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2008 UNCITRAL Digest of case law on the United Nations Convention on the International Sale of Goods

Digest of Article 7 case law [reproduced with permission of UNCITRAL] [*]

[Text of article
Overview
Interpretation of the Convention in general
The Convention's international character
Promoting uniform application
Observance of good faith in international trade
Gap-filling
General principles of the Convention
-    Party autonomy
-    Good faith
-    Estoppel
-    Place of payment of monetary obligations
-    Currency of payment
-    Burden of proof
-    Full compensation
-    Informality
-    Dispatch of communication
-    Mitigation of damages
-    Binding usages
-    Set-off
-    Right to interest
-    Favor contractus
UNIDROIT Principles and Principles of European Contract Law]

Article 7

(1) In the interpretation of this Convention, regard is to be had to its international character and to the need to promote uniformity in its application and the observance of good faith in international trade.
(2) Questions concerning matters governed by this Convention which are not expressly settled in it are to be settled in conformity with the general principles on which it is based or, in the absence of such principles, in conformity with the law applicable by virtue of the rules of private international law.

OVERVIEW

1A. Article 7 is divided into two subparts: article 7(1) specifies several considerations to be taken into account in interpreting the Convention; article 7(2) describes the methodology for dealing with the Convention's "gaps" -- i.e., "matters governed by this Convention which are not expressly settled in it."

Interpretation of the Convention in general

1. Because national rules on sales diverge sharply in conception and approach, in interpreting the Convention it is important for a forum to avoid being influenced by its own domestic sales law.[1] Article 7, paragraph 1 therefore provides that, in the interpretation of the Convention, "regard is to be had to its international character and to the need to promote uniformity in its application".

The Convention's international character

2. According to a number of courts, article 7(1)'s reference to the Convention's international character [2] forbids fora from interpreting the Convention on the basis of national law;[3] instead, courts must interpret the Convention "autonomously".[4] Nevertheless, some courts have stated that case law interpreting domestic sales law, although not per se applicable, may inform a court's approach to the Convention where the language of the relevant articles of the Convention tracks that of the domestic law.[5] According to case law, reference to the Convention's legislative history,[6] as well as to international scholarly writing, is admissible in interpreting the treaty.[7]

Promoting uniform application

3. The mandate imposed by article 7(1) to regard the need to promote uniform application of the Convention has been construed to require fora interpreting the CISG to take into account foreign decisions that have applied the Convention.[8] In one case, a court cited 40 foreign court decisions and arbitral awards.[9] Two decisions have each cited two foreign cases,[10] and several cases have cited a single foreign decision.[11] More recently, a court referred to 37 foreign court decisions and arbitral awards.[12]

4. Two courts have stated that foreign court decisions have merely persuasive, non-binding authority.[13]

Observance of good faith in international trade

5. Article 7(1) also requires that the Convention be interpreted in a manner that promotes the observance of good faith in international trade.[14] It has been held that requiring notice of avoidance where a seller has unambiguously and definitely declared that it will not perform its obligations would be contrary to this mandate.[15] Although good faith is expressly referred to only in article 7(1), relating to the Convention's interpretation, there are numerous rules in the Convention that reflect the good faith principle. The following provisions are among those that manifest the principle:

Gap-filling

6. Under article 7(2), gaps in the Convention -- i.e. questions the Convention governs but for which it does not expressly provide answers are filled, if possible, without resorting to domestic law, but rather in conformity with the Convention's general principles. Only where no such general principles can be identified does article 7(2) permit reference to the applicable national law.[17] Matters the Convention does not govern at all are resolved by direct recourse to applicable national law.[18] Issues beyond the Conventions scope are discussed in the Digest for article 4.

