CISG Article 41 ULIS Article 52
The seller must deliver 1. Where the goods are subject
goods which are free from any to a right or claim of a third
right or claim of a third party, person, the buyer, unless he
unless the buyer agreed to agreed to take the goods subject
take the goods subject to that to such right or claim, shall
right or claim. However, if such notify the seller of such right or
right or claim is based on claim, unless the seller already
industrial property or other knows thereof, and request that
intellectual property, the seller's the goods should be freed
obligation is governed by article 42.therefrom within a reasonable time
or that other goods free from all
CISG Article 42 rights and claims of third persons
be delivered to him by the seller.
1. The seller must deliver goods
which are free from any right 2. If the seller complies with a
or claim of a third party based request made under paragraph 1
on industrial property or other of this Article and the buyer
intellectual property, of which nevertheless suffers a loss, the
at the time of the conclusion buyer may claim damages in
of the contact the seller knew accordance with Article 82.
or could not have been unaware,
provided that the right or claim 3. If the seller fails to comply
is based on industrial property with a request made under
or other intellectual property: paragraph 1 of this Article and
a fundamental breach of the
(a) under the law of the State contract results thereby, the
where the goods will be buyer may declare the contract
resold or otherwise used, avoided and claim damages in
if it was contemplated by accordance with Article 84 to 87.
the parties at the time of If the buyer does not declare the
the conclusion of the contract avoided or if there is no
contract that the goods fundamental breach of the
would be resold or contract, the buyer shall have the
otherwise used in that State; the right to claim damages in
or accordance with Article 82.
(b) in any other case, under the
law of the State where the 4. The buyer shall lose his right
buyer has his place of to declare the contract avoided
business. if he fails to act in accordance
with paragraph 1 of this Article
2. The obligation of the seller within a reasonable time from
under the preceding paragraph the moment when he became or
does not extend to cases where: ought to have become aware of
the right or claim of the third
(a) at the time of the conclusion person in respect of the goods.
of the contract the buyer
knew or could not have been SEE ALSO:
unaware of the right or claim;
or ULIS Article 53. The rights
conferred on the buyer by
(b) the right or claim results from Article 52 exclude all other
the seller's compliance with remedies based on the fact
technical drawings, designs, that the seller has failed to
formulae or other such perform his obligation to
specifications furnished by transfer the property in
the buyer. the goods or that the goods
are subject to a right or
claim of a third person.
Comments on the match-up
"The general liability for defects in title laid down by the first sentence of [CISG] Article 41 basically corresponds to Article 52 ULIS; it is, however, worded much more clearly than Article 52 ULIS . . . The most important change in comparison with ULIS is the fact that the second sentence of Article 41 removes the seller's liability for third party rights or claims based on industrial property or other intellectual property from the sphere of general liability for defects in title and makes them subject to the special rules in Article 42. Accordingly, the seller's liability for industrial or other intellectual property rights or claims is much narrower than for other defects in title." Schwenzer in Commentary on the UN Convention on the International Sale of Goods, Peter Schlechtriem ed. (Oxford 1998) 325 [citations omitted].
"Article 52 ULIS did not expressly stipulate whether and, if so, to what extent the seller also warranted that the goods were free from industrial or intellectual property rights. [CISG Article 42 so stipulates.] The aim was [also] to keep the seller's liability for third party industrial and intellectual property rights within foreseeable limits. That was achieved, first, by applying territorial restrictions and, secondly, by introducing a requirement that there be fault at the time of the conclusion of the contract." Schwenzer, ibid at 310-311 [citations omitted].
Pace Law School Institute of
International Commercial Law
- Last updated June 22, 1998