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Reproduced with permission of Camilla B. Andersen & Ulrich G. Schroeter eds., Sharing International Commercial Law across National Boundaries: Festschrift for Albert H. Kritzer on the Occasion of his Eightieth Birthday, Wildy, Simmonds & Hill Publishing (2008) 177-202

Creation of Rules in National and International Business Law:
A Non-National, Analytical-Synthetic Comparative Method

René Franz Henschel [*]

INTRODUCTION

The United Nations Convention on the International Sale of Goods, CISG, is the fruit of several decades of work in an attempt to harmonize international sales law. The seeds were sown as early as 1926, when UNIDROIT [1] was established, and the innovative comparative research of Ernst Rabel prepared the ground for future harmonized rules.[2] In 1964 t is work resulted in the adoption of ULIS [3] and ULF [4] (the Hague Convention ), which, however, failed to get the necessary international acceptance.[5] For this reason, a working group under the auspices of the newly founded United Nations Commission on International Trade Law, UNCITRAL,[6] was set up, and its task was to prepare a treaty that could get the wide international acceptance that had eluded the Hague Conventions. After more than 10 years of dedicated work, the CISG Convention was adopted by a diplomatic conference in Vienna in 1980, and this new fruit appealed to the taste of the discriminating audience. [page 177] Now 70 countries  -- representing several of the most important economies in the world  -- have ratified the CISG.[7]

However, the CISG has been widely criticized -- as a compromise between different legal traditions -- for not being real fruit but a peculiarity, a synthetic fruit, which will never have the same taste and texture as naturally grown fruits. This is likely to affect its functionality, i.e. forming a satisfactory framework for solving international sales law conflicts,[8] because the interpretation of the CISG is hampered by its mixed nature. The harmonization of the rules by reducing them to text does not directly lead to the harmonization of results.[9] Even though some commentators believe that the fruit was picked too early and therefore did not have sufficient time to ripen,[10] there is no doubt that the CISG has fairly strong genes that have affected the genes of other fruits, both nationally and internationally.

This article centres on the impact the CISG Convention has had on the national and international development of law. It focuses on the rules in Article 35 CISG, as the contents of the provision has gained wide recognition in a number of jurisdictions. However, this recognition has resulted in changes and alternative expressions of the legal contents of the provision. If the provision is used as a model for preparing national as well as international rules but is changed more or less extensively, the question is whether these rules have to be interpreted and applied in the same way as the Convention rules, or whether legislators intended the new rules to have different and separate contents and objectives. The following analysis will show that it is sometimes impossible to determine whether this was intended or not, and this leads to uncertainty as to the contents of the new rules. The thesis of this article is that these uncertainties can be avoided if the focus is shifted to the method [page 178] used in preparing the new rules. This thesis should be seen against the background that doubts appear to arise because it is uncertain whether legislators intended consolidation with the rules in the CISG, or whether they intended proper codification based on the rules of the CISG  -- difference that can explain the different interpretations of the contents of the new rules.

Consequently, the focus should be on the method used in preparing the new rules based on the CISG. It is obvious that the method must be based on comparative tools. The point of departure is a famous article by Clive M. Schmitthoff from 1968: The Unification or Harmonisation of Law by Means of Standard Contracts and General Conditions,[11] which article examines the development of international, common or uniform trade law regulations on the basis of what is described as a non-national, analytical-synthetic comparative method. This description of the method appears to be well suited to an analysis of the creation of rules based on the CISG, because there are many parallels between the creation of rules for the development of international uniform or harmonized law and the creation of rules based on international uniform or harmonized law. The following section will therefore focus on what Schmitthoff understands by a non-national, analytical-synthetic method and how this method can be used to illustrate the development of the legal rules inspired by Article 35 CISG.[12]

NON-NATIONAL ANALYTICAL-SYNTHETIC COMPARATIVE METHOD AND CREATION OF RULES

In his article Schmitthoff describes two preferred comparative methods used in developing common or uniform rules of trade law. The first method, called the consolidating method, aims to ascertain a common core of case law or applicable standard terms and express this core in a new rule. This synthetic method is particularly popular in developing international standard terms such as ICC Incoterms and ECE standard contracts.[13] In some cases, [page 179] Schmitthoff writes, the result of this method can even be described as synthetic law.[14]

The other method, called the codifying method, aims to compare the doctrines of different jurisdictions in order to establish a desirable legal norm and express this in a new rule de lege ferenda,[15]  i.e. an analytically based method. This method, Schmitthoff writes, is the one most often preferred by comparative scholars and is used, inter alia, in the preparation of international conventions.

At the same time, Schmitthoff observes that the elements from these methods are combined, for instance when protectable interests developed by case law affect and create balanced rules in standard terms such as ECE 188.[16] In the light of subsequent developments it is possible to add that this may also be the case when conventions such as the CISG apply solutions that some times disguise which doctrinal invention is definitely inherent in a rule, because the rule was a result of a compromise between different legal traditions and doctrinal approaches.[17] Similarly, if the rules in the CISG are [page 180] applied as a basis for new rules without specifying a clear analytical-doctrinal objective or rules are prepared in the practical spirit of compromise.

Schmitthoff ends his article from 1968 by concluding that, in future, we will be accustomed to working with this type of non-national, analytical- synthetic rules of law which will form the core basis of the harmonization or unification of the law of international trade.[18] The last 50 years have shown that Schmitthoff's prophecy has been fulfilled and his ideas are still important for understanding the methodological development of international trade law and how the results of this process  -- the rules of law  -- have to be understood and interpreted.[19] This applies to the development of international standard terms and contracts, which formed the core of Schmitthoff’s ideas, but also to the development of conventions such as the CISG, and to the development of national sales laws and the EU Sale of Consumer Goods Directive.

In order to make an operational analysis possible, the following discussion will focus on a single article of the CISG, namely Article 35, concerning the conformity of the goods and its impact on a selective sample of regional and domestic rules governing the law of sales; accordingly, the results of the analysis should be seen in this light.

This selection may of course be criticized inasmuch as the sample units represent a limited  -- and Eurocentric  -- selection of legislative rules, as the application of the comparative method in connection with such a selection [page 181] of rules is faced with many challenges and difficulties,[20] and as the analysis is mainly based on a non-exhaustive and rough outline of the non-national, analytical-synthetic comparative method. However, the purpose is not to carry out an in-depth, comparative analysis of all the questions that emerge in connection with this issue but merely to identify the central themes in the light of Schmitthoff's description of certain rules as having a non-national, analytical-synthetic comparative origin and the challenges this poses. The starting point of the analysis is that there is not one -- and only one -- real and true solution but that legal rules should chiefly be understood on the basis of the economic, cultural and social contexts of the specific jurisdiction in which the rules are rooted.[21] On the other hand, it might be possible that a rule can be criticised from a functional-legal point of view, i.e. whether the rule fulfils its intended purpose.[22] This will be discussed in more detail in the analytical sections below using the above-mentioned non-national, analytical-synthetic comparative method.

