Published by Manz, Vienna: 1986. Reproduced with their permission.

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Conformity of the Goods

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a) Defects in Quality and Quantity

The decisive factor for determining whether the goods conform to the contract is the contractual description of the goods. The characteristics are therefore not based on objective standards of quality but rather on the denomination and description of the required quality in the contract.[249] The same applies to packaging (Article 35(1)). ULIS Article 33(l)(b) expressly treated alike the delivery of different goods and the delivery of defective goods. Through Article 35 of CISG unfortunately does not, the delivery of different goods must be considered a lack of conformity no matter how extreme the deviation.[250] This change was not intended to exclude the delivery of different goods from the rules on lack of conformity.[251] Rather, it is clear that the case of delivery of entirely different goods should still be considered as a deviation from the "description" of the goods in the contract.

In subparagraphs (a) through (d), Article 35(2) defines conformity to the extent the parties do not expressly specify the qualities and packaging of the goods.[251a] First, the goods must be fit for the usual purpose for which goods of the same description would be used (subparagraph (a)). They must also be fit for the buyer's particular purpose, if the buyer expressly or impliedly informed the seller of the particular purpose when the contract was concluded. An exception is made for the case that the buyer did not, or it would have been unreasonable for him to, rely on the seller's skill and judgment concerning the qualities required for the particular use (Article 35(2)(b)).[252] As a result, a buyer generally can expect the quality necessary for a particular purpose only if it is expressly described in the [page 67] contract (Article 35(1)) or he relied on a specialist or expert for the production or supply of goods of this quality.[253] Finally, the quality of goods may be determined by the samples or models provided to the buyer by the seller (subparagraph (c)). The packaging must be in the manner usual for such goods, or, subsidiarily, [254] in a manner adequate to preserve and protect the goods (subparagraph (d)).

The Conference rejected an Australian proposal corresponding to ULIS Article 33(2), to treat minor irregularities in quality and quantity as irrelevant.[255]

The buyer's remedies are not available if the buyer knew or could not have been unaware of the lack of conformity.[256] [page 68]

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FOOTNOTES

* The author of this book participated at the Conference as a member of the delegation from the Federal Republic of Germany. The views expressed here are personal to the author and do not necessarily represent the position of the F.R.G. or its delegation.

249. See A/Conf. 97/C.1/SR.15 at 7-8 (= O.R. 315 et seq.) (discussion regarding the Soviet motion (A/Conf. 97/C.1/L.82= O.R. 104) and the question whether the importance of the contractual terms should be emphasized even more). The rejection of the West German motion concerning Article 35(1)(b) (A/Conf.97/C.1/L.73= O.R. 104), the purpose of which was to employ fitness for a particular purpose as a criterion for conformity only when the special purpose was stated in the contract, should not be perceived as a rejection of a "subjective" concept of non-conformity. See A/Conf. 97/C.1/SR.15 at 8 (= O.R. 316).

250. See Huber at 483-84; Widmer in Lausanner Kolloquium at 95, 96.

251. See 4 UNCITRAL Y.B. 64 (1973); 7 UNCITRAL Y.B. 91, 106-7 (1976) (on the development of this provision).

251a. See Honnold, Commentary § 225 ("presumed implications from the contract").

252. See generally Huber at 480 (on the origins of these rules in the British Sale of Goods Act and the UCC).

253. See also Huber at 481. A conflict can arise between Articles 35(1) and 35(2)(b), for example where the buyer orders goods with particular characteristics and the seller recognizes that such goods would be unsuitable for the buyer's special purpose. The Secretariat's Commentary assumes that the seller has a good faith duty to inform the buyer in such a case. See Secretariat's Commentary at 93 § 9.

254. I.e., when standards for usual packaging are lacking. See A/Conf.97/C.1/SR.15 at 9 et seq. (= O.R. 317).

255. See A/Conf.97/C.1/SR.15 at 11-12 (= O.R. 317 et seq.). However, this laid the ground for the most important argument against the general right to fix additional period of time for performance, namely that even in case of very minor defects a non-fundamental breach could become fundamental simply by the expiration of the extended deadline. Cf. infra at VI.B.6(c).

256. For criticism on the limitation of this exclusion from liability to the cases mentioned in Article 35(2)(a)-(d), see generally Huber at 479 note 113.

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