ANNOTATED TEXT OF CISG
Article 35

(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.

Legislative history || Case law || Scholarly writings || Links to related articles || Words and phrases || CISG (full-text)

Guide to this article

• UNCITRAL outline of issues present
  
• Editoral analysis of this article with cross-references to related subjects [not yet available]
  
• Secretariat Commentary (closest counterpart to an Official Commentary on this article)
• Match-up of this article with the 1978 draft
(to validate Secretariat Commentary)

• Roadmap to the legislative history of this article
• Legislative history of this article: long form
• Legislative history of this article: short form
  • Chronology of development of Article 35 at the 1980 Vienna Diplomatic Conference
• Summary of UNCITRAL legislative history
• Hague Convention antecedents
  • Article 35 match-up with ULIS
  • ULIS (full-text) and André Tunc Commentary on ULIS

• • For a leading case on Article 35 and commentaries on it, go to the ruling of the Supreme Court of Germany [Bundesgerichtshof] dated 8 March 1995

  • Martin Karollus [Austria], excerpt from Judicial Interpretation and Application of the CISG in Germany 1988-1994, Cornell Review of the Convention on Contracts for the International Sale of Goods (1995) 51-94

  • Anna Veneziano [Italy], Nonconformity of goods in international sales: a survey of current case law on CISG/Non-conformité des marchandises dans les ventes internationales: étude de la jurisprudence actuelle sur la CVIM, Revue de droit des affaires internationales / International business law journal: Forum européen de la communication (Paris 1997) 39-65

• For further information on CISG case law (material not in this database), go to Unilex: click for a description of the contents of this service. Also of considerable utility are the compendium of case citations and the CISG bibliography contained in Michael R. Will, Twenty Years of International Sales Law Under the CISG: International Bibliography and Case Law Digest, Kluwer Law International (2000). Prof. Will's materials are presented on the CD-Rom edition of the database.

• Selected monographs and anthologies (English language)

• Comments on Article 35 from 1999 text by John O. Honnold [U.S.] [available in CD-ROM edition only]

• Comments on Article 35 from seminal 1986 text by Peter Schlechtriem [Germany]

• Comments on Article 35 from monograph by Jacob S. Ziegel [Canada]

• Citations to materials on this article in other texts (selected texts only)
• Selected law journal articles and other commentaries

• Peter Winship [U.S.], excerpt from Changing Contract Practices in the Light of the United Nations Sales Convention: A Guide for Practitioners, 29 International Lawyer (1995) 525-554

• To identify other relevant commentaries, go to Bibliography and Bibliography Search Form [conformity, nonconformity, guarant* (stem for guarantee/guarantees) and warrant* (stem for warranty/warranties) are search form entries you may wish to consider]

  Our bibliography contains thousands of citations in 24 languages; we encourage you to tailor your own bibliography search to the specific aspect of this article that you are researching.

Links to related articles

• Go to Annotated Text of Article 36 [Damage of goods: effect on conformity]; go to Annotated Text of Article 37 [Right to cure up to date for delivery]
  • Go also to Annotated Text of Article 46 [Buyer's right to compel performance] (see Article 46(2) [Buyer's right to require substitute goods] and Article 46(3) [Buyer's right to require repair]); and go to Annotated Text of Article 48 [Cure after delivery]

• Go to Annotated Text of Article 38 [Time for examining the goods]; go to Annotated Text of Article 39 [Notice of lack of conformity]; go to Annotated Text of Article 40 [Seller's knowledge of lack of conformity]; go to Annotated Text of Article 44 [Excuse for failure to notify]

Words, phrases and concepts

• State of knowledge ("could not have been unaware") [35(3)]: link to same language and to variations on this theme recited elsewhere in the CISG

• "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" (35(2)(d)). "Mrs. Kamarul (Australia) . . . What would happen if the goods were of a new type and there was no usual container or packaging for them? The provision proposed by her delegation provided that in cases where new standards had not been established, the manner in which the goods would be contained or packaged should be adequate to preserve and protect them." OR 316, para. 72 [OR = Official Records of the United Nations Conference on Contracts for the International Sale of Goods, Vienna 10 March - 11 April 1980, A/CONF. 97/19].

• reasonableness [35(1(b)]: In addition to being specifically mentioned in this article, reasonableness is a general principle of the CISG
  • For the definition of reasonableness recited in the Principles of European Contract Law and references to reasonableness in Continental and Common Law domestic rules, doctrine and jurisprudence, go to PECL article 1:302 and the comment and notes prepared for this provision

  • To drive home the correlation between the PECL's definition of reasonableness and the evident same meaning of this term to CISG legislators when they used the concept either specifically or as a general principle of the uniform law they drafted, see overview comments and comments that illustrate the similar manner in which this concept fits the CISG