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Reproduced with the permission of the author
 

Reasonable Time in Article 39(1) of the CISG - Is Article 39(1) Truly a Uniform Provision?

Camilla Baasch Andersen [*]

 

Table of Contents

I. Introduction 1. The Definitions of a Term
2. The Uniform CISG 2.1. A General Introduction to the CISG and Some of Its Problems 2.1.1. Travaux Préparatoires
2.1.2. Application without Supranational Control
2.1.3. Accessibility to Caselaw
2.2. Interpretation of Terms in the CISG
2.3. Reasonableness in the CISG 2.3.1. The Flexibility of Reasonableness in General
2.3.2. The Problem of Flexible Reasonableness in the CISG
II. The Problems of Article 39 1. Introducing Article 39(1) 1.1. Notice of Non-Conformity - Why?
1.2. Notice of Non-Conformity - How?
1.3. Notice of Non-Conformity - When? 1.3.1. Start of "Reasonable Time" Period
1.3.1.1. The Mix-up of Articles 38(1) and 39(1)
1.3.2. End of "Reasonable Time" Period
1.4. Notice of Non-Conformity - Exceptions to the Rule
1.5. The Two Time-Frames of Article 39
2. A Brief History of Article 39(1)
3. Scholarly Determinations of "Reasonable Time" in Article 39(1)
III. Transnational Article 39(1) Practice 1. Germany 1.1. A Brief Introduction 1.1.1. The German Legal System and the CISG
1.1.2. Article 39(1) of the CISG in German Practice
1.2. Specificity and Form of the Notice of Non-Conformity 1.2.1. Specifying the Nature of the Non-Conformity
1.2.2. Form of Notice
1.3. Within Reasonable Time 1.3.1 Agreed Time-Frames for Notification - Derogations of "Reasonable Time"?
1.3.2. The Mix-Up of Articles 38 and 39 in German Law
1.3.3. Reasonable Time After Discovery - the Time-Frame of Article 39(1) 1.3.3.1. Practice Before 1995
1.3.3.2. Recent Practice - 1995 and After
1.4. Observations on the Practice of Article 39(1) in German Practice 1.4.1. The Evolution of "Reasonable Time" in German Practice
1.4.2. The Influence of German Domestic Law upon "Reasonable Time"
1.4.3. "Reasonable Time" in German Practice Today
2. Caselaw from Other Countries 2.1. Austria
2.2. The Netherlands and Belgium
2.3. France and the Alleged Buyer-Friendly Approach
2.4. Switzerland
2.5. Italy and the International Approach

3. The International Arbitral Tribunal
IV. Predictions of Interpretations 1. Danish Law
2. US Law

V. Findings from Theory and Practice on "Reasonable Time"

1. The Problems
2. The Vantage Point
3. The Criteria 3.1. The Contract and Customary Trade Usage
3.2. Reducing the Generous Time-Frame
3.3. Extending the Restrictive Time-Frame

VI. Conclusions on the Uniformity of "Reasonable Time" in Article 39(1)

1. Is Article 39(1) Applied Uniformly?
2. Recommended Approach for Future Practice
3. Overall Conclusion and Criteria

Appendix A: List of Article 39 Caselaw
Appendix B: History of Article 39 as Reflected by UN Documents
Appendix C: Table of Authorities
- Reference Works
- Internet Websites and Databases


reasonable

a. within the limits of reason; not greatly less or more than may be expected.

b. tolerable, fair.



I. Introduction

1. The Definitions of a Term

The science of law, like most other academic sciences, is one which depends very much on terminology. As such, the precise definition of terms and the application of these terms is, essentially, at the core of judicial practice. And the words we work with can be elusive.[1]

Defining and determining legal terms can often be made difficult by the fact that judicial science applies everyday words to particular meanings which are exclusive to the law, and which do not necessarily logically follow the linguistic definition of the same word.[2] And the understanding of these terms can be further impeded by the fact that the semantics of different legal regimes differ from one another.[3]

The linguistic definition of the term reasonable is -- as evidenced above -- one based on expectations and toleration, and it is thus largely a subjective term. However, for the purpose of a legal context, a larger degree of objectivity is required of a term since it is a tool for many different practitioners.

The present paper will focus on the meaning of the term "reasonable time" as understood by Article 39(1) of the 1980 United Nations Convention on Contracts for the International Sale of Goods (hereinafter referred to as the CISG or the Convention), as well as provide an overlook of caselaw in its application. This provision provides that a buyer notify the seller "within reasonable time" after he discovers or ought to have discovered that the goods do not conform to the contract. The objectivity of a term is especially important where the CISG is concerned, as this is a uniform law which must be interpreted and practised uniformly.

The aim of the determination of "reasonable time" in Article 39(1) will be to establish a pattern to the application of the provision, and assess whether the term is an autonomous term applied uniformly.[4] However, before delving deeper into the problems of Article 39(1), the uniform CISG should be properly introduced, as should the general use of the term "reasonable".

2. The Uniform CISG

2.1. A General Introduction to the CISG and Some of Its Problems

The CISG is a unique international uniform convention which has applied to contracts concerning the international sale of goods since 1988.[5]

It has, at the present point in time, been ratified by 53 countries,[6] and this makes it one of the most successful uniform international conventions to date. This success is not surprising. Preceded by the less successful 1964 Uniform Law of International Sale of Goods (hereinafter the ULIS) and the Uniform Law for the Formation of Contracts on the International Sale of Goods (hereinafter the ULF),[7] the drafting of the CISG was conducted explicitly on the basis of forming more widely acceptable conventions, which were later rolled into one.[8] This, combined with the ever-growing need to regulate international trade uniformly as the borders of the world become a little less discernible and international trade grows in volume, has made the Convention extremely popular.[9]

2.1.1. Travaux Préparatoires

The CISG was drawn up by the Working Group on the International Sale of Goods, established by the United Nations Commission for International Trade Law (hereinafter the UNCITRAL). Reports of the Working Group which detail discussions and suggestions by various representatives of participating nations outline the drafting. Moreover, a special Report by the Secretariat,[10] accompanied the final drafts to the Convention as an explanatory commentary. This latter document poses a unique problem. It is the equivalent to travaux préparatoires, since it comments an earlier draft, but it is considered by some to be the next best thing to an official commentary.[11] However, the importance of travaux préparatoires in the CISG regime is somewhat uncertain. On one hand, it might successfully be argued that as certain ratifying countries to the Convention have legal systems which do not prioritise travaux préparatoires highly as legal sources (i.e., the common law countries),[12] it should not be given much weight. However, on the other hand the Commentary is extremely helpful in illustrating the intent of the drafters, and has been considered important by certain practitioners and scholars. For the purpose of the present paper the Commentary will be considered significant, not only because it helps define the terms applied in the Convention irrespective of Common Law tradition, but also since it is the only source of law commenting on the CISG which has been recognised by all countries partaking in the drafting of the Convention and thus represents internationally accepted theories behind the provisions.

2.1.2. Application without Supranational Control

The CISG also presents the practitioner with another problem, although this one is not so unique in the framework of the United Nations. The Convention forms part of the UN regime. As such, there is no supranational instance (such as the EEC Court) or Court of Uniformity before which cases can be lodged. This means that problems of uniformity must be solved in the domestic realm -- and that domestic discrepancies in practice or misconstructions of the CISG cannot be brought before international CISG experts and rectified. However, the domestic practice of the Contracting States, as well as the practice from Arbitral Tribunals, is under a constant vigilance from international legal scholars, who are quick to subsequently point out any misunderstandings or problems which may have occurred -- this can at least help prevent further mistakes from becoming precedents to others.[13] Although a tribunal monitoring its application would be preferable, the uniformity of the CISG would seem well protected to a certain degree -- also where the protection of the uniform terms is concerned.

2.1.3. Accessibility to Caselaw

This monitoring of caselaw is closely connected to yet another problem facing the practitioner as well as the scholar of all international law -- namely that of the accessibility of all relevant foreign judgements. Paying heed to international precedents either directly or via scholars requires the caselaw in question to be accessible.

Although great progress has been made in this field for the CISG with the arrival of databases on the Internet and collections of caselaw such as CLOUT and UNILEX,[14] this progress is primarily made for the legal systems of Central Europe and the United States. Caselaw from, for example, three of the official language texts of the Convention (Arabic, Chinese and Russian) is not yet available to the "western" scholar. Such problems, and many others, would be greatly aided by the establishing of a centre for research and documentation in all branches of the CISG, as proposed by prominent scholars such as Prof. Honnold.[15]

However, such a centre is not a reality, and frequently international scholars will have better access to judgements available to them from their own country or related/similar legal systems,[16] and thus have greater opportunity to analyse and quote these -- in turn, the domestic practitioners will be more prone to refer to international scholars of their own nationality in their own language,[17] and thus even the judge complying with his duty to apply international precedents will inadvertently apply precedents and theories which are more focused on domestic or similar practice in his interpretation of the terms of the CISG.

2.2. Interpretation of Terms in the CISG

The CISG is a uniform sales law which must be applied and interpreted uniformly, in accordance with Article 7(1).[18] This uniformity is at the very core of the Convention's existence, since the need for an international convention on sales of goods was prompted by the need for certainty in contracts on an international basis.

This uniformity means that it should ideally be applied identically in all Courts and Tribunals where it is adhered to. The practitioner of the CISG has a duty, extrapolated from 7(1), to consider caselaw from other Contracting States and other states applying the CISG via Article 1(1)(b), as well as from Arbitral Tribunals.[19] The enactment of uniform laws will not suffice where these laws are not taken to mean the same.[20]

Furthermore, some leading scholars see the CISG as an opportunity to establish a lingua franca of common language as well as common legal concepts to bridge the gap between international parties in trade.[21] This requires all terms to be understood uniformly and equally. Thus, for a term to be suitable to a uniform law, a determination of this term which transcends borders and assumes an objective meaning is required.

Some assistance to this interpretation of terms is found in Article 7(2), which prescribes that gaps are to be filled with the general principles underlying the Convention where such principles are present,[22] but still this is a tricky tightrope to walk. On one hand, the problem of faux amis or labelling means that the drafter, practitioner and scholar of uniform law should also beware of terms which seem precise but which may have different domestic legal connotations for the Court or Tribunal interpreting them,[23] which may render them even more imprecise than the seemingly vaguer terms. On the other hand, a subjective definition of terms in a uniform law would render the uniformity of the law itself illusory, and imprecise terms can allow a margin of such subjective determination if they are not guided by criteria for their application.

The term "reasonable" falls in the latter category of terms.

2.3. Reasonableness in the CISG

The subjectivity of the term "reasonable" is what makes it both suitable and unsuitable for application in a uniform law. It is flexible enough to avoid the problem of faux amis, but may also be too imprecise to ensure uniformity if left on its own with no guideline or criteria.

Nevertheless, there are no less than 37 provisions of the CISG which contain the word "reasonable".[24] One of these provisions, Article 8(2), prescribes that for the purpose of the CISG a party is entitled to interpret actions of another party in accordance with the understanding that a reasonable person of the same kind would have, provided the intent of the action is not known to him.[25] In other words, the right to "reasonably" interpret actions applies to the entire Convention. Moreover, reasonableness is considered a general principle upon which the Convention is based, and so applies to all issues governed by but not settled in the CISG by virtue of Article 7(2) of the Convention.[26]

The following will examine what this abundance of reasonableness in the CISG entails and implies.

2.3.1. The Flexibility of Reasonableness in General

When considering the popularity of the term "reasonable" in the CISG, it is important to keep in mind that the Convention represents a compromise of "equal ground" in transnational trade law, to make it capable of a wide acceptance by countries of different legal, social and economic backgrounds. Since the concepts of reasonableness, fairness and justice are the cornerstones of all legal systems, the term "reasonable" would be easily acceptable to all representatives due to its indication of justice and, not least, its flexibility.

The term, undoubtedly, holds a high degree of flexibility within the framework of legal science -- the subjectivity of its linguistic definition spills over into its legal definition to the extent that it is generally taken to mean that all circumstances may be of influence when determining behaviour in the eyes of the law. For instance, as opposed to other "yardsticks" against which good behaviour has been measured (such as the Bonus Pater Familias and the Vir Optimus from tort law), the concept of the reasonable man does not lay down rigid standards for perfect behaviour, but takes everything into account. Similarly, everything that is "reasonable" does not leave out any criteria in this determination of fairness. This is the flip side to the flexibility of reasonableness; it is a very broad term which takes everything into account with no particular vantage point. It is extremely subjective, and easily subject to circumstances which might be deemed legally irrelevant before some Courts and Tribunals.

This subjectivity especially poses a problem where uniform law is concerned.

2.3.2. The Problem of Flexible Reasonableness in the CISG

The use of such a flexible term as "reasonable" in a CISG provision would seem to imply that the drafters of the CISG intended its application to vary, depending on the individual facts of each case.[27] It cannot, however, have been the intention of the drafters that the uniformity of the Convention should suffer under this flexibility,[28] as there is no margin of appreciation within the framework of the CISG for practitioners to adapt it to their own domestic legal systems.[29]

Although flexibility is a necessary prerequisite to fairness in legislation and practice, there must be a guideline and criteria for all the flexible terms requiring reasonableness if they are not to become too imprecise, and the basis for seemingly arbitrary outcomes. Some provisions have such guidelines incorporated in the Convention.[30] In the absence of such a Convention guideline, or if it is still too imprecise, the practitioners, scholars and jurists must step in. Since Article 7(1) of the CISG prescribes not only uniformity, but also that regard must be had to the international character of the Convention, each provision containing the term "reasonable" should ideally be given its own autonomous determination of that particular reasonableness.[31] Any emerging judicial and arbitral definitions of these "reasonable" provisions, in practice as well as theory, should reflect this and establish a pattern for the interpretation of the terms.

This brings me back to the focal point of the present paper, namely the determination of the term "reasonable time" in Article 39(1), and the assessment of its congruency in practice. Through an understanding of the provision itself and the scholarly interpretation of "reasonable time", as well as the all important international practice of the provision, such a pattern to the interpretation of Article 39(1) can, hopefully, be established, and the question of its uniformity can be settled.


II. The Problems of Article 39

Of all the references to reasonableness in the CISG, the reference to "reasonable time" in Article 39(1) has captured the most judicial and arbitral attention. Indeed, Article 39 is one of the articles of the CISG which has been applied most by arbitrators and Courts.[32] There are numerous reasons for this richness in practice, the most significant of which is probably the vagueness of the term coupled with the fact that -- unlike where Article 8(2) is concerned -- criteria for determining this "reasonable" time period were never laid down in the Convention nor in the travaux préparatoires. It has thus been up to practitioners, scholars and jurists to determine what "within reasonable time" is.

This has resulted in the fact that Article 39(1) poses an interesting problem. Not only in the definition of "within reasonable time", but also in the analysis of possible differences in practice: What are differences based upon? Are they significant? Has domestic law influenced the domestic Courts?

Consequently, Article 39(1) is a well suited provision for analysing and determining whether the reasonability-factor is a suitable one for making a provision flexible, or whether it will endanger the uniformity of the Convention. The present paper will therefore focus on Article 39(1), and the meaning of "reasonable time", in an attempt to determine whether this is, indeed, an autonomous term which is understood uniformly. This will be illustrated by a comparative analysis of the practice from the Tribunals and domestic Courts on Article 39(1) of the CISG. In the process, the question of whether there is an emerging pattern for the determination of this term will be investigated and, hopefully, answered.

First, an understanding of the provision is necessary.