INTRODUCING CREATION OF RULES BASED ON ARTICLE 35 CISG IN NATIONAL AND INTERNATIONAL LAW

Article 35 CISG has been a significant source of inspiration for preparing the new Nordic sales laws,[23] for modernizing the contract law of a number of [page 182] other European [24] and East European [25] countries, for the new Chinese contract law,[26] and for the new common sales laws of the OHADA states,[27] to mention but a few. Recently, the provision has affected EU law as the rules on non-conformity in the Sale of Consumer Goods Directive are widely based on Article 35 CISG. The influence ranges from almost complete copying of the contents and systematic approach of the provision to almost complete rewriting and reorganization of the systematic approach. This challenges the extent of the influence Article 35 CISG has had on the end result.

The following section opens with a preliminary description of Article 35 CISG with reference to leading case law and scholarly writings, Section 5 will analyze the impact of the provision on the Finnish, Norwegian and Swedish sales laws, which were some of the first national acts to take the definition of non-conformity of the goods in Article 35 CISG as their source of inspiration; the Nordic legislators also extensively copied the contents and structural approach of the provision. Section 6 then addresses the EU Sale of Consumer Goods Directive, which was partly inspired by Article 35 CISG in order to create a common definition of non-conformity that applies to contracts of both a commercial nature and consumer contracts, Section 7 examines the transposition of this Directive in selected European countries in order to clarify the differences and similarities between the ways in which legislators have coped with the relationship with the CISG in terms [page 183] of systematic and doctrinal approaches -- what may be called creation of rules on the third tier. Section 8 sums up the analysis and the thesis of the non-national, analytical-synthetic comparative method and how it affects the development of law and puts them into a wider perspective.

CONFORMITY OF GOODS IN ARTICLE 35 CISG

Article 35 CISG contains a rather comprehensive and explicit provision on determining lack of conformity, which is a novelty in many jurisdictions. Moreover, Article 35(1) CISG lays down the principle that the contract of the parties forms the principal basis for determining any lack of conformity, which is emphasized by the words conforming of the goods. These words have already influenced the way in which the issue of conformity has been expressed in doctrinal terms in several jurisdictions, irrespective of whether the sales are domestic or international.[28] Except where the parties have agreed otherwise, the subsidiary provisions contained in Article 35(2) CISG apply setting forth a number of positively worded presumptions concerning the conformity of the goods. These rules may be regarded as aids in interpreting contracts and set out, at the same time, certain burden-of-proof rules. Finally, Article 35(3) CISG contains an exemption to the seller's liability for lack of conformity if the buyer knew or could not have been unaware of the lack of conformity.

A number of concepts and distinctions known from domestic law play no separate part in relation to determining the conformity of the goods under  [page 184] Article 35 CISG,[29] which must be interpreted autonomously and uniformly as provided by Article 7(1) CISG. This applies, inter alia, to the distinction between defective performance and aliud pro alio (delivery of goods completely different from those contracted for);[30] containers and packaging regarded as part of the concept of lack of conformity and not merely as an ancillary obligation;[31] and the delivery of lesser than agree quantities (shortage) treated as late delivery and not as lack of conformity.[32]

Article 35(2)(a) CISG provides that the goods only conform with the contract if they: 'are fit for the purposes for which goods of the same description would ordinarily be used' This rule seems to be generally accepted.[33] The basis for determining whether the goods are fit for ordinary use is the objective norm applied by the trade concerned. According o the predominant view found in case law and scholarly writings, the seller cannot be expected to know special rules relating to the ordinary use of the goods applicable only in the country of destination, e.g. rules on health, safety etc. Consequently, it seems reasonable generally to base the assessment on the norm applicable in the seller's country when the conformity of the goods has to be determined.[34]  [page 185] However, this principle does not apply to cases where the information about the norm in the country of destination is brought within the seller's sphere of influence, for instance if the seller is aware of the rules, if the parties have previously done business with each other and the seller knows the buyer's expectations, or if the seller has marketed the goods in the buyer's country.[35] A logical conclusion is that, as to ordinary use, the seller must be required to give the buyer any necessary instructions and directions so that the buyer will be able to use the goods for the purpose for which they would ordinarily be used.

Under Article 35(2)(b) CISG the seller must deliver goods that are fit for any particular purpose of the buyer which, based on an objective assessment of the buyer's statements and conduct, was expressly or impliedly made known to the seller at the time of conclusion of the contract. CISG case law has generally regarded this as a standard of negligence, i.e. the seller has a duty to know the buyer's purpose, as the seller has acted negligently. In other words, the buyer's expectations derive from any given conduct of the seller are protected. However, the protection the buyer is afforded by Article 35(2)(b) CISG is limited if the buyer did not rely, or if it was unreasonable for him to rely, on the seller's skill and judgment.

Article 35(2)(c) CISG contains the presumptive rule in contract law that the goods must possess the qualities of goods that the seller has held to the buyer as a sample or model. Articles 35(1) and 35(2)(d) CISG provide that the container and packaging of the goods are an integrated part of the conformity of the goods, i.e. part of the seller's obligation to render proper performance.

Finally, the provision in Article 35(3) ISG is a limited caveat emptor rule that applies in case of non-conformity. Whether or not the goods conform to the contract determines when the provision applies, which means that the delimitation of this provision as against Article 35(1) CISG is de facto difficult. Both case law and scholarly writings show Article 35(3) CISG applied directly in connection with Article 35(1) CISG with reference to doctrines of good faith and fair dealing, venire contra factum proprium as well [page 186] as observance of the principle of good faith in international trade; see Article 7(1) CISG.[36] However, there is no reason to have recourse to such principles before attempting to interpret the requirements as to the quality of the goods; see Article 35(1) CISG. Similarly, the application of a caveat emptor rule in international sales is limited, as the buyer is often unable to examine the goods prior to conclusion of the contract. Therefore, article 35(3) CISG does not impose on the buyer a general duty to examine the goods prior to the conclusion of the contract on his own initiative. If the buyer examines the goods prior to contract or in any other way may be deemed to have become aware of any lack of conformity, both case law and scholarly writings agree that the buyer could not have been unaware of the non-conformity if he had been grossly negligent.[37]

In the following section, the provisions on conformity of goods in the Nordic sales acts will be analyzed.

CONFORMTIY OF GOODS IN NORDIC SALES ACTS

The provisions on conformity of the goods in the Nordic sales acts [38] are almost identical to the provisions in Article 35 CISG except for a few important [page 187] details,[39] The Finnish,[40] Norwegian [41] and the Swedish [42] acts are based on Article 35 CISG.[43] The Danish legislators chose not to implement these changes, but have subsequently changed the definition of lack of conformity so that it corresponds to the Sale of Consumer Goods Directive. As the Sale of Consumer Goods Directive was partly inspired by Article 35 CISG  -- as shown below  -- traces from Article 35 have found their way into Danish sales law using EU law as a conduit. Section 17 of the Finnish Sales Act (köplagen), section 17 of the Norwegian Sales Act (lov om kjøp), and section 17 of the Swedish Sales Act (köplagen) substantially correspond to Article 35(1) and Article 35(2) CISG.

The provision of Article 35(3) CISG has found its way into section 20 providing, however, that if the buyer has any knowledge of the lack of conformity the prejudicial effects of this are not only limited to the implicit requirements contained in section 17(2) but apply to the entire provision, including the requirements in the contract between the parties. As indicated above, this corresponds with the case law on Article 35 CISG.