GENERAL PRINCIPLES OF THE CONVENTION

Party autonomy

7. According to several courts, one of the general principles upon which the Convention is based is party autonomy.[19]

Good faith

8. Good faith has also been found to be a general principle of the Convention.[20] That general principle has led a court to state that a buyer need not explicitly declare a contract avoided if the seller has refused to perform its obligations, and that to insist on an explicit declaration in such circumstance would violate the principle of good faith, even though the Convention expressly requires a declaration of avoidance.[21] In another case, a court required a party to pay damages because the party's conduct was "contrary to the principle of good faith in international trade laid down in article 7 CISG"; the court also stated that abuse of process violates the good faith principle.[22]

9. A more recent court decision stated that the general principle of good faith requires the parties to cooperate with each other and to exchange information relevant for the performance of their respective obligations.[23]

Estoppel

10. According to some decisions, estoppel is also one of the general principles upon which the Convention is based -- specifically, a manifestation of the principle of good faith.[24] According to one court, however, the Convention is not concerned with estoppel.[25]

Place of payment of monetary obligations

11. A significant number of decisions hold that the Convention includes a general principle relating to the place of performance of monetary obligations. Thus in determining the place for paying compensation for non-conforming goods, one court stated that "if the purchase price is payable at the place of business of the seller," as provided by article 57 of the Convention, then "this indicates a general principle valid for other monetary claims as well."[26] In an action for restitution of excess payments made to a seller, a court stated that there was a general principle that "payment is to be made at the creditor's domicile, a principle that is to be extended to other international trade contracts under article 6.1.6 of the UNIDROIT Principles."[27] The Supreme Court of another State, which had previously adopted the reverse position, discovered a general principle of the Convention under which, upon avoidance of a contract, the place for performance of restitution obligations should be determined by transposing the primary obligations -- through a mirror effect -- into restitution obligations.[28] One decision, however, denies the existence of a Convention general principle for determining the place for performance of all monetary obligations.[29]

Currency of payment

12. One court has observed that the question of the currency of payment is governed by, although not expressly settled in, the Convention.[30] According to one view, the court noted, a general principle underlying the CISG is that, except where the parties have agreed otherwise, the seller's place of business controls all questions relating to payment, including the question of currency. However, the court also noted the view that there was no pertinent Convention general principle, and thus that applicable domestic law governed the matter. The Court did not choose which alternative was the correct approach because, on the facts of the case, each led to the same the result (payment was due in the currency of the seller's place of business).

Burden of proof

13. According to some decisions,[31] the question of which party bears the burden of proof is a matter governed by, albeit not explicitly settled in, the Convention. The issue is therefore to be settled in conformity with the general principles on which the Convention is based, provided pertinent general principles underlie the Convention.[32] According to various decisions, article 79(1) [33] and (according to one court decision) article 2(a) evidence such general principles, which have been summarized as follows: a party attempting to derive beneficial legal consequences from a provision has the burden of proving the existence of the factual prerequisites required to invoke the provision;[34] a party claiming an exception has to prove the factual prerequisites of that exception.[35] According to some courts, however, burden of proof is a matter not governed by the

Convention, and is instead left to domestic law.[36]

Full compensation

14. According to some decisions the Convention is also based upon a principle of full compensation for losses in the event of breach.[37] One court restricted this general principle to cases in which, as a result of a breach, a contract is avoided.[38]

Informality

15. Several tribunals have stated that the principle of informality, evidenced in article 11, constitutes a general principle upon which the Convention is based;[39] from this principle it follows, inter alia, that the parties are free to modify or terminate their contract orally, in writing, or in any other form. An implied termination of the contract has been held possible,[40] and it has been held that a written contract may be modified orally.[41]

Dispatch of communications

16. The dispatch rule in article 27 applies to communications between the parties after they have concluded a contract. Under this rule, a notice, request or other communication becomes effective as soon as the declaring party releases it from its own sphere of control using an appropriate means of communication. This rule applies to a notice of non-conformity or of third-party claims (arts. 39, 43); to demands for specific performance (art. 46), price reduction (art. 50), damages (art. 45, para. 1(b)) or interest (art. 78); to a declaration of avoidance (arts. 49, 64, 72, 73); to a notice fixing an additional period for performance (arts. 47, 63); and to other notices provided for in the Convention, such as those described in article 32(1), article 67(2), and article 88. Case law states that the dispatch principle is a general principle underlying Part III of the Convention, and thus also applies to any other communication the parties may have provided for in their contract unless they have agreed that the communication must be received to be effective.[42]

Mitigation of damages

17. Article 77 contains a rule under which a damage award can be reduced by the amount of losses that the aggrieved party could have mitigated by taking measures that were reasonable in the circumstances. The mitigation of damages principle has also been considered a general principle upon which the Convention is based.[43]

