Guide to the use of this commentary
The Secretariat Commentary is on the 1978 Draft of the CISG, not the Official Text, which re-numbered most of the articles of the 1978 Draft. The Secretariat Commentary on article 33 of the 1978 Draft is quoted below with the article references contained in this commentary conformed to the numerical sequences of the Official Text, e.g., article 33 [draft counterpart of CISG article 35].
To the extent it is relevant to the Official Text, the Secretariat Commentary on the 1978 Draft is perhaps the most authoritative source one can cite. It is the closest counterpart to an Official Commentary on the CISG. A match-up of this article of the 1978 Draft with the version adopted for the Official Text is necessary to document the relevancy of the Secretariat Commentary on this article. See the match-up for this article for a validation of citations to this Secretariat Commentary. This match-up indicates that article 33 of the 1978 Draft is substantially identical to CISG article 35.
Text of Secretariat Commentary on article 33 of the 1978 Draft
[draft counterpart of CISG article 35] [Conformity of the goods]
PRIOR UNIFORM LAW
ULIS, articles 33 and 36
1. Article 33 [draft counterpart of CISG article 35] states the extent of the seller's obligation to deliver goods which conform to the contract.
[Lookofsky states: "[I]t should be noted [at the outset] that the CISG, hereunder Article 35, governs only contractual rights. ... As regards misrepresentation and similar torts, rules which govern delictual obligations under national law will sometimes serve to supplement and complicate the new international Convention law. ... Thus, even if no contractual commitment is established in the Article 35 sense, applicable tort law may still provide a misrepresented buyer with (at least) reliance-interest damages for negligent misrepresentation. ..." Joseph Lookofsky, "The United Nations Convention on Contracts for the International Sale of Goods", International Encyclopaedia of Laws, Blainpain, gen. ed., (Kluwer (1993), p. 72.]
2. This article differs from ULIS in one important respect. Under ULIS the seller had not fulfilled his obligation to "deliver the goods" where he handed over goods which failed to conform to the requirements of the contract in respect of quality or description. However, under this Convention, if the seller has handed over or placed at the buyer's disposal goods which meet the general description of the contract, he has "delivered the goods" even though those goods do not conform in respect of quantity or quality [see footnote 1]. It should be noted, however, that, even though the goods have been "delivered", the buyer retains his remedies for the non-conformity of the goods [see footnote 2].
3. However, the seller's obligation under articles 39 and 40 [draft counterpart of CISG articles 41 and 42] to deliver goods free from any right or claim of a third party, including a right or claim based on industrial or intellectual property, is independent of the seller's obligation to deliver goods which conform to the contract [see footnote 3].
[Bianca states: "In Article 35 all cases of non-conformity of the goods are regarded as defective performance of the delivery obligation. Thus, the Convention has avoided the various distinctions still acknowledged in domestic laws between conditions and warranties [English law], and specially the difficult [civil law] distinction between delivery of goods of a different kind (aliud pro alio) and defects or lack of qualities. Article 35 replaces these distinctions with the ... notion of breach of contract. ... Now the major distinction underlying the Convention is between fundamental and non-fundamental breach" C.M. Bianca, in Bianca-Bonell Commentary, Milan: Giuffré (1987) p. 270.]
[Enderlein & Maskow call attention to the fact that: "The CISG treats differing quantities (partial deliveries, lesser than agreed quantities) as a lack of conformity (and not as partial late delivery) having the consequence that differing quantities under Article 39 generally must be notified." Fritz Enderlein & Dietrich Maskow,"International Sales Law" [Enderlein & Maskow Commentary], Oceana (1992) p. 141.]
Seller's obligations as to conformity of the goods, paragraph (1) [and paragraph (2)]
4. Paragraph (1) states the standards by which the seller's obligation to deliver goods which conform to the contract is measured. The first sentence emphasizes that the goods must conform to the quantity, quality and description required by the contract and must be contained or packaged in the manner required by the contract. This provision recognizes that the overriding source for the standard of conformity is the contract between the parties. The remainder of paragraph (1) [draft counterpart of CISG paragraph (2)] describes specific aspects of the seller'obligations as to conformity which apply "except where otherwise agreed."