In addition, section 18(2) of the Nordic sales acts contains a rule on the seller's liability for marketing the goods, as the seller is generally liable for information provided by an earlier sales channel and manufacturers. As to the relation between section 18 and Article 35 CISG it is important to appreciate that CISG only applies to the contract between the buyer and the seller (see Article 4) so importance cannot generally be attached to material not [page 188] provided by the seller unless the seller knew or could not have been unaware that the buyer regarded this material as part of the terms of the contract; see Article 8 CISG. Accordingly, the CISG does not impose on the seller general liability for marketing the goods in contrast to section 18(2) of the Nordic sales acts;[44] see also Article 8(3) CISG and the CISG case law developed by the Austrian Supreme Court.[45] The Norwegian Sales Act also applies to international sales and is therefore problematic because it imposes on the seller a duty that does not follow from the Convention rules.[46] It is very doubtful whether foreign courts will apply this provision when Norwegian law governs the international contract of sale. Despite the substantial correspondence between the lack of conformity principle in Article 35 CISG and the Nordic sales acts, some significant differences should not be ignored.

CONFORMITY OF GOODS IN THE SALE OF CONSUMER GOODS DIRECTIVE

EU law recognises that CISG is part of the common European body of law, its acquis communitaire, and thereby also part of the development of future European contract law.[47] In framing the principle of non-conformity with the contract in the Sale of Consumer Goods Directive the European Parliament and the European Council --  just as the Nordic legislators were inspired by Article 35 CISG.[48] Like Article 35 CISG the Sale of Consumer Goods Directive [page 189] is based on the contract between the parties (see Article 35) as this is a common principle in the legal systems of Member States.[49] When something may be deemed agreed, as provided in Article 2(1), is left for the member States to decide according to their own contract law rules.[50] However, some uniform interpretation rules in the sale of consumer goods framework may be important for the interpretation of the contract between the parties  -- and also for the principle of non-conformity  -- see the Unfair Contract Terms Directive.[51] [page 190]

Article 2(2) introduces a number of presumptions concerning the requirements a buyer may have to goods in the same way as provided in Article 35 CISG, as the sale is often not based on a written contract for the sale of consumer goods.[52] This should also affect the burden-of-proof rules, just as is the case with CISG.[53] Firstly, Article 2(2)(a) provides that the goods must comply with the description given by the seller and possess the qualities of the goods that the seller held out to the buyer as a sample or model.[54] This corresponds to the provision of Article 35(2)(c) CISG in its entirety.

Secondly, Article 2(2)(b) provides that the goods must be fit for any particular purpose required by the buyer and which he has made known to the seller and which the seller has accepted.[55] Prima facie this rule differs from the provision of Article 35(2)(b) CISG, which does not make the same explicit requirements concerning the apparent positive acceptance of the seller.[56] In the case law on Article 35(2)(b) CISG emphasis is put on the seller's blameworthy conduct, in particular grossly negligent conduct on the part of the seller is equated with "expressly or impliedly made known". Whether this apparent limitation of the seller's liability for non-conformity contained [page 191] in the Sale of Consumer Goods Directive compared with Article 35 CISG shall apply is left to the decision of the Member States, as the directive is a minimum directive;[57] therefore it is possible to maintain an interpretation rule that is restrictive for sellers. A rule of implied acceptance or negligence on the part of the seller as sufficient may be justified by the interests of consumer protection and will at least correspond to the rule in Article 35(2)(b) CISG, and also leading case law and academic writings. The rule in Article 2(2)(b) of the Sale of Consumer Goods Directive therefore illustrates the need for clarification that may arise when rules governing the sale of consumer goods in one jurisdiction have their genealogical roots in other rules relating to contracts of a commercial character. A general need has therefore arisen for an adjusting, purposive interpretation of the Sale of Consumer Goods Directive in this respect;[58] see also the discussion of the transposition of the Directive into Danish law below.

Article 2(2)(c)  -- and partly also Article 2(2) )  -- of the Sale of Consumer Goods Directive contains the rule found in Article 35(2)(a) CISG providing that the goods must be fit for the purposes for which goods of the same type are normally used. On the basis of the reason for the rule and its wording, the rule must be deemed to be substantively identical to the provision of Article 35(2)(a) CISG. However, Article 2(2)(d) introduces a further rule on the seller's liability for marketing the goods  -- which is similar to the rules found in the Nordic sales acts. This applies to the sale of consumer goods where a large part of the principal information about the goods is often contained in the marketing material, but this does not apply to contracts of a commercial character to the same extent. However, the seller is not unconditionally liable in all cases for such marketing material, and this limits the scope of the rule somewhat.

Article 2(3) of the Directive provides that there is no lack of conformity with the contract if the buyer was aware or could not reasonably have been unaware of the lack of conformity. This rule modifies Article 35(3) CISG somewhat.[59] The additional rule in Article 2(3) of the Sale of Consumer Goods Directive providing that there shall not be deemed to be a lack [page 192] of conformity if the non-conformity has its origin in materials supplied by the buyer also applies to the application of Art 35(3) CISG. Finally, CISG case law indicates that the lack of instructions may result in the goods being deemed not to conform with the contract (see Article 35(2)(a) CISG),[60] which corresponds to the provision in Article 2(5) of the Sal of Consumer Goods Directive (the so-called 'IKEA clause').

The conclusion must be that the Sale of Consumer Goods Directive substantially corresponds with Article 35 CISG in relation to the definition of lack of conformity even though it differs in some respects on the grounds of special consumer protection interests. The Member States should take this into account when transposing the Directive in so far as the rules of the Sale of Consumer Goods Directive apply as a model for contracts of a commercial character. At the same time, the development of consume law reflects a return to the general law of contract. Accordingly, Article 35 CISG as well as case law and scholarly writings on the provision are applicable to the interpretation of closely related rules. Therefore, the European Court of Justice will have to interpret the Sale of Consumer Goods Directive on the basis of Article 35 CISG.[61]

TRANSPOSITION OF THE SALE OF CONSUMER GOODS DIRECTIVE INTO NATIONAL LAW

As mentioned above, the Sale of Consumer Goods Directive is a minimum directive and has to be transposed into national law. The road is thus paved for divergent transposal measures as well as major or minor divergences in relation to Article 35 CISG. Furthermore, combined transposition of the Directive [page 193] so that it will apply to both contracts for the sale of consumer goods and contracts of a commercial character may entail the application of a common yardstick even though consumer contract and contracts of a commercial character should not always be subject to the same assessment in relation to the conformity of the goods, as shown above.

It is beyond the scope of this paper to examine the transposition of the Directive by all Member States. Suffice it to say that a few examples of transposal measures warrant attention as they illustrate the problems involved. The following discussion primarily focuses on the transposal measures in Danish and German law, but also transposition of the Directive into Austrian and French law will be addressed.

