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
  
• Editorial 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)
• Commentary on use of UNIDROIT Principles of International Commercial Contracts and the Principles of European Contract Law to interpret or supplement CISG Article 35: René Franz Henschel [Denmark]

• 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
  • See also the Report of the Special U.S. Committee, dated 1 December 1964,
    explaining why the United States elected not to adopt either ULIS or ULF

• CASES INVOLVING CISG ARTICLE 35
  • Computer list of annotated cases

• For a companion report on CISG case law and other material, go to Unilex: click for description of and link to this excellent service

• See also:
  • UNCITRAL digest

  • UNCITRAL digest + added cases
  • 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

  • For a leading case on Article 35(2), go to Netherlands Arbitration Institute Case No. 2319 of 15 October 2002
  • see also:

  • Spain 27 January 2010 Trial Court Barcelona (Lathe machine case)
  • New Zealand 30 July 2010 High Court of New Zealand (RJ & AM Smallmon v. Transport Sales Limited and Grant Alan Miller)
  • Australia 6 August 2010 Supreme Court of Victoria (Delphic Wholesalers (Aust) Pty Ltd v. Agrilex Co. Limited)
  • Australia 13 August 2010 Federal Court of Australia (Cortem SpA v. Controlmatic Pty Ltd)
  • Australia 28 September 2010 Federal Court of Australia (Castel Electronics Pty. Ltd. v. Toshiba Singapore Pte. Ltd.)
  • 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

  • Peter Schlechtriem [Germany], in: Uniform Sales Law in the Decisions of the Bundesgerichtshof (2001), at Section IV.1

  • 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

• Selected monographs and anthologies
• Comments on Article 35 by Peter Schlechtriem [Germany] at 1984 Parker School seminar of the American Association for the Comparative Study of Law: Ch. 6, pp. 19-27
• Comments on Article 35 from seminal 1986 text by Peter Schlechtriem [Germany]

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

• Comments on Article 35 by Cesare Massimo Bianca [Italy] in 1987 Bianca-Bonell Commentary on the International Sales Law
• Comments on Article 35 by John O. Honnold [U.S.] in the 3rd ed. (1999) of the most frequently cited text on the CISG: Uniform Law for International Sales
• Comments on Article 35 in December 2000 text by Joseph Lookofsky [Denmark / U.S.]
• Commentarios al Articulo 35 sobre textos de 2001 por Pilar Perales [España]

• See also the helpful Enderlein & Maskow text (cited below under the words and phrases section of this Annotated Text material)

• Citations to materials on this article in other texts (selected texts only)
• Selected law journal articles and other commentaries
• Fritz Enderlein [Germany (DDR)], Rights and Obligations of the Seller under the UN Convention on Contracts for the International Sale of Goods [General obligations: Art. 30], in Sarcevic / Volken ed., International Sale of Goods: Dubrovnik Lectures, Oceana (1996) at 155-159

• Harry M. Flechtner [U.S.], Conformity of Goods, Third Party Claims, and Buyer's Notice of Breach under the CISG ... University of Pittsburgh School of Law Working Paper Series. Working Paper 64 (August 2007) <http://law.bepress.com/pittlwps/papers/art64>, Section IIA

• Clayton P. Gillette & Franco Ferrari, Warranties and "Lemons" under CISG Article 35(2)(a), Internationales Handelsrecht (1/2010) 2-17
• René Franz Henschel [Denmark], Varens kontraktmæssighed i internationale køb. En undersegelse af mangelsbegrebet i CISG art. 35 (ph.d.-afhandling) [The conformity of goods in international sales governed by CISG art. 35 (Ph.D. Thesis) – in Danish], Arhus School of Business (2003) 281 p. [For English abstract, go to CISG-Denmark website at <http://www.cisg.dk/CISG_ART_35_ABSTRACT.HTM>]
• René Franz Henschel [Denmark], Conformity of Goods in International Sales Governed by CISG Article 35: Caveat venditor, caveat emptor and contract law as background law and as a competing set of rules, Nordic Journal of Commercial Law (2004/1)
• René Franz Henschel [Denmark], Creation of Rules in National and International Business Law: A Non-National, Analytical-Synthetic Comparative Method, (for discussion of influence of CISG on Nordic Sales Acts) in: Camilla B. Andersen / Ulrich G. Schroeter eds., Sharing International Commercial Law across National Boundaries: Festschrift for Albert H. Kritzer on the Occasion of his Eightieth Birthday, Wildy, Simmonds & Hill Publishing (March 2008) 177-202

• Richard Hyland [U.S.], Conformity of Goods to the Contract Under the United Nations Sales Convention and the Uniform Commercial Code, in: Schlechtriem ed., Einheitliches Kaufrecht und nationales Obligationrecht, Baden-Baden: Nomos (1987) 305-341

