TEXT OF ARTICLE 35
(1) The seller must deliver goods which are of the quantity, quality and description required
by the contract and which are contained or packaged in the manner required by the contract.
(2) Except where the parties have agreed otherwise, the goods do not conform with the
contract unless they:
(a) are fit for the purposes for which goods of the same description would ordinarily be
used;
(b) are fit for any particular purpose expressly or impliedly made known to the seller at the
time of the conclusion of the contract, except where the circumstances show that the
buyer did not rely, or that it was unreasonable for him to rely, on the seller's skill and
judgement;
(c) possess the qualities of goods which the seller has held out to the buyer as a sample or
model;
(d) are contained or packaged in the manner usual for such goods or, where there is no
such manner, in a manner adequate to preserve and protect the goods.
(3) The seller is not liable under subparagraphs (a) to (d) of the preceding paragraph for
any lack of conformity of the goods if at the time of the conclusion of the contract the
buyer knew or could not have been unaware of such lack of conformity.
OUTLINE OF ISSUES
Reproduced with permission of UNCITRAL
35A Quality, quantity and description required by contract (art. 35(1))
35B Requirements implied by law (art. 35(2) 35B1 Fitness for purposes for goods of same description (art. 35(2)(a))
35B2 Fitness for particular purpose made known to seller (art. 35(2)(b))
35B21 Reliance on seller's skill and judgment 35B3 Quality of goods held out as sample or model (art. 35(c))
35B4 Packaging to protect goods in usual manner for similar goods 35C Exception to seller's liability for non-conformity: 35C1 Buyer's knowledge of non-conformity at time of contracting
35C2 Parties have agreed otherwise (arts. 6, 35(2)) 35D Other issues concerning conformity of goods
DESCRIPTORS
Conformity of goods
CASE ANNOTATIONS: UNCITRAL DIGEST CASES PLUS ADDED CASES
Presented below is a composite list of Art. 35 cases reporting UNCITRAL Digest cases and other Art. 35 cases. All cases are listed in chronological sequence, commencing with the most recent. Asterisks identify the UNCITRAL Digest cases, commencing with the 15 October 2002 citation reported below. Cases are coded to the UNCITRAL Thesaurus.
English texts and full-text English translations of cases are provided as indicated. In most instances researchers can also access UNCITRAL abstracts and link to Unilex abstracts and full-text original-language case texts sourced from Internet websites and other data, including commentaries by scholars to the extent available. There are scholars who believe that there are circumstances in which the UNIDROIT Principles of International Commercial Contracts may be used to interpret or supplement this Article of the CISG. See match-up of this Article with counterpart provisions of the Principles and commentary on this subject. To the extent this reasoning fits, cases on the counterpart provisions of the UNIDROIT Principles may be relevant. To the extent available, such cases may be found on the Unilex website. Spain 17 January 2008 Supreme Court (Used automobiles case) Netherlands 31 October 2007 Rechtbank [District Court] Dordrecht
American Arbitration Association 23 October 2007 [Interim Award] (Macromex Srl. v. Globex International Inc.)
Spain 23 October 2007 Juzgado de Primera Instancia [District Court] La Laguna
Netherlands 29 August 2007 Rechtbank [District Court] Dordrecht (Isolcell Italia S.p.A. v. B. Numansdorp B.V)
Spain 3 July 2007 Audiencia Provincial [Appellate Court] Barcelona
Austria 19 April 2007 Oberster Gerichtshof [Supreme Court] (Scaffold hooks case) 35A ; 35B [translation available]
Stockholm Chamber of Commerce 5 April 2007 (Pressure sensors case) 35A ; 35B [English text]
Spain 22 March 2007 Audiencia Provincial [Appellate Court] Madrid
United States 31 January 2007 Federal District Court [Minnesota] (Travelers Property Casualty Company of America v. Saint-Gobain Technical Fabrics Canada Limited) 35B
Belgium 22 January 2007 Hof van Beroep [Appellate Court] Antwerp (B.V B.A. v. SA Montainer) 35A [translation available]
Germany 17 January 2007 Oberlandesgericht [Appellate Court] Saarbrücken
Germany 14 December 2006 Oberlandesgericht [Appellate Court] Koblenz (Bottles case) 35B4 [translation available]
Germany 12 December 2006 Landgericht [District Court] Coburg (Plants case) 35B ; 35B2 [translation available]
Germany 17 November 2006 Oberlandesgericht [Appellate Court] München (Dust ventilator case) [translation available]
Switzerland 27 October 2006 Tribunal cantonal [Canton Appellate Court] Valais (Saddles case)
Germany 19 October 2006 Oberlandesgericht [Appellate Court] Koblenz (T-Shirts case) 35A [translation available]
Germany 13 September 2006 Landgericht [District Court] Berlin (Auston Martin automobile case) 35A ; 35B [translation available]
Austria 12 September 2006 Obster Gerichtshof [Supreme Court] (CD media case) [translation available]
United States 23 August 2006 Federal District Court [New York] (TeeVee Tunes v. Gerhard Schubert GmbH) 35B
Netherlands 18 July 2006 Gerechtshof [Appellate Court] Arnhem (Potting soil case) [translation available]
Netherlands 28 June 2006 Rechtbank [District Court] Arnhem (Silicon Biomedical Instruments B.V. v. Erich Jaeger GmbH) [translation available]
Denmark 3 May 2006 Højesteret [Supreme Court]
Belgium 24 April 2006 Hof van Beroep [Appellate Court] Antwerpen (GmbH Lothringer Gunther Grosshandelsgesellschaft für Bauelemente und Holzwerkstoffe v. NV Fepco International) 35A [translation available]
Germany 20 April 2006 Landgericht [District Court] Aschaffenburg (Cotton twilled fabric case) 35A [translation available]
Belgium 19 April 2006 Rechtbank van Koophandel [Commercial Court] Hasselt (Bruggen Deuren BVBA v. Top Deuren VOF) 35B ; 35B3 [translation available]
Germany 8 February 2006 Oberlandesgericht [Appellate Court] Karlsruhe (Hungarian wheat case) 35D [translation available]
Austria 25 January 2006 Oberster Gerichtshof [Supreme Court] (Frozen pork case) 35A ; 35B [translation available]
Austria 23 January 2006 Oberlandesgericht [Appellate Court] Linz (Auto case) 35A ; 35B [translation available]
Germany 29 November 2005 Landgericht [District Court] München (Frozen vegetables case) 35A ; 35B1 [translation available]
Russia 18 October 2005 Arbitration Award 21/2005 (Varnish and paint machine case) 35A [translation available]
France 13 October 2005 Cour d'appel [Appellate Court] (Versailles)
Switzerland 10 October 2005 Corte civile del Tribunale federale svizzero [Supreme Court]
France 4 October 2005 Cour de Cassation [Supreme Court] (Engine parts case) [translation available]
Spain 26 September 2005 Audiencia Provincial [Appellate Court] Palencia (Printing machine case) 35A
China 23 September 2005 New Pudong District People's Court of Shanghai (Xi'an Yun Chang Trade Ltd. v. An Tai International (USA)) 35A [translation available]
Belgium 20 September 2005 Rechtbank van Koophandel [Commercial Court] Hasselt (J.M. Smithuis Pre Pain v. Bakkershuis) 35A [translation available]
Switzerland 5 July 2005 Obergericht [Appellate Court] Zug (Diesel oil case) [translation available]
China 27 June 2005 Shandong Higher People's Court [Appellate Court] (Norway Royal Supreme Seafoods v. China Rizhao Jixiang Ocean Food Company et al.) 35A [translation available]
Finland 24 May 2005 Hovioikeus / hovrätt [Appellate Court] Turku (MP Maustepalvelu v. Omega Spice s.l.)
United States 23 May 2005 Federal Appellate Court [7th Circuit] (Chicago Prime Packers v. Northam) 35B
United States 10 May 2005 Federal District Court [Kansas] (Guang Dong Light Headgear Factory Co. Ltd. v. ACI International Inc.)
