## Facts

- A Swiss seafood trader sold 1,750 kg of frozen New Zealand mussels to a German fish importer for USD 3.70/kg (USD 6,475), payable within 14 days.
- The mussels were delivered in January 1992 to the buyer’s cold-storage warehouse in Germany and invoiced on January 15, 1992.
- German veterinary authorities sampled the mussels; a February 26, 1992 laboratory report found cadmium levels of 0.5–1.0 mg/kg and recommended further examinations, without stating a definitive legal sales ban.
- At the buyer’s request, additional testing in Switzerland reported a cadmium level of 0.875 mg/kg.
- The buyer told the seller it would return the mussels because they were deemed “not harmless” and also complained about altered or unsuitable packaging; the seller refused to accept a return, and the buyer did not ship them back.
- A later private test obtained by the buyer reported 1.0 mg/kg in several samples and recommended broader sampling.
- The buyer demanded the seller cover prospective investigation costs and never paid the purchase price.
- The seller sued for the contract price plus interest; trial and intermediate appellate courts ruled for the seller under the CISG.

## Issues

1. Under CISG art. 35(2)(a)–(b), does noncompliance (or suspected noncompliance) with public-law health norms or guideline values in the buyer’s country render goods nonconforming when the buyer did not specify such standards in the contract?
2. Must a seller, absent explicit agreement, anticipate and satisfy buyer-state regulatory requirements or administrative practices affecting resaleability?
3. Did the buyer provide timely and sufficiently specific notice of lack of conformity under CISG art. 39?

## Decision

- The court dismissed the buyer’s appeal and affirmed the judgment awarding the seller the full purchase price plus interest.
- The court held the mussels were not nonconforming under CISG art. 35(2)(a)–(b) based solely on buyer-state public-law standards or nonbinding guideline values affecting resale.
- The seller was not required, as a rule, to know or comply with uncertain and variable regulatory practices in the buyer’s country absent buyer notice, agreement, or special foreseeability.
- Even assuming timely notice under CISG art. 39, the buyer could not withhold payment because no substantive lack of conformity was established.

## Legal Principles

- CISG art. 35(2)(a)–(b) does not generally make the seller responsible for compliance with public-law requirements in the buyer’s or use-state that merely affect resaleability.
- Buyer-state regulatory compliance may become part of the seller’s conformity obligation only where the buyer made the relevant standards known, the contract allocated the risk, or circumstances made compliance reasonably foreseeable to the seller.
- Where binding limits are unclear and authorities act on nonbinding guidelines or unsettled administrative practice, imposing that regulatory risk on a foreign seller is generally unwarranted.
- Under CISG art. 39(1), notice must be given within a reasonable time to permit prompt clarification of the parties’ legal relations; timely notice does not create remedies absent a proven lack of conformity.
- Without a seller breach, the buyer has no basis to avoid the contract or refuse payment under the CISG.

## Conclusion

The court held that the buyer remained obligated to pay the contract price because the mussels were not shown to be nonconforming under CISG article 35 merely due to buyer-state guideline-based health concerns, and the seller had no general duty to satisfy uncertain domestic regulatory practices absent notice, agreement, or foreseeability.


Bundesgerichtshof [BGH] [Federal Court of Justice] Mar. 8, 1995, VIII ZR 159/94 (Ger.)