Legal Studies Research Paper Series

Working Paper No. 2012-19

August 2012

Decisions on Conformity of Goods Under

Article 35 of the U.N. Sales Convention (CISG):
The “Mussels Case,” Evidentiary Standards for Lack of
Conformity, and the “Default Rule” vs. “Cumulative”
Views of Implied Conformity Obligations

Harry M. Flechtner

University of Pittsburgh School of Law

3900 Forbes Avenue
Pittsburgh, Pennsylvania 15260-6900

www.law.pitt.edu
412.648.1490
E-mail: flecht@pitt.edu

This paper can be downloaded without charge from the

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 This is a draft. The final version will appear in a forthcoming book in the series International Commerce and Arbitration
(Ingeborg Schwenzer, ed., Eleven Publishing, the Netherlands). When the book becomes available, please cite to that version.
Posted with permissions.

DECISIONS ON CONFORMITY OF GOODS UNDER ARTICLE 35 OF THE U.N. SALES CONVENTION (CISG):
THE “MUSSELS CASE,” EVIDENTIARY STANDARDS FOR LACK OF CONFORMITY, AND
THE “DEFAULT RULE” VS. “CUMULATIVE” VIEWS OF IMPLIED CONFORMITY OBLIGATIONS

By Harry M. Flechtner*

* Professor, University of Pittsburgh School of Law. J.D. 1978, Harvard Law School; M.A. 1975, Harvard
University Graduate School of English and American Language and Literature; A.B. 1973, Harvard
College. I am indebted to the Fulbright Commission and the Austrian-American Education Commission
for the Fulbright grant that supported this research during my semester as a Visiting Professor at the
University of Salzburg (Austria) Faculty of Law from April to July 2012.

I. INTRODUCTION: ARTICLE 35 AND ITS CASE LAW SINCE 2000

In this paper I will discuss the rules on conformity of goods found in article 35 of the U.N.
Convention on Contracts for the International Sale of Goods. Those rules – which define the quality,
description, functionality, features, and capacities of the goods that the seller is obliged to deliver, as
well as their quantity and packaging – address some of the most important and challenging issues that
arise in sales transactions. Article 35 employs three subsections to define the seller’s obligations.
Article 35 (1) establishes the primacy of the parties’ contract and of party autonomy in defining the
seller’s obligations: it provides, “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.” Article 35 (2) describes certain implied conformity obligations relating to the capabilities
and packaging of the goods which bind the seller unless the parties “agree otherwise”: it declares:

Except where the parties have agreed otherwise, the goods do not conform with the
contract unless they:
(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;
(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.

Finally, article 35 (3) provides that a buyer assumes the risk of certain known non-conformities: it
provides, “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.”

The issues addressed in article 35 are central to any regime of sales law, and they are a frequent
source of dispute between buyers and sellers: article 35, along with related articles governing the
buyer’s obligation to examine delivered goods (article 38) and to notify the seller of any claimed lack of

Electronic copy available at: http://ssrn.com/abstract=2121664

conformity (article 39), have been invoked frequently in litigation and applied in a large number of
available decisions. I recently had the opportunity to review cases decided since approximately the year
2000 that have applied article 35. I undertook this review as part of my participation in the project to
update the UNCITRAL Digest of Case Law on the United Nations Convention on Contracts for the
International Sale of Goods.1 Being fundamentally lazy, I would like to take advantage of this bit of
“sunk (research) cost” by discussing in this paper what seem to me notable aspects of and issues raised
by the body of relatively-recent article 35 decisions that I reviewed. The last part of this discussion leads
me to comment on what I see as the overall purpose of the rules in article 35, and on how this purpose
impacts interpretation of the provision.

II. OLD FRIENDS: COMPLIANCE WITH PUBLIC REGULATIONS OF THE BUYER’S JURISDICTION

One notable aspect of the article 35 decisions rendered over the past 12 or so years is the
continued importance of a familiar issue: must the goods that the seller delivers comply with the public
law regulations of the country where the goods would be shipped (usually, the jurisdiction where the
buyer is located) in order to conform to the contract under article 35? This, of course, is an important
and sensitive issue for a regime of international sales law. At least seven reported cases decided since
1999 have addressed this issue,2 and I certainly would expect more in the future.

A closely related phenomenon worth noting in the case law is the continued vitality and
authority of the “New Zealand Mussels Case,” an early (1995) and now very famous decision of the
German Bundesgerichtshof addressing the foregoing issue.3 The Mussels Case held that, absent an
express agreement to the contrary, the seller was as a general rule not obligated to deliver goods that
complied with the public law regulations of the buyer’s jurisdiction even if the goods were shipped to
that jurisdiction and the seller was aware that the buyer intended to resell them there. The
Bundesgerichtshof, however, also posited significant exceptions to the general rule: the goods would
have to meet the requirements of the buyer’s jurisdiction if 1) the seller’s jurisdiction had the same
requirements, or 2) the buyer had informed the seller of the requirements (presumably without
extracting an express commitment that the seller would ship goods that complied) and the buyer relied
1
The updated Digest is now available on the UNCITRAL website as the “2012 Edition” of the Digest. See
http://www.uncitral.org/pdf/english/clout/CISG-digest-2012-e.pdf. A hard-copy version will soon be published as
a special issue of the Journal of Law & Commerce, a publication of my home institution, the University of
Pittsburgh School of Law).
2
High Court of New Zealand, 30 July 2010 (RJ & AM Smallmon v. Transport Sales Limited and Grant Alan Miller),
available on the Internet at http://cisgw3.law.pace.edu/cases/100730n6.html, affirmed on appeal, Court of Appeal
of New Zealand, 22 July 2011 (RJ & AM Smallmon v. Transport Sales Limited and Grant Alan Miller), available on
the Internet at http://cisgw3.law.pace.edu/cases/110722n6.html; Rechtsbank Rotterdam, the Netherlands, 15
October 2008 (Eyroflam S.A. v. P.C.C. Rotterdam B.V.), abstract published in European Journal of Commercial
Contract Law; Oberster Gerichtshof, Austria, 19 April 2007, English translation available on the Internet at
http://cisgw3.law.pace.edu/cases/070419a3.html; Oberster Gerichtshof, Austria, 25 January 2006, CLOUT case No.
752 (frozen pork liver case), English translation available on the Internet at
http://cisgw3.law.pace.edu/cases/060125a3.html; Cour d’appel Versailles, France, 13 October 2005, English
translation available on the Internet at http://cisgw3.law.pace.edu/cases/051013f1.html; Bundesgerichtshof,
Germany, 2 March 2005, CLOUT case No. 774 (frozen pork case), English translation available on the Internet at
http://cisgw3.law.pace.edu/cases/050302g1.html; U.S. District Court, Eastern District of Louisiana, United States,
17 May 1999, CLOUT case No. 418 (Medical Marketing v. Internazionale Medico Scientifica), available on the
Internet at http://cisgw3.law.pace.edu/cases/990517u1.html.
3
Bundesgerichtshof, Germany, 8 March 1995, CLOUT case No. 123, English translation available on the Internet at
http://cisgw3.law.pace.edu/cases/950308g3.html.

