgericht [Appellate Court] München 11 March 1998, available online at <http://cisgw3.law.pace.edu/cases/980311g1.html>]; CLOUT case No. 259 [SWITZERLAND Kantonsgericht [Canton Court] Freiburg 23 January 1998, available online at <http://cisgw3.law.pace.edu/cases/980123s1.html>]; [GERMANY Landgericht [District Court] Hagen 15 October 1997, available online at <http://cisgw3.law.pace.edu/cases/971015g1.html>]; [GERMANY Landgericht [District Court] München 6 May 1997, available online at <http://cisgw3.law.pace.edu/cases/970506g1.html>]; CLOUT case No. 275 [GERMANY Oberlandesgericht [Appellate Court] Düsseldorf 24 April 1997, available online at <http://cisgw3.law.pace.edu/cases/970424g1.html>] (see full text of the decision); CLOUT case No. 169 [GERMANY Oberlandesgericht [Appellate Court] Düsseldorf 11 July 1996, available online at <http://cisgw3.law.pace.edu/cases/960711g1.html>] (see full text of the decision); [GERMANY Landgericht [District Court] Duisburg 17 April 1996, available online at <http://cisgw3.law.pace.edu/cases/960417g1.html>]; CLOUT case No. 289 [GERMANY Oberlandesgericht [Appellate Court] Stuttgart 21 August 1995, available online at <http://cisgw3.law.pace.edu/cases/950821g1.html>]; [GERMANY Landgericht [District Court] München 20 March 1995, available online at <http://cisgw3.law.pace.edu/cases/950320g1.html>]; [NETHERLANDS Rechtbank [District Court] Middelburg 25 January 1995, available online at <http://cisgw3.law.pace.edu/cases/950125n1.html>]; [GERMANY Amtsgericht [Lower Court] Mayen 6 September 1994, available online at <http://cisgw3.law.pace.edu/cases/940906g1.html>]; CLOUT case No. 281 [GERMANY Oberlandesgericht [Appellate Court] Koblenz 17 September 1993; available at <http://cisgw3.law.pace.edu/cases/930917g1.html>]; CLOUT case No. 125 [GERMANY Oberlandesgericht [Appellate Court] Hamm 9 June 1995; available at <http://cisgw3.law.pace.edu/cases/950609g1.html>]; [NETHERLANDS Rechtbank [District Court] Roermond 6 May 1993; available at http://cisgw3.law.pace.edu/cases/930506n1.html>]; CLOUT case No. 99 [NETHERLANDS Rechtbank [District Court ] Arnhem 25 February 1993, available online at <http://cisgw3.law.pace.edu/cases/930225n1.html>].

46. [ICC Court of Arbitration, case No. 8908 of September 1998 , available online at <http://cisgw3.law.pace.edu/cases/988908i1.html>].

47. CLOUT case No. 217 [SWITZERLAND Handelsgreicht [Commercial Court] Aargau 26 September 1997, available online at <http://cisgw3.law.pace.edu/cases/970926s1.html>] (see full text of the decision); CLOUT case No. 80 [GERMANY Kammergericht [Appellate Court] Berlin 24 January 1994, available online at <http://cisgw3.law.pace.edu/cases/940124g1.html>] (see full text of the decision); CLOUT case No. 56 [ SWITZERLAND Pretore della giurisdizione [District Court] Locarno Campagna 27 April 1992, available online at <http://cisgw3.law.pace.edu/cases/920427s1.html>] (see full text of the decision).

48. [BULGARIA Arbitration Award case No. 11/1996 of 12 February 1998, available online at <http://cisgw3.law.pace.edu/cases/980212bu.html>]; [GERMANY Landgericht [ District Court ] Zwickau 19 March 1999, available online at <http://cisgw3.law.pace.edu/cases/990319g1.html>].

49. CLOUT case No. 248 [SWITZERLAND Bundesgericht [Supreme Court] 28 October 1998, available online at <http://cisgw3.law.pace.edu/cases/981028s1.html>] (see full text of the decision).

50. [AUSTRIA Oberster Gerichtshof [Supreme Court] 7 September 2000, available online at <http://cisgw3.law.pace.edu/cases/000907a3.html>].

51. 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).

52. Article 35(3) provides that a seller is not liable for a lack of conformity under Article 35(2) "if at the time of the conclusion of the contract the buyer knew or could not have been unaware of such lack of conformity".

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

54. [ICC Court of Arbitration, case No. 8128/1995 pf 17 November 1995, available online at <http://cisgw3.law.pace.edu/cases/958128i1.html>].

55. [ICC Court of Arbitration case No. 9117 of March 1998, available online at <http://cisgw3.law.pace.edu/cases/989117i1.html>]; [ICC Court of Arbitration case No. 8817 of December 1997 , available online at <http://cisgw3.law.pace.edu/cases/978817i1.html>].

56. CLOUT case No. 205 [FRANCE Cour d'appel [Appellate Court] Grenoble 23 October 1996, available online at <http://cisgw3.law.pace.edu/cases/961023f1.html>] (see full text of the decision).

57. [NETHERLANDS Rechtbank [District Court] Zwolle 5 March 1997, available online at <http://cisgw3.law.pace.edu/cases/970305n1.html>]