The concept in Article 35 is that of conformity, where the buyer and seller must determine if the goods they deliver meet the contractual requirements.
According to Article 35 of the CISG, the seller must deliver the goods in accordance with the contract. “Defective Delivery” is the term used to describe the non-conforming goods.
These criteria specify the obligations of the seller with respect to these important aspects. Article 35’s integrated concept defines compatibility as a “guarantee”. According to the CISG this is a delivery that does not comply with the contract. According to the CISG, the CISG provides a solution for non-compliance of commodities. It also violates domestic laws, which make the contract based upon the mistake about the quality.
The seller is in violation of their commitment if they do not deliver the goods according to Article 35. However, it has been argued that goods which are not compatible with the contract are still acceptable and can be used to adapt the goods. Article 35 prohibits the delivery of fake documents that claim to be the original of goods. According to the statement: “Although a contract requires the seller to deliver a product in compliance with the quantity, specifications, and quality specified in the contract according to business practice, a deviation in the terms and amount of the agreement can only constitute unauthorized goods in Article 35 of CISG if the defects are severe enough. The seller may be liable for violations of Article 35 if the violation reaches a certain level.
This research paper focuses on the question of whether Article 35(2)(a), CISG, is applicable if the public law in the country where the buyer lives restricts the sale of goods.
To answer the question: the first chapter will clarify Article 35(1) CISG regarding the seller’s obligation to conform the contract with respect to description, quality, amount and packaging. Second chapter will elaborate on Article35(2) CISG focusing on the non-conformity, the quality of goods, packaging and distrust towards the seller. Third chapter will concentrate on Article35(3) CISG explaining the conditions for the seller’s non-liability if the delivery is not in compliance. The fourth part of the chapter includes a study and court rulings under Article35(2)(a). The final chapter presents a summary of the study and provides an answer to the research question.
In article 35 (1) CISG the seller has to conform the goods with the contract’s specifications regarding description, packaging, quality, and quantity. Article 35-1 CISG expressly states that any goods less than those specified by the contract are in violation. The contract does not limit the obligations of compliance. Sellers must also adhere to certain contractual obligations. The implied requirements can arise, for example, from the practices of the contracting parties or the trade usage, and they are well-known in the business world. Even if the agreement is canceled, the seller still has to comply with these implied obligations. The seller’s implied obligations to conform should be made clear during the initial negotiation between the parties. Conformity obligations can only be derived from the contract, according to Article 35(1) CISG. The contract is the only thing that has legal effect. Anything outside the contract has no legal impact. (conformity) In order to define the purpose for Article 35(1) CISG, if a requirement is made for a particular quality, quantity, description, or packaging, the matter must be referred back to the general regulations. According to Article 35(1) CISG, the seller is liable if he fails to meet four criteria, namely quantity, quality and description of goods, or packaging.
A breach of contract occurs when goods are delivered in a quantity less than the agreed upon in the contract. In the case of overseller, the seller will be required to deliver exactly the quantity agreed upon in the contract. In the event that the seller has delivered a different quantity than agreed, the buyer is entitled to use the non-conformity solutions.
Article 35 (1) CISG states that the quantity of goods contracted is the contractual amount. The buyer has a certain right. In the event that the contract stipulates a lower delivery than what was agreed, the CISG article 51 will be applied. According to this article, the purchaser has the right of extending the time limit for delivery, and accepting the non-conformity of delivery at a lesser price. They can also declare a contract avoided or partially avoided due to omissions. The seller will be responsible for any damages.
If the amount of goods delivered exceeds the agreed contract quantity, then the buyer may accept or reject the excess. The excess amount of goods must be paid by the buyer if the excess is accepted. The buyer can avoid the contract if he is unable to reject the excess goods (conformity).
The seller is required to deliver goods that meet the quality specified in the contract. All differences in the quality or quantity of goods delivered are considered non-conformity. Not only physical conditions should be considered. The parties’ other legal obligations must also be taken into consideration. The parties’ independence plays a major role in determining the conditions. In fact, the contract could be given to an entity that comes from a certain location and produces a product with a special ethical quality or respects certain production standards.
(conformity of the goods) (Conformity)
Thirdly, the third position referred under Article 35.1. CISG relates a non-conforming delivery of goods. In the same way as defective quality, this requirement covers a wide range, because the term description is generally defined to be “the usual method by which parties determine what their obligations are”.
