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Cite as Bianca, in Bianca-Bonell Commentary on the International Sales Law, Giuffrè: Milan (1987) 268-283. Reproduced with permission of Dott. A Giuffrè Editore, S.p.A.

Article 35

Cesare Massimo Bianca

1. History of the provision
2. Meaning and purpose of the provision
3. Problems concerning the provision

ARTICLE 35

(1) The seller must deliver goods which are of the quantity, quality and description required by the contract and which are contained or packaged in the manner required by the contract.

(2) Except where the parties have agreed otherwise, the goods do not conform with the contract unless they:
(a) are fit for the purposes for which goods of the same description would ordinarily be used;
(b) are fit for any particular purpose expressly or impliedly made known to the seller at the time of the conclusion of the contract, except where the circumstances show that the buyer did not rely, or that it was unreasonable for him to rely, on the seller's skill and judgement;
(c) possess the qualities of goods which the seller has held out to the buyer as a sample or model;
(d) are contained or packaged in the manner usual for such goods or, where there is no such manner, in a manner adequate to preserve and protect the goods.

(3) The seller is not liable under sub-paragraphs (a) to (d) of the preceding paragraph for any lack of conformity of the goods if at the time of the conclusion of the contract the buyer knew or could not have been unaware of such lack of conformity.

1. History of the provision

     1.1. - Article 35 states that the seller must deliver goods conforming to the contract (conformity principle) and lays down the conformity criteria.

The provision has its direct antecedents in Articles 19(1), 33(1), and 36 of ULIS. Article 19(1) of ULIS defined the [page 268] delivery as the handing over of goods which conformed with the contract. Article 33(1) provided that the seller would not have fulfilled his delivery obligation if the goods did not conform with the contract. The ULIS rule further specified when a non-conformity of the goods occured by indicating six cases of such non-conformity.

Article 35(3), which states the non-liability of the seller for any lack of conformity that the buyer knew or could not have been unaware of at the time of the contract, substantially corresponds to Article 36 of ULIS.

On the whole, Article 35 presents no fundamental changes with respect to ULIS, but it does provide a simpler and, at the same time, a more comprehensive text. An important innovation in this text is the provision regarding the seller's duty to deliver goods contained or packaged in the usual manner or, where there is no such manner, in a manner adequate to preserve and protect the goods. It may be noted, however, that an express reference to this duty is not a novelty for the United States Uniform Commercial Code (see § 2.7.1., infra).

The text of Article 35(2) uses a different approach from that of ULIS. While the ULIS rule confined itself to clarifying when the seller had breached his obligation to deliver the goods, Article 35 defines the content of the seller's delivery obligation in a positive way. However, though the Article's text can be viewed as more appropriately constructed, the difference between the two rules is not particularly important. Indeed, it was also possible to deduce from the ULIS rule what the seller was expected to do in order to perform his delivery obligation properly.

     1.2. - The Secretariat's Commentary (Official Records, I, 32), points out the following difference between the ULIS provisions and those of Article 35 of the Vienna Convention. Under ULIS the delivery obligation was not fulfilled if the seller handed over goods that failed to conform to the requirements of the contract. Instead, under the Convention the seller has «delivered the goods» if he has handed over or placed at the buyer's disposal goods which meet the general description of the contract even though those goods do not conform in respect of quantity or quality (the fact that the seller has delivered the goods, however, does not affect the buyer's remedies for their non-conformity). [page 269]

In addition, the Convention presents a clearer formulation than ULIS because it strengthens the distinction between non-performance (the goods have not been handed over to the buyer) and defective performance (the delivered goods do not conform with the contract). The distinction is important because in the latter case the buyer must examine the goods (see Article 36) and give prompt notice of the assumed lack of conformity (see Article 37).

     1.3. - The unifying notion of defective performance is a noteworthy innovation in relation to rules present under the national systems.

In Article 35 all cases of non-conformity of the goods are regarded as defective performances of the delivery obligation. Thus, the Convention has avoided the various distinctions still acknowledged in domestic laws between conditions and warranties, and specially the difficult distinction between delivery of goods of a different kind (aliud pro alio) and defects or lack of qualities. Article 35 replaces these distinctions with the unique notion of breach of contract (see also BESS, Die Haftung des Verkäufers für Sachmängel und Falschlieferungen im Einheitlichen Kaufgesetz im Vergleich mit dem englischen und deutschen Recht, Heidelberg (Winter), 1971, 63, in respect of ULIS).

Now the major distinction underlying the Convention is between fundamental and non-fundamental breach.