Binding usages

18. Another general principle, recognized by case law, is that informing article 9(2), under which the parties are bound, unless otherwise agreed, by a usage of which they knew or ought to have known and which in international trade is widely known to, and regularly observed by, parties to contracts of the type involved in the particular trade concerned.[44]

Set-off

19. One court has suggested that the issue of set-off is governed by, although not expressly settled in, the Convention; and that the Convention contains a general principle within the meaning of article 7(2) that permitts reciprocal claims arising under the Convention (in the case, the buyer's claims for damages and the seller's claim for the balance of the sale proceeds) to be offset.[45] According to other courts, however, the issue of set-off is not governed of the Convention.[46]

Right to interest

20. An arbitral tribunal has stated that entitlement to interest on all sums in arrears (see article 78) also constitutes a general principle of the Convention.[47] According to some tribunals, the Convention is based upon a general principle under which entitlement to interest does not require a formal notice to the debtor in default.[48] Other decisions, however, state that interest on sums in arrears is due only if a formal notice has been given to the debtor.[49]

Favor contractus

21. Commentators have also suggested that the Convention is based upon the favor contractus principle, pursuant to which one should adopt approaches that favor finding that a contract continues to bind the parties rather than that it has been avoided. This view appears to have been adopted by two courts: one court expressly referred to the principle of favor contractus;[50] the other merely stated that avoidance of the contract constitutes an ultima ratio remedy.[51]

22. Several decisions have identified article 40 as embodying a general principle of the Convention applicable to resolve unsettled issues under the Convention.[52] According to an arbitration panel, "Article 40 is an expression of the principles of fair trading that underlie also many other provisions of the Convention, and it is by its very nature a codification of a general principle."[53] Thus, the decision asserted, even if article 40 did not apply directly where goods failed to conform to a contractual warranty clause, the general principle underlying article 40 would be indirectly applicable to the situation by way of article 7(2). In another decision, a court derived from article 40 a general principle that even a very negligent buyer deserves more protection than a fraudulent seller; it then applied the principle to hold that a seller that had misrepresented the age and mileage of a car could not escape liability under article 35(3) [54] even if the buyer could not have been unaware of the lack of conformity at the time of the conclusion of the contract.[55]

UNIDROIT Principles and Principles of European Contract Law

23. One arbitral tribunal,[56] in deciding the rate of interest to apply to payment of sums in arrears, applied the rate specified in both article 7.4.9 of the UNIDROIT Principles of International Commercial Contracts and in article 4.507 of the Principles of European Contract Law, arguing that such rules had to be considered general principles on which the Convention is based. [here] In other cases,[57] arbitral tribunals referred to the UNIDROIT Principles of International Commercial Contracts to corroborate results under rules of the Convention; one court also referred to the UNIDROIT Principles of International Commercial Contracts in support of a solution reached on the basis of the Convention.[58] According to another court, the UNIDROIT Principles can help determine the precise meaning of general principles upon which the CISG is based.[59]


NOTES

* This presentation of the UNCITRAL Digest is a slightly modified version of the original UNCITRAL text at <http://www.UNCITRAL.org/pdf/english/clout/CISG_second_edition.pdf>. The following modifications were made by the Institute of International Commercial Law of the Pace University School of Law:

   -    To enhance access to contents by computer search engines, we present in html rather than pdf;
 
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In addition, this presentation introduces each section of the UNCITRAL Digest with a Google search button. This is to help you access doctrine (relevant material from the over 1,200 commentaries, monographs and books on the CISG and related subjects that we present on this database) as well as the texts of the cases that UNCITRAL cites in its Digests and that we present in our updates to UNCITRAL's Digests.

1. See United Nations Conference on Contracts for the International Sale of Goods, Vienna, 10 March-11 April 1980, Official Records, Documents of the Conference and Summary Records of the Plenary Meetings and of the Meetings of the Main Committee, 1981, p. 17.