1. Introducing Article 39(1)

Article 39 is part of Part III, Chapter II, Section II of the CISG, which is the section dealing with conformity of the goods and third party claims. It outlines an obligation for the buyer to communicate dissatisfaction in connection with other provisions of the CISG, and should be seen as part of a whole. It has been considered one of the most important issues of the CISG by leading scholars.[33]

Article 39 provides that:

"(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 this time-limit is inconsistent with a contractual period of guarantee."

Article 39 is closely linked to other Articles of the CISG, most notably Articles 35, 38, 40 and 44: These provisions place Article 39 in its context, and help define and outline the duty to give notice.

1.1. Notice of Non-Conformity - Why?

A duty to reasonably notify of termination of a contract is well known in most legal systems.[34] However, the notification duty in Article 39(1) is not restricted to such cases of termination/avoidance, but concerns any remedy under the CISG: The failure to comply with this duty to notify of non-conformity will usually result in a complete loss of remedy, including the right to claim damages. This has been considered a drastic, and even disastrous, sanction by leading scholars.[35] The duty to notify applies to all buyers, regardless of their civil or commercial status.

As illustrated by the Secretariat Commentary to the Convention, the purpose of the notification requirement in Article 39(1) is the protection of the seller: it prevents a buyer from any unreasonable reliance on alleged non-conformity which the seller is not able to protect himself from,[36] and protects the seller's interest in regarding the transaction fully completed not too long after he has completed his end of the bargain. Moreover, according to some scholars, the notice requirement is also in the buyer's interest as it promotes a swift cure.[37] In addition to this, in the case of avoidance, Article 39(1) notice may be combined with notice of avoidance in accordance with Articles 26 and 49(2), and the notice then additionally serves the purpose of preventing the buyer from speculating at the seller's expense.[38]

Article 35 of the CISG requires the seller to deliver goods conforming to the specifications of the contract between the buyer and the seller.[39] Any lack of such conformity[40] may constitute a breach which will enable the buyer to exercise remedies under the Convention depending on the severity of the breach ensuing from the non-conformity.[41] These remedies vary from a right to fix a time for cure,[42] a reduction of price [43] and damages,[44] to the more drastic remedy of avoidance[45] of the contract where the breach is fundamental.[46]

However, in order to retain his right to rely on any given non-conformity, the buyer must -- according to Article 39(1) -- specify the lack of conformity to the seller "within reasonable time" after he discovers it or ought to have discovered it, or at least -- according to Article 39(2) -- within two years from delivery (unless a longer period of guarantee has been extended from the seller).

So if a buyer does not wish to pay for faulty goods or pay in full for an incomplete shipment, he had better give the proper notice.

1.2. Notice of Non-Conformity - How?

Article 39(1) requires the buyer to specify the nature of the lack of conformity to the seller.[47] Simply communicating that the goods do not conform will not suffice for the purposes of Article 39(1). And if the goods suffer from more than one sort of non-conformity or defect, each must be duly notified to the seller in order for the buyer to rely thereupon.[48] If a notice is not specific enough, it will not be considered a satisfactory Article 39(1) notice, no matter how swiftly it was communicated.[49]

This is the only requirement regarding form. This means that any kind of notice will suffice if timely and specific. A telephone call which details the non-conformity within reasonable time satisfies the requirement of Article 39(1) -- at least in theory. It will, however, more often than not be impossible for the buyer to substantiate that such a timely call took place and that notice was communicated specifically to the correct person.[50] Consequently, a more easily proven means of communicating the notice would be preferable.

Moreover, notice must be communicated to the seller. If notice is given to a third party or someone associated with the seller but not directly identifiable with him (i.e., not directly in the seller's employ), the buyer must ensure that the seller receives it. And that could prove a lot trickier than delivering it to the seller in the first place.

But, naturally, to notify of a non-conformity the buyer will need to discover it first.

1.3. Notice of Non-Conformity - When?

Article 39(1) notification must be given within reasonable time after the buyer has "discovered" or "ought to have discovered" the non-conformity of the goods. This period within which notification must be given is measured in accordance with the following.

1.3.1. Start of "Reasonable Time" Period

Article 38 prescribes a duty for the buyer to inspect the goods delivered to him within a short period.[51] Since Article 39(1) relies not only on the time of discovery of a non-conformity but also on the time a buyer "ought to have discovered it", these two provisions are closely entwined. Indeed, Article 38 is prefatory to Article 39.

This relationship with Article 38 usually determines precisely from when the reasonable time period is to be measured: as the time-frame of reasonable time pertains to the period after the non-conformity is discovered (or ought to have been discovered), it is only related to the time of delivery via Article 38. The Article 38 examination need not be carried out immediately after the delivery of the goods (although this is recommendable to avoid all doubts) nor within a set time-frame,[52] but hurriedly according to the objective circumstances of the case.[53] It is at this point that the buyer normally ought to discover the non-conformity.[54]

For the purpose of Article 39(1), it is irrelevant when the buyer in fact discovers a non-conformity, if he neglects his duty to inspect the goods within as short a period of time as is practicable; Article 39(1) will be violated if notice is not given within reasonable time after the buyer ought to have discovered the non-conformity in accordance with an examination carried out under Article 38, even if notice is given immediately after he discovers it.

Only where a buyer can prove that a satisfactory examination would not reasonably [55] have revealed the lack of conformity is Article 38 not relevant to Article 39.[56] The question of whether it would be customary to discover the non-conformity in question in trade may influence whether the non-conformity ought to have been discovered,[57] in accordance with Article 9(2),[58] as will the type of goods concerned and the facilities of the parties.[59] The Secretariat Commentary states that in such cases, the buyer must give notice within a reasonable time after he discovered the non-conformity in fact or ought to have discovered it in the light of the ensuing events, for instance, because the goods are taken into use, as mentioned in Secretariat Commentary example 37A.[60] Such cases will however be rare, as the duty to examine the goods in Article 38 is an extensive one.[61]

Logically, if a more detailed examination is required before the non-conformity can be determined, the Article 39(1)-time frame commences later. For instance, where an expert examination is necessary for the determination of non-conformity, the period of "reasonable time" does not start to run until the expert report is published, as this is then the time at which the non-conformity ought to have been discovered.[62]

Similarly, if a buyer can present an excuse for not having examined the goods in accordance with Article 38, and is otherwise justifiably unaware of the non-conformity,[63] he cannot be punished by Article 39 for not giving notice of this non-conformity within reasonable time since he ought not have discovered it. If, on the other hand, the buyer discovers a lack of conformity before he "ought to", the reasonable time of the notice is counted from this time, even if this is before the delivery of the goods.[64]

It should be noted, that regarding the time from which reasonable time is to be calculated, it may be inferred that Prof. Sono seems to consider the time when the seller ought to have discovered the goods an entirely separate issue from the examination duty in Article 38,[65] and Prof. Schlechtriem has stated that it is to be calculated from the actual handing over of the goods.[66] These conclusions seems to contradict the Secretariat Commentary and the above-mentioned scholars. Moreover, by denying the interrelation of Articles 38 and 39, these conclusions fuel the confusion between the two Articles which otherwise abounds.

1.3.1.1. The Mix-up of Articles 38(1) and 39(1)

To date, there has been some confusion in practice between the Article 38 and Article 39 time-frames, and these are often mixed together as a whole, counting from the time of delivery; factors which should ideally only determine when the non-conformities should be discovered are taken to influence the period of reasonable time, and vice versa.

An isolation of the two time-frames will, admittedly, often be purely academic as the time when the goods are to be examined (and most non-conformities ought to be discovered) is dependant upon the time of delivery of the goods according to Article 38. Nonetheless, it would be preferable for Courts separately to determine: 1) Upon which date the non-conformity ought to have been discovered (usually in connection with Article 38), and then 2) Within which time-frame notice should have been given.

This would eliminate any doubt as to which factors influence the time of notification, an analysis which is difficult when Articles 38 and 39 are taken together. The confusion of the two Articles will often fog the issue of these factors. A typical example of this is the nature of the non-conformity: if the non-conformity is easily discernible this should make the reasonable time period begin sooner after the time of delivery, but ought not affect its actual span. However, scholars and practitioners alike deem the discernability of the non-conformity a factor influencing the reasonable time period.[67] But, strictly speaking, that should not be so. This factor ought to influence the time which the non-conformity ought to have been discovered, not the time which it subsequently takes to give the notice.

Ideally, factors which influence the time between realisation and communication of non-conformity should be limited to relevant considerations of communication and considerations regarding the perishable nature of the goods, special deadlines or similar aspects. These factors should apply in like manner regardless of how the lack of conformity is discovered or ought to have been discovered, as the time-frame of reasonable time only pertains to the time-span between (would-be) discovery and communication.

1.3.2. End of "Reasonable Time" Period

A notice of non-conformity under Article 39(1) of the CISG is "given" in the sense of Article 39(1) and considered communicated at the time when it is appropriately sent, in accordance with Article 27 of the Convention.[68] The risk of delay or fault in the transmission does not compromise the buyer. In the words of Prof. Schlechtriem: "Rüge reist auf Risiko des Empfängers" -- the notice travels at the recipient's risk.[69]

1.4. Notice of Non-Conformity - Exceptions to the Rule

All in all, the buyer must tread with caution. A thorough and speedy examination of the goods, and a specific and documented notice of non-conformity following this examination, given directly to the seller, would seem the safest approach for a buyer wishing to retain the right to rely on any non-conformity of goods. The consequences of a failure to give such notice will normally be a complete loss of remedy under the CISG.

The exceptions to this rule lie in Articles 40 and 44.

Article 40 provides that the seller cannot rely on the buyer's duty to give notice of non-conformity where the seller was aware, or could not have been unaware of the non-conformity in question.[70] This awareness on the seller's part is not always easily proven, as it is the buyer who must prove it.[71] Moreover, legal scholars do not agree as to the extent of "could not have been unaware". Some believe it goes beyond gross negligence and must be something very obvious,[72] whereas others believe the phrase to encompass simple negligence and the failure to comply with the precautions and care which may be expected.[73] Reported practice on Article 40 is very scarce, and the outcome is rarely an assumption of the seller's knowledge where this cannot be certain.[74]

According to Article 44, certain remedies may be retained by the seller if a "reasonable excuse" for the failure to give notice within reasonable time can be proven.[75] Again, the term "reasonable" is used to imply flexibility. However, a reasonable excuse will more often than not be rather difficult to come by (especially where the buyer knew of the non-conformity [76] -- unless he reasonably misjudged the significance of the non-conformity in question [77]). Practice on Article 44 has not yet found for the buyer claiming to have an excuse.[78] In fact, it would seem that German legal scholars and Courts agree that fast-paced businesses are very unlikely candidates for the presentation of a reasonable excuse [79] -- this would seem to exclude a substantial section of the modern business community.[80]

1.5. The Two Time-Frames of Article 39

With such a severe and drastic consequence as loss of remedy looming in the horizon, and a reasonable excuse so hard to come by, a buyer need therefore ideally know which time-frame for notification lies before him if he wishes to rely on a non-conformity. The only time-frames to be considered are the absolute two-year time-frame for hidden defects in Article 39(2) and the vaguer one of "within reasonable time" in Article 39(1).

The absolute time-frame of two years poses no significant problems of interpretation.[81] Two years after delivery of the goods, a buyer cannot rely on a hidden defect unless it is encompassed by a specific guarantee made by the seller. This applies even if the buyer can produce a satisfactory "reasonable excuse" in accordance with Article 44 of the Convention. Although greatly disputed during the drafting, the two-year period was adopted in order to prevent claims based on doubtful validity and evidence which would be hard to come by.[82] The period runs from the moment the goods are handed over to the buyer, and is a straight forward period of exclusion which, absent agreement by the parties, cannot be stalled.[83] Although perhaps more controversial than Article 39(1),[84] Article 39(2) leaves little room for discrepancies or doubt regarding the time-frame.[85]

With respect to the Article 39(1) time-frame of "reasonable time" which applies in the more common cases of more discoverable non-conformities, however, difficulties abound. The buyer cannot predictably foretell which time-frame he faces before his right to rely on the non-conformity expires. What is reasonable time? Must it be reasonable from the buyer's point of view or from the seller's? And how should the time-frame be determined?

Although a fixed time-frame for such a notice might pose a significantly easier solution, and a more "friendly" one for both buyer and seller with respect to predictability, such a solution was not chosen. The drafter's use of the term "reasonable time" would seem to represent a compromise between the certainty of contracts and the fairness of each individual case. While the Convention is based on uniformity and predictability in international trade, its success also hinged on its acceptance by the representatives of the Working Group. The development of a fixed time-frame would have been a utopian undertaking, despite its obvious advantages of certainty, as illustrated by the history of the provision.[86]

2. A Brief History of Article 39(1)

Article 39(1) of the CISG is largely a restatement of the first line of Article 39(1) of the ULIS.[87] There has been a slight change in wording as Article 39(1) of the ULIS required notification of non-conformity to be given "promptly" and not "within reasonable time". Several scholars [88] and practitioners [89] have taken this change in wording to indicate that the term "promptly" was thought too strict and that the drafters sought to make the time-frame in the new provision of the CISG more buyer-friendly. In fact, Article 11 of the ULIS defined promptly as being within a short period "from the moment when the act could reasonably be performed";[90] and the change in wording of Article 39(1) would therefore not seem overly significant.[91] It was amended as "promptly" was thought too rigid; and the Working Group concluded that "the expression "within a reasonable time" was sufficiently flexible to adapt to the varying circumstances in which inspection might be required".[92] The wording of the CISG implies a larger degree of flexibility, but the initial time-frames set out in the two provisions would seem more similar than concluded by some. Moreover, this accentuated flexibility might also conceivably be in the seller's favour in certain cases where the reasonability of a notice requires it to be swifter than after a short time after it could reasonably have been given. The primary difference between the two Article 39 time-frames does not lie in the change of wording, but in the change of their settings; the nature of the CISG has enabled interpretations of Article 39(1) which represent generous international compromises, see subsection 3 infra.

Despite the fact that Article 39 as a whole was a restatement of an existing provision, it was one of the most difficult provisions to reach agreement on. But the controversy of the provision was focused on the two-year cut-off period in what was to become Article 39(2), and very little attention was paid to the term "reasonable time". It was proposed, at the second session of the Working Group [93] and at the suggestion of Pakistan [94] when commenting on the Draft Convention,[95] that this term should be defined in the Convention. But sadly it was not, although a guideline for its determination is sorely needed.[96]

As mentioned above, the existing Article 39(1) is closely related to Article 38, according to which a buyer must examine the goods delivered to him. During the drafting of the Convention, some representatives feared that the consequences of Article 38 and 39 taken together would be too strict for the buyers of their country since examination and notification would not always be possible, and a need for flexibility was stressed. A firm or fixed notification time-frame could not be introduced in the compromise which the drafting of the CISG presented.

However, when considering the Convention as it is today, this reasoning would seem insufficient to bar the application of a more fixed notification time-frame which would have afforded the buyer a larger degree of predictability and certainty as to his obligations. The specific situation of not being able to examine the goods properly would seem encompassed by the wording of Article 38 ("within as short a period as is practicable in the circumstances") which the "ought to have had discovered" wording in Article 39(1) is dependant upon. At the very least, such a situation would be encompassed by the "reasonable excuse" wording of Article 44 which would allow such an unfortunate buyer to retain certain remedies. The application of a firmer or fixed time-frame would have been preferable and would not have caused developing countries any difficulties along the lines which they seemed to fear. It is interesting to note, however, that the flexible "reasonable time" time-frame was introduced before the exception of the present Article 44 and before the wording of Article 38 of the ULIS was changed from "promptly" to form the existing Article 38.