[Ziegel expresses the following concern: "[Article 35(1)] states the obvious proposition that the seller must deliver the contractually promised goods. What it does not tell us is how the terms of the contract are to be determined. The difficulty is particularly acute where there is no integrated writing and only part of the contract is in writing or evidenced by a writing, or where there is no writing at all. The seller may have made representations in the form of advertisements, brochures, or verbal comments during the negotiating process. To what extent will they be deemed to be part of the contract and what test of incorporation will the court apply? The Convention supplies no explicit answers to these important questions." Jacob Ziegel, "The Vienna International Sales Convention", New Dimensions in International Trade Law: Canadian Perspectives, Ziegel & Graham eds., Butterworths (1982), p. 44.]
[Enderlein & Maskow state: "Where do the requirements of the contract ensue from? Do presentations by the seller concerning the quality of the goods become terms of the contract? In many legal systems a distinction is made between descriptions of the quality and promised characteristics ... According to Honnold [*] such a distinction was, however, not included in the CISG because Article 8 does not provide for a distinction between different types of statements. Thus, the requirements of the contract are not only express assurances [**]. Posch [***], in contrast, believes the English text indicates that an express assurance is referred to." Enderlein & Maskow Commentary, p. 141.]
* John O. Honnold, "Uniform Law for International Sales under the 1980 United Nations Convention", Kluwer Law International, 1982 ed., p. 251. ** See Welser, "Das UNCITRAL-Kaufrecht im Vergleich zum Österreichen Recht", Doralt ed. (Vienna 1985), p. 109. *** Posch, id. at 151.
Fit for ordinary purposes, subparagraph (1)(a) [draft counterpart of CISG subparagraph (2)(a)]
5. Goods are often ordered by general description without any indication to the seller as to the purpose for which those goods will be used. In such a situation the seller must furnish goods which are fit for all the purposes for which goods of the same description are ordinarily used. The standard of quality which is implied from the contract must be ascertained in the light of the normal expectations of persons buying goods of this contract description. The scope of the seller's obligation under this subparagraph is not determined by whether the seller could expect the buyer himself to use the goods in one of the ways in which such goods are ordinarily used. In particular, the obligation to furnish goods which are fit for all the purposes for which goods of the contract description are ordinarily used also covers a buyer who has purchased the goods for resale rather than use. For goods to be fit for ordinary purposes, they must be honestly resalable in the ordinary course of business. If the goods available to the seller are fit for only some of the purposes for which such goods are ordinarily used, he must ask the buyer the particular purposes for which these goods are intended so that he can refuse the order if necessary.
6. The seller is not obligated to deliver goods which are fit for some special purpose which is not a purpose "for which goods of the same description would ordinarily be used" unless the buyer has "expressly or impliedly made known to the sell at the time of the conclusion of the contract" such intended use [see footnote 4]. This problem may arise if the buyer intends to use the goods for a purpose for which goods of this kind are sometimes, but not ordinarily used. In the absence of some indication from the buyer that such a particular purpose is intended, the seller would have no reason to attempt to supply goods appropriate for such purpose.
