Conformity of Goods and Documents: The Vienna Sales Convention

by Djakhongir Saidov

Overview

This book provides a detailed examination of the issue of conformity of goods and documents under the United Nations Convention on Contracts for the International Sale of Goods 1980 (CISG). This issue lies at the heart of sales law and is one of the most frequently litigated. The book explores: the Convention's requirements as to quality, quantity, description and packaging of the goods (conformity); the requirements flowing from the need for the goods to be free from rights or claims of third parties; and the questions of what documents the seller must deliver to the buyer and what constitutes a 'good' document under the CISG. The book engages extensively with a substantial body of cases decided under the CISG and academic commentary. It systematises the Convention's experience to date with a view to turning it into an integrated, comprehensive and distinctive CISG legal regime on conformity of goods and documents. The analysis is comparative and draws on the experience of some major domestic legal systems, such as English and US law. The focus is both analytical and practical. The book will be of interest to legal practitioners, academic lawyers and students with an interest in international and comparative sales, commercial and contract law.

Product Details

ISBN-13:	9781849461559
Publisher:	Bloomsbury Academic
Publication date:	03/26/2015
Pages:	318
Product dimensions:	6.14(w) x 9.21(h) x 0.75(d)

About the Author

Dr Djakhongir Saidov is Chair in Commercial Law at King's College London.

Table of Contents

Preface vii

Table of Cases xiii

Table of Legislation xxv

1 Introduction 1

I A Brief Introduction to the CISG 1

II The CISG Today and the Purpose and Scope of this Book 7

III Rules on Conformity of the Goods: Underlying Considerations 10

IV The Seller's Liability and the Buyer's Remedies 14

V Conformity of Goods and Documents: Broader Insights into the CISG 17

A General 17

B Is the CISG a Well-Developed Sales Law? 17

C Developing Substantive Content Within a 'Minimalist' Structure 19

D Is the CISG the Best Law for International Sales? 20

E Defining the Boundaries of the CISG 22

i General 22

ii Proof 22

iii Validity 25

2 Contractual Provisions on Conformity of the Goods 29

I General 29

II Pre-contractual Representations and Conduct 31

A Puffery and Opinions 31

B Public Statements 35

C Direct Communications Between the Parties 37

D Buyer's Knowledge 38

III Post-contractual Statements and Conduct 41

IV Description 43

V Quality 49

A Definition 49

B Various Formulations of Quality Standards 50

C Industry or Public Law Standards 52

D Legislative Changes and/or Knowledge Acquired Subsequent to the Contract 57

E Guarantee and Durability 59

F Quantity and Packaging 64

3 Fitness for a Particular Purpse 68

I Legal Nature of the Implied Rules on Conformity 68

II Fitness for a Particular Purpose: General Considerations 70

III Relationship with Article 35(1) CISG 72

IV Defining a Particular Purpose 74

V Conditions in a Specific Place 80

A Public Law Regulations 80

B Industry Standards and Standards Adopted by Private Entities and Trade Associations 86

C Climatic and Other Conditions 89

VI Durability 90

VII Making Known 92

VIII Reliance on the Seller's Skill and Judgement 96

IX Proof 102

A Burden of Proof 102

B Standard of Proof 103

C Admissibility of Evidence 105

4 Fitness for Ordinary Use 110

I General 110

II Does Article 35(2)(a) CISG Imply a Certain Level of Quality? 111

A Does Article 35(2)(a) CISG Require an Inquiry into the Notion of Quality? 111

B Different Quality Tests: The Debate 112

III Ordinary use 119

IV Description 125

V Durability 126

VI Health and Safety 128

VII Instructions, Manuals and Labels 129

VIII Servicing and Spare Parts 132

IX Minor Defects, Appearance and Finish 132

X Public Law Regulations 134

A Informational Asymmetry and Guidelines in New Zealand Mussels 134

B Imperative of a Case-by-Case Analysis 138

C Changes to Public Law Regulations and Other Related Changes Subsequent to the Time of Assessing Conformity 140

D Legal Nature of Public Law Regulations and the Reality of their Enforcement 142

E Is Article 35(2)(b) CISG Better Suited than Article 35(2)(a) to Deal with the Case of Public Law Regulations? 144

XI Proof 145

5 Conformity with a Sample or Model and Packaging; Exemptions from Liability 147

I Conformity with a Sample or Model 147

A General 147

B How Far is a Sample or Model Allowed to 'Speak'? 153

C Relationship with Contractual Provisions and Other Terms Implied under the Convention 155

D Public Law Regulations 158

E Proof 159

II Packaging 160

A General 160

B Usual Manner 162

C 'Adequate Manner' 164

D Defective Packaging with Goods being Otherwise Conforming 167

E Proof 168

III Exemptions from Liability 170

A Buyer's Knowledge 170

i General 170

ii Actual Knowledge 173

iii Implied Knowledge 174

B Article 39 CISG 180

C Disclaimers 181

6 Third Parties' Rights or Claims in Respect of the Goods (Article 41 CISG) 186

I General 186

II Third Parties' Rights 189

III Third Parties' Claims 193

IV Relevant Time 196

V Freedom of the Goods from a Third Party's Right or Claim 198

VI Seller's Rights or Claims 200

VII Exemptions 202

A Buyer's Agreement 202

B Buyer's Notice 204

C Exclusion Clause 205

VIII Domestic Rules on Validity 206

7 Third parties' Rights or Claims Arising from Intellectual Property (Article 42 CISG) 208

I General 208

II Industrial or Other Intellectual Property 210

III Rights or Claims 213

A General 213

B Frivolous Claims 216

C Relevant Time 218

D Seller's Knowledge 218

IV Territorial Restrictions 222

V Exemptions from Liability 225

A Buyer's Knowledge 225

B Compliance with the Buyer's Specifications 228

C Other Exemptions 231

VI Burden of Proof 231

VII Concluding Observations 232

VIII Freedom from Third Parties' Rights or Claims: an Aspect of 'Conformity'? 234

8 Conformity of Documents 237

I Introduction 237

II Typical Documents: An Overview 238

A Transport Documents 238

B Other Documents 244

III Conformity of Documents 247

A Documentary and 'Physical' Obligations 247

B What Documents Must the Seller Deliver? 248

C Conformity of Documents 255

i Transport Documents: Contractual Requirements 255

ii Transport Documents: Contractual Silence 257

iii Other Documents 262

IV Quality, Quantity, Origin and Other Certificates: Conformity and Beyond 263

A General 263

B Conformity 264

C Finality Clause 268

D Certificate as Extra-contractual Documentary Evidence 270

V Emerging Themes 272

A Is the CISG a Construction Site for Documentary Duties? 272

B Assessing Conformity; Face of Documents versus Extrinsic Factual Inquiry 273

C Attack on Party Autonomy and Legal Certainty 274

D Documentary Performance and the Future of the CISG 274

Index 276

Editorial Reviews

This is an interesting and useful monograph based on a broad and comparative research. The text is thoughtfully structured and clearly presented; it is both easy to use and to follow the text expounded and reasoning of the author, who is clearly a specialist in the field.” —Journal of International Maritime Law

“The book is an extremely useful resource.The author's experience in this area of law is evident in his ability to explain and answer contentious.questions of law. This book serves its purpose well through a concise,
yet detailed and informative approach.” —International Trade and Business Law Review

From the Publisher