2. For references in case law to the need to take the Conventions international character into account in the interpretation of the Convention, see [UNITED STATES Federal District Court, Eastern District of Louisiana, 17 May 1999 (Medical Marketing v. Internazionale Medico)] (see full text of the decision); [UNITED STATES Federal Court of Appeals for the Second Circuit 6 December 1995 (Delchi v, Rotorex)] (see full text of the decision); [GERMANY Oberlandesgericht Frankfurt am Main 20 April 1994 (New Zealand mussels case)] (see full text of the decision); [SWITZERLAND Richteramt Laufen des Kantons Berne 7 May 1993 (Automatic storage system case)] (see full text of the decision).

3. See [UNITED STATES Federal Court of Appeals for the Eleventh Circuit 29 June 1998 (MCC-Marble v. Ceramica Nuova)] (see full text of the decision); [UNITED STATES Federal District Court, Southern District of New York, 6 April 1998 (Claudia v. Olivieri Footwear)] (see full text of the decision); [GERMANY Oberlandesgericht Karlsruhe 25 June 1997 (Surface protective film case)] (see full text of the decision); [GERMANY Bundesgerichtshof 3 April 1996 (Cobalt sulphate case)] (see full text of the decision); [SWITZERLAND Richteramt Laufen des Kantons Berne 7 May 1993 (Automatic storage system case)] (see full text of the decision).

4. [SWITZERLAND Handelsgericht des Kantons Aargau 11 June 1999 (Granular plastic case)]; [GERMANY Bundesgerichtshof 24 March 1999 (Vine wax case)] (see full text of the decision); [SWITZERLAND Handelsgericht des Kantons Aargau 26 September 1997 (Cutlery case)] (see full text of the decision).

5. [UNITED STATES Federal Court of Appeals for the Second Circuit 6 December 1995 (Delchi v. Rotorex)] (see full text of the decision); for a more recent case stating the same, see [UNITED STATES Federal Court of Appeals for the Fourth Circuit 21 June 2002 (Schmitz-Werke GmbH & Co. v. Rockland Industries)].

6. See [GERMANY Landgericht Aachen 20 July 1995] (referring to the legislative history of article 78); [GERMANY Oberlandesgericht Frankfurt am Main 20 April 1994 (New Zealand mussels case)] (see full text of the decision).

7. [AUSTRIA Oberster Gerichtshof 13 April 2000 (Machines case)].

8. See, for example, [SPAIN Audiencia Provincial de Valencia 7 June 2003 (1,500 tons of concentrated grape juice case)].

9. See [ITALY Tribunale di Vigevano 12 July 2000 (Sheets of vulcanized rubber used in manufacture of shoe soles case)].

10. See [BELGIUM Rechtbank Koophandel Hasselt 2 December 1998]; [ITALY Tribunale di Cuneo, 31 January 1996 (Sports clothes case)].

11. See [UNITED STATES Federal Northern District Court for Illinois 28 March 2002 (Usinor Industeel, v. Leeco Steel Products, Inc.)]; [BELGIUM Rechtbank Koophandel Hasselt 6 March 2002 (Shoes case)]; [AUSTRALIA Supreme Court of Queensland 17 November 2000 (Scrap steel case)] (see full text of the decision); [AUSTRIA Oberster Gerichtshof 13 April 2000 (Machines case)]; [ITALY Tribunale di Pavia 29 December 1999 (High fashion textiles case)] (see full text of the decision); [FRANCE Cour d'appel Grenoble 23 October 1996 (Stock equipment: live stock pens, drinking troughs, etc. case)] (see full text of the decision).

12. [ITALY Tribunale di Rimini 26 November 2002 (Porcelain tableware case)].

13. [ITALY Tribunale di Vigevano 12 July 2000 (Sheets of vulcanized rubber used in manufacture of shoe soles case)]; [ITALY Tribunale di Pavia 29 December 1999 (High fashion textiles case)]. See also [ITALY Tribunale di Rimini 26 November 2002 (Porcelain tableware case)].

14. See United Nations Conference on Contracts for the International Sale of Goods, Vienna, 10 March-11 April 1980, Official Records, Documents of the Conference and Summary Records of the Plenary Meetings and of the Meetings of the Main Committee, 1981, p. 18.

15. [GERMANY Oberlandesgericht München, Germany, 15 September 2004 (Ink jet printers case)].

