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Interpreting or supplementing Article 35 of the CISG by
using the UNIDROIT Principles of International Commercial
Contracts and the Principles of European Contract Law

René Franz Henschel [*]
November 2004

a. The provisions in the CISG on the conformity of goods to the sales contract are included in Article 35.[1] This article is in three sections, of which the first, the conformity of the goods to the terms of the contract, consists of the primary rule for assessing lack of conformity. Only where the parties have not agreed otherwise will the secondary rule in Article 35(2) apply, laying down a number of positively expressed assumptions about the contractual requirements for the goods. Finally, Article 35(3) contains an exception to the seller's liability for some lack of conformity of goods, where the buyer knew or could not have been unaware of the lack of conformity.

b. Unlike the CISG, the UNIDROIT Principles and the PECL cover not only sales contracts, but also other types of contracts, e.g., contracts of service. To provide maximum flexibility, and to facilitate future development of the two sets of principles, the fundamental rules regarding the conformity of performance have been described in more general terms. In Article 7.1.1. of the UNIDROIT Principles, non-performance is defined as a failure by a party to perform any of its obligations under the contract, including defective performance or late performance. The same approach is taken in PECL, see Article 8:101(1)[2] with comment A.[3] Although the UNIDROIT Principles and the PECL do not have any rules which directly resemble CISG Article 35, several articles may be used to interpret or supplement the said article. In the following paragraphs, it will be analyzed in which manner Articles in the UNIDROIT Principles and the PECL may be used to interpret or supplement the different parts of CISG Article 35, in particular Article 35(1), Article 35(2)(a) and Article 35(2)(b).

c. According to Article 35(1) of the Convention, 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. This provision is the primary rule on the assessment of the conformity of goods to the contract, and it covers all kinds of defects except defects of title which are dealt with under CISG Article 41, and defects in intellectual property rights, cf. CISG Article 42. The rule establishes that the assessment of conformity depends primarily on what the parties have agreed. This is also emphasized by the Commentary prepared by the UNCITRAL Secretariat, which states that the agreement between the parties is the primary source for assessing conformity.[4] As mentioned above, the primary role of the contract is also emphasized in the UNIDROIT Principles Article 7.1.1 and the PECL Article 8:101 with comment A.

d. Under the CISG, the establishment of the specific content of a contract is based on the interpretation of the agreement between the parties, cf. CISG Article 8 and Article 9. Here, the articles on interpretation in the UNIDROIT Principles chapter 4 and the PECL chapter 5 are of relevance to interpret or supplement CISG Article 8 and Article 9, and therefore also for the interpretation of the conformity of the goods to the contract in CISG Article 35.[5]

e. If the parties have not agreed otherwise, the secondary rule in Article 35(2) applies. According to Article 35(2)(a) of the Convention, cf. Article 35(2), except where otherwise agreed, goods do not conform with the contract unless they are fit for the purposes for which goods of the same description would ordinarily be used. With these default rules, the parties do not need to specify the purpose, as long as the goods are to be used for their ordinary purposes. This rule is by some considered the most important rule in practice in Article 35(2),[6] expressing one of the clearest and most fundamental rules about the seller's implied obligation to provide goods which conform to the contract.[7] This rule is so widely accepted,[8] that Article 35(2)(a) can probably be considered as a codification of a basic principle of international sales law.

f. In relation to Article 35(2)(a), the general assumption is that, among the ordinary purposes of goods, that they should be capable of being resold.[9] In connection with the purpose that goods should be capable of being resold, there is a dispute about whether, in order to be fit for this purpose, they should be of average quality or merely of merchantable quality, so that goods of below average quality but still merchantable may also be said to conform to the contract.[10] During the drafting negotiations of the CISG, a Canadian proposal that goods should be of average quality was withdrawn, since several common law countries did not support it.[11] The practice in English law was of particular importance, as under English law goods that were of below average quality could be considered as conforming to the contract as long as they were merchantable.[12] As suggested by Schwenzer,[13] this argument, which is rooted in the practice of the English courts, has been somewhat weakened since the English Sale of Goods Act has been amended so it now requires goods to be of "satisfactory quality", which is decided on the basis of the expectations of a reasonable buyer.[14] In Schwenzer's opinion, this means that the two viewpoints will become closer to one another, which seems probable.