Nevertheless, the fact remains that Article 39(1) of the CISG requires a buyer to specify non-conformity to the seller -- not within a tangible fixed time-frame but "within reasonable time" after discovering a non-conformity or after he ought to have discovered it. This determination of "reasonable time" in Article 39(1) [97] is a tricky one, as the following theories from prominent scholars will evidence.

3. Scholarly Determinations of "Reasonable Time" in Article 39(1)

The Secretariat Commentary sheds no light on the definition of "reasonable time" in its commentary to Article 37 (the former draft of Article 39, the wording of which was kept). It elaborates on the consequences of failure to give notice, the relationship between Articles 36 and 37 (former drafts of the existing Articles 38 and 39), and the purpose of the two-year cut-off period and its relationship to periods of guarantee. There are no factors or guidelines for the determination of reasonable time to be found here nor in the Convention,[98] and there were no such guidelines stated elsewhere during the drafting of the CISG, despite the urging from representatives that this term be determined.[99]

While there is nothing to be found to shed light on the concept of "reasonable time" in Article 39(1) in neither the Convention itself nor in its travaux préparatoires, the term has been examined by numerous legal commentators and theoreticians analysing the CISG as a whole or in part. Different scholars have suggested various definitions as to what the term may mean.

One such leading scholar, Prof. Honnold, states that the assessment of "reasonable time" is one which must take into account a wide range of factors.[100] At a glance, this would seem a straight-forward interpretation in keeping with the general legal definition of the term "reasonable" and in compliance with the drafters' use of this flexible term. It would also seem an objective solution to the question of whether the time-frame should be reasonable from the seller's or the buyer's point of view. While the purpose of the provision would seem to imply that the time-frame should be reasonable for the seller whose interests it protects, the fact that it represents a flexible compromise in the interests of the buyer would outweigh this consideration. By taking "a wide range of factors" into account, and thus the reasonableness of the time-frame in both the seller's and the buyer's point of view, a more subjective and fair solution can be reached in each individual case. But when applying this interpretation to a particular case, the practitioner should be aware that a wide range of factors does not mean all factors.

Not all factors are suitable for influencing the time-frame in question. The influence of some aspects must be considered legal misapprehensions in international trade rather than factors of reasonableness. For instance, what if these factors include purely domestic aspects? Keeping in mind the importance of trade usage in the CISG regime, it would be interesting to consider whether, for example, a domestic trade usage for longer notices [101] would grant the buyer longer time to react to the non-conformity of the seller's goods than a buyer facing exactly the same circumstances save for that domestic aspect.

Applying such a unique and subjective factor would seem to result in a violation of the uniformity of the CISG, and be contrary to the intention of the drafters. But it might also, on the other hand, seem unreasonable to not take into account that domestic aspect which may have influenced the buyer, and which the seller may well be aware of, and the importance of trade usage in commercial law is not to be underestimated. In such a situation, it would seem that the practitioner is faced with a choice between uniform subjective fairness and objective uniformity where the term "reasonable time" has become too flexible and encompasses too much.

The application and interpretation of the provision itself -- and not the reasonableness of the cases -- is required to be uniform under the CISG. Consequently, it must be concluded that the uniformity must take precedence over the flexibility of the term "reasonableness" where undue domestic factors endanger the uniformity of the application of the convention.

Barring cases of bad faith or reasonable assumptions by a party that such factors as domestic trade usage would influence the agreement, such considerations on the part of the buyer/seller should be considered legal misapprehensions in the context of international trade. Not all purely domestic subjective aspects can be considered.

As the example above illustrates, the term "reasonable time" can become too imprecise and subjective, and a firmer guideline for the determination of the time-frame is required. If the term were applied to a vantage point of a fixed period, which would then be influenced by pre-determined or other reasonable factors, more uniform results would ensue and there would be greater predictability for the both buyer and seller in the determination of when a notice of non-conformity is due.

Such fixed guidelines for the determination of reasonable time have been suggested by other scholars. The Swiss scholar Schwenzer points out in Prof. Schlechtriem's Commentary that many German scholars consider reasonable time to be a period of about eight days where no special circumstances apply.[102] However, she goes on to state that other domestic legal systems have notice-requirements similar to Article 39(1) with time-frames that can be permitted to be much longer (such as France and the United States) which should be considered, and that an appropriate compromise would seem to be a vantage point of approximately one month to avoid discrepancies in international practice.[103] This compromise, which Schwenzer deems a "Großzügiger Monat", hereinafter referred to as the "noble month", is one which duly considers the need for uniformity while still retaining the flexibility of the time-frame as intended by the drafters by allowing individual factors to influence the vantage point. In accordance with Article 7(2), a compromise of legal systems is furthermore in keeping with the general principle of the Convention of equal treatment for different legal backgrounds,[104] and would be thoroughly recommendable as an international guideline applied by all practitioners.

The problem with such a fixed guideline is, of course, the establishing of the "typical situation" which represents the norm. It would be impossible to imagine a situation where there were no factors which influenced the time frame, which could represent the situation against which all others could be measured. Nonetheless, such a perfectly typical situation does not necessarily have to be outlined for a guideline to apply equally to all notices subject to factors of reasonableness.

Regarding factors which influence the timeliness, Schwenzer also points out that an individual analysis must be carried out for each individual case, and she names certain factors which may influence the notice period -- namely the nature of the goods (whether the goods are perishable or seasonal) and which remedy the buyer chooses.[105] For instance, if the buyer is rejecting the goods, a prompter communication may be required than if the buyer decides to keep them subject to damages.

Although not explicitly mentioned by Schwenzer, the application of the factors of perishability and seasonal affiliation would logically differ according to the remedy chosen. The perishable nature of the goods would seem relevant regardless of remedy, as the seller will need a swift notice to verify a defect before the goods "rot away", even if the buyer keeps them. However, if the buyer claims damages and keeps the goods, their possible seasonal affiliation would seem to be his problem, as long as the tardiness of notice is not reflected in his claim against the seller, and this does not need to influence the timeliness of the notice.

The latter factor of considering the remedy chosen was introduced by Prof. Sono, who explains that this might influence the notice as the seller should then be given an opportunity to care for his goods and his own interests.[106] Interestingly, proposals were made during the drafting of the Convention for this factor to be included in the Convention by exempting price reductions from the loss of remedy ensuing from a failure to give notice,[107] but this proposal was not drafted. Prof. Ferrari agrees with this factor of choice of remedy, and adds that the "perishability of the goods" and the terms of the contracts are also valid considerations.[108]

By mentioning "the need for impartial sampling or testing, and the possibility of cure by the seller" along with the perishable nature of the goods as considerations indicating the need for speed, Prof. Honnold would seem to focus on the mitigation principle (expressed in Article 77 for parties relying on breach) and the seller's interests of "damage control", but does not pronounce on the factor of choice of remedy. However, Profs. Enderlein and Maskow, while stating that "[t]he reasonable time is . . . a short period", disagree with the factor of choice of remedy as an influence on timeliness, and state that the notice time-frame remains the same even if the buyer is relying on the non-conformity for damages.[109] The true importance of this factor can only be found in caselaw.

Many of these determinations of reasonable time glean their identity from the international practice of Courts and Tribunals when determining "reasonable time", and it is certainly here that the key is to be found. It is the actual application of the provision which ultimately defines it. Consequently, in the following, judicial practice of Article 39(1) in several Contracting States will be presented. This should enable a definition of criteria for the determination of the term, and a comparative analysis of the practices of different countries in the assessment of the uniformity of the provision.


III. Transnational Article 39(1) Practice

In the following, reported international Article 39(1) practice will be detailed [110] and analysed. Due to the vastness of German caselaw, the judgements from this country will be analysed separately, followed by caselaw from other countries and, finally, from international Arbitral Tribunals.

1. Germany

1.1. A Brief Introduction

1.1.1. The German Legal System and the CISG

Germany is divided into different legal districts, each of which has its own District Court (Landgericht) and Higher District Court (Oberlandesgericht). These districts are divided into smaller sub-sections which each have their own Petty Court (Amtsgericht).

A case may be tried in either the Petty or District Court at the first instance, depending on the matter of the case, and appealed to the instance directly above. A case commencing in a District Court may be appealed twice to the level of the Supreme Court (Bundesgerichtshof), in disputes concerning matters of fundamental importance or case-matter over DM 60,000. The Supreme Court is situated in Karlsruhe and determines the last word in German legal issues. The decisions of all instances form precedents for the others to a certain extent, but naturally the hierarchy of the Court determines the value of the precedent of its judgements.

In German domestic law, commercial parties are subject to the Handelsgesetzbuch (HGB - Commercial Code) and the commercial buyer is required to notify the commercial seller of any non-conformity according to HGB §377 (regarding non-conformity) or HGB §378 (regarding goods that are aliud or delivered in wrong quantity). These provisions call for an "unhesitant" notice from the time of delivery (in case of obvious non-conformities) or from the time of discovery (in the case of hidden defects). The term "unhesitant" should, according to Article § 121 of the Bürgerliches Gesetzbuch (BGB - Civil Code) be defined as "with no blameworthy hesitation".[111] The wording of this time-frame is very similar to that of "reasonable time" set out in Article 39(1) of the CISG, the consequence of non-reliance if no timely notice is given is the same,[112] and there is no form-requirement of the notice.[113] In practice, this domestic time-frame is a flexible one which must be reasonable; however, this is usually stressed as reasonably brief, and notice periods of over two weeks will rarely be tolerated.

The CISG was adopted by Germany in 1990, with an indirect reservation taken against its application.[114] German Courts as a whole have had ample opportunity to decide cases involving the CISG, and there is certainly no lack of practice regarding Article 39.

1.1.2. Article 39(1) of the CISG in German Practice

The international practice of Article 39(1) is quite abundant when compared to the practice of other Articles of the CISG. And a majority of the published cases concerning this provision stem from the Courts of one country -- namely Germany.[115] A direct reason for this may be difficult to find. However, some of the factors influencing this wealth of practice might include the nature of the codified German civil-law legal system, the fact that Germany have been accustomed to uniform international trade law through their application of the ULIS and the ULF,[116] and the extensive trading with Italy which takes place in Germany.

As mentioned above, the trade section of German law contains a provision which is similar to that of Article 39 of the CISG, namely HGB § 377, which provides that notice of non-conformity be given within a flexible period of time. In contrast to this, Article 1495(1) of the Italian Civil Code provides a duty to notify of non-conformity within 8 days. This difference in domestic laws could make an Italian seller more accustomed to having the right to be properly notified of any non-conformity within a fixed narrow time-frame, whereas the German buyer according to his domestic law has a more flexible time-frame. Even where the parties are aware that their agreement is subjected to the CISG, this will often result in a discrepancy between the parties' expectations as to what "reasonable time" means in relation to the notice requirement, and they will take their differences to Court. Since the rules of International Private Law appoint the country of the defendant (according to the actor sequitur forum rei principle),[117] the German Courts are given ample opportunity to judge these cases where the seller sues the buyer for the purchase price.[118] Indeed, a majority of the German cases on Article 39 of the CISG stem from contracts between a German buyer and an Italian seller.[119]

In any event, the many German judgements concerning Article 39(1) make it possible to examine virtually all nooks and crannies of the application of the provision, and consequently a great part of the present paper will necessarily focus on the practice of the German Courts. Although not all judgements or aspects of this practice will aid a transnational comparative study of Article 39(1) practice at the present point in time since caselaw from other countries is less abundant, the following will attempt to outline a complete picture of the application of the provision in German law by analysing all aspects of its interpretation. Thus, even though the present paper mainly focuses on the determination of when a notice is considered delivered "within reasonable time", an analysis of German practice of Article 39(1) will be incomplete without first determining what constitutes a notice with regard to specificity and form. The aspects of these requirements also influences the determination of reasonable time in some cases.

Consequently, this section will first examine the content and form of the notices, and then examine the time-frames within which they are given, in an attempt to conclude what the German Courts determine to be "notice" and "within reasonable time".

1.2. Specificity and Form of the Notice of Non-Conformity

1.2.1. Specifying the Nature of the Non-Conformity

As mentioned above, a notice must not only be delivered within reasonable time to the seller, but must also specify the nature of the lack of conformity in order to be in accordance with Article 39(1).[120] The requirement for the notice to be specific is highly significant as it influences whether a notice is given.

This is illustrated by a 1995 judgement from the District Court of München concerning frozen bacon, wherein the Court found that a telex claiming "the goods are rancid" sent on the day of discovery of non-conformity did not meet the requirement of Article 39, and that the subsequent notice which specified it was not given within reasonable time.[121] The Court found that the buyer should not have hesitated to specify the non-conformity more carefully in the first notice. Another judgement from the same Court [122] pronounced that asking for assistance in identifying a problem with a computer program did not constitute proper notice of non-conformity. An earlier judgement on fashion goods held that a reference to poor workmanship and improper fitting was an inadequate specification of the nature of the lack of conformity.[123]

Similarly, the Higher District Court of Koblenz recently found that the buyer's notice was not specific enough.[124] The buyer had communicated that five rolls of acrylic blankets were missing, but did not specify how he wished the buyer to cure this defect, in the spirit of Article 39.[125] The Court found that although timely notice was given in regard to time-frame, in principle no notice could be said to have been given within reasonable time. This judgement seem a very harsh interpretation of the provision, and is currently pending before the Supreme Court.[126]

In a District Court judgement from Bochum from 1996,[127] the buyer notified the seller that the truffles delivered to him were "soft". This was not found to be a specific notice that the truffles contained worms, despite the fact that the buyer claimed that most professional truffle-vendors would know that softness implied a probable worm-infestation. The Court stated that, regardless, the buyer should have added that the truffles "had worms due to their softness upon delivery" for the notice to be considered sufficiently specific. The Court also added that where notice of lack of conformity is not given personally to the seller, the buyer must ensure that the seller actually receives notice. The fact that the notice must be specifically directed to the seller, was also stated in a District Court judgement from Kassel from 1996 regarding the sale of marble. A communication of the notice to a third party associated with the seller but not directly in the seller's employ will not suffice, as pointed out by the Court.[128]

Another District Court judgement, this one from Bielefeld from 1991, is an example of how the Court permitted the buyer to rely on part of the non-conformity of the delivered bacon, as this was properly specified in the timely (3 days after delivery) notice, whereas another aspect had not been sufficiently clarified and thus could not be relied upon.[129]

Finally, the buyer in a 1995 District Court judgement of Marburg [130] had little luck with his notification of lack of conformity to the seller. The goods (an agricultural machine) were delivered to the buyer on 26 June 1992 and redirected to a client on 22 July 1992.[131] The machine immediately proved faulty and the buyer had to take it back. Notice that the machine did not function properly was delivered on 14 August 1992 and 31 August 1992 with no response from the seller. The Court stated that these notices were not specific enough as neither of them specified the serial number of the machine nor its date of delivery -- regardless of the fact that the buyer had only ever bought one such machine from the seller, the seller could not be required to search through sales ledgers to locate the documents for the machine in question. The buyer further claimed to have telephoned specific notice to the seller, but since this could not be proven the Court found that this was not a valid notice. The Court added that since no satisfactory notice had been given until the start of the proceedings (which were initiated by the seller when the buyer tried to set-off his claim for the machine from other obligations) the absolute time-limit in Article 39(2) had lapsed, and the buyer could not rely on the non-conformity of the machine. With the application of Article 39(2), the buyer was excluded from presenting a reasonable excuse for the failure to give notice in accordance with Article 44.

