When you enter into international sales agreements as an entrepreneur, it is unfortunately possible that the goods delivered do not meet the agreement. For example, because they are damaged or incomplete or deviate from what was agreed. What are your rights in such cases? And what rules apply when you and the supplier are based in different countries?
In such cases, CISG often applies. This international convention regulates the rights and obligations of buyers and sellers in cross-border sales of movable goods, such as appliances, furniture, and other movable goods. An important part of the convention is the concept of non-conformity: the situation in which the goods delivered do not comply with the agreement.
According to Article 35(1) of the CISG, the delivered goods must comply with the express and implied requirements agreed in the contract. When assessing whether a product complies with the contract, not only the quality, description, and quantity are taken into account, but also other (legal) requirements that apply to the product. These include, for example, safety standards or inspection rules.
Article 35(2) of the CISG provides further criteria for assessing when goods are non-conform.
- Goods must be suitable for the purposes for which goods of the same description would normally be used. If the requirements for normal use differ from country to country, the first thing to consider is what constitutes normal use in the seller’s country.
- Goods must be suitable for a particular purpose if the buyer made the intended special use clear to the seller at the time of concluding the agreement. This does not have to have been done explicitly: it is sufficient that a reasonable seller would have understood what the special use entailed under the circumstances. This rule is not applicable if it is apparent from the circumstances that the buyer did not or could not reasonably be expected to rely on the skill and judgment of the seller
- If the seller shows a sample or model, the goods to be delivered must possess the qualities of the sample or model. This is different in the case of a sample shown on a non-binding basis: in principle, this does not bind the seller.
- Goods must be contained or packaged in the usual manner. What ‘usual’ is, is generally determined by commercial practice. If the packaging does not comply with the agreement and the goods are damaged during transport as a result, the seller is liable. This is also the case if, for example, the seller has loaded or placed the goods incorrectly in a container.
Buyers’s obligation to investigate
In principle, the buyer has a duty to investigate. This applies, for example, to the quality of a sample. In the case of unique goods, the buyer cannot be expected to carry out extensive investigations. The buyer also has no duty to investigate if the seller has guaranteed certain characteristics.
If you are dealing with a cross‑border delivery issue, Amice Advocaten in Utrecht is ready to help you assess your position and assist you in resolving disputes arising from non‑conforming goods. Please do not hesitate to contact our office. You can reach us via e-mail at: info@amice-advocaten.nl or telephone: 030 2300 230.