Electronic copy available at: http://ssrn.com/abstract=2121664

on the seller’s expertise as provided in article 35 (2)(b). The court also raised the possibility that a seller
would be responsible for supplying goods that met the requirements of the buyer’s jurisdiction if the
seller was on notice of the requirements because of “special circumstances” - e.g., the seller had a
branch in that country, regularly did business there, promoted its products there, or had a long-standing
business relationship with the buyer.

The BGH opinion in the Mussels Case has been criticized by no less an authority than the late,
eminent Peter Schlechtriem.4 Yet its approach continues to be followed; indeed, it is used in all seven of
the post 1999 decisions mentioned above -- sometimes with express citation to the opinion,5 sometimes
through tacit adoption of its approach6. These decisions include opinions from Austria, France, the
Netherlands, New Zealand and the United States, as well as Germany. Why does this early (indeed, now
quite elderly, in CISG terms) opinion, which has generated criticism by very eminent commentators,
continue to wield such authority, even outside the jurisdiction that rendered the decision, and in both
Common Law and Civil Law systems?

My guess is that several factors have contributed to the continued influence, even dominance,
of the Mussels Case in disputes raising the issue whether delivered goods must conform to the public
law regulation of the buyer’s/importing jurisdiction’s public law requirements. First, the opinion was the
product of a high-ranking and respected court (the highest court in Germany with jurisdiction over CISG
disputes), was carefully reasoned, and was not outrageously biased or unfair in its approach. Even
Professor Schlechtriem, in criticizing the court’s approach for allowing sellers too often to escape
responsibility for complying with public law regulations in the buyer’s jurisdiction, characterized the
opinion as of “considerable importance,” and he praised it for “its consideration of a broad spectrum of
German and foreign authorities.” This last point highlights another strength of the Mussels Case
opinion: it appears to approach the issue from an international perspective, and the result does not
appear to evidence any particular “homeward trend,” e.g., toward a typically Civil-Law position. Some
time ago I argued that the single most important factor in determining how much deference a tribunal
should give to a CISG opinion from a foreign tribunal was whether the foreign opinion itself had
complied with the mandate in article 7 (1) CISG to interpret the Convention with regard to its

4
Peter Schlechtriem, Uniform Sales Law in the Decisions of the Bundesgerichtshof, text accompanying notes 83-91,
in 50 YEARS OF THE BUNDESGERICHTSHOF: A CELEBRATION ANTHOLOGY FROM THE ACADEMIC COMMUNITY (2001) (English
translation by Todd J. Fox), available on the Internet at
http://cisgw3.law.pace.edu/cisg/biblio/schlechtriem3.html#iv.
5
See High Court of New Zealand, 30 July 2010 (RJ & AM Smallmon v. Transport Sales Limited and Grant Alan
Miller), available on the Internet at http://cisgw3.law.pace.edu/cases/100730n6.html, affirmed on appeal (also
citing the Mussels case opinion), Court of Appeal of New Zealand, 22 July 2011 (RJ & AM Smallmon v. Transport
Sales Limited and Grant Alan Miller), available on the Internet at
http://cisgw3.law.pace.edu/cases/110722n6.html; Oberster Gerichtshof, Austria, 25 January 2006, CLOUT case No.
752 (frozen pork liver case), English translation available on the Internet at
http://cisgw3.law.pace.edu/cases/060125a3.html (see also Oberster Gerichtshof, Austria, 19 April 2007, English
translation available on the Internet at http://cisgw3.law.pace.edu/cases/070419a3.html, not directly citing
Mussels case opinion but citing 25 January 2005 Oberster Gerichtshof opinion that had cited Mussels case); U.S.
District Court, Eastern District of Louisiana, United States, 17 May 1999, CLOUT case No. 418 (Medical Marketing v.
Internazionale Medico Scientifica), available on the Internet at http://cisgw3.law.pace.edu/cases/990517u1.html.
6
Rechtsbank Rotterdam, the Netherlands, 15 October 2008 (Eyroflam S.A. v. P.C.C. Rotterdam B.V.), abstract
published in European Journal of Commercial Contract Law; Cour d’appel Versailles, France, 13 October 2005,
English translation available on the Internet at http://cisgw3.law.pace.edu/cases/051013f1.html.

