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Article 36. Time for Assessing Conformity of Goods

TEXT OF ARTICLE 36

(1) The seller is liable in accordance with the contract and this Convention for any lack of conformity which exists at the time when the risk passes to the buyer, even though the lack of conformity becomes apparent only after that time.

(2) The seller is also liable for any lack of conformity which occurs after the time indicated in the preceding paragraph and which is due to a breach of any of his obligations, including a breach of any guarantee that for a period of time the goods will remain fit for their ordinary purpose or for some particular purpose or will retain specified qualities or characteristics.


OUTLINE OF ISSUES

Reproduced with permission of UNCITRAL

36A Conformity determined as of time when risk passes to buyer

36A1 On passage of risk see Chapter IV, arts. 66-70

36A2 Seller responsible when lack of conformity becomes apparent later

36B Lack of conformity occurring after passage of risk (art. 36(2)):

36B1 Caused by seller's breach of any of his obligations

36B2 Guarantee of continued conformity

36B3 Other issues


DESCRIPTORS

Conformity of goods ; Guarantees


CASE ANNOTATIONS: UNCITRAL DIGEST CASES PLUS ADDED CASES

UNCITRAL has identified relevant cases in Digests containing case annotations for each article of the CISG. UNCITRAL cites nine cases in its Digest of Art. 36 case law:

Argentina      1           Germany      2           Netherlands        1
Austria 1 Mexico      1 Switzerland        1
France      2       TOTAL:     9

Presented below is a composite list of Art. 36 cases reporting UNCITRAL Digest cases and other Art. 36 cases. All cases are listed in chronological sequence, commencing with the most recent. Asterisks identify the UNCITRAL Digest cases, commencing with the 13 April 2000 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.
 

Netherlands 16 January 2009 Rechtsbank [District Court] Breda (Watermelon case) 36A [translation available]
 

Netherlands 27 February 2008 Rechtbank [District Court] Zutphen (Frutas Caminito Sociedad Cooperativa Valenciana v. Groente-En Fruithandel Heemskerk BV) [abstract available]

Serbia 23 January 2008 Foreign Trade Court of Arbitration, Serbian Chamber of Commerce (Chrystal white sugar case) [translation available]

Spain 17 January 2008 Tribunal Suprema [Supreme Court] (Used automobiles case) [translation available]
 

Slovak Republic 25 October 2007 Regional Court [District Court] Zilina (Elastic fitness clothing case) [translation available]

Austria 4 July 2007 Oberster Gerichtshof [Supreme Court] (Auto case)

Slovak Republic 27 June 2007 Supreme Court Zilina (Elastic fitness clothing case) [translation available]

Spain 16 May 2007 Supreme Court (Water apparatus case)

Belgium 22 January 2007 Hof van Beroep [Appellate Court] Antwerp (B.V B.A. v. SA Montainer) 36A ; 36B2 [translation available]

Germany 12 January 2007 Oberlandesgericht [Appellate Court] Köln (Paperboard containers case) [translation available]

Arbitration Chamber of Paris Case No. 9926 of 2007 [assumed date] (Chemical compound case) [English text]
 

France 19 December 2006 Cour d'appel [Appellate Court] Rouen (Potato seedling case) 36A2 [translation available]

Germany 14 December 2006 Oberlandesgericht [Appellate Court] Koblenz (Bottles case) 36A2 [translation available]

United States 23 August 2006 Federal District Court [New York] (TeeVee Tunes v. Gerhard Schubert GmbH) 36B

Switzerland 23 May 2006 Tribunal cantonal [Higher Cantonal Court] Valais (Suits case) [translation available]

Germany 20 April 2006 Landgericht [District Court] Aschaffenburg (Cotton twilled fabric case) [translation available]

Austria 23 January 2006 Oberlandesgericht [Appellate Court] Linz (Auto case) 36A ; 36B [translation available]
 

China December 2005 CIETAC Arbitration Award [CISG 2005/23] (Heat transfer oil furnace case) 36B1 [translation available]