The travaux préparatoires concerning the transposition of the Sale of Consumer Goods Directive into Danish law are contained in Report No. 1403/2001 on the transposition of the Sale of Consumer Goods Directive into Danish law. The report concludes that there was no general need to introduce a new definition of conformity of the goods into Danish law but such a new definition was nevertheless adopted for sales of consumer goods on the ground that, firstly, it would improve the informative value of the act and, secondly, that the Danish Sale of Goods Act would be approximated to the Sale of Consumer Goods Directive, the Nordic sales acts and the CISG. However, the report emphasized that no substantive change was intended in respect of the Danish non-conformity concept applicable to the sale of consumer goods.[62] It should be noted that this non-conformity concept in consumer sales is widely deemed to correspond to the definition of [page 194] non-conformity applicable to contracts of a commercial character, which are not subject to an explicit definition of non-conformity. The non-conformity rules in the part of the Act governing consumer sale are applied by analogy, and the references to the CISG and contracts of a commercial character in the travaux préparatoires should be read in this light.

Legislators introduced a provision into the Danish Sale of Goods Act, section 75A, which appears to be a compromise between the systematic approach and the contents of Article 35 CISG and the contents of the Sale of Consumer Goods Directive in general. Section 75A appears to be an amalgamation of Article 35(1) CISG and Arts. 2(2), 2(2)(a) and 2(5) of the Sale of Consumer Goods Directive. Section 75A(2) is practically identical to Article 35(2) CISG and its presumptions and it generally follow the wording of Article 35(2) CISG more closely than the wording of the Sale of Consumer Goods Directive. Section 75A(2)(ii) of the Danish Sale of Goods Act corresponds to Article 35(2)(a) CISG, and section 75A(2)(iv) of the Act corresponds to Article 35(2)(c) CISG, whereas the rule on particular purposes is contained in section 75A(2)(ii). However, this section provides that the goods must be fit for the particular purpose if the seller has "confirmed the buyer's expectations in that respect". It seems as if the Danish legislators have opted for a compromise between a direct agreement and acceptance, on the one hand, and Article 35 CISG and its words "expressly or impliedly made known" on the other hand. It should also be noted that the Danish Sale of Goods Act does not contain a rule corresponding to Article 35(2)(b) CISG, which provides that the seller shall not be liable if the buyer did not rely, or that it was unreasonable for him to rely, on the seller's skill and judgement, on the grounds that a consumer should generally be able to rely on the seller's skill and judgement. There are undoubtedly consumer sales in which this situation will occur.

Even though the Sale of Consumer Goods Directive does not mention discrepancies in quantity and nature (shortage and aliud), section 75A of the Danish Sale of Goods Act governs these situations, thereby clearly revealing its affinity with Article 35 CISG. This also coincides with the position in German law (see the discussion of the changes to the BGB below) because, as "parent" of the Sale of Consumer Goods Directive, Article 35 CISG has specifically been singled out as the reason for such interpretation of the [page 195] Directive.[63] Similarly, it has been argued that the Directive may be applied to factual non-conformity as well as legal non-conformity, though this argument has been countered by, for instance, French legal scholars.[64]

Article 2(3) of the Sale of Consumer Goods Directive corresponds to Article 35(3) CISG. Consequently, what the buyer ought to know cannot be relied on, but only circumstances the buyer knew or could not have been unaware of may be relied on. Previously, the provision of section 47 of the Danish Sale of Goods Act  -- which still applies to contracts of a commercial character and of a civil character  -- applied to consumer contracts and the decisive factor was what the buyer ought to know. This has now been changed so that an assessment that is more favourable to the consumer and contained in the Sale of Consumer Goods Directive applies; see section 77B of the Danish Sale of Goods Act.[65]

German legislators have also transposed the Sale of Consumer Goods Directive into German law but used an approach that was different from that used by Danish legislators, as the transposition of the Directive was part of a major overhaul the German law of obligations.[66] The most far-reaching change was the modernisation of the BGB as only few changes were made to the HGB.[67] The main reasons for the changes were the serious problems of delimitation caused by the differentiations in the BGB and the HGB and the consequential need for clarification in case law. Moreover, the changes [page 196] were also the result of an intention to effect an approximation to the clearer and more stringent structure of the CISG, and the transposition of the Sale of Consumer Goods Directive into German law required certain adjustments, in particular concerning the principle of lack of conformity.[68] However, the German legislature did not adopt the changes until its arm was twisted and therefore had to transpose the Sale of Consumer Goods Directive and hence the effects of the CISG.[69]

Legislators adopted an integrated approach when transposing the provisions of the Sale of Consumer Goods Directive into German law. Instead of a separate sales act as in French law [70]  -- or a modernisation of consumer sale provisions in the general sales act  -- as in Danish law  -- the legislators integrated the provisions into the BGB so that they generally apply to all types of sale. The reason for adopting this approach was that legislators wanted to ensure a certain degree of transparency and clarity in German law. At the same time the legislators are forced to provide reasons for those provisions that should be worded differently because of special stakeholder interests.[71]

It is interesting to note that the new non-conformity concept in the BGB retains the word defects and not conformity of the goods, which is the phrase used in the CISG and the Sale of Consumer Goods Directive. This solution has been criticised because it is natural to question whether the German legislators intended to create a new non-conformity concept that is different from that in the CISG and the Directive, or whether they had no such intention despite their choice of words.

Section 433 of the BGB provides that the seller must deliver goods that are free from material defects and legal defects, which means that the provisions rank these two types of defects equally.[72] At the same time, the BGB introduces a general definition of defects which extends but also simplifies [page 197] the concept of defects compared to the former Section 459 of the BGB. The new definition of defects is partly based on the Sale of Consumer Goods Directive and partly on Article 35 CISG.[73] The first sentence of section 433 corresponds to Article 35(1) CISG though it only contains the general provision that goods are free from material defects if they have the agreed quality. The third sentence of section 434(1) contains provisions that prima facie correspond to Article 35(2)(a) CISG and Article 35(2)(b) CISG, but are phrased differently, and they also introduced the liability for marketing goods inspired by the provision in Article 2(2)(d) of the Sale of Consumer Goods Directive. Section 434(2) contains the same 'IKEA clause' as that found in the Directive but which is unknown to the CISG. Finally, section 434(3) puts an end to the distinction between material defects and the supply of goods different from those contracted for (aliud) and also introduces a rule governing the supply of a lesser amount of goods than contracted for (shortage) so that the BGB is now in line with Article 35 CISG.[74]

In contrast to this the Austrian transposition of the Sale of Consumer Goods Directive does not take this into account as legislators intended to give consumers the possibility of using the favorable rules on giving notice of lack of conformity caused by aliud classified as late delivery.[75] The French transposal measures appear to leave this problem unsolved.[76] Finally, section 442 of the BGB contains the same provisions those found in Article 35(3) CISG but it also introduces liability based on negligence criterion.[77] This criterion closely resembles the case law developed  -- primarily in German [page 198] law  -- on Article 35 CISG. The definition of lack of conformity contained in Article 35 CISG, which was also adopted in the Sale of Consumer Goods Directive, is therefore one of the CISG provisions that has had the strongest influence on German law.[78]

SUMMARY AND CONCLUDING REMARKS

Article 35 CISG, whose origin can be traced back to the comparative work of Ernst Rabel, has had a surprising effect far beyond what was originally intended, i.e. harmonization of international trade law.[79] The provision has affected a whole range of legal rules, from national sales law regulations to EU directives. This brings methodological implications into focus.

