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CISG
number
36


LEGISLATIVE HISTORY
1980 Vienna Diplomatic Conference

Summary Records of Meetings of the First Committee

15th meeting

Thursday, 20 March 1980, at 10 a.m.

Chairman: Mr. LOEWE (Austria)

(. . .)

[Pakistan (A/CONF.97/C.1/L.147): Revise paragraph (2) to read:

"The seller is also liable for any lack of conformity which occurs after the time indicated in paragraph (1) of this article and which is due to a breach of any of his obligations, including a breach of any express guarantee or implied warranty that the goods will remain fit for their ordinary purpose or for some particular purpose, or that they will retain specific qualities or characteristics for a specific or reasonable period as the case may be."]

Article 34 [became CISG article 36 ] (continued)
(A/CONF.97/C.1/L.147)

1. Mr. INAAMULLAH (Pakistan) explained that his delegation had submitted its amendment to paragraph 2 of article 34 [became CISG article 36 ] because it considered that the buyer should be held liable for a breach not only of any express guarantee, but also of any implied warranty, and for a reasonable period. Thus amended, paragraph 2 would be more precise.

2. Mr. FELTHAM (United Kingdom) pointed out that the English word "warranty" proposed by Pakistan was not used in the rest of the Convention. The word "term" would be more appropriate.

3. Mr. HJERNER (Sweden) thought that the Pakistan amendment, which might at first sight appear to be acceptable, was inappropriate in article 34 [became CISG article 36 ]. Paragraph 1 of the article indicated the time at which the conformity of the goods was to be judged. The seller could also give a so-called "maintenance guarantee" which went beyond that time, but it was not necessary to state that in the present paragraph, for if the contract contained a provision stipulating that the seller remained liable even after passage of the risk, that provision would in any event prevail over paragraph 1 of article 34 [became CISG article 36 ]. Paragraph 2 made it clear that where there was an express guarantee it mattered little whether the lack of conformity became apparent after passage of the risk. At any rate, it would seem to be going too far to assimilate express guarantees to implied guarantees. He would therefore prefer to leave article 34 [became CISG article 36 ] as it stood.

4. Mr. ROGNLIEN (Norway) considered the existing text satisfactory. Since article 34 [became CISG article 36 ] in fact covered all contractual guarantees, but not so-called "guarantees" presumed by law, it might perhaps be preferable to replace the words "express guarantee" by "contractual guarantee", which could apply equally well to implied guarantees and to express guarantees. As for inserting the word "reasonable" at the end of paragraph 2, he considered that term too vague; the rule ought to be spelt out precisely and the guarantees should be firm.

5. Mr. SAMI (Iraq) considered the Pakistan proposal practical and realistic. When a seller sold his goods, he did not always guarantee them for a reasonable period. In most cases, any such guarantee must be deduced from usage and tradition. It could also derive from the implicit wish of the parties. For that reason, it would be as well to state that the guarantee could also be implied. He also approved of the addition of the word "reasonable" at the end of paragraph 2.

6. Mr. VISCHER (Switzerland) felt that the word "express" was inappropriate in article 34 [became CISG article 36 ]. The guarantee could result equally well, for example, from the nature off the goods. It might perhaps be best to delete that word and not qualify the guarantee, which could then be implied or express.

7. Mr. DATE-BAH (Ghana) pointed out that the article under consideration might be interpreted as excluding implied guarantees. It would therefore be advisable either to use both the adjectives "express" and "implied", or to delete both. The English word "warranty", also, did not appear to be a very happy choice, in view of its connotations in the legal systems of common law countries. The words "term" or "promise" would be more suitable. Of course, if the guarantee could be implied as well as express, the period of validity could not be determined exactly. For that reason he was also in favour of the second part of the Pakistan amendment.

8. Mr. KRISPIS (Greece) asked the representative of Pakistan whether he could agree to the present text of the article if the word "express" was deleted and the courts were left to interpret the word "guarantee", if necessary. He was against adding the word "reasonable" at the end of paragraph 2, for the same reasons as the representative of Norway.

9. Mr. INAAMULLAH (Pakistan) said that what he had feared was that the text might be interpreted as excluding implied guarantees altogether. If it was decided to delete the word "express", he would be quite willing to withdraw the first part of his amendment.

10. Mr. LEBEDEV (Union of Soviet Socialist Republics) considered that the terminology employed, especially the word "warranty", was peculiar to some countries and unknown in others. It ought not, therefore, to be used. Moreover, paragraph 2 dealt with a case which apparently raised no doubts in any legal system. If the word "express" was deleted, it might be assumed that the provision referred to all those guarantees covered by the word "warranty", in addition to express guarantees, which would lead to uncertainty and misinterpretation. He was therefore in favour of keeping the existing wording.

11. Mr. POPESCU (Romania) observed that there were contractual guarantees and technical guarantees, which were practically always implied. To cover the entire range of possible guarantees, it would be better to adopt the Pakistan proposal.