Austria 5 May 2005 Oberster Gerichtshof [Supreme Court]
United States 30 March 2005 Federal District Court [Illinois] (Caterpillar v. Usinor Industeel) 35A ; 35B
Spain 29 March 2005 Juzgado de Primera Instancia [Court of First Instance] Tudela 35A ; 35B [translation available]
Germany 2 March 2005 Bundesgerichtshof [Federal Supreme Court] 35A ; 35B [translation available]
France 25 February 2005 Cour d'appel [Appellate Court] Paris
Switzerland 21 February 2005 Kantonsgericht [Appellate Court] Valais (CNC machine case) 35A [translation available]
Belgium 31 January 2005 Rechtbank van Koophandel [Commerical Court] Hasselt (BV Wolvega Panelen v. NV FALL) 35A [translation available]
Russia 29 December 2004 Arbitration Award 189/2003 [translation available]
Russia 21 December 2004 Arbitration Award 39/2003 35A [translation available]
Spain 9 November 2004 Audiencia Provincial [Appellate Court] Barcelona
Germany 26 October 2004 Landgericht [District Court] Saarbrücken [translation available]
Belgium 4 October 2004 Hof van Beroep [Appellate Court] Ghent (Deforche NV v. Prins Gebroeders Bouwstoffenhandel BV) [translation available]
Germany 6 September 2004 Landgericht [District Court] Hamburg 35A [translation available]
Switzerland 7 July 2004 Bundesgericht [Supreme Court] (Cable drum case) [translation available]
Belgium 30 June 2004 Hof van Beroep [Appellate Court] Ghent (Van Oers BV v. NV Turbo's Hoet Truckcenter Productie) [translation available]
France 4 June 2004 Cour d’appel [Appellate Court] Paris 35A [translation available]
Australia 27 May 2004 Supreme Court of Western Australia (Summit Chemicals v. Vetrotex Espana) 35A ; 35B
United States 21 May 2004 U.S. District Court [Illinois] (Chicago Prime Packers v. Norham)
Belgium 10 May 2004 Hof van Beroep [Appellate Court] Gent [translation available]
Spain 28 April 2004 Audiencia Provincial [Appellate Court] Barcelona 35B2 [translation available]
Germany 21 April 2004 Oberlandesgericht [Appellate Court] Düsseldorf [15 U 222/02] 35A [detailed abstract available]
Belgium 14 April 2004 Hof van Beroep [Appellate Court] Antwerp (ING Insurance v. HVA Koeling BVBA and Fagard Winand / HVA Koeling BVBA v. Fagard Winand and Besseling Agri-Technic BV) [translation available]
United States 29 March 2004 Federal Bankruptcy Court [Oregon] (In re: Siskiyou Evergreen, Inc. Debtor)
Netherlands 17 March 2004 Rechtbank [District Court] Arnhem [translation available]
China 12 March 2004 CIETAC Arbitration Award [CISG 2004/04] (Fireworks case) [translation available]
Germany 10 March 2004 Oberlandesgericht [Appellate Court] Celle [translation available]
Switzerland 11 February 2004 Appelationshof [Appellate Court] Bern (Cable case) 35A [translation available]
Germany 2 February 2004 Oberlandesgericht [Appellate Court] Zweibrücken [translation available]
Russia 2 February 2004 Arbitration Award 56/2003 35B [translation available]
Germany 29 January 2004 Oberlandesgericht [Appellate Court] Frankfurt 35A ; 35B [translation available]
Spain 28 January 2004 Audiencia Provincial [Appellate Court] Barcelona 35B2
Switzerland 27 January 2004 Kantonsgericht [District Court] Schaffhausen 35A ; 35B [translation available]
Switzerland 13 January 2004 Bundesgericht [Supreme Court] 35B ; 35D France 18 December 2003 Cour d’appel [Appellate Court] Lyon 35B2
Switzerland 18 December 2003 Handelsgericht [Commercial Court] Aargau (Building material and timberware case) [translation available]
China 6 November 2003 CIETAC Arbitration Award [CISG 2003/15] (Fiber glass mesh case) 35A [translation available]
Spain 5 November 2003 Audiencia Provincial [Appellate Court] Vizcaya
Switzerland 20 October 2003 Kantonsgericht [District Court] Schaffhausen [detailed abstract available]
France 24 September 2003 Cour de Cassation [Supreme Court] 35A ; 35B ; 35D [translation available]
Switzerland 22 August 2003 Appellationsgericht [Appellate Court] Basel 35A [detailed abstract available]
Canada 21 August 2003 British Columbia Supreme Court (Mansonville v. Kurtz) 35A ; 35B
China 19 June 2003 CIETAC Arbitration Award [CISG 2003/09] (PTA case) 35A [translation available]
Russia 6 June 2003 Arbitration Award No. 97/2002 35A ; 35B ; 35B3 [translation available]
China 3 June 2003 CIETAC Arbitration Award [CISG/2003/01] (Clothes case) 35A ; 35B1 [translation available]
Netherlands 21 May 2003 Rechtbank [District Court] Zwolle
Spain 8 May 2003 Audiencia Provincial [Appellate Court] Madrid 35B2
Switzerland 30 April 2003 Cantonal [Appellate Court] Valais (Furniture case) [translation available]
Australia 24 April 2003 Supreme Court of Victoria (Playcorp Pty LKtd v Taiyo Kogyo Limited) 35A ; 35B
Netherlands 23 April 2003 Gerechtshof [Appellate Court] 's-Gravenhage 35A [translation available]
New Zealand 31 March 2003 High Court, Auckland (International Housewares v SEB) 35A ; 35B
Germany 25 March 2003 Landgericht [District Court] Köln [translation available]
Germany 18 March 2003 Landgericht [District Court] Giessen
Austria 27 February 2003 Oberster Gerichtshof [Supreme Court] 35A ; 35B [translation available]
Russia 17 February 2003 Arbitration Award No. 168/2001 [translation available]
Netherlands 29 January 2003 Rechtbank [District Court] Zwolle
United States 29 January 2003 U.S. District Court [Illinois] (Ajax Tool Works v. Can-Eng Manufacturing)
Netherlands 22 January 2003 Rechtbank [District Court] Zwolle
Australia 17 January 2003 Supreme Court of Western Australia (Ginza Pte Ltd v Vista Corporation Pty Ltd) 35A ; 35B
France 7 January 2003 Tribunal de commerce [District Court] Aix-en-Provence
China 23 December 2002 CIETAC Arbitration Award [CISG 2002/28] (Hydraulic press case) 35A [translation available]
Belgium 16 December 2002 Hof van Beroep [Appellate Court] Antwerpen (Steel plates case) 35A ; 35B1 ; 35D [translation available]
Russia 10 December 2002 Arbitration Award No. 211/2001 [translation available]
Italy 26 November 2002 Tribunale [District Court] Rimini [translation available]
Germany 13 November 2002 Oberlandesgericht [Appellate Court] München
Switzerland 5 November 2002 Handelsgericht [Commercial Court] des Kantons Aargau 35A ; 35B [translation available]
China 4 November 2002 CIETAC Arbitration Award [CISG 2002/08] (Beech log case) 35A ; 35B [translation available]
* Netherlands 15 October 2002 Netherlands Arbitration Institute Case No. 2319 35B [English text]
Germany 14 October 2002 Oberlandesgericht [Appellate Court] Köln [translation available]
Spain 3 October 2002 Audiencia Provincial [Appellate Court] Pontevedra [digest available]
Canada 20 September 2002 Manitoba Court of Queen's Bench (Brown & Root v. Aerotech) 35A
Germany 22 August 2002 Oberlandesgericht [Appellate Court] Schleswig 35A [translation available]
Germany 26 July 2002 Oberlandesgericht [Appellate Court] Zweibrücken 35A [translation available]
Argentina 21 July 2002 Cámara Nacional de Apelaciones en lo Comercial [Appellate Court] 35D [translation available]
China 18 July 2002 CIETAC Arbitration Award [CISG 2002/20] (Textile equipment case) 35B [translation available]
China 15 July 2002 CIETAC Arbitration Award [CISG 2002/19] (Coating equipment case) 35A [translation available]
Austria 11 July 2002 Oberster Gerichtshof [Supreme Court]
United States 21 June 2002 U.S. Circuit Court of Appeals [4th Cir.] (Schmitz-Werke v. Rockland)
Germany 4 June 2002 Landgericht [District Court] Stuttgart 35A [translation available]
Finland 12 April 2002 Hovrätt [Appellate Court] Turku 35A ; 35B [translation available]
Germany 11 April 2002 Amtsgericht [Lower Court] Viechtach 35A [translation available]
Switzerland 11 April 2002 Tribunal Cantonal [Appellate Court] Vaud
United States 29 March 2002 U.S. District Court [New York] (TeeVee Toons v. Gerhard Schubert)
Germany 27 February 2002 Landgericht [District Court] München 35B2 [translation available]
Germany 20 February 2002 Landgericht [District Court] München [translation available]
Denmark 31 January 2002 Sø og Handelsretten [Maritime Commercial Court] 35A ; 35C1 [translation available]
Belgium 18 January 2002 Rechtbank van Koophandel [District Court for Commercial Matters] Mechelen 35B1
Germany 9 January 2002 Bundesgerichtshof [Federal Supreme Court] 35A [translation available]
France 8 January 2002 Cour de Cassation [Supreme Court]
China 2002 Shanghai Yangpu District People's Court (China Xhanghai Dongda Import & Export Corp. v. Germany Laubholz – Meyer Corp) 35A [translation available]
ICC 2002 International Court of Arbitration, Case 10377 (Textile product machines case) 35A ; 35B [English text]
ICC 2002 International Court of Arbitration, Case 11333 (Machine case) [English text]
* Italy 13 December 2001 Tribunale [District Court] Busto Arsizio 35B3
China 28 November 2001 Higher People's Court [Appellate Court] of Jiangsu Province (Shanghai Shen He Import and Export Ltd. v. Japan Itochu Corp.) [translation available]
Germany 31 October 2001 Bundesgerichtshof [Federal Supreme Court] [translation available]
France 2 October 2001 Cour de Cassation [Supreme Court] [translation available]
Germany 28 June 2001 Landgericht [District Court] Trier
France 14 June 2001 Cour d'appel [Appellate Court] Paris [translation available]
Canada 1 May 2001 Superior Court of Justice, Ontario (Dunn Paving Ltd. v. Aerco Trading Inc.)
