Regulation of International Sales
In order to raise the underlying issue on the subject, it is worth bearing in mind that international sales have international regulations, to which Argentina is a party, through Law 22.765, which ratifies the United Nations Convention on Contracts for the International Sale of Goods of 1980 (commonly known as the Vienna Convention of 1980).
Specifically, in its article 30 it is specified that the seller assumes the obligation to deliver the merchandise under the conditions established in the contract, that is, according to what has been agreed by the parties.
It is therefore based on the agreement between the parties that the seller must deliver the agreed goods not only in terms of their quantity but also in the quality agreed in the contract between the parties (art. 35 of the Convention). Thus, art. 36 makes clear reference to the seller's liability for deficiencies in quality even after the buyer has assumed responsibility for the risk of the goods, especially those goods intended for human consumption, since it is presumed that said goods, upon passing into the buyer's custody, must continue to be suitable for such.
Art. 35 – 1) The seller must deliver goods whose quantity, quality and type correspond as stipulated in the contract and that are packaged or packed in the manner specified in the contract.
2) Unless the parties have agreed otherwise, the goods will not conform to the contract. unless:
a) that they are suitable for the uses to which goods of the same type are normally put;
b) that they are suitable for any special use that has been expressly or tacitly made known to the seller at the time of the conclusion of the contract, unless the circumstances show that the buyer did not rely, or could not reasonably rely, on the seller's competence and judgment;
c) that they possess the qualities of the sample or model that the seller has presented to the buyer;
d) that they are packaged or packed in the usual manner for such goods or, if there is no such shape, in a way suitable for preserving and protecting them.
3) The seller shall not be liable, pursuant to paragraphs a) to d) of the preceding paragraph, for any lack of conformity of the goods that the buyer knew or could not have known ignore at the time of entering into the contract.
2 Art. 36 – 1) The seller shall be liable, in accordance with the contract and this Convention, for any lack of conformity which exists at the time of the transfer of risk to the buyer, even if such lack only becomes apparent after that time. 2) The seller shall also be liable for any lack of conformity occurring after the time specified in the preceding paragraph and which is attributable to his breach of any of his obligations, including any breach of any warranty that the goods will, for a specified period, remain fit for ordinary or special use or retain the qualities and characteristics specified.
For this reason, the goods specified in the contract must be delivered in accordance with the agreement between the parties and, when this is not fulfilled, the goods will be considered defective, especially when they are not suitable for the corresponding purpose and, even more so, those intended for human consumption, such as fruit, whether they are intended for that purpose directly or for the production of another product.
Thus, the seller must guarantee that for a certain period of time, said goods will continue to be fit for consumption, preserving their qualities. This obligation is even more applicable when the defect is observed upon arrival of the goods in the customs territory and even after their release and immediately upon verification by the buyer; who, in the event of finding the goods defective, may invoke the lack of conformity with the agreed conditions, notifying the seller of this. ( Art. 39 – 1) The buyer shall lose the right to invoke the lack of conformity of the goods if he does not notify the seller, specifying its nature, within a reasonable period from the moment in which he has discovered or should have discovered it.
2) In any case, the buyer will lose the right to invoke the lack of conformity of the goods if he does not notify the seller within a maximum period of two years from the date on which the goods are delivered. that the goods have actually been placed in the possession of the buyer, unless this period is incompatible with a contractual warranty period.
As indicated by the international standard ratified by Law 22.765, the existence of a specific guarantee is not necessary, since the possibility of a maximum period of 2 years for the claim by the buyer (importer) clearly arises, which will only be superseded in the event of a specific guarantee between the parties. In other words, there is an implicit right of every buyer to demand from the seller compliance with the quality conditions for the merchandise in question, this implicit right being sufficient guarantee of compliance with the agreement and without the need for a specific guarantee in this regard. Therefore, any rule that indicates the need for a specific guarantee will be contrary to an international treaty ratified by our legislation.
It is quite clear that the Convention gives the buyer, in the event of non-performance by the seller, the right to demand the replacement of the goods when they are not in conformity with the contractual agreement. This is provided for in Article 46 of the Convention. Art. 46 – 1) The buyer may require the seller to fulfill his obligations, unless who has exercised a right or action incompatible with that requirement. 2) If the goods are not (39) If the goods do not conform to the contract, the buyer may require the delivery of other goods in place of the goods only if the lack of conformity constitutes a fundamental breach of contract and the request for replacement of the goods is made when making the communication referred to in Article 3 or within a reasonable time thereafter. (39) If the goods do not conform to the contract, the buyer may require the seller to repair them to make good the lack of conformity, unless this is unreasonable having regard to all the circumstances. The request for repair of the goods must be made when making the communication referred to in Article XNUMX or within a reasonable time thereafter..
That is to say, the replacement of the goods implies the sending of others in the same quantity and of the same quality, leaving those that have been objected to due to their poor condition in a situation of return or total destruction.
What does customs legislation say about this?
Let us begin with our Customs Code, which addresses the issue in Article 573 et seq., stating: Art. 573 – When, by virtue of a guarantee obligation, the import or export of certain merchandise is intended to replace another identical or similar merchandise with material or manufacturing deficiencies, said destinations are exempt from the payment of taxes that burden them, from the corresponding negotiation of foreign currency and from the application of prohibitions of an economic nature, provided that the conditions determined by the regulations are met.
The rule refers to an obligation to guarantee, but this does not mean the constitution of an express guarantee, since a guarantee obligation is one that, due to its characteristics, must be interpreted and executed in good faith between the buyer and the seller. That is to say, there is an implicit right in the contract itself, understanding that both parties guarantee the faithful fulfillment of their obligations. Therefore, if the deficiency of the merchandise acquired by the importer is verified and having made such verification immediately, he has the right to demand the replacement of said merchandise and to be exempt from the payment of import taxes. This is so according to the cited Convention and, due to its order of hierarchy, it cannot be altered by any other rule or regulation.
Furthermore, if the re-exportation of defective merchandise becomes impossible or extremely costly, it may be abandoned in favor of the State and destined for total destruction, since any such impediment would mean violating the importer's right that arises implicitly from the International Sales Convention.
To this end, Article 577 of the CA states: Art. 577 – 1. The customs service may authorize that, as an alternative to re-exportation, the merchandise to be replaced may be abandoned in favor of the National State, or destroyed or rendered useless so as to remove all commercial value under customs control. It may also exempt the exporter from the obligation to re-import the merchandise. defective when re-exportation is not authorized by the authorities of the country of destination, or when the return is uneconomical or inconvenient, and the exporter duly proves the total destruction of the merchandise abroad by reliable means.
Conclusion
Consequently, the Customs Service cannot place any impediment to the importer being able to assert a right arising from the International Convention and Law 22.765, such as requesting a sort of “guarantee” when such consideration arises from the international sales contract itself. On the contrary, it is the Customs Service’s responsibility to facilitate the buyer’s ability to claim a right and also to honour his contractual commitments regarding the merchandise he has acquired.
The author is a lawyer and member of the Institute of Customs Law and International Trade of the Argentine Association of Constitutional Justice.
