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(1) The seller is liable in accordance with the contract and this Convention for any lack of conformity which exists at the time when the risk passes to the buyer, even though the lack of conformity becomes apparent only after that time.
(2) The seller is also liable for any lack of conformity which occurs after the time indicated in the preceding paragraph and which is due to a breach of any of his obligations, including a breach of any guarantee that for a period of time the goods will remain fit for their ordinary purpose or for some particular purpose or will retain specified qualities or characteristics.
1. Art. 36 deals with the difficult question of the extent to which a seller warrants the durability of his goods. Paragraph (1) states that the seller is liable for any non-conformity existing at the time the risk passes to the buyer even though the non-conformity only appears subsequently. Though the provincial Sale of Goods Acts do not deal expressly with the point, the case law is clearly to the same effect. See e.g., Crowther v. Shannon Motor Co. (1975) 1 W.L.R. 30 (Eng. C.A.)
2. Article 36(2) addresses itself to the much more difficult question whether a seller can be said to have breached his obligations where the goods do not remain fit for their purpose as long as the buyer expected them to even though the goods were conforming at the time of their delivery. When the seller has given an express performance warranty the answer is obvious--he is liable; in other cases, art. 36(2) says the answer depends on whether there has been a breach of the seller's obligations, which begs the question. However, its language clearly implies that the seller may be held liable where the failure of the goods to remain fit involves, for example, a breach of the seller's obligation under art. 35(2) (a) or (b). The Anglo-Canadian position is the same, at least in the case of perishable goods. See e.g., Mash & Murrell Ltd. v. Emanuel Ltd. 919610 1 All E.R. 485, rev'd. on other grounds, (1962) 1 All E.R. 77n. The position in other cases is less clear, though in principle it should be the same. See the discussion in the OLRC Sales Report, pp. 215-216. Art. 36(2) seems to me about as much as can be expected in a general sales convention.
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