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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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Section II. Conformity of the goods and third party claims 16–19 Article 35
or even if they favour the buyer. Every discrepancy results in the non-conformity of the
goods unless it is covered by contractual stipulations or usages or practices.26
Through the adoption of a conformity concept without any “materiality” require- 16
ment, the CISG avoids the often difficult decision of whether a discrepancy was
immaterial or not. Moreover, the contractual equilibrium is best preserved if non-
material discrepancies constitute a breach of the obligation and entitle the buyer to the
remedies of price reduction (Art. 50), repair (Art. 46(3)) or damages (Arts 74 et seq).
However, in principle, the CISG concept of conformity is not based on a perfect 17
tender rule. Minor discrepancies are often within the tolerances allowed under the
contract or in general practice. It is not uncommon that contracts provide that certain
deviations as to quantity or quality are permissible and in certain sectors minor
discrepancies in quantity or quality are considered to be permissible even without such
explicit clauses. While such discrepancies, particularly in relation to quantity, may result
in a reduction of price under the contract or trade usage, they do not constitute a breach
of the obligation to deliver conforming goods.27
In addition, notwithstanding that it is in principle irrelevant for the finding of a 18
breach whether the non-conformity results in a reduced value or affects the utility, both
factors de facto retain a certain relevance. In practice, both may be relevant considera-
tions first in determining whether the goods are conforming, i. e. the definition of the
relevant standard, and second whether the other requirements for the remedies are met.
If goods are delivered which are equal in value and utility to conforming goods, in
general, no damages will have occurred nor will the breach be fundamental. Where the
non-conformity amounts to a fundamental breach it may form the basis for an
avoidance of the contract.28
c) Discrepancies in quantity. Art. 35 is based on the concept that, in general, 19
discrepancies in quantity constitute a delivery of non-conforming goods and not partial
non-delivery.29 Irrespective of the reference in Art. 51 to a delivery of “only a part of the
goods”, the wording of Art. 35 is unequivocal. In principle, this applies irrespective of
the size of the discrepancies and whether the discrepancies are evident from the relevant
documents or not.30 Thus, the buyer is required to notify the seller even of large
deviations to avoid the loss of his rights under Art. 39.31 While the buyer will often be

26 Magnus, in: Honsell, Kommentar (2010), Art. 35 para. 11; to that extent at least misleading

Handelsgericht Zürich (Switzerland) 30 November 1998 (lambskin coats), CISG-Online 415 (Pace).
27 Arbitral Award, ICC, 1 August 1999 (books), CISG-Online 706; Schwenzer, in: Schlechtriem/

Schwenzer, Commentary (2016), Art. 35 para. 8; for the less than perfect deliveries see also Lookofsky,
Tooling up for Warranties with the CISG Case Digest, in: Flechtner/Brand/Walter (eds), Drafting
Contracts (2007), p. 343 (p. 349).
28 Tribunale di Busto Arsizio (Italy) 13 December 2001 (machinery for recycling of plastic bags), CISG-

Online 1323 (Pace).

29 Piltz, Internationales Kaufrecht (2008), para. 5–28; Bundesgericht (Switzerland) 7 July 2004 (cable

drums), CISG-Online 848 (Pace); Landgericht Landshut (Germany) 5 April 1995 (sport clothing), CISG-
Online 193 (Pace); but see contra Arbitral Award, Tribunal of International Commercial Arbitration at the
Russian Federation Chamber of Commerce 132/2004, 27 October 2005 (goods not specified), CISG-Online
1503 (Pace).
30 Gruber, in: MünchKommBGB (2016), Art. 35 CISG paras 6 seq.; for the qualification as partial non-

delivery where the discrepancy is obvious from the documents Enderlein/Maskow, International Sales
Law (1992), Art. 35 para. 3; Salger, in: Witz/Salger/Lorenz, Kommentar (2016), Art. 35 para. 6.
31 Bundesgericht (Switzerland) 7 July 2004 (cable drums), CISG-Online 848 (Pace); Oberlandesgericht

Brandenburg (Germany) 3 July 2014 (cuttings), CISG-Online 2543 (Pace), para. 22; Landgericht Landshut
(Germany) 5 April 1995 (sport clothing), CISG-Online 193 (Pace); cf. for excess quantities: Oberlandes-
gericht Rostock (Germany) 25 September 2002 (frozen food), CISG-Online 672 (Pace); Heilmann,
Mängelgewährleistung (1994), pp. 171 seq.; for a loss due to an unspecific notice Oberlandesgericht
Koblenz (Germany) 31 January 1997 (acrylic blankets), CISG-Online 256 (Pace).

