(Non-)conformity in the 1980 UN Convention on Contracts for the International Sale of Goods: A Uniform Concept?
Intersentia nv, 2004 - 299 páginas
The 1980 UN Convention on Contracts for the International Sale of Goods (CISG) unifies the law governing the rights and obligations arising from a contract for the international sale of goods for the seller and the buyer. The CISG entered into force on 1 January 1988. The current number of 62 contracting States, representing two thirds of the world trade, shows the relevance of this Convention. Moreover, the International Chamber of Commerce (ICC) has published a model for an international sales contract that presupposes the application of the Convention. Since no supranational court exists to safeguard a uniform interpretation of its provisions, the case law from different states on the basis of the CISG needs to be compared. One of the main obligations for the seller under the Convention is to deliver goods which are in conformity with the contract (art. 35 CISG). With respect to this particular obligation, a number of questions have arisen. For example, do the goods delivered need to comply with any public law requirements in the country where the goods will be used? When and how does a buyer have to give notice to the seller of any lack of conformity? Is any fault on the part of the seller required for a buyer to be able to rely on this provision? Who bears the burden of proof? Can a buyer rely on any concurrent claims based on national law, alongside his claim based on lack of conformity? This book contains an analysis of the case law that has been established on the basis of the CISG concerning the aforementioned questions. Special attention has been paid to court decisions in Austria, Belgium, France, Germany, the Netherlands and Switzerland, as well as to arbitral awards by the ICC Court of Arbitration. In this respect, the role of the UNIDROIT Principles of International Commercial Contracts in the interpretation of the CISG has also been analysed. The book provides a unique combination, because it contains both an analysis of the issue of (non-)conformity as such and an overview of the recent case law on this topic, as well as recommendations for international commercial practice. Therefore, this book will be of interest to both academics and legal practitioners.
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a uniform law for the international sale
A uniform interpretation?
The role of Principles
Knowledge of the buyer
Force majeure in the UNIDROIT Principles of International Commercial Contracts
Force majeure in the Principles of European Contract Law
Burden of proof
Is the issue of the burden of proof governed by the CISG or by national law?
Does the CISG really provide for any division of the burden of proof?
Does this mean that the CISG deals with questions of evidence?
Burden of proof as to the conformity of the goods
Specifying the nature of the defects
Art 392 CISG
Limitation periods in the applicable law
Waiver by the seller of the right to rely on a late or insufficient notice
The seller was aware or could not have been unaware of the defects
The buyer has a reasonable excuse for not giving notice in good time
Exemption from liability in the CISG
Exemption from liability when defective goods have been delivered?
Impediment beyond the sellers control?
Impediments to be taken into account by a contracting party
Impediments attributable to suppliers
Third persons within the meaning of art 792 CISG
Does art 79 CISG exclude remedies based on domestic law?
The burden of proof may be reversed
A particular use for the goods or a sale by sample
Burden of proof as to the obligation to inspect the goods and to give notice
Burden of proof as to arts 40 and 44 CISG
May a contract that is governed by the CISG be annulled because of an error?
Can a contract which is governed by the CISG never be annulled
40 CISG 79 CISG according annotated applicable domestic law Article basis Bianca/Bonell Bundesgerichtshof burden of proof buyer circumstances CLOUT Compare conclusion contain Contract Law contract of sale contracting parties Convention on Contracts Cour d’Appel Cour de Cassation court held Court of Arbitration decision defects delivered delivery Deventer European Contract Law example exempted from liability fact Ferrari force majeure give notice governed Handelsgericht des Kantons Honnold impediment inspection international case law International Commercial Contracts interpretation IPRax issue January Käufers koper lack of conformity Landgericht meaning of art niet NIPR non-conformity notification notified the seller obligation paragraph parol evidence rule performance Ph.D provisions public law requirements question reasonable Recht Rechtbank rechtspraak rely on art right to rely risk passed rule sales law Schlechtriem Schlechtriem/Schwenzer Art Schwenzer Somm specific SZIER Thesis Mainz TranspR-IHR Tribunal UNIDROIT Principles uniform Verdrag Verkäufer verkoper Weens Koopverdrag Witz zaken zijn