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| A seller, a Colorado corporation, and a buyer, a partnership formed under the laws of Canada, entered into a contract for the sale of a certain amount of pork ribs. When the buyer’s final customer started to process the meat, it noticed that it appeared to be in an “off condition”. As a result, the buyer asked the United States Department of Agriculture to inspect the goods. The examination revealed that some units of the meat were “putrid” and others were “good.” However, the inspector condemned the entire shipment of meat and, although the buyer informed the seller of such results, the seller continued to demand payment and eventually brought an action against the buyer. The District Court awarded the seller the full contract price plus interest (See U.S. District Court, Northern District of Illinois, Eastern Division, 21-05-2004, no. 01 C 4447, reported in UNILEX). The buyer appealed.
On appeal, the parties did not dispute that the contract was governed by CISG (Art. 1(1)(a) CISG). However, the buyer put forward that the Distric Court had erroneously placed upon it the burden of proving that the goods were defective at the time of delivery. The appellate Court firstly recalled that under CISG the seller must deliver goods which, as to quantity, quality and description, conform to the contract (Art. 35(1)(2)CISG). Furthermore, the buyer is liable of loss or damage to the goods after the risk has passed to it, i.e. after the goods have been transferred to the buyer's carrier (Art. 67(1)CISG), unless loss or damage has been due to an act or omission of the seller (Art. 66 CISG). Since CISG does not expressly state which of the parties has to provide evidence of non-conformity, the Court, after pointing out that the Convention needs to be interpreted taking into account its language and the general principles upon which it is based (Art. 7(2)CISG), decided to turn to the relevant provisions of the Uniform Commercial Code (U.C.C.). Indeed, the caselaw interpreting analogous provisions of Article 2 of the UCC, of which CISG has to be considered as the international counterpart, although not applicable per se, may nonetheless "inform a court where the language of the relevant CISG provision tracks that of the U.C.C". As a result, the Court affirmed that “just as a buyer-defendant bears the burden of proving breach of the implied warranty of fitness for ordinary purposes under the U.C.C, under CISG the buyer-defendant bears the burden of proving non-conformity at the time of transfer". Consequently, since the buyer had failed to demonstrate that the goods were defective, the judgment rendered in favor of the seller by the District Court had to be confirmed. |