It seems that German Courts are rather strict when interpreting whether the notices given by the buyer comply with the obligation to be specific. The flexibility of the term "reasonable time" has certainly not spilled over into the requirement to specify the nature of the lack of conformity. The prudent buyer must give very specific notice, detailing the lack of conformity on which he wishes to rely, directly to the seller.[132] And, as illustrated by the above judgement from Marburg, the form of the notice also holds a certain significance for the buyer's chance of success in relying on the notice.

1.2.2. Form of Notice

The manner in which a notice is communicated is not unimportant in practice, despite the fact that Article 39(1) does not prescribe a specific form.

Although perhaps an obvious one, the problem of notice-giving over the telephone has been brought before the German Courts several times. This form of notice is, in theory, acceptable, but it is a question of evidence. If the buyer cannot substantiate the call, the Court cannot take it into consideration unless the seller does not dispute it. Most buyers have been unsuccessful, but in a judgement from District Court of Frankfurt am Main from 1992, the Court found that notice was given satisfactorily since a shoe seller did not dispute that the call took place and that the non-conformity was specified.[133] Other judgements have generally been in accordance with the first judgement concerning the issue (which also concerned shoes), where the Court stated that notice by telephone per se was in accordance with Article 39, but that the buyer must indicate the date of the call and who took the call.[134] A more firm rule for notice by telephone was formed in a judgement from District Court of Frankfurt am Main from 1994 -- concerning the sale of shoes, yet again -- wherein the Court found that in order to recognise the notice, it must know when the buyer spoke to whom about what.[135] This rule of the buyer's burden of evidence has been taken to heart by all German Courts so far.[136]

Another problem presenting the practitioner as to the Article 39(1) notice is the question of the implied notice: Article 39(1) must be logically said to prescribes a duty to actively notify the seller of the non-conformity. This was the conclusion in a 1993 District Court judgement of Aachen, where a German buyer of rare wood refused to pay the Nigerian seller and thought this an implied notice of non-conformity. The Court stated that the wording of the Article requires a specific notice to be communicated, and that no notice was given within reasonable time.[137]

However, a more or less implied notice was accepted by the Court in a 1994 Petty Court judgement from Nordhorn, regarding the sale of shoes.[138] The Court found that a returning of the defective goods to the seller constituted a notice complying with Article 39. The judgement was never appealed, but it would be interesting to note how a higher instance would consider such a notice. It can certainly be argued that a return of the goods implies dissatisfaction, but not unequivocally as it could also be a mistake or clerical error. Moreover, such a notice cannot be said to specify the nature of the lack of conformity of the goods as required by Article 39, unless the non-conformity of the goods is overwhelmingly self-evident. Even so, the conclusion of the Court appears surprising, especially when compared to the more formalistic reasoning of the court in the judgement from Marburg, above.[139] Perhaps the Court found the flexibility of the time-frame and the lack of form-requirement inductive to considering the implied notice valid.

All in all, it would be advisable for a buyer faced with a non-conformity to advise the seller of the specific details hereof by means of a form of communication which is easily documented and substantiated. And the buyer must do this within reasonable time.

1.3. Within Reasonable Time

The term "within reasonable time" has been translated to "innerhalb angemesser Frist" in German. Literally, this can be translated to "within an appropriate deadline". The German language text of the Convention is not an official text,[140] but the translation would seem well-chosen as it is similar to the original term linguistically and is not a "label" from the domestic notification regulations.

There is a vast amount of German practice pertaining to the determination of "angemessene Frist", or "reasonable time". Very few of these judgements concerning Article 39(1) of the CISG find in favour of the buyer when assessing whether timely notice was given within reasonable time.[141] But here the similarities end, at a glance.

In order to ease the overview of the many diverse judgements and their determinations of what constitutes reasonable time, the succeeding section will first examine the phenomena of agreed notices and the confusion of Articles 38 and 39, followed by an analysis of the time-frames applied. This analysis will be split into two sections: recent judgements from 1995 and after, and older judgements from before 1995. This should aid the conclusion in determining any patterns, trends or guidelines.

1.3.1. Agreed Time-Frames for Notification - Derogations of "Reasonable Time"?

The time-frames accepted by the German Courts in relation to Article 39(1) vary greatly, and it is not always clearly discernible which factors the Courts have taken into consideration when deciding whether the period of time in question was reasonable.

There is, however, one aspect which is very clear. If the parties have agreed on a maximum period of notice, the Courts have unequivocally stated that if notice is outside this agreed time-frame, it cannot be considered within reasonable time. This is indisputably a correct conclusion, for even where the time-frame specified is not considered by the Courts to be an inter partes binding interpretation of "within reasonable time" as prescribed by Article 39(1), they will be free to chose another time-frame entirely in accordance with Article 6 of the CISG,[142] which allows agreed derogation from the CISG.

However, it may be possible to determine which of these agreed time-frames were considered within the "reasonable time" time-frame of Article 39(1) by the Courts, where the reasoning of the Courts is very detailed. The distinctions between what the Courts consider derogations from the CISG via Article 6 and what they consider inside the framework of Article 39 in any event and not an actual derogation, may help to illustrate whether the time-frames involved would normally be considered reasonable. This requires highly detailed ratio decidendi in judgements, but the very detailed German caselaw sometimes makes it possible to conclude whether the Courts would have considered the time-frame involved in accordance with Article 39(1) regardless of the fact that the time-frame agreed is binding between the parties. Consequently, it is interesting to notice which agreed time-frames are considered by the Courts to comprise a derogation from "reasonable time" and which do not.

In a recent judgement from Higher District Court of München regarding the sale of clothing,[143] for example, the Court states that in general the time-frame for notice-giving under Article 39 is a maximum of one month; however, they state that the parties validly derogated from this by agreeing on a time-frame of two weeks.

In a 1991 District Court judgement from Baden-Baden,[144] the seller of tiles agreed to the buyer's order in writing, adding that notice of non-conformity must be given within 30 days of delivery in accordance with general business terms. The Court found that this was not a material alteration of the offer, and that since this acceptance was undisputed by the buyer, it was part of the agreement.[145] The Court made no mention of any derogation from Article 39(1), but stated that since this agreed time-frame had elapsed, Article 39(1) prevented the buyer from relying on the non-conformity. This would seem to strongly suggest that the Court did not find a time-frame of 30 days, less the time for examination and discovery, to derogate from the concept of "reasonable time" as understood by Article 39 of the CISG. Similarly, a 1993 judgement from the District Court of Hannover, regarding the sale of shoes accepts that the parties have agreed on a time-frame of 10 days, seemingly without considering this an Article 6 derogation.[146] It would seem, that even though the parties set their own (binding) time-frames, the courts considered that these conform with Articles 38 and 39 and were not a derogation from the Convention. However, the fact that the Court does not unequivocally state that there is an Article 6 derogation does not mean that there is none, and the conclusion is a frail one.

In another judgement regarding agreed time-frames, this one from the District Court of Gießen from 1994, the Court accepted that the parties had made a binding agreement that notice must be given within eight days of delivery. This time, however, the Court specifically stated that it considered the agreement a derogation from the time-frame of "reasonable time" in Article 39, which was in accordance with Article 6, indicating that a period of eight days for examination and notice did not leave a "reasonable time" for giving notice in the sense of Article 39(1).

These judgements may, at a glance, suggest that reasonable time as understood by Article 39 is considered approximately 10-30 days, since these periods do not represent a derogation from that provision. But barring the frailty of the conclusions, this is still not the case as the time-frames described above are from the time of delivery of the goods, and not from the time when the non-conformity is discovered or ought to have been discovered. They thus represent a combination of the two time-frames in Articles 38 and 39, and an isolation of the "reasonable time" period is difficult. This problem is not exclusive to the agreed time-frames, but permeates the entire application of Article 39.

1.3.2. The Mix-Up of Articles 38 and 39 in German Law

Articles 38 and 39 are closely entwined.[147] Article 38 is a trigger which fixes the time for discovery of detectable non-conformities, and Article 39 is the yardstick with which the subsequent notices "within reasonable time" are measured.

Ideally, the "trigger" and the "yardstick" should be separated in caselaw for the benefit of determining the respective time-frames. However, some German judgements appear to have confused the duty to examine the goods and the duty to notify of the non-conformity, and some have assessed them taken as a whole.[148] A possible explanation for this may be that the German domestic duty to notify of non-conformity in §377 of the HGB runs from the time of delivery, a fact which would accustom Courts to just one time-frame from delivery until delivered notice. Moreover, it is understandable that a judge facing a notice which is obviously not timely when considering Article 38 and 39 together will let the sleeping dog lie and mix the criteria for the two time-frames.[149]

The problem is not solely an academic one. For the purposes of the present paper, for example, the conjoined time-frames calculated from the date of delivery make a comparison of Article 39(1) notices rather difficult, since some Courts do not specify this time-frame separately.

In the following, the time-periods in question are noted as being after delivery (a confusion of Articles 38 and 39) if they are not after discovery (which means the actual discovery or the time when the buyer ought to have discovered the non-conformity), and observations by the Court which would help illustrate which period was the determining period have been included. This should at least hinder further confusion, and, where possible, help illustrate what these Courts consider to be reasonable time after discovery.

1.3.3. Reasonable Time After Discovery - the Time-Frame of Article 39(1)

The following concerns the determination of "reasonable time" in Article 39(1) as determined by German practice. The judgements from before 1995 will be analysed first, followed by an analysis of more recent practice.

1.3.3.1. Practice Before 1995

The German practice on Article 39(1) has sent out some rather mixed messages. None more so than the practice which was pronounced before 1995.

Very few of these "older" judgements find in favour of the buyer when determining whether the notice given is within reasonable time. And those which do mostly regard notices which are quite obviously within reasonable time, and do not help establish a pattern concerning the determination of other cases. Examples of this are the notices in the judgements from District Court of Aachen, wherein the buyer notified the seller 1 day after discovery (which was the same day as delivery) that the shoes in question were non-conforming,[150] and District Court of Bielefeld, where the buyer of bacon notified 3 days after discovery.[151]

In a 1992 judgement from District Court of Frankfurt, regarding the sale of shoes, however, a notice given to the seller over the telephone nineteen days after delivery was considered by the Court to be undoubtedly within reasonable time (the Court did not comment on when the non-conformity was discovered or ought to have been discovered).[152] This seems surprising when considering the fact that another District Court judgement, this one from Mönchengladbach, had generally pronounced about six months earlier that notice regarding non-conforming textiles should have been given approximately two weeks after delivery, allowing one week for examination and one week for giving notice.[153] In other words, this latter judgement pronounced that reasonable time after discovery would be considered a week. The Court emphasised that the non-conformity was easily discernible, but that should only affect the time within which it ought to have been discovered.

The factors which convinced the District Court in Frankfurt that nineteen days was timely are not mentioned in the judgement, and no general guideline is pronounced. It is also unfortunate that the Court does not specify within which time the non-conformity ought to have been discovered. The Court seems to find the timeliness obvious by finding the form of the notice acceptable, without mentioning the nature or discernability of the non-conformity, or why the notice is timely. The facts of the case, however, illustrate that the goods were not perishable, and that the buyer chose the remedy of reduction of price in repair of the non-conformity. According to Sono, these factors should induce a longer time-frame,[154] and perhaps these factors motivate the Court. Another explanation, however, may lie in the Courts application of Schwenzer's time-frame guideline of one "noble month". Unfortunately, the Court does not divulge its reasoning.

Despite being the only one to find for the buyer where notice is given after more than a week, this judgement is not the only one to seemingly suggest a certain leniency in the determination of reasonable time. Although a 1994 District Court judgement from Köln rejected a time-frame of twenty-one days after delivery, the Court stressed that this was because the buyer knew that the seller had a deadline to comply with which would necessitate a speedier examination and notification.[155] The case involved the sale of business-catalogue space, and the Court stated that since the mistake in the 22 pages was discoverable within a few hours of delivery on 4 August 1992 and the buyer knew the seller had a deadline on 4 September 1992, an examination and notification should have been carried out sooner according to Article 38. Since no notice was given within reasonable time after the mistake should have been found, the buyer could not rely on the non-conformity. The Court clearly stated that the Article 38 examination period could be set at a few days, but does not mention within which period the subsequent notice should have been delivered. Nevertheless, the emphasis placed by the Court on the deadline in question would seem to suggest that a combined Article 38/Article 39 period of twenty-one days after delivery definitely was not considered untimely per se, but that the findings were based on the actual foreseeable detriment to the seller by the notice in question.

However, most other German judgements from before 1995 seem to lay down stricter guidelines. Some reach conclusions in favour of the seller which may be deemed obvious due to the extensive time-frames involved. Examples of this are two 1992 judgements from the District Court of Berlin where the notices were given two months and three and a half months, respectively, after delivery of goods with easily discernible non-conformities (both regarding shoes),[156] a 1993 Higher District Court judgement from Saarbrücken concerning the sale of doors, where notice was given 2 months after delivery as the buyer wrongfully believed the duty to inspect the goods was deferred,[157] a judgement from District Court of Düsseldorf where notice given 4 and 20 months after delivery was too late since the lack of conformity of the press-engines in question should have been discovered earlier,[158] and finally a Higher District Court judgement of Düsseldorf.

The latter judgement, from 1994, concerned a notice given 2 months after delivery of textiles which suffered from an easily discernible non-conformity.[159] Although seemingly reaching an obvious conclusion in the light of previous Article 39(1) practice, this judgement would seem to subtly hint at leniency. The Court found that through a strict construction of Articles 38 and 39, the buyer's notice two months after delivery was not reasonable. It added that the determination of reasonable time hinges on whether a given notice is appropriate in each individual case. In order to determine this, the circumstances of each case ["Umstände des Einzelfälles"] and the opportunities of the contracting parties ["Möglichkeiten der Vertragsparteien"] must be analysed. Since the non-conformity in question was easily discernible, it should have been discovered and notified of sooner. The Court does not add how much sooner, and does not separate the Article 38(1) time-frame from the Article 39(1) time-frame. Nevertheless, the fact that the Court considers the barring of a two-month notice to be a strict construction of the provisions in question implies that very generous notice time-frames could be considered reasonable.

Other German judgements have been pronounced which find in favour of the seller, without this conclusion seeming apparent. One of these judgements is a 1994 Petty Court judgement from Riedlingen, where the Court rejected a notice given twenty days after delivery of ham despite the obstructions facing the buyer due to the Christmas holiday closures in the period in question.[160] The Court stated that a period of three days for examination and discovery and a period of three days for notification would have been appropriate. This judgement seems unnecessarily strict. When considering that nineteen days was acceptable in Frankfurt in 1992 and that twenty-one days was unacceptable in Köln largely due to a deadline in 1993, the Courts conclusion that three days is the maximum time-frame for reasonable time seems harsh. Although the non-conformity was easily discernible (by the buyer's own admission, the ham was mouldy a few hours after delivery), the buyer had paid the price in part and thus chose the remedy of price-reduction. This ought to have made the time-frame for giving notice a little more flexible, and the fact that the goods were perishables in the present case ought not to have restricted the time-frame since the buyer chose to keep the goods. Since the seller did not deny or question the non-conformity itself, it would not seem relevant whether he had an opportunity to speedily ascertain the mouldiness of the ham. The notice in the present case would not seem to have caused any detriment to the seller, and ought to have been considered reasonable in the light of previous practice.

