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LEGISLATIVE HISTORY

Legislative history of CISG article 36: Match-up with 1978 Draft to assess relevance of Secretariat Commentary


1978 Draft article 34

(1) The seller is liable in accordance with the contract and this Convention for any lack of conformity which exists at the time when the risk passes to the buyer, even though the lack of conformity becomes apparent only after that time.

(2) The seller is also liable for any lack of conformity which occurs after the time indicated in paragraph (1) of this article and which is due to a breach of any of his obligations, including a breach of any express guarantee that the goods will remain fit for their ordinary purpose or for some particular purpose, or that they will retain specified qualities or characteristics for a specific period.

  

CISG article 36

(1) The seller is liable in accordance with the contract and this Convention for any lack of conformity which exists at the time when the risk passes to the buyer, even though the lack of conformity becomes apparent only after that time.

(2) The seller is also liable for any lack of conformity which occurs after the time indicated in the preceding paragraph and which 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 quantities or characteristics.


Editorial comments

The Secretariat Commentary on 1978 Draft article 34 is relevant to the interpretation of CISG article 36, subject to recognition of two changes to paragraph (2): the substitution of "including a breach of any guarantee" for "including a breach of any express guarantee", and the substitution of "for a period of time" for "for a specific period".

The following comments on these substitutions were provided by delegates to the Vienna Diplomatic Conference:

"Mr. GHESTIN (France) noted that the existing text covered only express guarantees without taking into account implied guarantees, which might arise either from the interpretation of the contract, and hence from the actual but unmentioned wish of the parties, or from 'legal' guarantees deduced from the presumed or fictitious wish of the parties. Some delegations were anxious to include a reference to the contractual nature of the guarantees in question, but in that case it would be as well to state that those guarantees could be expressed or implied. Advertising, for example, might give guarantees which, if not express, were at least implied. He therefore... thought that [the text] could be improved by being amended to read: 'express or implied contractual guarantees'. An alternative solution might be to delete the work 'express'.... The CHAIRMAN [Mr. LOEWE (Austria)]... "As far as the guarantee period was concerned, the question was a drafting one. The expression 'for a specific period' in the English text of article 34 [of the 1978 Draft] was more categorical than the French expression 'pendant une certaine période', and should be brought in line with the French term, which was applicable both to express and implied guarantees.... Mr. GHESTIN (France) said that the French expression 'une certaine période', unlike the expression 'une période certaine' did not refer to a specific period of time and was in line with the decision taken to delete the work 'express'. It would suffice to find an equivalent wording in the other languages. Mr. FELTHAM (United Kingdom) suggested that in the English text the expression 'for a period' should be used" (Official Records, pp. 313-315).

Schlechtriem elaborates: "How long goods have to last and remain useful... is a tricky issue.... In Vienna, this question was debated most controversially because some developing countries demanded that a 'reasonable period, as the case may be' be fixed for the implied warranties of fitness for use. The wording finally found in the Convention's text, to be sure, is not free from doubt; it does not say unambiguously whether the substitution of 'a period of time' in Article 36(2) for 'a specific period'... means that the period of usefullness shall be determined by the court called upon to decided the particular case -- having due regard, of course, to all the circumstances -- or whether this period must be fixed by the terms of the contract for whose interpretation Article 8 may be applied. The prevailing view of the Conference, however, was that 'a period of time' should stand for a period determined by the contract, and not just determined by local courts" (Schlechtriem, International Sales: The United Nations Convention on Contracts for the International Sale of goods, Galston & Smit eds. (Matthew Bender 1984), pp. 6-25/26).

The Secretariat Commentary on 1978 Draft article 34 should be read in conjunction with these explanations.


Pace Law School Institute of International Commercial Law - Last updated July 12, 1999
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