g. In the famous Mussels case,[15] the German Federal Supreme Court declined to decide this question, on practical grounds, since no evidence had been given as to whether the cadmium levels in the mussels were higher than in corresponding mussels from New Zealand.[16] However, the court did say that, even if it was assumed that the goods should be merchantable, this did not mean that the mussels did not conform to the contract, as the seller could not be expected to know the special public law regulations on product safety, public health, etc., in the destination State.

h. In this connection, it should be relevant to consult both the UNIDROIT Principles and the PECL. Article 5.1.6 of the UNIDROIT Principles provides: "Where the quality of performance is neither fixed by, nor determinable from, the contract a party is bound to render a performance of a quality that is reasonable and not less than average in the circumstances." The relevance of this article in the interpretation of CISG article 35(2)(a) is supported by the illustration used in the comment to performance of average quality, which involves the sale of goods.[17] According to the comment to performance of a quality that is reasonable, the purpose of a reasonableness test is, that a party should not be able to perform what would be an average quality in the buyers market, if this quality is most unsatisfactory in the market of the seller.[18] There is still no available case law which makes use of Article 5.1.6.[19]

i. Similar provisions apply under PECL Article 6:108: "If the contract does not specify the quality, a party must tender performance of at least average quality." In the comments to this Article it is stressed that the various factors mentioned in the Article on reasonableness (Article 1:302) should be taken into account when applying Article 6:108. Therefore, factors such as the normal price for the same performance as the performance in question, the contract itself, previous dealings between the parties, and trade usages should be taken into consideration.

j. In connection to this, the view of Bianca on Article 35(2)(a) can also be given:[20] "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 reasonable expected according to the price and other circumstances." Whether goods shall be of average quality, or of higher or lower quality will therefore usually be decided on the basis of other factors, for example, the price of the goods.[21]

k. This view is supported by a recent arbitral award on the CISG, in which the arbitrators refused to use either the "average quality test" or the "merchantability test".[22] Instead, the test of a reasonable quality was used, as this was considered to be a truly uniform solution to the problem.[23] According to the present author, this solution is in conformity with the UNIDROIT Principles Article 5.1.6., which explicitly refers to a reasonable quality that is not less than average in the circumstances. In this way, a rigid, mathematical average level is avoided an instead factors like the price and expectations of the parties should be taken into consideration. The same solution could be reached using PECL Article 6:108 with comments, although the wording of the Article seems a bit more inflexible.

l. The conclusion is, that the Arbitral Tribunal could have supported its findings by a reference to the UNIDROIT Principles Article 5.1.6. However, the solution in the PECL seems to favor more the average quality test, although the corresponding comment to that provision softens this approach considerably. At the same time, it should not be forgotten that if both parties to a sales contract come from the same legal culture, this might indicate that the parties' reasonable expectations[24] point towards either the "average quality test" or the "merchantable quality test", although the supporters of the last mentioned test seems to decrease in number.

m. As stated in Article 35(2), cf. Article 35(2)(b), unless otherwise agreed by the parties, goods do not conform with the contract unless they are fit for any particular purpose expressly or impliedly made known to the seller at the time of the conclusion of the contract. The rule in Article 35(2)(b) can be derogated from if the circumstances show that the buyer did not rely on, or that it was unreasonable for him to rely on, the seller's skill and judgment. Reasonableness is a general principle of the CISG,[25] and as mentioned above, it should be relevant to consult the concepts of reasonableness in both the UNIDROIT Principles and the PECL[26] in this connection.

n. As mentioned above, in the Mussels case, the court did say that, even if it was assumed that the goods should be merchantable, this did not mean that the mussels did not conform to the contract, as the seller could not be expected to know the special public law regulations on product safety, public health, etc., in the destination State. In general, the seller should not be obliged to deliver goods which conform with special law requirements in the buyer's country, unless other circumstances indicate otherwise.[27] This has been confirmed in other cases, including decisions from common law jurisdictions.[28] Furthermore, the UNIDROIT Principles Article 6.2.14(a) seems to support this view. It follows from the said Article, that where the law of a State requires a public permission affecting the validity of the contract or its performance and neither that law nor the circumstances indicate otherwise, if only one party has its place of business in that State, that party shall take the measures necessary to obtain the permission. In the comment to this article it is said, that the term "public permission" should be given a broad interpretation, and it includes all permission requirements established pursuant to a concern of a public nature, such as health, safety, or particular trade policies. Thus, the findings of the German Supreme Court and later decisions could be supported by a reference to the principle in the UNIDROIT Principles Article 6.2.14(a), too.

