1. International Commercial Law – the CISG
Prof. Giorgio F. COLOMBO

2. Obligations of the Seller
Lesson n. 8

3. Obligations of the Seller
Art. 30 CISG
The seller must deliver the goods, hand over any document relating to them and transfer the property in the goods, as required by the contract and this Convention

4. Delivery
«Delivery» means the obligation of giving the Buyer the means of taking possession of the goods
The actual completion of performance, whereby the Buyer takes over possession of the goods is not part of the notion of «delivery»
Mora credendi

5. INCOTERMS
EXW
The Seller must leave the goods for the Buyer to collect
FOB
The Seller must place the goods to the vessel nominated by the Buyer
DAT
The Seller must unload the goods and put them at the disposal of the Buyer

6. Hand over documents; transfer the property
Documents are very important
Identification
Tax
Import/export
The transfer of property itself is not regulated by the CISG
Applicable law
Moment in which the property is transferred

7. Delivery
Art. 31 CISG tells what happens if the delivery is not specifically regulated
Art. 32 CISG covers aspects relating to handing over of goods, transport, insurance

8. Time of Delivery Art. 33 CISG The seller must deliver the goods
(a) if a date is fixed by or determinable by the contract, on that date;
(b) if a period of time is is fixed by or determinable by the contract, at any time within that period unless circumstances indicate that the buyer is to choose a date; or
(c) in any other case, within a reasonable time after the conclusion of the contract

9. Time of Delivery
The CISG, as always, gives priority to the parties’ agreement
Sometimes external factors are relevant for the determination of time (e.g. After a fair; in time for the new season, etc.)
Only when it is not possible to determine the parties’ agreement, the CISG steps in – with Art. 33(c)

10. Examples
A Spanish Buyer purchases from a French Seller a number of lots of textile dyes
Many deliveries occur without problems. The Seller usually delivers after 10 days from the order
On December 18, the Buyer places a big order. The Seller does not deliver the goods before January 7
The Buyer refuses to pay because it says that the delivery was unreasonably late
The Seller maintains that both in France and in Spain Christmas season is holiday, so the delivery time is reasonable

11. Examples
In January 1997, a German Buyer and a Danish Seller concluded a contract for the sale of a car.
The Buyer asked the car to be delivered by March The Seller said it could deliver the car by April The parties did not discuss the matter in any further detail
In mid-March, the Buyer warned the Seller that it would declare the contract avoided if the car was not delivered by the end of the month

12. Examples
In April 1997, the Seller informed the Buyer that the car was ready for delivery
The Buyer refused to accept the delivery because it had, in its view, declared the contract avoided at the end of March

13. Conformity of the Goods
Art. 35
(1) The seller must deliver goods which are of the quantity, quality and description required by the contract and which are contained or packaged in the manner required by the contract
(2) Except where the parties have agreed otherwise, the goods do not conform with the contract unless they:

14. Conformity of the Goods
(a) are fit for the purposes for which goods of the same description would ordinarily be used;
(b) are fit for any particular purpose expressly or impliedly made known to the seller at the time of the conclusion of the contract, except where the circumstances show that the buyer did not rely, or that it was unreasonable for him to rely, on the seller’s skill and judgement;

15. Conformity of the Goods
(c) possess the qualities of goods which the seller has held out to the buyer as a sample or model;
(d) are contained or packaged in the manner usual for such goods or, where there is no such manner, in a manner adequate to preserve and protect the goods.

16. Conformity of the Goods
(3) The seller is not liable under subparagraphs (a) to (d) of the preceding paragraph for any lack of conformity of the goods if, at the time of the conclusion of the contract, the buyer knew or could not have been unaware of such lack of conformity.

17. Conformity of the Goods
As always, contract comes first – Art. 35(1)
However, the CISG specifies a series of presumptions to protect careless buyers
The limit of those presumptions, however, is as usual consituted by knowledge or acknowledgment
E.g. Resale of defective goods

18. Conformity of the Goods
Art. 35(2)(a) – fitness for purpose, average quality
Art. 35(2)(b) – fitness for specific purpose
Art. 35(2)(c) – conform to the sample
Art. 35(2)(d) – proper packaging

19. Examples
A Belgian Buyer purchases from a German Seller 150 tons of barley
The contract says that «the goods will meet the requirements under Regulation EC 2092/91 on organic production of agricultural products, state of origin Germany»
The Seller receives the barley, but a significant part of it is from the Netherlands
The Seller does not provide organic certifications