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LEGISLATIVE HISTORY
1980 Vienna Diplomatic Conference

Summary Records of Meetings of the First Committee

15th meeting

Thursday, 20 March 1980, at 10 a.m.

Chairman: Mr. LOEWE (Austria)

The meeting was called to order at 10.05 a.m.

CONSIDERATION OF ARTICLES 1-82 OF THE DRAFT CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS AND OF DRAFT ARTICLE "DECLARATIONS RELATING TO CONTRACTS IN WRITING" IN THE DRAFT PROVISIONS PREPARED BY THE SECRETARY-GENERAL CONCERNING IMPLEMENTATION, DECLARATIONS, RESERVATIONS AND OTHER FINAL CLAUSES FOR THE DRAFT CONVENTION (agenda item 3) (A/CONF.97/5, 6) (continued)

36
Article 34 [became CISG article 36 ] (continued)
(A/CONF.97/C.1/L.147)

1. Mr. INAAMULLAH (Pakistan) explained that his delegation had submitted its amendment to paragraph 2 of article 34 [became CISG article 36 ] because it considered that the buyer should be held liable for a breach not only of any express guarantee, but also of any implied warranty, and for a reasonable period. Thus amended, paragraph 2 would be more precise.

2. Mr. FELTHAM (United Kingdom) pointed out that the English word "warranty" proposed by Pakistan was not used in the rest of the Convention. The word "term" would be more appropriate.

3. Mr. HJERNER (Sweden) thought that the Pakistan amendment, which might at first sight appear to be acceptable, was inappropriate in article 34 [became CISG article 36 ]. Paragraph 1 of the article indicated the time at which the conformity of the goods was to be judged. The seller could also give a so-called "maintenance guarantee" which went beyond that time, but it was not necessary to state that in the present paragraph, for if the contract contained a provision stipulating that the seller remained liable even after passage of the risk, that provision would in any event prevail over paragraph 1 of article 34 [became CISG article 36 ]. Paragraph 2 made it clear that where there was an express guarantee it mattered little whether the lack of conformity became apparent after passage of the risk. At any rate, it would seem to be going too far to assimilate express guarantees to implied guarantees. He would therefore prefer to leave article 34 [became CISG article 36 ] as it stood.

4. Mr. ROGNLIEN (Norway) considered the existing text satisfactory. Since article 34 [became CISG article 36 ] in fact covered all contractual guarantees, but not so-called "guarantees" presumed by law, it might perhaps be preferable to replace the words "express guarantee" by "contractual guarantee", which could apply equally well to implied guarantees and to express guarantees. As for inserting the word "reasonable" at the end of paragraph 2, he considered that term too vague; the rule ought to be spelt out precisely and the guarantees should be firm.

5. Mr. SAMI (Iraq) considered the Pakistan proposal practical and realistic. When a seller sold his goods, he did not always guarantee them for a reasonable period. In most cases, any such guarantee must be deduced from usage and tradition. It could also derive from the implicit wish of the parties. For that reason, it would be as well to state that the guarantee could also be implied. He also approved of the addition of the word "reasonable" at the end of paragraph 2.

6. Mr. VISCHER (Switzerland) felt that the word "express" was inappropriate in article 34 [became CISG article 36 ]. The guarantee could result equally well, for example, from the nature off the goods. It might perhaps be best to delete that word and not qualify the guarantee, which could then be implied or express.

7. Mr. DATE-BAH (Ghana) pointed out that the article under consideration might be interpreted as excluding implied guarantees. It would therefore be advisable either to use both the adjectives "express" and "implied", or to delete both. The English word "warranty", also, did not appear to be a very happy choice, in view of its connotations in the legal systems of common law countries. The words "term" or "promise" would be more suitable. Of course, if the guarantee could be implied as well as express, the period of validity could not be determined exactly. For that reason he was also in favour of the second part of the Pakistan amendment.

8. Mr. KRISPIS (Greece) asked the representative of Pakistan whether he could agree to the present text of the article if the word "express" was deleted and the courts were left to interpret the word "guarantee", if necessary. He was against adding the word "reasonable" at the end of paragraph 2, for the same reasons as the representative of Norway.

9. Mr. INAAMULLAH (Pakistan) said that what he had feared was that the text might be interpreted as excluding implied guarantees altogether. If it was decided to delete the word "express", he would be quite willing to withdraw the first part of his amendment.

