Obligations of the seller

According to Art 30, the seller is under an obligation to:

• deliver goods;
• hand over the documents; and
• transfer property in the goods.
Article 31 deals with the obligation to deliver. The sale contract is likely to stipulate the
particular place where delivery is to take place. In the absence of such a stipulation,
according to Art 31, delivery is dependent on the circumstances. So, where the contract of
sale involves carriage of goods, delivery will take place when the goods are handed over to
the first carrier for transmission to the buyer. If the contract of sale does not involve carriage
of goods, and where the contract relates to specific goods, or unidentified goods to be drawn
from a specific stock or to be manufactured or produced, and the parties knew that the goods
were at a particular place or to be manufactured at a particular place, delivery takes place
when the goods are placed at the buyer’s disposal at that place according to Art 31(b). In all
other cases, delivery takes place when the goods are placed at the buyer’s disposal, at the
seller’s place of business, at the conclusion of the contract, according to Art 31(c).
Article 32 : When the contract involves carriage of the goods (i.e., transporting the goods via
a third party), article 32 sets forth obligations of the seller beyond those specified in article
31. The article states three rules:

 If goods are not clearly identified (by markings on the goods, shipping documents, or
other means) as the goods covered by the contract when they are handed over to a
carrier,the seller must specify the goods in a notice to the buyer of the consignment
(paragraph 1).
 When the seller is bound to arrange for carriage of the goods, it must make
reasonable arrangements (paragraph 2);
 if the seller is not bound to arrange for insurance covering the carriage of goods, it
must nevertheless, at the buyer’s request, provide the buyer “all available
information” needed for the buyer to procure such insurance (paragraph 3).
According to Art 33, delivery should take place if the date is fixed on that date. Where the
parties agree on a period of time, then it becomes within that period. The choice of when to
deliver within that period will be the seller’s, unless circumstances indicate that the buyer is
to choose the date. As per Art 33(c) Where the agreement does not indicate a fixed period or
a fixed time, goods are to be delivered within a reasonable time after conclusion of the
contract. What is reasonable will inevitably depend on the circumstances of each case.
Under Article 34, where the seller is required under the contract to hand over documents, he
is required to do so at the time and place agreed by them. If he delivers documents before the
date agreed, he could cure any defects in the documents until the agreed time according to
Art 34.
CLOUT case No. 171 [Bundesgerichtshof, Germany, 3 April 1996] “Documents relating
to the goods” in the sense of article 34 include, in the main, documents that give their holders
control over the goods, such as bills of lading, dock receipts and warehouse receipts,2 but
they also include insurance policies, commercial invoices, certificates (e.g., of origin, weight,
contents or quality), and other similar documents
As for goods delivered, Art 35(1) requires that they are of the quantity, quality and
description required by the contract and are contained or packaged in the manner required by
the contract. Goods will not conform