3
international character.7 Judged by this criterion, the decision in the Mussels Case scores high,
particularly for an opinion issued so early in the history of the application of the Convention. On this
point, for example, the Mussels case compares very favorably with, e.g., Scafom International BV v.
Lorraine Tubes S.A.S.,8 a recent decision by the Belgian Court of Cassation (again, the highest ranking
court in the jurisdiction) that, in my view, succumbed to the homeward trend by importing into the CISG
Civil-Law style “hardship” doctrine that had been rejected during the drafting of the Convention.9

Another important factor in the continuing authority of the Mussels Case, I believe, is simply the
“leading case” phenomenon. Once a reasonably fair, workable approach has been articulated, and has
begun to be employed as a guide in other decisions, it is only natural for overworked judges and
arbitrators (especially ones concerned that their decisions be upheld) to avoid the difficult and time-
consuming task of contriving their own new approach, even if they might thereby achieve some
improvements in the interpretation of the law. This is, in my view, a quite hopeful phenomenon in the
quest to achieve a reasonably uniform global interpretation of the CISG. The gains for uniform
interpretation of the Convention if tribunals in diverse jurisdictions follow a “leading case” will, I
suspect, often (usually?) outweigh the uncertain benefits of attempts to change and improve the
approach of the leading case. I wish there were more decisions that had achieved “leading opinion”
status on important CISG issues, and thus that could serve as unifying influences on the Convention’s
application. I ardently hope that such an opinion, a reasonably even-handed and workable approach
that reflects an international perspective, will soon emerge to address the issue of when a party’s
standard terms are incorporated into a CISG contract – an issue that, I fear, threatens very damaging
non-uniformity in approaches. I certainly would be willing to accept something less than perfection in a
leading case on this issue in exchange for avoiding the development of entrenched divergent
approaches to the question.10

III. PROOF OF LACK OF CONFORMITY: DRAWING THE LINE BETWEEN ISSUES GOVERNED BY THE
CONVENTION AND ISSUES SUBJECT TO NON-UNIFORM DOMESTIC RULES

The CISG presents many challenges in identifying the issues that it will and will not govern in
transactions to which it applies – i.e., its “scope of application” (to use a useful term and distinction
employed by my good friend Professor Franco Ferrari). The challenges, it seems to me, are particularly

7
Harry M. Flechtner, Recovering Attorneys’ Fees as Damages under the U.N. Sales Convention (CISG): The Role of
Case Law in the New International Commercial Practice, with Comments on Zapata Hermanos v. Hearthside Baking,
22 NORTHWESTERN J. INT’L L. & BUS. 121, 144-45 (2002), available on the Internet at http://www.cisg.law.pace.edu/
cisg/biblio/flechtner4.html#87.
8
Hof van Cassatie, Belgium, 19 June 2009 (Scafom International BV v. Lorraine Tubes S.A.S.), English translation
available on the Internet at http://cisgw3.law.pace.edu/cases/090619b1.html.
9
See Harry M. Flechtner, The Exemption Provisions of the Sales Convention, Including Comments on “Hardship”
Doctrine and the 19 June 2009 Decision of the Belgian Cassation Court, 59 ANNALS OF THE FACULTY OF LAW IN BELGRADE:
BELGRADE LAW REVIEW 84 (2011), available on the Internet in SSRN as University of Pittsburgh Legal Studies Research
Paper No. 2011-09, http://ssrn.com/abstract =1785545; also available at
http://www.ius.bg.ac.rs/Anali/Annals%202011/Annals%202011%20p%20084-101.pdf and at
http://www.cisg.law.pace.edu/cisg/biblio/flechtner10.html.
10
See Harry M. Flechtner, The Globalization of Law as Documented in the Law on International Sales of Goods, in
NIEUW INTERNATIONAAL PRIVAATRECHT: MEER EUROPEES, MEER GLOBAAL 541 (XXXVe Postuniversitaire Cyclus Willy Delva
2008-09) (J. Erauw & P. Taelman, eds.) (Kluwer, 2009), available on the Internet in SSRN as University of Pittsburgh
Legal Studies Research Paper No. 2010-09, http://ssrn.com/abstract=1572917.

4
numerous and difficult for issues on the borderline between substantive sales law and the procedural
rules governing the manner of resolving disputes. For example, for a period of time Professor Joseph
Lookofsky and I created a small scholarly “cottage industry” for ourselves (and made some enemies) by
arguing that the recovery of attorney fees in disputes over transactions governed by the CISG was a
matter not intended to be governed by the Convention because, inter alia, the issue was one that the
CISG drafters likely considered “procedural” and thus beyond the scope of a treaty focused on
substantive sales law.11

Before discussing a particular (and particularly important) scope issue that has arisen in the
recent case law on article 35 I should give the reader a warning: in analyzing the scope of the
Convention, in particular with regard to whether it governs issues that have a procedural aspect, I may
at times (at least) be out of the mainstream of scholarly thought. For example, I continue to believe
that, except in one or two instances where the Convention addresses the issue expressly, questions of
which party bears the burden of proof with respect to elements required by the rules of the CISG should
be governed by the (non-uniform) domestic law of the forum.12 I am likely among the last (if not the
sole surviving) academic defender of that position.13

With that warning in mind concerning my apparently-unusual approach to such issues, let me
proceed to discuss a very thorny scope-boundary question that has arisen in a number of article 35
cases: whether the CISG or non-uniform domestic law governs issues concerning the standard of proof
and the sufficiency of evidence of conformity or lack of conformity of the goods if the sales transaction
underlying the dispute is governed by the Convention. At least one decision has expressly asserted that
non-uniform domestic law governs the question of what constitutes adequate proof that goods were

