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Foreword

This is the second edition of this commentary. In the first edition we stated that there
is hardly any need to provide a justification for a new commentary on such an
important topic as the United Nations Convention on Contracts for the International
Sales of Goods (“Vienna Convention” or “CISG”). The Convention was signed in 1980,
currently has 89 Contracting States and is potentially applicable to up to two thirds of
international trade in goods; sales contracts are a daily occurrence and the fundamental
agreement in international commerce.
There are many good publications on the topic, predominately in continental Europe
or the United States, but we do hope that this commentary offers some new dimensions.
First, this commentary aims to be an international approach to the CISG: it brings
together 22 authors from sixteen countries in four continents with a wide range of
profound academic and practical expertise. They include some very well established
names in the field and few very promising newcomers. Second, the coverage is
consistent in addressing the general principles and drafting history of each article before
providing a detailed commentary and discussion of comparable rules in other instru-
ments, namely the UNIDROIT Principles of International Commercial Contracts
(“PICC”), and various regional instruments such as the Principles of European Contract
Law (“PECL”), as well as Incoterms where necessary. Finally, this commentary high-
lights all the main commercial law aspects of international sales as well as covering civil
law dimensions. Private international law and “procedural” aspects, such as burden of
proof, are also consistently addressed. While we reflect on the doctrinal discussion on
the CISG, we have made every effort to also be practical and give due regard to case law
with the hope to make this a book useful for both academics and practitioners.
We have considered all reviews of the first edition and various comments and
recommendations we have received formally and informally. We hope that the second
edition not only receives the same positive response as the first one, but also proves to
be an improvement rather than a mere update. Not only the text but also the indices
have been thoroughly updated.
The three editors got to know each other and became friends through the Willem C
Vis International Commercial Arbitration Moot. It has been a great experience to work
with one another and solidify a long-standing academic friendship. The editors have a
strong interest in international sales ignited and supported by a number of mentors and
friends; these include Professor Eric Bergsten, Professor Norbert Horn, Professor Rafael
Illescas, the late Professor Albert Kritzer and the late Professor Oskar Hartwieg. Warm
thanks and appreciation are due to them for the enthusiastic and professional way in
which they inspired us to work in this area of international commercial law.
Thanks are also due to all contributors for their submissions and embracing the
project with great motivation, drive and the necessary regard to the international
application of the CISG and the need to promote uniformity in the application of the
Convention. They have all worked to keep the project alive and bring it to fruition.
Friendships were enhanced and strengthened through this project. Deadlines are not
easy to keep in such large-scale projects but the gestation of the book remained within
set targets and every effort was made to state the law as of October 2017.
We also want to extend our thanks to our publisher and in particular, Dr Wilhelm
Warth who worked with us on the first edition and Thomas Klich who supported us in

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Foreword
the second edition who patiently encouraged us through deadlines and spared no effort
to ensure the quality of editing and publishing one would expect from Beck.
The editing co-ordination and the lion share of language and consistency editing fell
on Dr Metka Potocnik, at the School of International Arbitration Queen Mary
University of London. We thank her for the dedication, commitment and contribution
to this publication.
We hope you find this commentary useful and we are happy to receive any feedback.
A book is almost never perfect, even in its second edition, so any suggestions for
improvement in future editions are welcome and may be sent to any of three editors or
to the following email address: Thomas.Klich@beck.de.

Stefan Kröll, Loukas Mistelis, Pilar Perales Viscasillas

Cologne, London and Madrid
February 2018

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Article 35 194–200 Part III. Chapter II. Obligations of the Seller