There are no restrictions on how goods can be described in the contract. Parties can express goods either explicitly through the contract or implicitly via an external document that describes them and their quality. The seller fulfills the obligations of conformity when they deliver the goods according to the contract. The failure to deliver is when goods are delivered that are completely unrelated to the contract. (conformity)
The packaging of goods is a very important factor, as it directly affects their quality, usability and tradeability. Article 35 (CISG) focuses on the importance of proper packaging. Both conformance statements as well as regulations are included. When packaging products, the vendor is required to follow certain rules. (conformity) 3. Article 35 CISG. Article 36 CISG provides standards for packaging, product performance and quality. These are not compulsory but should be included as part of any contract. The seller can still attach the standards to the contract without the customer’s agreement. They could also agree that these standards will not be applied to the contract. These standards will bind the parties to Article 35(2) CISG if used. The Convention’s interpretation rules apply if the parties agree not to include the seller obligations in Article 35 (2) CISG. There was a finding that an agreement relating to the general quality if goods contained only positive terms and conditions, but no negative conditions, did not deviate the article 35(2). However, some decisions indicated that an explicit agreement in article 135 on the nature of goods excluded the inherent quality requirements imposed by the article 35(2). Some decisions applied national law to determine the validity and exclude the obligations of Article 35 (2). Article 35 (2) is divided into four parts. Two of the paragraphs (Articles (35 (2) (a) & (35 (2) (d), unless agreed otherwise, apply to any contract. The two other subsections (Articles (35 (2) (b) or (35 (2) (c), respectively) only apply if there are certain substantive conditions.
Article 35(2) (a) CISG requires the seller to deliver products that are suitable for normal and common uses of goods with the same description. This commitment is the same as the obligations that sellers are subject to under domestic law. In Article 35 (2) (a), the risks are assigned between buyers, sellers and the goods themselves. The seller would have violated Article 35 (2) (a), if he had delivered a cooling unit that failed shortly after it was first started. A seller who delivers wine that is diluted by 9 percent with water would also be in violation of Article 35 (2) a. This will cause the authorities to confiscate and destroy the wine. A seller who replaced a component in a machine and did not inform the buyer, or give him instructions for the installation was found to have violated the law. This will cause the machine’s failure after only a few days of use. It is obvious that a car must be drivable. Food should be edible. Clothes should be wearable. The authors of the CISG introduced a rule to reflect the parties’ agreement, if not over the term. It means that, even in the absence of a specific usage, the seller is required to guarantee the goods’ suitability for their usual and normal uses.
The article 35 (2)(a) CISG relates to two legal conditions. First, there must be no contradictory clause in the contract. Second, it is necessary that the goods are not used for a particular purpose as per Article 35(2)(b). The seller gets priority if the buyer has informed him of the intended use for the goods. (conformity)
The standard in Article 35 (2) (a), however, only requires that goods be fit for their normal and usual purposes. The goods do not have to be flawless or perfect if they are used and fulfilled for their normal purpose. A court ruled that heavy oil was allowed to be used by the buyer, despite the fact that there were issues with the pumps the buyer used. The seller had no idea about these problems. The court also ruled that there was no contractual obligation for the seller to ask about the buyer’s specific purpose. In order to simplify, the CISG Article 35 (2) (a), stated that goods must be of “average”, “marketable”, or “reasonable” qualities. Article 35(2) (a) states that traceability is part of the fitness of the goods for their ordinary use and purpose. (law2)
CISG, Article 35 (2) b), expresses the requirement that goods be suitable for a particular purpose. The seller will either be informed of this explicit or implicitly during the contract approval process. The seller is bound by the same obligations as the domestic law. Article 35(2)(b) is only applicable if the seller had been informed of certain purposes when concluding the contract. Article 35 (2) (b), if not followed, could constitute a violation. In this situation, the seller has violated Article 35(2) (b) as the seller must deliver goods which have the necessary characteristics to be suitable for the specified use. If, for example, the seller delivered ordinary drills instead of the drills ordered by the buyer to drill durable carbon steel, these drills would break. If the seller delivers ordinary drills, they may break when drilling the durable carbon steel. In such a situation, the seller breaches Article 35 (2) b CISG. This protects the buyer and applies Article 35(2) b CISG against the seller. (conformity)
Article 35 (2) b CISG doesn’t apply if there is evidence that the buyer has not relied reasonably on the seller’s knowledge and skills, or if he is himself an experienced importer. According to a court, the buyer should never expect that the seller will be aware of public law or administrative requirements in the country where the goods are being imported unless it is his responsibility to alert the seller. (law2)
The main distinction between Articles 35(2) (a) CISG versus 35(2) (b) CISG relates to: goods with ordinary uses and goods with specific purposes.
