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

Abstract

This draft paper is based on a May 2012 presentation at Istanbul Bilgi University, at the Conference entitled “The New International Sales Law of Turkey: CISG”; it will be published as a chapter in a book in the series “International Commerce and Arbitration” (Ingeborg Schwenzer, ed., Eleven Publishing, the Netherlands). The paper surveys leading issues in decisions applying Article 35 (Conformity of Goods) of the U.N. Sales Convention (CISG) which have been handed down since approximately 2000. The three matters discussed are: 1) the developing uniform international approach to the question whether goods that fail to comply with public regulations in the buyer’s jurisdiction conform to the contract (including discussion of the “leading case” status of the Bundesgerichtshof’s “Mussels Case” decision); 2) the question whether the standard and method of proof of lack of conformity is within the scope of the CISG, or alternatively is governed by applicable (non-uniform) domestic law; and 3) the question whether the seller’s implied conformity obligations stated in Article 35 (2) are automatically excluded if the parties have an express agreement concerning conformity (the “default rule” view of Article 35 (2)), or whether those obligations survive, despite an express agreement on conformity, unless the parties also have distinct agreement to exclude the obligations (the “cumulative” view of Article 35 (2)). Discussion of the third matter entails observations on the nature and purpose of the rules in Article 35. When it becomes available, the reader should consult and cite to the final version of the paper that will appear in the book containing the conference proceedings.

Keywords: International Sales, Warranties, International Case Law, Compliance with Buyer-State Regulations, Burden of Proof, Standard of Proof, Method of Proof, Evidence of Lack of Conformity, Scope of the CISG, Exclusion of Implied Warranties, Disclaimers, Exclusion of Conformity Obligations

JEL Classification: K12