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Vol 21 No 9 Sept/Oct 2016

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Goode on Commercial Law

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Conformity of Goods and Documents: The Vienna Sales Convention

ISBN13: 9781849461559
Published: March 2015
Publisher: Hart Publishing
Country of Publication: UK
Format: Hardback
Price: £75.00

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This book provides a detailed examination of the issue of conformity of goods and documents under the United Nations Convention on Contracts for the International Sale of Goods 1980 (CISG). This issue lies at the heart of sales law and is one of the most frequently litigated.

The book explores: the Convention's requirements as to quality, quantity, description and packaging of the goods (conformity); the requirements flowing from the need for the goods to be free from rights or claims of third parties; and the questions of what documents the seller must deliver to the buyer and what constitutes a 'good' document under the CISG.

The book engages extensively with a substantial body of cases decided under the CISG and academic commentary. It systematises the Convention's experience to date with a view to turning it into an integrated, comprehensive and distinctive CISG legal regime on conformity of goods and documents.

The analysis is comparative and draws on the experience of some major domestic legal systems, such as English and US law. The focus is both analytical and practical. The book will be of interest to legal practitioners, academic lawyers and students with interest in international and comparative sales, commercial and contract law.

International Trade
1. Introduction ...

I. A Brief Introduction to the CISG
II. The CISG Today and the Purpose and Scope of this Book
III. Rules on Conformity of the Goods: Underlying Considerations
IV. The Seller's Liability and the Buyer's Remedies
V. Conformity of Goods and Documents: Broader Insights into the CISG A. General B. Is the CISG a Well-Developed Sales Law? C. Developing Substantive Content Within a 'Minimalist' Structure D. Is the CISG the Best Law for International Sales? E. Defining the Boundaries of the CISG (i) General (ii) Proof (iii) Validity

2. Contractual Provisions on Conformity of the Goods
I. General
II. Pre-contractual Representations and Conduct A. Puffery and Opinions B. Public Statements C. Direct Communications Between the Parties D. Buyer's Knowledge
III. Post-contractual Statements and Conduct
IV. Description
V. Quality A. Definition B. Various Formulations of Quality Standards C. Industry or Public Law Standards D. Legislative Changes and/or Knowledge Acquired Subsequent to the Contract E. Guarantee and Durability F. Quantity and Packaging

3. Fitness for a Particular Purpose
I. Legal Nature of the Implied Rules on Conformity
II. Fitness for a Particular Purpose: General Considerations
III. Relationship with Article 35(1) CISG
IV. Defining a Particular Purpose
V. Conditions in a Specific Place A. Public Law Regulations B. Industry Standards and Standards Adopted by Private Entities and Trade Associations C. Climatic and Other Conditions
VI. Durability
VII. Making Known
VIII. Reliance on the Seller's Skill and Judgement
IX. Proof A. Burden of Proof B. Standard of Proof C. Admissibility of Evidence

4. Fitness for Ordinary Use
I. General
II. Does Article 35(2)(a) CISG Imply a Certain Level of Quality? A. Does Article 35(2)(a) CISG Require an Inquiry into the Notion of Quality? B. Different Quality Tests: The Debate
III. Ordinary use
IV. Description
V. Durability
VI. Health and Safety
VII. Instructions, Manuals and Labels
VIII. Servicing and Spare Parts
IX. Minor Defects, Appearance and Finish
X. Public Law Regulations A. Informational Asymmetry and Guidelines in New Zealand Mussels B. Imperative of a Case-by-Case Analysis C. Changes to Public Law Regulations and Other Related Changes Subsequent to the Time of Assessing Conformity D. Legal Nature of Public Law Regulations and the Reality of their Enforcement E. Is Article 35(2)(b) CISG Better Suited than Article 35(2)(a) to Deal with the Case of Public Law Regulations?
XI. Proof

5. Conformity with a Sample or Model and Packaging, Exemptions from Liability
I. Conformity with a Sample or Model A. General B. How Far is a Sample or Model Allowed to 'Speak'? C. Relationship with Contractual Provisions and Other Terms Implied under the Convention D. Public Law Regulations E. Proof
II. Packaging A. General B. Usual Manner C. 'Adequate Manner' D. Defective Packaging with Goods being Otherwise Conforming E. Proof
III. Exemptions from Liability A. Buyer's Knowledge (i) General (ii) Actual Knowledge (iii) Implied Knowledge B. Article 39 CISG C. Disclaimers

6. Third Parties' Rights or Claims in Respect of the Goods (Article 41 CISG)
I. General
II. Third Parties' Rights
III. Third Parties' Claims
IV. Relevant Time
V. Freedom of the Goods from a Third Party's Right or Claim
VI. Seller's Rights or Claims
VII. Exemptions A. Buyer's Agreement B. Buyer's Notice C. Exclusion Clause
VIII. Domestic Rules on Validity

7. Third Parties' Rights or Claims Arising from Intellectual Property (Article 42 CISG)
I. General
II. Industrial or Other Intellectual Property
III. Rights or Claims A. General B. Frivolous Claims C. Relevant Time D. Seller's Knowledge
IV. Territorial Restrictions
V. Exemptions from Liability A. Buyer's Knowledge B. Compliance with the Buyer's Specifications C. Other Exemptions
VI. Burden of Proof
VII. Concluding Observations
VIII. Freedom from Third Parties' Rights or Claims: an Aspect of 'Conformity'?

8. Conformity of Documents
I. Introduction
II. Typical Documents: An Overview A. Transport Documents B. Other Documents
III. Conformity of Documents A. Documentary and 'Physical' Obligations B. What Documents Must the Seller Deliver? C. Conformity of Documents (i) Transport Documents: Contractual Requirements (ii) Transport Documents: Contractual Silence (iii) Other Documents
IV. Quality, Quantity, Origin and Other Certificates: Conformity and Beyond A. General B. Conformity C. Finality Clause D. Certificate as Extra-contractual Documentary Evidence
V. Emerging Themes A. Is the CISG a Construction Site for Documentary Duties? B. Assessing Conformity: Face of Documents versus Extrinsic Factual Inquiry C. Attack on Party Autonomy and Legal Certainty D. Documentary Performance and the Future of the CISG