Non Conformity Of Goods

 DEFINITION:

Non-Conforming Goods: means only the following: product shipped is different than
identified in Buyer’s purchase order; or product’s label or packaging incorrectly

identifies its contents.1

 ORIGIN:
CISG convention
 COMMENTARIES:
The standards an important part. Thus, the conformity of goods should in principle be
determined not only by their quantity, quality, description, or packaging, but also by
compliance with standards affecting the use of the goods. According to Article 35(1) CISG,
the ‘conformity’ of goods comprises their quantity, quality, description, containment or
packaging. Standards, whether public or private, are often concerned with these aspects of
conformity, as well as with many others, such as technical, ethical, environmental and
health and safety considerations and/or the process of designing, manufacturing or
producing the goods. It must also be stressed that when interpreting the contract under
Article 35(1), regard must be had to all relevant circumstances, as is made clear by Article
8(3) CISG2. A shipment of goods containing less than the quantity specified in the contract
breached article 35 (1), since the provision expressly states that a lack of “conformity”
encompasses both a lack of quality in the goods delivered and a lack of quantity;3
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.4
Thus it was held that plants which were generally fit to prosper, but which were not fit for
the local climate where the buy has been variously described as requiring goods of
“average” quality, “marketable” quality, or “reasonable” quality. It has also been stated
that resale ability (tradability) of the goods is an aspect of their fitness for ordinary

1
Law insider dictionary
2
the Commentary on the Draft Convention on Contracts for the International Sale of Goods, prepared by the
Secretariat
3
Hof van Beroep Antwerpen, Belgium, 24 April 2006 (GmbH Lothringer Gunther Grosshandelsgesellschaft für
Bauelemente und Holzwerkstoffe v. NV Fepco International), Unilex
4
CLOUT case No. 123 [Bundesgerichtshof, Germany, 8 March 1995] (“a foreign seller can simply not be required to
know the not easily determinable High Court of New Zealand, 30 July 2010

1
 purposes under article 35 (2) (a)5 Several decisions have discussed whether conformity with
article 35 (2) (a) is determined by reference to the quality standards prevailing in the
buyer’s jurisdiction. According to one decision, the fact that the seller is to deliver goods to
a particular jurisdiction and can infer that they will be marketed there is not sufficient to
impose the standards of the importing jurisdiction in determining suitability for ordinary
purposes under article 35 (2) (a) The court indicated that the standards in the importing
jurisdiction would have applied if the same standards existed in the seller’s jurisdiction, or
if the buyer had pointed out the standards to the seller and relied on the seller’s expertise. 6

 ARTICLES IN Non-Conforming Goods

Article 35(1),(2) A,B,C,D, (3) of CISG

 CASE LAW:
[Bundesgerichtshof, Germany, 8 March 1995]7
In this legal case, Zealand mussels with a cadmium concentration exceeding the German
health authority's limit were not considered a breach of contract because the court
deemed the cadmium level itself did not render the mussels inedible. The Supreme
Court clarified that under article 35 (2)(a) and (b) of the CISG, sellers are not obligated to
provide goods that comply with all import State regulations unless similar regulations
exist in the export State, the buyer informs the seller relying on the seller's expertise, or
the seller is aware of such provisions due to special circumstances. Additionally, the
court ruled that the defendant lost the right to claim lack of conformity and contract
avoidance based on faulty packaging. The delay of over a month in notifying the
plaintiff was considered unreasonable under article 39 (1) of the CISG, even though the
court considered one month after delivery to be a "generous" yet acceptable period for
notification.

5
Landgericht Coburg, Germany, 12 December 2006, Supreme Court of Western Australia, Australia, 17 January
2003 (Ginza Pty Ltd v. Vista Corporation Pty Ltd), (merchantability standard); Netherlands Arbitration Institute, the
Netherlands, 15 October 2002 (Arbitral award, No. 2319), Unilex (reasonable quality rather than average or
merchantable quality); CLOUT case No. 123 [Bundesgerichtshof, Germany, 8 March 1995] (Landgericht Berlin,
Germany, 15 September 1994, Unilex (average quality, not merely marketable quality)
6
In a later decision involving vine wax that failed to protect vines grafted using the wax, the German Supreme
Court found that the wax did not meet the requirements of article 35 (2) (a) because it “did not meet the industry
standards—of which both parties were aware and which both parties applied . . .”. CLOUT case No. 272
[Oberlandesgericht Zweibrücken, Germany, 31 March 1998]
7
CLOUT case No. 123