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Express and Implied

Warranties

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What basic obligations do you

presume the seller should take?

In a sale the seller is the party toprovide goods. What the seller

should do is :(1) to deliver the goods

(2) to hand over any documents

relating to the goods(3) to transfer the property in thegoods

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Different contract laws classify the

sellers obligations in different ways.

1. English law of contract

The sellers obligations are classified

into conditionsand warranties.

How to distinguish conditions andwarranties?

(1)conditions----main/fundamentalcontractual terms underlying thecontract

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warranties----contractual terms

subsidiary to the main purposes of thecontract

(2) If the seller breaches conditions of

the contract, the buyer can avoid thecontract and claim damages.

If the seller breaches warranties of

the contract, the buyer cannot avoidthe contract and only can claim

damages.

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2. American law of contract: UCC

The sellers obligations areclassified into express warranties

and implied warranties.

(1) express warranties are

contractual terms directly made by

the seller about their goods andshould be spelled out clearly.

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Implied warranties are those

warranties that are not expresslygiven in contract by the seller but

are read into the contract by the

law. That is, they are not written in

a contract, but are legally taken to

be present in the contract.

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3. The sellers obligations under

CISGThe provisions of the CISG are

similar to those in the UCC.

Under CISG Article 35, the seller

must deliver goods that are of the

quantity, quality and descriptionrequired by the contract.

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Disclaiming implied warranties

What is the main difference between theUCC and the CISG in making disclaimers?

(1) One notable difference between theUCC and the CISG is that U.S. law

places the restrictionson the partiesability to limit the implied warrantiesof the UCC. The CISG has no

restrictions in limiting disclaimers.Any form of disclaimer is allowedunder the CISG.

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(2) Under the UCC, if a seller does

not want to take some obligationsconcerning implied warranties, he

may disclaim an implied

warranty only by usingconspicuous, or specified, language

to that effect.

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Notice of Nonconforming Goods

Most legal systems require thatnotice be given by a buyer to a

seller in the event of a breach dueto nonconforming goods.

Many European countries prefer

short period of notification (often ayear or less). However, thedeveloping countries prefer longer

period.

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The CISG is in favor of the concerns ofdeveloping countries as to this point. (Art. 38/39)

Under CISG (1) the buyer examines the goods

within as short a period as is practicable after theyare received; (2) the buyer should give notice of anonconformity or defect in the goods within areasonable time unless some reasonable excuseprevents doing so; (3) notice must be given withintwo years from the date on which the goods werehanded over to the buyer;(4) if the buyer fails togive proper notice, the buyer loses the right toassert the breach against the seller.

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Under CISG (1) the buyer examines thegoods within as short a period as ispracticable after they are received; (2) thebuyer should give notice of anonconformity or defect in the goods withina reasonable time unless some reasonable

excuse prevents doing so; (3) notice must begiven within two years from the date onwhich the goods were handed over to thebuyer;(4) if the buyer fails to give proper

notice, the buyer loses the right to assert thebreach against the seller.

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