China 12 September 2005 CIETAC Arbitration Award [CISG 2005/18] (Hydraulic pressure geologic equipment case) 36B2 [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.) 36A [translation available]

United States 23 May 2005 Federal Appellate Court [7th Circuit] (Chicago Prime Packers v. Northam)

United States 30 March 2005 Federal District Court [Illinois] (Caterpillar v. Usinor Industeel)

Germany 2 March 2005 Bundesgerichtshof [Federal Supreme Court] 36A [translation available]

France 25 February 2005 Cour d'appel [Appellate Court] Paris
 

Russia 29 December 2004 Arbitration Award 189/2003 [translation available]

Germany 30 June 2004 Bundesgerichtshof [Supreme Court] [translation available]

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]

Austria 21 April 2004 Oberster Gerichtshof [Supreme Court] (Omnibus case) [translation available]

United States 29 March 2004 Federal Bankruptcy Court [Oregon] (In re: Siskiyou Evergreen, Inc. Debtor)

Switzerland 11 February 2004 Appelationshof [Appellate Court] Bern (Cable case) 36A [translation available]

Germany 29 January 2004 Oberlandesgericht [Appellate Court] Frankfurt 36A [translation available]
 

Switzerland 29 October 2003 Tribunale d’appello [Appellate Court] Lugano, Cantone del Ticino [translation available]

France 24 September 2003 Cour de Cassation [Supreme Court] 36A2 [translation available]

Switzerland 19 August 2003 Tribunal Cantonal [Appellate Court] Valais [translation available]

United States 11 June 2003 U.S. Circuit Court of Appeals [5th Cir.] (BP Oil International v. Empresa Estatal Petroleos de Ecuador) 36A2

Romania 6 June 2003 High Court of Cassation and Justice (Terracotta stoves case) 36A2 [translation available]

Germany 25 March 2003 Landgericht [District Court] Köln 36B [translation available]

Spain 21 March 2003 Appellate Court Barcelona (Moulding machine case)

Russia 17 February 2003 Arbitration Award No. 168/2001 36A [translation available]
 

China 23 December 2002 CIETAC Arbitration Award [CISG 2002/28] (Hydraulic press case) 36B2 [translation available]

Russia 10 December 2002 Arbitration Award No. 211/2001 [translation available]

Switzerland 11 November 2002 Cour de Justice [Appellate Court] Genève (Iron concretes and steel bars case) [translation available]

China 21 October 2002 CIETAC Arbitration Award [CISG 2002/16] (Engraving machine case) 36B2 [translation available]

Switzerland 5 November 2002 Handelsgericht [Commercial Court] des Kantons Aargau 36A [translation available]

Argentina 21 July 2002 Cámara Nacional de Apelaciones en lo Comercial [Appellate Court] [translation available]

China 15 July 2002 CIETAC Arbitration Award [CISG 2002/19] (Coating equipment case) 36B2 [translation available]

Switzerland 11 April 2002 Tribunal Cantonal [Appellate Court] Vaud

Belgium 18 February 2002 Rechtbank van Koophandel [District Court] Ieper 36B

Denmark 31 January 2002 Maritime Commercial Court [translation available]

Belgium 15 January 2002 Tribunal de commerce [District Court] 36A2 [translation available]

Germany 9 January 2002 Bundesgerichtshof [Federal Supreme Court] [translation available]
 

China 25 December 2001 CIETAC Arbitration Award [CISG 2001/04] (DVD HiFi case) 36B2 [translation available]

Belgium 27 June 2001 Hof van Beroep [Appellate Court] Antwerpen 36A [translation available]
 

China 6 December 2000 CIETAC Arbitration Award [CISG 2000/13] (Pharmaceutical products case) 36A2 [translation available]

France 24 October 2000 Cour d'appel [Appellate Court] Colmar [translation available]

Germany 23 October 2000 Oberlandesgericht [Appellate Court] Dresden (Powdered milk case) 36A2 [translation available]