     1.4. - At the basis of some national sale laws it is often possible to find the idea, derived from the Roman law on sales, that a lack of conformity is not a defective performance but an unfavourable event against which the seller gives an express or implied assurance. The Convention, however, has totally abandoned this idea, and like ULIS has adopted a solution said to be closer to the English and Scandinavian models (see STUMPF, in DÖLLE, Einheitliches Kaufrecht, 265).

But perhaps it is more correct to say that the Convention has adopted a solution which responds properly to the needs of international trade and which in substance does not bring about a dramatic contrast with any national sale rule. In fact, even if codes and statutes often have formally remained unchanged, they have substantially put aside the concept that the buyer is entitled to his remedies by a promise of the seller or by a guarantee [page 270] which is legally added to sales contracts (see also RABEL, Das Recht des Warenkaufs, Berlin (De Gruyter) and Tübingen (Mohr), 1958, II, 101). Instead, another concept has prevailed: i.e., the seller has the duty to provide goods conforming to the provisions of the contract or to other binding standards; if the goods are defective or without the due qualities, the contract has not been properly performed. Specially in commercial sales of unascertained goods it has been commonly understood that in delivering defective goods the seller does not properly perform his obligation. But also in sales of specific goods, which are identified and agreed upon at the time of the contract, it has been largely accepted that the non-conformity of the goods to the due standards means a breach of contract, unless the buyer knew or ought to have known of the alleged defects.

     1.5. - For the most part, the redaction of Article 35 at the Vienna Convention did not raise objections to its substance, but rather objections to its wording. The only questions of importance concerned the relevance of the seller's professional status. An amendment, later withdrawn, was submitted by the delegation from Canada in order to restrict the application of the Convention's criteria about the fitness of the goods to sales made by professional sellers («where the seller is a person who deals in goods of the description supplied under the contract») (A/Conf.97/C.1/L.115).

The Canadian proposal was also intended to clarify the meaning of goods «fit for the purposes for which goods of the same description would ordinarily be used». It specified, for instance, that fitness includes the average quality and endurance of the goods. The withdrawal of this amendment, however, does not imply a substantially different interpretation of Article 35 (see § 3.1., infra, and the comment on Article 36, also infra, § 3.2.).

The Australian delegation submitted another amendment in order to integrate sub-paragraph (d) of the UNCITRAL text, which referred only to goods contained or packaged in the usual manner (A/Conf.97/C.l/L.74). The Australian proposal, later orally amended, was intended to lay down a provision stating that when there is no usual manner, the goods have to be contained or packaged in a manner adequate to preserve and protect them. [page 271] The proposal was adopted and the amendment is now included in the final text of Article 35.

2. Meaning and purpose of the provision

     2.1. - On the whole, Article 35 is designed to establish when the delivery of the goods is duly performed. In this regard, the Article states a fundamental reference to the parties' agreement and then a series of objective standards by which the performance must be judged.

Article 35 makes clear that the goods must conform in the first place to the quantity, quality and description required by the contractual provisions, and that the Convention's criteria must be applied except where the parties have agreed otherwise.

Here the parties do not derogate from the Convention, but, according to its provision, fix the content of the seller's obligation. It is up to the parties, indeed, to determine their obligations, and therefore the Convention's criteria have only a suppletive role in respect to the parties' agreements (as observed by FARNSWORTH, Rights and obligations, 83, it is the contract that is the principal source of the seller's obligations).

Accordingly, the criteria of Article 35 are to be applied only in the absence of an express or implied contractual provision. Thus, one must first seek the proper content of the seller's obligations through interpretation of the contract (see Article 8).

The content of the seller's obligations may also be determined by usages applicable to the contract according to Article 9 (see ENDERLEIN, in ENDERLEIN-MASKOW-STARGARDT, Kommentar, 85; see also BONELL, Die Bedeutung der Handelsbrauche, 392, about the precedence of usages with respect to the Convention).

     2.2. - The suppletive role of the Convention's criteria is limited. Indeed, these criteria cannot be applied if there is not a minimum of contractual indications about the goods to be provided by the seller. At least the parties must determine the kind of goods and fix their quantity or make provisions for determining it (see Article 14).

Having agreed upon the kind of the goods, the parties may provide for determining all the other aspects dealing with the [page 272] goods. These indirect determinations prevail over the Convention's criteria.

