Suspicions, mere suspicions: non-conformity of the goods?

Abstract

In law, like in music or in fashion, there are trends and vogues. Some of them are global; some are more regional. After decades of discussions on market share liability and loss of a chance, it now seems fashionable to talk about suspicions as a matter of non-conformity of goods. This topic, however, seems to be most popular among German-speaking courts and scholars, with some Japanese joining the choir. The following article tries to shed some light on the various approaches used and to find a solution feasible for domestic as well as international trade. In a first step, the factual basis of the legal discussion on suspicions regarding the conformity of goods will be analysed. It all started with well-known international cases. As early as the 1960s, the German Supreme Court had to decide whether the mere suspicion that Argentinean rabbit meat was contaminated by salmonella was enough to hold the seller liable.1 The next case arose when some Austrian winemakers added glycol to their wines in order to reach the threshold for being certified as ‘quality wine’.2 More recently, the Belgian pork case3 hit the headlines in regard to the UN Convention on Contracts for the International Sale of Goods (CISG).4 In this case, the already delivered pork had to be destroyed because it was suspected of containing dioxin.