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Reproduced with permission of the American Bar Association from 29 International Lawyer 525-554 (1995)

excerpt from

Changing Contract Practices in the Light of the United Nations Sales Convention: A Guide for Practitioners

Peter Winship [*]


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Obligation to Make a Conforming Delivery; Disclaimer of Warranties

Under the Convention the seller's obligations to deliver goods of a certain quality resemble a seller's express and implied warranty obligations under the Uniform Commercial Code.[57]

Most domestic sales agreements include a warranty term expressly warranting specified qualities of the goods sold and disclaiming the implied warranties of merchantability and fitness for a particular purpose. Responding to judicial construction of these contract disclaimers over the last thirty years, domestic contracts have developed terms that will be enforceable in the absence of circumstances leading a court to question whether the term was bargained for. These domestic contract disclaimer terms may serve as models for an international sales contract governed by the Convention although the terminology should be modified to conform to the language of the Convention. Professor Farnsworth notes, however, that the Convention does not refer to "warranty" and he suggests substituting "there is no obligation of the seller as to the conformity of the goods."[58]

Sample clauses

DISCLAIMER OF OBLIGATION AS TO CONFORMITY OF THE GOODS. The parties agree that the seller undertakes no obligation with respect to the conformity of the goods to the contract except as otherwise provided in this contract document. In particular, THE PARTIES AGREE TO EXCLUDE ALL IMPLIED WARRANTIES, INCLUDING THE IMPLIED WARRANTIES, OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

EXCLUSIONS OF WARRANTIES: The parties agree that the implied warranties of MERCHANTABILITY and fitness for a particular purpose and all other warranties, express or implied, are EXCLUDED from this transaction and shall not apply to the goods sold.[59]

SELLER EXPRESSLY DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR PURSUANT TO ARTICLE 35(2) OF THE CISG.[60]

Illustration. Massachusetts Manufacturer sells equipment to French Buyer. The written contract expressly disclaims any warranty as to quality beyond the specific warranties set out in the contract, but the disclaimer does not use the word "merchantability." Will a Massachusetts court enforce the disclaimer? The Convention does not require use of any particular language (e. g ., "merchantability" ) in a warranty disclaimer varying the effect of article 35. The Uniform Commercial Code does require the use of the word "merchantability" when disclaiming the implied warranty of merchantability.[61] It is conceivable that a Massachusetts court would interpret use of the word "merchantability" as an issue of validity and therefore not governed by the Convention.[62] A better interpretation would be to conclude that use of the word is not an issue of validity. The Uniform Commercial Code requires use of the word to ensure the parties have agreed to reallocate the risk that the goods supplied meet minimum standards of quality.

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Go to entire text of Winship commentary


FOOTNOTES

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*James Cleo Thompson Sr. Trustee Professor of Law, Southern Methodist University, Dallas, Texas.

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57. CISG art. 35:

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 purposes 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, or that it was unreasonable for him to rely, on the seller's skill and judgement;

(c) possess 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."

Cf. U.C.C. §§ 2-313 through 2-316.

58. Farnsworth, supra note 26, at 443.

59. White & Summers, supra note 42, 498.

60. Crawford, supra note 26, at 202-03.

61. U.C.C. §§ 2-314, 2-316

62. CISG art. 4(a).

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Pace Law School Institute of International Commercial Law - Last updated August 16, 1999
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