"When there are available to the buyer both remedies granted under the Convention for lack of conformity on the one hand and remedies deriving from the invalidity of the contract under the applicable national law on the other, he may exercise the latter only under the terms of articles 36 to 38 [became CISG article 38, CISG article 39 and CISG article 40]."]
5. Mr. FOKKEMA (Netherlands) introduced the text of a new article to be inserted after article 48 [relates to the provision that became CISG article 4(a) ] (A/CONF.97/C.1/L.175). He would illustrate the advantages of the proposed provision by the following example: a museum in the Netherlands bought a famous Goya painting from France, which had been duly identified as such in the contract. Four years after the delivery of the painting, an expert found that it was not by Goya but by one of his pupils. The Board of Directors of the Netherlands museum considered that the discovery greatly reduced the value of the painting and consulted a lawyer. Under the Convention, the situation was clear. The Netherlands museum could invoke the remedies provided for in chapter II, on the grounds of non-conformity of the goods. However, it was stipulated in article 37(2) [became CISG article 39(2) ] that the buyer lost the right to rely on a lack of conformity of the goods if he did not give the seller notice thereof at the latest within a period of two years from the date on which the goods were handed over to him. The Netherlands museum was therefore unable to take legal action. The lawyer consulted would probably nevertheless advise the museum to bring an action, disputing the validity of the contract, despite article 4(a) [became CISG article 4(a) ] of the Convention, which stated that the Convention was not concerned with the validity of the contract, because in that particular case, the museum could legitimately claim an error of substance, which was a valid reason in French municipal law as well as Netherlands municipal law. There would be a serious gap in the Convention if article 37(2) [became CISG article 39(2) ] could be circumvented so easily. His delegation, therefore, without going as far as the provisions of ULIS, which did not allow the buyer to rely on any remedies other than those available to him under the Convention, would like to see it clearly stated in the Convention that the buyer could not exercise the remedies granted under the Convention or the national law applicable for lack of conformity or for invalidity of the contract except "under the terms of articles 36 to 38" [became CISG article 38 , CISG article 39 and CISG article 40 ], article 37 [became CISG article 39 ] being in the present case the most important of the three.
6. Mr. VINDING KRUSE (Denmark) considered that the Netherlands proposal was sound and improved the Convention considerably. Some delegations would undoubtedly be reluctant to approve it on the grounds that the Convention, by virtue of article 4 [became CISG article 4 ], was not concerned with "the validity of the contract". It should also be borne in mind that, in the example given by the Netherlands representative, the derogation from the period of two years accorded to the buyer (contractual period of guarantee) to rely on lack of conformity under article 37(2) [became CISG article 39(2) ] could not be invoked.
7. Mr. DATE-BAH (Ghana) said he was unable to support the Netherlands proposal because all questions bearing on the validity of the contract had been deliberately excluded from the sphere of application of the Convention and were covered solely by municipal law.
8. Mrs. FERRARO (Italy) was in favour of the Netherlands proposal. Under Italian law, notice could be given if a mistake in the essential qualities of the goods after five years, and invalidity of the contract was very close as grounds to lack of conformity.
9. Mr. SCHLECHTRIEM (Federal Republic of Germany) also supported the Netherlands proposal. In the interpretation of ULIS prevailing in his country, the problem raised by the Netherlands representative would normally come under the rules applicable to failure to perform or lack of conformity in order to protect the unified system of remedies from conflicting provisions of national law.
10. Mr. KRISPIS (Greece) regretted that he was unable to support the Netherlands proposal because it involved municipal law. The proposal presupposed that the Convention and municipal law would be applied simultaneously, and that was extremely difficult to accept, particularly when the principle concerned was of such broad scope.
11. The CHAIRMAN put the Netherlands proposal to the vote (A/CONF.97/C.1/L.175).
12. The Netherlands proposal was rejected by 24 votes.
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