LEGISLATIVE HISTORY

CISG ANTECEDENTS

• Match-up of CISG Article 36 with ULIS provisions
• Comments on the match-up

      CISG Article 36                       ULIS Article 35
  
1. The seller is liable in          1. Whether the goods are in 
accordance with the contact         conformity with the contract 
and this Convention for any         shall be determined by their 
lack of conformity which            condition at the time when 
exists at the time when the         risk passes.  However, if risk 
risk passes to the buyer, even      does not pass because of a 
though the lack of conformity       declaration of avoidance of the 
becomes apparent only after         contract or of a demand for 
that time.                          other goods in replacement, 
                                    the conformity of the goods 
2. The seller is also liable for    with the contract shall be 
any lack of conformity which        determined by their condition 
occurs after the time indicated     at the time when risk would 
in the preceding paragraph and      have passed had they been in 
which is due to a breach of any     conformity with the contract. 
guarantee that for a period of   
time the goods will remain fit      2. The seller shall be liable for 
for their ordinary purpose or       the consequences of any lack 
will retain specified               of conformity occurring after 
qualities or characteristics.       the time fixed in paragraph 1 
                                    of this Article if it was due to an act 
                                    of the seller or of a person for 
                                    whose conduct he is responsible.

Comments on the match-up

"Article 35 ULIS [is the forerunner to CISG Article 36]. There are differences particularly in subparagraph (2) [of CISG Article 36], which extends the seller's liability to some cases of lack of conformity occurring after risk has passed. First, there is no longer any express reference to the seller's liability for acts of persons for whose conduct he is responsible. Secondly, the CISG makes the seller also liable for lack of conformity occurring after the passing of risk, if the lack of conformity is in breach of a guarantee. . . . In order to take account of the possibility of implied guarantees, [CISG Article 36(2) uses the expression for] 'a period of time'." Schwenzer in Commentary on the UN Convention on the International Sale of Goods, Peter Schlechtriem ed. (Oxford 1998) 290-291 [citations omitted].

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Pace Law School Institute of International Commercial Law - Last updated June 17, 1998

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