10. Mr. LEBEDEV (Union of Soviet Socialist Republics) considered that the terminology employed, especially the word "warranty", was peculiar to some countries and unknown in others. It ought not, therefore, to be used. Moreover, paragraph 2 dealt with a case which apparently raised no doubts in any legal system. If the word "express" was deleted, it might be assumed that the provision referred to all those guarantees covered by the word "warranty", in addition to express guarantees, which would lead to uncertainty and misinterpretation. He was therefore in favour of keeping the existing wording.

11. Mr. POPESCU (Romania) observed that there were contractual guarantees and technical guarantees, which were practically always implied. To cover the entire range of possible guarantees, it would be better to adopt the Pakistan proposal.

12. Mr. BOGGIANO (Argentina) said he would prefer the word "express" to be deleted.

13. Mr. PLUNKETT (Ireland) noted that, if the first part of paragraph 2 of article 34 [became CISG article 36 ] was taken by itself, it seemed obvious that implicit obligations were also included. The representative of Pakistan was therefore right to request that implied guarantees should be mentioned in the rest of the text. Deletion of the word "express" did not seem to be an entirely satisfactory solution, for the word "guarantee" always meant an express guarantee. Consequently, the best course would be to use the two adjectives proposed by the representative of Pakistan, but to substitute, perhaps, a more appropriate word for the English word "warranty", for example, "term". As for the addition of the word "reasonable", that followed on logically from the first part of the Pakistan proposal, since an implied guarantee could not apply during a specific period. He therefore supported both parts of the Pakistan proposal.

14. Mr. GHESTIN (France) noted that the existing text covered only express guarantees without taking into account implied guarantees, which might arise either from the interpretation of the contract, and hence from the actual but unmentioned wish of the parties, or from "legal" guarantees deduced from the presumed or fictitious wish of the parties. Some delegations were anxious to include a reference to the contractual nature of the guarantees in question, but in that case it would be as well to state that those guarantees could be express or implied. Advertising, for example, might give guarantees which, if not express, were at least implied. He therefore approved of the Pakistan proposal, but thought that it could be improved by being amended to read: "express or implied contractual guarantees". An alternative solution might be to delete the word "express". As for the addition of the word "reasonable" at the end of paragraph 2, that did not seem very satisfactory. If the Pakistan amendment was adopted, perhaps the Drafting Committee could find a better wording.

15. Mr. MICHIDA (Japan) pointed out that the text of paragraph 2 was the outcome of long discussions in the UNCITRAL Working Group. He was therefore in favour of keeping the existing text and could not agree either to the use of the word "warranty" or to the deletion of the adjective "express". Such changes might create serious problems. Moreover, the question of implied guarantees seemed to be covered by paragraph 1(b) of article 33 [became CISG article 35 ]. Accordingly, he shared the view of the representative of the Soviet Union that, to rule out all uncertainty, the existing text should be retained.

16. Mr. SZÁSZ (Hungary) considered that the first three lines of the English text of paragraph 2 spelt out a rule and that the remainder of the paragraph gave an example which concerned express guarantees only. But other types of guarantee were not excluded. He therefore hoped that the existing text would be kept. However, he could accept any decision to delete the word "express", although, in many legal systems, guarantees must be express.

17. Mr. MASKOW (German Democratic Republic) observed that, under article 34 [became CISG article 36 ], the seller could be held liable for any lack of conformity which became apparent even after the risk had passed to the buyer. If the liability of the seller was to be extended, that should be done expressly. Moreover, the period of such extension must be precise and limited in time. In international trade, the parties to a contract could always adopt provisions fixing a specific guarantee period. It seemed unnecessary, therefore, to extend the seller's liability still further, and he was therefore in favour of keeping the existing text.

18. Mr. BONELL (Italy) associated himself with the remarks made by the French representative. The Pakistan proposal was not without merit, but his delegation feared that any mention of an implied guarantee might create difficulties. It would prefer to delete the word "express" in the original text. He understood the objections raised by countries whose legislation provided only for express guarantees, but would point out that, under the terms of article 6 [became CISG article 7 ], the present Convention was to prevail over national laws, and that article 8 [became CISG article 9 ] took account of the usages to which the parties had agreed and of the practices which they had established between themselves and which might imply the existence of tacit guarantees, even if the respective legislation referred only to express guarantees. In view of those considerations, his delegation could accept the Pakistan amendment if the reference to an implicit warranty was deleted, but it would prefer to keep the present text of article 34 [became CISG article 36 ] with the deletion of the word "express".