* Germany 13 April 2000 Amtsgericht [Lower Court] Duisburg [translation available]

Spain 27 March 2000 Audiencia Provincial [Appellate Court] Navarra

Netherlands 23 March 2000 Arrondissementsrechtbank [District Court] Rotterdam

China 30 January 2000 CIETAC Arbitration Award [CISG/2000/10] (Ink cartridge case) 36B2 [translation available]
 

ICC June 1999 International Court of Arbitration, Case 9187 36A2 [English text]

China 7 April 1999 CIETAC Arbitration Award [CISG/1999/20] (PVC suspension resin case) 36A [translation available]

China 30 March 1999 CIETAC Arbitration Award [CISG/1999/16] (Flanges case) 36A ; 36B [translation available]

China 29 March 1999 CIETAC Arbitration Award [CISG/1999/14] (Flanges case) 36B [translation available]

* Germany 24 March 1999 Landgericht [District Court] Flensburg 36A [translation available]

* France 5 January 1999 Cour de Cassation [Supreme Court] [translation available]
 

Canada 16 December 1998 Ontario Court, General Division (Nova Tool v. London Industries)

Germany 25 November 1998 Bundesgerichtshof [Federal Supreme Court] [translation available]

United States 27 October 1998 Federal District Court [Illinois] (Mitchell Aircraft Spares v. European Aircraft Service)

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]

France 4 March 1998 Cour d'appel [Appellate Court] Paris[translation available]

Finland 29 January 1998 Helsingin hovioikeus [Appellate Court] Helsinki 36A [translation available]

France 19 January 1998 Tribunal de commerce [District Court] Besançon [translation available]

* Switzerland 15 January 1998 Tribunale d'appello [Appellate Court] Lugano 36A [translation available]

Hungary 1998 Fovárosi Biróság [Metropolitan Court] Budapest
 

France 28 October 1997 Tribunal de commerce [District Court] Paris

Switzerland 28 October 1997 Tribunal Cantonal [Appellate Court] Valais

* Netherlands 17 July 1997 Arrondissementsrechtbank [District Court] Arnhem 36A

China 23 July 1997 CIETAC Arbitration Award [CISG/1997/23] (Polypropylene case) 36A2 [translation available]

Hungary 1 July 1997 Fovárosi Bíróság [Metropolitan Court] 36A ; 36B [translation available]

China 26 June 1997 CIETAC Arbitration Award [CISG/1997/17] (Monohydrate zinc sulphate case) [translation available]

Germany 25 June 1997 Oberlandesgericht [Appellate Court] Karlsruhe [translation available]

Switzerland 14 March 1997 Tribunal [District Court] Genève
 

China 23 October 1996 CIETAC Arbitration Award [CISG/1996/48] (Channel steel case) 36A2 [translation available]

China 16 July 1996 CIETAC Arbitration Award [CISG/1996/31] (Hot-rolled steel plates case) 36A2 [translation available]

* France 15 May 1996 Cour d'appel [Appellate Court] Grenoble 36B

* Mexico 29 April 1996 Compromex Arbitration proceeding 36A2 [translation available]

Germany 19 April 1996 Landgericht [District Court] Aachen

Russia 12 March 1996 Arbitration award 166/1996 36B1 [translation available]

Russia 10 February 1996 Arbitration award 328/1994 36A [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) 36A2

* Argentina 31 October 1995 Cámara Nacional de Apelaciones en lo Comercial [Appellate Court]
 

United States 9 September 1994 Federal District Court [Northern Dist. NY] (Delchi Carrier v. Rotorex) 36A2

* Austria 1 July 1994 Oberlandesgericht [Appellate Court] Innsbruck 36A ; 36B [translation available]

Germany 23 June 1994 Landgericht [District Court] Düsseldorf [translation available]

