CISG Article 35
1. The seller must deliver goods which are of the quantity, quality and description required by the contract and which are contained or packaged in the manner required by the contract.
2. Except where the parties have agreed otherwise, the goods do not conform with the contract unless they:
(a) are fit for the purpose for which goods of the same description would ordinarily be used;
(b) are fit for any particular purpose expressly or impliedly made known to the seller at the time of the conclusion of the contract except where the circumstances show that the buyer did not rely, on the seller's skill and judgement;
(c) possesses the qualities of goods which the seller has held out to the buyer as a sample or model;
(d) are contained or packaged in the manner usual for such goods or, where there is no such manner, in a manner adequate to preserve and protect the goods.
3. The seller is not liable under subparagraphs (a) to (d) of the preceding paragraph for any lack of conformity of the goods if at the time of the conclusion of the contract the buyer knew or could not have been unaware of such lack of conformity.
ULIS Article 33 and 36
ULIS Article 33
1. The seller shall not have fulfilled his obligation to deliver the goods where he had handed over:
(a) part only of the goods sold or a larger or a smaller quantity of the goods than he contracted to sell;
(b) goods which are not those to which the contract relates or goods of a different kind;
(c) goods which lack the qualities of a sample or model which the seller has handed over or sent the buyer, unless the seller has submitted it without any express or implied undertaking that the goods would conform therewith;
(d) goods which do not possess the qualities necessary for their ordinary or commercial use;
(e) goods which do not possess the qualities for some particular purpose expressly or impliedly contemplated by the contract;
(f) in general, goods which do not possess the qualities and characteristics expressly or impliedly contemplated by the contract.
2. No difference in quantity, lack of part of the goods or absence of any quality or characteristic shall be taken into consideration where it is not material.
ULIS Article 36
The seller shall not be liable for the consequences of any lack of conformity of the kind referred to in subparagraphs (d), (e) or (f) of paragraph 1 of Article 33, if at the time of the conclusion of the contract the buyer knew, or could not have been unaware of, such lack of conformity.
Comments on the match-up
"[CISG] Article 35 largely corresponds to Article 33 ULIS. However, the wording of Article 35 is substantially simpler and more precise than that of its predecessor. Article 35 begins by stating the basic rule that the goods must conform with the requirements of the contract, whereas Article 33(a)(f) ULIS included this basic rule as a subsidiary, catch-all provision.
"Article 35 CISG and Article 33 ULIS differ as regards the classification of non-conformity in dogmatic terms. While under Article 33 ULIS, non-conformity of the goods automatically constituted a failure to fulfil the delivery obligation, under the CISG, non-conformity of the goods has no effect on delivery, but gives rise to the buyer's remedies under Article 45 et seq. A further difference is to be found in the omission of Article 33(2) ULIS, which declared immaterial discrepancies to be irrelevent. It was thought that such a rule is unjustified, if avoidance of the contract is possible only in the event of a fundamental breach of contract. . . .
"[CISG] Article 35(3) is based on Article 36 ULIS. However, the latter provision did not include a sale by sample or model within its terms." Schwenzer in Commentary on the UN Convention on the International Sale of Goods, Peter Schlechtriem ed. (Oxford 1998) 275 [citations omitted].
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