Belgium 25 April 2001 Rechtbank van Koophandel [District Court] Veurne 35B [translation available]
United States 10 April 2001 U.S. Federal Bankruptcy Court [Ohio] (Victoria Alloys v. Fortis
Bank)
Germany 29 March 2001 Landgericht [District Court] Trier 35B [translation available]
Germany 12 March 2001 Oberlandesgericht [Appellate Court] Stuttgart 35A [translation available]
Belgium 8 March 2001 Cour d'appel [Appellate Court] Mons
Germany 31 January 2001 Landgericht [District Court] Hamburg (Frozen pork and apple blinies case) 35A ; 35B [translation available]
* United States 30 January 2001 U.S. District Court [California] (Supermicro Computer v. Digitechnic)
Belgium 29 January 2001 Rechtbank van Koophandel [District Court] Ieper
Switzerland 22 December 2000 Bundesgericht [Federal Supreme Court] 35A [translation available]
Denmark 1 November 2000 Højesteret [Supreme Court]
France 24 October 2000 Cour d'appel [Appellate Court] Colmar [translation available]
* Italy 12 July 2000 Tribunale [District Court] Vigevano 35A ; 35B [translation available]
Russia 21 June 2000 Arbitration Court [Appellate Court] for Moscow Region (Case No. KG-A40/2396-00) 35A [translation available]
* Germany 9 May 2000 Landgericht [District Court] Darmstadt 35A ; 35B [translation available]
Argentina 24 April 2000 Cámara Nacional de Apelaciones en lo Comercial [Appellate Court] 7C231
Russia 21 April 2000 Appellate Division of Arbitration Court for Moscow City (Case No. A 40-39073/99-40-395) 35A [translation available]
Austria 13 April 2000 Oberster Gerichtshof [Supreme Court] 35B [translation available]
Germany 13 April 2000 Amtsgericht [Lower Court] Duisburg [translation available]
Germany 6 April 2000 Landgericht [District Court] München [translation available]
Netherlands 23 March 2000 Arrondissementsrechtbank [District Court] Rotterdam
Spain 2 March 2000 Audiencia Provincial [Appellate Court] Granada 35A ; 35B [translation available]
Russia 28 February 2000 Arbitration Court for Moscow City (Case No. A 40-39073/99-40-395) 35A [translation available]
Canada 26 January 2000 Ontario Court of Appeal (Nova Tool v. London Industries) 35A ; 35B
Russia 24 January 2000 Arbitration award 54/1999 35A [translation available]
Netherlands 20 January 2000 Arrondissementsrechtbank [District Court] Rotterdam 35A
China 19 January 2000 CIETAC Arbitration Award [CISG/2000/08]
(Steel cylinders case) 35A [translation available]
China 7 January 2000 CIETAC Arbitration Award [CISG/2000/06] (Cysteine case) 35A [translation available]
China 2000 CIETAC Arbitration Award [CISG 2000/17] (Souvenir coins case) 35B [translation available]
China 29 December 1999 CIETAC Arbitration Award [CISG/1999/33] (Indonesian round logs case) 35A [translation available]
Germany 18 November 1999 Oberlandesgericht [Appellate Court] Koblenz
Denmark 10 November 1999 Veste Landsret [Western High Court] 35A [translation available]
Netherlands 14 October 1999 Arrondissementsrechtbank [District Court] Rotterdam [translation available]
* Canada 31 August 1999 Ontario Superior Court of Justice (La San Giuseppe v. Forti Moulding Ltd) 35A ; 35B
ICC August 1999 International Court of Arbitration, Case 9887 [English text]
Austria 29 June 1999 Oberster Gerichtshof [Supreme Court] 35D [translation available]
ICC June 1999 International Court of Arbitration, Case 9187 [English text]
China 31 May 1999 CIETAC Arbitration Award [CISG/1999/27] (Indium ingot case) 35C2 [translation available]
Germany 25 May 1999 Landgericht [District Court] Berlin [translation available]
* United States 17 May 1999 Federal District Court [Louisiana] (Medical Marketing v. Internazionale Medico Scientifica) 35B
Netherlands 27 April 1999 Gerechtshof [Appellate Court] Arnhem 35D [translation available]
China 20 April 1999 CIETAC Arbitration Award [CISG/1999/23] (Chemical cleaning product equipment case) 35A [translation available]
China 12 April 1999 CIETAC Arbitration Award [CISG/1999/22] (Bud rice dregs case) [translation available]
China 7 April 1999 CIETAC Arbitration Award [CISG/1999/20] (PVC suspension resin case) 35A [translation available]
China 5 April 1999 CIETAC Arbitration Award [CISG/1999/19] (Air conditioner equipment case) 35A [translation available]
China 30 March 1999 CIETAC Arbitration Award [CISG/1999/17] (Electric heater case) 35A [translation available]
China 30 March 1999 CIETAC Arbitration Award [CISG/1999/16] (Flanges case) 35A ; 35B [translation available]
China 29 March 1999 CIETAC Arbitration Award [CISG/1999/14] (Flanges case) 35A [translation available]
* Germany 24 March 1999 Bundesgerichtshof [Federal Supreme Court] 35A ; 35B1[translation available]
Austria 11 March 1999 Oberster Gerichtshof [Supreme Court] [translation available]
China 1 March 1999 CIETAC Arbitration Award [CISG/1999/12] (Canned mandarin oranges case) 35A [translation available]
France 10 February 1999 Cour d’appel [Appellate Court] Paris
China 1999 CIETAC Arbitration award 35A [translation available]
ICC 1999 International Court of Arbitration, Case 9773 35A ; 35B3
Canada 16 December 1998 Ontario Court, General Division (Nova Tool v. London Industries) 35A ; 35B
* Switzerland 30 November 1998 Handelsgericht [Commercial Court] Zürich 35A [translation available]
China 26 November 1998 CIETAC Arbitration Award [CISG/1998/06] (Leather gloves case) 35A [translation available]
Germany 25 November 1998 Bundesgerichtshof [Federal Supreme Court] [translation available]
Denmark 4 November 1998 Randers Byret [County Court] (Christmas tree case) 35A [translation available]
United States 27 October 1998 Federal District Court [Illinois] (Mitchell Aircraft Spares v. European Aircraft Service)
Netherlands 2 October 1998 Arrondissementsrechtbank [District Court] 's Hertogenbosch 35A ; 35B [translation available]
China 25 September 1998 CIETAC Arbitration Award [CISG 1998/12] (Health supplement case) 35A [translation available]
Germany 24 September 1998 Landgericht [District Court] Regensburg 35A ; 35B21 ; 35B3 [translation available]
* Switzerland 21 September 1998 Handelsgericht [Commercial Court] Zürich (Catalogue case) 35A [translation available]
Germany 11 September 1998 Oberlandesgericht [Appellate Court] Koblenz [translation available]
* Finland 30 June 1998 Helsingin hovioikeus [Appellate Court] Helsinki 35A [translation available]
Switzerland 30 June 1998 Kantonsgericht Wallis / Tribunal cantonal Valais [Canton Appellate Court] (Granite stones case) [translation available]
* Switzerland 29 June 1998 Tribunal Cantonal [Appellate Court] Valais
* Stockholm Chamber of Commerce 5 June 1998 Arbitration award (Beijing Light Automobile Co. v. Connell) [English text]
Germany 3 June 1998 Oberlandesgericht [Appellate Court] Saarbrücken [translation available]
* Germany 31 March 1998 Oberlandesgericht [Appellate Court] Zweibrücken 35A
Germany 24 March 1998 Landgericht [District Court] Berlin (Knitwear case) [translation available]
* France 18 March 1998 Cour d'appel [Appellate Court] Paris 35D [translation available]
Germany 11 March 1998 Oberlandesgericht [Appellate Court] München 35A [translation
available]
* France 4 March 1998 Cour d'appel [Appellate Court] Paris 35D [translation available]
ICC March 1998 International Court of Arbitration, Case 9117 [English text]
* Finland 29 January 1998 Helsingfors hovrätt [Appellate Court] Helsinki [translation available]
France 19 January 1998 Tribunal de commerce [District Court] Besançon 35A ; 35B [translation available]
* Switzerland 15 January 1998 Tribunale d'appello [Appellate Court] Lugano [translation available]
China 16 December 1997 CIETAC Arbitration Award [CISG/1997/35] (Hot-dipped galvanized steel coils case) 35A ; 35B [translation available]
China 20 November 1997 CIETAC Arbitration Award [CISG/1997/32] (Rebar coil case) 35A [translation available]
* Switzerland 28 October 1997 Tribunal Cantonal [Appellate Court] Valais 35C
France 28 October 1997 Tribunal de commerce [District Court] Paris
China 27 October 1997 CIETAC Arbitration Award [CISG/1997/31] (Hot-rolled coils) 35A [translation available]
* Belgium 6 October 1997 Rechtbank van Koophandel [District Court] Kortrijk 35A
[translation available]
China 8 September 1997 CIETAC Arbitration Award [CISG/1997/27] (BOPP film case) 35A [translation available]
Germany 21 August 1997 Oberlandesgericht [Appellate Court] Köln 35A [translation available]
China 23 July 1997 CIETAC Arbitration Award [CISG/1997/23] (Polypropylene case) 35A ; 35B4 [translation available]
Netherlands 17 July 1997 Arrondissementsrechtbank [District Court] Arnhem
Germany 9 July 1997 Oberlandesgericht [Appellate Court] München [7 U 2070/97] [translation available]
Netherlands 7 July 1997 Arrondissementsrechtbank [District Court] Arnhem 35A ; 35B
Germany 25 June 1997 Oberlandesgericht [Appellate Court] Karlsruhe [translation available]
Spain 20 June 1997 Audiencia Provincial [Appellate Court] Barcelona 35A ; 35B [translation
available]
Switzerland 12 June 1997 Pretore [District Court] Lugano
China 23 April 1997 CIETAC Arbitration Award [CISG/1997/08] (Automobile case) 35B [translation available]
Germany 17 April 1997 Landgericht [District Court] Frankenthal
Switzerland 14 March 1997 Tribunal [District Court] Genève
Spain 4 February 1997 Audiencia Provincial [Appellate Court] Barcelona 35B2 [translation
available]
* Germany 31 January 1997 Oberlandesgericht [Appellate Court] Koblenz [translation available]
Italy 30 January 1997 Pretura [District Court] Torino[translation available]
Russia 27 January 1997 Arbitration award 94/1996 35A ; 35B4 [translation available]
Russia 22 January 1997 Arbitration award 155/1996 35A [translation available]
Finland 17 January 1997 Tampere Court of First Instance 35A ; 35B [translation availabl
* Germany 8 January 1997 Oberlandesgericht [Appellate Court] Köln [translation available]
Belgium 6 January 1997 Rechtbank van Koophandel [District Court] Kortrijk
China 1997 Shanghai Higher People's Court [translation available]
ICC January 1997 International Court of Arbitration, Case 8786 [English text]
France 17 December 1996 Cour de Cassation [Supreme Court] 35B1 [translation available]
* Belgium 16 December 1996 Rechtbank van Koophandel [District Court] Kortrijk 35D
Netherlands 16 December 1996 Gerechtshof [Appellate Court] 's Hertogenbosch
* Germany 4 December 1996 Bundesgerichtshof [Federal Supreme Court] [translation available]
China 26 October 1996 CIETAC Arbitration Award [CISG/1996/49] (Cotton bath towel case) 35B1 [translation available]
China 23 October 1996 CIETAC Arbitration Award [CISG/1996/48] (Channel steel case) 35B2 [translation available]
Germany 2 October 1996 Landgericht [District Court] Heidelberg
ICC October 1996 International Court of Arbitration, Case 8740 35A [English text]
China 18 September 1996 CIETAC Arbitration Award [CISG/1996/43] (Agricultural products case) 35B3 [translation available]
China 6 September 1996 CIETAC Arbitration Award [CISG/1996/42] (Engines case) [translation available]
China 16 August 1996 CIETAC Arbitration Award [CISG/1996/39] (Dioctyl phthalate case) [translation available]
China 16 July 1996 CIETAC Arbitration Award [CISG/1996/31] (Hot-rolled steel plates case) 35A [translation available]
* Germany 25 June 1996 Landgericht [District Court] Paderborn 35A [translation available]
* ICC June 1996 International Court of Arbitration, Case 8247 35A ; 35B [English text]
China 29 May 1996 CIETAC Arbitration Award [CISG/1996/26] (Handicrafts case) 35A ; 35B3 [translation available]
China 22 May 1996 CIETAC Arbitration Award [CISG/1996/25] (Broadcasting equipment case) 35A [translation available]
* Germany 21 May 1996 Oberlandesgericht [Appellate Court] Köln 35A ; 35C1 ; 35C2
[translation available]
* France 15 May 1996 Cour d'appel [Appellate Court] Grenoble 35B1
* Mexico 29 April 1996 Compromex Arbitration award 35B4 [translation available]
* Germany 19 April 1996 Landgericht [District Court] Aachen
Germany 3 April 1996 Bundesgerichtshof [Federal Supreme Court] 35D [translation available]
Germany 12 March 1996 Landgericht [District Court] Bad Kreuznach
Russia 12 March 1996 Arbitration award 166/1996
35B1 ; 35B2 [translation available]
China 8 March 1996 CIETAC Arbitration Award [CISG/1996/12] (Old boxboard corrugated cartons case) 35A ; 35D [translation available]
China 14 February 1996 CIETAC Arbitration Award [CISG/1996/09] (Bicycles case) 35A ; 35B [translation available]
Germany 29 January 1996 Amtsgericht [Lower Court] Augsburg (Shoe case) 35D [translation added]
* France 23 January 1996 Cour de Cassation [Supreme Court] 35B [translation available]
* France 13 December 1995 Cour d'appel [Appellate Court] Paris [translation available]
* United States 6 December 1995 Federal Appellate Court [2nd Circuit] (Delchi Carrier v.