An even stricter time-frame was pronounced by the Higher District Court of Düsseldorf in 1993.[161]The buyer would not pay the full price for a delivery in part of tinned gherkins. The Court found that a notice given within 7 days of discovery was not considered within reasonable time. The circumstances of this case are, however, unique. The parties had agreed that an examination of the goods take place upon delivery to the shipper and before redirection (thus rendering Article 38(2) inapplicable through derogation from the Convention in accordance with Article 6).[162] This examination required the buyer's representative to approve of the goods before shipment. The Court stated that since this factor was an important term of business to the seller, it implied that the seller required non-conformity discovered and communicated to him at this time. Although not actually constituting an agreed time-frame within which notice should have been given,[163] this agreed approval seems to have weighed heavily in the determination of the reasonable time of notice. A notice delivered 7 days after the examination was thus not considered timely. The Court further stated that a delivery in part represents a non-conformity like any other under Article 39, and that the buyer could not rely upon it. The full purchase price should thus be paid for an incomplete shipment. The Court reached this conclusion by equating Article 39 with §377 and §378 of the German Sales law. The similarities between Article 39(1) and §377 and §378 of the German HGB entail that any undue domestic influence will not necessarily jeopardise the uniformity of the CISG in the present case. However, the drawing of parallels between domestic and uniform international law is unsuitable in the application of international uniform law.[164]

A more severe equation to domestic law was made by the same Court in 1994, when the "Nachfrist"-type rule in Article 47(1), which is a right for the buyer, was equated to §326 HGB, which is a duty for the buyer.[165] The buyer was thus unjustly barred from relying on the non-conformity of the textiles delivered, and the question of the timeliness of the Article 39(1) notice was not discussed.

Yet another equation to German domestic law was made by the Higher District Court of Düsseldorf earlier the previous year.[166] The Court made a direct analogy to §377 of the German sales law (the HGB) when deciding that notice given twenty-five days after delivery of textiles was not given within reasonable time. It equalled the considerations behind Article 39 of the CISG and §377 of the HGB, and stated that the interests of good business form the basis of the determination of a notice within reasonable time, as the notice should not give either party an unfair advantage, and strive for a rapid settlement of differences. The Higher District Court went on to state that twenty-five days could not be considered a short period of time, and that the buyer had not substantiated any difficulties in discerning the non-conformity.[167] The Higher District Court judgement makes no mention of which general guideline it applied, nor does it explain why the notice should be within a short period of time in lieu of a more generous one.

This judgement is also interesting as it concerns the question of whether the seller has lost his right to rely on Article 39 if responding to an alleged late notice by taking back the goods to inspect them.[168] The Court found that a reasonable person, in accordance with Article 8(2), would not find an examination of the goods to verify a claim of lack of conformity sufficient implication that the seller considered the notice timely -- in that respect, a seller is entitled to "cover his bases" without "shooting himself in the foot", without taking out reservations against the timeliness of the notice.

1.3.3.2. Recent Practice - 1995 and After

In 1995, the Higher District Court of München attempted to formulate a general guideline for the application of Article 39(1). The Court proclaimed, in an obiter dictum, that when determining reasonable time the individual circumstances of each case are to be taken into consideration, and that normally (in the case of non-perishable, non-seasonally dependant goods) a period of eight days would be that vantage point. The case concerned a notice of non-conformity of plastic granules which was given 3 months after delivery, and was not timely.[169]

But exactly one month later, the German Supreme Court (Bundesgerichthof) concluded its deliberations and pronounced its first judgement assessing Article 39(1).[170] The case concerned New Zealand mussels which, upon examination by the German buyer, contained higher levels of cadmium than prescribed in the recommended German guideline.[171] The Court stated that notice given a month after discovery (although a very generous time-frame) [172] may be considered reasonable time in the interests of differing international legal traditions.[173] Although the case concerned perishable goods, the hypothetically acceptable time-frame of Schwenzer's "noble month" guideline was not restricted to a shorter period in the present case -- but since the case concerned a notice which was given more than six weeks after discovery, this endorsement of the "noble month" almost appears as an obiter dictum to serve as an outside starting point for determining the time-frame and any aspects which may prompt Courts to narrow it down. It would seem fair to assume that the Court considered the introduction of Schwenzer's "noble month" guideline necessary for Article 39(1) practice in Germany.

Nevertheless, in a judgement regarding the sale of sports clothes from the District Court of Landhut delivered one month later, the Court made the general statement that the time-frame for notification of defects which are not hidden could not be considered any longer than a few days after discovery.[174] This factor (the defect being easily discernible) seems especially confusing in an Article 39(1) context in the present case, since the Court stated that the lack of quantity should be discovered within a week at the latest according to Article 38. So the obviousness of the non-conformity of the clothes in question had already been considered when determining when the non-conformity ought to have been discovered. It would seem that although the Court separated the Article 38 and Article 39 time-frames, the criteria are still confused. And, in any event, no attention was paid to the "noble month" applied in the earlier Supreme Court judgement.

In a judgement of the Higher District Court of Stuttgart regarding the sale of machines from the same year, however, the Court referred to the Supreme Court judgement, and added that the Article 39(1) time-frame was -- within the framework of the CISG in the light of the differing domestic legal traditions -- approximately one month.[175] In other words, the "noble month" was considered to be more of a standard than an outside limit in this case concerning the sale of machinery.

The Petty Court of Augsburg clarified the nature of the "noble month" guideline in 1996, when it stated that the maximum period of time considered reasonable for the purpose of Article 39(1) was one month after discovery, and that certain factors -- such as the seasonal nature of the goods, which in the present case concerned fashion wear for a particular season -- would necessitate that the buyer give notice even sooner.[176] The buyer would not pay for the goods, and wished to avoid the contract. It is unfortunate that this judgement is from a Petty Court and has not formed a precedent for other similar cases, as it sets a beautiful example by explaining the importance of the maximum month used in the latest judgements, and the factors which influenced the Court's decision regarding whether a more restrictive time-frame should apply in the case at hand, while simultaneously separating the two time-frames of Articles 38(1) and 39(1).

This idea of the seasonal nature of the goods limiting the time-frame was also applied by the Petty Court of Kehl a few months earlier, when the Court examined the Article 39(1) time-frame although the notice could not be proven.[177] In this case, the buyer wished to avoid the contract which concerned fashion wear, and a notice given 6 weeks after the discovery of an easily discernible non-conformity (discoverable same day as delivery) was not found to be a satisfactory notice.

A judgement regarding a notice given twenty-five days after discovery from the District Court of Heidelberg was recently reversed by the Higher District Court of Karlsruhe,[178] in a case regarding non-perishable, non-seasonally dependant sticky-film which did not stick properly. The buyer sued for damages. The District Court found that notice was given within reasonable time, and stated that since an exact time-frame for notice giving could not be pinpointed, the one month guideline suggested by Schwenzer should be applied in the present case.[179] No mention was made in the judgement, however, of the fact that the Supreme Court had already chosen to apply this "noble month" guideline in another Article 39(1) case. The Higher District Court reversed the District Court judgement. It found that the goods should have been more thoroughly tested by the original buyer, and that these tests could have been carried out and the non-conformity discovered within a week. Notice should then have been given three to four days later, with the maximum permissible period of time from delivery to notification amounting to a total of ten to eleven days.[180] The Higher District Court makes no mention of the "noble month" applied by the District Court, nor does it explain why it considers the reasonable time period restricted to three to four days, despite the fact that the buyer wanted damages and not avoidance. It would seem that although the Courts agreed that the notification time-frame of 8 days after delivery agreed on by the parties should not apply in the case of hidden non-conformities, the Higher District Court has considered this agreement a legitimate factor in narrowing down the time-frame permissible for notification. Such an agreed time-frame should, admittedly, have alerted the buyer to a thorough investigation of the goods within the prescribed time, and is an indication of an agreement for swiftness in the dealings between the parties. Nevertheless, it seems inappropriate for the Court to not consider or discuss the "noble month" guideline found applicable to the case at hand by the District Court before applying criteria to the time-frame, especially when considering that this guideline was introduced in German practice by the Supreme Court.

The Higher District Court of Köln, in a 1997 judgement concerning the sale of aluminium hydroxide machines,[181] affirmed the general rule of the "noble month", but stressed that this "noble month" is a vantage point by adding that the time-frame must be restricted in certain cases where the facts of the specific case reasonably prescribe it.[182] In this case, notice was given after the aluminium hydroxide provided by the seller had been placed in a large silo along with other shipments (and the buyer could not substantiate that all materials herein were provided by the seller). The time of the notice thus jeopardised the seller's possibility to ascertain the non-conformity. The Court restricted the flexible month to a shorter time-span with reference to the specific facts of the case, and the purpose of Article 39.

In 1996, the Supreme Court pronounced its second judgement pertaining to Article 39(1) of the CISG.[183] This case concerned a buyer of software who gave notice 1 day after discovering the non-conformity (which he did on the same day as the goods were delivered). So, unfortunately, the Supreme Court found no cause to examine the time-frame more generally or pronounce a sorely needed obiter dictum on the determination of reasonable time. The only comment the buyer's notice warranted, was that it undoubtedly was timely.[184] The Supreme Court has only been given one other opportunity to pronounce judgement on and comment on Article 39(1) to date.[185] This judgement, from 1997, concerned a notice which was given almost seven months after the first delivery of Korean Steel suffering from lack of conformity. However, the seller had indicated to the buyer that the written notice was timely, and the Court left the question of timeliness open and stated that the notice was reasonable as the seller had accepted it.[186]

It would seem that recent German practice regarding reasonable time in Article 39(1) does not paint a straight-forward picture of the determination of the time-frame involved.

A firm guideline for what constitutes reasonable time is lacking. The noble month maximum vantage point introduced into practice by the Supreme Court in 1995 seems to be taking hold in the Courts, but it will take more congruent practice to make it a legal guideline. And it is uncertain whether such practice will emerge. Previous practice seems to indicate that inconsistent time-frames and discrepancies in proposed guidelines are not a new phenomenon.

1.4. Observations on the Practice of Article 39(1) in German Practice

Regarding the form, specificity and recipient of the Article 39 notice, there have been no discernible changes in German practice. The more recent judgements as well as the early ones are in complete agreement as to these requirements. A notice of lack of conformity must:

a) specify the nature of the lack of conformity and the goods in question very precisely,

b) be directed to the seller or someone directly employed by the seller, and not a third party or other associate, and

c) be delivered in such a way that it can be proven what was said to whom and when, in case the seller disputes it.

Furthermore, it would seem that a seller is cut-off from relying on Article 39 if he indicates that the notice was timely, but not if he takes back the goods to inspect them.

This state of affairs has remained unchanged throughout the relatively short period of the application of Article 39(1) by the German Courts, as has the fact that German Courts have not been predisposed to find in favour of the German party.[187]

With regard to the concept of reasonable time, however, such a conclusion of stability is not so easily reached.

1.4.1. The Evolution of "Reasonable Time" in German Practice

Since there has never been a definite guideline which applies to all determinations of reasonable time in German practice, it is difficult to determine an evolution in the time-frame as determined by the German Courts when comparing recent and older practice. In addition to this, the confusion between the Article 38 and 39 time-frames fogs the issue of reasonable time to a certain degree. Even though some instances of differing practice seem to stand out and take on the guise of tendencies, there seems to be precious little progress in specific directions or discernible consequences of new turns in practice.

The Swiss scholar Schwenzer has stated that the early German judgements regarding Article 39(1) tended to lean towards the stricter time-frame of 8 days.[188] However, the judgement from Frankfurt which accepted notice delivered nineteen days after delivery [189] and the judgement from Köln which stressed that twenty-one days was not acceptable due to the deadline ahead [190] would seem to evidence that a period of eight days was not necessarily the norm.

Any claim that the Courts have become more lenient in their recent application of Article 39(1) would seem to overlook that in 1995, the District Court of Landhut considered notice given nineteen days after delivery too late to be considered given within reasonable time,[191] whereas a few years before that exact same time-frame of nineteen days was considered reasonable by the District Court of Frankfurt regarding a notice given over the telephone.[192] The circumstances involved in the notification time-frames would not seem to isolate any factors which should require a stricter time-frame in the latter judgement.

On the other hand, it cannot successfully be argued that there is a general tendency towards more restrictive time-frames in the determination of reasonable time. There is no practice which evidences this: judgements rejecting notices given over 20 days after delivery have been pronounced throughout the period of German practice of the CISG.[193]

The recent introduction of the "noble month" as a guideline for the sake of congruent international practice in 1995 by the Supreme Court [194] was an attempt at evolution which was in keeping with the spirit of the CISG. It did not seem surprising or a radical change in previous practice, since practice was so changeable upon its introduction. It was pronounced in an obiter dictum-like fashion and was presumably meant as a general stable guideline -- a vantage-point from which the individual circumstances of each case can create an individual reasonable time-frame.

The true surprise in the evolution of German practice is the lack of evolution, namely the fact that the subsequent judgements do not take this Supreme Court guideline to heart and apply it. The fact that subsequent practice is as variable as the practice which preceded the introduction of this guideline is puzzling. It is especially surprising that a higher instance reversed a District Court judgement applying this guideline.[195] It must be concluded that the changes in practice are not set trends or tendencies, and that the variations in the findings of the Courts must be due to some other phenomenon.

Some leading scholars deem the requirements most German Courts pose to the buyer "overly harsh", and seem to be of the opinion that this may be due to their not having noted the difference between Article 39 of the ULIS and Article 39 of the CISG.[196] However, as mentioned earlier,[197] the difference in wording between the two provisions would only seem to regard the flexibility of the time-frame, and moreover, it would be surprising if the majority of domestic Courts fell prey to the same "mistake". In any event, the variations in practice regarding the determination of reasonable time do not indicate that the German Courts do not recognise the flexibility of the new Article 39. The problem is more likely to lie in the reluctance for practitioners to adopt interpretations from precedents and theories.

It would seem that the judges, when focusing on each individual case and its reasonableness, seem to forget the "bigger picture" of the need to keep uniform application of the CISG in mind. This results in somewhat arbitrary results, especially where the international compromise of the "noble month" contrasts with more restrictive approaches. The reasonableness of each individual case is important. But since the uniformity is a tool for certainty in contracts, and since this certainty is also a necessary part of the overall reasonableness, the uniformity and the individual reasonableness have to be combined. The variations have to be diminished -- especially where they are due to a domestic vantage point.

1.4.2. The Influence of German Domestic Law upon "Reasonable Time"

Although there is no firm guideline for the German interpretation of Article 39, it would be fair to conclude that the approach is rarely a "buyer-friendly" one.[198] In many cases, the buyer must give a swift and specific notice for the Court to consider notification adequate in accordance with Article 39(1), even after the introduction of the "noble month".[199]

This may, in part, be due to the influence of domestic law. The two provisions of Article 39 of the CISG and §377 of the HGB are so linguistically similar that it might seem to the German Courts that even if they allowed themselves to be unduly influenced, it would not jeopardise the uniformity of the Convention. And it might also seem harmless to equate the considerations behind the two provisions. However, once the connection between the two provisions is made, the essence of the domestic provision will undoubtedly influence the domestic judge. And the considerations of uniform international provisions do not equal those of domestic law. Moreover, since the domestic time-frame is rarely deemed timely if over 2 weeks, and the international guideline of the "noble month" introduced by the Supreme Court doubles this acceptable time-frame, domestic influence may well be the reason for the findings of the judges opting for more restrictive time-frames. In the light of the domestic time-frame they find a vantage point of a month unconscionable.

