The update obligation for smart products under the EU Sale of Goods Directive: the seller’s right of redress and the CISG

Abstract

Abstract This article examines the issue of the overlap between the 1980 UN Convention on Contracts for the International Sale of Goods (CISG) and the rules governing the final seller’s right of redress adopted in the European Union’s (EU) 2019 Sale of Goods Directive (SGD). In this context, the article focuses on the seller’s update obligation introduced by the SGD. Under the SGD, the final seller has an obligation to ensure that the consumer who purchases goods with digital elements is supplied with the updates that are necessary for the goods to perform their functions. This update obligation has been imposed on the final seller even though they are normally not the party responsible for the supply of updates. It has been assumed that the interests of the final seller are sufficiently protected if they are granted a right of redress against the persons liable in the distribution chain. However, this article argues that the right of redress may not be available to the final seller in cases in which the CISG applies to the contract based on which they purchased the goods from their supplier. Still, this article argues that, even though the text of the CISG was finalized in 1980, the Convention can accommodate the seller’s update obligation as understood under the SGD. Nevertheless, the interests of the final seller cannot be satisfactorily protected because of limits imposed by Article 39(2) of the CISG.