19. Mrs. VILUS (Yugoslavia) objected to the Pakistan proposal, which would increase the seller's liability. Paragraph 1 of article 34 [became CISG article 36 ] delimited the liability of the seller in ordinary cases, whereas paragraph 2 covered special cases in which the seller had given an express undertaking that the goods would remain fit for their ordinary purpose or for some particular purpose, or that they would retain certain qualities. In the latter case, any deletion of the word "express" would extend the seller's liability unduly, and that she could not accept. Consequently, she was in favour of keeping the existing text.

20. Mr. STALEV (Bulgaria) pointed out that a guarantee was usually linked to a certain period. When the guarantee was implied, the period was not defined, and in the event of a dispute, it was for the courts to decide the issue. Such a situation would create serious uncertainty, and for that reason he was opposed to the Pakistan proposal.

21. Mr. KIM (Republic of Korea) considered the Pakistan amendment at variance with paragraph 2 of article 37 [became CISG article 39 ], where the expression "contractual . . . guarantee" was clearly used in the meaning of "express . . . guarantee". Moreover, the amendment was liable to create practical difficulties, in view of the usages and practices established between the parties, which were referred to in article 8 [became CISG article 9 ]. He would therefore vote against the proposal.

22. Mr. WANG Tian ming (China) said that account must be taken of the fact that implied guarantees as well as express guarantees existed in international trade; the Pakistan amendment was useful in that it spelled out the two possibilities. If the question of the period of the guarantee presented difficulties, it might perhaps be possible, in order to gain time, to delete all reference to that period.

23. Mr. EYZAGUIRRE (Chile) said that that point had been discussed at length at the UNCITRAL Meeting of the Working Group on the International Sale of Goods, held at Vienna in 1977. Personally, he considered that the existing text of paragraph 2 should be kept without change; the first part defined the liability of the seller in the event of a breach of any of his obligations under the terms of the contract, while the second dealt with the special obligations assumed by him in providing express guarantees concerning certain usages or certain characteristics of the goods. That text was satisfactory and he would therefore vote against the Pakistan amendment.

24. The CHAIRMAN asked the representative of Pakistan if he wished to maintain the original text of his proposal as it appeared in document A/CONF.97/C.1/L.147 or if he would prefer the Committee to take a decision directly on the proposal to delete the word "express" in the draft Convention. As far as the guarantee period was concerned, the question was a drafting one. The expression "for a specific period" in the English text of article 34 [became CISG article 36 ] was more categorical than the French expression "pendant une certaine période" and should be brought in line with the French term, which was applicable both to express and implied guarantees.

25. Mr. INAAMULLAH (Pakistan), thanking the delegations which had supported his proposal, agreed that the word "warranty" in the English text should be replaced by the word "term", as requested by the representatives of Ireland and the United Kingdom. He wished his proposal, as thus subamended, to be put to the vote. If it was rejected, he would like the Chairman to put the present text of article 34(2) [became CISG article 36(2) ] to the vote with the word "express" deleted. But he did want the text to refer to a "specific or reasonable period, as the case may be".

26. Mr. MICCIO (Italy) considered that the part of paragraph 2 relating to the guarantee period raised a question of substance and not of drafting. In the Pakistan amendment, the expression "a specific or reasonable period" meant a period that was not specified but would depend on the case in question. His delegation could not support such a vague provision.

27. The CHAIRMAN suggested that if all reference to an express guarantee was deleted, it might be acceptable for the guarantee period not to be very precisely defined. In that respect, the expression in the French text of the draft Convention, "pendant une certaine période", was more satisfactory than the one in the English text.

28. He put the Pakistan amendment (A/C0NF.97/C.1/L.147) to the vote, on the understanding that the word "warranty" was to be replaced by the word "term".

29. The Pakistan amendment, as subamended, was rejected.

30. The CHAIRMAN put to the vote the Pakistan proposal to delete the word "express" in the existing text of article 34(2) [became CISG article 36(2) ].