194 The CISG, however, only regulates the burden of proof within its own scope of
substantive applicability. Questions as to what effects an admission or an acknowledgment
of the non-conformity of goods by the buyer have on the burden of proof, are governed by
the applicable national law. Thus, letters acknowledging the existence of deficiencies may
result, under the relevant national law, in a mere alleviation of the standard of proof,
presumptions in favour of the buyer or even a shift of the burden of proof.351 In this
respect, other pre-trial correspondence of the parties may become relevant.352
d) Burden of proof concerning specific facts
195 aa) Art. 35(1). The buyer who alleges that certain requirements as to conformity have
been agreed bears the burden of proof for that.353 Normally the burden can be
discharged not only by direct evidence, i. e. submission of the express contractual terms,
but also by indirect evidence such as the description of the goods in pro-forma invoices,
examination reports, packing lists, to which the seller did not object at the time.
196 By contrast where the seller tries to rely on a contractually agreed standard in the
sense of Art. 35(1) which imposes lower requirements than the standards in Art. 35(2),
he has to prove such standard.354
197 Subsequent changes to an originally agreed standard have to be proven by the party
relying on them.355 The opposite applies where a party alleges that, despite an
uncontested subsequent amendment of a contract, certain previously agreed standards
continue to be relevant.356 A party which relies on a usage allegedly defining the quality
has to prove such usage.357
198 bb) Art. 35(2)(a) – Fitness for ordinary purpose. Allegations that the goods are not
fit for the ordinary purpose must be proven by the buyer.358 This includes that a buyer,
who wants to rely on the non-compliance of the goods with public law restrictions in a
country different from the country of the seller, proves why the seller should have been
aware of them.
199 By contrast, the seller has to prove that he disclaimed this or any other of the implied
obligations found in Art. 35(2).
200 cc) Art. 35(2)(b) – Fitness for a particular purpose. A buyer trying to invoke the
non-conformity of the goods with the standard imposed by Art. 35(2)(b) has to prove
that the particular purpose was made known to the seller.359 The seller then bears the
351 Bundesgerichtshof (Germany) 9 January 2002 (powdered milk), CISG-Online 651 (Pace) at 2(b) with

note Perales Viscasillas, Battle of the Forms and the Burden of Proof: An Analysis of BGH 9 January 2002,
6 Vindobona Journal of International Commercial Law and Arbitration (2002) 217 (227) at 9.
352 See also Tribunale d’Appello Ticino (Switzerland) 15 January 1998 (cocoa beans), CISG-Online 417

(Pace) implicit acknowledgement of the non-conformity of the goods by relying merely on technicalities.
353 Oberlandesgericht Zweibrücken (Germany) 2 February 2004 (milling equipment), CISG-Online 877

(Pace) – origin of goods; Landgericht Hamburg (Germany) 6 September 2004 (containers), CISG-Online
1085 (Pace) – year of production.
354 Müller, Ausgewählte Fragen der Beweislastverteilung im UN-Kaufrecht im Lichte der aktuellen

Rechtsprechung (2005) p. 65.

355 Landgericht Landshut (Germany) 5 April 1995 (sport clothing), CISG-Online 193 (Pace) at II 1 c.
356 Pennsylvania Federal District Court (U.S.) 25 July 2008 (locomotives), Norfolk Southern Railway

Company v Power Source Supply, Inc., CISG-Online 1776 (Pace).

357 Handelsgericht St. Gallen (Switzerland) 14 June 2012 (organic juice – organic oil), CISG-Online

2468 (Pace), para. III.5 reliance on usage as to documents required.

358 Oberlandesgericht Innsbruck (Austria) 1 July 1994 (garden flowers), CISG-Online 219 (Pace).
359 Bundesgericht (Switzerland) 13 January 2004 (menthol USP brand crystals), CISG-Online 838

(Pace) (UNILEX) at E. 3.1; Neumann, Features of Article 35 in the Vienna Convention; Equivalence,
Burden of Proof and Awareness, 11 Vindobona Journal of International Commercial Law and Arbitration
(2007/1) 81 at paras 38 et seq. (Pace).