[Honnold states: "Some writers have felt that it is necessary to decide as a general proposition, the following question: Does subparagraph (2)(a) refer to the understanding of the contract description of the goods that prevails at the seller's place of business [Bianca's view] or at the place where the buyer intends to use the goods [Schlechtriem's view (in Galston & Smit, "International Sales", Matthew Bender (1984) p. 6-21)]. ... It should not be necessary to answer this question if one accepts the view ... that the role of Article 35(2) is to aid in construing the agreement of the parties. The question is this: What was the parties' understanding of the contract provision describing the goods? More precisely (in the language of Article 35(2) what was their understanding of the 'purposes for which goods of the same description would ordinarily be used'? ... If the parties ... have different understandings of the connotations of the agreed description, the problem needs to be resolved pursuant to the Convention's rules for interpreting sales contracts. These rules are set forth in Article 8 ... supplemented by the practices of the parties and trade usages (Article 9). ... Under these rules the relevant facts are: Which party drafted the description (This may be either the seller or buyer). What, under Article 8(2), would be 'the understanding that a reasonable person of the same kind as the other party would have had in the same circumstances'? To ascertain this understanding Article 8(3) directs attention to all relevant circumstances including 'the negotiations, any practices which the parties have established between themselves, usages and any subsequent conduct of the parties.' . .. [In sum] the Convention did not lay down a general rule on whether the seller must supply goods that meet with special restrictions or prohibitions in the buyer's country. This question must be decided in each case on the basis of the contract, the practices of the parties and trade usages, Articles 8 and 9." John O. Honnold, "Uniform Law for International Sales under the 1980 United Nations Sales Convention 2d ed., Kluwer Law International (1991) pp. 305-306 and 307 n. 12).**]
* Banca-Bonell Commentary, p. 274. See also Enderlein & Maskow who state "The CISG stipulates nothing with respect to qualitative prerequisites which may be mandatory in the buyer's country or in the country of destination. An obligation of the seller to fulfil those requirements would have to be expressly agreed in the contract ... It should ... not be sufficient if the buyer informed the seller of the country where the goods are to be used, in order to bind the seller to meet the requirements under that country's law ..." Enderlein & Maskow Commentary, p. 144.
** When reliance is to be placed on usages, Folsom, Gordon & Spanogle state: "[Where] 'ordinary use' [as] defined by seller's location or by buyer's location ... is different ... [one] analysis is that any such disparity in usage means that neither usage is international in scope, and therefore neither usage can qualify as 'ordinary'. Instead, any use not recognized as 'ordinary' in international trade must be analyzed under the criteria for fitness for a 'particular purpose'." "International Business Transactions in a Nut Shell", 3d ed., West (1988), p. 87.
Fit for particular purpose, subparagraph (1)(b) [draft counterpart of CISG subparagraph (2)(b)]
7. Buyers often know that they need goods of a general description to meet some particular purpose but they may not know enough about such goods to give exact specifications. In such a case the buyer may describe the goods desired by describing the particular use to which the goods are to be put. If the buyer expressly or impliedly makes known to the seller such purposes, the seller must deliver goods fit for that purpose. 8. The purpose must be known to the seller by the time of the conclusion of the contract so that the seller can refuse to enter the contract if he is unable to furnish goods adequate for that purpose. 9. The seller is not liable for failing to deliver goods fit for a particular purpose even if the particular purpose for which the goods have been purchased has in fact been expressly or impliedly made known to him if "the circumstances show that the buyer did not rely, or that it was unreasonable for him to rely, on the seller's skill and judgement". The circumstances may show, for example, that the buyer selected the goods by brand name or that he described the goods desired in terms of highly technical specifications. In such a situation it may be held that the buyer had not relied on the seller's skill and judgement in making the purchase. If the seller knew that the goods ordered by the buyer would not be satisfactory for the particular purpose for which they have been ordered it would seem that he would have to disclose this fact to the buyer [see footnote 5]. If the buyer went ahead and purchased the goods it would then be clear that he did not rely on the seller's skill and judgement.
10. It would also be unreasonable for the buyer to rely on the seller's skill and judgement if the seller did not purport to have any special knowledge in respect of the goods in question.
[Herber states: "[M]ere knowledge of the seller as to the intended use of the goods ... seems ... hardly to justify to fix a sort of presumption' for the expertise of the seller in respect of every possible use of the sold products." Rolf Herber, "Rules of the Convention Relating to Buyer's Remedies in Cases of Breach of Contract", Potsdam Colloquium, August 1979, Oceana (1980), p. 113.]