Rotorex) 35A ; 35B3
Switzerland 30 November 1995 Kantonsgericht [District Court] Zug
Germany 16 November 1995 Landgericht [District Court] Köln
* Austria 9 November 1995 Oberlandesgericht [Appellate Court] Graz 35A ; 35B3 [translation available]
* Germany 12 October 1995 Landgericht [District Court] Trier [translation available]
Germany 20 September 1995 Oberlandesgericht [Appellate Court] Nürnberg
* France 13 September 1995 Cour d'appel [Appellate Court] Grenoble 35B [translation
available]
* Germany 21 August 1995 Landgericht [District Court] Ellwangen 35B [translation available]
Austria 28 June 1995 Landesgericht [District Court] Graz
France 26 April 1995 Cour d'appel [Appellate Court] Grenoble (Marques Roque v. Manin Riviére) 35B2 [translation available]
Switzerland 26 April 1995 Handelsgericht [Commercial Court] Zürich 35D
Germany 5 April 1995 Landgericht [District Court] Landshut 35A [translation available]
China 22 March 1995 CIETAC Arbitration Award [CISG/1995/05] (Down jacket and winter coat case) 35A [translation available]
Germany 20 March 1995 Landgericht [District Court] München [translation available]
* Germany 8 March 1995 Bundesgerichtshof [Federal Supreme Court] 35B1 ; 35B2 ; 35B4 [translation available]
ICC March 1995 International Court of Arbitration, Case 8213 35A ; 35B [English text]
Germany 15 February 1995 Landgericht [District Court] Oldenburg
Germany 8 February 1995 Oberlandesgericht [Appellate Court] München [7 U 3758/94] (Plastic granulate case) [translation available]
Germany 8 February 1995 Landgericht München [translation available]
China 4 January 1995 CIETAC Arbitration Award [CISG/1995/02] (Shirts case) 35A [translation available]
ICC January 1995 International Court of Arbitration, Case 7754 [English text]
Germany 14 December 1994 Oberlandesgericht [Appellate Court] Hamburg
Russia 14 December 1994 Arbitration award 171/1994
Russia 14 December 1994 Arbitration award 172/1994
China December 1994 Fujian Higher People's Court [Appellate Court] [translation available]
Russia 17 November 1994 Arbitration award 493/1993
* Germany 15 September 1994 Landgericht [District Court] Berlin 35B [translation available]
United States 9 September 1994 Federal District Court [Northern Dist. NY] (Delchi Carrier v. Rotorex) 35A ; 35B3
China September 1994 CIETAC Arbitration award
* Germany 25 August 1994 Landgericht [District Court] Düsseldorf (Fashion goods case) 35D [translation available]
* Austria 1 July 1994 Oberlandesgericht [Appellate Court] Innsbruck 35A ; 35B [translation available]
Germany 4 May 1994 Amtsgericht [Lower Court] Charlottenburg 35B [translation available]
* Germany 20 April 1994 Oberlandesgericht [Appellate Court] Frankfurt 35B2 ; 35B4
China 30 March 1994 CIETAC Arbitration Award [CISG/1994/04] (Cow's liver fungus case) 35B4 [translation available]
Germany 2 March 1994 Oberlandesgericht [Appellate Court] München [translation available]
Germany 10 February 1994 Oberlandesgericht [Appellate Court] Düsseldorf [6 U 32/93] [translation available]
Germany 10 February 1994 Oberlandesgericht [Appellate Court] Düsseldorf [6 U 119/93] 35B2
; 35D [translation available]
China 20 January 1994 CIETAC Arbitration Award [CISG/1994/02] (Hydraulic press case) 35C1 [translation available]
* Germany 18 January 1994 Oberlandesgericht [Appellate Court] Frankfurt [translation
available]
ICC 1994 International Court of Arbitration, Case 7531 35A ; 35B [English text]
ICC 1994 International Court of Arbitration, Case 7565 [English text]
Germany 17 September 1993 Oberlandesgericht [Appellate Court] Koblenz [translation available]
* Switzerland 9 September 1993 Handelsgericht [Commercial Court] Zürich (Furniture case) [translation available]
China 10 July 1993 CIETAC Arbitration Award [CISG/1993/09] (Heliotropin case) 35A ; 35B3 [translation available]
Germany 24 May 1993 Landgericht [District Court] München
Germany 14 May 1993 Landgericht [District Court] Aachen [translation available]
Germany 14 April 1993 Amtsgericht [Lower Court] Cloppenburg [translation available]
Germany 12 March 1993 Oberlandesgericht [Appellate Court] Düsseldorf [translation available]
Germany 13 January 1993 Oberlandesgericht [Appellate Court] Saarbrücken (Doors case) [translation available]
China 9 January 1993 CIETAC Arbitration Award [CISG/1993/03] (Linseed cake case) 35A ; 35B [translation available]
Germany 8 January 1993 Oberlandesgericht [Appellate Court] Düsseldorf [translation
available]
* ICC 1993 International Court of Arbitration, Case 6653 35D [translation available]
China 14 December 1992 Jiangxi Higher People's Court (Ao Long v. Jiangxi Province Export)
* Germany 14 August 1991 Landgericht [District Court] Baden-Baden [translation available]
Germany 13 June 1991 Oberlandesgericht [Appellate Court] Frankfurt
Germany 3 April 1990 Landgericht [District Court] Aachen 35A [translation available]
Iran/U.S. Claims Tribunal 16 June 1988 (Islamic Republic of Iran v. U.S.)
CASE DIGEST AND ANALYSIS
The UNCITRAL Digest of case law on the United
A/CN.9/SER.C/DIGEST/CISG/35 [8 June 2004]
(1) The seller must deliver goods which are of the quantity, quality and description required by the contract and which are contained or packaged in the manner required by the contract. (2) Except where the parties have
agreed otherwise, the goods do not conform with the contract unless they: (a) are fit for the purposes
for which goods of the same description would ordinarily be used;
(3) The seller is not liable
under subparagraphs (a) to (d) of the preceding paragraph for any
lack of conformity of the goods if at the time of the conclusion of the
contract the buyer knew or could not have been unaware of such lack of
conformity.