11
Joseph Lookofsky and Harry Flechtner, Zapata Retold: Attorneys’ Fees Are (Still) Not Governed by the CISG, 26
J.L. & COM. 1 (2006-07), also available at SSRN: http://ssrn.com/abstract=1334299; Joseph Lookofsky and Harry
Flechtner, Viva Zapata! American Procedure and CISG Substance in a U.S. Circuit Court of Appeal, 7 THE VINDOBONA
JOURNAL OF INTERNATIONAL COMMERCIAL LAW AND ARBITRATION 93 (2003), available at SSRN:
http://ssrn.com/abstract=1311456; Harry M. Flechtner, Recovering Attorneys’ Fees as Damages under the U.N.
Sales Convention (CISG): The Role of Case Law in the New International Commercial Practice, with Comments on
Zapata Hermanos v. Hearthside Baking, 22 NORTHWESTERN J. INT’L L. & BUS. 121 (2002), also available at
http://www.cisg.law.pace.edu/ cisg/biblio/flechtner4.html#87. See also John O. HONNOLD AND HARRY M. FLECHTNER,
UNIFORM LAW FOR INTERNATIONAL SALES UNDER THE 1980 UNITED NATIONS CONVENTION § 408 at 578-81 (4th ed., Kluwer Law
International, 2009); Joseph M. Lookofsky, Comments on Zapata Hermanos v. Hearthside Baking [Attorneys fees:
CISG article 74 damages vs. Domestic procedural rules], 6 THE VINDOBONA JOURNAL OF INTERNATIONAL COMMERCIAL LAW
AND ARBITRATION 27 (2002).
12
John O. HONNOLD AND HARRY M. FLECHTNER, UNIFORM LAW FOR INTERNATIONAL SALES UNDER THE 1980 UNITED NATIONS
CONVENTION § 70.1 at 86-92 (4th ed., Kluwer Law International, 2009); Harry M. Flechtner, Moving Through
Tradition Towards Universalism under the U.N. Sales Convention (CISG): Notice of Lack of Conformity (Article 39)
and Burden of Proof in the Bundesgerichtshof Opinion of 30 June 2004, in LIBER MEMORIALIS PROFESSOR PETAR ŠARČEVIĆ
(J. Erauw, V. Tomljenović & P. Volken, eds., 2006); Harry M. Flechtner, Selected Issues Relating to the CISG’s Scope
of Application, 13 THE VINDOBONA JOURNAL OF INTERNATIONAL COMMERCIAL LAW AND ARBITRATION 91, 101-105 (2009),
available online in SSRN as University of Pittsburgh Legal Studies Research Paper No. 2009-29,
http://ssrn.com/abstract=1487678. However, I would be willing to give up the point in the name of uniformity in
the interpretation of the Convention. Id. at 106.
13
CISG case appears decidedly ambiguous on what law governs burden of proof issues. See UNCITRAL Digest of
Case Law on the United Nations Convention on Contracts for the International Sale of Goods, 2012 edition, Article
35 ¶ 17, available on the Internet at http://www.uncitral.org/pdf/english/clout/CISG-digest-2012-e.pdf.

5
non-conforming under article 35.14 Another decision impliedly indicated the same conclusion when it
rejected a buyer’s proffer of expert opinion that the goods lacked conformity because, under the
jurisdiction’s procedural rules, only a court-appointed expert could offer such an opinion.15 On the
other hand, commentators have argued that the issue of the method of proof required to establish a
lack of conformity is governed by the CISG.16 A U.S. Court of Appeals case decided in 2002 – Schmitz-
Werke GmbH & Co. v. Rockland Industries, Inc.17 – illustrates, I believe, the challenges presented by this
issue.

In Schmitz-Werke, a U.S. seller sold a newly-designed type of fabric (which the seller had named
“Trevira”) to a German maker of printed decorative textiles. During negotiations for the sale the seller
had indicated to the buyer that the fabric was particularly well-suited for “transfer printing,” a process
that the buyer intended to use to place colors and designs on the goods. The Trevira fabric that the
seller delivered, however, failed to produce acceptable results when used as a base for transfer-printing.
After working unsuccessfully with seller to correct the problems, the buyer sued the seller in U.S. federal
district court, claiming that the goods seller had delivered were non-conforming under article 35 (2)(b)
because they were not fit for the particular purpose (use as base fabric for transfer printing) that the
buyer had conveyed to the seller before the contract was concluded. During the non-jury trial, the
buyer presented evidence that the transfer printing process used on the Trevira was “ordinary and
competent,” and that the results did not meet industry standards. The trial judge issued a judgment in
the buyer’s favor. The seller appealed, arguing that the buyer’s proof of lack of conformity was
inadequate because the buyer had not presented expert testimony identifying the particular defect in
the fabric that prevented it from working properly with transfer printing.

The issue before the appeals court was whether, under applicable law, a buyer who claimed that
the goods lacked conformity under CISG article 35 had to present expert testimony identifying the
defect in the goods, or whether proof that the goods did not perform as “warranted” (to use the
common law term) was sufficient. The seller argued that the question was governed by the (domestic)
rules on adequacy of proof of the state of Maryland (which both parties agreed applied to questions not
addressed in the CISG), and that under those rules expert testimony identifying the defect in the goods
was required. The court recognized that a preliminary question was whether the CISG itself governed
the question of adequate proof of lack of conformity:

The parties agree that private international law would apply the choice of law rules of
the forum state (Maryland), which in this case would choose to apply the law of the
Contracting State. See Guiness PLC v. Ward, 955 F.2d 875, 898 n.13 (4th Cir. 1992).

14
Cámara Nacional de Apelaciones en lo Comercial de Buenos Aires, Argentina, 21 July 2002, CLOUT case No. 636
(Cervecería y Malteria Paysandú S.A. v. Cervecería Argentina S.A.), English translation available on the Internet at
http://cisgw3.law.pace.edu/cases/020721a1.html.
15
Tribunale de Vigevano, Italy, 12 July 2000 (Rheinland Versicherungen v. S.r.l. Atlarex and Allianz Subalpina
S.p.A.), CLOUT case No. 378, English translation available on the Internet at
http://cisgw3.law.pace.edu/cases/000712i3.html.
16
Larry A. DiMatteo, Lucien Dhooge,Stephanie Greene, Virginia Maurer and Marisa Pagnattaro, The Interpretative
Turn in International Sales Law: An Analysis of 15 Years of CISG Jurisprudence, 34 NORTHWESTERN JOURNAL OF
INTERNATIONAL LAW AND BUSINESS, 299, 438 (2004) (“Given Article 35's warranty coverage, the issue of how a party
proves non-conformity is within the scope of the CISG”).
17
U.S. Court of Appeals for the Fourth Circuit, United States, 21 June 2002 (Schmitz-Werke GmbH & Co. v.
Rockland Industries, Inc., 37 Fed. Appx. 687 (4th Cir. 2002), available on the Internet at
http://cisgw3.law.pace.edu/cases/020621u1.html.

