《联合国国际货物销售合同公约》中的卖方品质担保义务

第二节　《联合国国际货物销售合同公约》中的卖方品质担保义务

公约第三十五条主要规定了卖方的品质担保义务。

首先，卖方交付的货物必须与合同所规定相符，包括数量、质量和规格，并须按照合同所定的方式装箱或包装。

其次，公约也规定了相应的默示担保义务:

(1)货物必须适用于同一规格货物通常使用的用途。公约在此对于一般商销性担保的义务规定，并不需要考虑当事人潜在的用途。公约本条规定包含了一个基本的假设，买方购买货物的意图是正常的使用。由于公约不可能对于每种货物规定一个特殊的标准，那么该种货物的通常使用目的就作为一个卖方义务的通常标准。

(2)货物适用于订立合同时曾明示或默示地通知卖方的任何特定目的，除非情况表明买方并不依赖卖方的技能和判断力，或者这种依赖对他是不合理的。与上述一般商销性担保的义务不同，特定用途担保的前提是买方在订立合同时曾明示或默示地通知卖方特定目的。

(3)货物的质量和卖方向买方提供的货物样品或样式相符。

(4)货物应当按同类货物通用的方式装箱或包装，如果该种货物没有通用的装箱或是包装方式，要按照能保全和保护货物的方式装箱或包装。

与此同时，公约明确地规定了品质担保义务的范围以风险转移为界限。公约第三十六条规定卖方应按照合同和本公约的规定，对风险移转到买方时所存在的任何不符合同情形，负有责任，即使这种不符合同情形在该时间后方始明显。但作为例外，卖方对在风险转移后发生的任何不符合同情形，也应负有责任，如果这种不符合同情形是由于卖方违反他的某项义务所致，包括违反关于在一段时间内货物将继续适用于其通常使用的目的或某种特定目的，或将保持某种特定质量或性质的任何保证。

案例23

NETHERLANDS:Netherlands Arbitration Institute

15 October 2002

The claimants in this case，several Dutch companies，hereafter referred to as‘the sellers’ ，were active in the exploration of offshore gas fields in The Netherlands' continental shelf.The buyer，an English company，was a major international player in the field of exploration，production and refining of crude oil and distribution of oil products and gas.In 1993 and 1994，the parties concluded twelve contracts concerning condensate，a crude oil mix referred to as‘Rijn Blend’.On June 11，1998，the buyer informed the sellers that it would not accept the next delivery of Rijn Blend，because，due to high levels of mercury therein，further processing or sales were impossible.On June 16，1998，the buyer notified the sellers that it would suspend taking delivery until a solution for the mercury problems was found.No solution was found however;therefore，the buyer let some contracts expire and terminated the other contracts.In the meanwhile，the sellers sold the Rijn Blend that was not taken by the buyer to third parties at an alleged loss compared to the contact price.

In May 2000，the sellers initiated arbitration proceedings against the buyer at the NAI(Netherlands Arbitration Institute)．The sellers argued that the Rijn Blend，even with increased levels of mercury，was in conformity with the contract since no specific quality requirements were agreed upon.Thus the buyer breached the contract in not taking delivery and suspending its contractual obligations.

Article 35(1)CISG provides that the seller should deliver goods，which are of the quantity，quality and description required by the contract.All twelve contracts do not contain quality specifications but only define Rijn Blend as a “Mix of...condensates and/or crude oil...”，“...condensates and crude oil”or “condensates”and refer to the blocks from where the Rijn Blend originate.The contracts also refer to the gravity of the Rijn Blend for price calculation purposes but parties agree that this element is of no relevance for the present purposes.Consequently，article 35(1)CISG is not applicable to the conformity issue.