Furthermore, it is likely that domestic German law is responsible for the confusion of the Article 38(1) and Article 39(1) time-frames, as §377 HGB time-frames begin at the time of delivery.

Finally, the misconstructions of Article 47(1) which have led to an imposition of a duty for "Nachfrist" as opposed to a right, are most certainly the result of faux amis influence from the domestic "Nachfrist" rule in §326 HGB.

1.4.3. "Reasonable Time" in German Practice Today

Based on the caselaw outlined in the present paper, there are certain conclusions which may be drawn regarding what constitutes reasonable time as understood by Article 39 of the CISG in current German law.

A notice in an Article 39(1) case brought before a German Court today would be divided into one of three categories: "almost always timely" (1-8 days after discovery), "almost never timely" (over 30 days after discovery), and a "grey area" of the periods in between the two which could be determined either, i.e., "maybe timely". Unfortunately, in the latter category of cases, the determination would primarily seem to hinge on which Court the case is brought before. Some Courts have embraced the "noble month" and some have not. However, regardless of this battle between the "noble month" and the more restrictive time-frames, there are certain criteria extrapolated from the fact-patterns of the German cases which indicate common ground as to the determination of the time-frame of Article 39(1). The determination of "reasonable time" has been influenced in German practice by factors such as:

With regard to the criteria of chosen remedy, the German Courts have not yet explicitly pronounced on whether the consideration that avoidance requires swifter notice and damages does not is a valid one. There is a greater tendency to look at the seller's possibility to ascertain the defect and cure it as well as the possibility to take back the goods. The considerations for the seller's options are, predictably, primarily in focus before the Courts which favour shorter "seller-friendly" notices, and which have not embraced the "noble month".

The inconsistency of the German determinations of reasonable time poses a problem. Although it may not invite forum shopping, as the outcome of the judges' determination of reasonable time will not be predicable, the certainty in contracts which the CISG protects with its uniformity is at stake. The Convention must not only be interpreted uniformly internationally, but also domestically. Moreover, the incongruency of the German practice is all the more serious since the German Article 39(1) practice represents the bulk of caselaw, and thus the majority of international precedents.

It would seem that a consistent application of a standard guideline (such as the noble month), with standard or individual factors influencing the timeliness (such as those mentioned above, and others which may influence timeliness) is sorely needed to prevent the German application of Article 39(1) from seeming slightly arbitrary. It is not enough for the Supreme Court to introduce such a guideline -- it must be embraced by all German Courts. And it must be done soon to ensure a uniform application of the CISG throughout Germany. Perhaps the Supreme Court will seize the opportunity to reinforce the "noble month" doctrine in an obiter dictum when pronouncing judgement in the appeal of the judgement from Higher District Court of Koblenz.[201] And perhaps this time the precedent will be followed.

The fact that this Supreme Court guideline of international compromise has not yet been embraced in all German Article 39(1) practice is disconcerting: If all German Courts do not pay heed to the precedents of their own Supreme Court, it seems unlikely that they will ever consider international precedents as they are required to do by Article 7(1).

2. Caselaw from Other Countries

Although the majority of international caselaw on Article 39(1) stems from Germany, there is some practice regarding the determination of "reasonable time" which stems from the Courts of other countries. An analysis of this caselaw in the light of theoretic definitions and German caselaw will help establish the actual degree of international uniformity of the determination of "reasonable time" in Article 39(1) and possibly a pattern for this determination.

2.1. Austria

The Austrian legal system is a decentralised procedural regional system, very similar to that of Germany. Moreover, the Commercial Codes of Germany and Austria are almost virtually identical, and the Austrian legal tradition looks to German caselaw for guides to interpretation.[202] Thus, §377 and §378 of the Austrian Commercial Code contain the same notification requirements as §377 and §378 of the German HGB.[203]

The CISG entered into force in Austria on January 1st, 1989.[204] Since then, there has been only one reported case regarding Article 39(1) before Austrian Courts.

In a 1994 Higher District Court judgement regarding the sale of flowers,[205] the Court found that the buyer could not establish that there was a non-conformity. But it went on to say that even if the buyer could have established a non-conformity, he would have lost his right to rely on it, since he had failed to give the seller notice within a reasonable time after discovery of the defect. The Court found Article 39(1) was similar to §377 of the Austrian Commercial Code, but mixed up the time-frames of Article 38 and 39 of the CISG by stating that Article 38 prescribed a duty to examine and give notice. Even allowing a period of two months after delivery of the goods for discovery of the lack of conformity of the goods, the reasonable time period for notification was considered shorter than from start of July until end of July.[206]

This confusion of the two provisions of the CISG, well known from German practice, makes it difficult to discern within which period of time the Court considered notification timely after discovery of the non-conformity. The guidelines for the consideration of reasonable time are not divulged by the Court, but the conclusion is certainly similar to the domestic time-frame and the time-frames from the more restrictive German practice.

2.2. The Netherlands and Belgium

Although uniform with regards to some legislation, the Benelux Countries (Belgium, Netherlands and Luxembourg) do not share all laws. But the trade relations have always been very close, and the Civil and Commercial Codes of Belgium and The Netherlands are both based on the Napoleonic codes and share many traits, as do the decentralised regional procedural systems.

It therefore seems surprising that The Netherlands was the only Benelux-country to accede to the CISG soon after its drafting.[207] The CISG has only just entered into force in Belgium, following an accession in October 1996.[208]

There have been two reported instances of application of the CISG before Belgian Courts before the entry into force of the Convention, by way of Article 1(1)(b), when the rules of Belgian private international law have pointed to the laws of a Contracting State -- Italy in both cases.[209] One of these cases concerned Article 39(1).[210] The notice in question was given to the seller nine months after delivery of shoes, and not surprisingly the Court found this unsatisfactory as the non-conformity should have been discovered and communicated sooner. The Court did not distinguish between the time-frames in Articles 38 and 39, and it is hard to glean what is considered reasonable time in the present case, as the Court does not say when the non-conformity ought to have been discovered, nor when notice should have been given.

In Dutch practice, Article 39(1) has been applied several times. The first time in 1990 in an interim decision from District Court of Dordrecht, which adjourned to give the buyer time to prove that timely and specific notice was in fact given in connection with the sale of textiles.[211]

A year later, in the (in)famous "maggots-in-mozzarella" judgement,[212] the District Court of Roermond assessed a notice given two months after delivery of frozen mozzarella for resale. The Court declared that the buyer could not solely rely on the complaints of his customers, but should have noticed the maggots in frozen mozzarella sooner by inspecting a defrosted sample of the cheese. Moreover, a speedier notice of non-conformity was required since the goods were perishable foodstuff. Regrettably, the Court did not elaborate what it considered a speedy notification. The case was adjourned to give the buyer a chance to prove that the maggots existed in the cheese at the time of shipment -- if successful the Court would infer that the seller "knew or ought to have known" of the non-conformity and bar reliance on Article 38 and 39 by way of Article 40.

Other Dutch judgements concerned a notice given three months after discovery of the non-conformity which was not considered timely,[213] and a case where the buyer did not specify a notice at all.[214] Neither case pronounced on the determination of reasonable time.

These judgements from Belgian and Dutch practice contribute to the determination of reasonable time with the paradigms that perishable goods require swifter notice, and that a buyer re-selling the goods cannot rely on his customers to discover the non-conformity when he should have discovered it himself, and that three months or more cannot be considered reasonable time. There is nothing surprising or controversial in these findings, and certainly no reason to suspect any undue influence of domestic law.

2.3. France and the Alleged Buyer-Friendly Approach

The French legal system is one of civil law, with roots in the Napoleonic Code Civile. The procedural system is uncomplicated: depending on the subject matter, a case is heard in the first instance in local Inferior or Superior Court (tribunal d'instance/tribunal de grande instance), or in the case of commercial merchants in Commercial Court (tribunal de commerce). Appeal is to the local Court of Appeals (cour d'appel), and further appeals are to the Supreme Court (cour de cassation).

French domestic law is traditionally more buyer-friendly than that of most other European countries,[215] and this is reflected by Article 1648 of the French Code Civil which concerns the buyer's duty to notify the seller of a lack of conformity with a brief delay ("dans un bref delai"). In its interpretation of this Article, the Courts have allowed the buyer up to 2-3 years to give timely notices of non-conformity.[216]

Given such generous notice time-frames and traditional buyer-friendliness in domestic law, it would perhaps be a fair assumption that some of this might "rub off" on the interpretation of reasonable time as understood by Article 39(1). Such an influence from domestic law would jeopardise the uniform application of the CISG, and should be dissuaded if unearthed.

France was one of the first countries to adopt the CISG, and took out no reservations against the Convention.[217] There have been many judgements before French Courts dealing with the CISG,[218] but sadly, the extent of French CISG caselaw regarding Article 39(1) is rather meagre. In fact, to date there have been only two reported judgements which determine the extent of "reasonable time".

The first judgement in question concerns the sale of cheese for resale in France. The cheese was not wrapped conforming to French standards, and the buyer notified the seller of this non-conformity within one month after delivery of the goods and claimed damages.[219] The Court did not determine when the non-conformity was discovered or should have been discovered, but as the non-conformity was an obvious one the discovery can be presumed to be almost immediately after delivery. The Court found that notice was given within reasonable time, but did not elaborate on why. When compared to other judgements from other Courts and Tribunals, this may appear slightly more buyer-friendly. For instance, it would be hard to imagine such a notice being considered acceptable by some of the more "seller-friendly" German Courts.[220]

However, this judgement can be said to be in accordance with the "noble month" guideline applied in some German caselaw. Although the goods in the present case were perishable, which would normally induce a stricter time-frame, the buyer wanted damages and not avoidance. This would, according to some scholars, induce a longer time-frame. This judgement cannot per se be said to express any undue influence of French domestic buyer-friendly law.

The latest reported Article 39(1) judgement from French caselaw concerns the sale of production machines.[221] It is, however, a rather unique case. Notice was found to be undoubtedly timely although the first substantiated notice of non-conformity after delivery was made three months after delivery was complete. But the non-conformities in question had been discovered before delivery during the buyer's inspection of the production of the machinery, and notice of non-conformity had been given immediately after the inspection in connection with the buyers Article 46 claim for performance. Notice was thus timely as it was given within reasonable time after discovery, regardless of the fact that discovery was before delivery. Moreover, based on the problems discovered during inspection, the buyer had taken possession of the goods under conditions of repair and upkeep by the seller's technicians. This judgement certainly does not evidence any buyer-friendliness, as the seller is not jeopardised in any way by the buyer's notice-giving.

2.4. Switzerland

The Swiss legal procedural system is a somewhat complicated one, due to the fact that the different ethnic sections of Switzerland have slightly different Courts. The Country is divided into Cantons and Districts, each of which has its own Courts, and the Appellate Court is decided by the case-matter and the location of the Canton. The Supreme Court in Lausanne is the highest instance. In addition to this, there is a special Court for commercial matters in the Canton of Zürich.[222]

Although Canton law may vary throughout Switzerland, federal law applies identically. According to the federal Code of Obligations Article 370(3), notice of non-conformity must be given to the seller immediately after discovery ("aussitôt qu'il en a connaissance") in Commercial trade. This period is interpreted by the Swiss Supreme Court to be a flexible one, but nonetheless usually quite brief (at least under 3 weeks).[223] The cut-off period for all claims is one year after delivery according to Article 210 of the Code of Obligations, unless the seller has sold the goods in bad faith or extended a longer period of guarantee.

The CISG did not enter into force in Switzerland until 1991, but no reservations against the provisions of the Convention were taken.[224] There has not been a lot of practice regarding the CISG: The Swiss Supreme Court has only had one opportunity to interpret the Convention, and this case did not concern Article 39(1) [225] -- a total of 5 cases concerning the notification requirement have appeared before the other instances of the Swiss Courts.

The first, concerning the sale of furniture, was pronounced by a Swiss-Italian District Court.[226] Similarly to the above mentioned Dutch "maggots-in-mozzarella" judgement, the Court found that the buyer had violated his examination duty in Article 38 by relying on customer complaints, and that since the duty to examine the goods in accordance with Article 38 regulated the time from which a reasonable-time notice is to be given according to Article 39(1), notice given 4 months after delivery was not timely. Apart from laying down strict guidelines for the examination duty in Article 38, this judgement also ensured that there be no confusion in Swiss practice as to the time-frames of Articles 38 and 39. In its deliberations for the determination of notice, however, the Court stated that the provisions of Article 38 and 39 should apply more strictly to contracts between merchants, with reference to a domestic scholar writing on Swiss law.[227] This consideration does not seem in keeping with the spirit of the Convention,[228] especially since the Convention's main area of application is contracts between merchants. The Court also concerned itself with how the late notice actually compromised the seller, and concluded that the buyer should have notified and permitted the seller to cure the defect, which he easily could have.

A more recent Swiss judgement on Article 39(1) regarding the sale of an isolation-tank [229] found it unnecessary to determine whether the buyer should have investigated the goods more thoroughly under Article 38, as the buyer had admitted that he knew of the non-conformity for about four weeks before notifying the seller. The Court stated that it did not find this notice period reasonable, but did not mention which guideline it applied or which factors influenced its decision. However, the Court links the Article 39(1) time-frame to the avoidance notification time-frame in Article 49(2)(b)(i),[230] which would seem a paradox since the buyer could only avoid the contract if he were permitted to rely on the non-conformity -- which he was not.

Another Swiss judgement regarding Article 39(1), concerning the sale of furniture, concerns the burden of proof of notice-giving,[231] which the Court states is the buyer's since this is implicit in Articles 38 and 39, and reflects a general principle underlying the CISG in accordance with Article 7(2).

It is unclear whether these first four Swiss judgements have been influenced by domestic law in the findings regarding Article 39(1), as they do not refer to the basis of their determination. The interpretations are certainly in accordance with Swiss domestic law, but they are not contrary to other applications of Article 39(1), so domestic influence should not be inferred. Nonetheless, it is unfortunate that a distinction between commercial and civil parties has been introduced, with reference to a domestic scholar.

However, the most recent reported Swiss judgement on Article 39(1) from Obergericht Kanton Luzern from 1997 contains multiple references to CISG scholars.[232] The case concerns the sale of pharmaceutical goods (blood tubes), and the Court stated that there was an Article 38 duty to inspect the goods, despite their sterile packaging, and that Article 39(1) notice was to be given within a "noble month" after the non-conformities should have been discovered, with reference to Schwenzer. This judgement mirrors the development in German law of favouring the "noble month" as a starting point for reasonable time, but as it stands alone (so far), it cannot yet be called a trend in Swiss law.

Although reference in the above judgement to CISG scholars is a good path to removing doubts of undue influence, the best way to establish an international approach more in keeping with other determinations of reasonable time is to analyse current international practice in the determination of a CISG issue. Such an approach has been applied by an Italian judge.

2.5. Italy and the International Approach

The roots of the Italian legal system date back to Roman law and Emperor Justinian's "Corpus iuris civilis" which relied on early laws of contract similar to those applied today. It is a system of civil law which is mostly fully codified in statutory law and unrelated to caselaw.[233]

The procedural system of Italy is very similar to that of Germany, with regional jurisdiction at first instance and on appeal, and with one Supreme Court (situated in Rome). There are no specific Commercial Courts in Italy, all civil cases are heard by civil Courts.[234] A judge is not bound to follow a precedent of a superior Court (except where the findings of the Supreme Court must be followed under the "principle of law" where a specific case is remitted for final judgement in a lower Court). However, in practice the guidelines of the Supreme Court to the interpretation of the law are often considered by lower Courts.