6
 However, a court should only reach private international law if the CISG's text,
interpreted in conformity with the general principles on which the CISG is based, does
not settle the issue at hand [citing CISG article 7(2)]. [Buyer] agrees that Maryland law
applies to issues on which the CISG is silent, but notes that Maryland law should not be
reached unless the CISG fails to provide a resolution of the issue.18

*****

Having raised the issue of whether the CISG or non-uniform domestic law supplied the
standards of proof of lack of conformity, the court finessed the question. After asserting that “[t]he text
of the CISG is silent on this matter” – certainly an accurate statement – the court stated:

Under either the CISG or Maryland law, [the buyer] may prevail on a claim that the
fabric was unfit for the purpose for which it was expressly warranted (transfer printing)
by showing that when the fabric was properly used for the purpose [the seller]
warranted, the results were shoddy – even if [the buyer] has introduced no evidence as
to just why or how the fabric was unfit. [The buyer] has shown that the fabric was
defective – the fabric's defect was that it was unfit for transfer printing. 19

In short, the court apparently found that it made no difference whether domestic (non-uniform)
Maryland state standards or CISG proof principles applied: under either approach, the buyer was not
required to submit expert testimony identifying the specific defect in the goods that caused the
problems.

Logically, the court’s statement suggests that it must have found a CISG general principle that
resolved the issue the same way as did Maryland law. Whether the court actually analyzed the question
in this manner, however, is profoundly unclear, since the court never identified any such general
principle. A more-reliable implication derived from the analysis in Schmitz-Werke is that, because the
court applied CISG article 7 (2) to the question of the standards for adequate proof of lack of conformity,
it must have viewed the question as one “governed by” (although not expressly settled in) the CISG.

I myself remain somewhat uncertain whether CISG general principles or applicable (non-
uniform) domestic law should govern evidentiary and proof issues like those confronted in Schmitz-
Werke. I currently tend toward the view that these matters are generally outside the scope of the
Convention; thus I may find myself in disagreement with distinguished commentators.20 Of course there
is no doubt that applying non-uniform rules to govern the standards and methods for proving lack of
conformity under CISG article 35 will produce non-uniform results when applying the provision: proof
that would be adequate to establish non-conformity in some jurisdictions will, obviously, be inadequate
in others. This will undeniably undercut some of the advantages of the regime of uniform law. On the
other hand, attempting to tease uniform rules for these kinds of issues out of the text of the Convention
– which never comes close to addressing them expressly, and whose travaux préparatoires reveal no
attempt by the drafters to consider them – may well be unwise, and certainly is politically dangerous for
the movement for uniform international commercial law. Of course identifying general principles of the
Convention that might resolve such issues is not impossible, particularly for my Civil-Law-trained friends

18
Id. at 37 Fed. Appx. 691.
19
Id. at 37 Fed. Appx. 692.
20
DiMatteo et. al, The Interpretative Turn in International Sales Law, supra note 16, at 397-98.

7
who are so necessarily adept at finding all answers to all issues within the text of a law. Let me explain
why I think that exercise would not be a good idea for the kinds of issues under discussion here.

Proof standards and evidentiary rules are generally embedded in and contoured to the
particular dispute resolution procedures for which they were developed. I have previously made a
similar point in my lonely attempt to argue that the question of who bears the burden of proof with
respect to provisions of the CISG should generally be deemed a matter beyond the scope of the
Convention, and should be left to applicable (non-uniform) domestic law or arbitration rules.21 I
illustrated the point using the “Beweissnahe” burden of proof principle, under which the party who
bears the burden can be changed based on who has superior access to the relevant evidence. The
Bundesgerichtshof applied the Beweissnahe principle in a CISG case, reasoning that burden of proof was
a matter governed by but (in the instance before the court) not expressly settled in the Convention and
thus subject to the gap-filling procedure of CISG article 7 (2); it thus may have applied Beweissnahe as
an approach mandated by the general principles of the Convention. The apparently-sensible
Beweissnahe principle does not in fact work well in a procedural system like that of the United States,
where one party’s control over relevant evidence is addressed through a pre-trial discovery process
rather than (generally) through a shift of the burden of proof. If the Bundesgerichtshof did indeed
properly apply Beweissnahe as a matter of the general principles of the CISG pursuant to CISG article 7
(2), however, U.S. courts (and all other courts around the world) would of course be treaty-bound to
apply it in CISG cases, no matter how inappropriate, cumbersome or even perverse that might prove.

If proof standards and evidentiary rules for determining conformity of goods are matters
governed by the CISG, despite the lack of express rules in the Convention for these topics, they would
constitute gaps that, under CISG article 7 (2), must be filled, if possible, by reference to the Convention’s
general principles. If applicable general principles were “discovered” in the CISG, they would have to
produce proof standards and evidentiary rules that would work well in the procedural system of every
Contracting State to the Convention. It is hard to imagine what standards and rules would be equally be
appropriate for a system like that in the United States, which often relies on lay juries to determine the
relevant facts in commercial disputes, and those of systems that employ professionals with legal training
for this purpose. Evidentiary rules in the United States are designed for a jury system, and in fact are
often shaped to allow judges significant control over the deliberation and findings of juries. It would be
wonderful if there were a single set of proof standards and evidentiary rules that would work equally
well in every system around the globe, but that would require a uniform global procedural system. As
much as it might be desired, no such universal procedural system exists or is in the offing.

