Q 35-4 a) What exactly was relied on to establish the lack of conformity under Art. 35(1) CISG in the case of the Oberlandesgericht München (C 35-2) above? b) Under which ‘head’ (quantity, quality, or description) of Art. 35(1) CISG did the lack of conformity fall? 2. Peius and aliud According to the CISG, every type of deviation – even a deviation in kind – constitutes a lack of conformity with the contract. Consequently, the distinction between peius and aliud, which is still so important in the Swiss and Austrian legal systems – and formerly under German law – is of no importance under the CISG. 35-3 : Bundesgerichtshof (Germany), 3 April 1996, CISG-online 135

doi:10.4324/9780203945445-97

Chapter

Q 35-4 a) What exactly was relied on to establish the lack of conformity under Art. 35(1) CISG in the case of the Oberlandesgericht München (C 35-2) above? b) Under which ‘head’ (quantity, quality, or description) of Art. 35(1) CISG did the lack of conformity fall? 2. Peius and aliud According to the CISG, every type of deviation – even a deviation in kind – constitutes a lack of conformity with the contract. Consequently, the distinction between peius and aliud, which is still so important in the Swiss and Austrian legal systems – and formerly under German law – is of no importance under the CISG. 35-3

Chapter

Q 35-4 a) What exactly was relied on to establish the lack of conformity under Art. 35(1) CISG in the case of the Oberlandesgericht München (C 35-2) above? b) Under which ‘head’ (quantity, quality, or description) of Art. 35(1) CISG did the lack of conformity fall? 2. Peius and aliud According to the CISG, every type of deviation – even a deviation in kind – constitutes a lack of conformity with the contract. Consequently, the distinction between peius and aliud, which is still so important in the Swiss and Austrian legal systems – and formerly under German law – is of no importance under the CISG. 35-3

ABSTRACT

The Dutch plaintiff was the assignee of a Dutch company, which had sold four different quantities of cobalt sulphate to the [buyer], a German company. It was agreed that the goods should be of British origin and that the plaintiff should supply certiﬁcates of origin and of quality. After the receipt of the documents, the [buyer] declared the contracts to be avoided since the cobalt sulphate was made in South Africa and the certiﬁcate of origin was wrong. The [buyer] also claimed that the quality of the goods was inferior to what was agreed upon. The plaintiff demanded payment.