CONFORMITY OF GOODS IN INTERNATIONAL SALES GOVERNED BY CISG ARTICLE 35: CAVEAT VENDITOR, CAVEAT EMPTOR AND CONTRACT LAW AS BACKGROUND LAW AND AS A COMPETING SET OF RULES

Abstract

In his pioneering work Das Recht des Warenkaufs, Ernst Rabel undertook a comparative analysis of sales laws with a view to postulating common global rules on the sale of goods. Following a review of the concept of ‘lack of conformity’ of goods2 to the contract in different western legal systems, Rabel reached the following conclusion:3 “Das »Wesen« der Gewährleistung ist nur historisch erklärbar. In einem rationellen System ein Stück Vertragsrecht, das ausdrüchliche Fürsorge nur in einem bescheidenen Mabe benötigt.” The background to Rabel’s conclusion was that the legal systems which he had studied had differing views about the legal conditions for a buyer to claim that the goods lack conformity to the contract.4 Thus, he found that some legal systems considered lack of conformity from a standpoint which has its roots in the Roman law principle of tale quale, where it is assumed that the goods are ‘bought as seen’ (also referred to as the principle of caveat emptor5), according to which there is an assumption that the buyer bears the risk if it appears that the goods do not conform to the contract.6 Other legal systems had developed more balanced rules, where the assumption was that the seller is responsible for defects in the goods, including those based on explicit or implicit guarantees about the quality of the goods (and the principle of caveat venditor which is derived from this), while yet other legal systems have operated without codified definitions of lack of conformity.77 Cf. also Andreas Schwartze: Europäische Sachmängelgewährleistung beim Warenkauf: optionale Rechtsangleichung auf der Grundlage eines funktionalen Rechtsvergleich (Tübingen, 2000), p. 26; Reinhard Zimmermann: The Law of Obligations (München, 1993), p. 307. Here the assessment of lack of conformity was developed in the practice of the courts and in theory on the basis of principles which were largely similar to those known from the other legal systems with codified rules for assessing lack of conformity. On this basis, Rabel recommended that an attempt should be made to work out a common definition for lack of conformity of goods to the contract: “Es bleibt nötig, den Begriff des Sachmangels zu definieren, aber nur deshalb, weil die Mängelskataloge derzeit abweichen und zusammengefabt werden müssen.”8 Among other things, it was on the basis of Rabel’s work that the uniform sales laws, ULIS9 and ULF10 were developed, and these later led to the adoption of the CISG in 1980.11 On the basis of Rabel’s recommendations, it was decided to include a rule in the uniform sales laws and in the CISG on the conformity of the goods to the contract. The rule in Article 35 of the CISG is as follows: Article 35 (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 do not conform with the contract unless they: (a) are fit for the purposes for which 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 the 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 goods which the seller has held out to the buyer as a sample or 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 subparagraphs (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. In recent years, the CISG in general and the provisions on lack of conformity in Article 35 in particular have prompted a number of changes to national sale of goods laws. More recently there have been changes to the EU law on the sale of goods, following the adoption of a directive on the sale of consumer goods which was also strongly influenced by the CISG rules on lack of conformity.12 The focus of this article on the provisions of Article 35 on the conformity of goods to the terms of a sales contract also leads to a focus on the inspiration for changes made to sale of goods laws in a number of legal systems, including EU law. The purpose of this article is twofold: namely to analyse the battle between the principles of caveat venditor and caveat emptor and to analyse the relationship between Article 35 and the contract law as background law and as a competing set of rules. The aim is to illustrate whether or not Article 35 creates uniform rules on the conformity of goods in international sales. The article first discusses the basic principles of Article 35. Then, the relationship to supplementary and competing rules is discussed. The article then analyses how theory and practice generally have seen Article 35 as an independent concept. Following this, the battle between caveat venditor and caveat emptor is described through an analysis of Art. 35(2)(a) and Article 35(3). Finally, the paper ends up concluding that the Article 35 operates in an area of tension between differing doctrines and rules of the law of obligations, so there is sometimes conflict and thus uncertainty about the application of Article 35. This is unquestionably a problem to achieving uniform application of the provision.