Question Q 35-2 a) Compare Art. 35 CISG to the national solutions set out above. Which do you think were inﬂuential in the drafting of Art. 35 CISG? b) What diﬀerences and/or problems can you perceive between the national solutions and the CISG? 3. Drafting history In substance, Art. 35 CISG is largely based on Art. 33 ULIS, although the approach to the question of conformity can be distinguished. Whereas the starting point in Art. 35 CISG is the basic rule that the goods must conform to the contract, Art. 33 ULIS was, instead, used as a ‘catch-all’ provision. A further diﬀerence can be found in the consequences of the delivery of non-conforming goods under the two provisions. Whilst Art. 33 ULIS regarded this as a failure to fulﬁll the delivery obligation, non-conforming goods have no eﬀect on the delivery obligation under Art. 35 CISG, but rather give rise to remedies under Art. 45 et seq. CISG. Art. 35(1) CISG 35-1 : Art. 35(1) CISG requires a seller to deliver goods that meet the speciﬁcations of the contract regarding description, quality, quantity and packaging. An often disputed issue is what the contract actually ‘required’.

doi:10.4324/9780203945445-95

Chapter

Question Q 35-2 a) Compare Art. 35 CISG to the national solutions set out above. Which do you think were inﬂuential in the drafting of Art. 35 CISG? b) What diﬀerences and/or problems can you perceive between the national solutions and the CISG? 3. Drafting history In substance, Art. 35 CISG is largely based on Art. 33 ULIS, although the approach to the question of conformity can be distinguished. Whereas the starting point in Art. 35 CISG is the basic rule that the goods must conform to the contract, Art. 33 ULIS was, instead, used as a ‘catch-all’ provision. A further diﬀerence can be found in the consequences of the delivery of non-conforming goods under the two provisions. Whilst Art. 33 ULIS regarded this as a failure to fulﬁll the delivery obligation, non-conforming goods have no eﬀect on the delivery obligation under Art. 35 CISG, but rather give rise to remedies under Art. 45 et seq. CISG. Art. 35(1) CISG 35-1

Chapter

Question Q 35-2 a) Compare Art. 35 CISG to the national solutions set out above. Which do you think were inﬂuential in the drafting of Art. 35 CISG? b) What diﬀerences and/or problems can you perceive between the national solutions and the CISG? 3. Drafting history In substance, Art. 35 CISG is largely based on Art. 33 ULIS, although the approach to the question of conformity can be distinguished. Whereas the starting point in Art. 35 CISG is the basic rule that the goods must conform to the contract, Art. 33 ULIS was, instead, used as a ‘catch-all’ provision. A further diﬀerence can be found in the consequences of the delivery of non-conforming goods under the two provisions. Whilst Art. 33 ULIS regarded this as a failure to fulﬁll the delivery obligation, non-conforming goods have no eﬀect on the delivery obligation under Art. 35 CISG, but rather give rise to remedies under Art. 45 et seq. CISG. Art. 35(1) CISG 35-1

ABSTRACT

After the [buyer] made the down payment in the amount of DM 69,900.00 on 11 March 1999, the [buyer’s] manager viewed the machine again fourteen days later and realised that it was only equipped for a rapport length of 641 mm. With letter of 12 April 1999, the [buyer] complained to the [seller] that the stencil holders for a rapport length of 1018 mm were missing. [Buyer] referred to the contract, in which a “rapport equipment 641 mm-1018 mm” had been assured. Because used stencil holders were not available and new holders would cost DM 99,000.00, the [buyer] gave the [seller] the following options:

“Alternative 1: You accept that the sales contract does not correspond to the agreement and you withdraw from the contract and reimburse the down payment in the amount of DM 69,900.00. “Alternative 2: You accept a reduction in price in the amount of DM 60,000.00, with which you contribute to the purchase price of new stencil holders. This means that you bear roughly 60% of the additional costs, while the [buyer] bears approx. 40%.”