Express and Implied
Warranties
What basic obligations do you
presume the seller should take?
In a sale the seller is the party to
provide 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 the
goods
Different contract laws classify the
seller’s obligations in different ways.
1. English
law of contract
 The seller’s obligations are classified
into conditions and warranties.
 How to distinguish conditions and
warranties?
(1) conditions----main/fundamental
contractual terms underlying the
contract
warranties----contractual terms
subsidiary to the main purposes of the
contract
(2) If the seller breaches conditions of
the contract, the buyer can avoid the
contract and claim damages.
If the seller breaches warranties of
the contract, the buyer cannot avoid
the contract and only can claim
damages.
2. American
law of contract: UCC
 The seller’s obligations are
classified into express warranties
and implied warranties.
(1) express warranties are
contractual terms directly made by
the seller about their goods and
should be spelled out clearly.
Implied warranties are those
warranties that are not expressly
given 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.
3. The
seller’s obligations under
CISG
The 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 description
required by the contract.
 Disclaiming implied warranties
What is the main difference between the
UCC and the CISG in making disclaimers?
(1) One notable difference between the
UCC and the CISG is that U.S. law
places the restrictions on the parties’
ability to limit the implied warranties
of the UCC. The CISG has no
restrictions in limiting disclaimers.
Any form of disclaimer is allowed
under the CISG.
(2)
Under the UCC, if a seller does
not want to take some obligations
concerning implied warranties, he
may “disclaim” an implied
warranty only by using
conspicuous, or specified, language
to that effect.
Notice of Nonconforming Goods
Most legal systems require that
notice be given by a buyer to a
seller in the event of a breach due
to nonconforming goods.
Many European countries prefer
short period of notification (often a
year or less). However, the
developing countries prefer longer
period.
 The CISG is in favor of the concerns of
developing 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 they
are received; (2) the buyer should give notice of a
nonconformity or defect in the goods within a
reasonable time unless some reasonable excuse
prevents doing so; (3) notice must be given within
two years from the date on which the goods were
handed over to the buyer;(4) if the buyer fails to
give proper notice, the buyer loses the right to
assert the breach against the seller.
 Under CISG (1) the buyer examines the
goods within as short a period as is
practicable after they are received; (2) the
buyer should give notice of a
nonconformity or defect in the goods within
a reasonable time unless some reasonable
excuse prevents doing so; (3) notice must be
given within two years from the date on
which the goods were handed over to the
buyer;(4) if the buyer fails to give proper
notice, the buyer loses the right to assert the
breach against the seller.
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