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Article 35 20–24 Part III. Chapter II. Obligations of the Seller

able to rely on Art. 40 in case of large discrepancies, this may not always be the case if
the seller has informed the buyer about these discrepancies.
20 Contracts sometimes provide that certain deviations as to quantity are permissible.
Where the quantity is only stated as an approximate amount through clauses such as
“more or less”, “not less than” or “about” the seller has some latitude as to the amount
he can deliver. In certain sectors, minor discrepancies in quantity are considered to be
permissible even without such explicit clauses (e. g. usage in the sense of Art. 9). Unless
the permitted tolerances have been exceeded, such discrepancies do not constitute a
non-conforming delivery.32 Nevertheless they will often result in a reduction of price
under the contract or the trade usage.
21 One further example where a temporary discrepancy in quantity may not lead to
non-conformity is instalments contracts. In principle, each instalment has to be treated
separately and this also pertains to conformity. However, unless the buyer needs a
particular amount of the goods at a specified date, as in cases of just-in-time production,
shortage in delivery in earlier instalments can be remedied by the delivery of a larger
quantity in subsequent instalments. Such temporary shortages are regularly due to the
availability of transportation space and are often covered by existing customs in
particular areas of trade or practices between the parties.33
22 Equally, the delivery of excess quantity constitutes a non-conformity.34 Its conse-
quences are regulated specifically in Art. 52(2) which provides that the buyer may
take delivery of the excess quantity and pay for it or refuse to take delivery. The
latter option may, however, be lost if the buyer violates its notice obligation under
Art. 39.
23 The above principles also apply mutatis mutandis to partial deliveries, which, in
relation to non-conformity, can be equated with the explicitly mentioned lack of
quantity.35
24 d) Discrepancies in quality. Quality as used in Art. 35 covers primarily the – broadly
understood – physical condition of the goods, whether agreed upon (Art. 35(1)) or
justifiably expected (Art 35(2)). Thus, deviations from the physical or chemical compo-
sition of the goods36 or the resulting characteristics, such as being washable without
shrinking37 or being suitable for consumption, as well as from the expressly or impliedly
agreed age or hours of use, constitute discrepancies in quality.

32 Schwenzer, in: Schlechtriem/Schwenzer, Commentary (2016), Art. 35 para. 8; Arbitral Award, ICC

9083/1999, 1 August 1999 (books), CISG-Online 706; Ontario Superior Court of Justice (Canada)
31 August 1999 (picture frame mouldings), CISG-Online 433 (Pace).
33 See Arbitral Award, ICC 9083/1999, 1 August 1999 (books), CISG-Online 706, relying additionally

on a practice established between the parties due to the lack of complaints against such discrepancies.
34 Piltz, Internationales Kaufrecht (2008), para. 5–33; Oberlandesgericht Rostock (Germany)

25 September 2002 (frozen food), CISG-Online 672 (Pace); Ontario Superior Court of Justice (Canada)
31 August 1999 (picture frame mouldings), CISG-Online 433 (Pace); but see Cour d’appel Paris
(France) 22 April 1992 (electronic components), Société Fauba France FDIS GC Electronique v Société
Fujitsu Mikroelectronic GmbH, CISG-Online 222 confirmed by Cour de cassation (France) 4 January
1995 (electronic components), CISG-Online 138 (Pace) applying Arts 81 et seq. to such cases with
critical note by Witz, The First Decision of France’s Court of Cassation Applying the U. N. Convention
on Contracts for the International Sale of Goods, 16 Journal of Law and Commerce (1997) 345–356.
35 Magnus, in: Staudinger Kommentar (2013), Art. 35 para. 15.
36 Appellationsgericht Basel-Stadt (Switzerland) 23 August 2003 (soyaprotein products), CISG-Online

943 (Pace); Landgericht Paderborn (Germany) 25 June 1996 (granulated plastic – PVC), CISG-Online 262
(Pace).
37 Landgericht Landshut (Germany) 5 April 1995 (sport clothing), CISG-Online 193 (Pace) – shrinking

of one to two sizes considered to be fundamental breach.

