29 Pages Posted: 13 Jun 2008 Last revised: 14 Mar 2015
This is a draft of a paper that will appear in a forthcoming issue of the Boston University International Law Journal. This paper, which derives from comments delivered at a 2006 conference held at Istanbul (Turkey) Bilgi University, gives an overview of Part III, Chapter II, Section II of the United Nations Convention on Contracts for the International Sale of Goods (CISG). This portion of the Convention encompasses provisions addressing a number of critical issues, including the seller's obligations concerning the quality (Article 35), title (Article 41) and intellectual property aspects (Article 42) of goods sold in a transaction governed by the CISG, as well as a buyer's obligations to inspect delivered goods and to give notice of their failure to conform to those seller's obligations (Articles 38-40 and 43-44).
Included are extensive comments on three significant German cases that have applied these provisions of the Convention - the Mussels Case (decision of the Bundesgerichtshof, 8 March 1995, English translation available, the Stolen Automobile Case (decision of the Bundesgerichtshof, 11 January 2006, English translation available and the Ugandan Used Shoes Case (decision of the Landgericht Frankfurt, 11 April 2005, English translation available.
This paper concludes that the Mussels Case is a good (but not perfect) example of a court complying with the Convention's mandate to interpret the CISG from an international perspective and with the goal of maintaining international uniformity in its interpretation. The assessment of the Stolen Automobile Case in light of these factors is more mixed. The analysis of the Ugandan Used Shoes Case concludes that the court ignored those criteria, badly misinterpreted the provisions of the Convention, and perpetrated a gross miscarriage of justice.
Keywords: Sales, International Sales, Sales Convention, CISG, Conformity of Goods, the United Nations Convention on Contracts for the International Sale of Goods
Suggested Citation: Suggested Citation
Flechtner, Harry M., Funky Mussels, a Stolen Car, and Decrepit Used Shoes: Non-Conforming Goods and Notice Thereof under the United Nations Sales Convention. Boston University International Law Journal, Vol. 26, p. 1, 2008; U. of Pittsburgh Legal Studies Research Paper No. 2008-21. Available at SSRN: https://ssrn.com/abstract=1144182
Decisions on Conformity of Goods Under Article 35 of the U.N. Sales Convention (CISG): The 'Mussels Case,' Evidentiary Standards for Lack of Conformity, and the 'Default Rule' vs. 'Cumulative' Views of Implied Conformity Obligations