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Reproduced with permission of 17 Journal of Law and Commerce (1998) 187-217
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Misuse of the Uniformity Principle
Failure to appreciate the complexity of the Convention's uniformity principle, and indulging instead a rigid and inflexible view of the demands of uniformity have, I believe, led some courts and commentators into error. One example is an opinion of the Oberlandesgericht Frankfurt am Main (Germany)[71] dealing with a contract to sell mussels. The German buyer had attempted to avoid the contract after the mussels were declared "not completely safe" because they contained cadmium exceeding the levels advised in a directive by the German Health Department. The court, however, found that the goods did not violate Article 35(2)(a), and it ruled that the buyer did not have the right to avoid the contract. In arguing that the mussels were fit for ordinary use, despite the violation of the health directive, the court asserted that such regulations had no role to play in determining whether the goods conformed to the contract ("keinen Einfluß auf die Vertragsgemäßheit der Ware") under Article 35(2)(a). Ignoring local regulations was compelled, the court asserted, by the requirement that the Convention be interpreted in a unified fashion ("das Erfordernis, daß das Recht in den Vertragsstaaten eine einheitliche Anwendung finden soll").
The opinion implies that the uniformity principle requires a single, global standard of merchantability for mussels, and, presumably, all other goods, under Article 35(2)(a). I believe that is a misreading of both Article 7(1) and Article 35. The standard of quality specified in Article 35(2)(a) -- "fit for the purposes for which goods of the same description would ordinary be used" -- is a general standard, designed, I believe, to be flexible enough to accommodate different expectations and conditions of trade. Article 35(2)(a) is an example of a provision in which the drafters intentionally tried to accommodate a certain amount of non-uniformity in order to allow the CISG to function in the vast variety of contexts and conditions in which international trade occurs. The idea that the uniformity principle of Article 7(1) demands one universal standard of fitness for ordinary purposes, and that local regulations effecting the buyer's ability to resell must be ignored in deference to this rigid standard, is a strange one. I would argue, for example, that whether an electric shaver designed to run on current of 220 volts is fit for its ordinary purposes will vary, depending on whether it will be used in North America or Europe. It is worthwhile to note that, on appeal to the Supreme Court (the Bundesgerichtshof), the decision of the OLG Frankfurt am Main was affirmed, but on far more defensible reasoning. The fact that goods failed to meet public regulations in the buyer's state, the Supreme Court asserted, was relevant to the goods' conformity under Article 35 of the Convention, but only if the buyer drew the seller's attention to the regulations, or the same regulations existed in the seller's state.[72]
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FOOTNOTES
* Professor, University of Pittsburgh School of Law, A.B. 1973, Harvard College; A.M. 1975, Harvard University; J.D. 1981, Harvard University School of Law.
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71. See OLG Frankfurt, UNILEX, No. 13 U 51/93 (Apr. 20, 1994).
72. See BGH, UNILEX, No. VIII ZR 159/94 (Mar. 8, 1995). Compare the Cour de Cassation, UNILEX, No. 173 P (Jan. 23, 1996), in which the French Supreme Court dealt with a delivery of wine adulterated by sugar added to increase the alcohol content - a process called "chaptalization." The court stated that the wine was unfit for consumption ("impropre à la consommation"), although it did not specifically invoke the French rules regulating chaptalization. Id. It held that the delivery violated CISG Article 35, and that avoidance of the contract was justified. Id.
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