Austria 29 March 1994 Landesgericht [District Court] Feldkirch

Argentina 18 March 1994 Juzgado Nacional de Primera Instancia en lo Comercial [National Commercial Court of First Instance]
 

Germany 13 January 1993 Oberlandesgericht [Appellate Court] Saarbrücken (Doors case) [translation available]

ICC 1993 International Court of Arbitration, Case 6653 [translation available]
 

China 14 December 1992 Jiangxi Higher People's Court (Ao Long v. Jiangxi Province Export)

Switzerland 27 April 1992 Pretore della giurisdizione [District Court] Locarno [translation available]
 

Germany 13 June 1991 Oberlandesgericht [Appellate Court] Frankfurt

Egypt 13 April 1991 Arbitration award (Cairo Chamber of Commerce & Industry) [English text]
 

Iran/U.S. Claims Tribunal 16 June 1988 (Islamic Republic of Iran v. U.S.)


CASE DIGEST AND ANALYSIS
-   UNCITRAL's case law digest; and
-   An analysis of CISG jurisprudence

The UNCITRAL Digest of case law on the United
Nations Convention on the International Sale of Goods
[*]

A/CN.9/SER.C/DIGEST/CISG/36 [8 June 2004]
Reproduced with the permission of UNCITRAL

[Text of Article 36
Digest of Article 36 case law
-    Overview of Article 36
-    Article 36(1) overview
-    Seller’s liability for defects existing when risk passed
-    Defects not apparent until after risk passed
-    Burden of proof regarding the time a defect arose
-    Article 36(2)]
ARTICLE 36

     (1) The seller is liable in accordance with the contract and this Convention for any lack of conformity which exists at the time when the risk passes to the buyer, even though the lack of conformity becomes apparent only after that time.

     (2) The seller is also liable for any lack of conformity which occurs after the time indicated in the preceding paragraph and which is due to a breach of any of his obligations, including a breach of any guarantee that for a period of time the goods will remain fit for their ordinary purpose or for some particular purpose or will retain specified qualities or characteristics.

DIGEST OF ARTICLE 36 CASE LAW

Overview of Article 36

1. Article 36 deals with the time at which a lack of conformity must have arisen in order for the seller to be responsible for it. Article 36(1) states a general rule that the seller is liable for a lack of conformity that exists at the time risk of loss for the goods passes to the buyer.[1] In certain circumstances, article 36(2) extends the seller's responsibility by providing that the seller is liable for a lack of conformity occurring even after risk has passed if the non-conformity is caused by a breach by the seller of its obligations, including a breach of a guarantee of the future performance or qualities of the goods.[2] Several decisions illustrate the operation of the two paragraphs of article 36. A flower shop that purchased daisy plants refused to pay the price when the buyer's own customers complained that the plants did not bloom throughout the summer as expected: a court of appeals affirmed the seller's right to the price because 1) the buyer failed to prove, pursuant to article 36(1), that the plants were defective when the risk passed to the buyer, and 2) the buyer failed to prove that the seller had guaranteed the future fitness of the goods under article 36(2).[3] Similarly, another court concluded that the seller was not liable under article 36(1) for damage to pizza boxes that occurred while the boxes were being shipped by carrier because risk of loss had passed to the buyer when the goods were handed over to the first carrier, and the seller was also not liable under 36(2) because the damage was not due to any breach by the seller.[4]