DIGEST OF ARTICLE 35 CASE LAW
1. Article 35 of the CISG defines standards for determining whether goods delivered by the seller conform to the
contract in terms of type, quantity, quality, and packaging, thereby defining
the seller's obligations with respect to these crucial aspects of contractual
performance. Two courts have stated that the unitary notion of conformity
defined in article 35 displaces the concepts of "warranty" found in many
domestic laws.[1] 2. In general, a failure by the seller to deliver goods that meet the applicable requirements of article 35
constitutes a breach of the seller's obligations,[2]
although it has been stated that a failure of goods to conform to the contract
is not a breach if the non-conforming goods are equal in value and utility to
conforming goods.[3] A seller's
breach of its obligations under article 35, furthermore, can in proper
circumstances rise to the level of a fundamental breach of contract as defined
in article 25 of the Convention, and thus justify the buyer in avoiding the
contract under article 49(1) of the Convention.[4] 3. Article 35(1) requires a seller to deliver goods that meet the specifications of the contract in terms of
description, quality, quantity and packaging. Thus it has been found that a
shipment of raw plastic that contained a lower percentage of a particular
substance than that specified in the contract, and which as a result produced
window blinds that did not effectively shade sunlight, did not conform to the
contract, and the seller had therefore breached its obligations.[5] It has also been found that a shipment of goods containing less than the
quantity specified in the contract lacks conformity under article 35(1), with
the court noting that a lack of conformity comprises both a lack of quality and
a lack of quantity.[6] A used car
that had been licensed two years earlier than indicated in the car's documents
and whose odometer did not state the full mileage on the car was found to be
non-conforming under article 35(1).[7]
On the other hand, one court has concluded that there was no violation of
article 35(1) when the seller delivered shellfish containing a high level of
cadmium because the parties did not specify a maximum cadmium level in their
agreement.[8]
4. In ascertaining, for purposes of
article 35(1), whether the contract requires goods of a particular quantity,
quality or description, or requires that the goods be contained or packaged in
a particular manner, one must refer to general rules for determining the
content of the parties' agreement.[9]
In this connection, one court, on appeal of the decision concerning shellfish
with high cadmium levels mentioned in the previous paragraph, found that the
seller had not impliedly agreed to comply with recommended (but not legally
mandatory) domestic standards for cadmium in shellfish existing in the buyer's
country.[10] The court
reasoned that the mere fact the seller was to deliver the shellfish to a
storage facility located in the buyer's country did not constitute an implied
agreement under article 35(1) to meet the standards for resalability in the
buyer's country or to comply with public law provisions of the buyer's country
governing resalability.[11] 5. Article 35(2) states standards relating to the goods' quality, function and packaging that, while not
mandatory, are presumed to be a part of sales contracts. In other words, these
standards are implied terms that bind the seller even without affirmative
agreement thereto. If the parties do not wish these standards to apply to their
contract, they can (in the words of art. 35) "agree[...] otherwise."[12]
Unless the parties exercise their autonomous power to contract out the
standards of article 35(2), they are bound by them.[13]
An arbitral tribunal has found that an agreement as to the general quality of
goods did not derogate from article 35(2) if the agreement contained only
positive terms concerning the qualities that the goods would possess, and not
negative terms relieving the seller of responsibilities.[14]
One court applied domestic law to invalidate a particular contract clause that
attempted to exclude the seller's liability for a lack of conformity in the goods:
the court held that the question of the validity of such a clause is an issue
beyond the scope of the CISG, and is governed by the domestic law applicable
under private international law rules.[15] 6. Article 35(2) is comprised of four
subparts. Two of the subparts (art. 35(2)(a) and art. 35(2)(d)) apply to all
contracts unless the parties have agreed otherwise. The other two subparts
(art. 35(2)(b) and art. 35(2)(c)) are triggered only if certain factual
predicates are present. The standards stated in these subparts are cumulative –
that is, the goods do not conform to the contract unless they meet the
standards of all applicable subparts. 7. Article 35(2)(a) requires the seller
to deliver goods "fit for the purposes for which goods of the same description
would ordinarily be used." This standard was found to be violated when the
seller delivered a refrigeration unit that broke down soon after it was first
put into operation.[16]
It was also found violated when the seller delivered wine that had been diluted with 9% water, causing domestic authorities to seize and destroy the wine,[17]
and when the seller delivered chaptalized wine.[18]
It was also found to be violated where the seller substituted a different
component in a machine without notifying the buyer and without giving the buyer
proper instructions for installation, and as a result the machine failed after
three years of use, thus disappointing the buyer's expectation for "long,
continuous operation of the [machine] without failure."[19] 8. The standard of article 35(2)(a),
however, requires only that the goods be fit for the purposes for which they
are ordinarily used. It does not require that the goods be perfect or flawless,
unless perfection is required for the goods to fulfil their ordinary purposes.[20] One court has raised but not resolved the issue of whether article 35(2)(a) requires goods of average quality, or goods of merely "marketable" quality.[21] 9. Several decisions have discussed whether conformity with article 35(2)(a) is determined
by reference to the quality standards prevailing in the buyer's jurisdiction.
According to one decision, the fact that the seller is to deliver goods to a
particular jurisdiction and can infer that they will be marketed there is not
sufficient to impose the standards of the importing jurisdiction in determining
suitability for ordinary purposes under article 35(2)(a).[22]
Thus the fact that mussels purchased and delivered to the buyer's country
contained cadmium levels exceeding the recommendations of the buyer's country's
health regulations did not establish that the mussels failed to conform to the
contract under article 35(2)(a).[23]
The court indicated that the standards in the importing jurisdiction would have
applied if the same standards existed in the seller's jurisdiction, or if the
buyer had pointed out the standards to the seller and relied on the seller's
expertise.[24] The court
raised but did not determine the question whether the seller would be
responsible for complying with public law provisions of the importing country
if the seller knew or should have known of those provisions because of "special
circumstances" – e.g., if the seller maintained a branch in the importing
country, had a long-standing business connection with the buyer, often exported into the buyer's country, or promoted its products in the importing country.[25]
A court from a different country, citing the aforementioned decision, has
upheld an arbitral award finding a seller in violation of article 35(2)(a)
because it delivered medical devices that failed to meet safety regulations of
the buyer's jurisdiction:[26]
the court concluded that the arbitration panel acted properly in finding that
the seller should have been aware of and was bound by the buyer's country's
regulations because of "special circumstances" within the meaning of the
opinion of the court that rendered the aforementioned decision. A different
court has found that a seller of cheese was required to comply with the buyer's
country's standards because it had had dealings with the buyer for several
months, and therefore must have known that the cheese was destined for the
market in the buyer's country;[27]
the seller, therefore, violated its obligations under CISG article 35 when it
delivered cheese that did not have its composition marked on the packaging, as
required by the buyer's country's marketing regulations. 10. Article 35(2)(b) requires that the
goods be fit for "any particular purpose expressly or impliedly made known to
the seller at the time of the conclusion of the contract." The article 35(2)(b)
obligation arises only if one or more particular purposes were revealed to the
seller by the time the contract was concluded. In addition, the requirements of
article 35(2)(b) do not apply if "the circumstances show that the buyer did not
rely, or that it was unreasonable for him to rely, on the seller's skill and
judgement." With regard to the latter reliance element, one court has stated
that in the usual case, a buyer cannot reasonably rely on the seller's
knowledge of the importing country's public law requirements or administrative
practices relating to the goods, unless the buyer pointed such requirements out
to the seller.[28] The court
therefore found that mussels with cadmium levels exceeding the recommendations
of German health regulations did not violate the requirements of article
35(2)(b) where there was no evidence that the buyer had mentioned the
regulations to the seller. By so holding, the court affirmed the decision of a
lower court that the seller had not violated article 35(2)(b) because there was
no evidence that the parties implicitly agreed to comply with the buyer's
country's health recommendations.[29]
On the other hand, one court has found that a seller violated article 35(2)(b)
when it delivered skin care products that did not maintain specified levels of
vitamin A throughout their shelf life.[30]
The court found that the buyer intended to purchase products with the specified
vitamin levels, that "the special purpose ... was known by the [seller] with
sufficient clarity," and that "the buyer counted on the seller's expertise in
terms of how the seller reaches the required vitamin A content and how the
required preservation is carried out." 11. Article 35(2)(c) requires that, in
order to conform to the contract, goods must "possess the qualities of goods
which the seller has held out to the buyer as a sample or model." Several
courts have found that delivered goods violated this provision.[31]
Article 35(2)(c), by its terms, applies if the seller has held out a sample or
model to the buyer, unless the parties "have agreed otherwise." One court has
nevertheless indicated that the goods must conform to a model only if there is
an express agreement in the contract that the goods will do so.[32]
On the other hand, it has been held that the section will apply if it is the
buyer rather than the seller that has provided the model, provided that the
parties agreed that the goods should conform to the model.[33] 12. Article 35(2)(d) supplements the
last clause of article 35(1), which requires that the goods be "contained or
packaged in the manner required by the contract." Several cases have found that
improperly packaged goods failed to conform to the contract under article
35(2)(d). Where a seller sold cheese that it knew would be resold in the
buyer's country, and the cheese was delivered in packaging that did not comply
with that country's food labelling regulations, the goods were deemed
non-conforming under article 35(2)(d).[34]
In another case, a seller of canned fruit was found to have violated article 35
where the containers were not adequate to prevent the contents from
deteriorating after shipment.[35] 13. Article 35(3) relieves the seller of responsibility for a lack of conformity under article 35(2) to the extent that the buyer "knew or could not have been unaware" of the non-conformity at the time the contract was concluded.[36] Under this provision, a buyer has been held to have assumed the risk of defects in a used bulldozer that the buyer inspected and tested before purchasing.[37] One court has stated that, under article 35(3), a buyer who elects to purchase goods despite an obvious lack of conformity must accept the goods "as is."[38]
The rule of article 35(3), however, is not without limits. Where a seller knew
that a used car had been licensed two years earlier than indicated in the car's
documents and knew that the odometer understated the car's actual mileage but
did not disclose these facts to the buyer, the seller was liable for the lack
of conformity even if the buyer (itself a used car dealer) should have detected
the problems.[39] Citing
articles 40 and 7(1), the court found that the Convention contains a general
principle favoring even a very negligent buyer over a fraudulent seller. 14. A number of decisions have discussed who bears the burden of proving that goods fail to conform to the contract
under article 35. One court has twice indicated that the seller bears that
burden.[40]
On the other hand, several tribunals have concluded that the buyer bears the
burden of proving lack of conformity, although the decisions adopt different
theories to reach that result. For example, after noting that the CISG does not
expressly address the burden of proof issue, one arbitral tribunal applied
domestic law to allocate the burden to the buyer as the party alleging a lack
of conformity.[41] Other
courts have concluded that the Convention itself, although it does not
expressly answer the burden of proof question, contains a general principle
that the party who is asserting or affirming a fact bears the burden of proving
it, resulting in an allocation of the burden to a buyer who asserts that goods
did not conform to the contract.[42]
Some decisions suggest that the burden of proof varies with the context. Thus,
one court has stated that the buyer bears the burden of proving a lack of
conformity if it has taken delivery of the goods without giving immediate
notice of non-conformity.[43]
Similarly, another court has indicated that the seller bears the burden of
proving that goods were conforming at the time risk of loss passed, but the
buyer bears the burden of proving a lack of conformity after the risk shifted
if it has accepted the goods without immediately notifying the seller of
defects.[44] Evidence of lack of conformity 15. Several decisions address
evidentiary issues relating to a lack of conformity under article 35. Direct
evidence that the standards of article 35 were violated has been adduced and
accepted by courts in several instances. Thus a showing that delivered wine had
been seized and destroyed by authorities in the buyer's country because it had
been diluted with water was accepted by the court as establishing that the wine
did not conform with the contract for sale.[45]
Similarly, one court has found that, once the buyer established that a
refrigeration unit had broken down shortly after it was first put into
operation, the seller was presumed to have violated article 35(2)(a) and thus bore the burden
of showing it was not responsible for the defects.[46]
Expert opinion has also been accepted as establishing a lack of conformity,[47]
although the results of an investigation into the quality of the goods have
been held insufficient to establish a lack of conformity where the buyer
ignored a trade usage requiring that the seller be permitted to be present at
such investigations.[48]
On the other hand, it has been found that the early failure of a substituted
part in a machine did not by itself establish that the machine was not in
conformity with the contract, since the failure might have been due to improper
installation.[49]
Furthermore, a buyer's failure to complain of obvious defects at the time the
goods were received has been taken as affirmative evidence that the goods
conformed to the contract.[50]
In another case, deliveries of allegedly non-conforming chemicals had been
mixed with earlier deliveries
of chemicals; thus, even though the buyer showed that glass produced with the
chemicals was defective, it could not differentiate which deliveries were the source of the defective chemicals; and since the time to give notice of non-conformity for the earlier deliveries had expired, the buyer failed to prove a lack of conformity:[51]
Finally, it has been found that a seller's offer to remedy any defects in the
goods did not constitute an admission that the goods lacked conformity.[52] 16. For purposes of determining
jurisdiction under article 5(1) of the Brussels Convention, several courts have
concluded that the conformity obligation imposed on the seller by CISG article
35 is not independent of the obligation to deliver the goods, and both
obligations are performed at the same place.[53] FOOTNOTES
* The present text was prepared using the full text of the decisions cited in the Case Law on UNCITRAL Texts (CLOUT) abstracts and other citations listed in the footnotes. The abstracts are intended to serve only as summaries of the underlying decisions and may not reflect all the points made in the digest. Readers are advised to consult the full texts of the listed court and arbitral decisions rather than relying solely on the CLOUT abstracts.