31. The Pakistan proposal to delete the word "express" in the existing text of article 34(2) [became CISG article 36(2) ] was adopted.

32. The CHAIRMAN proposed that the part of paragraph 2 relating to the guarantee period should be referred to the Drafting Committee.

33. Mr. KRISPIS (Greece) considered that the part of paragraph 2 in question did not just raise drafting problems, but also questions of substance, which would have to be settled by the Committee.

34. Mr. DATE-BAH (Ghana) said that if the paragraph was sent for polishing to the Drafting Committee, the Committee should be given precise instructions -- for example, to find a less categorical wording for the English text.

35. The CHAIRMAN asked the opinion of the representative of France on the semantic problem involved.

36. Mr. GHESTIN (France) said that the French expression "une certaine période", unlike the expression "une période certaine" did not refer to a specific period of time and was in line with the decision taken to delete the word "express". It would suffice to find an equivalent wording in the other languages.

37. Mr. FELTHAM (United Kingdom) suggested that in the English text the expression "for a period" should be used.

38. Mr. KHOO (Singapore) said that if no better phrase could be found, it might be possible in the English text to use the expression "for the period specified", which was frequently used in contract law in English speaking countries, or the expression "for a reasonable period".

39. Mr. HJERNER (Sweden) considered that the words "reasonable period" raised a question of substance, with which the Drafting Committee was not competent to deal.

40. The CHAIRMAN reminded the Committee that it had rejected the Pakistan amendment, and hence the word "reasonable". In order to fix the guarantee period, all that had to be done was to find a neutral word which would apply both to an express guarantee and to an implied one.

41. Mr. FARNSWORTH (United States of America) also thought that the question was not just a drafting one and suggested that in English the expression "for some period" should be used.

42. The CHAIRMAN proposed that the English text at the end of paragraph 2 should be referred to the Drafting Committee with a request for it to be aligned on the French text, which was more in line with the decision taken by the Committee to delete the reference to an "express" guarantee.

43. Mr. INAAMULLAH (Pakistan) supported the Chairman's proposal.

44. The Chairman's proposal was adopted.

The meeting was suspended at 11.20 a.m. and resumed at 11.45 a.m.

35
Article 33 [became CISG article 35 ] (continued)
(A/CONF.97/C.1/L.73, L.74, L.82, L.102, L.115, L.143)

45. Mr. SAMSON (Canada) said that, following consultations with several other delegations of common law countries, his delegation had decided to withdraw its amendment to article 33 [became CISG article 35 ] (A/CONF.97/C.1/L.115).

46. The CHAIRMAN drew the attention of the members of the Committee to the amendment submitted by the delegation of the USSR (A/CONF.97/C.1/L.82).

47. Mr. MEDVEDEV (Union of Soviet Socialist Republics) said that his delegation's amendment was intended to formulate article 33 [became CISG article 35 ], paragraph 1, more precisely than at present, so as to state that goods did not conform with the contract unless they met the specifications stated in the contract.

48. Mr. KRISPIS (Greece) thought that the Soviet proposal would improve the text of the article without changing the sense. He could fully support it on the understanding that it would be put into final form by the Drafting Committee.

49. Mr. FELTHAM (United Kingdom) said that while he was not opposed to the Soviet amendment he did not see the need for it, since the condition it laid down was already embodied in the basic principle of the article.

50. Mr. DATE-BAH (Ghana) was afraid that the reference to "specifications", which was a term with a specific technical meaning, would give rise to difficulties.

51. Mr. GARRIGUES (Spain) agreed with the Soviet delegation that the meaning of article 33 [became CISG article 35 ] should be made as clear as possible. In the Spanish version at least, the second sentence of paragraph 1 was a prime example of negative phraseology that was difficult to follow. However, he would be unable to express an opinion on the Soviet amendment until it had been worded more precisely.

52. Mr. KIM (Republic of Korea) said that while he was not opposed in principle to the Soviet amendment, he too thought that the mention of specifications was liable to create difficulties. There were three types of sales: by catalogue, by sample and by specification, and the Drafting Committee should be asked to employ those terms properly.

53. Mr. BOGGIANO (Argentina) also welcomed the Soviet proposal, which would make the meaning of paragraph 1 clearer. However, like the representative of Spain, he hoped that the last sentence of that paragraph, which contained a plethora of negatives, would be reworded.

