Originally from: The Practitioner’s Guide to the CISG - Second Edition

Preview Page

§ 5.1 Overview

The provisions in this section of the CISG form a comprehensive set of rules that govern all aspects of the seller’s performance, including the buyer’s obligation to examine and notify the seller of any defects regarding the seller’s performance. Together, these articles set out the seller’s duties and the implied terms, which his obligations are subject to, as well as the buyer’s remedies for any breach by the seller (treated in Chapter 5).

The seller’s obligations are outlined in Articles 30–37 and 41 43, and supplement the contract of sale to the extent that they fill any gaps in the contract by determining aspects of the sale, which the contract has not determined. Aspects like time and place of delivery, and the practical effect of handing over documents to a carrier, are set out here, but will always be subject to the contract. Central to this part of the CISG is Article 35, which governs the implied terms for goods regarding quality and fitness for purpose (general or specific).

It may seem surprising to find a set of rules for the buyer’s conduct placed in this section of the CISG—especially given the importance of these rules. But, as they pertain to the seller’s obligation to deliver conforming goods, Articles 38, 39, 40 and 44 regarding examination and notification are to be found here. These rules are vital to any case involving delivery of alleged non-conforming goods, as the consequences of a failure to notify of non-conformity may be a complete loss of remedy. In other words, without compliance with these rules on examining the goods and notifying about non-conformity in time and in the right way, the buyer may retain no right to any remedy, even if there clearly is a serious breach.