[Citations to cisgw3 case presentations have been substituted [in brackets] for the case citations provided in the UNCITRAL Digest. This substitution has been made to facilitate online access to CLOUT abstracts, original texts of court and arbitral decisions, and full text English translations of these texts (available in most but not all cases). For citations UNCITRAL had used, go to <http://www.uncitral.org/english/clout/digest_cisg_e.htm>.] 1. CLOUT case No. 256 [SWITZERLAND Tribunal Cantonal [Appellate Court] Valais 29 June 1998, available online at <http://cisgw3.law.pace.edu/cases/980629s1.html>] (see full text of the decision);
CLOUT case No. 219 [SWITZERLAND Tribunal Cantonal [Appellate Court] Valais 28 October 1997, available online at <http://cisgw3.law.pace.edu/cases/971028s1.html>] (see full text of the decision). 2. See, e.g., CLOUT case No. 123 [GERMANY Bundesgerichtshof [Supreme Court] 8 March 1995, available online at <http://cisgw3.law.pace.edu/cases/950308g3.html>] (see full text of the decision), (stating that a fundamental breach of contract "can be caused by a delivery of goods that do not conform with the contract") [English translation by Alston & Bird];
[GERMANY Landgericht [District Court] Paderborn 25 June 1996, available online at <http://cisgw3.law.pace.edu/cases/960625g1.html>] (stating that the seller had breached its obligations by delivering goods that failed to conform to the technical specifications of the contract) [English translation by Jarno Varno, translation edited by Ruth M. Janal]. 3. CLOUT case No. 251 [SWITZERLAND Handelsgericht [Commercial Court] Zürich 30 November 1998, available online at <http://cisgw3.law.pace.edu/cases/981130s1.html>]. 4. CLOUT case No. 123 [GERMANY Bundesgerichtshof [Supreme Court] 8 March 1995, available online at <http://cisgw3.law.pace.edu/cases/950308g3.html>] (see full text of the decision) [supra note 2];
CLOUT case No. 79 [GERMANY Oberlandesgericht [Appellate Court] Frankfurt 18 January 1994, available online at <http://cisgw3.law.pace.edu/cases/940118g1.html>] [English translation by Journal of Law and Commerce].
See also [ITALY Tribunale [District Court] Busto Arsizio 13 December 2001, available online at <http://cisgw3.law.pace.edu/cases/011213i3.html>] (delivery of a machine totally unfit for the particular use which was made known to the seller and which was incapible of reaching the promised production level represented a "serious and fundamental" breach of the contract, since the promised production level had been an essential condition for the conclusion of the contract, and therefore forming the basis for termination). 5. [GERMANY Landgericht [District Court] Paderborn 25 June 1996, available online at <http://cisgw3.law.pace.edu/cases/960625g1.html>] [supra note 2]. 6. CLOUT case No. 282 [GERMANY Oberlandesgericht [Appellate Court] Koblenz 31 January 1997, available online at <http://cisgw3.law.pace.edu/cases/970131g1.html>]. 7. CLOUT case No. 168 [GERMANY Oberlandesgericht [Appellate Court] Köln 21 May 1996, available online at <http://cisgw3.law.pace.edu/cases/960521g1.html>] [English translation by Dr. Peter Feuerstein, translation edited by Chantal Niggemann]. 8. CLOUT case No. 84 [GERMANY Oberlandesgericht [Appellate Court] Frankfurt 20 April 1994, available online at <http://cisgw3.law.pace.edu/cases/940420g1.html>]. 9. Such general rules for determining the contents of the parties' agreement would include the general standards in the CISG relating to the meaning and contents of a contract for sale, including article 8 (standards for determining a party's intent) and article 9 (usages and practices to which the parties are bound). 10. CLOUT case no. 123 [GERMANY Bundesgerichtshof [Supreme Court] 8 March 1995, available online at <http://cisgw3.law.pace.edu/cases/950308g3.html>] (see full text of the decision) [supra note 2]. 11. Id., (see full text of the decision). 12. The parties' power to contract out of the implied standards of article 35(2) (i.e., to agree otherwise) is a specific
application of the parties' power under article 6 to "derogate from or vary the
effect of any of [the Convention's] provisions." See CLOUT case No. 229
[GERMANY Bundesgerichtshof [Supreme Court] 4 December 1996, available online at <http://cisgw3.law.pace.edu/cases/961204g1.html>] [English translation by Alston & Bird]. ("If the [buyer] has warranty claims against the seller – and of what kind – primarily depends upon the
warranty terms and conditions of [seller], which became part of the contract.
They have priority over the CISG provisions (CISG Art. 6).") (see full text of
the decision). 13. One court has held that machinery was sold "as is" – in effect, without the protections of article 35(2)(a) – because it was second-hand, but the court of appeal chose not to rely on this approach and instead affirmed this portion of the lower court decision on other grounds. See [GERMANY Oberlandesgericht [Appellate Court] Köln 8 January 1997, available online at <http://cisgw3.law.pace.edu/cases/970108g1.html>] [English translation by Ruth M. Janal, translation edited by Camilla Baasch Andersen], affirming in relevant part
[GERMANY Landgericht [District Court] Aachen 19 April 1996, available online at <http://cisgw3.law.pace.edu/cases/960419g1.html>]. 14. CLOUT case No. 237 [STOCKHOLM CHAMBER OF COMMERCE Arbitration Award of 5 June 1998, available online at <http://cisgw3.law.pace.edu/cases/980605s5.html>] (see full text of the decision) [English text]. 15. CLOUT case No. 168 [GERMANY Oberlandesgericht [Appellate Court] Köln 21 May 1996, available online at <http://cisgw3.law.pace.edu/cases/960521g1.html>] [English translation by Dr. Peter Feuerstein, translation edited by Chantal Niggemann]. See also
[UNITED STATES Supermicro Computer, Inc. v. Digitechnic, S.A. Federal District Court [California] 30 January 2001, available online at <http://cisgw3.law.pace.edu/cases/010130u1.html>] wherein a United States District Court declined to hear a dispute that was already subject to
litigation in France because resolving the matter would require the court to
determine the validity of a warranty disclaimer clause under the CISG (145 F.