o. The question of mistake and of mistaken assumptions is closely linked to the issue of conformity of goods to the contract. According to ULIS Article 34, a buyer could not make claims on the basis of other legal remedies in connection with the conformity of goods, which was primarily directed against objections to validity on the basis of mistake. The prevailing view on Article 35, in theory, is that it ought to displace or exhaust national rules on validity, cf. also the principle of the functionally adequate solution.[29] This means that the buyer will not be able to get around CISG Article 39 and the rules on making complaints.[30] However, this does not apply if there is a mistake on matters other than the conformity of the goods to the contract, since then the matter will likely be dealt with under national law.[31]

p. However, this view is resisted in some jurisdictions, where a buyer is not regarded as being prevented from relying on the rules on validity when there is a mistake as to the characteristics of the goods, etc. This is the prevailing view in France, Belgium, Italy, Spain, Austria and Switzerland.[32] For example, in France and in Austria the same period is allowed for making complaints about lack of conformity of goods to the contract under sale of goods law as for objections under the rules on validity of contracts, which is an attempt to avoid a buyer making objections to the validity of the contract after several years, when some mistake is identified.[33] In Portugal, each case of complaint about lack of conformity of the goods is treated as a complaint about a mistake, so the doctrine of lack of conformity is wholly subordinate to the doctrine of contractual validity.[34]

q. In other jurisdictions the rules on lack of conformity must be regarded as exhaustive special regulations, so that claims of invalidity due to mistake must be considered as excluded. For example, this is the prevailing view in Germany,[35] while in Denmark there is de facto disagreement,[36] and the new European Directive on consumer sales does not take a view on the question.[37] The practice of the courts when interpreting CISG Article 35 seems to be split, depending on which tradition is followed in national law and the factual circumstances of the case.[38]

r. Altogether, the conclusion must be that courts may be expected to reach divergent decisions, depending on the legal tradition of the jurisdiction in question, and the extent to which a dynamic or a restrictive approach is used. However, there seems to be a development towards acknowledging the primacy of Article 35, even in jurisdictions which have traditionally used a restrictive interpretation, cf. the decision of the Austrian Supreme Court of 13 April 2000.[39]

s. This development could be supported by a reference to the UNIDROIT Principles Article 3.7, which maintains the principle of the exhaustion of rights: "A party is not entitled to avoid the contract on the ground of mistake if the circumstances on which that party relies afford, or could have afforded, a remedy for non-performance." In the Commentary on this article,[40] the following example (mutual mistake)[41] is given of the application of this rule: "A, a farmer, who finds a rusty cup on the land sells it to B, an art dealer, for 100,000 Austrian schillings. The high price is based on the assumption of both parties that the cup is made of silver (other silver objects had previously been found on the land). It subsequently turns out that that the object in question is an ordinary iron cup worth only 1,000 schillings. B refuses to accept and to pay for it on the ground that it lacks the assumed quality. B also avoids the contract on the ground of mistake as to the quality of the cup. B is entitled only to the remedies for non-performance."

t. However, according to PECL Article 4:119, a party which is entitled to a remedy under the validity chapter in circumstances which afford that party a remedy for non-performance may pursue either remedy. This reveals a striking difference between the solutions given in the UNIDROIT Principles and the PECL.

u. Neither the UNIDROIT Principles nor the PECL seems to contain any provisions which might help in interpreting or supplement the rest of CISG Article 35, (Art. 35(2)(b)-(d) (the conformity of goods according to special purpose, sample or model and the packaging of the goods) or CISG Article 35(3) (the buyer's knowledge of the non-conformity)), although the general rules on the interpretation of the contract in the UNIDROIT Principles and the PECL still have to be taken into consideration, cf. para d. above.