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Article 35 36–39 Part III. Chapter II. Obligations of the Seller

36 In cases of inadequate packaging, the seller will be deemed to have delivered non-
conforming goods even if the damage to the goods occurrs after the passing of risk.62

2. Art. 35(1)
37 a) Determining the relevant standard under Art. 35(1). Art. 35(1) defines the con-
tract as the primary source for the standard of conformity of the goods. It contains a
clear endorsement of the supremacy of contractual provisions over the supplementary
legal standard provided by Art. 35(2).63 Consequently the CISG, like many national
laws, has as its starting point a subjective concept of non-conformity.64
38 A contractual agreement in the sense of Art. 35(1) does not require any special
wording of the parties and its formation is governed by the general rules on formation.
In particular, no confirmation or even guarantee of certain characteristics by the seller is
required.65 Such guarantees may, however, be relevant in determining whether a breach
is fundamental (Arts 46(2), 49(1)(a)) or for the application of Art. 36(2).
39 The contractual requirements may be explicit or implicit.66 They may be spelt out in
some detail or may follow from the specific termionology used.67 In determining the
exact content of the seller’s contractual obligation concerning the conformity of the
goods, the parties’ statements and conduct have to be interpreted in accordance with the
principles set out in Art. 8.68 This means, in particular, that the courts are not restricted
to the four corners of the contract and what has been put down in writing. The parol
evidence rule (at least its substantive part) as applied in common law jurisdictions is not
applicable in this regard.69 Instead, as required by Art. 8(3), courts have to base their
interpretation on “all relevant circumstances of the case”. In addition to the contractual
document itself and its annexes, these include other documents exchanged between the
parties, such as assembly instructions, service manuals,70 pre-contractual negotiations

62 Piltz, Internationales Kaufrecht (2008), paras 5–37; Comisión para la Protección del Comercio

Exterior de México (Mexico) 29 April 1996 (canned fruit), Conservas la Costena v Lanis, CISG-Online
350 (Pace); see also Arbitral Award, CIETAC, 23 February 1995 (jasmine aldehyde), CISG-Online 568
(Pace).
63 Schlechtriem/Butler, CISG (2009), para. 133; Ferrari, in: Ferrari et al., Internationales Vertragsrecht

(2018), Art. 35 CISG para. 5; cf. Bundesgerichtshof (Germany) 3 April 1996 (cobalt Sulphate), CISG-
Online 135 (Pace) at II2c(aa); Kantonsgericht Schaffhausen (Switzerland) 27 January 2004 (model
locomotives), CISG-Online 960 (Pace).
64 The objective standards implied by Art. 35(2) lead in the end to a mixed system of conformity;

Magnus, in: Honsell, Kommentar (2010), Art. 35 para. 12.

65 Piltz, Internationales Kaufrecht (2008), para. 5–32; Flechtner, Funky Mussels, a Stolen Car, and

Decrepit Used Shoes: Non-Conforming Goods and Notice thereof under the United Nations Sales
Convention, Boston University International Law Journal (2008) 1 (5) (Pace).
66 Schwenzer, in: Schlechtriem/Schwenzer, Commentary (2016), Art. 35 para. 7; Hyland, Conformity of

Goods, in: Schlechtriem (ed.), Einheitliches Kaufrecht (1987), p. 305 (308); see also Bundesgericht
(Switzerland) 22 December 2000 (used rotary printing textile machine), CISG-Online 628 (Pace).
67 Bundesgerichtshof (Germany) 26 September 2012 (clay), CISG-Online 2348 (Pace) where the dutch

description used “Aardappelbescheidingsklei A 01” made clear that the clay was used as a separator of
potatoes and therefore had to comply with food legislation.
68 Handelsgericht Zürich (Switzerland) 3 April 2013 (steel coils), CISG-Online 2562 (Pace), para. 5.3.2;

Bundesgericht (Switzerland) 23 September 2013 (steel coils), CISG-Online 2560 (Pace), para. 3.2; Ober-
landesgericht Hamm (Germany) 30 November 2010 (pigs), CISG-Online 2217, para. II.1.a.
69 Lookofsky, Understanding the CISG (2017), p. 78; Gillette/Walt, Sales Law (2016), Chap. 8 III p. 370

seq.; see generally on the non-applicability of the parol evidence rule U.S. Court of Appeals (11th Circuit)
(U.S.) 29 June 1998, MCC-Marbel Ceramic Center Inc. v Ceramica Nuova D’Agostino S. p. A., 144 F.3 d
1384 (ceramic tiles), CISG-Online 342 (Pace).
70 Arbitral Award, SCC 5 June 1998 (rail press), CISG-Online 379 (Pace) – relevance of service manual

for determining the standard of conformity.