As to Article 35(2)(b)CISG，the Arbitral Tribunal notes that the particular purpose of the goods must have been made known to the seller at the time of the conclusion of the contract.The question then arises whether ［buyer］，at that time(i.e.， 1993 and 1994)expressly or impliedly indicated to the respective ［sellers］the use it intended to make of the Rijn Blend.The Arbitral Tribunal is of the opinion that it did not.First，the sale contracts do not contain a product quality specification.Absent such a specification，［buyer］did not indicate expressly the particular purpose it had in mind for the Rijn Blend.Secondly，an implied indication as to a particular purpose made in 1993 and 1994 also has not been proven.There are no elements of evidence that the parties implicitly agreed upon particular requirements for the Rijn Blend.Neither is there evidence that such an implied indication—in accordance with Article 8 CISG—is to be inferred from statements，intentions or conduct of either party.Furthermore，the nature of the product leads more to the opposite conclusion.The Arbitral Tribunal understands that blended condensate such as Rijn Blend is a commodity that can be used in different capacities in refining processes and thus that various refiners may use it in varying degrees and for different purposes.Also， a buyer not necessarily should use all condensate but may resell all or parts of it.In this respect，the Tribunal also has considered that events occurring after 1993 and 1994 are not relevant to determine conformity issues because of the marking point in Article 35(2)(b)at the time of contract formation.In other words，if quality specifications had become important for ［buyer］during the lifetime of the contract，the contracts might have been amended accordingly.Finally，although ［buyer］is part of the ...group，which through the joint venture with ...at Q.also refines at Europoort where the Rijn Blend was to be delivered，the Arbitral Tribunal understands that ［buyer］'s activities also include trading.Thus，it should not necessarily have been so that［sellers］under the circumstances had to know that the Rijn Blend was to be refined at Q.and that the condensate was exclusively used by ［buyer］to produce light naphtha destined to one single downstream customer.The Arbitral Tribunal is further of the opinion that this conclusion is not changed by the fact that ［buyer］did buy all output from the blocks specified in the contracts inwhich ［sellers］had interests.Consequently， the Arbitral Tribunal rules that， absent contract quality specifications，Article 35(2)(b)CISG is not the proper basis to assess nonconformity issues in international sales of commodities such as Rijn Blend.

The Arbitral Tribunal，thus，finds that the dispute between the parties is to be analysed under Article 35(2)(a)CISG which requires that the goods are fit for the purposes for which goods of the same description would ordinarily be used.In this respect，three interpretations exist.According to a first line of thought，Article 35(2)(a)requires that the seller delivers goods which are of a merchantable quality.This interpretation goes back to the drafting history of CISG.During the negotiations of CISG，the question arose how the provision of the draft on conformity of goods，absent contract specification or particular purpose，should be interpreted.At that time，it became clear that the English common law countries favoured merchantable quality whereas the civil law continental European rule was to the effect that average quality is required.

As to the standard of merchantability，it should be noted that the primarily Germanic theory of average quality is based on the assumption that in the English common law merchantability implies that goods are conforming if there is a substitute market.It would be the expression of the caveat emptor-rule under which buyers assume the risk of quality problems if they fail to specify quality requirements in their contracts or inspect goods before concluding the contract.This rule was，however，changed in 1910 in the Bristol Tramways Carriage Co.Ltd v.Fiat Motors Ltd.case(1910 2 KB 831)where the test was developed whether a reasonable buyer would have accepted the goods if he had fully examined the goods.As to commodities，the English common law developed the rule that goods conform if a reasonable buyer would have concluded the contract if he had known the quality of the goods without bargaining for a price reduction(Henry Kendall ＆ Sons v.William Lillico ＆Sons Ltd， ［1969］2 AC 31)．For a discussion of the English common law， see Bridge，M.，The sale of goods，Oxford，Clarendon Press， 1997， 290－316.