534 Kröll
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Section II. Conformity of the goods and third party claims 201–205 Article 35
burden of proof for the fact that the buyer did not rely upon the seller’s skill and
judgment or that it was unreasonable for him to do so.360
To establish non-conformity pursuant to Art. 35(2)(b), it may be sufficient that the 201
buyer shows that the goods cannot be used for the purpose without providing direct
evidence as to what was the actual cause or defect preventing such use.361 Such an
inference is, however, only possible where it can be established that the non-suitability
was not due to factors in the buyer’s sphere of responsibility, i. e. improper handling or
wrong processes used.362
dd) Art. 35(2)(c) – Sale by sample or model. The buyer bears the burden of proof that 202
a sample or model has been provided and the goods do not conform with this sample.363
By contrast, where the seller tries to rely on the standard in Art. 35(2)(c) to avoid the
application of Art. 35(2)(a), he has to prove that a sample or model has been provided.364
ee) Exclusion of liability. A seller trying to rely on Art. 35(3) to exclude liability has 203
to prove that the buyer knew of the defects at the time of contract conclusion.365
e) Discharging the burden of proof: relevance of certificates confirming confor- 204
mity. Parties regularly provide in their contract for an examination of the goods by
outside experts. Clauses such as “final according to SGS certification”366 are not
uncommon and seem to imply that the findings of the expert constitute conclusive
evidence of the non-conformity. Whether that is really the case has to be determined by
interpreting the clause on the basis of Art. 8. In the majority of cases, such clauses do
not exclude proof to the contrary, i. e. that the findings in the expert report are wrong. It
is, however, up to the party which contests the findings of the expert to prove that they
are actually wrong, which may lead to a de facto reversal of the burden of proof.
Moreover, the proof provided by such certificates cannot go further than the examina-
tion made. Thus, where it follows from the certificate that only the top layers of a
consignment of bricks were examined, it does not provide any proof as to the
conformity of the lower layers.367
Even beyond such express contractual provisions, inspection certificates issued by 205
third parties are often of crucial relevance in determining the conformity of the goods.
However, they lose their evidentiary value if there is a considerable period of time
between the inspection and the passing of the risk, during which the goods may have
360 Schwenzer, in: Schlechtriem/Schwenzer, Commentary (2016), Art. 35 para. 56; Magnus, in: Staudin-

ger Kommentar (2013), Art. 35 para. 56; Maley, The Limits to the Conformity of Goods, 12 International
Trade and Business Law Review (2009) 82 (118 seq.) (Pace); hesitant in relation to the reliance
requirement Hyland, Conformity of Goods, in: Schlechtriem (ed.), Einheitliches Kaufrecht und nationales
Obligationenrecht (1987), p. 305 (322).
361 U.S. Court of Appeals (4th Circuit) (U.S.) 21 June 2002, Schmitz-Werke GmbH & Co v Rockland

Industries, Inc. (drapery fabric), CISG-Online 625 (Pace) where the buyer could establish that transfer
printing was not possible on the goods sold for that purpose but did not prove the reason for that.
362 High Court of Justice (United Kingdom) 1 May 2012 (borence, polymer), Kingspan Environmental

Ltd et al v Borealis A/S et al, CISG-Online 2391 (Pace), paras 670 et seq.
363 Rechtbank van Koophandel Hasselt (Belgium) 19 April 2006 (doors), CISG-Online 1389 (Pace).
364 Müller, Ausgewählte Fragen der Beweislastverteilung im UN-Kaufrecht im Lichte der aktuellen

Rechtsprechung (2005), p. 66.

365 Schwenzer, in: Schlechtriem/Schwenzer, Commentary (2016), Art. 35 para. 57; Aue, Mängelgewähr-

leistung im UN-Kaufrecht (1989), p. 81; Saarländisches Oberlandesgericht (Germany) 17 January 2007

(natural stone marble panels), CISG-Online 1642 (Pace) – relating to the manner of packaging.
366 For such a clause and its treatment see Arbitral Award, Exchange for farm products Vienna,

10 December 1997 (barley), CISG-Online 351 (Pace) – at VII 1.5.

367 See the facts underlying the decision by the Dalian Maritime Court (China) 29 June 2005 (magnesia

chromite clinker), CISG-Online 2030 (Pace) where allegedly only the upper layers which the SGS inspector
was allowed to examine contained the ordered clinker while the lower layers contained ordinary bricks.

Kröll 535