The following recent CISG-related cases address key legal issues for companies entering into international sales contracts potentially governed by the CISG. The first two relate to situations in which the CISG did not expressly cover the scenarios in question yet provided coherent answers, albeit in different ways: by reference to domestic law in one, and CISG principles in another. The third shows how contemporary documentary evidence allows or disallows reliance on important CISG provisions and the final case demonstrates the strength of the CISG as a body of law, even in the face of domestic provisions that have public policy status.
1. Reliance on seller’s standard terms and buyer’s purported set-off
This decision1 highlights the importance of clearly incorporating standard terms into international contracts and the necessity of understanding the interplay between international conventions like the CISG and applicable domestic laws.
It saw the Amsterdam Court of Appeal rule that a French plant seller’s standard terms and conditions, which included a penalty clause for late payment, were not part of its contract with the Dutch buyer. This was because the seller had not provided the buyer with the T’s&C’s before or at the time of contract conclusion.
The court emphasized that, under CISG and principles of good faith in international trade, a party must have a reasonable opportunity to become acquainted with standard terms for them to be binding. References were made to the UNIDROIT Principles and the Principles of European Contract Law to support this interpretation.
The position was not changed by the seller’s argument that the use of standard T’s&C’s was common in the plant trade and should be considered an established trade usage and an implied part of the contract under art. 9 CISG. The terms still needed to be provided to the buyer and were not validly incorporated.
The buyer, for its part, sought to set-off a portion of the purchase price owing to damages claimed for allegedly defective goods. The Court noted that the CISG did not expressly address set-off and considered applicable domestic (French) law on this point. French set-off law requires both obligations to be liquidated (i.e. the amounts should be ascertained and enforceable) and, since the buyer’s claim was contested, set-off was not available and the full purchase price was due.
2. Burden of proving non-conformity of goods
This decision2 highlights the CISG’s flexibility and shows how sellers can rely on a buyer’s failure to inspect goods to protect their interests.
The buyer, a pet food producer, had bought ham bones and, more than three weeks after delivery, notified the seller that the goods were non-conforming due to the presence of mould.
Under art. 38(1) CISG, the buyer must in/directly examine the goods promptly. Article 39(1) CISG requires buyers to notify sellers of any lack of conformity within a reasonable time after the former have, or ought to have, discovered it.
Based on these provisions, the Antwerp Court of Appeal held that the buyer forfeited his right to claim non-conformity as he had not examined the goods on delivery nor proved that the non-conformity was not visible at the time. The buyer appealed, arguing, inter alia, that the seller bore the burden of proving that the mould was visible at the time of delivery (such that the notice period ran from that time meaning the buyer’s notice was unreasonably late). It was this burden of proof point that the CISG did not directly address.
The Court of Cassation (Supreme Court) referred to several CISG provisions in stating that issues not explicitly addressed by the CISG should be resolved in accordance with its underlying general principles to ensure uniform application. Thus, while typically a buyer must prove only the existence of a defect, a buyer who fails to examine the goods on delivery must also prove that the defect was not visible on delivery. This represents a shift in the burden of proof: had the buyer inspected the goods, the seller, to rely on a defence of late notification by the buyer, would have had to prove that the defect was or should have been apparent at delivery. However, due to the buyer’s failure to inspect, the burden shifted to the buyer to prove that the defect was not visible at the time of delivery. The Court upheld the dismissal of the buyer’s claim.
3. Risk transfer to the buyer
This Swiss Federal Supreme Court case3 related to the sale of gold which was to be transported from Ghana to the seller’s premises in Switzerland for the Spanish resident buyer. The gold was stolen and the buyer sought reimbursement of the purchase price.
Under the CISG, in the event of transport of goods, the buyer bears the risk from the moment the goods are handed over to the first carrier (art. 31(a)). This is what the seller argued to seek to escape liability. However, liability changes where the seller is to deliver to a specific location (art. 67(1)) in which case the seller remains on the hook until delivery. This was the buyer’s argument and the Court agreed.
While the Court did not focus its analysis on the “specific location” aspect of the transaction, it pointed to the fact that the delivery documents referred to the seller’s Swiss premises and that the seller had failed to demonstrate that the gold had been properly handed over to the carrier for delivery. The Court thus held that the buyer had the right to terminate the contract and be reimbursed by the seller.
The decision is a reminder that, where reliance on CISG (or, preferably/additionally, Incoterms such as Delivered Duty Paid (DDP)) provisions may be required, all documentary steps should be scrupulously followed to be able to argue that risk transfer validly took place.
4. CISG v domestic public order provisions
Here, the French Court of Cassation4 reaffirmed that the CISG supersedes national laws, including those of public policy, in CISG-governed international sales contracts. The Court ruled that the CISG exclusively governed the seller’s liability for non-conforming goods, thereby excluding the application of French civil code provisions on product liability, some of which had the status of public order provisions. This reinforces the autonomy of the CISG framework.
- CISG Online Num. 7427, Court of Appeal of Amsterdam Case No. 200.332.922, Bolivian chia seeds, 13 May 2025. ↩︎
- CLOUT Case 2210, Belgium, Hof van Cassatie van België Case No. C.23.0431, N Frigera NV v. D.E.C. Srl, 6 June 2024. ↩︎
- Judgment of the Federal Supreme Court of Switzerland, Case No. 4A_459/2023, 4 March 2024. ↩︎
- Star Stabilimento Alimentare SpA v. Actimeat, C. Cass. 1ère chambre civile, Case no. 22-16290, 17 May 2023. ↩︎