As Schmitthoff described, the development of uniform or harmonized rules of law is partly based on a non-national, analytical and partly on a non-national synthetic comparative method. At the same time the two methods interact. This description seems to fit the characteristics of the legal rules based on Article 35 CISG. Indeed the development of rules based on Article 35 CISG in some cases appears to be motivated by an intention to achieve a clearly dogmatic-analytical approximation  -- e.g. the Nordic sales laws -- whereas in other cases the intention to achieve an "approximation" to the systematic approach and structure of Article 35 CISG is found, without intending any real substantive change of the existing legal rule  -- e.g. as clearly expressed by the Danish legislators. In other instances it is impossible clearly to ascertain whether an analytical or a syntehtic method has been adopted, or whether -- intentionally or unintentionally -- an analytical-synthetic comparative method has been adopted. Consequently, the contents and functionality of the rule may be questioned -- for example whether the new rule is actually best suited to regulating commercial matters, or whether it is best suited to [page 199] regulating consumer matters. Schmitthoff's prophecy that, in future, we need to grow accustomed to working with rules based on a non-national, combined analytical-synthetic comparative method therefore seems to have been fulfilled. However, it is debatable whether we have become accustomed to understanding the implications of working with rules that occasionally arise on the third tier, for instance CISG  -- the Sale of Consumer Goods Directive  -- the BGB, which refers to provisions based on specific principles.

Firstly, it is worth noticing that Schmitthoff characterizes some of these rules as synthetic, but also recognizes that the analytical and the synthetic methods are combined. This refers to the comparative process under which the rules arise as well as the result of the process.[80] However, this statement must have some consequences for the application of these rules  -- e.g. which travaux préparatoires or which interests should guide the interpretation of a rule. This can often be determined by applying general rules of interpretation  -- e.g. whether most weight should be given to the interests of consumers.

Secondly, it is worth considering whether there is still -- now 50 years on -- anything special working with rules that have a non-national, combined analytical-synthetic comparative origin, including whether the distinctive features should be reserved for the rules of international trade law discussed by Schmitthoff, or whether we have generally become accustomed to working with rules that have a different and more complex background. If that is the case, a very large part of the modern development of law is characterized as being based on a non-national comparative analytical-synthetic method, which turns Schmitthoff's description into a general characterization of many parts of contemporary legal scholarship.[81] Accordingly, there is less reason to classify certain rules as synthetic, because the synthetic nature  -- if this is your preferred term  -- is rather a fundamental ground for many rules. Several factors seem to point to the latter solution. Globally, the increasing prevalence of convention or treaty law such as the CISG is one example of this; regionally, the harmonization of rules, e.g. EU law, is found, and nationally, the transposition of harmonized law and the modernization of domestic legal [page 200] rules and principles are cases in point. The carrying out of these processes often involves the use of a combined comparative analytical-synthetic method that does not seek a special national solution, but rather an ideal solution.

In general, the comparative method therefore appears destined to play an important role as an integrated part of legal method and not only as an academic research discipline,[82] whether it concerns a synthetic, analytical, functional or other comparative method. It may also be difficult to differentiate between these methods, as discussed above, and in continuation of this analysis and Schmitthoff's characterization, legislators often fail to indicate whether they intended a doctrinal innovation, or whether they merely intended to modernize legislation with a view to harmonizing the terminology and language without introducing any dogmatic changes to the existing state of the law.[83] It seems that this realization may actually be the strong point in using Schmitthoff's characterization.

Moreover, it should be pointed out that some jurisdictions have structures and sets of rules that are in effect based on the reception of elements from other jurisdictions with the intention, inter alia, to introduce certain new analytical features, which is the case with large parts of the Turkish legal system and the so-called mixed jurisdictions whereby the existence as a combined analytical-synthetic nature follows a priori.[84] Experience from these jurisdictions is therefore significant in further clarifying the issues addressed in this article.

The existing comparative methods may well be insufficient and it cannot be ruled out that legal scholars should learn from other social science disciplines in order to find the proper methods to meet these challenges.[85] Nevertheless, [page 201] Schmitthoff's ideas also seem of interest to contemporary scholars and legislators, at least as a characterization that shifts the focus to the combined, including international, genealogical origin with the implications for the application of law that follows from this.

On the face of it, it appears that the introduction of Article 35 has planted a seed, a potential genetic mother code for a future, universal understanding of the principle of non-conformity with the contract.[86] Nonetheless, a different and perhaps more realistic approach seems to be restricted to the determination of whether or not jurisdictions display an increased willingness and openness concerning reception from other jurisdictions without this necessarily resulting in a future, global uniform set of rules, because the development takes the form of a symbiosis between -- including but not limited to -- a synthetic and an analytical method that is difficult to control and which therefore opens up for divergences between rules and jurisdictions.

The merits of the non-national, analytical-synthetic comparative method are not necessarily  -- as perhaps assumed by Schmitthoff  -- that it provides or must provide common or uniform rules of law. On the contrary, its greatest achievement may be that it opens up for a dialogue across jurisdictions and cultures  -- a dialogue that, in an outstanding way, is supported by the research initiatives that enable an exchange of knowledge and experience relating to the rules described in this article, and which is testimony to the impressive personal efforts that have occasioned this article.[87]


FOOTNOTES

* Associate professor, Ph.D., Centre for International Business Law, Department of Law, Aarhus School of Business, University of Aarhus. The author would like to thank Sandro Nielsen, Ph.D., Associate Professor, Department of Language and Business, Aarhus School of Business, University of Aarhus for his valuable assistance in translating the text to English.

1. International Institute for the Unification of Private Law (www.unidroit.org).

2. Rabel, E (1968) Das Recht des Warenkaufs, 2. Band. Unveränderter Neudruck der Ausgabe von 1958.

3. Uniform Law on International Sales.

4. Uniform Law on the Formation of Contracts in International Sales.

5. Only 9 states, 2 of them non-European, ratified the Hague Conventions.

6. United Nations Commission on International Trade Law, established in 1966.

7. See <www.unidroit.org> (last visited 20 November 2007). The ratifying states include the USA, China and Russia plus all EU member states, except the United Kingdom, Ireland and Portugal.

8. See e.g. Bridge, M (2003) 'Uniformity and Diversity in the Law of International Sale', (15) Pace International Law Review 15 at p. 5.

9 . For a further discussion, see Andersen, CB (20 7) The Uniformity of the CISG and its Jurisconsultorium. An Analysis of the Terms and a Closer Look at Examination and Notification, Kluwer 2007.

10. See e.g. Bailey, JE (1999) 'Facing the Truth: Seeing the Convention on Contracts for the International Sale of Goods as an Obstacle to a Uniform Law of International Sales' (32) Cornell International Law Journal at 273.

11. 1968 (17) International & Comparative Law Quarterly 551.

12. It is obvious that such a methodological approach in no way pretends to be the only or the most complete methodological approach for such analysis. See also the summary and conclusion below.