54. The CHAIRMAN suggested that, instead of referring the text to the Drafting Committee, the Committee should set up an ad hoc working group composed of the representatives of Argentina, China, France, Iraq, the Republic of Korea, Singapore, the USSR and the United Kingdom to prepare a new draft on the basis of amendment A/CONF.97/C.1/L.82, in the light of the Committee's discussions.

55. It was so agreed.

56. The CHAIRMAN drew the attention of the members of the Committee to the amendment proposed by the Federal Republic of Germany (A/CONF.97/C.1/L.73).

57. Mr. KLINGSPORN (Federal Republic of Germany) explained that his delegation had submitted amendment A/CONF.97/C.1/L.73 because it thought that the present text of article 33 [became CISG article 35 ], paragraph 1(b), was too complicated and liable to give rise to litigation. In order to remove all ambiguity, it should be expressly stated that the delivery of goods which were not fit for the purpose to which the buyer intended to put them was not a breach of contract unless the parties had expressly or impliedly made that purpose part of the contract.

58. Mr. FELTHAM (United Kingdom) said he was opposed to the amendment by the Federal Republic of Germany, which was substantive and would make it impossible to determine when there were grounds for considering that fitness for a particular purpose was a condition for the conformity of the goods to the contract. His delegation was in favour of keeping the present text, which gave the buyer greater protection.

59. Mr. SEVÓN (Finland) was also in favour of keeping the present text and was against the amendment by the Federal Republic of Germany for the reasons given by the United Kingdom representative. He further considered that it would be unreasonable to hold the seller responsible in the case, for instance, of goods that corresponded exactly to the specifications laid down by the buyer but were not fit for the particular purpose for which the buyer intended them.

60. Mr. DABIN (Belgium) remarked that the amendment by the Federal Republic of Germany was more restrictive than the existing text.

61. The CHAIRMAN said he would take it that, if the amendment by the Federal Republic of Germany did not receive more support, it was rejected.

62. The amendment by the Federal Republic of Germany was rejected.

63. The CHAIRMAN drew the attention of the members of the Committee to the first amendment proposed by Singapore (A/CONF.97/C.1/L.143).

64. Mr. KHOO (Singapore) said that the amendment proposed by his delegation to article 33 [became CISG article 35 ], paragraph 1(c), was on the same lines as the Soviet proposal which had been adopted earlier, and was intended to broaden the scope of article 33 [became CISG article 35 ] so as to cover all the categories of goods with which international sales were concerned. He pointed out that the word "characteristics", which it was proposed to add, had been used in the corresponding article of ULIS.

65. Mr. SHAFIK (Egypt) supported the amendment by Singapore, which in his opinion greatly improved the text of the article. The goods must have the qualities and characteristics specified by the seller at the time the contract was concluded.

66. Mr. KRISPIS (Greece) was in favour of the proposal by Singapore, but pointed out that "qualities" and "characteristics" often overlapped since some qualities were part of the characteristics, and vice versa.

67. The first amendment by Singapore (A/CONF.97/C.l/L.143) was adopted, on the understanding that it would be put into final form by the Drafting Committee.

68. The CHAIRMAN pointed out, with respect to the second amendment proposed by Singapore (A/CONF.97/C.1/L.143), that the Committee had already set up a working group to look into the concepts of quality, quantity, type and description of goods, and wondered whether it was really necessary to consider the subparagraph.

69. Mr. KHOO (Singapore) withdrew his second amendment.

70. The CHAIRMAN drew the attention of the members of the Committee to the amendment proposed by Australia (A/CONF.97/C.1/L.74).

71. Mrs. KAMARUL (Australia) pointed out that document A/CONF.97/C.1/L.74 contained two amendments. She would begin with the amendment to paragraph 1(d).

72. Her delegation considered that paragraph 1(d), which indicated the way in which the goods should be contained or packaged, did not cover all possible situations. What would happen if the goods were of a new type and there was no usual container or packaging for them? The provision proposed by her delegation provided that in cases where new standards had not been established, the manner in which the goods would be contained or packaged should be adequate to preserve and protect them.

