For the vast majority, views in the doctrine on the CISG are divided into two major categories, on the one hand, based on the view that the knowledge test could not have been unaware of is identical or similar to knowledge with a relaxed burden of proof and, on the other hand, the independent middle category in which the knowledge test is based on a degree of gross negligence (culpa lata)—either gross negligence or even- more-than-gross negligence. The latter expression of even-more-than-gross negligence seems difficult to distinguish from gross negligence but must be understood to lack the inherent subjective intent which is part of the lowest degrees of intention in the sense of dolus eventualis or the similar recklessness standard of U.S. American law. Both of these major views distinguish this phrase in CISG Article 35(3) from constructive knowledge based on simple (ordinary) negligence (culpa levis).80 This is convincing
since the CISG does have particular and different formulations reflecting the simple culpa levis standard.81 Only a few voices in the doctrine
advocate for equating the expression could not have been unaware of with
ought to have known and similar formulations meaning simple negligence.82
80 There are a few exceptions to this division of views in the doctrine presented here. See C.
Massimo Bianca, in COMMENTARY ON THE INTERNATIONAL SALES LAW 279–80 (C. Massimo Bianca & Michael Joachim eds., 1987) (discussing CISG Article 35(3) as “knew or ought to have known”); VINCENT HEUZÉ, LA VENTE INTERNATIONALE DE MARCHANDISES 257 n.296 (2000) (“De façon générale, l’article 35.3 interdit à l’achteur de se plaindre d’un défaut qu’il connaissait, ou devait connaître . . . les vices que l’achteur aurait dû connaître.”); see also UNCONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS (CISG):COMMENTARY, supra note 40, at 529.
81Seesupra Part II.A.
82See FRITZ ENDERLEIN &DIETRICH MASKOW,INTERNATIONAL SALES LAW:UNITED NATIONS
CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS 163 (1992) for this view regarding CISG Article 40. “The wording [‘]could not have been unaware[’] is defined by Huber . . . as being a little bit less than cunning and a little bit more than gross negligence; others treat it as being equivalent to gross negligence . . . . In this context it is felt that efforts are made to protect the seller following domestic law. The wording of the CISG itself would, in our view, include simple negligence, which could also be described as a violation of customary care in trade.” Id. (emphasis added). This does not, however, concern CISG Article 35(3) where reference is made to other views in doctrine requiring gross negligence or more than that or “objective and clearly recognizable deficiency.” Id. at
The strong view in the doctrine, which in the expression “could not have been unaware” finds a de facto knowledge test with a lightened burden of proof, was presented by the influential CISG scholar—the late Professor Honnold—in his textbook on the CISG, which may be regarded as one of the sources of the dispute about the caveat emptor knowledge test under the CISG. Honnold’s explanation therefore deserves citation before one analyzes the case law and takes a stand on the issue:
The fact one “ought to have known” includes those facts that would be disclosed by an investigation or inquiry that the party should make. But an obligation based on facts of which one “could not have been unaware” does not impose a duty to investigate—these are the facts that are before the eyes of one who can see. This expression is used at various places in the Conventions to slightly lighten the burden of proving that facts that were before the eyes reached the mind.83
For the purpose of this analysis, the citation from Honnold can be divided into two parts. The first part seems clear and convincing—a normal simple negligence standard would rather easily (but not necessarily) lead to the conclusion that an examination must be made or, at least, that an invitation by the seller to inspect the goods must be acted on (a pre-contractual duty to examine). On the contrary, this is not the case with a higher degree of negligence standard, which prima facie is indicated by the wording “could not have been unaware.” The second explanatory part, on the intention of the expression “could not have been unaware,” seems less clear, firstly, because the CISG is not concerned with procedural law or therefore with the evidence required to satisfy the burden of proof, and, secondly, because during the UNCITRAL review of the 1977 Sales Draft, inter alia, a proposal for a regulation of issues of evidence and the burden of proof regarding conformity of the goods was (rightly) not retained: “There was little support for this proposal as it was considered inappropriate for the Convention, which relates to the international sale of goods, to deal with
147–48. See also Bianca, supra note 80, at 279–80. SeePamesa Ceramica v. Yisrael Mendelson Engineering Technical Supply Ltd., supra note 14, ¶ 36-41, for a discussion in case law obiter dictum of the wording and mental element in CISG Article 40.
83 JOHN O.HONNOLD,UNIFORM LAW FOR INTERNATIONAL SALES 260 (3d ed. 1999) (emphasis in
original); JOHN O.HONNOLD &HARRY M.FLECHTNER,UNIFORM LAW FOR INTERNATIONAL SALES
339 (4th ed. 2009). See also CAMILLA BAASCH ANDERSEN ET AL.,APRACTITIONER’S GUIDE TO THE
matters of evidence or procedure. The Committee, accordingly did not retain the proposal.”84