An attempt to extract from the CISG itself the standards of proof and the evidentiary rules for
determining whether goods were conforming could well lead to an unseemly rush by the various
Contracting States to “derive” rules that worked well in their systems. Early decisions would,
theoretically, “discover” in the CISG text (based on nothing express or very clear in the Convention)
universal uniform evidentiary standards and rules for the CISG world that would just happen to work
well under the procedural system familiar to the tribunal – a particularly insidious (and, I would guess,
usually unconscious) form of the “homeward trend” because it cloaks itself in the mantle of the
uniformity principle as its justification. Creating this incentive toward the homeward trend would hardly
be a benefit to the CISG or its goal of uniformity. Early decisions would attempt to establish proof
standards and evidentiary rules as the single, global, uniform rules of the CISG on these matters. If
allegedly global uniform evidentiary standards and rules established in earlier decisions do not work well

21
Flechtner, Selected Issues Relating to the CISG’s Scope of Application, supra note 12, at 101-105.

8
in the procedural systems of tribunals from late-arriving jurisdictions, the belated tribunals face only bad
choices: follow the established rules, reach bad results, and conclude (with some justification) that the
CISG is bad law; or ignore the prior rulings and rip the fabric of uniformity that the CISG is supposed to
create.

Contracting States that agreed to a Convention that does not expressly address evidentiary
standards and rules, finding themselves (allegedly) treaty-bound to apply rules inappropriate for their
domestic procedural systems, will no doubt resent it, and may well begin to distrust the movement that
produced the situation. Creating the advantages of an expanded system of uniform law by imposing
extra costs on some of the participants is not, as economists would say, a Pareto Optimal outcome:
when those participants are sovereign states whose future cooperation is needed if the movement
toward uniform international rules is to continue, the process becomes self-defeating.

The bottom line is that, at least in my tentative view, treating the standards and evidentiary
rules for proving lack of conformity under CISG article 35 as a matter governed by the Convention is
neither justified nor wise. It would have been wonderful if those who drafted the Convention could
have successfully unified the procedure for resolving factual issues that arise when the CISG applies, but
they did not and, no doubt, could not. Creating globally-uniform procedures for resolving commercial
law disputes would have required another, no doubt larger and more challenging project. Attempting to
stretch the CISG text that was actually approved by the drafters and accepted by the Contracting States
to accomplish this task is likely to produce results at odds with the purposes of the CISG, and could well
be harmful to the political process that produced the Convention.

IV. THE “CUMULATIVE” VS. “DEFAULT RULE” VIEWS OF ARTICLE 35 (2), WITH OBSERVATIONS
ON THE NATURE AND PURPOSE OF ARTICLE 35

There are, of course, many other important and interesting article 35 issues reflected in
decisions issued since 2000. One of the most interesting, in my view, is the question whether an express
article 35 (1) agreement by the parties relating to conformity of the goods automatically displaces the
implied conformity obligations described in article 35 (2). The issue, in other words, is whether such an
express agreement always (or at least generally) should be deemed an implied “agreement otherwise”
for purposes of article 35 (2), or whether, alternatively, the implied article 35 (2) obligations should
continue to apply, even if the parties have an express agreement on conformity, absent an “affirmative”
(although not necessarily express) agreement to derogate from the provisions of article 35 (2). The
former position reflects the view that article 35 (2) represents a “default rule” that is to apply only if the
parties fail to address the question of conformity in their agreement. The latter position, in contrast,
views the obligations described in article 35 (2) as “cumulative” with express agreements concerning
conformity, except to the extent that the parties either expressly disclaimed the implied obligations or
the implied obligations are incompatible with the express agreement. The “cumulative” view, in other
words, excludes the implied obligations in article 35 (2) only if the parties have not only a contractual
agreement on conformity, but also a distinct (although, again, not necessarily express) agreement to
exclude the article 35 (2) obligation.

There is support for both positions in case law under article 35.22 Different approaches to this
important issue threaten a serious breach of the goal of uniformity on a vital matter. I have discussed

22
See UNCITRAL Digest of Case Law on the United Nations Convention on Contracts for the International Sale of
Goods, 2012 edition, Article 35 ¶ 5, available on the Internet at http://www.uncitral.org/pdf/english/clout/CISG-

9
this issue elsewhere, arguing in favor of the “cumulative” view of article 35 (2) obligations,23 but I would
like here to add some further thoughts on the matter. As I pointed out in my earlier discussion, I believe
the text of article 35 (2) supports the “cumulative” approach rather than the default rule approach. I
now want to explore some observations on the nature and purpose of article 35 which, I believe, also
point to the same conclusion – i.e., the conclusion that the mere fact the parties have an express
agreement concerning conformity of goods should not be considered an agreement to exclude the
seller’s implied obligations under article 35 (2) unless the express agreement conflicts with or is
otherwise incompatible with those implied obligations.

My basic observation on article 35 merely states the obvious: the provision’s main purpose is to
identify the normal or reasonable expectations of the buyer concerning the quantity, quality, description
and packaging of the goods it has contracted to purchase, and thus the reasonable expectations of the
seller concerning what goods it is obliged to deliver. The buyer’s expectations may derive from the
parties’ contract (article 35 (1)); or they may be implied by the situation or the actions of the parties
(article 35 (2)), subject to the buyer’s knowledge of the condition and features of the goods when the
contract was concluded (article 35 (3)). The quality standards stated in article 35 are certainly not
“regulatory” in nature – i.e., they do not express society’s minimum quality standards for goods being
sold – because the standards are within the control of the parties through their agreement.