[See also commentary by the author on this subject in: John Felemegas ed., An International Approach to the Interpretation of the United Nations Convention on Contracts for the International Sale of Goods (1980) as Uniform Sales Law, Cambridge University Press (2006) 166-174]


FOOTNOTES

* Assistant professor (Law of Obligations), Aarhus School of Business. The author expresses his sincere thanks to Professor Albert Kritzer, Executive Secretary of the Institute of International Commercial Law, Pace University School of Law, Dr. John Felemegas, Lecturer, Faculty of Law, University of Technology, Sydney, and Associate Professor Hans Henrik Edlund, Aarhus School of Business, for reviewing a prior version of this Article.

1. See Henschel, R.F., Conformity of Goods in International Sales. An analysis of article 35 in the United Nations Convention on the International Sale of Goods (CISG) (forthcoming, Copenhagen, 2005); Kruisinga, S., (Non-)Conformity in the 1980 UN Convention on Contracts for the International Sale of Goods: a uniform concept? (2004); Schwenzer, I. in Schlechtriem, P. & Bacher, K.(eds.), Kommentar zum Einheitlichen UN-Kaufrecht 3rd ed. (München, 2000), Art. 35; Schlechtriem, P., Einheitliches Kaufrecht und nationales Obligationenrecht (Baden-Baden, 1987), Art. 35; Bianca, C.M. & Bonell, M.J., Commentary on the International Sales Law (Milan, 1987), Art. 35; Honnold, J.O., Uniform Law for International Sales under the 1980 United Nations Convention (The Hague, 1999); Kritzer, A., Guide to the Practical Application of the 1980 United Nations Convention on Contracts for the International Sale of Goods (Deventer, 1994); Bernstein, H. & Lookofsky, J., Understanding the CISG Europe 2nd ed.(The Hague, 2003), p. 74 et seq.; von Staudinger, J., Kommentar zum Bürgerlichen Gesetzbuch mit Einführungsgesetz und Nebengesetzen: Wiener UN-Kaufrecht (CISG) (Berlin, 2000), Art. 35; Ramberg, J. & Herre, J., Internationella köplagen (CISG) (Stockholm, 2001), Art. 35; Bridge, M., The International Sale of Goods. Law and Practice (Oxford, 2000); Achilles, W., Kommentar zum UN-Kaufrechtsübereinkommen (CISG) (Neuwied, 2000), Art. 35; Enderlein, F. & Maskow, D., International Sales Law (New York, 1994), Art. 35, also available online at <http://cisgw3.law.pace.edu/cisg/biblio/enderlein.html#art35>; Audit, B., La vente internationale de machandises (Paris, 1990), Article 35; Heuzé, V., La vente internationale de merchandises (Paris, 2000), Article 35; Bergem, J. & Rognlien, R., Kjøpsloven 1988 og FN-konvensjonen 1980 om internasjonale løsørekjøp (Oslo, 1995), Art. 35; Gomard, B. & Rechnagel, H., International Købelov (Copenhagen, 1990), Art. 35; Piltz, B., Internationales UN-Kaufrecht (München, 1993), Art. 35; Galston, N. M. & Smit, H., International Sales. The United Nations Convention on Contracts for the International Sale of Goods (New York, 1984), Art. 35; Herber, R. & Czerwenka, B., Internationales Kaufrecht (München, 1991), Art. 35; Bucher, E., Wiener Kaufrecht (Bern, 1991), Art. 35; Karollus, M., UN-Kaufrecht (Wien, 1991), Art. 35; Heilmann, S., Mängelgewährleistung im UN-Kaufrecht (Berlin, 1994); Veneziano, A., "Non Conformity of Goods in International Sales. A Survey of Current Caselaw on CISG", International Business Law Journal no. 1 (1997), p. 39-65; Poikela, T., "Conformity of Goods in the 1980 United Nations Convention on the International Sale of Goods", Nordic Journal of Commercial Law, No. 1, 2003, available at <http://www.njcl.fi/1_2003/article5.htm>; Henschel, R.F., "Conformity of Goods Governed by CISG Article 35: Caveat Venditor, Caveat Emptor and Contract Law as background Law and as a Competing Set of Rules", Nordic Journal of Commercial Law, No. 1, 2004, available at: <http://www.njcl.fi/1_2004/article2.htm>; Aue, J., Mängelgewährleistung im UN-Kaufrecht unter besonderer Berücksichtigung Stillschweigender Zusicherungen (Frankfurt A.M., 1989); Krüger, U., Modificierte Erfolgshaftung im UN-Kaufrecht (Frankfurt A.M., 1989); Su, X., Die vertragsgemäße Beschaffenheit der Ware im UNCITRAL-Kaufrecht im vergelich zum deutschen und chinesischen Recht (Münster, 1996); Ziegler, U., Leistungsstüringsrecht nach dem UN-Kaufrecht (Baden-Baden, 1995); Flesch, K., Mängelhaftung und Beschaffenheitsirrtum beim Kauf (Baden-Baden, 1994); Zeller, B., Methodology for the Interpretation and Application of the United Nations Convention for the International Sale of Goods (Melbourne, 2003) available at <http://cisgw3.law.pace.edu/cisg/biblio/4corners.html>; Felemegas, J., "The United Nations Convention for the International Sale of Goods: Article 7 and Uniform Interpretation", Pace Review of the Convention on Contracts for the International Sale of Goods (CISG), Kluwer Law International (2000-2001) 115-265 (New York, 2001), also available online at <http://cisgw3.law.pace.edu/cisg/biblio/felemegas.html>.