16. United Nations Conference on Contracts for the International Sale of Goods, Vienna,10 March-11 April 1980, Official Records, Documents of the Conference and Summary Records of the Plenary Meetings and of the Meetings of the Main Committee, 1981, p. 18.

17. See [ICC International Court of Arbitration, Award 8611/hV/JK of 23 January 1997 (Industrial equipment case)].

18. See, e.g., [FRANCE Cour d'appel Paris, 6 November 2001 (Cables case)], expressly referring to article 7 of the Convention when stating that issues not governed by the Convention have to be solved by means of the applicable law; for a similar statement, see also [ARGENTINA Camara Nacional de Apelaciones en lo Comercial 24 April 2000 (Charcoal case)], (stating the same); [SWITZERLAND Handelsgericht des Kantons Aargau 11 June 1999 (Granular plastic case)]; [NETHERLANDS Rechtbank Zutphen 29 May 1997 (Petunia cuttings case)], (stating the same); [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry, Award 38/1996 of 28 March 1997]; [GERMANY Amtsgericht Mayen 6 September 1994 (Artificial stone slabs case)] (stating the same); [SWITZERLAND Handelsgericht des Kantons Zürich 9 September 1993 (Furniture case)] (stating the same) (see full text of the decision).

19. See [BELGIUM Hof Beroep Gent 15 May 2002 (Design of radio phone case)]; [BELGIUM Rechtbank Koophandel Ieper 29 January 2001 (Cooling installations case)]; [GERMANY Landgericht Stendal 12 October 2000 (Granite rock case)]; see also [ITALY Tribunale di Rimini 26 November 2002 (Porcelain tableware case)].

20. See [BELGIUM Hof Beroep Gent 15 May 2002 (Design of radio phone case)]; [GERMANY Bundesgerichtshof 9 January 2002 (Powdered milk case)]; [GERMANY Bundesgerichtshof 31 October 2001 (Machinery case)]; [GERMANY Oberlandesgericht München 21 January 1998 (Insulating materials case)] (see full text of the decision); [SWITZERLAND Handelsgericht des Kantons Zürich 30 November 1998 (Lambskin coat case)] (see full text of the decision); [ITALY Corte d'Appello Milano 11 December 1998 (Printer device case)]; [MEXICO Compromex Arbitration 30 November 1998 (Candies and sweets case)]; [GERMANY Oberlandesgericht Hamburg 28 February 1997 (Iron molybdenum case)]; [NETHERLANDS Rechtbank Arnhem, 17 July 1997 (Work of art / painting case)]; [GERMANY Landgericht München 6 May 1997 (Cars case)] (stating the same); [GERMANY Landgericht Saarbrücken 26 March 1996 (Ice-cream parlor furnishings case)]; [GERMANY Arbitration-Schiedsgericht der Handelskammer Hamburg, 21 March and 21 June 1996 (Chinese goods case)] (see full text of the decisions); [GERMANY Oberlandesgericht Celle 24 May 1995 (Used printing press case)] (see full text of the decision); [ICC International Court of Arbitration, Award 8128 of 1995 (Chemical fertilizer case)]; [HUNGARY Arbitration Court attached to the Hungarian Chamber of Commerce and Industry, Award Vb 94124 of 17 November 1995 (Mushrooms case)]; [FRANCE Cour d'appel Grenoble 22 February 1995 (Jeans case)]; [AUSTRALIA Court of Appeal, New South Wales, 12 March 1992 (Construction contract / pumping station case)].

21. [GERMANY Oberlandesgericht Hamburg 28 February 1997 (Iron molybdenum case)].

22. [FRANCE Cour d'appel Grenoble 22 February 1995 (Jeans case)].

23. [GERMANY Bundesgerichtshof 31 October 2001 (Machinery case)].

24. See [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry, Award 302/1996 of 27 July 1999 (Goods case)]; [GERMANY Oberlandesgericht Karlsruhe, Germany, 25 June 1997 (Surface protective film case)] (see full text of the decision); [AUSTRIA Arbitration-Internationales Schiedsgericht der Bundeskammer der gewerblichen Wirtschaft - Wien, 15 June 1994 (SCH-4318) (Rolled metal sheets case)]; [AUSTRIA Arbitration-Internationales Schiedsgericht der Bundeskammer der gewerblichen Wirtschaft -Wien, 15 June 1994 (SCH-4366) (Rolled metal sheets case)] (see full text of the decision); [NETHERLANDS Hof s'Hertogenbosch 26 February 1992 (Shoes case)].

