Burden and standard of proof under Art. 35 CISG
Since the CISG does not explicitly allocate the burden of proof (with the exception of Art. 79(1) CISG), courts and tribunals have reached divergent conclusions as to whether the CISG can be interpreted to provide a sufficient legal basis for the allocation of the burden of proof under Art. 35 CISG (see case law below under I. Allocation of burden of proof). It is worth highlighting that the burden of proof has to be differentiated from the standard of proof, i.e. when has a party fulfilled its burden of proof (addressed below under II. Standard of proof). A further distinction has to be made with regards to which kind of evidence is admissable (which is decided by the lex fori, i.e. by the procedural law of the forum).
Bundesgericht/Tribunal fédéral (Swiss Federal Supreme Court)
Switzerland, 13 January 2004 – 4C.245/2003, CISG-online 838
Oberlandesgericht Karlsruhe (Court of Appeal Karlsruhe)
Germany, 08 February 2006 – 7 U 1001/04, CISG-online 1328
U.S. District Court for the Central District of California
USA, 25 April 2011 – SACV 09-00530-CJC(ANx), CISG-online 4657
The buyer bears the burden of proof of showing that the goods are non-conforming under the CISG where the buyer raises the non-conformity of the goods as an affirmative defense to an action by the seller for non-payment
Tribunale di Trieste (District Court Trieste)
Italy, 17 June 2019 – 2640/2016, CISG-online 5184
Under Art. 35(2)(b) CISG, the buyer bears the burden of proving that the particular purpose had been expressly or impliedly made known to the seller
District Court of the State of Colorado, Arapahoe County
USA, 21 February 2017 – 2016CV30549, CISG-online 4647
Held that "because the CISG does not expressly state which party bears the burden of proof as to the warranty of merchantability, courts look to the CISG’s domestic analog, the UCC, to make this determination." On this basis, the buyer of the goods under the CISG bears the burden to prove breach of warranty, including any alleged implied warranties, and must do so by establishing that the goods were defective at the time they left the seller’s possession.
Sąd Apelacyjny w Katowicach (Court of Appeal Katowice)
Poland, 18 January 2017 – ACa 344/16, CISG-online 5049
Accepted the lower instance court's judgment that applied national law regarding the burden of proof
Kantonsgericht Nidwalden (Court of First Instance Nidwalden)
Switzerland, 23 May 2005 – ZK 04 26, CISG-online 1086
Oberlandesgericht Koblenz (Court of Appeal Koblenz)
Germany, 22 April 2010 – 2 U 796/07, CISG-online 2290
The court bases its decision regarding the standard of proof on the lex fori (§ 286 German Procedural Code) and not on the CISG
Kreisgericht Wil (Court of First Instance Wil)
Switzerland, 13 April 2016 – VV.2015.33-Wl2ZE-DWE, CISG-online 2936
Bundesgericht/Tribunal fédéral (Swiss Federal Supreme Court)
Switzerland, 16 July 2012 – 4A_753/2011, CISG-online 2371