Article 36(1) overview

2. Article 36(1) makes the seller liable "in accordance with the contract and this Convention for any lack of conformity which exists at the time when the risk passes to the buyer." The principle of seller responsibility for defects existing before risk passes is reinforced by the final clause of article 36(1), which confirms the seller's liability "even though the lack of conformity becomes apparent only after [the time risk passes to the buyer]." Thus it is the time that the lack of conformity comes into existence, not the time it is discovered (or should have been discovered), that is critical for the rule in article 36(1).[5] One court decision involving the sale of cocoa beans from Ghana illustrates the general operation of article 36(1).[6] The contract provided that risk would shift to the buyer when the goods were handed over to the first carrier. It also required the seller to supply, before the goods were shipped, a certificate from an independent testing agency confirming that the beans met certain quality specifications. The independent agency tested the goods some three weeks before they were packed for shipment, and issued the required certificate. When the goods arrived, however, the buyer's own testing revealed that the cocoa beans were below contract-quality. The court stated that the seller would be liable for the lack of conformity in three situations: 1) if the pre-shipment certificate of quality from the independent agency were simply mistaken and the goods thus lacked conformity at the time they were inspected; 2) if the deterioration in the quality of the goods occurred in the three week gap between inspection and shipment; or 3) if the defects otherwise existed when the goods were shipped but the defects would only become apparent after they were delivered to the buyer.

Seller's liability for defects existing when risk passed

3. The basic principle of article 36(1), that the seller is liable for a lack of conformity that exists at the time risk passes to the buyer, has been affirmed in several decisions.[7] Conversely, the principle that the seller is not normally liable for a lack of conformity arising after risk has passed has also been applied in several decisions. For example, where a contract for the sale of dried mushrooms included a "C & F" clause, and the mushrooms deteriorated during shipment, one court found that the lack of conformity occurred after risk of loss had passed and the seller was therefore not responsible for it under article 36(1).[8]

Defects not apparent until after risk passed

4. Article 36(1) states that a seller is liable for a lack of conformity existing when risk passed to the buyer "even though the lack of conformity becomes apparent only after that time." This principle has been applied in several cases. Thus where a refrigeration unit that had been sold installed on a truck trailer failed within 15 days of delivery, the court found that a lack of conformity had existed at the time risk passed even though the non-conformity did not become apparent until the unit had been put into use.[9] On the other hand, a buyer of a painting said to be by a specific artist sued the seller when the party to whom the buyer resold the painting determined that it could not be attributed to that artist.[10] The court stated that the seller was not liable because, under article 36(1), the seller was only responsible for non-conformities existing at the time risk of loss passed to the buyer, and there was no indication at that time that the artist indicated was not the painter.[11]

Burden of proof regarding the time a defect arose

5. Under Article 36(1), the parties' rights often hinge on whether a lack of conformity existed at the time the risk of loss passed to the buyer. For this reason, the question of which party bears the burden of proof on this issue is a critical one.[12] A court has noted that some CISG scholars suggest the question should be settled by reference to domestic law applicable under the rules of private international law, whereas other scholars argue that the CISG itself contains a general principle (controlling under CISG article 7(2)) that the party asserting the non-conformity (i.e., the buyer) bears the burden; in the particular case the court did not have to resolve this disagreement because both approaches placed the burden on the buyer.[13] Other courts appear to have taken a factual approach to the question. Thus, one court has concluded that a buyer who accepts goods upon delivery without promptly objecting to their quality bears the burden of proving that they did not conform to the contract.[14] On the other hand, a court from a different country found that where a refrigeration unit broke down shortly after it was delivered, the defect was presumed to have existed when the goods were shipped, and the seller bore the burden of proving it was not responsible for the lack of conformity.[15]

Article 36(2)

6. Article 36(2) provides that a seller is liable for a lack of conformity occurring after the time that risk passed to the buyer, but only if the lack of conformity is due to a breach by the seller. An arbitral tribunal has invoked this provision in finding a seller liable for the lack of conformity of canned fruit that deteriorated during shipment because of inadequate packaging, even though the buyer bore transit risk under the FOB term in the contract.[16] On the other hand, a court has found that the seller was not responsible for damage to pizza boxes occurring after risk of loss passed to the buyer because the buyer did not demonstrate that the damage was due to any breach by the seller.[17] Article 36(2) specifically mentions that the seller will be responsible for post-risk non-conformities if they result from "breach of any guarantee that for a period of time the goods will remain fit for their ordinary purpose [18] or for some particular purpose [19] or will retain specified qualities or characteristics." Another court has placed the burden of proving the existence of an express guarantee of future performance on the buyer, and concluded that a seller of plants was not liable under article 36(2) for the failure of the plants to bloom throughout the summer because the buyer did not prove that the seller had guaranteed future performance of the plants.[20]


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. Rules on risk of loss, including rules on when risk shifts from the seller to the buyer, are given in articles 66-70 of the Convention.