• Raphael Koch, Vertragsmässigkeit der Ware bei Divergenz öffentlich-rechtlicher Vorgaben: Eine Untersuchung under bsonderer Berücksichtigung der Systematik des Art. 35 CISG [ - in German], Internationales Handelsrecht (6/2009) 233-237 [Abstract: "According to the case law of the German Bundesgerichshof [see New Zealand mussels case of 8 March 2005] (which is supported by many academic writers) goods delivered may conform with the contract even if they do not comply with public law standards in the buyer's country. The court held that except where the seller and buyer have agreed otherwise, the goods have to comply with public law standards in the seller's country because only these standards shall be relevant for the ordinary purposes under Art. 35(2)(a) CISG. A foreign seller could not be required to know the public law provisions of the country to which he exports. This legal position has to be challenged because it does not fit within the structure of Art. 35 CISG. Priority is to be given to Art. 35(2)(b) CISG rather than (a). Therefore it has to be considered whether a particular purpose expressly or impliedly has been made known to the seller. If the seller is informed about the place of resale, he will be aware that the goods must be fit for resale at this place. This means that compliance with public law standards in the buyer's country is a particular purpose under Art. 35(2)(b) CISG. Hence goods are – in general – only fit for resale if they comply with the public law provisions in the state where they are to be resold. It goes without saying that this is only a general rule and that the relevant standards have to be determined on a case-by-case basis, in particular by interpretation of the parties statements (Art. 8 CISG)."]
• Stefan Kröll, The Burden of Proof for the Non-conformity of Goods Under Art. 35 CISG, [papers from Uniform Sales Law: the CISG at its 30th Anniversary, a conference in memory of Albert H. Kritzer, 12-13 November 2010, Belgrade] The Annals of the Faculty of Law in Belgrade - Belgrade Law Review, Year LIX (2011) no. 3 pp. 162-180
• Anna L. Linne, Burden of proof under article 35 CISG, 20 Pace International Law Review (Spring 2008) 31-42

• Kristian Maley, The Limits to the Conformity of Goods in the United Nations Convention on Contracts for the International Sale of Goods, 12 International Trade & Business Law Review (2009) 82-126

• Thomas Neumann [Denmark], Features of Article 35 in the Vienna Convention; Equivalence, Burden of Proof and Awareness, 11 Vindabona Journal of International Commercial Law and Arbitration (2007/1) 81-97

• Patricia Orejudo Prieto de los Mozoz [Spain], Función y alcance de la lex mercatoria en la conformidad material de las mercancías ["Conformity of the Goods" as regulated by the CISG and the UNIDROIT Principles - in Spanish] (2006)
• Teija Poikela [Finland], Conformity of Goods in the 1980 United Nations Convention on Contracts for the International Sale of Goods, Nordic Journal of Commercial Law of the University of Turku, Finland, Issue 2003 #1
• Andrea Vincze [Hungary], Conformity of the Goods in the UN Convention on Contracts for the International Sale of Goods (CISG) – overview of CIETAC’s Practice, in: Camilla B. Andersen / Ulrich G. Schroeter eds., Sharing International Commercial Law across National Borders: Festshrift for Albert H. Kritzer on the Occasion of his Eightieth Birthday, Wildy, Simmonds & Hill Publishing (March 2008) 552-581
• 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

• Supplementary list of citations to Article 35 commentaries: Unilex citations*

  * Most members of the Autonomous Network of CISG Websites also offer bibliographies. Many are tailored, concentrating on commentaries by authors from or writing on CISG issues of special interest to specific countries or regions; some, e.g. CISG online are general and extensive; some, e.g., CISG-Belgium and CISG-Finland also list commentaries by individual articles of the CISG.

• To identify other relevant commentaries, go to the cisgw3 Bibliography and Bibliography Search Form [conformity, nonconformity, guarantee and warranty are search form entries you may wish to consider]

  Bibliography citations on conformity

  Citations on guarantee

  Citations on warranty

  Citations on nonconformity

  We also encourage you to tailor your own cisgw3 bibliography search to the specific aspect of this article that you are researching.*

  * The cisgw3 bibliography contains over 500 pages of citations. Analyzing these listings can pay dividends.

Links to related articles

Attention to related articles and to the CISG in its entirety is important. This is an autonomous law, i.e., it is meant to be construed within its four corners. When considering aspects of the CISG, because this law relies heavily on general principles, one ought to look at related provisions and the CISG in its entirety.

• 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

• The Enderlein & Maskow text is a good place to commence words and phrases research. Click for their analysis of words, phrases and concepts in this article.

  See also:

• 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

For a Doctoral thesis on "Reasonableness" in International Commercial Law, go to Guillaume Weiszberg, Le "Raisonnable" en Droit du Commerce International [pour le doctorat en droit de l’Université Panthéon-Assas (Paris II), 7 novembre 2003]