73. Mr. SEVÓN (Finland) said, with respect to the Australian proposal, that he had always considered that the purpose of subparagraph (d) was to lay down minimum standards and that greater protection might not be acceptable because of the added cost entailed. He did not see that the second part of the proposal would serve any purpose and preferred the existing text.

74. Mr. HJERNER (Sweden) said that the Australian proposal was not as anodyne as the representative of Australia had implied. It fell into two parts, and he had the same difficulties with the first as the representative of Finland. The buyer would obviously not complain if the goods he received were packaged in a better manner than was usual or than had been specified in the contract, but that would not be true if the packaging involved the buyer in extra expense. He therefore considered that the first part of the provision should not be included in article 33 [became CISG article 35 ].

75. The second part went too far, because it would mean, for example, that when goods for which there was no usual manner of packaging were sold ex-factory the seller would nevertheless have to provide the buyer with the necessary packaging when he collected the goods. In such cases, the question should be dealt with in the contract between the parties. Consequently, he was unable to support the second part of the proposal anymore than the first.

76. Mr. SZÁSZ (Hungary) said that he too had problems with the Australian proposal. The first part implied that the goods would not conform to the contract unless their packaging gave them greater protection than they would normally have had. That provision might improve the minimum rules laid down in the present text of article 33 [became CISG article 35 ], but in view of the doubts as to its implications, it would be better to leave it to the parties who wished to go further than the minimum rules to settle the matter in the contract between them.

77. On the second part, he shared the view of the Swedish representative and considered that there too the question should be settled in the contract.

78. He supported the original text of article 33 [became CISG article 35 ].

79. Mr. KRISPIS (Greece) said he simply wished to point out that the idea underlying the Australian proposal was already expressed by the word "usual" in the original text. The proposal by Australia might be logical, but he did not see any need for it.

80. Mrs. KAMARUL (Australia) said she had been convinced by the arguments against the first part of her proposal and would withdraw it, but maintained the second part.

81. Mr. OLIVENCIA (Spain) said that it was precisely the second part of the proposal he had intended to support. It was evident that when the existing text referred to the usual manner of packaging, it was concerned with actual practice, which might not exist in the case of a new type of goods. In such cases, the contract would not normally provide for the type of packaging, especially as the buyer was liable not to know about the type of packaging used for such goods. He considered it was necessary to fill those gaps and therefore supported the Australian proposal.

82. Mr. KHOO (Singapore) supported the Australian proposal. He doubted whether a court would declare that packaging was necessary in the case of goods which did not require it, such as motor cars. The Australian proposal would of course be interpreted sensibly.

83. Mr. GHESTIN (France) said he was afraid the remaining part of the proposal would create serious difficulties. While the existing text referred to packaging in the usual manner, which was an objective fact, the reference to packaging in a manner adequate to protect the goods was subjective. One example was mineral water, which was delivered in glass or plastic bottles. Plastics had the advantage of being light, but were objected to by some consumers on ecological grounds. He wondered whether it would be considered that delivery did not conform if the buyer received plastic bottles when he had expected to have glass. There was an element of uncertainty there and he was therefore unable to support the Australian proposal.

84. Mr. HJERNER (Sweden) said he had reconsidered his position and now saw a possibility of agreeing to the Australian proposal on condition that the obligations of the seller were made clear in the light of the definition of the term "ex-factory". If the representative of Australia agreed to amend the text to read ". . . in such a manner as to enable the buyer to take delivery of the goods", he was prepared to support it. Otherwise, he would prefer the present text.

85. Mrs. KAMARUL (Australia) agreed to amend her text as suggested by the Swedish representative.

86. Mr. EYZAGUIRRE (Chile) supported the Australian proposal on the grounds that it filled a gap in the Convention: provision had not been made for the case of new types of goods for which there was no usual manner of packaging. He saw no objection to the amendment of the proposal as suggested by the representative of Sweden.

87. The CHAIRMAN announced that two votes would be taken. The first would be on the unamended proposal by Australia and the second on the proposal as amended by the Swedish representative.

88. The Australian amendment to article 33 [became CISG article 35 ], paragraph 1(d) (A/CONF.97/C.1/L.74, paragraph 2) was adopted.

89. The Australian amendment to article 33 [became CISG article 35 ], paragraph 1(d) (A/CONF.97/C.1/L.74, paragraph 2), as orally amended by the representative of Sweden, was rejected.