13. See Schmitthoff, CM 'The Unification or Harmonisation of Law' supra fn 12 at p. 565: 'In modern applied comparative law, i.e. comparative law employed for a practical purpose and not merely as an academic exercise, two methods are used, which may be called the consolidating and the codifying method. The object of the consolidating method is to ascertain the common content of various legal regulations and thus to define the "common core of law" of them; this method aims at a factual ascertainment but not a doctrinal improvement of law [...]'.

14. See Schmitthoff, CM 'The Unification or Harmonisation of Law' supra fn 12 at p. 565: 'As regards the results of the application of the comparative method to standard contracts, it should be realised that this application has in some instances produced an entirely new type of legal regulation which can only be described as synthetic law'.

15. See Schmitthoff, CM 'The Unification or Harmonisation of Law' supra fn 12 at p. 565: 'The codifying method, on the other hand, compares in order to establish a desirable, improved legal norm; it amends the found regulation in a manner desirable de lege feranda'.

16. See Schmitthoff, CM 'The Unification or Harmonisation of Law' supra fn 12 at p. 570: 'In future it will be necessary to effect a combination between the realistic approach characteristic of international standard contacts and the doctrinal approach of international legislation [...]'.

17. However, it is important to point out that the preparation of conventions is often the result of a compromise between different doctrinal approaches and the doctrinal approach expressed in the convention rule may not be anything like an expression of all the doctrines of the participating states let alone the doctrinal approach of a particular state even though the contrary is often claimed to be the case. In this context the large number of reservations made by CISG ratifying states should be mentioned. For a detailed discussion, see: Andersen, CB (2007) The Uniformity of the CISG, supra fn 9.

18. See Schmitthoff, CM 'The Unification or Harmonisation of Law' supra note 12 at p. 565: 'In the law of international trade of the future, we shall become increasingly accustomed to working with synthetic non-national legal concepts. The production of such concepts which are internationally acceptable is the greatest contribution which comparative law can make to the unification or harmonization of the law of international trade'. More recent discussions of the problems addressed by Schmitthoff can be found in: Fletcher, I, Mistelis, L and Cremona, M (eds) (2001) Foundations and Perspectives of International Trade law.

19. See Mistelis, L (2001) 'Is Harmonisation a Necessary Evil? The Future of Harmonisation and New Sources of International Trade Law' in Fletcher, I, Mistelis, L and Cremona, M (eds) (2001) Foundations and Perspectives of International Trade law at 3.

20. See e.g. Twinning, W (2006) 'Diffusion of Law: A Global Perspective' (1/2) Journal of Comparative Law 237 and Legrand, P (2 06) 'Comparative legal Studies and the Matter of Authenticity' (1/2) Journal of Comparative Law 365.

21. See also Legrand, P (2006) 'On the Singularity of Law' (47/2) Harvard International Law Journal 517.

22. See also Twinning, W (2006) 'Diffusion of law A Global Perspective' supra fu. 21 at p. 260.

23. See The Nordic Sales Law Report NU 1984:5 (1985) Nordiska köplager. Förslag av den nordiska arbetsgruppen für köplagsstiftning.

24. For example the Dutch Wetboeks, see Schlechtriem, P (2000 Kommentar zum Einheitlichen UN-Kaufrecht -- CISG (3rd ed) at 35; Schlechtriem, (2001) '10 Jahre CISG  -- Der Einfluß des UN-Kaufrechts auf die Entwicklung es deutschen und des internationale Schuldrechts' (1) lnternationales Handelsrecht (HR) 12; Hondius, E and Jeloschek, C (2000) 'Die Kaufrichtlinie und das niederländische Recht: Für den Westen kaum etwas Neues' in Grundmann, S, Medicus, D and Rolland, W (eds) Europdäische Kaufgewährlesitungsrecht. Reform und Internationalisierung des Deutschen Schuldrechts. Hallesche Schriften zum Recht, Band 13 197.

25. For example the Russian contracts act, see Schlechtriem, P (2006) ‘Kommentar’ supra fn 25 at p. 35.

26. See SU Yingxia (1996) Die vertragsgemäße Beschaffenheit der Ware im UNCITRAL-Kaufrecht im Vergleich zum deutschen und chinesischen Recht 150 and 205; and Heutger, V (2002) 'Worldwide Harmonisation of Private Law and Regional Economic Integration  -- 75 Jahre UNIDROIT  -- Rom, 27.-28. September 2002' (6) European Review of Private Law 857.

27. Organisation pour L 'Harmonisation du Droit des Affaires en Afrique, see Rosier, H (2006) '70 Jahre Des Warenkaufs Von Ernst Rabel' (70) Rabels Zeitschrift für ausländisches und internationales Privatrecht  803.

28. Danish law, for instance, generally uses the term defects (mangler) to refer to performance that does not conform to the terms of the contract. In the Danish translation of the CISG provided by the Danish Ministry of Justice the heading of the section containing Article 35 reads: Conformity of the goods with the contract (defects) and third party claims. Furthermore, the Danish act transposing the EU Sale of Consumer Goods Directive uses the phrase: Conformity with the contract. As a result the heading of the part containing the consumer protection provisions on defects has been changed and a parenthesis added: Conformity of the goods with the contract (defects). Even though the use of parentheses in statutes may be questioned from an aesthetic point of view, the phenomenon may be taken to reflect a change in terminology in domestic Danish sales law brought about by outside pressure.

29. However, this does not mean that the distinctions are not important in other relations, for example in relation to remedies for breach (e.g. trivial defects).

30. See Oberster Gerichthof (Austria), 21 March 2000, available at: <http://cisgw3.law.pace.edu/cases/000321a3.html>; Oberster Gerichthof (Austria), 9 June 1999, available at: <http://cisgw3.law.pace.edu/cases/990629a3.html>; and Bundesgerichtshof (Germany), 3 April 1996, available at: <http://cisgw3.law.pace.edu/cases/960403g1.html>, on the sale of a consignment of cobalt sulphate, which does not reject, in principle, that it may be possible to treat such serious cases of aliud pro alio as non-delivery if the goods are significantly different from those contracted for.

31. See decision from COMPROMEX (Mexico), 29 April 1996, available at: <http://cisgw3.law.pace.edu/cases/960429m1.html>.

32. In its judgment of 10 February 1994, Oberlandesgericht Düsseldorf (Germany) heard a case concerning the lack of conformity of about 1/4 of the goods under Article 35(2)(b) but nevertheless determined the case under Article 47(2) on Nachfrist (extension of time to fulfil obligations) and the court referred to aliud pro alio. The case is available at: <http://www.unilex.info/case.cfm?pid=1&id=68&do=case>. The judgment has been criticised for having ignored Article 35(1), for considering aliud pro alio and must therefore be considered wrong; see also Veneziano, A (1997 'Non Conformity of Goods in International Sales (1) International Business Law Journal 39.

33. See Henschel, RF (2005) The conformity of Goods in International Sales: An Analysis of Article 35 in the United Nations Convention on the International Sale of Goods (CISG) 190.

34. See generally Henschel, RF (2005) 'Conformity of Goods' supra fn 34 at p. 4.

35. These basic principles where established by Bundesgerichtshof (Germany) in its judgment of 8 March 1995 (the New Zealand Mussels case), available at <http://cisgw3.law.pace.edu/cases/950308g3.html>.