The article 35 (2) obligations can be divided into two groups; this categorization, I believe, is
useful for discussing the “default rule” vs. “cumulative” approach. article 35 (2)(a) (which requires that
the seller deliver goods “fit for the purposes for which goods of the same description would ordinarily
be used”) and article 35 (2)(d) (which requires that the seller delivers goods “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”) state obligations that arise in every transaction governed by the CISG, unless
excluded by the parties’ agreement. I label the obligations stated in these two provisions “general
implied conformity obligations.” The obligations in article 35 (2)(b) and (c), on the other hand, do not
arise in every CISG transaction, even where the parties have not agreed to exclude them. Both of these
provisions state obligations that apply only if special facts, in addition to the fact that the transaction is
governed by the CISG, are present. Thus the obligation in article 35 (2)(b), which requires that the seller
deliver goods fit for a “particular purpose,” arises only if the following special circumstances are present:
1) the particular purpose was “expressly or impliedly made known to the seller at the time of the
conclusion of the contract,” and (2) the buyer reasonably relied on the seller’s skill and judgment.24
Article 35 (2)(c), which requires that the seller deliver goods that possess the qualities of goods which
the seller has held out to the buyer as a sample or model,” applies only if the seller in fact held out to
the buyer a sample or model of the goods. I label the obligation in article 35 (2)(b) and (c) “special
implied conformity obligations.”

digest-2012-e.pdf. I discuss this case law in Harry M. Flechtner, Excluding CISG Article 35(2) Quality Obligations:
The “Default Rule” View vs. the “Cumulation” View, in INTERNATIONAL ARBITRATION AND INTERNATIONAL COMMERCIAL LAW:
SYNERGY, CONVERGENCE AND EVOLUTION (LIBER AMICORUM IN HONOR OF PROFESSOR ERIC BERGSTEN) 571, 573-76 & 579-80
(Kluwer Law International, 2011).
23
Flechtner, Excluding CISG Article 35(2) Quality Obligations, supra note 22, at 571-84.
24
The reliance element in article 35 (2)(b) is phrased as an exception and in the negative – i.e., if a particular
purpose was conveyed to seller by the time the contract was concluded, the seller is obligated to deliver goods fit
for that particular purpose “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.” I have suggested elsewhere that this phrasing
may have been intended to cast the burden of proving a buyer’s lack of reliance on the seller. Flechtner, Moving
Through Tradition Towards Universalism, supra note 12, at p. 467 n. 33.

10
 Analyzing the “default rule” vs. “cumulative” views with reference to the distinction between
“general” and “special” implied conformity obligations helps bring the issue into focus. The general
implied conformity obligations in article 35 (2)(a) and (d) appear to express what the drafters considered
a buyer’s normal, unspoken quality expectations that arise automatically in every international sales
transactions, subject to the parties’ contrary agreement. Except in unusual circumstances, and even
without bargaining for it specifically, a buyer normally expects to receive goods that at least can be used
for the usual functions of the type of goods involved – a car that runs and is adequate for normal
transportation, an office computer that can operate standard office software, wheat that can be used in
the food products associated with that type of wheat, etc. . . . In other words, one of a buyer’s most
basic expectations, even if not articulated in the parties’ agreement, is that the goods will be “fit for the
purposes for which goods of the same description would ordinarily be used” as provided in article 35
(2)(a). Similarly, even without an express commitment from the seller on this point, a buyer normally
and reasonably expects that the goods will be 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,” as provided in
article 35 (2)(d). These standards are, of course, necessarily vague in order to be appropriate for the
extraordinary diversity of goods involved in international trade, and this vagueness may lead to disputes
as to their meaning in particular circumstances. That, however, in no way contradicts the fact that these
standards express the most basic and normal buyer expectations, even if those expectations are never
articulated in the contract of sale.

It seems to me very strange to conclude – as the “default rule” approach to article 35 (2) does –
that because the parties have reached an express agreement concerning conformity, the buyer’s basic
and normal expectations expressed in article 35 (2)(a) and (d) have disappeared, even though the
parties never affirmatively agreed that they were contracting out of those provisions. The default rule
approach would make any express agreement concerning conformity of the goods very dangerous for
buyers: the express agreement would strip the buyer of the right to receive goods fit for their ordinary
purposes or that were adequately packaged, and leave the buyer with only the right to goods that
conformed to the express agreement. Under this approach, a buyer who makes an express agreement
concerning quality may well, inadvertently, give up far more than it receives. In fact, the default rule
approach turns the implied obligation approach of article 35 (2) almost into its opposite: if the parties
have an express agreement concerning conformity, the parties would have to affirmatively agree to the
standards of article 35 (2)(a) and (d) in order to preserve their protections. None of this makes much
sense to me.

The flaws in the default rule approach appear even more vivid when that view is applied to the
special implied conformity obligations described in article 35 (2)(b) and (c). As noted earlier, these
obligations arise only if there are special circumstances not present in all (or perhaps even in many) CISG
transactions. Article 35 (2)(b) requires the seller to deliver goods fit for a buyer’s particular purposes
(even if that purpose is not an ordinary one), but only if the seller was apprised of that particular
purpose by the time the contract was concluded and only if the buyer reasonably relied on the seller’s
skill and judgment.25 Article 35 (2)(c) requires a seller to deliver goods with the qualities of other goods,
but only if the seller has held out those other goods as “a sample or model.” These provisions, like those
describing the seller’s general implied quality obligations, express a buyer’s reasonable unspoken
expectations concerning the quality of goods it will receive. Where article 35 (2)(b) or (c) apply,

25
For comments on the special wording of the article 35 (2)(b) reliance element and its significance in connection
with evidentiary burdens see note 24 supra.

11
however, the buyer’s expectations are not of the general sort that arise in every sales transaction
(unless the buyer agrees to forego those expectations); rather, the implied buyer expectations captured
in article 35 (2)(b) and (c) derive from the facts of the particular transaction. Specifically, the buyer
expectations behind the special implied conformity obligations derive from certain special kinds of
interactions between the parties – i.e., the buyer informing the seller of a particular use intended for the
goods and then relying on the seller’s skill and judgment to provide goods suitable for that purpose, or
the seller showing the buyer a sample or model of the goods being sold. The special expectations
created by these special interactions are likely even stronger than the general quality expectations
present in the generality of sales transactions.

And yet the default rule approach would say that the buyer has lost the reasonable expectations
created by these special interactions just because the buyer entered into an express agreement
concerning the quality of the goods, even though that express agreement was consistent with the
implied obligations and the parties did not affirmatively agree to exclude the article 35 (2) obligations.
How such an express agreement obviates the expectations created by a seller’s display of a sample or
model of the goods, or the expectations produced when a buyer describes a specific use intended for
the goods and then relies on the seller to provide suitable goods, is quite beyond me.26 The “default
rule” approach, again, makes any express agreement concerning the quality of goods extremely
dangerous for the buyer: it will result in the buyer losing inadvertently – i.e., with no discernible distinct
agreement to do so – protection for the strong expectations described in article 35 (2)(b) and (c).