12. Mr. BOGGIANO (Argentina) said he would prefer the word "express" to be deleted.

13. Mr. PLUNKETT (Ireland) noted that, if the first part of paragraph 2 of article 34 [became CISG article 36 ] was taken by itself, it seemed obvious that implicit obligations were also included. The representative of Pakistan was therefore right to request that implied guarantees should be mentioned in the rest of the text. Deletion of the word "express" did not seem to be an entirely satisfactory solution, for the word "guarantee" always meant an express guarantee. Consequently, the best course would be to use the two adjectives proposed by the representative of Pakistan, but to substitute, perhaps, a more appropriate word for the English word "warranty", for example, "term". As for the addition of the word "reasonable", that followed on logically from the first part of the Pakistan proposal, since an implied guarantee could not apply during a specific period. He therefore supported both parts of the Pakistan proposal.

14. Mr. GHESTIN (France) noted that the existing text covered only express guarantees without taking into account implied guarantees, which might arise either from the interpretation of the contract, and hence from the actual but unmentioned wish of the parties, or from "legal" guarantees deduced from the presumed or fictitious wish of the parties. Some delegations were anxious to include a reference to the contractual nature of the guarantees in question, but in that case it would be as well to state that those guarantees could be express or implied. Advertising, for example, might give guarantees which, if not express, were at least implied. He therefore approved of the Pakistan proposal, but thought that it could be improved by being amended to read: "express or implied contractual guarantees". An alternative solution might be to delete the word "express". As for the addition of the word "reasonable" at the end of paragraph 2, that did not seem very satisfactory. If the Pakistan amendment was adopted, perhaps the Drafting Committee could find a better wording.

15. Mr. MICHIDA (Japan) pointed out that the text of paragraph 2 was the outcome of long discussions in the UNCITRAL Working Group. He was therefore in favour of keeping the existing text and could not agree either to the use of the word "warranty" or to the deletion of the adjective "express". Such changes might create serious problems. Moreover, the question of implied guarantees seemed to be covered by paragraph 1(b) of article 33 [became CISG article 35 ]. Accordingly, he shared the view of the representative of the Soviet Union that, to rule out all uncertainty, the existing text should be retained.

16. Mr. SZÁSZ (Hungary) considered that the first three lines of the English text of paragraph 2 spelt out a rule and that the remainder of the paragraph gave an example which concerned express guarantees only. But other types of guarantee were not excluded. He therefore hoped that the existing text would be kept. However, he could accept any decision to delete the word "express", although, in many legal systems, guarantees must be express.

17. Mr. MASKOW (German Democratic Republic) observed that, under article 34 [became CISG article 36 ], the seller could be held liable for any lack of conformity which became apparent even after the risk had passed to the buyer. If the liability of the seller was to be extended, that should be done expressly. Moreover, the period of such extension must be precise and limited in time. In international trade, the parties to a contract could always adopt provisions fixing a specific guarantee period. It seemed unnecessary, therefore, to extend the seller's liability still further, and he was therefore in favour of keeping the existing text.

18. Mr. BONELL (Italy) associated himself with the remarks made by the French representative. The Pakistan proposal was not without merit, but his delegation feared that any mention of an implied guarantee might create difficulties. It would prefer to delete the word "express" in the original text. He understood the objections raised by countries whose legislation provided only for express guarantees, but would point out that, under the terms of article 6 [became CISG article 7 ], the present Convention was to prevail over national laws, and that article 8 [became CISG article 9 ] took account of the usages to which the parties had agreed and of the practices which they had established between themselves and which might imply the existence of tacit guarantees, even if the respective legislation referred only to express guarantees. In view of those considerations, his delegation could accept the Pakistan amendment if the reference to an implicit warranty was deleted, but it would prefer to keep the present text of article 34 [became CISG article 36 ] with the deletion of the word "express".

19. Mrs. VILUS (Yugoslavia) objected to the Pakistan proposal, which would increase the seller's liability. Paragraph 1 of article 34 [became CISG article 36 ] delimited the liability of the seller in ordinary cases, whereas paragraph 2 covered special cases in which the seller had given an express undertaking that the goods would remain fit for their ordinary purpose or for some particular purpose, or that they would retain certain qualities. In the latter case, any deletion of the word "express" would extend the seller's liability unduly, and that she could not accept. Consequently, she was in favour of keeping the existing text.

20. Mr. STALEV (Bulgaria) pointed out that a guarantee was usually linked to a certain period. When the guarantee was implied, the period was not defined, and in the event of a dispute, it was for the courts to decide the issue. Such a situation would create serious uncertainty, and for that reason he was opposed to the Pakistan proposal.

21. Mr. KIM (Republic of Korea) considered the Pakistan amendment at variance with paragraph 2 of article 37 [became CISG article 39 ], where the expression "contractual . . . guarantee" was clearly used in the meaning of "express . . . guarantee". Moreover, the amendment was liable to create practical difficulties, in view of the usages and practices established between the parties, which were referred to in article 8 [became CISG article 9 ]. He would therefore vote against the proposal.

