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[Comments on Article 35 issues in this case]
[Article 35]

In this case, the seller delivered shellfish heavily contaminated by cadmium [OLG Frankfurt 20 April 1994].[148] The buyer alleged that the degree of contamination exceeded the directives of the German Federal Health Department by more than 100%. However, according to the OLG Frankfurt am Main, the shellfish did not lack conformity because the parties had not agreed on a contamination threshold; therefore Article 35(1) was not applicable. Furthermore, in the opinion of the court, there was no lack of conformity under Article 35(2)(a) because the shellfish were fit to be eaten. Finally, the directives of the Federal Health Department are only recommendations and not obligatory. As the contamination did not violate German law, the court left open the question of the extent to which the public law of the buyer's nation affects the seller's obligations.[149]

I cannot agree. Essentially, the buyer did not intend to eat the shellfish but resell them. The real issue under Article 35(2)(a) is the quality a jobber can expect in the absence of detailed agreements. In my opinion, he can expect a quality that is reasonably merchantable. It also seems clear that a jobber should neither be obliged to accept shellfish with a bad taste nor to take heavily contaminated shellfish. In both cases the shellfish are edible but probably unsaleable. The buyer's purpose was to resell the shellfish, and this purpose was frustrated. Therefore, it would have been correct to say that the shellfish lacked conformity. However, the Bundesgerichtshof has confirmed the decision by the OLG Frankfurt am Main [BGH 8 March 1995].[150]

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FOOTNOTES

* Professor of Law at the University of Bonn, Germany, from 1992 to February 1995. Currently, Professor of Law at the University of Linz, Austria. Address: Institut für Handels-und Wertpapierrecht, Universität Linz, A-4040 Linz-Auhof, Austria, Europe.

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148. Judgment of Apr. 20, 1994, OLG Frankfurt am Main, 1994 RIW 593.

149. For commentary on this issue, see C.M. Bianca, Article 35, in Commentary on the International Sales Law 268, 282-83 (C.M. Bianca & M.J. Bonell eds., 1987); Herber & Czerwenka, supra note 16, at 160; Ingeborg Schwenzer, Art. 35: Vertragsmäßigheit der Ware, in Kommentar zum Einheitlichen UN-Kaufrecht 320, 326-27 (Ernst von Caemmerer & Peter Schlechtriem eds., 2d ed. l995).

150. Judgment of Mar. 8,1995, BGH, 1995 NJW 2099.

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[Commentary on avoidance issues in this case and in other German cases]
[Article 49]

In most cases of late delivery, the buyer can avoid the contract only after fixing an additional period for delivery.[188] Only under exceptional circumstances does late delivery constitute a fundamental breach and allow immediate avoidance.[189] An example of exceptional circumstances is the late delivery of fashionable articles. However, in a case involving fashionable articles, the AG Oldenburg in Holstein discussed only Article 49(1)(b) and dismissed the buyer's declaration of avoidance because he had not fixed an additional period for delivery [AG Oldenburg 24 April 1990].[190] Perhaps the court did not sufficiently consider Article 49(1)(a).[191] This result could be correct because, apart from the fact that there may have been no delay at all,[192] the parties indicated the delivery dates with the symbol "+/-." The intended meaning of this symbol could have been that there was no precise time for delivery. If so, the delayed delivery would not have constituted a fundamental breach.

If the buyer receives non-conforming goods or goods of another kind, Article 49(1)(b) is not applicable. Therefore, the buyer can avoid only if the breach is fundamental.[193] However, Article 49(1)(b) is applicable if the buyer demands delivery of substitute goods under Article 46(2) because the substitute delivery is regarded as a delivery under Articles 31-33 and the provisions relating to delivery apply (again) [OLG Düsseldorf (6 U 119/93) 10 February 1994].[194] The buyer can fix a period for substitute delivery and avoid the contract if the seller does not deliver within the fixed period. If the buyer does not fix an additional period, avoidance is possible only if the breach is fundamental.[195] A fundamental breach occurs if the seller declares seriously and definitely (ernsthaft und endgültig) that he will not deliver substitute goods, but does not occur if he only declares that he cannot deliver at the moment [OLG Düsseldorf (6 U 119/93) 10 February 1994].[196]

According to Article 49(2)(b)(i), a declaration of avoidance based on breach other than late delivery must be made within a reasonable time after the buyer knew or ought to have known of the breach. A delay of two [OLG Frankfurt 20 April 1994] [197] or four months [OLG München 2 March 1994] [198] was held to be not reasonable. Of course, a declaration made after one day is timely [OLG Frankfurt 17 September 1991].[199]

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Go to entire text of Karollus commentary

FOOTNOTES

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188. Id. art. 49(1)(b).

189. Id. art. 44(1)(a).

190. Judgment of Apr. 24, 1990, AG Oldenburg in Holstein, 1991 IPRax at 338.

191. See Enderlein, supra note 134, at 314-15.

192. See supra Part V.5.

193. One of the most controversial CISG issues is the definition of a fundamental breach in respect to defective goods, especially when the defect can be cured by substitute delivery or repair. See Honnold, supra note 1, §§ 184, 296; Michael Will, Article 48, in Commentary on the International Sales Law 347, 356-58 (C.M. Bianca & M.J. Bonell eds.,1987); Aicher, supra note 152, at 136-42; Martin Karollus, UN Kaufrecht: Vertragsaufhebung und Nacherfüllungsrecht bei Lieferung mangelhafter Ware, 1993 Zeitschrift für Wirtschaftsrecht 490; Peter Schlechtriem, Art. 25: Wesentliche Vertragsverletzung, in Kommentar zum Einheitlichen UN-Kaufrecht 207, 217-19 (Ernst von Caemmerer & Peter Schlechtriem eds., 2d ed. 1995); Huber, supra note 128, at 442-45.

194. Judgment of Feb. 10, 1994, OLG Düsseldorf, 1994 RIW at 1051. See Huber, supra note 128, at 449.

195. CISG, supra note 4, art. 49(1)(a).

196. Judgment of Feb. 10, 1994, OLG Düsseldorf, 1994 RIW at 1051.

197. Judgment of Apr. 20, 1994, OLG Frankfurt am Main, 1994 RIW at 595.

198. Judgment of Mar. 2, 1994, OLG München, 1994 RIW at 596.

199. Judgment of Sept. 17, 1991, OLG Frankfurt am Main, 1991 RIW at 951.

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