2. The substance of the two paragraphs of article 36 constitutes a mirror image of article 66, which provides:

"Loss of or damage to the goods after the risk has passed to the buyer does not discharge him from his obligation to pay the price, unless the loss or damage is due to an act or omission of the seller."

3. CLOUT case No. 107 [AUSTRIA Oberlandesgericht [Appellate Court] Innsbruck 1 July 1994, available online at <http://cisgw3.law.pace.edu/cases/940701a3.html>].

4. CLOUT case No. 360 [GERMANY Amtsgericht [Lower Court] Duisburg 13 April 2000, available online at <http://cisgw3.law.pace.edu/cases/000413g1.html>] (see full text of the decision).

5. Under article 39(1), in contrast, it is the time of discovery of a lack of conformity that is critical: that article provides that a buyer loses its right to rely on a lack of conformity if it fails to "give notice to the seller specifying the nature of the of the lack of conformity within a reasonable time after he has discovered it or ought to have discovered it."

6. 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>] (see full text of the decision).

7. 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>], reversed on other grounds by CLOUT case No. 241 [FRANCE Cour de Cassation [Supreme Court] 5 January 1999, available online at <http://cisgw3.law.pace.edu/cases/990105f1.html>]; 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>] (see full text of the decision).

8. CLOUT case No. 191 [ARGENTINA Cámara Nacional de los Apelaciones en lo Comercial [Appellate Court] 31 October 1995, available online at <http://cisgw3.law.pace.edu/cases/951031a1.html>]. To similar effect, see CLOUT case No. 107 [AUSTRIA Oberlandesgericht [Appellate Court] Innsbruck 1 July 1994, available online at <http://cisgw3.law.pace.edu/cases/940701a3.html>] (see full text of the decision); CLOUT case No. 360 [GERMANY Amtsgericht [Lower Court] Duisburg 13 April 2000, available online at <http://cisgw3.law.pace.edu/cases/000413g1.html>].

9. 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>], reversed on other grounds by CLOUT case No. 241 [FRANCE Cour de Cassation [Supreme Court] 5 January 1999, available online at <http://cisgw3.law.pace.edu/cases/990105f1.html>]. See also 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>] (see full text of the decision); [MEXICO Compromex Arbitration Award 29 April 1996, available online at <http://cisgw3.law.pace.edu/cases/960429m1.html>].

10. [NETHERLANDS Arrondissementsrechtbank [District Court] Arnhem 17 July 1997, available online at <http://cisgw3.law.pace.edu/cases/970717n1.html>]. On appeal, the court found that the CISG was inapplicable but affirmed the result on the basis of domestic law. [NETHERLANDS Gerechtshof [Appellate Court] Arnhem 9 February 1999, available online at <http://cisgw3.law.pace.edu/cases/990209n1.html>].

11. This statement was an alternative holding. The court also reasoned that the seller was not liable because any claim against the buyer by its own buyer was time-barred.

12. This question is closely related to the general question of which party bears the burden of proof when the buyer claims the goods do not conform to the contract under article 35. See Paragraph 15 of the case summary for Article 35, supra.

13. 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>].

14. CLOUT case No. 377 [GERMANY Landgericht [District Court] Flensburg 24 March 1999, available online at <hhttp://cisgw3.law.pace.edu/cases/990324g2.html>].

15. 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>], reversed on other grounds by CLOUT case No. 241 [FRANCE Cour de Cassation [Supreme Court] 5 January 1999, available online at <http://cisgw3.law.pace.edu/cases/990105f1.html>].

16. [MEXICO Compromex Arbitration Award 29 April 1996, available online at <http://cisgw3.law.pace.edu/cases/960429m1.html>].

