Reproduced with permission from the Cornell Review of the Convention on Contracts for the International Sale of Goods (1995) 51-94

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[Conformity of the goods]
[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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