The Civil Code of Italy of 1942 is a modernised version of the Napoleonic Civil Code. It provides, in Article 1495, that notice of non-conformity be given within a period of eight days after discovery of lack of conformity of the goods, with a one year cut-off period from delivery.[235]

Italy was one of the first countries to adopt the CISG, and did so without reservations.[236] Nevertheless, there is not a vast amount of Italian practice on the CISG. To date there has been a total of eight reported judgements dealing directly with the CISG, and two containing obiter references to the CISG. Only one of these judgements concerns Article 39(1) and the determination of reasonable time.

In a 1966 judgement of the Tribunale Civile of Cuneo, the seller delivered sports clothes to the buyer which were in French sizes rather than Italian sizes as agreed upon.[237] Notice of this lack of conformity was given twenty-three days after delivery of the goods, and the Court clearly stated that the non-conformity was easily discernible, and that this would reduce the period of time acceptable from the date of delivery, i.e., technically reduce the time period acceptable under Article 38 and set the "ought to have discovered" time close to the time of delivery. Sadly the Court does not actually state when the non-conformity ought to have been discovered under Article 38, so when it concludes that twenty-three days after delivery is not an acceptable notice time-frame, it is not easy to discern what the actual time-frame for notice-giving after discovery is. It would, however, seem safe to conclude that notice was delayed about twenty days after discovery of the lack of conformity ought to have taken place. This was not considered a reasonable time by the Tribunale Civile. In determining reasonable time, the judge turned to caselaw from other countries on the same issue as precedents.

By referring to international case law, the judge not only obtained guidelines for the determination of reasonable time, but also helped secure the uniformity of the Convention. If all domestic judgements on the CISG looked to international as well as domestic CISG practice in the determination of CISG issues, a greater congruency of the Convention's international practice would be ensured.[238] Sadly, this is not so, although the practitioner is obligated to consider the decisions rendered in other Contracting States (and non-Contracting States applying the CISG) by way of Article 7(1). Nevertheless, a reference to foreign CISG practice is rare in domestic CISG case-law.[239]

There is, however, one forum where a transnational approach to CISG issues is almost certain. That forum is the International Arbitral Tribunal.

3. The International Arbitral Tribunal

The Arbitral Tribunal is an instance of justice which is becoming increasingly popular in international commercial law. As the primary form of alternative dispute resolution it presents an easily enforceable solution,[240] which is often (mistakenly) perceived as more confidential, faster, less expensive and more flexible than litigation.[241] It provides businessmen from different legal systems with the framework for a procedure which is mutually acceptable, and which avoids the potential pitfalls of unfamiliar procedures, laws and mentalities.[242]

Regardless of where the case is physically heard (ICC in Paris or elsewhere, Commercial Chambers in Hungary, Vienna or Hamburg, etc.), the forum of arbitration is legally stateless, with no domestic law or domestic practice to guide or misguide its work.[243] It is therefore the ideal forum for the practice of the uniform CISG, as all precedents in caselaw from Courts applying this law (although not technically binding) are equal and will be considered under the uniformity of the Convention, in accordance with Article 7(1), in the determination of terms.

Since international commercial law often concerns the CISG, and since arbitration is a popular forum in this area of the law, there have been many Arbitral Awards concerning the CISG, which seems a popular Convention amongst commercial law arbitrators. There can even be said to be a slight "pro-CISG construction" in some arbitration regimes where the choice of law is concerned.[244] But this is hardly surprising, as the CISG represents a regulation of trade law in its "purest" form, without any domestic compromises or taints while still representing internationally accepted provisions -- it can be said to represent lex mercatoria.

Correspondingly, there is a lot of CISG practice reported from the Arbitration regime, and there are several rulings concerning Article 39. Surprisingly, however, not many of these reported cases have had the opportunity to examine or rule on the term "reasonable time".

The first reported ICC Award on Article 39(1) concerned a notice of lack of conformity given to the seller 8 days after the publication of an expert report commissioned before the goods were delivered.[245] The award does not identify the type of goods that were involved. The arbitrators found a period of eight days after discovery of the non-conformity to constitute reasonable time in accordance with Article 39(1),[246] and found that the lack of conformity could not have been discovered sooner. They did not comment on what they would usually consider reasonable time, nor give any guidelines for their conclusions in the present case.

In a 1995 award from the Hungarian Chamber of Commerce,[247] the sole arbitrator assessed a time-frame of 32 days after discovery of non-conformity of waste containers in the light of Article 39(1). He considered "the speed in which the parties were used to carry on their relationship under the contract",[248] and concluded that 32 days was not reasonable time as understood by Article 39(1). This approach is reminiscent of Schwenzer's noble month -- the arbitrator does not dismiss a period of about a month, but uses the individual circumstances of the case to determine that notice should reasonably have been given sooner. And the factor introduced to reduce the acceptable period of time is an entirely applicable one -- the parties' reliance on previous speedy negotiations and communications is a valid concern when determining the reasonableness of a communicated notice, and should be considered in the light of Article 9(1).[249]

In a 1994 ICC Award concerning the sale of cowhides,[250] the Tribunal considered an agreed notice time-frame of one month after delivery, and pronounced that it would be upheld since it was reasonable.[251] The Tribunal did not pronounce on why it considered one month reasonable, nor on it's interpretation of Articles 38 and 39, nor did it mention any factors which may have influenced the assessment of reasonableness.

Other awards mentioning Article 39(1) refer to notices the timeliness of which the seller has not disputed,[252] and a notice which is over the 2 year cut-off period in Article 39(2).[253]

Finally, it is interesting to note that in 1994 a Tribunal in Vienna [254] considered an agreement for the sale of two lots of rolled metal sheets, which derogated from Article 38 by prescribing that the goods must be examined "immediately upon delivery", and from Article 39 by prescribing that notice must be given "without delay" and within two months of delivery at the latest.[255] In the assessment of the two notices given (three and six months after delivery), the Arbitrator held the seller estopped from claiming that the notice was not given timely with regard to the first notice,[256] since the seller had given the buyer reason to believe that he considered the claim justified despite the untimely notice. With regard to the second notice, the Court did not find that there was sufficient evidence to conclude that the seller had intended to waive the right to rely on the untimeliness.[257]

All in all, on the basis of existing practice, it is difficult to pinpoint a specific trend before arbitral tribunals concerning reasonable time. The approaches to determining the notices are very much in keeping with Schwenzer's "noble month", with periods of one month generally being considered reasonable, and various factors influencing the individual timeframes, but no arbitrator has yet referred directly to this guideline of international compromise.

Moreover, the factor of regular speed of communication applied by the arbitrator in the 1995 award from Hungary is a relevant one, and one which focuses on the fact that the notice requirement concerns communication. This should ideally be taken into account by all practitioners considering "reasonable time" as it is a subjective element which is unique for each individual case and determines the appropriateness of the notice given in the light of trade usage between the parties.


IV. Predictions of Interpretations

With the CISG still a fairly young convention, there are many Contracting States with legal systems which have not yet had an opportunity to contribute to the determination of "reasonable time" by applying Article 39(1) before their Courts.

Two of these legal systems are of particular interest, because they both concern countries with experience in the field of uniform sales law, namely the Danish (Scandinavian) legal system and that of the United States of America.[258] The rulings of their domestic Courts are eagerly awaited, but in the meantime it would be interesting to take a brief look at these two legal systems and attempt to predict an outcome of possible applications of Article 39(1).

1. Danish Law

The Scandinavian countries (Norway, Sweden and Denmark), Iceland and to a certain degree Finland,[259] previously had a generally uniform sales act from 1906/1905, which applied virtually identically.[260]

In 1962, a committee for the drafting of a new Nordic Sales Act began. However, work was delayed, and upon completion of the CISG, the drafters were quick to seize the opportunity to be influenced by the provisions of this Convention as a standard "blueprint" [261] for uniform provisions on sales.[262] The new Nordic Sales Act has become incorporated in Finland, Norway and Sweden almost uniformly,[263] whereas Denmark has not yet adopted it.

With regard to notification of non-conformity, §32(1) in the Nordic Sales Act is, essentially, a reflection of Article 39(1).[264]

The Nordic Sales Act thus represents two major changes from the former Scandinavian Sales Act concerning the notification.[265] One is the fact that the latter does not distinguish between commercial and civil parties in trade, and the second is the wording of the commercial time-frame from immediately ("straks"/"genast") to within reasonable time ("inden rimelig tid"/"inom skälig [266] tid").[267]

The current Danish Sales Act, which is based upon the former Scandinavian Sales Act, imposes a duty in §52 for the commercial buyer to notify the seller immediately ("straks") after he discovers or ought to have discovered the non-conformity. Despite its linguistic implications, this period of time is a flexible one, somewhat reminiscent of §377 from the HGB in German law. Danish caselaw indicates that the time-frame depends on the discernability of the non-conformity, any false information by the seller, trade usage and the possible processing of the goods,[268] and that it is usually interpreted to be a short period of time.[269]

All Scandinavian countries are signatories to the CISG in unison,[270] with reservation taken against Part II of the Convention (Formation of Contract) and application of the Convention to inter-Scandinavian sales.[271] The Norwegian ratification has been a unique approach of direct incorporation of the CISG into Norwegian law.[272]

There is very little Danish practice of the CISG reported, and none regarding Article 39(1).[273] This lack of practice could easily fuel a suspicion that the CISG is being overlooked on a regular basis.[274]

Any prediction on the outcome of a Danish Article 39(1) case is very uncertain. The judge's awareness of international precedents or international scholars will often be dependant on the claims of the parties. Even a CISG-conscious judge would have problems; since there is currently no accepted international standard guideline for determining "reasonable time", it would be difficult for a judge to accept precedents cited by a party at face value, since they may be one-sided and taken out of context of other judgements which may not be easily obtainable. Again, the problem of accessibility of caselaw can prevent the congruency of international practice.

However, it would seem likely that a Danish judge assessing the time-frame for notice giving would look at the circumstances of the case and criteria such as: the nature of the goods (were they perishable or seasonal), the commercial status of the parties (who is to be protected most, if anyone), deadlines or excuses for longer time-frames, and any indications that speedy notice was of the essence to the seller. These criteria have applied in domestic law as to the determination of the timeliness of notice of non-conformity, and may well apply to Article 39(1) as long as the Danish judge does not have the same (brief) vantage point.

When such a case surfaces, we can only hope that the judge will be aware of the need for uniformity, and that scholars may discern the judge's guidelines and reasoning for the determination of "reasonable time" in spite of the traditional (and lamentable) briefness of the Danish ratio decidendi in printed judgements.

2. US Law

United States law varies between the different states, but as regards sales law, the Uniform Commercial Code (hereinafter referred to as the UCC) establishes common ground which is applied equally in almost all states. Article 2 concerns sales. According to §607(3)(a) of Article 2 of the UCC, a buyer must "within reasonable time after he discovers or ought to have discovered any breach" communicate this to the seller or be barred from reliance hereupon, with two different provisions for rejection and revocation of acceptance requiring the same notification.[275] The duty to specify the defect is prescribed by UCC §2-605(1). The UCC is currently being revised and re-drafted, but the changes to the domestic duty to notify of non-conformity in the current draft from 1997 (which may not be indicative of the final draft) are not substantial as regards the time-frame.[276] Note, however, that the barring from remedies in the lack of timely notice has been limited to cases where the seller establishes that he was "prejudiced by the failure" to give notice.[277]

The wording of the provision in the UCC is remarkably similar to that in Article 39(1) of the CISG. In the practice of the UCC, reasonable time has been interpreted to mean many things. The determination is influenced by such factors as the seller's opportunity for loss adjustment (which especially prompts the commercial buyer to be swift), the seller's opportunity to prepare for negotiation and litigation, and the reasonableness of a "limitation period" on reliance on non-conformity.[278] In some cases, notice has been deemed acceptable after a very long period of time,[279] but there are instances where circumstances prompt a swifter notice for consumers,[280] as well as for commercial traders.[281] Although similar criteria apply for the Article 39(1) determination of reasonable time, the time-frames allowed under the UCC would seem generally longer than those permitted under the CISG, but they fluctuate greatly.

The CISG entered into force in the United States in 1988,[282] and since then there have been several reported judgements on the CISG before US Courts. Sadly, however, there has been no practice to date on Article 39(1) of the CISG, and a definite answer to the question of whether the American Courts will apply the more generous UCC guidelines for this determination of reasonable time cannot be given.

However, although similar considerations as those applying to the Danish practitioner (above) apply for the US practitioner, there are certain indications that the uniformity of the CISG is in good hands before US Courts. There is a general awareness of the CISG in US law,[283] and a recent judgement concerning parol evidence provided the first reported example of Internet source application to ensure thorough CISG research of caselaw from other jurisdictions.[284] Although previous US Courts have not looked to international precedents when interpreting provisions of the CISG,[285] there are references to scholars who do,[286] and a clear precedent which states that domestic UCC caselaw is inapplicable in CISG cases.[287] Moreover, the Courts have lengthy experience with uniform laws (through the practice of uniform state laws), which -- along with the common-law roots of the legal system [288] -- may in the long run prompt a judge applying Article 39(1) to look for international precedents.

In other words, if there were an international guideline for the determination of reasonable time in the CISG, it would probably find its way into an American Courtroom if Article 39(1) were at issue, especially if the Internet sources to the CISG are consulted, as in the above mentioned judgement. Sadly, with the variations in international practice (and theory) as plentiful as they are, even the most CISG-conscientious American judge would be stumped to find unified precedents or a perfect theory. The outcome of the deliberations would depend on which theory or caselaw is chosen. But it is highly probable that the more generous UCC guidelines for reasonable time will not apply in the CISG regime and will not unduly influence the determination.


V. Findings from Theory and Practice on "Reasonable Time"

1. The Problems

The problem of accessibility of international judgements and commentaries has, predictably, proven a significant one for the present paper. The determination of terms on an international scale and assessment of their uniformity is, at best, inaccurate without certainty that all interpretations of the terms in question have been analysed, and it will be impossible to be sure that all relevant caselaw has been included when it is uncertain whether all caselaw has been reported and made accessible. Through necessity, the present paper has had to focus on the understanding of this provision in Europe.[289]

Additionally, there must be a multitude of cases throughout these jurisdictions which have overlooked the CISG, but which have not been reported.[290] Even a perfect caselaw network could not prevent this "vicious circle": if the CISG is not applied, the case is not reported as a CISG case, the mistake cannot be found and pointed out, and the practitioner will not be aware that a mistake has been made, and he will overlook the CISG in a similar case again.

The vastness of German practice has, moreover, tended to make the analysis of Article 39(1) very focused on this legal system. Nevertheless, some general conclusion on the available practice and theory of Article 39(1) can, at least, paint a picture of the provision.

2. The Vantage Point

Reported international practice has set different yardsticks for measuring the reasonableness of Article 39(1) time-frames. Some have been set at either a period of about one month (based on the "noble month" or traditional buyer-friendliness), or a more restrictive period of about a week (presumably based on the vantage point of more seller-friendly domestic law).