2. Article 8.101(1) states: "Whenever a party does not perform an obligation under the contract and the non-performance is not excused under Article 8:108, the aggrieved party may resort to any of the remedies set out in chapter 9." See Lando, O. & Beale, H., The Principles of European Contract Law. Parts I and II. Combined and Revised (Hague, 2000), Article 8:101.

3. See Lando, O. & Beale, H., op. cit., in comment A: "Under the system adopted by the Principles there is non-performance whenever a party does not perform any obligation under the contract. The non-performance may consist in a defective performance or in a failure to perform at the time performance is due, be it a performance which is effected to early, too late or never" (the second sentence is omitted by this author).

4. See Honnold, J.O., Documentary History of the 1980 Uniform Law for International Sales (Deventer, 1989): Secretariat Commentary to Article 35(1) (Section 33(1) of the Commentary): "Paragraph (1) states the standards by which the seller's obligation to deliver goods which conform to the contract is measured. The first sentence emphasizes that the goods must conform to the quantity, quality and description required by the contract and must be contained or packaged in the manner required by the contract. This provision recognizes that the overriding source for the standard of conformity is the contract between the parties. The remainder of paragraph (1) describes specific aspects of the seller's obligations as to conformity which apply except where otherwise agreed." Comment 4. The Secretariat Commentary is also available online at <http://cisgw3.law.pace.edu/cisg/text/secomm/secomm-35.html>.

5. For an analysis of the connection between Article 35 and Articles 8 and 9, see Henschel, R.F., Conformity of Goods in International Sales. An analysis of article 35 in the United Nations Convention on the International Sale of Goods (CISG), chapter 3.

6. Cf. Lookofsky, J., Understanding the CISG in Scandinavia, 2nd ed. (Copenhagen, 2002), p.88.

7. Cf. Honnold, J.O., op. cit., p. 255.

8. Cf. Schwenzer, I., in Schlechtriem, P., op. cit., p 377, note 38.

9. Cf. Schwenzer, I. in Schlechtriem, P., op. cit., p. 377, pt. 14; Veneziano, A.: op. cit., p. 44.

10. Those in favour of the average quality standard include: Herber, R. in Herber, R. & Czerwenka, B., op. cit., p. 164, pt. 4; Ziegler: op. cit., p. 70; Su: op. cit., p. 28. Those who are undecided or leave the question open include: Schwenzer, I. in Schlechtriem, P., op. cit., p. 378, pt. 15; Bianca, C.M., in Bianca, C.M. & Bonell, M.J., op. cit., p. 281; Honnold, J.O., Uniform Law for International Sales under the 1980 United Nations Convention, p. 255 et seq., pt. 225; Ramberg, J. in Ramberg, J. & Herre, J., op. cit., p. 233 et seq., pt. 4; Achilles: op. cit., p. 95, pt. 6; Lookofsky J., Understanding the CISG in Europe, 2nd ed., p. 83 et seq..

