NEWSLETTER-2017

263 LAW OF OBLIGATIONS Pursuant to Article 35/2/a of the CISG, it is required that the goods that are sold and delivered to the buyer be fit for the purposes for which goods of the same description would ordinarily be used. Furthermore, pursuant to Article 35/2/b of the CISG, it states that the goods that are sold and delivered to the buyer are required to be fit for any particular purpose, expressly or implied, as made known to the seller at the time of the conclusion of the contract. According to the majority opinion of the doctrine, the liability of the seller for the defects in the sold thing is of a complementary nature, whereas the primary obligation of the seller is the transfer of owner- ship. Moreover, as the provisions regarding the liability of the seller due to defects under the TCO, except for the cases where the seller is grossly negligent, are not mandatory, an agreement may be concluded within the scope of the freedom of contract, in order to exclude or limit this liability. However, it is noteworthy that any vague non-liability provision should be interpreted narrowly, and in favor of the buyer. The Conditions for the Seller’s Liability due to Defects In order to hold the seller liable for the defects on the sold things, certain conditions must be met. These conditions are listed as follow- ing: The Existence of the Defect When the Benefit and Risk are passed to the Buyer Pursuant to Article 219 of the TCO, “ The seller is liable for the defects of any sold things that do not have the quality agreed to with the buyer, as well as of any things sold that have material, legal or economic defects, which remove or reduce the benefits expected and value of intended use, and that it is contrary to its quality or quantity that affects its quality.” According to this Article, the defects may be in the quality of the thing, and as well, may be material or legal . The thing is free of material defects if it is suitable for the use intended under the purchase agreement, and if it is suitable for customary use, and its quality is usual in things of the same kind, and the buyer may expect this quality in view of the type of the thing, and the thing is free of legal defects if third parties, in relation to the thing, can assert