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GUIDE TO CISG ARTICLE 36

Secretariat Commentary (closest counterpart to an Official Commentary)


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 34 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 34 [draft counterpart of CISG article 36].

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 partial validation of citations to this Secretariat Commentary. This match-up indicates that article 34(1) of the 1978 Draft and CISG article 36(1) are identical. There are differences between article 34(2) of the 1978 Draft and CISG article 36(2).


Text of Secretariat Commentary on article 34 of the 1978 Draft
[draft counterpart of CISG article 36]   [Seller's liability for lack of conformity]

PRIOR UNIFORM LAW.

ULIS, article 35.

COMMENTARY

1. Article 34 [draft counterpart of CISG article 36] deals with the time at which is to be judged the conformity of the goods to the requirements of the contract and this Convention.

Basic rule, paragraph (1)

2. Paragraph (1) contains the basic rule that the seller is liable in accordance with the contract and this Convention for any lack of conformity which exists at the time the risk passes even though the lack of conformity becomes apparent only after that date. The rule that the conformity of the goods to the contract is to be measured as of the time risk passes is a necessary implication of the rules on risk of loss or damage.

3. Although the conformity of the goods is measured at the time the risk passes, the buyer may not know of a non-conformity until much later. This may occur because the non-conformity becomes evident only after the goods have been used. It may also occur because the contract involves the carriage of goods. In such a case the risk may pass when the goods are handed over to a carrier for transmission to the buyer [see footnote 1]. The buyer, however, will normally not be able to examine the goods until after they have been handed over to him by the carrier at the point of destination, some time after the risk has passed. In either case if the non-conformity existed at the time the risk passed, the seller is liable.

Example 34A: A contract called for the sale of "No. 1 quality corn, FOB seller's city". Seller shipped No. 1 corn, but during transit the corn was damaged by water and on arrival the quality was No. 3 rather than No. 1. Buyer has no claim against Seller for non-conformity of the goods since the goods did conform to the contract when risk of loss passed to Buyer.

Example 34B. If the corn in Example 34A had been No. 3 quality when shipped, seller would have been liable even though Buyer did not know of the non-conformity until the corn arrived at Buyer's port or place of business.

Damage subsequent to passage of risk, paragraph (2)

4. Paragraph (2) provides that even after the passage of the risk the seller remains liable for any damage which occurs as a breach of one of his obligations. Although this is most evidently true when the damage occurs because of some positive act on the part of the seller, it is also true when the obligation which has been breached is an express guarantee [a guarantee] given by the seller that the goods will retain some particular characteristics for a specified period [for a period of time] after the risk of loss has passed. Since article 34(1) [draft counterpart of CISG article 36(1)] states that conformity of the goods is to be judged at the time risk passes, it was considered necessary to state specifically that the seller was liable for any breach of an express guarantee [a guarantee] of quality.

5. It would be noted that article 34(2) [draft counterpart of CISG article 36(2)] states that the seller is liable "for any lack of conformity" which occurs after the risk has passed rather than "for the consequences of any lack of conformity", which appeared in ULIS article 35, paragraph 2. This makes it clear that the defect or flaw in the goods does not have to have existed at the time the risk passed if the lack of conformity in question is due to a breach of any of the obligations of the seller (OFFICIAL RECORDS, p. 33).

[At the 1980 Vienna Diplomatic Conference, the following modifications were made to paragraph (2):

- The words "express guarantee" were deleted, with the word "guarantee" substituted therefore.

"Mr. Ghestin (France) noted that the existing text covered only express guarantees without taking into account implied guarantees, which might arise either from the interpretation of the contract, and hence from the actual but unmentioned wish of the parties, or from 'legal' guarantees deduced from the presumed or fictitious wish of the parties. Some delegations were anxious to include a reference to the contractual nature of the guarantees in question, but in that case it would be as well to state that those guarantees could be expressed or implied. Advertising, for example, might give guarantees which, if not express, were at least implied. He therefore . . . thought that [the text] could be improved by being amended to read: 'express or implied contractual guarantees'. An alternative solution might be to delete the word 'express' . . ."

- The words "for a period of time" were added to the text.

"The Chairman [Mr. Loewe (Austria) . . . As far as the guarantee period was concerned, the question was a drafting one. The expression 'for a specific period' in the English text of article 34 [of the 1978 Draft] was more categorical than the French expression 'pendant une certaine periode' and should be brought in line with the French term, which was applicable both to express and implied guarantees . . . Mr. Ghestin (France) said that the French expression 'une certaine periode', unlike the expression 'une periode certaine' did not refer to a specific period of time and was in line with the decision taken to delete the word 'express'. It would suffice to find an equivalent wording in the other languages Mr. Feltham (United Kingdom) suggested that in the English text the expression 'for a period' should be used" (OFFICIAL RECORDS, pp. 313-315).]


FOOTNOTES

1. Article 79(1) [draft counterpart of CISG article 67(1)]. If the goods are not clearly marked with an address or otherwise identified to the contract [clearly identified to the contract, whether by markings on the goods, by shipping documents, by notice given to the buyer or otherwise], article 79(2) [draft counterpart of CISG article 67(2)] provides that the risk does not pass to the buyer until the seller sends the buyer a notice of the consignment which specifies the goods.


Pace Law School Institute of International Commercial Law - Last updated August 29, 2006
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