Matchup of CISG Article 41 with ULIS/ULF Go to Database Directory || Go to CISG Table of Contents

LEGISLATIVE HISTORY

CISG ANTECEDENTS


CISG Article 41

The seller must deliver goods which are free from any right or claim of a third party, unless the buyer agreed to take the goods subject to that right or claim. However, if such right or claim is based on industrial property or other intellectual property, the seller's obligation is governed by article 42.

CISG Article 42

1. The seller must deliver goods which are free from any right or claim of a third party based on industrial property 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 the right or claim is based on industrial property 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. 

  

ULIS Article 52

1. Where the goods are subject to a right or claim of a third person, the buyer, unless he agreed to take the goods subject to such right or claim, shall notify the seller of such right or claim, unless the seller already knows thereof, and requests that the goods should be freed therefrom within a reasonable time or that other goods free from all rights and claims of third persons be delivered to him by the seller.

2. If the seller complies with a request made under paragraph l of this Article and the buyer nevertheless suffers a loss, the buyer may claim damages in accordance with Article 82.

3. If the seller fails to comply with a request made under paragraph l of this Article and a fundamental breach of the contract results thereby, the buyer may declare the contract avoided and claim damages in accordance with Articles 84 to 87. If the buyer does not declare the contract avoided or if there is no fundamental breach of the contract, the buyer shall have the right to claim damages in accordance with Article 82.

4. The buyer shall lose his right to declare the contract avoided if he fails to act in accordance with paragraph l of this Article within a reasonable time from the moment when he became aware or ought to have become aware of the right or claim of the third person in respect of the goods.

SEE ALSO:

ULIS Article 53

The rights conferred on the buyer by Article 52 exclude all other remedies based on the fact that the seller has failed to perform his obligation to transfer the property in 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
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