Supp. 2d at 1151). 16. CLOUT case No. 204 [FRANCE Cour d'appel [Appellate Court] Grenoble 15 May 1996, available online at <http://cisgw3.law.pace.edu/cases/960515f1.html>]. 17. CLOUT case No. 170 [GERMANY Landgericht [District Court] Trier 12 October 1995, available online at <http://cisgw3.law.pace.edu/cases/951012g1.html>] [English translation by Ruth M. Janal, translation edited by Camilla Baasch Andersen]. 18. [FRANCE Cour de Cassation [Supreme Court] 23 January 1996, available online at <http://cisgw3.law.pace.edu/cases/960123f1.html>] [English translation by Charles Sant 'Elia]. 19. CLOUT case No. 237 [STOCKHOLM CHAMBER OF COMMERCE Arbitration Award of 5 June 1998, available online at <http://cisgw3.law.pace.edu/cases/980605s5.html>] (see full text of the decision) [supra note 14]. 20. [ICC Court of Arbitration, case No. 8247 of June 1996, available online at <http://cisgw3.law.pace.edu/cases/968247i1.html>] (microcrystaline chemicals that had solidified but could easily be re-transformed into crystals did not fail to conform to the contract);
CLOUT case No. 252 [SWITZERLAND Handelsgericht [Commercial Court] Zürich 21 September 1998, available online at <http://cisgw3.law.pace.edu/cases/980921s1.html>] (one misplaced line of text, which did not
impede the legibility of the text, did not render an art exhibition catalogue
non-conforming);
CLOUT case No. 341 [CANADA La San Giuseppe v. Forti Moulding Ltd. [Ontario Superior Court of Justice] 31 August 1999, available online at <http://cisgw3.law.pace.edu/cases/990831c4.html>] (shipments containing a small percentage of defective picture frame mouldings did not fail to conform to the contract when the evidence indicated that shipments from any supplier would include some defective mouldings) (see full text of the decision). 21. CLOUT case No. 123 [GERMANY Bundesgerichtshof [Supreme Court] 8 March 1995, available online at <http://cisgw3.law.pace.edu/cases/950308g3.html>] (see full text of the decision). One court has stated that, to comply with article 35(2)(a), goods must be of average quality, and not merely marketable; see [GERMANY Landgericht [District Court] Berlin 15 September 1994, available online at <http://cisgw3.law.pace.edu/cases/940915g1.html>] [English translation by Martin Eimer, translation edited by Ruth M. Janal].
Compare [NETHERLANDS Arbitration Institute case no. 2319 of 15 October 2002, available online at <http://cisgw3.law.pace.edu/cases/021015n1.html>] (rejecting both average quality and merchantability tests, and applying a "reasonable quality" standard) [English text]. 22. CLOUT case No. 123 [GERMANY Bundesgerichtshof [Supreme Court] 8 March 1995, available online at <http://cisgw3.law.pace.edu/cases/950308g3.html>] [supra note 2] ("a foreign seller can simply not be required to know the not easily determinable public law provisions and/or administrative practices of the country to which he exports, and ... the purchaser, therefore, cannot rationally rely upon such knowledge of the seller, but rather, the buyer can be expected to have such expert knowledge of the conditions in his own country or in the place of destination, as determined by him, and, therefore, he can be expected to inform the seller accordingly"). The court raised but did not resolve the issue of whether goods must meet the standards of the seller's own jurisdiction in order to comply with article 35(2)(a) (see full text of the decision). 23. Id. Compare CLOUT case No. 343
[GERMANY Landgericht [District Court] Darmstadt 9 May 2000, available online at <http://cisgw3.law.pace.edu/cases/000509g1.html>] [English translation by Ruth M. Janal, translation edited by Camilla Baasch Andersen], where a Swiss purchaser of video recorders complained that the German seller had only supplied instruction booklets in German and not in the other languages spoken in Switzerland. The court rejected the argument because the recorders had not been produced specially for the Swiss market and the buyer had failed to stipulate for instruction booklets in other languages. 24. In a later decision involving vine wax that failed to protect vines grafted using the wax, the German Supreme Court found that the wax did not meet the requirements of article 35(2)(a) because it "did not meet the industry standards – of which both parties were aware and which both parties applied...". CLOUT case No. 272 [GERMANY Oberlandesgericht [Appellate Court] Zweibrücken 31 March 1998, available online at <http://cisgw3.law.pace.edu/cases/980331g1.html>] (see full text of the decision). 25. One court has concluded that, in the following circumstances, a Spanish seller of pepper agreed that the goods had to comply with German food safety laws: the seller had a long-standing business relationship with the German buyer; the seller regularly exported into Germany; and in a previous contract with the buyer the seller had agreed to special procedures for ensuring compliance with German food safety laws;
[GERMANY Landgericht [Appellate Court] Ellwangen 21 August 1995, available online at <http://cisgw3.law.pace.edu/cases/950821g2.html>] [English translation by Alston & Bird]. The court, citing article 35(1), found that pepper products containing ethylene oxide at levels exceeding that permitted by German food safety laws did not conform to the contract; it therefore ruled in favor of the buyer, who had argued (presumably on the basis of article 35(2)(a)) that the pepper products "were not fit for the purposes for which the goods would ordinarily be used and not fit to be sold in Germany." 26. CLOUT case No. 418 [UNITED STATES Medical Marketing v. Internazionale Medico Scientifica Federal District Court [Louisiana] 17 May 1999 available online at <http://cisgw3.law.pace.edu/cases/990517u1.html>]. 27. CLOUT case No. 202 [FRANCE Cour d'appel [Appellate Court] Grenoble 13 September 1995, available online at <http://cisgw3.law.pace.edu/cases/950913f1.html>] [English translation by Annabel Teiling, translation edited by Yvonne Salmon]. 28. CLOUT case No. 123 [GERMANY Bundesgerichtshof [Supreme Court] 8 March 1995, available online at <http://cisgw3.law.pace.edu/cases/950308g3.html>] [supra note 2]. 29. CLOUT case No. 84 [GERMANY Oberlandesgericht [Appellate Court] Frankfurt 20 April 1994, available online at <http://cisgw3.law.pace.edu/cases/940420g1.html>], opinion described in
CLOUT case No. 123 [GERMANY Bundesgerichtshof [Supreme Court] 8 March 1995, available online at <http://cisgw3.law.pace.edu/cases/950308g3.html>] [supra note 2]. 30. [FINLAND Court of First Instance [Appellate Court] Helsinki 30 June 1998, available online at <http://cisgw3.law.pace.edu/cases/980630f5.html>] English translation available;
see also [ITALY Tribunale [District Court] Busto Arsizio 13 December 2001, available online at <http://cisgw3.law.pace.edu/cases/011213i3.html>]. 31. CLOUT case No. 79 [GERMANY Oberlandesgericht [Appellate Court] Frankfurt 18 January 1994, available online at <http://cisgw3.law.pace.edu/cases/940118g1.html>] (holding that the goods (shoes) failed to conform to a sample supplied by the seller, but that the lack of conformity was not shown to be a fundamental breach) (see full text of the decision); CLOUT case No. 138 [UNITED STATES Delchi Carrier v. Rotorex, [Federal Appellate Court] [2nd Circuit] 6 December 1995, available online at <http://cisgw3.law.pace.edu/cases/951206u1.html>] (finding that air conditioner compressors delivered by the seller did not conform to the contract, and that such lack of conformity constituted a fundamental breach: "The agreement between Delchi and Rotorex was based upon a sample compressor supplied by Rotorex and upon written specifications regarding cooling capacity and power consumption ... . The president of Rotorex ... conceded in a May 17, 1988 letter to Delchi that the compressors supplied were less efficient than the sample ... .") (see full text of the decision). 32. [GERMANY Landgericht [District Court] Berlin 15 September 1994 , available online at <http://cisgw3.law.pace.edu/cases/940915g1.html>] [supra note 21]. 33. CLOUT case No. 175 [AUSTRIA Oberlandesgericht [Appellate Court] Graz 9 November 1995, available online at <http://cisgw3.law.pace.edu/cases/951109a3.html>] (see full text of the decision) [English translation by Ruth M. Janal, translation edited by Todd Fox]. 34. CLOUT case No. 202 [FRANCE Cour d'appel [Appellate Court] Grenoble 13 September 1995, available online at <http://cisgw3.law.pace.edu/cases/950913f1.html>] (see full text of the decision) [English translation by Annabel Teiling, translation edited by Yvonne Salmon]. 35. Conservas La Costella S.A. de C.V. v. Lanín San Luis S.A. & Agroindustrial Santa Adela S.A., Arbitration Proceeding before Compromex (Comisión pare la Protección del Comercio Exterior de Mexico) [MEXICO Compromex Arbitration Award 29 April 1996, available online at <http://cisgw3.law.pace.edu/cases/960429m1.html>]
[English translation by Journal of Law and Commerce]. The Compromex decision did not specifically cite CISG article 35(2)(d). 36. Note that article 35(3) only relieves the seller of responsibility for non-conformity under article 35(2)(a)-(d). A lack of conformity under article 35(1) (requiring the goods to be of "the quantity, quality and description required by the contract") is not subject to the rule of article 35(3). Nevertheless, a buyer's awareness of defects at the time the contract is concluded should presumably be taken into account in determining what the parties' agreement requires as to the quality of the goods. Secretariat Commentary to (then) Article 33 of the Convention, p. 32, para. 14. 37. CLOUT case No. 219 [SWITZERLAND Tribunal Cantonal [Appellate Court] Valais 28 October 1997, available online at <http://cisgw3.law.pace.edu/cases/971028s1.html>]. After the buyer inspected the bulldozer, the parties agreed that the seller would replace three specific defective parts. The seller replaced the parts before delivering the machine, but the buyer then complained of other defects. (see full text of the decision) 38. CLOUT case No. 256 SWITZERLAND Tribunal Cantonal [Appellate Court] Valais 29 June 1998, available online at <http://cisgw3.law.pace.edu/cases/980629s1.html>] (see full text of the decision). 39. CLOUT case No. 168 [GERMANY Oberlandesgericht [Appellate Court] Köln 21 May 1996, available online at <http://cisgw3.law.pace.edu/cases/960521g1.html>] [supra note 7]. 40. [BELGIUM Rechtbank [District Court] Kortrijk 6 October 1997, available online at <http://cisgw3.law.pace.edu/cases/971006b1.html>]; [BELGIUM Rechtbank [District Court] Kortrijk 16 December 1996, available online at <http://cisgw3.law.pace.edu/cases/961216b1.html>]. 41. CLOUT case No. 103 [ICC Court of Arbitration, case No. 6653 of 26 March 1993, available online at <http://cisgw3.law.pace.edu/cases/936653i1.html>]. A Swiss court has acknowledged the view that the burden of proving a lack of conformity should be allocated by applying domestic law, but it neither adopted nor rejected this approach because the contrary view led to the same result (buyer bore the burden).