22. Mr. WANG Tian ming (China) said that account must be taken of the fact that implied guarantees as well as express guarantees existed in international trade; the Pakistan amendment was useful in that it spelled out the two possibilities. If the question of the period of the guarantee presented difficulties, it might perhaps be possible, in order to gain time, to delete all reference to that period.

23. Mr. EYZAGUIRRE (Chile) said that that point had been discussed at length at the UNCITRAL Meeting of the Working Group on the International Sale of Goods, held at Vienna in 1977. Personally, he considered that the existing text of paragraph 2 should be kept without change; the first part defined the liability of the seller in the event of a breach of any of his obligations under the terms of the contract, while the second dealt with the special obligations assumed by him in providing express guarantees concerning certain usages or certain characteristics of the goods. That text was satisfactory and he would therefore vote against the Pakistan amendment.

24. The CHAIRMAN asked the representative of Pakistan if he wished to maintain the original text of his proposal as it appeared in document A/CONF.97/C.1/L.147 or if he would prefer the Committee to take a decision directly on the proposal to delete the word "express" in the draft Convention. As far as the guarantee period was concerned, the question was a drafting one. The expression "for a specific period" in the English text of article 34 [became CISG article 36 ] was more categorical than the French expression "pendant une certaine période" and should be brought in line with the French term, which was applicable both to express and implied guarantees.

25. Mr. INAAMULLAH (Pakistan), thanking the delegations which had supported his proposal, agreed that the word "warranty" in the English text should be replaced by the word "term", as requested by the representatives of Ireland and the United Kingdom. He wished his proposal, as thus subamended, to be put to the vote. If it was rejected, he would like the Chairman to put the present text of article 34(2) [became CISG article 36(2) ] to the vote with the word "express" deleted. But he did want the text to refer to a "specific or reasonable period, as the case may be".

26. Mr. MICCIO (Italy) considered that the part of paragraph 2 relating to the guarantee period raised a question of substance and not of drafting. In the Pakistan amendment, the expression "a specific or reasonable period" meant a period that was not specified but would depend on the case in question. His delegation could not support such a vague provision.

27. The CHAIRMAN suggested that if all reference to an express guarantee was deleted, it might be acceptable for the guarantee period not to be very precisely defined. In that respect, the expression in the French text of the draft Convention, "pendant une certaine période", was more satisfactory than the one in the English text.

28. He put the Pakistan amendment (A/C0NF.97/C.1/L.147) to the vote, on the understanding that the word "warranty" was to be replaced by the word "term".

29. The Pakistan amendment, as subamended, was rejected.

30. The CHAIRMAN put to the vote the Pakistan proposal to delete the word "express" in the existing text of article 34(2) [became CISG article 36(2) ].

31. The Pakistan proposal to delete the word "express" in the existing text of article 34(2) [became CISG article 36(2) ] was adopted.

32. The CHAIRMAN proposed that the part of paragraph 2 relating to the guarantee period should be referred to the Drafting Committee.

33. Mr. KRISPIS (Greece) considered that the part of paragraph 2 in question did not just raise drafting problems, but also questions of substance, which would have to be settled by the Committee.

34. Mr. DATE-BAH (Ghana) said that if the paragraph was sent for polishing to the Drafting Committee, the Committee should be given precise instructions -- for example, to find a less categorical wording for the English text.

35. The CHAIRMAN asked the opinion of the representative of France on the semantic problem involved.

36. Mr. GHESTIN (France) said that the French expression "une certaine période", unlike the expression "une période certaine" did not refer to a specific period of time and was in line with the decision taken to delete the word "express". It would suffice to find an equivalent wording in the other languages.

37. Mr. FELTHAM (United Kingdom) suggested that in the English text the expression "for a period" should be used.

38. Mr. KHOO (Singapore) said that if no better phrase could be found, it might be possible in the English text to use the expression "for the period specified", which was frequently used in contract law in English speaking countries, or the expression "for a reasonable period".

39. Mr. HJERNER (Sweden) considered that the words "reasonable period" raised a question of substance, with which the Drafting Committee was not competent to deal.

40. The CHAIRMAN reminded the Committee that it had rejected the Pakistan amendment, and hence the word "reasonable". In order to fix the guarantee period, all that had to be done was to find a neutral word which would apply both to an express guarantee and to an implied one.

41. Mr. FARNSWORTH (United States of America) also thought that the question was not just a drafting one and suggested that in English the expression "for some period" should be used.

42. The CHAIRMAN proposed that the English text at the end of paragraph 2 should be referred to the Drafting Committee with a request for it to be aligned on the French text, which was more in line with the decision taken by the Committee to delete the reference to an "express" guarantee.

43. Mr. INAAMULLAH (Pakistan) supported the Chairman's proposal.

44. The Chairman's proposal was adopted.

(. . .)


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