• Teija Poikela


The Art 35 of the 1980 United Nations Convention of Contracts for the International Sale of Goods states that «(1) The seller must deliver goods which are of the quantity, quality and description required by the contract and which are contained or packaged in the manner required by the contract. (2) Except where the parties have agreed otherwise, the goods not conform to the contract unless they: (a) are fit for the purposes for which the goods of the same description would ordinarily be used; (b) are fit for any particular purpose expressly or impliedly made known to the seller at the time of conclusion of the contract, except where the circumstances show that the buyer did not rely, or that it was unreasonable for him to rely, on the seller's skill and judgement; (c) possess the qualities of the goods which the seller has held out to the buyer as a sample or as a model; (d) are contained or packaged in the manner usual for such goods or, where there is no such manner, in a manner adequate to preserve and protect the goods. (3) The seller is not liable under sub-paragraph (a) to (d) of the preceding paragraph for any lack of conformity of the goods if at the time of the conclusion of the contract the buyer knew or could not have been unaware of such lack of conformity.» This study will focus on the meaning of the term «non-conformity» as understood by Article 35 of the Convention, (the CISG), and on providing an overlook of case law in its application. Also the solutions adapted by certain domestic legal systems are studied.2 In the social sciences it is coming to be recognized that one of the greatest difficulties is that of statement, and that many disputes are due to the imperfections of the language. Also jurisprudence is in need of semantic analysis. The difficulty of using words does not press upon the ordinary man because it usually does not matter to him whether, for instance, he calls a number of stones a «heap» or not. All that matters is that he should make his meaning clear enough for the purpose at hand.3 In law, however, it is different, for therein we draw sharp conclusions based upon these words of gradation. The question, whether a man is left in freedom or detained in a mental institution, depends on whether he is classified as sane or insane in the legal sense, as also does the question whether his dispositions of property are upheld or not. 4 In fact, the language of law has long been a source of concern to the society. It has been the subject of continuous literary criticism and satire. Critics have highlighted its technical terms, its convolutions and its prolixity. Calls have regularly been made for the use of a simpler style. Some improvements have been made in response to those calls, but legal language remains largely unintelligible to most non-lawyer members of the society. In some cases, the obscurity may arise from the complexity of the law and of its subject matter. In other cases, however, it is due to the complexity of the language in which the law is expressed. While this is particularly painful truth in many domestic realms, international conventions tend to make an exception from this rule; since a lot of time and effort is given in the drafting of the conventions and as it is kept in mind that the interpreters - the users - of the conventions will have different legal backgrounds, it is necessary to strive for clear wording. The linguistic definition of the term «conformity» is one based on agreement and congruity, and thus largely a subjective term. However, for the purpose of a legal context, a larger degree of certainty is required from a term.5 To find out the real meaning of the term, we have to study the prevailing interpretation of it.6 Throughout the work on uniform laws realists have been saying: «Even if you get uniform laws you will not get uniform results.» In fact, laws often use concepts that are local mental inventions that lack equivalent concepts in other legal systems. 7 International unification is, in fact, impossible. We should, however, consider the alternatives: conflicts of rules that are unclear and vary from forum to forum; national systems of substantive law expressed in doctrines and languages that, for many of us, are impenetrable. What is possible is to make law for international trade a bit more accessible and predictable. 8