     2.3. - Article 35(1) states that the seller must deliver goods which are of the quantity, quality and description required by the contract. It may be pointed out that the description is the usual way through which the parties determine the content of their obligations. Thus, the description of the goods made by the seller in his offer is binding for him with no need of a specific promise. If the offer refers, even impliedly, to an advertisement illustrating the goods and their qualities, it is understood that the offer includes such description.

The description may be made by the buyer on his request of the goods. If the seller does not raise objections, the delivered goods must be as required by the buyer.

     2.4. - When the seller delivers goods which fail to conform to the requirements of the contract, the delivery obligation is nevertheless performed, even if the performance be a defective one (see § 1.4., supra). However, according to the Secretariat's Commentary (Official Records, I, 32), the delivered goods must at least meet the general description of the contract. As way of illustration, the Commentary further points out that in case of unidentified goods the seller is obliged to deliver goods which generally conform to the description of the type of goods called for by the contract. Otherwise, there is no delivery of the goods («if the contract calls for the delivery of corn, the seller has not delivered if he provides potatoes»).

This Secretariat's remark does not involve the old dispute concerning the distinction between delivery of defective goods and delivery of goods of a different kind (aliud pro alio) It rather stresses the necessity to draw a line between the delivery of the goods bargained for and the delivery of what is absolutely extraneous to the seller's obligation. Neither the text of the rule nor international trade needs support the extreme opinion which assumes that the seller has delivered the goods even when he has handed over goods which, according to common sense, are totally different from the goods expected by the buyer (but for the refusal of the distinction see HUBER, UNCITRAL-Entwurj, 483; SCHLECHTRIEM, UN-Kaufrecht, 54; [page 273] Uniform Sales Law, 65; WELSER, Die Vertragsverletzung des Verkäufers, 111; not sure, BYDLINSKI, Intervention, 133).

          2.5.1. - Article 35 indicates four determinative standards to be applied when the parties have not otherwise agreed.

The first one (a) refers to the fitness of the goods for the purposes for which goods of the same description would ordinarily be used.

ULIS (Article 33(d)) mentioned the qualities necessary for the ordinary or commercial use of the goods. The Convention has suppressed as superfluous this reference to commercial use, which is covered by the reference to ordinary use.

The delivered goods are fit for the ordinary use when they possess the normal qualities: i.e., the characteristics normally required from goods as described by the contract, and when they are free from defects normally not expected in such goods.

Goods are unfit for their ordinary use when lack of proper characteristics or defects impede their material use or yield abnormally deficient results or take unusual costs. The goods are also unfit for normal use when the lack of proper characteristics or the defects, though not affecting the material use of the goods, lessen conspicuously their value affecting their trade use.

The goods can be more or less fit for their purposes, but the seller must on the whole deliver goods of average fitness (see § 3.1., infra).

The fitness of goods for ordinary use must be ascertained according to the standards of the seller's place of business. Indeed, the seller is not supposed to know about specific requirements or limitations in force in other countries (unless that may reasonably be expected from the buyer according to the circumstances: see also § 3.2., infra).

Another position, however, holds that «ordinary use» should be defined by the standards of the country or region in which the buyer intends to use the goods: in Europe -- for example -- gasoline for the operation of cars is still understood as leaded gasoline, whereas the expectations of an American buyer who purchases gas on the Rotterdam spot market might be directed toward unleaded gasoline (see SCHLECHTRIEM, The Seller's Obligations, 6-21). This example, though, seems to confirm the opposite solution. If in the seller's country gasoline is understood [page 274] as leaded gasoline, the buyer's request will also be understood as a request for leaded gasoline. Naming the place where the buyer intends to use the gasoline is not sufficient per se to show that he needs a different type of fuel.

          2.5.2. - According to the second standard (b), the seller must deliver goods which are also fit for any particular purpose of the buyer, provided that such purpose has expressly or impliedly been made known to the seller at the time of the conclusion of the contract.

This criterion, which has its antecedent in ULIS (Article 3(e)), solves the problem of whether an express promise of the seller is necessary about the fitness of the goods for a special purpose when the buyer shows his intention to buy the goods for such a purpose. The solution is in accordance with a principle of fairness.

The provision does not deal with the case where the seller himself illustrates the special purpose the goods are fit for or where the buyer orders goods to be fit for a special purpose. In such cases it is clearly a question of contractual description (see § 2.3., supra) The Convention's second criterion, instead, is intended for the case where the buyer merely displays the intention to use the goods for a particular aim. The solution favourable to the buyer could be reached by way of contract construction, but the uncertainties regarding this problem in the national laws justified an explicit statement.

