KOCH, Raphael

2009. Vertragsmässigkeit der Ware bei Divergenz öffentlich-rechtlicher Vorgaben: Eine Untersuchung unter besonderer Berücksichtigung der Systematik des Art. 35 CISG [ - in German], Internationales Handelsrecht (6/2009) 233-237 [Abstract: "According to the case law of the German Bundesgerichshof [see New Zealand mussels case of 8 March 2005] (which is supported by many academic writers) goods delivered may conform with the contract even if they do not comply with public law standards in the buyer's country. The court held that except where the seller and buyer have agreed otherwise, the goods have to comply with public law standards in the seller's country because only these standards shall be relevant for the ordinary purposes under Art. 35(2)(a) CISG. A foreign seller could not be required to know the public law provisions of the country to which he exports. This legal position has to be challenged because it does not fit within the structure of Art. 35 CISG. Priority is to be given to Art. 35(2)(b) CISG rather than (a). Therefore it has to be considered whether a particular purpose expressly or impliedly has been made known to the seller. If the seller is informed about the place of resale, he will be aware that the goods must be fit for resale at this place. This means that compliance with public law standards in the buyer's country is a particular purpose under Art. 35(2)(b) CISG. Hence goods are - in general - only fit for resale if they comply with the public law provisions in the state where they are to be resold. It goes without saying that this is only a general rule and that the relevant standards have to be determined on a case-by-case basis, in particular by interpretation of the parties statements (Art. 8 CISG)."]