CISG
number
LEGISLATIVE HISTORY
1980 Vienna Diplomatic Conference
[Outline of committee proceedings]
Document A/CONF.97/11 [Original: English 7 April 1980]
 39, 44 | [Article 40 bis [became CISG article 44 ]] |
A. UNCITRAL text [1978 draft]
B. Amendments
C. Proceedings in the First Committee
D. Subsequent proceedings
E. Overview comments
1. The text of the [1978 draft of the ] United Nations Commission on International Trade Law provided as follows:
"Article 37 [became CISG article 39 ]
"(1) The buyer loses the right to rely on a lack of conformity of the goods if he does not give notice to the seller specifying the nature of the lack of conformity within a reasonable time after he has discovered it or ought to have discovered it.
"(2) In any event, the buyer loses the right to rely on a lack of conformity of the goods if he does not give the seller notice thereof at the latest within a period of two years from the date on which the goods were actually handed over to the buyer, unless such time-limit is inconsistent with a contractual period of guarantee."
[Go to Secretariat Commentary on the above text]
[See also pre-Conference observations and proposals by Governments and International Organizations]
2. Amendments were submitted to article 37 [became CISG article 39 ] by Czechoslovakia (A/CONF.97/C.1/L.111), Ghana (A/CONF.97/C.1/L.124), Turkey (A/CONF.97/C.1/L.125), German Democratic Republic (A/CONF.97/C.1/L.131), United Kingdom (A/CONF.97/C.1/L.137) and Norway (A/CONF.97/C.1/L.75).
3. These amendments were to the following effect:
Paragraphs (I) and (2).
(i) Ghana (A/CONF.97/C.1/L.124):
2. Alternatively, article 37 [became CISG article 39 ] should be revised to read as follows:
"(2) If the buyer fails to give the notice referred to in paragraph (1) above, such failure shall be regarded as a failure to mitigate loss and the party in breach may rely on article 73 [became CISG article 77 ] to reduce the damages payable by him.
"(3) [Same text as the present article 37 [became CISG article 39 ], paragraph 2.]"
[1. Rejected: see Consideration, 5, below.]
[2. Withdrawn: see Consideration, 5, below.]
Paragraph (1).
(ii) Czechoslovakia (A/CONF.97/C.1/L.111):
[Rejected: see Consideration, 10, below.]
(iii) Turkey (A/CONF.97/C.1/L.125):
Paragraph (2).
(iv) Czechoslovakia (A/CONF.97/C.1/L.111):
[Rejected: see Consideration, 11, below.]
(v) German Democratic Republic (A/CONF.97/C.1/L.131):
[Rejected: see Consideration, 11, below.]
(vi) Turkey (A/CONF.97/C.1/L.125):
[Reiected: see Consideration, 11, below.]
(vii) United Kingdom (A/CONF.97/C.1/L.137):
[Rejected: see Consideration, 11, below.]
New paragraph (3).
(viii) Norway (A/CONF.97/C.1/L.75):
(ix) Czechoslovakia (A/CONF.97/C.1/L.111):
[Withdrawn: see Consideration, 12, below.]
C. Proceedings in the First Committee (i) Meetings 4. The First Committee considered [article 37] [became CISG article 39 ] at its [16th meeting, 17th meeting and 21st meeting] on 20th, 21st and 25th March 1980. [The First Committee considered article 40 bis [became CISG article 44 ] at its 21st meeting]. [See also 37th meeting of First Committee for both articles]. (ii) Consideration Paragraphs (1) and (2). 5. At the 16th meeting, the first alternative in the amendment by Ghana (A/CONF.97/C.1/L.124) was rejected. The second alternative was withdrawn after an indicative vote of 13 in favour and 29 against. 6. At the 17th meeting, by 31 votes in favour and 4 against, it was decided to adjourn the debate on articles 37 and 38 [became CISG article 39 and CISG article 40]. 7. At the 21st meeting, the Committee considered the following joint proposal: Finland, Ghana, Kenya, Nigeria, Pakistan and Sweden (A/CONF.97/C.1/L.204): Paragraph (1). "(1) The buyer loses the right to rely on a lack of conformity of the goods if he does not notify the seller of the lack of conformity within a reasonable time after he has discovered it or ought to have discovered it." Paragraph (2). Remains unchanged. New paragraph (3). Add a new paragraph (3) [This paragraph could also be separated as a new article 40 bis] [became CISG article 44 ] to read as follows:
8. It was agreed by the sponsors of this joint proposal, during its consideration, that paragraph (1) of the proposal should be replaced by paragraph (1) of the UNCITRAL text, and that the joint proposal should therefore consist only of the addition to the UNCITRAL text of the new paragraph (3).
9. An oral amendment was submitted to paragraph (3) deleting the last sentence therein. The joint proposal as unamended was rejected by 18 votes in favour and 22 against. The joint proposal as amended was adopted by 21 votes in favour and 19 against.
Paragraph (1).
10. At the 21st meeting, the amendments by Czechoslovakia (A/CONF.97/C.1/L.111) and Turkey (A/CONF.97/C.1/L.125) were rejected.
Paragraph (2).
11. At the 21st meeting, the amendments by Czechoslovakia (A/CONF.97/C.1/L.111), the German Democratic Republic (A/CONF.97/C.1/L.131), Turkey (A/CONF.97/C.1/L.125) and the United Kingdom (A/CONF.97/C.1/L.137) were rejected. The amendment orally proposed by France to add the phrase "or with the nature of the goods or of the defect" at the end of the UNCITRAL text was rejected.
New paragraph (3).
12. At the 21st meeting, the amendments by Norway (A/CONF.97/C.1/L.75) and Czechoslovakia (A/CONF.97/C.1/L.111) were withdrawn.
13. The UNCITRAL text of article 37 [became CISG article 39 ] was adopted. It was decided that new paragraph (3) of the joint proposal which had, as orally amended, been adopted (see 9 above) should form a separate article to be placed after article 40 [became CISG article 44 ].
[For subsequent Conference material on the development/approval of the final text of CISG article 39 and of CISG article 44, go to Plenary Conference 7th meeting]
[English translation of report on the significance of the deliberations on this article at the Diplomatic Conference: prepared by Peter Schlechtriem, based on notes taken at the conference and published shortly thereafter]
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Pace Law School Institute of International Commercial Law - Last updated September 8, 2000