          2.5.3. - According to the Convention the fact that the buyer has informed the seller about his particular purpose is not relevant where the circumstances show that the buyer did not rely, or that it was unreasonable for him to rely on the seller's skill and judgement. This exception is in accordance with the common view that when the purpose for which the buyer intends to use the goods is apparent or has been made known to the seller, the buyer generally relies on the seller's skill and judgement in order to have goods fit for such a purpose.

The circumstances in which the buyer may not rely on the seller's skill and judgement cannot be specified in advance but must be ascertained case by case. In general, however, it can be said that it is unreasonable for the buyer to rely on a skill or [page 275] judgement capacity that is not common in the seller's trade branch.

          2.6.1. - The third criterion (c) requires the seller to deliver goods possessing the qualities of goods which the seller has held out to the buyer as a sample or model.

This rule has its precedent in Article 33(c) of ULIS. ULIS, however, did not obligate the seller to deliver goods conforming to the standards of a sample or model if he had submitted it without any express or implied undertaking that the goods would conform therewith.

The elimination of this reserve in the Convention is justified because the submission of a sample or a model involves by itself the seller's promise to provide goods possessing the same qualities as those shown to the buyer. Holding out a sample or a model is a concrete way for the seller to specify his offer. Without questioning the distinction between sale by sample or model and sale by description, it may be said that the submission of a sample or a model is a factual description and, therefore, a contractual way to determine the kind and quality of the goods the buyer is entitled to.

It follows that the reference to a sample or a model excludes the application of the examined criteria (a) and (b).

          2.6.2. - The seller is not bound to deliver goods totally conforming with a sample or model that has been presented with the intent to point out only some qualities of the goods. However, this intention has to be clearly expressed.

          2.6.3. - It is further possible that a seller might hold out the sample or the model only in order to give an approximate description of the goods offered to the buyer.

The approximate sample or model nevertheless binds the seller to deliver goods possessing the same qualities as the sample or the model, although slight differences may be tolerated.

          2.7.1 - According to the last criterion (d) the seller must deliver goods properly contained or packaged.

This provision, which has no antecedents in ULIS, is important because it points out that the delivery obligation includes [page 276] the seller's accessory duty to do what is ordinarily required in order to allow the buyer to receive the goods in satisfactory condition. A substantially similar notion is expressed by § 2-314 of the United States Uniform Commercial Code, which asserts that the goods must be adequately contained, packaged, and labeled as the agreement may require.

In the contracts of sale involving carriage of the goods it has always been understood that it is the seller's duty to provide for the proper packaging of the goods. The seller's obligation, however, is less acknowledged when the goods are to be handed over at the seller's place of business or where the goods are stocked, manufactured or produced (see Article 31(b)(c)). The Convention clearly implies that also. in these cases the goods have to be properly contained or packaged so as to allow the buyer to load and carry them away. In order to shift the burden of packing the goods from the seller to the buyer, there must be an unmistakable contractual clause to this effect.

          2.7.2. - In determining the manner in which the goods must be contained or packaged, one must look to the usual manner for such goods: i.e., the manner conforming with the standards normally observed in the practice of the seller's professional branch.

If the goods are differently contained or packaged from place to place, one must refer first to the usual manner in international trade, and second to the usual manner in the seller's place of business.

          2.7.3. - Not always is there a usual manner by which the goods are contained or packaged, specially if the goods to be delivered belong to a new kind of product. The Convention considers this eventuality stating that in absence of a usual manner the goods must be contatned or packaged in a manner adequate to preserve and protect them.

A manner is adequate when it is appropriate for normal circumstances. This idea may be found impliedly also in the above mentioned § 2-314 of the United States Uniform Commercial Code.

It may be noted that the way the goods are contained or packaged must be sufficient to preserve and protect the goods after they have been handed over by the seller to the carrier or [page 277] to the buyer. In the first case the goods are to be contained or packaged in a way adequate to endure the carriage (computing a foreseeable amount of delay) and last till their handing over to the buyer at their destination. If the seller knew or ought to have known of the possibility of a redirection or a redispatch of the goods (see Article 38(3)), the goods are to be contained or packaged in a way adequate to endure the carriage and last till the new destination.

When transportation is provided by the buyer, the goods must nevertheless be contained and packaged by the seller in a manner adequate with regard to their destination, if the seller knows or ought to know of such destination. This solution is consistent with the Convention's principle requiring the goods to be fit to the purposes expressly or impliedly made known to the seller. One of the buyer's purposes is indeed sending the goods to destination.