17. CLOUT case No. 360 [GERMANY Amtsgericht [Lower Court] Duisburg 13 April 2000, available online at <http://cisgw3.law.pace.edu/cases/000413g1.html>].

18. Article 35(2)(a) of the CISG provides that, unless otherwise agreed, goods do not conform to the contract unless they "are fit for the purposes for which goods of the same description would ordinarily be used." This provision does not, however, expressly require the goods to be fit for ordinary purposes for any specified "period of time."

19. Article 35(2)(b) of the Convention provides that, unless otherwise agreed, goods do not conform to the contract unless they "are fit for any particular purpose expressly or impliedly made known to the seller at the time of the conclusion of the contract, 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." This provision does not, however, expressly require the goods to be fit for particular purposes for any specified "period of time."

20. CLOUT case No. 107 [AUSTRIA Oberlandesgericht [Appellate Court] Innsbruck 1 July 1994, available online at <http://cisgw3.law.pace.edu/cases/940701a3.html>].


ANALYSIS OF CISG CASE LAW

Reprinted by special permission of Northwestern University School of Law. 34 Northwestern Journal of International Law and Business (Winter 2004) 299-440.[*]

excerpt from

The Interpretive Turn in International Sales Law:
An Analysis of Fifteen Years of CISG Jurisprudence

Larry A. DiMatteo, Lucien Dhooge, Stephanie Greene,
Virginia Maurer and Marisa Pagnattaro

[...]

2. Risk of Loss and Warranties: Article 36

Article 36 fixes the point at which the seller's obligations pertaining to the conformity of goods expires; when the risk of loss passes to the buyer or at the expiration of any express or implied guaranty. The buyer is allocated the burden of proving that the goods were defective prior to the expiration of the seller's obligation point. This was the issue in a German case involving the sale of meat products.[608] Upon receipt, the buyer objected to the quality of the meat and sued for a refund. The court reasoned that since the parties had not agreed otherwise, the risk of loss had passed to the buyer when the seller handed over the goods to the first carrier. Therefore, under CISG Articles 36 and 66, the buyer had the burden of proving that the goods did not conform to the contract at the time the risk of loss passed. This burden, demonstrated here, is often difficult to sustain.[609] [page 400]

[...]


FOOTNOTES

* For a subsequent text on this subject by these authors, see Larry A. DiMatteo, Lucien Dhooge, Stephanie Greene, Virginia Maurer & Marisa Pagnattaro, "International Sales Law: A Critical Analysis of CISG Jurisprudence", Cambridge University Press (2005) 241 p.

[...]

608. See LG Flensburg 2 O 291/98, Mar. 24, 1999 (F.R.G.), available at <http://cisgw3.law.pace.edu/cases/990324g2.html> [English translation by Ruth M. Janal].

609. On the issue of the burden of proof, see generally, Lugano, Cantone del Ticino, La seconda Camera civile del Tribunale d'appello [Appellate Court], 12.97.00193, Jan. 15, 1988 (Switz.), available at <http://cisgw3.law.pace.edu/cases/980115s1.html> [English translation by Charles Sant 'Elia, translation edited by Angela Maria Romito]; CA Grenoble, 94/0258, May 15, 1996, supra note 569. Often decisions under Article 36 turn on factual analysis when the risk of loss passed. See Cairo Chamber of Commerce and Industry, Egypt Arbitration Award, 19/1990, Apr. 13, 1991 (Egypt), available at <http://cisgw3.law.pace.edu/cases/910413e1.html>; FB Budapest, 12.G.75.715/1996/20, Jul. 1, 1997 (Hung.), available at <http://cisgw3.law.pace.edu/cases/970701h1.html>; BP Int'l, Ltd. v. Empressa Estatal Petroleos de Ecuador, 332 F.3d 333 (5th Cir. 2003).

[...]

Go to complete text of Analysis of Fifteen Years of CISG Jurisprudence


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