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Section II. Conformity of the goods and third party claims 40–43 Article 35
and previous contacts.71 Documents issued by third parties in conjunction with the
contract, such as letters of credit or inspection certificates, may also provide indications
as to the parties’ agreed standard of conformity. Where, for example, a letter of credit
provides that documents may be accepted which mention minor deficiencies in the
goods, that may be an indication that such deficiencies do not affect the conformity of
the goods.72 Equally, public statements of the seller or his advertising may be relevant in
determining the characteristics of the goods the parties have agreed upon.73
There is, however, a need to distinguish between statements or conduct, which 40
contain legally relevant descriptions of the goods, and those that are merely puffing
language.74 In doing so, one has to take cultural differences into account, as well as the
fact that often parties do not communicate in their native language. Consequently, the
subtle distinctions developed in national laws between, for example, “affirmation of
facts”, “promises”, “statements of commendation” or “opinion” as well as the meaning
attached to certain phrases are largely irrelevant for interpretation under the CISG.75
This may be different, however, where both parties have used a certain phrase with a
view to its meaning in a particular country, e. g. when the contract has been negotiated
by lawyers coming from the same country.
Different views exist as to who bears the risk of ambiguous descriptions. Some 41
authors deduce from the wording of “could not have been unaware” in Art. 8(1) that
the recipient of an ambiguous declaration has to enquire as to its contents. Others
promote an application of the “contra proferentem rule” under Art. 8(2), imposing the
burden upon the party making a statement to make its intention clear.76
The parties’ subsequent conduct can give valuable indications as to the exact content 42
of the parties’ agreement. For example, the lack of any immediate complaint about
missing quantities or over-shipments may be indicative that the parties agreed on the
quantity delivered. Equally, efforts by the seller to increase the output of a machine
upon complaints by the buyer are a strong indication that a higher output than attained
by the machine was agreed by the parties.77 However, in the latter situation it must
always be borne in mind that additional efforts are often made as an expression of good
will to maintain the business relationship without the existence of a legal obligation.
Also, efforts to sell the goods may be part of the buyer’s efforts to mitigate damages
under Art. 77 and not an indication that the goods delivered were conforming.78
The contractual conformity requirements may result from individually agreed clauses 43
or from standard terms which have become part of the contract. In practice, parties

71 For the relevance of previous correspondence see Appellationsgericht Basel-Stadt (Switzerland)

23 August 2003 (soyaprotein products), CISG-Online 943 (Pace); Arbitral Award, CIETAC, 22 May
1996 (broadcasting equipment) (Pace); Helsinki Court of First Instance (Finland) 11 June 1995, confirmed
by Helsinki Court of Appeal (Finland) 30 June 1998 (skin care product), CISG-Online 1304 (Pace) –
statement that product has a 30 months shelf life.
72 Bundesgericht (Switzerland) 2 April 2015 (wire rod), CISG-Online 2592 (Pace), para. 7.1.1 allowing

bills of lading mentioning that “some bands brooken or loose”.

73 Schlechtriem/Butler, CISG (2009), para. 134; Oberlandesgericht Koblenz (Germany) 19 December

2012 (generator), CISG-Online 2470 (Pace) – relevance of description of the generator in the internet
offer.
74 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 626 seq. – general representation that
Borecene was “fully UV stabilised” not apt to import contractual terms as to timespan of UV resistence.
75 Gillette/Walt, Sales Law (2016), Chap. 8 III pp. 370 seq.
76 For a discussion of the problem Maley, The Limits to the Conformity of Goods, 12 International

Trade and Business Law Review (2009) 82 (108 seq.) (Pace).

77 Appelationsgericht Basel-Stadt (Switzerland) 26 September 2008 (packaging machine), CISG-Online

1732 (Pace).
78 See Landgericht Berlin (Germany) 15 September 1994 (shoes), CISG-Online 399 (Pace).