25. [NETHERLANDS Rechtbank Amsterdam 5 October 1994 (Textiles case)].

26. [GERMANY Oberlandesgericht Düsseldorf 2 July 1993 (Veneer cutting machine case)].

27. [FRANCE Cour d'appel Grenoble, 23 October 1996 (Stock equipment: live stock pens, drinking troughs, etc. case)].

28. [AUSTRIA Oberster Gerichtshof 29 June 1999 (Dividing wall panels case)].

29. [FRANCE Cour d'appel Paris 14 January 1998 (Two elephants case)].

30. [GERMANY Landgericht Berlin 24 March 1998 (Knitwear case)].

31. See [ITALY Tribunale di Vigevano 12 July 2000 (Sheets of vulcanized rubber used in manufacture of shoe soles case)]; [ITALY Tribunale di Pavia 29 December 1999 (High fashion textiles case)]; [SWITZERLAND Handelsgericht des Kantons Zürich 26 April 1995 (Saltwater isolation tank case)] (see full text of the decision); [SWITZERLAND Handelsgericht des Kantons Zürich 9 September 1993 (Furniture case)].

32. See [SWITZERLAND Handelsgericht des Kantons Zürich 9 September 1993 (Furniture case)].

33. [ITALY Tribunale di Vigevano 12 July 2000 (Sheets of vulcanized rubber used in manufacture of shoe soles case)]; [GERMANY Bundesgerichtshof 9 January 2002 (Powdered milk case)]; [ITALY Tribunale di Pavia 29 December 1999 (High fashion textiles case)].

34. For references to this principle, see [ITALY Tribunale di Vigevano 12 July 2000 (Sheets of vulcanized rubber used in manufacture of shoe soles case)]; [GERMANY Landgericht Frankfurt 6 July 1994 (Chocolate products case)]; [AUSTRIA Oberlandesgericht Innsbruck 1 July 1994 (Garden flowers case)] (see full text of the decision).

35. See [ITALY Tribunale di Vigevano 12 July 2000 (Sheets of vulcanized rubber used in manufacture of shoe soles case)].

36. See [SWITZERLAND Berzirksgericht der Sanne 20 February 1997 (Spirits case)]; [ICC International Court of Arbitration, Award 6653 of 26 March 1993 (Steel bars case)]; in one case, a state court referred to the problem of whether the Convention is based upon a particular general principle in respect of the issue of burden of proof or whether the issue is one not governed by the Convention, but left the issue open; see [SWITZERLAND Cantone del Ticino Tribunale d'appello 15 January 1998 (Cocoa beans case)].

37. [AUSTRIA Oberster Gerichtshof, Austria, 9 March 2000 (Roofing material case)]; [AUSTRIA Arbitration - Internationales Schiedsgericht der Bundeskammer der gewerblichen Wirtschaft -Wien, 15 June 1994 (SCH-4366) (Rolled metal sheets case)] and [AUSTRIA Arbitration-Internationales Schiedsgericht der Bundeskammer der gewerblichen Wirtschaft -Wien, 15 June 1994 (SCH-4318) (Rolled metal sheets case)].

38. [AUSTRIA Oberster Gerichtshof 9 March 2000 (Roofing material case)].

39. See [MEXICO Compromex Arbitration 29 April 1996 (Canned fruit case)].

40. [AUSTRIA Oberster Gerichtshof, Austria, 29 June 1999 (Dividing wall panels case)].

41. [AUSTRIA Oberster Gerichtshof 6 February 1996 (Propane case)] (see full text of the decision).

42. [GERMANY Landgericht Stuttgart 13 August 1991 (Women's clothes case)] (according to the contract the notice of non-conformity had to be by registered letter. The court held that that meant that the notice had to be received by the other party. Moreover, the declaring party had also to prove that the notice had been received by the other party). See also [AUSTRIA Oberster Gerichtshof 30 June 1998 (Pineapples case)].