          2.8.1. - The last paragraph of Article 35(3) excludes the seller's liability under sub-paragraphs (a) to (d) of paragraph (2) for any lack of conformity if at the time of the conclusion of the contract the buyer knew or could not have been unaware of such lack of conformity.

The Convention states clearly that the buyer who knows or ought to know what kind of goods the seller will deliver, cannot ask for goods of better qualities and condition. The underlying principle of the rule is that the buyer who buys goods notwithstanding their notable or apparent defects is meant to have agreed to the seller's proposal as determined by the effective state of the goods.

The Convention presupposes, accordingly, that the seller's offer is expressly or impliedly related to the effective state of the goods, as it happens, first, in the sale of specific goods, i.e., goods which the parties have agreed upon at the time of the conclusion of the contract. If a reasonable opportunity has been given to the buyer to examine the goods, that means that the seller sells the goods as they are and that the buyer who agrees with the seller's proposal is satisfied with them.

          2.8.2. - The seller's proposal is intended to be related to the apparent state of the goods shown. Thus, the seller is liable, for [page 278] defects not known by the buyer and not reasonably discoverable by examining the goods.

The buyer is required to undertake the examination that is normal in his branch of trade according to the circumstances. Therefore, the buyer is not ordinarily required to undertake a special analysis of the goods through complex or sophisticated professional methods or to ask for technical expertise. It follows that the seller is responsible for hidden defects that need an unusual examination to be detected.

Under the same standard it is often sufficient for the buyer to examine a small part of the goods, without checking the entire amount he is intending to buy. The buyer may reasonably expect that the defects not discovered in the examined part do not affect the rest of the goods.

          2.8.3. - The seller is not liable for defects of the goods directly or indirectly resulting from their description. Nor is he liable for the defects the buyer should reasonably expect. Circumstances from which the buyer should reasonably deduce that the goods do not conform with the Convention standards are, for example: (a) the seller had usually sold in the past to the buyer poor quality goods without complaints from the buyer; or (b) the price corresponds to the price generally paid for poor quality goods.

          2.9.1. - Under ULIS (Article 36), the seller's exclusion from liability if the buyer knew or should have known of the lack of conformity, did not cover the case of sale by sample or model. This limitation, however, was criticized as inexplicable and inconsistent with the wide formulation of the rules (see ULIS Articles 33(1)(f), 36) which excluded the seller's liability when in general the buyer knew or ought to have known that the goods did not possess the qualities and characteristics expressly or impliedly contemplated by the contract (see STUMPF, in DÖLLE, Einheitliches Kaufrecht, 279).

The Convention has wisely suppressed this limitation. The examination of a sample or a model does not enable the buyer to rely on apparent qualities he knows in reality not to be present in the goods he is going to buy.

          2.9.2. - The fact that the buyer knows or ought to know about a lack of conformity of the goods does not exclude the seller's [page 279] liability when the goods do not conform to the quantity or quality expressly promised by the seller. Indeed, Article 35(3) makes clear that the lack of conformity the buyer knows or ought to know excludes the seller's liability «under sub-paragraph (a) to (d) of the preceding paragraph»: i.e., where there is a lack of conformity according to the Convention's criteria.

Though one author (see ENDERLEIN, in ENDERLEIN-MASKOW-STARGARDT, Kommentar, 86) hints at the possibility of extending this rule analogously to the lack of conformity covered by paragraph (1), such extension is not justified. On the contrary the distinction must be kept clear between lack of conformity according to the Convention's criteria (or usages), and according to express contractual provisions (an implied provision about the quality of the goods is not conceivable if the buyer knows or ought to know that the goods do not have such quality).

This distinction does not introduce different rules "based on different types of lack of conformity (as criticized by MERTENS and REHBINDER, Internationales Kaufrecht, 180, in their comment on the above-mentioned Article 36 of ULIS, which, beside the case of sale by sample or model, did not cover the cases where the seller delivered goods non-conforming to the quantity «he contracted to sell» or «goods which are not those to which the contract relates or goods of different kind»). When there is a specific contractual provision, the seller's liability is instead based on the principle that the party may always rely on the engagements undertaken by the other party. The fact that the buyer knows or ought to know of the real condition of the goods is irrelevant when there is a specific contractual provision because it does not change the content of what the seller has promised to the buyer nor can it free him from his promise.

3. Problems concerning the provision

     3.1. - Article 35 does not contain an express provision imposing on the seller a duty to deliver goods of average quality.