90. The CHAIRMAN asked the representative of Australia to introduce her second amendment (A/CONF.97/C.1/L.74, paragraph 1), on the addition of a paragraph 3 to the existing text of article 33 [became CISG article 35 ].

91. Mrs. KAMARUL (Australia) explained that her proposal, which was based on article 3, paragraph 2, of ULIS, was intended as a precaution. Some delegations might regard it as superfluous, but the matter was of concern to her delegation since the Australian courts had made it clear that they were inclined to be strict when there was a question of conformity between the goods delivered and the contract. She would be more satisfied therefore if her proposal were included in the Convention.

92. Mr. MICHIDA (Japan) said that the new paragraph proposed by Australia was the same as that of article 33, paragraph 2 of ULIS. In the general discussion of ULIS at the first UNCITRAL session in 1968, and during the proceedings of the Working Group on the International Sale of Goods which had begun in 1969, that provision had been criticized and had been withdrawn from the UNCITRAL text. It should be excluded for two reasons in particular. First, there was the uncertainty of the test of "insignificant". Depending on findings of "insignificant" non-conformity, the provision might deprive the buyer of his right to remedies for breach. Secondly, a breach however insignificant was nevertheless a breach for which the seller should be liable, and the buyer should not be denied his right to available remedies.

93. Mr. SHAFIK (Egypt) supported the Australian proposal which was useful in the sense that it would reduce losses in transit and would consequently fill a gap in the Convention.

94. Mr. ROGNLIEN (Norway) considered on the contrary that the Australian proposal served no purpose and that if it were to be adopted it should in any case not appear in article 33 [became CISG article 35 ], which was simply concerned with the characteristics of the goods to be delivered by the seller, but in the chapter of the Convention on remedies. If there was only an insignificant breach of the contract, there might be no damage, but if the breach led to damage, and economic loss was involved, the provisions of the Convention did provide and should provide a remedy.

95. Mr. BONELL (Italy) found the Australian proposal interesting. Article 33 [became CISG article 35 ] did not confine itself to stating, as it might have done, that a seller was to deliver goods that conformed with the contract. It went further, analysing just how far the conformity should go, and the provision was not counter-balanced by any reservation to the effect that there must be a certain margin of tolerance. If a comparison was made with conformity of documents, it would be seen that the problem could not be dealt with in the same way: there could be no margin of tolerance for documents, whereas there could be for goods. He would support the Australian proposal.

96. Mr. GHESTIN (France) said it seemed to him that there would then be three degrees of damage. In addition to major damage, which was grounds for abrogation of the contract, and insignificant damage, which was without consequence, there would be an intermediate category. That might lead to further complications and, what was more, it would not be in line with sales practice, and international sales practice in particular. Either there was a margin of tolerance covered by the contract or by usage, and in that respect usage was very important, or the price would be adjusted on the basis of the goods delivered, in accordance with the principle of rebate or allowance. He could not support the Australian proposal.

97. Mr. SZÁSZ (Hungary) considered that the purpose of [article 33] [became CISG article 35 ] was to enable one to determine when goods were in conformity with the contract and that conformity had to be interpreted very strictly, on the assumption that, if the parties wanted to allow a certain degree of tolerance, they would say so in the contract. It was therefore not necessary to say so in the Convention. In addition, the Australian proposal would indicate the consequences of non-conformity that was insignificant, which was not at all the purpose of article 33 [became CISG article 35 ]. He could not, therefore, support the Australian proposal.

98. The CHAIRMAN informed the representative of Australia that she could either ask for her proposal to be put to the vote, or resubmit it later as a separate article to appear elsewhere in the Convention, or withdraw it.

99. Mrs. KAMARUL (Australia) asked for her proposal to be put to the vote.

100. The Australian amendment for the addition of a paragraph 3 to article 33 [became CISG article 35 ] (A/CONF.97/C.1/L.74, paragraph 1) was rejected.

101. The CHAIRMAN proposed that the Norwegian amendment (A/CONF.97/C.1/L.102) should be referred to the Drafting Committee, since it was concerned only with a question of form.

102. It was so decided.

The meeting rose at 1 p.m.

Pace Law School Institute of International Commercial Law - Last updated January 29, 1999
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