43. [GERMANY Landgericht Zwickau 19 March 1999 (Chemical products case)]; [ICC Court of International Arbitration, Award 8817 of December 1997 (Food products case)]; [ITALY Tribunale di Rimini 26 November 2002 (Porcelain tableware case)].

44. [BELGIUM Rechtbank Koophandel Ieper 29 January 2001 (Cooling installations case)].

45. [GERMANY Oberlandesgericht Hamburg 26 November 1999 (Jeans case)].

46. See [AUSTRIA Oberster Gerichtshof 22 October 2001 (Gasoline and gas oil case)]; [ITALY Tribunale di Vigevano 12 July 2000 (Sheets of vulcanized rubber used in manufacture of shoe soles case)] (see full text of the decision); [GERMANY Amtsgericht Duisburg 13 April 2000 (Pizza cartons case)]; [GERMANY Oberlandesgericht München 11 March 1998 (Cashmere sweaters case)]; [SWITZERLAND Kantonsgericht Freiburg 23 January 1998 (Commercial laundry machine case)]; [GERMANY Landgericht Hagen 15 October 1997 (Socks case) ]; [GERMANY Landgericht München 6 May 1997 (Cars case)]; [GERMANY Oberlandesgericht Düsseldorf 24 April 1997 (Shoes case)] (see full text of the decision); [GERMANY Oberlandesgericht Düsseldorf 11 July 1996 (Lawn mower engines case)] (see full text of the decision); [GERMANY Landgericht Duisburg 17 April 1996 (Textiles case)]; [GERMANY Oberlandesgericht Stuttgart 21 August 1995 (Machinery case)]; [GERMANY Landgericht München 20 March 1995 (Rancid bacon case)]; [NETHERLANDS Rechtbank Middelburg 25 January 1995 (Beef case)]; [GERMANY Amtsgericht Mayen 6 September 1994 (Artificial stone slabs case)]; [GERMANY Oberlandesgericht Koblenz 17 September 1993 (Computer chip case)]; [GERMANY Oberlandesgericht Hamm 9 June 1995 (Window elements case)]; [NETHERLANDS Rechtbank Roermond 6 May 1993 (Electric kettles case)]; [NETHERLANDS Rechtbank Arnhem 25 February 1993 (Clothes case)].

47. [ICC Court of International Arbitration, Award 8908 of December 1998 (Pipes case)].

48. [SWITZERLAND Handelsgericht des Kantons Aargau 26 September 1997 (Cutlery case)] (see full text of the decision); [GERMANY Kammergericht Berlin 24 January 1994 (Wine case)] (see full text of the decision); [SWITZERLAND Canton of Ticino Pretore di Locarno Campagna 27 April 1992 (Furniture case)] (see full text of the decision).

49. [BULGARIA Arbitral Tribunal at the Bulgarian Chamber of Commerce and Industry, Award 11/1996 of 12 February 1998 (Steel ropes case)]; [GERMANY Landgericht Zwickau 19 March 1999 (Chemical products case)].

50. [SWITZERLAND Bundesgericht 28 October 1998 (Meat case)] (see full text of the decision).

51. [AUSTRIA Oberster Gerichtshof 7 September 2000 (Tombstones case)].

52. See the Digest for art. 40, para. 11.

53. [SWEDEN Arbitration Institute of the Stockholm Chamber of Commerce, 5 June 1998 (4,000 ton rail press case)] (see full text of the decision).

54. Article 35(3) provides that a seller is not liable for a lack of conformity under Article 35(2) if at the time of the conclusion of the contract the buyer knew or could not have been unaware of such lack of conformity.

55. [GERMANY Oberlandesgericht Köln 21 March 1996 (Chinese goods case)].

56. See [ICC Court of International Arbitration, Award 8128 of 1995 (Chemical fertilizer case)].

57. [ICC Court of International Arbitration, Award 9117 of March 1998 (Goods case)]; [ICC Court of International Arbitration, Award 8817 of December 1997 (Food products case)].

58. [FRANCE Cour d'appel Grenoble 23 October 1996 (Stock equipment: live stock pens, drinking troughs, etc. case)] (see full text of the decision).

59. See [NETHERLANDS Rechtbank Zwolle 5 March 1997 (Fish case)].


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