CLOUT case No. 253 [SWITZERLAND Tribunale d'appello [Appellate Court] Lugano, Cantone del Ticino 15 January 1998, available online at <http://cisgw3.law.pace.edu/cases/980115s1.html>] [English translation by Charles Sant 'Elia, translation edited by Angela Maria Romito]. 42. CLOUT case No. 378 [ITALY Tribunale [District Court] Vigevano 12 July 2000, available online at <http://cisgw3.law.pace.edu/cases/000712i3.html>] [English translation by Journal of Law and Commerce] (containing an extended discussion of the issue). To the same general effect, see
CLOUT case No. 97 [SWITZERLAND Handelsgericht [Commercial Court] Zürich 9 September 1993, available online at <http://cisgw3.law.pace.edu/cases/930909s1.html>]. One court has noted the view that the Convention contains a general principle allocating the burden to the buyer, but it neither adopted nor rejected this approach because the contrary view led to the same result (buyer bore the burden).
CLOUT case No. 253 [SWITZERLAND Tribunal Cantonal [Appellate Court] Lugano, Cantone del Ticino 15 January 1998, available online at <http://cisgw3.law.pace.edu/cases/980115s1.html>] [supra note 41]; see also
[NETHERLANDS Arbitration Institute case no. 2319 of 15 October 2002, available online at <http://cisgw3.law.pace.edu/cases/021015n1.html>]
[supra note 21]. Without expressly discussing the issue, several decisions appear to have impliedly adopted the view that the CISG allocated the burden of proving lack of conformity to the buyer. See CLOUT case No. 107 [AUSTRIA Oberlandesgericht [Appellate Court] Innsbruck 1 July 1994, available online at <http://cisgw3.law.pace.edu/cases/940701a3.html>] [English translation by Ruth M. Janal, translation edited by Todd Fox] (buyer failed to prove that the goods did not conform to the contract); [GERMANY Landgericht [District Court] Düsseldorf 25 August 1994, available online at <http://cisgw3.law.pace.edu/cases/940825g1.html>] (buyer failed to prove lack of conformity). 43. CLOUT case No. 123 [GERMANY Bundesgerichtshof [Supreme Court] 8 March 1995, available online at <http://cisgw3.law.pace.edu/cases/950308g3.html>] [supra note 2] (see full text of the decision). One court has found that, because it was shown that a refrigeration unit had broken down soon after it was first put into operation, the seller bore the burden of proving that it was not responsible for the defect.
CLOUT case No. 204 [FRANCE Cour d'appel [Appellate Court] Grenoble 15 May 1996, available online at <http://cisgw3.law.pace.edu/cases/960515f1.html>]. 44. CLOUT case No. 251 [SWITZERLAND Handelsgericht [Commercial Court] Zürich 30 November 1998, available online at <http://cisgw3.law.pace.edu/cases/981130s1.html>]. 45. CLOUT case No. 170 [GERMANY Landgericht [District Court] Trier 12 October 1995, available online at <http://cisgw3.law.pace.edu/cases/951012g1.html>] [English translation by Ruth M. Janal, translation edited by Camilla Baasch Andersen] (see full text of the decision). 46. CLOUT case No. 204 [FRANCE Cour d'appel [Appellate Court] Grenoble 15 May 1996, available online at <http://cisgw3.law.pace.edu/cases/960515f1.html>]. 47. CLOUT case No. 50 [GERMANY Landgericht [District Court] Baden-Baden 14 August 1991, available online at <http://cisgw3.law.pace.edu/cases/910814g1.html>] [English translation by Journal of Law and Commerce] (see full text of the decision).
But see CLOUT case No. 378 [ITALY Tribunale [District Court] Vigevano 12 July 2000, available online at <http://cisgw3.law.pace.edu/cases/000712i3.html>] [supra note 42] where the court rejected expert opinion evidence offered by the seller because under Italian civil procedure law only an expert appointed by the court can offer such an opinion (see full text of the decision). For cases in which courts appointed experts to evaluate the conformity of the goods,
see CLOUT case No. 123 [GERMANY Bundesgerichtshof [Supreme Court] 8 March 1995, available online at <http://cisgw3.law.pace.edu/cases/950308g3.html>] [supra note 2] (reporting that the trial court had obtained an expert opinion of public health authorities on the cadmium level in mussels) (see full text of the decision);
CLOUT case No. 271 [GERMANY Bundesgerichtshof [Supreme Court] 24 March 1999, available online at <http://cisgw3.law.pace.edu/cases/990324g1.html>] [English translation by Alston & Bird] (expert opinion that damage to vines was caused by defective vine wax) (see full text of the decision);
[BELGIUM Rechtbank [District Court] Kortrijk 6 October 1997, available online at <http://cisgw3.law.pace.edu/cases/971006b1.html>] (appointing judicial expert to determine the conformity of yarn);
[BELGIUM Rechtbank [District Court] Kortrijk 16 December 1996, available online at <http://cisgw3.law.pace.edu/cases/961216b1.html>]. 48. [FINLAND [Appellate Court] Helsinki 29 January 1998, available online at <http://cisgw3.law.pace.edu/cases/980129f5.html>] [English translation by Jarno Vanto]. 49. CLOUT case No. 237 [STOCKHOLM CHAMBER OF COMMERCE Arbitration Award of 5 June 1998, available online at <http://cisgw3.law.pace.edu/cases/980605s5.html>] (see full text of the decision) [supra note 14]. 50. CLOUT case No. 341 [CANADA La San Giuseppe v. Forti Moulding Ltd. [Ontario Superior Court of Justice] 31 August 1999, available online at <http://cisgw3.law.pace.edu/cases/990831c4.html>] (see full text of the decision). 51. CLOUT case No. 50 [GERMANY Landgericht [District Court] Baden-Baden 14 August 1991, available online at <http://cisgw3.law.pace.edu/cases/910814g1.html>] [supra note 47] (see full text of the decision). 52. CLOUT case No. 97 [SWITZERLAND Handelsgericht [Commercial Court] Zürich 9 September 1993, available online at <http://cisgw3.law.pace.edu/cases/930909s1.html>] (see full text of the decision). 53. CLOUT case No. 245 [FRANCE Cour d'appel [Appellate Court] Paris 18 March 1998, available online at <http://cisgw3.law.pace.edu/cases/980318f1.html>] [English translation by Charles Sant 'Elia];
CLOUT case No. 244 [FRANCE Cour d'appel [Appellate Court] Paris 4 March 1998, available online at <http://cisgw3.law.pace.edu/cases/980304f1.html>] [English translation by Charles Sant 'Elia];
CLOUT case No. 203 [FRANCE Cour d'appel [Appellate Court] Paris 13 December 1995, available online at <http://cisgw3.law.pace.edu/cases/951213f1.html>] [English translation by Charles Sant 'Elia]. Reprinted by special permission of Northwestern University School of Law. 34 Northwestern Journal of International Law and Business (Winter 2004) 299-440.[*] excerpt from Larry A. DiMatteo, Lucien Dhooge, Stephanie Greene,
[...] B. Express and Implied Warranties This section addresses the issues of the seller's obligation for non-conforming goods or for goods with
respect to which third parties assert claims. These obligations are found in Articles 35-44 of the
CISG. Article 35 states the basic obligation of the seller to deliver goods of the quantity, quality, and
description [550] required by the contract.[551] Unless the parties have otherwise agreed, this
obligation is not met unless the goods conform to any express warranties, or if there are no such
warranties, then certain implied warranties. The basic implied warranty requires that goods be "fit
for the purposes for which goods of the same description would ordinarily be used."[552] They
must be fit for the special purposes of the buyer, where that purpose is expressly or impliedly made
known to the seller at the time of the contract. The seller also warrants, unless otherwise agreed, that
the goods will be "contained or packaged in the usual manner for such goods or, where there is no
such manner, in a manner adequate to preserve and protect the goods."[553] The implied
warranties do not attach where circumstances indicate that the buyer did not rely on the seller's skill
or judgment or where the circumstances indicate that it would be unreasonable [page 390] for the
buyer to do so.[554] In addition, these warranties do not apply to non-conformities the buyer
knew about, or should have known, at the time of the conclusion of the contract.[555] While Article 35 establishes the obligations of the seller with respect to conformity of the goods,
Article 36 governs the seller's liability for lack of conformity of the goods. It identifies the point of
reference for the non-conformity at the time the risk passes to the b
Austria
2
Germany
11
Netherlands
1
Belgium
2
ICC
2
Stockholm Chamber
1
Canada
1
Italy
3
Switzerland
6
Finland
2
Mexico
1
United States
3
France
6
TOTAL
46
- UNCITRAL's case law digest; and
- An analysis of CISG jurisprudence
Nations Convention on the International Sale of Goods [*]
Reproduced with the permission of UNCITRAL
Digest of Article 35 case law
- Introduction
- Analysis of provisions
- Article 35(1)
- Article 35(2): Overview
- Article 35(2)(a)
- Article 35(2)(b)
- Article 35(2)(c)
- Article 35(2)(d)
- Article 35(3)
- Burden of proof
- Evidence of lack of conformity
- Jurisdictional issues]
ARTICLE 35
(b) are fit for any
particular purpose expressly or impliedly made known to the seller at the time
of the conclusion of the contract, except where the circumstances show that the
buyer did not rely, or that it was unreasonable for him to rely, on the
seller’s skill and judgement;
(c) possess the qualities
of goods which the seller has held out to the buyer as a sample or model;
(d) are contained or
packaged in the manner usual for such goods or, where there is no such manner,
in a manner adequate to preserve and protect the goods.
ANALYSIS OF CISG CASE LAW
The Interpretive Turn in International Sales Law:
An Analysis of Fifteen Years of CISG Jurisprudence
Virginia Maurer and Marisa Pagnattaro