36. See e.g. the judgment of Tribunal Cantonal de Vaud (Switzerland), 28 October 1997, available at: <http://www.unilex.info/case.cfm?pid=1&id=311&do=case>.

37. See Henschel, RF (2005) 'Conformity of Goods' supra fn 34 at p. 199.

38. This does not include the consumer sale provisions nor the Danish Sale of Goods Act, which did not implement the changes proposed by the Nordic fact-finding committee in report 'NU 1984:5'.

39. The discussion below is primarily based on Ramberg, J (1997) 'The New Swedish Sales Law' (28) Saggi, Conferenze e seminari; Hellner, J (1997) 'Die bedeutung des UN-Kaufrechts in Skandinavien' in Neumeyer, KH (ed) Emptio-Venditio Inter Nationes. Wiener Übereinkommen über den internationalen Warenkauf 151.

40. Finnish Sales Act (köplag) of 27 March 19 7/355.

41. Norwegian Sales Act (lon om kjøp) (Act 1988-05-13 no. 27). The Norwegian Sales Act was changed on 1 July 2002 and the former section 17(3) was removed and inserted in the Norwegian Sale of Consumer Goods Act (Act 2002-06-21 no. 34 ) as part of approximating Norwegian law to the Sale of Consumer Goods Directive. For a detailed discussion of the relation between the Norwegian Sales Act and Article 35 CISG and the former provision on defects in the BGB, see Kjelland, C (2000) Das Neue Kaufrecht der nordischen Länder im  Vergleich mit dem Wiener Kaufrecht (CISG) und dem deutschen Kaufrecht. Eine vergleichende Darstellung unter besonderer Berücksichtigung des norwegischen Rechts der Sachmangelhaftung.

42. Swedish Sales Act (köplag) (1990:931).

43. See Report 'NU 1984:5' at 155.

44. See e.g. Hagstrøm, V (1995) 'Kjøpsrettskonvensjon, Norsk Kjøpslov og International Rettsenhet' (4) Tidskrift for Rettsvetenskap 561

45. See Oberster Gerichthof  (Austria), 11 March 1999, available at: <http://cisgw3.law.pace.edu/cases/990311a3.html>.

46. See further Kjelland, C (2000) 'Das neue Kaufrecht' supra fn 42 at p. 94. See also Lookofsky, J (2003) 'The Scandinavia Experience' in: Ferrari, F (ed) The 1980 Uniform Sales Law: Old Issues Revisited in the Light of Recent Experiences 120, re. Section 18 in the Norwegian Act and the requirement that the seller 'knew or must have been aware' of the buyers special purpose, which does not reflect Article 35(2)(b) which hardly requires some active participation on the part of the buyer.

47. See Troiano, S (2003) 'The Exclusion of the Seller's Liability for Recognizable Lacks of Conformity under the CISG and the new European Sales Law: The CISG and the New European Sales Law: The Changing Fortunes of Notion of Variable Content' in Ferrari, F 'The 1980 Uniform Sales Law' supra fn 46 at p. 147.

48. The following discussion is primarily based on: Staudenmayer, D (2000) 'EG-Richtlinie 1999/44/EG zur Vereinheitlichung des Kaufgewährleistungsrecht' in Grundmann, S, Medicus, D and Rolland, W Europäisches Kaufgewährleistungsrecht. Reform und Internationaliserung des Deutschen Schuldrechts 27 et seq.; Staudenmayer, D (2000) 'The Directive on the Sale of Consumer Goods and Associated Guarantees  -- a Milestone in European Consumer and Private Law (8) European Review of Private Law (4) 547; Lando, (2000) 'International Trends: Requirements concerning the quality of movable goods and remedies for defects under the Principles of European Contract Law' in: Grundmann, S, Medicus, D and Rolland, W 'Europäisches Kaufgewährleistungsrech ' 61; Magnus, U (2000), Die Verbrauchergüterkauf-Richtlinie und das UN-Kaufrecht' in: Grundmann, S, Medicus, D and Rolland, W 'Europäisches Kaufgewährleistungsrecht' 79; Krusinga, SA (2001) 'What do consumer and commercial sales have in common? A comparison of the EC Directive on consumer sales law and the UN Convention on contracts for the international sale of goods' (2 & 3) European Review of Private Law 177; Lorenz, S (2005) 'Schuldrechtsreform 2002: Problemschwerpunkte drei Jahre danach' in (27) Neue Juristische Wochenschrift 1889.

49. 'The seller must deliver goods to the consumer which are in conformity with the contract of sale.' This is further explained in the preamble of the Directive: 'Whereas the goods must, above all, conform with the contractual specifications; whereas the principle of conformity with the contract may be considered as common to the different national legal traditions; whereas in certain national legal traditions it may not be possible to rely solely on this principle to ensure a minimum level of protection for the consumer; whereas under such legal traditions, in particular, additional national provisions may be useful to ensure that the consumer is protected in cases where the parties have agreed no specific contractual terms or were the parties have concluded contractual terms or agreements which directly or indirectly waive or restrict the rights of the consumer and which, to the extent that these rights result from this Directive, are not binding on the consumer.'

50. See Danish Ministry of Justice Report on the Consumer Sales Directive no. 1403/2001, p. 58. For a recent discussion of European contract law, see: Communication from the Commission to the Council and the European Parliament on European contract law (COM2003) 68 final of 12 February 2003.

51. Directive 93/13/EEC of 5 April 1993 on unfair contract terms in consumer contracts.

52. 'Whereas, in order to facilitate the application of the principle of conformity with the contract, it is useful to introduce a rebuttable presumption of conformity with the contract covering the most common situations; whereas that presumption does not restrict the principle of freedom of contract; whereas, furthermore, in the absence of specific contractual terms, as well as where the minimum protection clause is applied, the elements mentioned in this presumption may be used to determine the lack of conformity of the goods with the contract; whereas the quality and performance which consumers can reasonably expect will depend inter alia on whether the goods are new or second-hand; whereas the elements mentioned in the presumption are cumulative; whereas, if the circumstances of the case render any particular element manifestly inappropriate, the remaining elements of the presumption nevertheless still apply; [...]'.

53. See paragraph 8 of the preamble of the Directive 93/13/EEC.

54. [...] 'comply with the description given by the seller and possess the qualities of the goods which the seller has held out to the consumer as a sample or model'.

55. Article 2(2)(b) provides: 'are fit for any particular purpose or which the consumer requires them and which he made known to the seller at the time of conclusion of the contract and which the seller has accepted'.

56. Article 35(2)(b) provides: '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 was unreasonable for him to rely, on the seller's skill and judgement'

57. See Article 8 of the Directive.

58. See e.g. Troiano, S (2003) 'The Exclusion of the Seller's Liability' in Ferrari, F 'The 1980 Uniform Sales Law' supra fn 47 at p. 147.