Thus，a merchantability test under CISG based on English common law，if any，would raise the question whether a reasonable buyer would have concluded contracts for Rijn Blend at similar prices if such a buyer had been aware of the mercury concentrations.In this respect，the substitute cover sales made to LL.Petroleum Corp.，M.International AG and H....BV are relevant.［Sellers］have argued that these cover sales have been contracted on an arm's length basis.From［Sellers］' Exhibit 5a to the Statement of Claim，it appears that the cover sale to LL.Petroleum was made at a 31% discount(US $ 9 as compared to the price of US $ 13.04 under the contracts)．Although the first sale might have been a distress sale，the subsequent 15 sales were made at discount within a range of 14%(October 1998)to 44%(February 1999)．It is conjectural to what extent these discounts may be attributed to the mercury levels of the Rijn Blend but，in the opinion of the Tribunal，［sellers］sufficiently have established that these cover sales were made at discounts and on an arm's length basis without that evidence being rebutted by ［buyer］．For that reason，the Arbitral Tribunal is ready to accept that ［sellers］have met their burden of proof that these ranges indicate that there was no market for Rijn Blend with increased mercury levels at prices comparable to the sales contracts when the increased levels were disclosed to prospective alternate buyers.

As to average quality，the evidence presented to the Arbitral Tribunal by both parties indicates and—sometimes—emphasizes that quality of condensates such as Rijn Blend may differ from one region to another due to geological or other reasons.The Arbitral Tribunal will thus limit its analysis to the relevant geographical market.As suggested by the evidence presented and the expectations of the parties，the geographical market may be limited to the North Sea market.

In order to prove that the Rijn Blend in June 1998 did not conform with the contracts，［buyer］would have to prove:1)the mercury levels in or around June 1998，2)the above average levels of those levels，and/or an unacceptable increase of those levels over the lifetime of the contract.

In the opinion of the Arbitral Tribunal，［buyer］has failed to meet that burden of proof.From the evidence，it is unclear whether there is a common understanding in the refining industry what average quality for blended condensates(such as Rijn Blend)should have been and what levels of mercury are tolerable.Also，it has not been proven what margins from an average standard，if any，are permissible.

Article 7(2)provides that matters governed by CISG but not expressly settled in it，are to be solved in conformity with the general principles on which CISG is based or， in the absence of such principles， in conformity with the law applicable by virtue of the rules of private international law.

This provision would seem to exclude the average quality rule.Although it is embodied in the law of both Germanic and Romanistic legal systems，Heuzé—as referred to above—has rightly indicated that national notions regarding quality of goods are not controlling in CISG cases.For that reason，the average quality standard cannot be accepted.It is a theory，which imports a domestic notion，which is not sufficiently universal into the CISG system in violation of Article 7(2)CISG.Furthermore，recent codifications in civil law countries such as in The Netherlands have abolished the average quality rule of Article 1428 old Civil Code in favour of a reliance standard(see Article 7:17 Dutch Civil Code)．

The same argument against domestic conformity notions，of course，must be used in relation to the merchantability standard of the English common law.

The choice in favour of a test of reasonable quality is supported by the authors and the case cited above in No.71 as well as by those scholarly writings that have rejected the average quality test.

As to price，it has been sufficiently proven(see No.89)that the price as determined by the price formula agreed upon by the parties in all likelihood—even taking into account transportation costs—could not been obtained for cover transactions when the mercury levels were disclosed to alternate prospective buyers.This is an objective element to be taken into account when determining the quality of the Rijn Blend.Apparently，Rijn Blend with increased mercury levels has a significant lower value than Rijn Blend without increased mercury levels and a discount is to be paid for the buyer's costs in removing the mercury or a buyer's alternate use.

The long-term nature of the sales relationships between the parties corroborates the findings of the Arbitral Tribunal set forth in the preceding paragraph.Apparently，there have been no quality problems related to the levels of mercury in the Rijn Blend in the initial years of the Contracts as of 1993/1994.At the least，［buyer］has sufficiently proven or made it sufficiently probable that CH....was its downstream customer over the lifetime of the contracts or the least as of 1995.

思考题

1.简述本案基本事实。

2.公约35(2)(a)和(b)款之间的区别是什么?

3.本案中是否存在公约35(2)(a)的标准?

4.公约35(2)(a)款标准与平均品质的区别是什么?

5.本案是否满足35(2)(b)的要求?

6.公约第7条(2)款的影响是什么?