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Section II. Conformity of the goods and third party claims 103–105 Article 35
ee) Application of the standard in practice
(i) Resaleability. In international wholesale and intermediate trade, but also in a 103
number of other cases, a resale of the goods belongs to the ordinary use for which the
goods have to be fit.189 Consequently, the goods must be honestly resaleable in the normal
course of business.190 Thus, goods which – due to their quality or non-physical factors,
such as their reputation191 – can only be resold at a considerable discount, do not meet
this requirement. The same applies if the goods may render the buyer liable for non-
conformity to his customers.192 If one of the purposes of a contract concerning consumer
goods is to sell the goods within Europe to consumers, European sellers will at least have
to comply with the standards imposed by Art. 2(2)(d) of Directive 1999/44/EC.193
In the case of foodstuff intended for human consumption, resaleability includes that the 104
goods are unobjectionable as to health.194 Furthermore, existing labelling requirements
must be complied with.195 The relevant standards can often be found in the national food
regulations which – due to the existing differences in the various countries – raises the
question as to the relevant rules (see supra at 3.2.4). Thus, not only the prohibited addition
of water may render wine non-conforming, but also chapitalization if that is not accepted
in the country of use.196 The same applies for other additional ingredients, such as flavors
or coloring, which are regulated even if their health-relevance is not proven.197
(ii) Suspicion of defects. In principle, the mere suspicion that goods may be defective 105
does not result in the non-conformity of the goods nor does bad press. The goods must
actually not be fit for their ordinary purpose. However, there may be cases where a
reasonable suspicion that the goods are non-conforming, based on past events or
experience, is in itself sufficient to render them unfit for their ordinary use. For
example, in relation to potentially dangerous goods or foodstuff, local authorities, due
to the health implications, often act upon the basis of such suspicions and ban the sale
of such goods. However, even without such bans, there may not be sufficient time to
dispel these concerns before the goods perish and the mere suspicion that the goods
may be dangerous may render them non-merchantable.198

189 Bundesgerichtshof (Germany) 2 March 2005 (Belgian frozen pork), CISG-Online 999 (Pace);

Kantonsgericht Glarus (Switzerland) 6 November 2008 (bags), CISG-Online 1996 (Pace), para. 1.3; Piltz,
Internationales Kaufrecht (2008), para. 5–46.
190 Secretariat Commentary on 1978 Draft, Art. 33 (now Art. 35) para. 5.
191 See Maley, The Limits to the Conformity of Goods, 12 International Trade and Business Law

Review (2009) 82 (112 seq.) (Pace).

192 Ferrari, in: Ferrari et al., Internationales Vertragsrecht (2018), Art. 35 CISG para. 14.
193 Schwenzer, in: Schlechtriem/Schwenzer, Commentary (2016), Art. 35 para. 15.
194 Bundesgerichtshof (Germany) 2 March 2005 (Belgian frozen pork), CISG-Online 999 (Pace) at

II 3 b; for the relevant health regulations see supra paras 89 et seq.

195 Cour d’appel GFrancee (France), 13 September 1995 (cheese), Caito Roger v Société francaise de

factoring, CISG-Online 157 (Pace).

196 Cour d’appel de Grenoble (France) 23 January 1996 (wine), Sacovini/M Marrazza v Les fils de Henri

Ramel, CISG-Online 159 (Pace) concerning the sale of chapitalized Italian wine in France; for the
prohibited addition of water see Landgericht Trier (Germany) 12 Ocotober 1995 (wine), CISG-Online 160
(Pace).
197 Audiencia Provincial de Murcia (Spain) 25 May 2012 (red pepper powder), CISG-Online 2463

(Pace) – food with too much colorant.

198 Magnus, in: Honsell, Kommentar (2010), Art. 35 para. 13; Eckert/Maifeld/Matthiessen, Handbuch

des Kaufrechts (2014), para. 559; Bundesgerichtshof (Germany) 2 March 2005 (Belgian frozen pork),
CISG-Online 999 (Pace) at II. 3. d., with critical comment as to the reasoning by Schlechtriem, JZ (2005)
846 (Pace); see also from outside the CISG context – but with a potential influence on the application of
the CISG – European Court of Justice (as it then was) (EU) 5 March 2015, Boston Scientific Medizintech-
nik GmbH v AOK Sachsen-Anhalt – Die Gesundheitskasse et al., Joined Cases C-503/13 and C-504/13
(ECLI:EU:C:2015:148), PharmR 2015, 245 concerning cardiac pacemaker.