I have described the alternative (and, in my view, clearly superior) “cumulative” approach
elsewhere,27 and I refer the reader who desires more information (at this point, that would have to be
an extraordinarily patient reader) to that discussion. In that other discussion I point out that U.S.
domestic sales law expressly adopts, in § 2-317 of the U.C.C., the “cumulative” view.28 I might therefore
be accused of the succumbing to the “homeward trend.” I certainly hope I have not. I favor the
cumulative view not because it is the approach with which I am familiar from domestic law, but rather (I
hope) for the same reasons that led the drafters of the U.C.C. to adopt it: it best captures the
reasonable expectations of a buyer that has entered into an express agreement concerning the quality
of goods being purchased, but who has not agreed to give up the implied quality protections provided
by sales law.

An older U.S. case decided under Article 2 of the U.C.C. – The Singer Co. v. E.I. Du Pont de
Nemours Co.29— illustrates the logic of the cumulative view nicely. The buyer in that case planned to
install a new electro-deposition painting system in its factory, and it approached the seller to supply
paint for the system. The parties entered into a written contract for the sale of paint that the seller
recommended; the contract included detailed technical specifications that the paint would have to
meet, but it did not include an agreement to disclaim implied quality obligations. The seller delivered
paint that met the technical specifications but that would not perform properly in an electro-deposition
system. The court concluded that the technical specifications created an express warranty under U.C.C.

26
Of course an express agreement concerning quality may suggest that the buyer did not rely on the seller’s skill
and judgment to provide goods fit for a particular purpose, but in that case article 35 (2)(b) would not apply by its
own terms; the result on those facts is the same under any approach to article 35.
27
Flechtner, Excluding CISG Article 35(2) Quality Obligations, supra note 22, at 571-84.
28
Id. at 578.
29 th
U.S. Court of Appeals for the 8 Circuit, United States, 6 June 1978 (The Singer Co. v. E.I. Du Pont de Nemours
Co., 579 F.2d 433).

12
§ 2-313 (the equivalent of an express agreement on conformity as provided for in CISG article 35 (1)),
but that this warranty had not been breached. The court found, however, that the facts also met the
requirements for an implied warranty of fitness for particular purpose under U.C.C. § 2-315 (a warranty
closely parallel to the implied obligation of fitness for particular purpose under CISG article 35 (2)(b)),
and that the seller had breached this warranty by delivering paint that was not fit for use in an electro-
deposition system. The seller had argued that the parties’ express warranty precluded the buyer’s
implied warranty claim – i.e., the seller in essence argued the “default rule” view:

[The seller] contends that parties who have an express warranty regarding a contracted
for item cannot also have an implied warranty of fitness for that same item. The
warranty of fitness for a specific purpose is alleged to have been limited by expressly
defining it in a set of specifications, and [the seller] claims that to find otherwise would
permit [the buyer] to escape the parties’ true contractual bargain.30

The court, however, rejected this argument by following the “cumulative view” in the absence of a
distinct agreement to exclude the seller’s U.C.C. § 2-315 implied quality obligation:

In this instance, the buyer approached the seller describing the results desired and the
seller professed to be able to supply it, thereby inducing a reliance that created the
possibility of an implied warranty of fitness. Notwithstanding the express warranty
contained within the specifications particularly defining and describing the item to be
supplied, there may have been a further warranty that an item with those specifications
would accomplish certain results or be adequate for the specified purpose. 31

The court, it seems to me, got it right: a buyer that has agreed to express quality specifications does not
thereby automatically lose the reasonable expectations captured by the U.C.C. implied warranty
provisions and the implied quality standards in CISG article 35 (2). Those implied quality obligations
describe reasonable quality expectations that are usually unspoken, but that can and do co-exist with
quality standards articulated in the parties’ express agreement. The implied quality standards are not
“default rules” that become inapplicable if the parties have an express agreement on quality. They are
obligations that do not need to be expressly articulated in order to apply, and they are cumulative with
the parties’ express agreements concerning quality (at least to the extent the express and implied
quality obligations are compatible) unless the parties have a further agreement to exclude them.

V. CONCLUSION

The decisions applying CISG article 35 that have appeared since the year 2000 reflect the
challenges of the crucial matters addressed in the provision. Those decisions raise extremely complex
issues. Some issues focus on the proper interpretation of article 35 itself – e.g., should the implied
quality obligations in article 35 (2) be treated as “default rules” that are displaced if the parties have
reached an express agreement on conformity of the goods, even if that agreement did not otherwise
affirmatively derogate from the provisions of article 35 (2), or should the article 35 (2) obligations be
assumed to survive and be cumulative with the obligations created by the parties express agreement on
conformity unless there was a further distinct agreement to eliminate the implied obligations? The
article 35 decisions also raise important questions about the scope of the Convention – e.g., should the

30
Id. at 437.
31
Id at 439.

13
evidentiary standards and methods of required proof used in disputes over conformity of delivered
goods under article 35 be derived from the CISG itself, or from applicable (non-uniform) procedural law?

The decisions also include hopeful signs about the development of a true, vigorous
international legal system relating to the Convention – e.g., the evolution of the Bundesgerichtshof’s
“Mussels Case” decisions into a “leading case” supporting a uniform international approach to the
question of a seller’s obligation to deliver goods that comply with public law requirements in the buyer’s
jurisdiction. Indeed, the research resources that made it possible for me to identify and discuss these
matters (including the newly-available 2012 edition of the UNCITRAL Digest of Case Law on the United
Nations Convention on Contracts for the International Sale of Goods that) suggest that the process of
creating the necessary foundations for such a system – including a largely web-based research
infrastructure supporting efforts to interpret the Convention autonomously and from an international
perspective – continues to move forward.
__________

14