 Article 35 (1) requires a seller to deliver goods that meet the specifications of the
contract in terms of description, quality, quantity and packaging.
In Landgericht Paderborn, Germany, 25 June 1996, Unilex, it has been found that a
shipment of raw plastic that contained a lower percentage of a particular substance
than that specified in the contract, and which as a result produced window blinds that
did not effectively shade sunlight, did not conform to the contract, and the seller had
therefore breached its obligations.
 if they are not fit for the purpose for which goods of the same description would
ordinarily be used (Art 35(2)(a)),
Article 35 (2) states standards relating to the goods’ quality, function and packaging
that, while not mandatory, are presumed to be a part of sales contracts. In other words,
these standards are implied terms that bind the seller even without affirmative
agreement thereto. If the parties do not wish these standards to apply to their contract,
they may (in the words of article 35) “agree[...] otherwise.”Unless the parties exercise
their autonomous power to contract out the standards of article 35 (2), they are bound
by them.
CLOUT case No. 204 [Cour d’appel, Grenoble, France, 15 May 1996]It has been
held that the standard of article 35 (2) (a) was violated when the seller delivered a
refrigeration unit that broke down soon after it was first put into operation.
Oberlandesgerich München, Germany, 17 November 2006 The standard was also
held violated where a dust ventilator diffused dust rather than removing it, and
contained components that caused the ventilator to shut down prematurely;
(Drukkerij Moderna NV v. IVA Groep BV) The standard of article 35 (2) (a),
however, requires only that the goods be fit for the purposes for which they are
ordinarily used. It does not require that the goods be perfect or flawless, unless
perfection is required for the goods to fulfil their ordinary purposes.
 are not fi t for the particular purpose made known to the seller expressly or impliedly
(Art 35(2)(b)),
Article 35 (2) (b) requires that goods be fit for “any particular purpose expressly or
impliedly made known to the seller at the time of the conclusion of the contract.”
In TeeVee Toons, Inc. v. Gerhard Schubert GmbH a court has also found a
violation of article 35 (2) (b) where machinery that the buyer had purchased to mass
produce buyer’s environmentally-friendly packaging for cassettes malfunctioned and
did not produce the packaging “rapidly or reliably,”
 do not possess the qualities of goods the seller has held out to the buyer as sample or
model (Art 35(2)(c)),
 Article 35 (2) (c) states that, in order to conform to the contract, goods must “possess
the qualities of goods which the seller has held out to the buyer as a sample or
model.”
In Brugen Deuren BVBA v. Top Deuren VOF Where a seller supplied a sample of
the wood to be used to fabricate doors, however, a court found that the sample was
too small to indicate to the buyer that the wood in the completed doors would be
evenly coloured.
 are not packaged in the usual manner or adequately to preserve and protect the goods
(Art 35(2)(d)). Article 35 (2) (d) supplements the last clause of article 35 (1), which
requires that the goods be “contained or packaged in the manner required by the
contract.”
In CLOUT case No. 202 [Cour d’appel, Grenoble, France, 13 September
1995]Where a seller sold cheese that it knew would be resold in the buyer’s country,
and the cheese was delivered in packaging that did not comply with that country’s
food labelling regulations, the goods were deemed non-conforming under article 35
(2) (d).
Oberlandsgericht Schleswig 11 U40/01, 22 August 2002 on the issue of non-conforming
goods.In this case, the contract involved the sale of sheep, and the buyer said that he had
indicated that he wanted sheep ready for slaughter, not rawboned sheep. The court said that
the onus was on the buyer to show that he had informed the seller of his intention to slaughter
the sheep immediately. In the circumstances, suffi cient evidence had not been produced to
convince the court.
Landgericht Trier (Clout Case no 170) 12 October 1995 provides an interesting
illustration. A consignment of wine was sold by the Italian seller to a German buyer. The
German authorities seized the wine and destroyed it, since it contained 9% water with which
the wine had been mixed. The buyer refused payment. The seller said the buyer could not rely
on nonconformity, since he had not examined the wine. The court held that the buyer could,
since the seller could not have been unaware of the non-conformity. It also went on to add
that the delivery of wine with water additions, which is not fi t for circulation and so the
standard of Art 35(2)(a) was violated.
Article 35 (3) relieves the seller of responsibility for a lack of conformity under article 35 (2)
to the extent that the buyer “knew or could not have been unaware” of the nonconformity at
the time the contract was concluded. Article 35 (3) only relieves the seller of responsibility
for non-conformity under article 35 (2) (a)-(d). A lack of conformity under article 35 (1)
(which requires the goods to be of “the quantity, quality and description required by the
contract”) is not subject to the rule of article 35 (3).
Burden of Proof
In CLOUT case No. 251 [Handelsgericht des Kantons Zürich, Switzerland, 30
November 1998 it has been indicated that the seller bears the burden of proving that goods
were conforming at the time risk of loss passed, but the buyer bears the burden of proving a
lack of conformity after the risk shifted if it has accepted the goods without immediately
notifying the seller of defects. It has been noted that authorities are in conflict over which
party bears the burden of proof with respect to the reliance requirement in article 35 (2) (b).
With respect to article 35 (3), it has been held that the seller bears the burden of proving the
elements of an exemption from liability under this provision.
Article 36 (1) states a general rule that the seller is liable for a lack of conformity that exists
at the time risk of loss for the goods passes to the buyer. Article 36 (2) extends the seller’s
responsibility in certain circumstances by providing that the seller is liable for a lack of
conformity occurring even after risk has passed if the non-conformity is caused by a breach
by the seller of its obligations, including a breach of a guarantee of the future performance or
qualities of the goods
IN CLOUT case No. 107 [Oberlandesgericht Innsbruck, Austria, 1 July 1994]. A flower
shop that purchased daisy plants refused to pay the price when the buyer’s own customers
complained that the plants did not bloom throughout the summer as expected: a court of
appeals affirmed the seller’s right to the price because (1) the buyer failed to prove, pursuant
to article 36 (1), that the plants were defective when the risk passed to the buyer, and (2) the
buyer failed to prove that the seller had guaranteed the future fitness of the goods under
article 36 (2).
Defects not apparent until after risk passed
Article 36 (1) states that a seller is liable for a lack of conformity existing when risk passed to
the buyer “even though the lack of conformity becomes apparent only after that time.”
In CLOUT case No. 204 [Cour d’appel, Grenoble, France 15 May 1996] where a
refrigeration unit that had been sold installed on a truck trailer failed within 15 days of
delivery, the court found that a lack of conformity had existed at the time risk passed even
though the non-conformity did not become apparent until the unit had been put into use.
Article 36 (2) provides that a seller is liable for a lack of conformity arising after the time that
risk passed to the buyer, but only if the lack of conformity is due to a breach by the seller.
In this case CLOUT case No. 724 [Oberlandesgericht Koblenz, Germany, 14 December
2006] a court has held that, although the buyer bore the risk when goods (wine bottles) were
damaged or contaminated in transit, the seller was responsible because the damage was due
to seller’s breach of its article 35 (2) (d) obligation to package the goods in manner adequate
for truck transport.
Article 37 of the CISG deals with non-conforming deliveries made by the seller before the
date specified in the contract. The first sentence of article 37 specifies that, in the case of a
delivery of insufficient quantity, the seller can cure by “deliver[ing] any missing part” or by
“mak[ing] up any deficiency in the quantity of the goods delivered.” In the case of a delivery
of goods deficient in quality, the seller can cure by delivering replacement goods1 or by
“remedy[ing] any lack of conformity in the goods delivered