Obligation to Take Delivery

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  Art 60  The buyer's obligation to take delivery consists:
  
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    (a) in doing all the acts which could reasonably be expected of him in order to enable the seller to make delivery; and
    
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    (b) in taking over the goods
    
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  does this include obtaining import permits, paying import taxes?
  
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  Best to spell out in agreement
  

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  Art 80 makes clear that a party cannot blame the other party for failing to perform, if the other party’s failure was caused by the first party’s conduct
  

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  central obligations set out in Art 35
  
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    central starting point is the terms of the contract itself
    
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      35(1) requires the seller to deliver goods which are of the quantity, quality and description required by the contract
      
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    Under 35(2), absent agreement otherwise, goods do not conform unless
    
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      they are fit for ordinary purposes
      
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      they are fit for particular purposes made known to the seller at or before entering into the contract
      
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      they possess the qualities held out in any samples or models, AND
      
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      they are packaged in the usual manner, or where there is no such manner, in a manner adequate to preserve and protect the goods
      
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    corresponding UCC obligations are found in UCC § 2-313 and 2-314 on page 225 and 226
    
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  failure to deliver conforming goods is a breach of the contract entitling the buyer to exercise remedies
  
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  Conformity obligations of the CISG are a matter of strict liability, it is irrelevant that the seller did not know of the non-conformity
  
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    See Art 36
    
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  But, the seller is not liable for any lack of conformity of the goods if at the time of the conclusion of the contract (i.e. signing it) the buyer knew or could not have been unaware of such lack of conformity  Art 35(3)
  
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  Ordinary Purpose
  
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    Article 35(2)(a) provides that the goods do not conform unless they are fit for the purposes for which goods of the same description would ordinarily be used
    
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      adds concept of purpose (and not necessarily the purpose discussed by the parties)
      
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    To determine ordinary purpose, look to conduct of parties, what reasonable person might consider usual purpose, what usages widely practiced
    
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    Article 9 tells us that there are provisions in a contract (even if not written)
    
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      The parties are bound by any usage to which they have agreed and by any practices which they have established between themselves
      
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      The parties are considered, unless otherwise agreed, to have impliedly made applicable to their contract or its formation a usage of which the parties knew or ought to have known and which in intl trade is widely known to, and regularly observed by, parties to contracts of the type involved in the particular trade concerned
      
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        Evidentiary matter that is typically fact based
        
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  Particular purpose
  
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    Art 35(2)(b) provides that the goods do not conform unless they are fit for any particular purpose expressly or impliedly made known to the seller at the time of the conclusion of the contract
    
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      except where circumstances show that the buyer did not rely, or that it was unreasonable for him to rely, on the seller’s skill and judgment
      
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      No discussion in CISG of seller knowledge about buyer reliance
      
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    UCC creates similar “implied warranty of fitness for a particular purpose” where the seller “at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller’s skill or judgment to select or furnish suitable goods”
    
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      Harder to get out of particular purpose req in UCC
      

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  CISG and UCC contain obligations of the seller to deliver goods free of claims of third parties
  
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    Often such a situation arises when a seller obtains loans from a lender to finance the manufacturing of its products, and lender insists on obtaining a collateral security interest in the goods
    
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      Other laws address the conflict between buyer’s property rights in the goods and the lender’s security interest
      
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      CISG Art 4(b) states that CISG is NOT concerned with the effect which the contract may have on the property in the goods sold
      
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      However, CISG does address whether the buyer has a claim against the seller for breach of contract by delivering goods that were subject to the lender’s collateral security interest
      
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  Article 41 says seller must deliver goods which are free from any right or claim of a third party, unless the buyer agreed to take the goods subject to that right or claim.
  
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    See also UCC §2-312
    
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    Claims related to IP are governed by Article 42.
    
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      Unlike Art 35, Art 42 provides in the case of IP rights, the knowledge (or lack of knowledge) of the seller is an important element to consider
      

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  what is covered by “Right or claim”
  
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    we know it covers property interest
    
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    Austrian Supreme Court says it covers contract restrictions on seller (pg. 214)
    
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    Does it cover contract restrictions buyer known to seller at conclusion of contract?
    
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    Don’t necessarily want to argue that Austrian Supreme Court is wrong to extend outside of property interests, but if you accept that Art. 41 governs restrictions from seller’s supplier, it is difficult analytically to draw line excluding buyer’s buyer.
    

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  Art 6 applies to various conformity obligations as well, and entitles parties to exclude or vary (i.e. waive) any of the provisions above
  
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  UCC allows parties to exclude or modify the implied warranties, but requires that certain formalities must be met
  
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    If you are going to modify ordinary purpose requirement, must mention word merchantability and must be conspicuous
    
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  Process of excluding is different under CISG  don’t have to worry about using magic word of merchantability and conspicuous.
  
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    but is this a “validity” issue?
    
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    See page 241
    

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