11. Cf. Honnold, J.O., op. cit., p. 120 et seq.; Bianca, C.M., op. cit., p. 271, pt. 1.5., p. 274, pt. 2.5.1, and p. 280 et seq., pt. 3.1.

12. For a general discussion of this, see Hyland, T., in Schlechtriem, P., Einheitliches Kaufrecht und nationales Obligationenrecht, p. 316 et seq..

13. Schwenzer, I. in Schlechtriem, P., op. cit., p. 378, pt. 15.

14. Cf. Bridge, M.: op. cit., p. 81.

15. Germany 8 March 1995 Bundesgerichtshof [Supreme Court], case presentation including English translation available at <http://cisgw3.law.pace.edu/cisg/cases/950308g3.html>; see also the Unilex database at <http://www.unilex.info/case.cfm?pid=1&id=108&do=case>.

16. In one instance, the average quality test has been adopted in favour of the merchantability test, see Germany 15 September 1994 Landgericht [District Court] Berlin, case presentation including English translation available at <http://cisgw3.law.pace.edu/cisg/cases/940915g1.html>; see also Unilex at <http://www.unilex.info/case.cfm?pid=1&id=218&do=case>.

17. In the Commentary to UNIDROIT Principles 2004 the following example is given at p. 136: "A buys 500 kgs. of oranges from B. If the contract says nothing more precise, and no other circumstances call for a different solution, those oranges may not be of less than average quality. Average quality will however suffice unless it is unreasonable defective."

18. Cf. the Commentary to Article 5.1.6 of the UNIDROIT Principles 2004, at p. 137: "A company based in country X organises a banquet to celebrate its 50th anniversary. Since the cuisine in country X is mediocre, the company orders the meal from a renowned restaurant in Paris. In these circumstances the quality of the food provided must not be less than the average standards of the Parisian restaurant; it would clearly not be sufficient simply to meet the average standards of country X." One may assume that in such cases the price will often be decisive.

19. Cf. <http://www.unilex.info> as of 1 November 2004.

20. Bianca, C.M., in Bianca, C.M. & Bonell, M.J., op. cit., p. 281, pt. 3.1.

21. Cf. Achilles, W., op. cit., p. 95.

22. See Netherlands 15 October 2002 Netherlands Arbitration Institute, Case no. 2319, case presentation including English translation available at <http://cisgw3.law.pace.edu/cisg/cases/021015n1.html>; see also Unilex at <http://www.unilex.info/case.cfm?pid=1&id=836&do=case>.

23. Cf. the award, paragraphs 117 and 118:

[117] "On the basis of the arguments above, the Tribunal holds that neither the merchantability test nor the average quality test are to be used in CISG cases and that the reasonable quality standard referred to above (see No. 71) is to be preferred."

[118] "The choice in favour of a test of reasonable quality is supported by the authors and the case cited above in No. 71 as well as by those scholarly writings that have rejected the average quality test. It is compatible with the travaux préparatoires since the Canadian amendment does not exclude an interpretation in favour of reasonable quality since it provided that under article 35(2)(a) CISG goods are fit for their ordinary use if it is reasonable to expect a certain quality having regard to price and all other relevant circumstances. Also, any such interpretation complies with article 7(1) CISG imposing to take into account the international character of CISG and its reluctance to rely immediately on notions based on domestic law. Furthermore, the interpretation preferred by the Arbitral Tribunal is consistent with article 7(2) CISG, which primarily refers to the general principles of CISG as possible gap fillers. In this respect, it may be noted that CISG often uses open-textured provisions referring to reasonableness (e.g., articles 8, 18, 25, 33, 34, 37, 38, 39, 43, 44, 46, 48, 49, 65, 72, 75, 77, 79, 86, 87 and 88). Finally, even if one were to rely on domestic law by virtue of article 7(2) CISG, Dutch law would be applicable and would also impose a standard of reasonable quality."

