Discuss the cases in which Article 36(1) or (2) CISG could come into play.
Article 36(1) CISG clarifies that the seller is liable for any latent defect that exists in nuce at the time of the passing of the risk. Under Article 36(1) CISG, the seller would also be liable if, due to a defect in packaging that exists at the time of passing of risk, the goods themselves are damaged or destroyed after this point in time.
Article 36(2) CISG would apply in a case where the seller damages goods when taking back the containers they had been packed in or where, due to unclear instruction to the carrier, the goods are damaged in transit after the risk of loss has passed.
Q 36-2
Describe and analyse the distinction between Article 36(1) and 36(2) CISG.
Whereas under Article 36(1) CISG, the defect already exists at the time of the passing of the risk, no defect can be discerned at this time under Article 36(2) CISG.
Q 36-3
(a) Describe some of the usual guarantees that manufacturers give.
(b) How does the warranty of durability under Article 35(2) CISG relate to a guarantee in the sense of Article 36(2) CISG?
(a) The seller may guarantee the goods for example for a certain period of time, such as two years or 5,000 working hours, or for a certain mileage, such as 20,000 km.
(b) A guarantee in the sense of Article 36(2) CISG relating to durability facilitates the proof for the buyer that the goods are non-conforming if a defect is discovered within the time frame of the guarantee.