According to the Canadian amendment (see § 1.5., supra) the Convention should have specified that the goods are reasonably fit for the purposes for which goods of the same description would ordinarily be used if: [page 280]

(a) they are of such quality and in such condition as it is reasonable to expect having regard to any description applied to them, the price, and all other relevant circumstances; and

(b) if the goods, in the case of fungible goods, are of fair average quality within the description ... [and] ... are of an even kind, quality and quantity within each unit and among all units involved ...

Later, this amendment was withdrawn leaving open the question if the seller, even without an apposite contract clause, is bound to deliver goods of average quality.

Some domestic legislations have solved the problem stating expressly that the seller of unascertained goods has to provide for goods of fair quality. The Civil Code of the Federal Republic of Germany (§ 243), for instance, prescribes that in general the obligations to deliver unascertained goods are to be performed through goods of average kind and quality.

Similarly, the United States Uniform Commercial Code requires that the goods be merchantable; i.e., that the goods must be of a fair average quality (§ 2-314).

However, in other domestic legislations, unless otherwise agreed, the seller may deliver goods of lower than average quality. It is significant, in this regard, that according to common law judges the seller has to deliver merchantable goods, but merchantable does not mean of good, or fair, or average quality (English authors mention Taylor v. Combined Buyers Ltd, New Zealand University Law Review [1924], 627, where it is clearly stated that «[g]oods may be of inferior or even bad quality but yet fulfil the legal requirement of merchantable quality. For goods may be in the market in any grade, good, bad, or indifferent, and yet all equally merchantable. On a sale of goods there is no implied condition that they are of any particular grade or standard». This position is further explained in the decision assuming that merchantable means that the goods are of such quality as to be saleable in the market under the description made in the contract).

In the absence of an express Convention provision it is not possible to determine once and for all the precise degree of quality to which the buyer is entitled. It must be said, however, that the quality can be more or less good within a tolerable degree, at least not conspicuously below the standard reasonably expected according to the price and other circumstances. [page 281]

This problem may not arise if the dispute goes to arbitrators, who are generally familiar with what is acceptable in the international trade concerns.

     3.2. - Another question not expressly dealt with by Article 35 relates to the seller's duty to provide goods meeting the mandatory conditions required by the national law of the place where the goods are to be sent or used.

The solution cannot be properly deduced from the rule of Article 42(1), which states that the seller must deliver goods which are free from any right or claim of a third party based on industrial property or other intellectual property under the, law of the State where the goods will be resold or otherwise used (if it was contemplated by the parties that the goods would be resold or otherwise used in that State) or under the law of the State where the buyer has his place of business. This rule does not concern our problem. The existence of rights and claims of a third party is indeed normally relevant because the seller fails to transfer the full property of the goods and the buyer is therefore deprived, totally or partially, of what he is surely entitled to under the contract and the Convention.

A duty to provide goods conforming with the special requirements of another country's law, instead, would be a special condition that would demand goods different from those of normal fitness and further would require that the seller possess a knowledge of the acts of foreign authorities that he usually does not need.

Under some domestic laws the seller would not be liable in these circumstances (see e.g., the English case Sumner Permain v. Webb, Court of Appeal [1922] 1 King's Bench 55). Accordingly, an International Chamber of Commerce comment has stressed that the seller cannot be responsible for the non-conformity of the goods with administrative regulations in the buyer's country. In the opinion of the International Chamber of Commerce such non-conformity would not touch on the purpose for which they are ordinarily used and the question whether they would be fit for the particular purpose of being used in the buyer's country would have to be answered by application of paragraph (1)(b) (Official Records, I, 77).

Under the Convention the right solution has to be found case by case according to the circumstances. In general terms it may be [page 282] said that the fact that the buyer makes known to the seller the country where the goods are to be used, is insufficient to bind the latter to deliver goods meeting the administrative and statutory requirements of that country. The seller's liability arises, on the contrary, when, according to the circumstances, the goods are reasonably expected to conform with the foreign legal requirements as, for example, when (a) the foreign legal requirements are the same as those of the seller's country, or when (b) the seller knows or ought to know the legal requirements of the buyer's country having in the recent past sold goods conforming with them, or when (c) the buyer had made clear he wanted goods fit to be used in his or in another country. Even in the last case, however, there is no liability if it were unreasonable for the buyer to rely on the seller's judgement.

Similar conclusions may be drawn about the seller's duty to deliver goods contained or packaged in the manner legally required under the law of the State where they must be sent. [page 283]


Pace Law School Institute of International Commercial Law - Last updated January 28, 2005
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