24. Cf. CISG Article 8.

25. Cf. Albert Kritzer: Reasonableness (Editorial remarks on reasonableness), available at <http://cisgw3.law.pace.edu/cisg/text/reason.html#def> with further references, and PECL Article 1:302 with comments in Lando & Beale: PECL, p. 126 et seq. See also Guillaume Weiszberg: Le "Raisonnable en Droit du Commerce International (Paris, 2003), available at the <http://cisgw3.law.pace.edu/cisg/biblio/Reasonableness.html>, and the reasoning in the award from the Netherlands Arbitration Institute, Case no. 2319, above note 23.

26. Cf. PECL Article 1:302, with comments in Lando & Beale: Ibid.

27. Whether the decision would have been different if, for example, the seller knew of the public health regulations in the buyer's state, or if the buyer could have assumed that the seller either knew or ought to have known of these regulations, perhaps because

(i) the seller had a branch in the buyer's State,
(ii) the parties had had a long-term trading arrangement,
(iii) the seller had regularly exported to the buyer's State, or
(iv) the seller had marketed his goods in the buyer's State,

was according to the German Supreme Court irrelevant in this case, as the buyer had not asserted any of these circumstances. Compare with CISG Article 42 on industrial property or other intellectual property.

28. See relevant case law:

    -     United States 17 May 1999 Federal District Court [Louisiana] (Medical Marketing v. Internazionale Medico Scientifica), case presentation available at <http://cisgw3.law.pace.edu/cisg/cases/990517u1.html>; see also Unilex at <http://www.unilex.info/case.cfm?pid=1&id=360&do=case>;
    -     Spain 3 October 2002 Audiencia Provincial [Appellate Court] Pontevedra, case presentation available at <http://cisgw3.law.pace.edu/cisg/cases/021003s4.html>; see also Unilex at <http://www.unilex.info/case.cfm?pid=1&id=895&do=case>;
    -     Spain 2 March 2000 Audiencia Provincial [Appellate Court] Granada, case presentation including English translation available at <http://cisgw3.law.pace.edu/cisg//cases/000302s4.html>; see also Unilex at <http://www.unilex.info/case.cfm?pid=1&do=case&id=889&step=Keywords>;
    -     Germany 21 August 1995 Landgericht [District Court] Ellwangen , case presentation including English translation available at <http://cisgw3.law.pace.edu/cisg/cases/950821g2.html>; see also Unilex at <http://www.unilex.info/case.cfm?pid=1&id=164&do=case>;
    -     Germany 29 January 2004 Oberlandesgericht [Appellate Court] Frankfurt am Main, case presentation including English translation available at <http://cisgw3.law.pace.edu/cisg/cases/040129g1.html>; see also Unilex at <http://www.unilex.info/case.cfm?pid=1&id=970&do=case>;
    -     Australia 17 January 2003 Supreme Court of Western Australia (Ginza Pte Ltd v Vista Corporation Pty Ltd), case presentation available at <http://cisgw3.law.pace.edu/cisg/cases/030117a2.html>; see also Unilex at <http://www.unilex.info/case.cfm?pid=1&id=961&do=case>;
    -     Austria 13 April 2000 Oberster Gerichtshof [Supreme Court]; caser presentation including English translation available at <http://cisgw3.law.pace.edu/cases/000413a3.html>; see also Unilex at <http://www.unilex.info/case.cfm?pid=1&id=687&do=case>.

29. Cf. Ferrari, F., in Schlechtriem, P., Kommentar zum Einheitlichen UN-Kaufrecht (CISG), p. 97, pt. 4; Honnold, J.O., op. cit., p. 261 et seq.; Ramberg, R. in Ramberg, R. & Herre, J., op. cit., p. 112; Achilles, W., op. cit., p. 19; Flesch, K., op. cit., p. 140 et seq., especially at pp. 156-159; Heilmann, J., op. cit., p. 146, though here the view is that only the buyer's mistake is covered, not the seller's; Zeller, B., op. cit., p. 194 et seq.; but opposed to this, see Gomard, B. & Rechnagel, H., op. cit., p. 38, where it is argued that national law should apply, and correspondingly Gstoehl, M., Das Verhältnis von Gewährleistung nach UN-Kaufrecht und Irrtumsanfechtung nach nationalem Recht (Zeitschrift für Rechtsvergleichung, Internationales Privatrecht und Europarecht, 1998/1, p. 1 et seq.).

