Claimant's brief (Cologne) - Pace University

UNIVERSITY OF COLOGNE Page 8
information and the buyer reasonably relies on the seller’s skill and judgment, the goods have
to be fit for this particular purpose (STAUDINGER-MAGNUS, Art. 35 at 35).
22 RESPONDENT did not inform CLAIMANT that the Model 14 machines were not capable of
packaging salt. RESPONDENT may not assert that it had informed CLAIMANT during the
telephone call on 23 July 2002. First, there is no evidence that such information was given.
Secondly, any such information during the telephone conversation would have been too late,
as according to Art. 35 (2) (b) CISG the contractual requirements are determined at the time
of the conclusion of the contract.
23 Therefore, CLAIMANT relied on the machines’ capabilities. This reliance was also
reasonable. It is reasonable for a buyer to rely on the seller’s judgement, if the seller is a
specialist or expert in the manufacture of goods (SCHLECHTRIEM-SCHWENZER, Art. 35 at 23;
NEUMAYER/MING, Art. 35, at 9). In the present case, RESPONDENT was the manufacturer of
the machines, known as a “premier manufacturer” (Claimant’s Exhibit No. 2) enjoying a good
reputation (Claimant’s Exhibit No. 5 para. 2). Contrary to RESPONDENT, CLAIMANT had
no substantial experience in the packaging of food. Only in 1997 CLAIMANT started
packaging small quantities of food and never packaged salt (Procedural Order No. 3 at 10).
CLAIMANT’s reliance on RESPONDENT’s skills and judgement was therefore reasonable.
24 Consequently, the machines had to be capable of packaging salt. Hence, the delivery of
machines not suitable for this task was not in conformity with the contract according to Art.
35 (2) (b) CISG.
III. Alternatively, the machines were not in conformity with the contract according to
Art. 35 (2) (a) CISG, since the machines had to be fit for packaging salt as this is an
ordinary use
25 Even if packaging salt was not a particular purpose per Art. 35 (2) (b) CISG, the machines
had to be capable of processing salt, since they had to be fit for ordinary use according to Art.
35 (2) (a) CISG. The machines were designed and sold as food packaging machines. Salt is a
kind of food as many other kinds of food and is also contained in many foods. Even dry bulk
commodities such as peanuts are packaged with salt. Hence, the ordinary use of the machines
includes packaging salt as well.
26 If goods are not fit for all, but merely some of the purposes for which goods of that type are
ordinarily used, the seller’s performance is not in conformity with the contract (SECRETERIAT’S
COMMENTARY, O.R. p. 32 Art. 33 No. 5; SCHLECHTRIEM, Art. 35 at 14; STAUDINGER-MAGNUS,
Art. 35 at 20; PILTZ, § 5, para. 39).