[Enderlein adds: "In any case, the buyer will not and may not always rely on the seller's skill and judgement. If the buyer uses the goods himself in his factory, he may well be better informed than a seller who is a trader and not a producer. If the buyer did not rely on the seller's judgement, then it is irrelevant whether the seller did give judgement or not. ..." Fritz Enderlein, in Sarcevic & Volken eds., "The Vienna Sales Convention: History and Perspective, Oceana (1986) p. 157.]
[Folsom, Gordon & Spanogle state: "The obligation of fitness for a particular purpose arises only if buyer makes the particular purpose known to seller (expressly or impliedly) at or before the 'conclusion of the contract', and buyer also relies on seller's skill and judgment, and such reliance is reasonable. There is no express requirement that buyer inform seller of buyer's reliance, but only of the particular purpose. More importantly, there is no requirement that buyer inform seller of any of the difficulties which buyer may know are involved in designating or designing goods to accomplish this particular use. However, it is likely that courts can avoid any abuse of these gaps in the statute by the 'reasonable reliance' criterion. The assignment of burdens of proof on such issues is not clear." "International Business Transactions in a Nut Shell", 3d ed., West (1988), p. 88.]
Sample or model, subparagraph (1)(c) [draft counterpart of CISG subparagraph (2)(c)]
11. If the contract is negotiated on the basis of a sample or model, the goods delivered must possess the qualities which are possessed by the goods the seller has held out as the sample or model. Of course, if the seller indicates that the sample or model is different from the goods to be delivered in certain respects, he will not be held to those qualities of the sample or model but will be held only to those qualities which he has indicated are possessed by the goods to be delivered.
Packaging, subparagraph (1)(d) [draft counterpart of CISG subparagraph (2)(d)]
12. Subparagraph (1)(d) [draft counterpart of CISG subparagraph (2)(d)] make it one of the seller's obligations in respect of the conformity of the goods that they "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]." Thisprovision which sets forth a minimum standard, is not intended to discourage the seller from packaging the goods in a manner that will give them better protection from damage than would the usual manner of packing.
[At the 1980 Vienna Diplomatic Conference, the words "or where there is no such manner, in a manner adequate to preserve and protect the goods" were added to CISG article 35(2)(d). The explanation is: "Mrs. Kamarul (Australia) ...What would happen if the goods were of a new type and there was no usual container or packaging for them? The provision proposed by her delegation provided that in cases where new standards had not been established, the manner in which the goods would be contained or packaged should be adequate to preserve and protect them". (OFFICIAL RECORDS, p. 316).]
[Bianca states: "In contracts of sale involving carriage of the goods it has always been understood that it is the seller's duty to provide for the proper packaging of the goods. The seller's obligation, however, is less acknowledged when the goods are to be handed over at the seller's place of business or where the goods are stocked, manufactured or produced (see Article 31(b)(c)). The Convention clearly implies that also in these cases the goods have to be properly contained or packaged so as to allow the buyer to load and carry them away. In order to shift the burden of packaging the goods from the seller to the buyer there must be an unmistakable contractual clause to this effect." Bianca-Bonell Commentary, p. 277.]
[Lookofsky states: "The seller's obligations ... with respect to Article 35(1)-(2) apply irrespective of the seller's 'state of mind', in that the seller is liable for defects whether or not he ... 'knew or could have been aware' of a given non-conformity at the time of contracting. ... The Convention gap-filling rule is that the seller is liable without fault. ..." Joseph Lookofsky, "The 1980 United Nations Convention on Contracts for the International Sale of Goods", International Encyclopaedia of Laws, Blanpain, gen. ed. Kluwer (1993) p. 74.]
Buyer's knowledge of the non-conformity, paragraph (2) [draft counterpart of CISG paragraph (3)]
13. The obligations in respect of quality in subparagraphs (1)(a) to (d) [draft counterpart of CISG subparagraphs (2)(a) to (d)] are imposed on the seller by this Convention because in the usual sale the buyer would legitimately expect the goods to have such qualities even if they were not explicitly stated in the contract. However, if at the time of contracting the buyer knew or could not have been unaware of an non-conformity in respect of one of those qualities, he could not later say that he had expected the goods to conform in that respect.