30. Compare with Flesch, K., op. cit., p. 151 et seq., where, by referring to the two-year rule in Article 39 as a general principle, cf. Article 7(2), it is argued that there is no scope for national rules on validity of contracts which obviate this Convention principle. This is indeed a dynamic interpretation of the Convention which not everybody (including the present writer) will support.

31. Cf. Switzerland 24 August 1995 Handelsgericht [Commercial Court] St. Gallen, where a buyer was unsure whether the agreement concerned the purchase of samples to a value of DM 500 or a full delivery to a value of SFr 90,000; case presentation is available at <http://cisgw3.law.pace.edu/cisg/cases/950824s1.html>; see also Unilex at <http://www.unilex.info/case.cfm?pid=1&do=case&id=162&step=Abstract>

32. Cf. Schwartze, A., Europäische Sachmängelgewährleistung Beim Warenkauf (Tübingen, 2000), p. 47 et seq.; Gstoehl, M., op. cit., p. 1 et seq.; Flesch, K., op. cit., p. 23 et seq..

33. Cf. Schwartze, A., op. cit., p. 50.

34. Cf. Schwartze, A., op. cit., p. 51 et seq..

35. With certain qualifications, cf. Schwartze, A., op. cit., p. 50 et seq.. In relation to CISG Article 35, cf. Germany 14 May 1993 Landgericht [District Court] Aachen, case presentation available at <http://www.cisg.law.pace.edu/cisg/cases/930514g1.html>, see also Unilex <http://www.unilex.info/case.cfm?pid=1&do=case&id=23&step=Keywords>.

36. Cf. Andersen, M.B. & Lookofsky, J., Lærebog i Obligationsret, p. 185 et seq.; see also Werlauff, E., Review of Lærebog i Obligationsret by Andersen, M.B. & Lookofsky, J. (Juristen October 2002, p. 307 et seq.) with reference to the decision of the Danish Supreme Court in the case against Dansk Eternit (Ugeskrift for Retsvæsen 2002, p. 249 et seq.), but refer also to Gomard, B., Obligationsret, Vol. 1, p. 133.

37. Cf. Schwartze, A.: Op. cit., p. 53 et seq.

38. See Germany 14 May 1993 Landgericht [District Court] Aachen, supra note 33, but compare that decision with the following decisions:

    -     Austria 20 March 1997 Supreme Court, case presentation available at <http://cisgw3.law.pace.edu/cisg/cases/970320a3.html>; see also Unilex at <http://www.unilex.info/case.cfm?pid=1&do=case&id=254&step=Keywords>;
    -     Hungary 1 July 1997 Fovárosi Biróság [Metropolitan Court] Budapest, case presentation available at <http://cisgw3.law.pace.edu/cisg/cases/970701h1.html>; see also Unilex at <http://www.unilex.info/case.cfm?pid=1&do=case&id=270&step=Keywords>;
    -     Switzerland 11 December 2000 Federal Supreme Court (Rhomberg GmbH v. Ruth & Walter Ott), case presentation including English translation available at <http://cisgw3.law.pace.edu/cisg/cases/001211s1.html>; see also Unilex at <http://www.unilex.info/case.cfm?pid=1&id=750&do=case> (although the case was about mutual mistake, and not unilateral mistake);
    -     Switzerland 22 December 2000 Federal Supreme Court (Roland Schmidt GmbH v. Textil-Werke Blumenegg AG), case presentation including English translation available at <http://cisgw3.law.pace.edu/cisg/cases/001222s1.html>; see also Unilex at <http://www.unilex.info/case.cfm?pid=1&do=case&id=729&step=Keywords>;
    -     Austria 13 April 2000 Supreme Court, case presentation including English translation available at <http://cisgw3.law.pace.edu/cisg/cases/000413a3.html>, referred to below.

39. Austria 13 April 2000 Supreme Court, case presentation including English translation available at <http://cisgw3.law.pace.edu/cisg/cases/000413a3.html>; see also Unilex at <http://www.unilex.info/case.cfm?pid=1&id=687&do=case>.

40. Cf. p. 103 et seq.

41. Compare this with the decision from the Swiss Federal Supreme Court of 22 December 2000, referred to above, note 36.


Pace Law School Institute of International Commercial Law - Last updated January 5, 2007
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