(a)According to this decision (C 40-1) what is the standard for ‘could not have been unaware’ in Article 40 CISG?
(b)Under which circumstances would there be a disclosure?
(a)In case law and scholarly writing there is much discussion about the standard upon which Article 40 CISG is based. There is agreement that ‘could not have been unaware’ is more than mere negligence. The arbitral award interprets Article 40 CISG in the way that there must be a ‘conscious disregard of facts that meet the eyes’.
(b)According to the arbitral award, mere information in the service manual did not amount to a disclosure of the non-conformity. Disclosure could only be assumed if the seller had brought the non-conformity to the attention of the buyer and informed the buyer of the risk resulting from the non-conformity.
