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LEGISLATIVE HISTORY
Legislative history of CISG article 35:
Match-up with 1978 Draft to assess relevance of Secretariat Commentary

     1978 Draft article 33                         CISG article 35 

(1)The seller must deliver goods which      (1)The seller must deliver goods which  
   are of the quantity, quality and de-        are of the quantity, quality and de- 
   scription required by the contract          scription required by the contract  
   and which are contained or pack-            and which are contained or pack-    
   aged in the manner required by the          aged in the manner required by the  
   contract.                                   contract.                           

   Except where otherwise agreed, the       (2)Except where the parties have agreed  
   goods do not conform with the con-          otherwise, the goods do not conform   
   tract unless they:                          with the contract unless they:        

   (a)are fit for the purposes for which       (a)are fit for the purposes for which  
      goods of the same description               goods of the same description       
      would ordinarily be used;                   would ordinarily be used;           

   (b)are fit for any particular pur-          (b)are fit for any particular pur-    
      pose expressly or impliedly                 pose expressly or impliedly      
      made known to the seller at the             made known to the seller at the   
      time of the conclusion of the               time of the conclusion of the     
      contract, except where the cir-             contract, except where the cir-   
      cumstances show that the buyer              cumstances show that the buyer    
      did not rely, or that it was un-            did not rely, or that it was un-  
      reasonable for him to rely, on              reasonable for him to rely, on     
      the seller's skill and judgement;           the seller's skill and judgement;   

   (c)possess the qualities of goods           (c)possess the qualities of goods      
      which the seller has held out to            which the seller has held out to    
      the buyer as a sample or model;             the buyer as a sample or model;    

   (d)are contained or packaged in             (d)are contained or packaged in     
      the manner usual for such goods.            the manner usual for such goods   
                                                  or, where there is no such man-   
                                                  ner, in a manner adequate to      
                                                  preserve and protect the goods.   

(2)The seller is not liable under subpa-    (3)The seller is not liable under subpa- 
   ragraphs (a) to (d) of paragraph (1)        ragraphs (a) to (d) of the preceding   
   of this article for any non-                paragraph for any lack of conformi-   
   conformity of the goods if at the           ty of the goods if at the time of the  
   time of the conclusion of the con-          conclusion of the contract the buyer   
   tract the buyer knew or could not           knew or could not have been un-        
   have been unaware of such non-              aware of such lack of conformity.     
   conformity.


Editorial comments
The Secretariat Commentary on 1978 Draft article 33 remains relevant to
the interpretation of CISG article 35.  CISG article 35 is presented in
three rather than two paragraphs.  Paragraph (1) is no different.  The first
clause of paragraph (2) contains a drafting modification; paragraph 2(d)
contains an addition; paragraph (3) contains a drafting modification.  

The explanation for the paragraph 2(d) addition is: "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" (Official Records, 
p.316)

The Secretariat Commentary on 1978 Draft article 33 should be read in
conjunction with this explanation.

To examine 1978 Draft provisions in context, go to the full-text of the 1978 Draft || To examine CISG provisions in context, go to the full text of the CISG