[Folsom, Gordon & Spanogle state: "Seller is relieved of any obligations against defects in quality under Article 35(3) whenever buyer is aware or 'could not have been unaware' of a defect at the time the contract is 'concluded'. However, knowledge gained at the time of delivery or inspection of the goods will not affect seller's obligation. The 'could not have been unaware' language is the subject of much dispute among common law and civil law authorities. Most common law authorities consider it to be 'subjective' and relate to buyer's actual state of mind, rather than to impose 'constructive knowledge' on buyer for items he should have learned." "International Business Transactions in a Nutshell", 3d ed., West (1988), p. 88.]
[Enderlein & Maskow state: "The wording 'could not have been aware' is often qualified as gross negligence [*]. According to Huber [**] this should not suffice. Welser [***] holds that there should be an objective and clearly recognizable deficiency of the goods which must be obvious to the average buyer." Enderlein & Maskow Commentary, p. 148.]
* So Herber, "Das UNCITRAL-Kaufrecht im Vergleich zum Österreichischen Recht", Doralt ed., Vienna (1985) p. 141. ** Huber, "Der UNCITRAL-Entwurf eines Übereinkommens uber internationale Warenkaufverträge",RabelsZ (1979) p. 479. *** Welser, "Das UNCITRAL-Kaufrecht im Vergleich zum Österreichischen Recht", Doralt ed., Vienna (1985) p. 109. Bianca states: "The seller is not liable for defects ... the buyer should reasonably expect Circumstances from which the buyer should reasonably deduce that the goods do not conform with the Convention standards are, for example: (a) the seller had usually sold in the past to the buyer poor quality goods without complaints from the buyer; or (b) the price corresponds to the price generally paid for poor quality goods." Bianca-Bonell Commentary, p. 279.
[Honnold states: "[A]n obligation based on facts of which one 'could not have been unaware' does not impose a duty to investigate -- these are the facts that are before the eyes of one who can see. This expression is used at various places in the Convention slightly to lighten the burden of proving that facts that were before the eyes reached the mind. However, since a tribunal would normally draw this inference, there is little practical difference between the provisions that refer to facts that a party 'knows' and provisions that refer to facts of which a party 'could not have been unaware.' ... This choice of language significantly narrows the impact of paragraph (3) on the buyer's protection afforded by paragraph (2)." Honnold Text, 2d ed., pp. 308-309.]
14. This rule does not go to those characteristics of the goods explicitly required by the contract and, therefore subject to the first sentence of paragraph (1). Even if at the time of the conclusion of the contract the buyer knew that the seller would deliver goods which would not conform to the contract, the buyer has a right to contract for full performance from the seller. If the seller does not perform as agreed, the buyer may resort to any of his remedies which may be appropriate [see footnote 6] (OFFICIAL RECORDS, pp. 31-32).
[The theory behind the inapplicability of paragraph (3) to paragraph (1) is said to be: "[T]he buyer's knowledge of defects in the goods may modify the implied obligations based on normal expectations, but not the promises or undertaking that relate to this specific transaction." (UNCITRAL Yearbook IV, A/CN.9/SER.A/1973, p. 46, para. 74) See Enderlein & Maskow Commentary, pp. 147-148 for a collection of commentators' opinions in accord and in opposition to this interpretation.]
1. The necessity that the seller hand over or place at the buyer's disposal goods which meet the contract description in order to have "delivered the goods" is discussed in paragraph 3 of the commentary on article 29 [draft counterpart of CISG article 31].
2. Article 41(1) [draft counterpart of CISG article 45(1)].
3. For the significance of this rule, see articles 39 and 40 [draft counterpart of CISG articles 41 and 42] and the commentary to these articles.
4. Article 33(1)(b) [draft counterpart of CISG article 35(2)(b)] see paragraphs 7 to 10 below.
5. This appears to follow from the requirement of the observance of good faith in article 5 [sic: article 6] [draft counterpart of CISG article 7].
6. Article 41(1) [draft counterpart of CISG article 45(1)].