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Article 35 106–109 Part III. Chapter II. Obligations of the Seller

106 (iii) Duration. The expectations concerning the ordinary use also extend to the
duration of such use.199
107 The normal qualities of goods necessarily require that they remain in good condition for
a reasonable time after delivery.200 The extent of that period depends on the nature of the
goods and the particularities of the transaction. Professionally designed and manufactured
machinery, e. g. motors for globes used for presentations or large steel presses or other high
value machinery, must normally be suitable for several years of operation provided they
are properly installed and maintained.201 The required duration of proper operation is not
limited to the two-year cut-off period mentioned in Art. 39(2). To that extent, one has to
distinguish between the question of conformity, which may require a proper use for much
more than two years, and whether, for reasons of legal certainty, claims can be brought
after the expiry of two years. Thus, for example, an expensive rail press, which breaks
down three years after delivery due to the use of inappropriate parts in the construction of
the press, may be considered non-conforming in the sense of Art. 35(2)(a) irrespective of
the fact that pursuant to Art. 39(2) no claims could have been brought for such non-
conformity had the seller not known about it (Art. 40).202 Even for perishable goods it can
normally be expected that they remain intact for a sufficient time period necessary for
their anticipated use. For other goods, expectations may be influenced by the price or
statements made during negotiations.203 Thus, where raw material is bought to produce oil
tanks which are supposed to last for 10 years, the polymer delivered is only conforming if
it is capable of being used to produce tanks which last for such a timespan.204
108 (iv) Necessary documentation for assembly and usage. Fitness for an ordinary purpose also
requires that the necessary assembly instructions, operating manuals and other documenta-
tion are provided and do not contain mistakes which prevent the assembly or use of the
goods or lead to defects when followed.205 Sellers which, for justified proprietary reasons,
may not be willing to provide customers with descriptions containing all the details of the
goods, are advised to exclude any liability for all installations not done by themselves, as the
lack of crucial information or warnings may result in the non-conformity of the goods.206
109 (v) Other issues. For certain goods requirements of fitness for ordinary use are
beyond doubt. Thus, medical equipment must be sterile,207 ceramic baking dishes must

199 Magnus, in: Staudinger Kommentar (2013), Art. 35 para. 23; Landgericht München I (Germany)

27 February 2002 (globes), CISG-Online 654 (Pace) – operational lifetime of three years for expensive
globes for use in showrooms of a car rental agency assumed.
200 Eckert/Maifeld/Matthiessen, Handbuch des Kaufrechts (2014), para. 563.
201 Landgericht München I (Germany) 27 February 2002 (globes), CISG-Online 654 (Pace); Arbitral

Award, SCC, Beijing Light Automobile Co. Ltd. v Connell Limited Partnership, 5 June 1998 (rail press),
CISG-Online 379 (PaI cf. s14(2B)(e) UK Sale of Goods Act.
202 Arbitral Award, SCC, Beijing Light Automobile Co. Ltd. v Connell Limited Partnership, 5 June 1998

(rail press), CISG-Online 379 (Pace).

203 Piltz, Internationales Kaufrecht (2008), para. 5–46; Helsinki Court of First Instance (Finland) 11 June

1995, confirmed by Helsinki Court of Appeal (Finland) 30 June 1998 (skin care product), CISG-Online
1304 (Pace) – statement that goods had a 30 month shelf life.
204 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 651 et seq. – (in the context of Art. 35(2)(b)
emphasising that under Art. 35(2) the polymer only had to be capable of being used for such a purpose
but that the buyer bore the risk that the final product would meet the durability requirements).
205 Schwenzer, in: Schlechtriem/Schwenzer, Commentary (2016), Art. 35 para. 54; Magnus, in: Staudin-

ger Kommentar (2013), Art. 35 para. 19.

206 See Arbitral Award, SCC, Beijing Light Automobile Co. Ltd. v Connell Limited Partnership, 5 June

1998 (rail press), CISG-Online 379 (Pace).

207 Obergericht des Kantons Luzern (Switzerland) 8 January 1997 (blood infusion devices), CISG-Online

228 (Pace).

514 Kröll