59. Ibid.

60. This is confirmed by the decision of Arbitration Institute of the Stockholm Chamber of Commerce, 5 June 1998, available at <http://cisgw3.law.pace.edu/cases/980605s5.html>, where an American seller had sold a press to Chinese buyer. It was held that the improper installation of a lockplate could have been avoided if the seller had provided the buyer with correct instructions. See also Magnus, U (2000) 'Die Verbrauchergüterkauf-Richtlinie und das UN-Kaufrecht in: Grundmann, S, Medicus, D and Rolland, W 'Europäisches Kaufgewährleistungsrcht' supra fn 49 at p. 79.

61. Further see Grundmann, S (2000) 'Generalreferat: Internationalisierung und Reform des deutschen Kaufrechts' in Grundmann, S, Medicus, D and Rolland, W 'Europäisches Kaufgewährleistungsrecht' supra fn 49 at p. 290.

62.  'Even though it cannot be deemed necessary for the proper transposition of the Sale of Consumer Goods Directive, the working group suggests that  -- in line with Finnish, Norwegian and Swedish law  -- the concept of lack of conformity in the Danish Sale of Goods Act is supplemented by a positive statement of the criteria the goods must have to conform with the contract; see section 1(v) of the Bill (the proposed section 75A). No substantive changes were intended with this provision as it is merely a detailed description of the elements forming part of the general non-conformity concept applicable under section 76(1)(iv) o the Danish Sale of Goods Act. However, the provision may be appropriate for several reasons. Firstly, the informative value of the provision of the Sale of Goods Act is increased, because the criteria are not clearly expressed in the currently applicable provision on the non-conformity concept and secondly, the change facilitates an approximation of the Danish rules to the non-conformity concepts in the Sale of Consumer Goods Directive, the CISG and the other Nordic countries.'

63. See Grundmann, S (2001) 'European sales law -- reform and adoption of international models in German sales law (2 & 3) European Review of Private Law 250.

64. See Rohlfing-Dijoux, S (2000) 'Umsetzungsübelegungen zur Kaufgewährleistungs Richtlinie in Frankreich' in Grundmann, S, Medicus, D and Rolland, W, Europäisches Kaufgewährleistungsrecht' supra fn 4 at p. 149, referring to Article 1626 of the French Civil Code.

65. See further the Danish Justice Ministry report 1403/2001 on the Sale of Consumer Goods Directive, at p. 65.

66. The following discussion is primarily based on: Schimmel, R, Buhlmann, D (2002) Frankfurter Handbuch zum neuen Schuldrecht; Dauner-Lieb, B, Heidel, T, Lepa, M, Ring, G (2001) Das Neue Schuldrecht in de anwaltlichen Praxis; and generally Grundmann, S, Medicus, D and Rolland, W (2000) ‘Europäisches Kaufgewährleistungsrecht' supra fn 47.

67. This concerns the repeal of section 378 of the HGB, which treated certain cases of aliud and material defects equally (see the following discussion in the main text). The provision was repealed as a result of section 434(3) of the BGB, which is also discussed in the following main text.

68. See Dauner-Lieb in Dauner-Lieb, B, Heidel, T, Lepa, M, Ring, G (2001) 'Das Neue Schuldrecht' supra fn 67 at p. 15.

69. See Herber, R (2003) 'The German Experience' in Ferrari, F 'The 1980 Uniform Sales Law' supra fn 47 at p. 66.

70. The French rules were incorporated in Code de la consommation by decree of 17 February 2005.

71. See Dauner-Lieb in Dauner-Lieb, B, Heidel, T, Lepa, M, Ring, G (2001) ‘Das Neue Schuldrecht' supra fn 67 at p. 15.

72. The definition of legal defects is now contained in section 435 of the BGB.

73. The provisions described below cannot be derogated from in consumer sales; see section 475 of the BGB.

74. See Rösler, H (2006) '70 Jahre Des Warenkaufs Yon Ernst Rabel' (70) Rabels Zeitschrift für ausländisches und internationales Privatrecht 804.

75. See Welser, R (2002) ‘Die Verbrauchergüterkauf-Richtlinie und ihre Umsetzung in Österreich und Deutschland, in Schlechtriem, P (ed) Wandlungen des Schuldrechts 87.

76. See Witz, C, Schneider, W (2005) 'Die Umsetzung der europäishen Richtlinien über den Verbrauchsgüterkäuf in Frankreich (12) Recht der Internationalen Wirtschaft 921 at 926.

77. 'Knowledge of the buyer. The rights of the buyer due to a defect are excluded if he has knowledge of the defect at the time when the contract is entered into. If the buyer has no knowledge of a defect due to gross negligence, the buyer may assert rights in relation to this defect only if the seller fraudulently concealed the defect or gave a guarantee of the quality of the goods'.

78. See Herber, R (2003) 'The German Experience' in Ferrari, F 'The 1980 Uniform Sales Law' supra fn 47 at 64.

79. See Rösler, H (2006) '70 Jahre Des Warenkaufs Yon Ernst Rabel' (70) Rabels Zeitschrift für ausländisches und internationales Privatrecht 805:' Zusammenfassend hat das Vorstehende die faszinerende Kontinuität im kühn und breit angelegten Gesamtschaften von Rabel aufgezeigt. Sein Einfluß erstreckt sich -- mit dem Recht des Warenkaufs als wissenschaftlichen Kristallisationspunkt -- über das Einheits- und Gemeinschaftskaufrecht bis in das rechtsvergleichend reformierte BGB, und geht in Raum und Zeit doch weit darüber hinaus.’

80. See Schmitthoff, CM 'The Unification or Harmonisation of Law' supra fn 12 at p. 565.

81. See e.g. Jørgensen, S (1968) 'Rudolph v. Jhering and Nordic legal scholarship' Ugeskrift for Retsvæsen 245 and the discussion of i.a. Thibaut's and Savigny's application of an analytical-synthetic method inspired by e.g. the philosophy of Kant.

82. See e.g. Berger, KP (2001) 'Harmonisation of European Contract Law. The influence of Comparative law' (50) International and Comparative Law Quarterly 877.

83. See from page 193 above discussing the Danish transposition of the Sale of Consumer Goods Directive because legislators intended to change the Danish Sale of Goods Act having regard to the Sale of Consumer Goods Directive and the CISG but did not intend any substantive change of the Danish principle of non-conformity with the contract.

84. See Örücü, E (2006), A Synthetic and Hyphenated Legal System: The Turkish Experience' (2) Journal of Comparative Law 261. See also Zimmerman, R, Visser, D and Reid, K (2004) Mixed Legal Systems in Comparative Perspective.

85. See e.g. McCrudden, C (2006) 'Legal Research and the Social Sciences' (122) Law Quarterly Review 632, who refers to the criticism of legal scholarship as a closed (internal) science in contrast to an open (external) science and calls for greater focus on the method used in legal research. Further to this, see: Samuels, G (2007) 'Taking Methods Seriously (Part One)' (2) Journal of Comparative Law 94.

86. For a Global Commercial Code for the future, see e.g. Herrmann, G 'The Future of Trade Law Unification (1) Internationales Handelsrecht 6; and for future global principles, see: Lando, O (2005) 'CISG and its followers: A Proposal to Adopt Some International Principles of Contract Law' (LIII -2) The American Journal of Comparative law 379.

87. Thank you to Albert Kritzer for his tireless efforts which made this dialogue possible.


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