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Reproduced with permission from the Cornell Review of the Convention on Contracts for the International Sale of Goods (1995) 51-94

excerpt from

Judicial Interpretation and Application of the CISG in Germany 1988-1994

Martin Karollus [*]

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Article 35

In this case, the seller delivered shellfish heavily contaminated by cadmium [OLG Frankfurt 20 April 1994]. The buyer alleged that the degree of contamination exceeded the directives of the German Federal Health Department by more than 100%. However, according to the OLG Frankfurt am Main, the shellfish did not lack conformity because the parties had not agreed on a contamination threshold; therefore Article 35(1) was not applicable. Furthermore, in the opinion of the court, there was no lack of conformity under Article 35(2)(a) because the shellfish were fit to be eaten. Finally, the directives of the Federal Health Department are only recommendations and not obligatory. As the contamination did not violate German law, the court left open the question of the extent to which the public law of the buyer's nation affects the seller's obligations.[149]

I cannot agree. Essentially, the buyer did not intend to eat the shellfish but resell them. The real issue under Article 35(2)(a) is the quality a jobber can expect in the absence of detailed agreements. In my opinion, he can expect a quality that is reasonably merchantable. It also seems clear that a jobber should neither be obliged to accept shellfish with a bad taste nor to take heavily contaminated shellfish. In both cases the shellfish are edible but probably unsaleable. The buyer's purpose was to resell the shellfish, and this purpose was frustrated. Therefore, it would have been correct to say that the shellfish lacked conformity. However, the Bundesgerichtshof has confirmed the decision by the OLG Frankfurt am Main [BGH 8 March 1995].[150]

Due to the ambiguous statements in the Secretariat Commentary to the CISG, the delivery of goods of another kind (Falschlieferung), as opposed to non-conforming goods, is controversial.[151] The issue is whether the delivery of goods of another kind is to be regarded as a non-conforming delivery[152] or as no delivery at all.[153] Without discussion, the OLG Düsseldorf has taken the view that the delivery of goods of another kind is a non-conforming delivery, simply stating that Article 39 was applicable [OLG Düsseldorf (6 U 119/93) 10 February 1994].[154] Especially German lawyers should appreciate this, since the distinction between non-conforming goods and goods of the wrong kind (with a further distinction relating to the degree of deviation) is one of the biggest nuisances in German sales law.

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* Professor of Law at the University of Bonn, Germany, from 1992 to February 1995. Currently, Professor of Law at the University of Linz, Austria. Address: Institut für Handels-und Wertpapierrecht, Universität Linz, A-4040 Linz-Auhof, Austria, Europe.

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149. For commentary on this issue, see C.M. Bianca, Article 35, in Commentary on the International Sales Law 268, 282-83 (C.M. Bianca & M.J. Bonell eds., 1987); Herber & Czerwenka, supra note 16, at 160; Ingeborg Schwenzer, Art. 35: Vertragsmäßigheit der Ware, in Kommentar zum Einheitlichen UN-Kaufrecht 320, 326-27 (Ernst von Caemmerer & Peter Schlechtriem eds., 2d ed. l995).

150. Judgment of Mar. 8, 1995, BGH, 1995 NJW 2099.

151. John Honnold, Documentary History of the Uniform Law for the International Sales 419, 421-22 (1989).

152. See, e.g., Schlechtriem, supra note 22, at 54; Ulrich Huber, Die Haftung des Verkäufers nach dem Kaufrechtsübereinkommen der Vereinten Nationen und nach deutschem Recht 11 (1991); Karollus, supra note 20, 105-06; Josef Aicher, Leistungsstörungen aus der Verkäufersphäre, in Das Einheitliche Wiener Kaufrecht 114-23 (Hans Hoyer & Willibald Posch eds., 1992); Piltz, supra note 21, at 117; Schwenzer, supra note 149, at 324.

153. See Diskussionsbeiträge, in Das UNCITRAL-Kaufrecht im Vergleich zum österreichischen Recht 133, 135, 147 (Peter Doralt ed., 1985); Loewe, supra note 17, at 51; Karl Neumayer & Catherine Ming, Convention de Vienne sur les contrats de vente internationale de marchandises (1993).

154. Judgment of Feb. 10, 1994, OLG Düsseldorf, 1994 RIW at 1051.

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Pace Law School Institute of International Commercial Law - Last updated August 16, 1999

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