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LEGISLATIVE HISTORY

Legislative history of CISG article 42: Match-up with 1978 Draft to assess relevance of Secretariat Commentary


1978 Draft article 40

(1) The seller must deliver goods which are free from any right or claim of a third party based on industrial or intellectual property, of which at the time of the conclusion of the contract the seller knew or could not have been unaware, provided that right or claim is based on industrial or intellectual property:

(a) under the law of the State where the goods will be resold or otherwise used if it was contemplated by the parties at the time of the conclusion of the contract that the goods would be resold or otherwise used in that State; or

(b) in any other case under the law of the State where the buyer has his place of business.

(2) The obligation of the seller under paragraph (1) of this article does not extend to cases where:

(a) at the time of the conclusion of the contract the buyer knew or could not have been unaware of the right or claim; or

(b) the right or claim results from the seller's compliance with technical drawings, designs, formulae or other such specifications furnished by the buyer.

  

CISG article 42

(1) The seller must deliver goods which are free from any right or claim of a third party based on industrial or other intellectual property, of which at the time of the conclusion of the contract the seller knew or could not have been unaware, provided that right or claim is based on industrial or other intellectual property:

(a) under the law of the State where the goods will be resold or otherwise used, if it was contemplated by the parties at the time of the conclusion of the contract that the goods would be resold or otherwise used in that State; or

(b) in any other case under the law of the State where the buyer has his place of business.

(2) The obligation of the seller under the preceding paragraph does not extend to cases where:

(a) at the time of the conclusion of the contract the buyer knew or could not have been unaware of the right or claim; or

(b) the right or claim results from the seller's compliance with technical drawings, designs, formulae or other such specifications furnished by the buyer.


Editorial comments

There are no meaningful differences between 1978 Draft article 40 and CISG article 42 other than CISG article 42 refers to "industrial or other intellectual property" rather than "industrial or intellectual property". The Secretariat Commentary on 1978 Draft article 40 should therefore be relevant to the interpretation of CISG article 42.


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

To examine 1978 Draft provisions in context, go to the full-text of the 1978 Draft || To examine CISG provisions in context, go to the full text of the CISG