CISG Article 35 (2) c states that for goods to conform to a contract, the seller’s model or sample must be present. This provision applies even if a buyer supplies a model or sample and both parties agree that goods must conform to it. There will be issues if a buyer receives a model or sample but orders the goods without referring to it. In order to avoid problems, the buyer should always make reference to the model or sample provided by the vendor. The parties can also agree that the goods do not need to conform to a certain sample or model if they have not agreed. (conformity to the goo). Comparable to Article 35(2) (b) CISG. The provision is only applicable if a seller has supplied samples or samples for the goods.
In article 35 (2) (d), CISG, the goods must be enclosed or packaged according to the contracting party’s instructions. If this is not the case, the goods need to be properly packaged so as to protect and preserve the goods. The seller country is responsible for determining the packaging method if the contract does not include any packaging requirements.
Packaging is a crucial issue, as it directly affects the usability, tradability, and quality of the contract goods. If the packaging is inadequate to stop the contents of the canned fruit from deteriorating during shipping or if marble panel are damaged in transit because of improper packaging, then the seller would violate Article 35(2)(d) CISG. (law2)
Article 35(3) CISG releases the seller from liability for a lack of compliance under the “Article 35(2) paragraphs (a)-(d)” if he “knew” or “had knowledge” that the goods were not in conformity when the contract was signed. Article 35 (3) exempts only the seller’s responsibility for non-compliance under Article 35 (2) subparagraphs(a) to (d). Article 35(3) does not cover non-conformity in Article 35(1) “the goods should have been delivered as per the contract’s description, quantity and quality”. (law2)
In the event that the buyer does not immediately notify the seller about defects after accepting the goods, then he is responsible for any damages. The seller will still be under an obligation to deliver the goods in conformity, even if the buyer did not know or could not have known. In two situations, the seller can be held liable for the non-conformity even if the purchaser was unaware of it. First, the seller is liable if a buyer insists that goods be flawless or perfect. The seller must rectify any defect, even if it was known to the purchaser at the time of contract conclusion. The seller may also intentionally conceal the defect. Sellers are responsible for non-conformity if the buyer was unaware of the defect because of their negligence. They would appear to be more protected than sellers who deliberately try to deceive a buyer. (conformity) 5. Case Study and Court Orders under Article 35(2) (a) CISG In this case, a Swiss company sold New Zealand mussels to a German buyer on January 22, 1992. The German Health Authority determined that the German Food Regulations were violated and the mussels could not be sold under German Public Law. Swiss Law, however, accepted the cadmium level. The buyer claimed that the contract had been avoided due to non-conformity, but the seller requested the sale price. The Bundesgerichtshof ruled the seller did not violate Article 35 (2) a) CISG. Furthermore, the mussels in question were still eatable. A court ruling also states that Article 35(2)(a) does NOT require the delivery of goods that are compliant with the laws of the country of purchase unless those same laws exist in the country of seller, unless buyer informs seller about stricter rules of his own country, and unless seller is aware of these provisions because of special circumstances. The court stated that public law in the buyer’s country is only relevant when it matches the laws of the seller or when the buyer informs the seller about them. The court explained how the German buyer did not consume large quantities of mussels that contained high levels of cadmium. This is contrary to what basic foods are. It does not matter if, at the moment of contract conclusion, the export of goods was permitted in those countries.
Recapitulating: it is fair and reasonable to say that, under certain circumstances, Article 35(2)(a), CISG, could be applied when public laws restrict the selling of goods in a buyer’s country. In some cases, it may be possible to use this article if the seller has a working relationship with the client or exports to their country frequently. It was not a violation to Article 35(2)(a), as the seller did not have to know what the restrictions were in the buyer’s country. Rather the buyer had to know his own country’s conditions and provisions, and to tell the seller. Article 35(2) (a) CISG would be violated if both the seller’s and the buyer’s countries had identical regulations.