Regardless of the vantage point, however, it is the factors and considerations which determine the actual timeliness. Just like, in the realm of mathematics, the number five can be reached through subtracting five from ten or adding three to two, so the results of a determination of a reasonable time-frame can reach the same result regardless of the vantage point, through the assessment of the criteria. If the vantage point of the time-frame is already restrictive, then very few criteria should be permitted to restrict it even further, whereas a multitude of factors may advocate its extension. Opposite considerations apply to the generous vantage point. But the assessment of these factors can be tricky without a common vantage point in practice, and can easily result in arbitrary decisions. Moreover, it is especially difficult for buyer and seller alike to predict the notification time-frame where no set vantage point and evaluation of criteria has been established in caselaw.

3. The Criteria

There are numerous criteria for the determination of "reasonable time" which can be extrapolated from the available practice and theory. And countless more may surface -- a multitude of factors may influence the determination of reasonable time, as long as it is a relevant and objective consideration which is not based on legal misconceptions.

3.1. The Contract and Customary Trade Usage

The contract and agreement between the parties is the most important aspect of their relations in the CISG regime, as the Convention serves only as a gap-filler. Furthermore, international trade usage and usage established between the parties is secondary only to the contract when gap-filling and interpreting provisions of the agreement.[291] In accordance with this, the nature of the contract between the parties is a deciding factor in the determination of notice giving. Not only if a time-frame is agreed, but also where it is implied. If, for example, the contract reflects a need for expediency, a swifter notice will be required. Moreover, the customary speed of communication between the parties has helped determine with which speed the seller was entitled to expect a notice, and the timeliness of the actual notice will be influenced by this, as this will be considered a (binding) practice which the parties have established between themselves, in accordance with Article 9(1). Where neither the contract, nor trade usage, sheds any light on whether notice was given within reasonable time, other criteria may assist the practitioner in his determination, regardless of his vantage point.

3.2. Reducing the Generous Time-Frame

In reported practice, some of the more obvious factors to reduce a more generous time-frame have been the perishable nature of the goods (such as foodstuffs) and their affiliation with a particular season (such as fashion goods). Moreover, any knowledge that a buyer may have which would require a speedy notice to the seller (such as a deadline for publication) would require a speedier notice depending on the circumstances.

The scholarly factor that notice should be swifter where the buyer has chosen the remedy of avoidance has not yet been mentioned by the Courts or Tribunals as a deciding factor. Nonetheless, it is certainly a valid consideration which may have been taken into consideration. Surprisingly, closures and work-pressures in connection with seasonal holidays (such as Christmas) has been judged irrelevant in one case, but it could still be considered relevant in other circumstances. Although applied in one case, the factor of the parties commercial character should not be permitted to restrict the time-frame for notification. This would essentially apply to almost all CISG cases, as merchants are the rule and not the exception in CISG contracts. If this is to be taken into consideration, the factor of a "weaker" party's civil standing would be more suited to the extension of a restrictive time-frame vantage point.

3.3. Extending the Restrictive Time-Frame

In reported practice, there has been no evidence of any factors which have been pronounced as extending a restrictive vantage point. But then, there have not been many judgements which find the buyer's notice timely without applying a generous vantage point similar to the "noble month".

Where the buyer chooses a remedy of damages for the non-conformity, some scholarly writing states that the notice-period may be longer, whereas others disagree. There is as yet no evidence that such a criteria has been decisive in caselaw.[292] Surprisingly, there are very few reported cases which pronounce on the question of whether an earlier notice would have made any actual difference to the seller's damage control and confirmation of the non-conformity, or if the time of notice has compromised the seller in any way. For Courts choosing to prioritise the reasonableness of each case over the certainty of contracts stemming from a uniform guideline, without combining the two -- such as the recent German Courts rejecting the "noble month" -- this is especially surprising: a duty for uniform application is sacrificed for an individual fairness which will be incomplete as long as the Court does not examine the extent of which the notice actually compromised the seller. Moreover, there have not to date been any reported cases where the Court stated that the behaviour of the seller was such that the buyer reasonably presumed the seller did not need a swift notice -- although such a factor is entirely valid in the determination in accordance with Article 8(2).

All in all, the only criteria to date which have clearly influenced the time-frames set by the Courts have been those which restrict the period of time. And the Courts do not always share the same yardstick for measuring the reasonableness. It would seem that uniform results in the application of Article 39(1) are not reached.


VI. The Uniformity of Reasonable Time in Article 39(1) Caselaw

1. Is Article 39(1) Applied Uniformly?

In the quest for answers regarding legal science, the search for certainty may well prove futile -- especially when attempting to determine the meaning of a term as flexible as "reasonable time". But there are, however, certain patterns and factors concerning the application of Article 39(1) which have been made clear. Although Article 7(1) prescribes uniformity, this is by no means perfectly reflected in the application of the provision as applied by the domestic Courts and Tribunals, since the application of "reasonable time" has varied greatly domestically as well as internationally.

There are no instances in international Article 39(1) caselaw which unequivocally demonstrate any undue influence of domestic law, although there are few examples of practice which disproves it, such as the judgement from Italy which not only ignores the domestic provision, but also looks to international precedents to insure uniformity, despite the subsidiary status of caselaw in Italian law.

Although the German Courts have been known to refer to their own domestic notification provisions, this has solely been done to equate the considerations behind this rule and Article 39(1), in order to explain the conclusions of the Court. Although such reference has no place in the application of an international uniform provision, it does not actually evidence undue influence of domestic law to jeopardise the uniformity of the Convention. Similarly, although the French Courts ruled in favour of the buyer concerning a notice which might not have been considered timely before Courts of another nationality, this does not evidence the influence of French "buyer-friendly" domestic law, as the notice was such that it might conceivably be considered timely elsewhere. Nevertheless, this judgement does not disprove that French Courts might have a tendency to be too lenient with the buyer's notices. But . . . In Dubio pro Reo. We should not rush to criticise national Courts for something which they are not necessarily guilty of.

Nevertheless, the fact still remains that there are significant variations in the practice of Article 39(1). Both internationally and nationally. Article 39(1) is not applied with perfect uniformity throughout the countries which have ratified the Convention, as it should ideally. The severity of this lack of uniformity is difficult to assess. In 1961, Prof. Sundberg observed, about uniformity in general, that there is not always a need for perfect unification and identical meaning of legal terms in uniform law. He characterises severe variations in uniform law thus: "A margin of imperfection is not necessarily an actual defect as long as it does not invite plaintiffs to go "shopping" for the most generous jurisdiction. Details therefore can be allowed to vary if the basic conceptualism is retained."[293] This timeless general observation might well apply to the determination of whether a lack of uniformity in the CISG is severe today.

Although the variations in practice are rather unpredictable in some cases (such as in German law), there are still certain trends. With these trends as they are today, forum shopping is a very real "invitation" in the regime of the Convention. I would certainly, if I were a buyer facing the threat of an Article 39(1) suit in my own jurisdiction from a French seller, rush to the Courts of France, if at all possible, and hope for the best. Similarly, a seller might be well advised to chose a less buyer-friendly jurisdiction, and hope for a Court which does not practice the "noble month" in Austria or Italy.

So regardless of whether these variations and the ensuing lack of uniformity is due to the influence of domestic law, they invite forum shopping and most certainly do not retain the basic conceptualism for uniformity in the CISG. This presents a problem which should be rectified. Although the provision must retain its flexibility for the sake of fairness, it should be more predictable for the sake of foreseeability in contracts. This age-old dilemma of conflict between individual reasonableness and predictability is not easily solved, but a solution may be obtained in the case of Article 39(1).

2. Recommended Approach for Future Practice

For a determination of a period of time such as "reasonable time" to be transnationally uniform, it would seem recommendable that there be a "uniform scale" which can be applied to fit every country and every set of facts in the determination. Such a "uniform scale" must have a benchmark setting or vantage point from which to begin the assessment, and an obligation upon Courts and Arbitral Tribunals to move upward or downward from this vantage point when the specific circumstances of the case at hand support it.

The question is, of course, whether there really is a need for a "uniform scale" for the assessment of reasonable time? It may be argued that if such a scale or vantage point were intended by the drafters, then it would have been included in the Convention. On the other hand, when interpreting the Convention, regard is to be had to the need to promote uniformity in its application (Article 7), so any interpretation of Article 39(1) which promotes uniformity to the extent that a uniform scale for measuring "reasonable" time does, would surely be in the spirit of the CISG and in accordance with the will of the drafters. Moreover, a uniform scale does not fix the time-frame to such a degree that it is no longer flexible as intended; it is merely a question of agreeing on a yardstick with which to measure the reasonableness. And based on the caselaw illustrated above, there is certainly a need for agreeing on such a yardstick if Article 39(1) practice is to become more uniform.

It may also be argued that the drafters of the Convention never strove for such perfect uniformity as that which we may hope to obtain in the realm of Article 39(1) through a uniform scale. But, barring such a discussion: even if the CISG aimed at a lesser degree of uniformity, it only serves to promote the goals and ideas of the Convention, as well as the harmonisation of trade law, to take the uniformity one step further and introduce uniform scales where possible. And it is possible where Article 39(1) is concerned.

In this author's opinion, a uniform scale with a flexible vantage point is sorely needed, and the most suitable available international guideline is the "noble month" vantage point, which represents a compromise between acceptable time-frames in international domestic law. As a (flexible and not absolute) vantage point, the individual circumstances and considerations may reduce the period of notice to be "reasonable" for each specific case, and in rare circumstances adapt the time-frame to be even longer where needed. Since practice has proven reluctant to provide the restrictive period with any means of "growing" with the circumstances of the case, a more generous vantage point would seem recommendable. Not only for the sake of more certainty in contracts and better predictability of the notice time-frame for both the buyer and the seller, but also for the sake of the uniformity of the Convention.

All in all, the application of the "noble month" as a vantage point in a uniform scale for the determination of reasonable time would seem a sure step towards safeguarding the uniformity of Article 39(1).

3. Overall Conclusion

The term "reasonable time", as it is defined today, has proven too imprecise due to its flexibility without a defined uniform scale to assist the practitioners in a uniform application of Article 39(1). Such a uniform scale, with a vantage point where the factors of each individual case determine the precise notice time-frame, seems a likely path towards an autonomous definition of "reasonable time" which retains the flexibility of the provision.

The "noble month" guideline as a vantage point seems ideally suited, not only as it represents a compromise between acceptable time-frames in different domestic laws, but also since it already has gained a foothold in German practice, which represents the majority of Article 39(1) practice, as well as Swiss practice. Moreover, the "noble month" is not wholly inconsistent with existing international practice, and with the cementing of definite criteria for its expansion/reduction it remains flexible enough to allow for the "reasonableness" of the timeframe in individual cases while still protecting a certain predictability in contracts.

It is not, however, a firm reality in international practice yet -- no matter how recommendable. However, there are factors which determine the timeliness of the notice which can be said to be internationally generally recognised, and which would also be suited to the application of a recognised vantage-point, such as the "noble month".

The present paper concludes with a list of these factors, and a hope that some day they will apply to a common guideline such as the "noble month", so that the uniformity of the CISG may be ensured by Article 39(1) taking on its own international autonomous meaning while retaining its flexibility.

The factors currently influencing whether an Article 39(1) notice is given within reasonable time in international practice are:

This list of factors is not exclusive. Any circumstances suitable for influencing the "reasonable time" of the notice may be applied by the Court/Tribunal hearing a case, as long as they are relevant to Article 39(1), objective, and not based on any legal misconception. Article 39(1) is essentially a flexible provision, and should remain so in the interest of fairness. The provision just requires a little clarification in the form of a guideline with some known criteria, in the interest of predictability in contracts and the uniformity of the Convention of which it is an important part.


APPENDIX A

List of Article 39 Caselaw


  • German Courts
  • Italian Courts
  • Belgian Courts
  • Austrian Courts
  • Swiss Courts
  • Arbitral Awards
  • French Courts
  • Dutch Courts
  • Note: The following caselaw is a reflection of all the decisions rendered, and is not restricted to the highest instance findings in individual cases. Cases marked with ~ have been reversed at a higher instance.


    German Courts

    Venue

    Date

    Docket No.

    Buyer/Seller/Goods

    Notice within Reasonable Time?

    Landgericht München 03.07.89 17 HKO 3726/89 German/Italian/Fashion No; notice not specific enough

    Landgericht Stuttgart

    31.08.89 3KfHO 97/89 German/Italian/Shoes No; telephone call not proven

    Landgericht Aachen

    03.04.90 41 O 198/89 German/Italian/Shoes Yes; 1 day after discovery

    Amtsgericht Ludwigsberg

    21.12.90 4 C 549/90 German/French/Clothes Article 39 overlooked

    Landgericht Bielefeld

    18.01.91 15 O 201/90 German/Italian/Bacon Yes/No; 3 days, not specific

    OLG Koblenz

    27.09.91 2 U 1899/89 German/Italian/Marble Issue left unresolved by Court

    Landgericht Stuttgart

    13.08.91 16 S 40/91 German/French/Clothes No; 6 weeks not reasonable

    LG Baden - Baden

    14.08.91 4 O 113/90 German/Italian/Tiles No; outside time-limit agreed

    Landgericht Krefeld

    18.03.92 11 O 159/91 German/Turkish/Gherkins [CISG overlooked]

    Landgericht Saarbrücken

    23.03.92 9 O 4084/89 German/French/Doors No; misunderstanding of 39

    LG Mönchengladbach

    22.05.92 7 O 80/91 German/Italian/Textiles No; 1 month (1 week OK)

    Landgericht Berlin

    16.09.92 99 O 29/93 German/Italian/Shoes No; over 2 months after delivery

    Landgericht Berlin

    30.09.92 99 O 123/92 German/Italian/Shoes No; 3 ½ months after delivery

    Landgericht Düsseldorf

    04.12.92 40 O 91/91 German/French/Textiles [CISG overlooked]

    Landgericht Frankfurt

    09.12.92 3/3 O 37/92 German/Italian/Shoes Yes; telephone 19 days after del.

    Landgericht Darmstadt

    22.12.92 14 O 165/92 German/Swiss/Mussels Article 39 overlooked

    OLG Düsseldorf

    08.01.93 17 U 82/92 German/Turkish/Gherkins No; 7 days, implied agreement

    OLG Saarbrücken

    13.01.93 1 U 69/92 German/French/Doors No; 2 months after delivery

    OLG Düsseldorf

    12.03.93 17 U 136/92 German/Italian/Textiles No; 25 days, analogy HGB §377

    LG Düsseldorf

    22.03.93 37 0 169/92 German/Italian/Textiles [CISG overlooked]

    Landgericht Aachen ~

    28.07.93 42 O 68/93 German/Nigerian/Wood No; non-payment not enough

    OLG Koblenz

    17.09.93 2 U 1230/91 German/French/Chip No; none & defect not proven

    Landgericht Köln

    11.11.93 86 O 119/93 German/Swiss/Research No; 21 days, due to deadline

    Landgericht Hannover

    01.12.93 22 O 107/93 German/Italian/Shoes No; outside time-limit agreed

    OLG Frankfurt

    18.01.94 5 U 15/93 German/Italian/Shoes Article 39 not mentioned

    OLG Düsseldorf

    10.02.94 6 U 32/93 German/French/Textiles No; 2 month, strict construction

    OLG Düsseldorf

    10.02.94 6 U 119/93 German/Italian/Textiles No; nachfrist duty imposed

    OLG Köln

    22.02.94 29 U 202/93 German/Nigerian/Wood Yes; 8 days after examination

    Landgericht München

    07.03.94 14 HKO 23317/93 German/Austrian/Plastic [CISG overlooked]

    OLG Frankfurt

    20.04.94 13 U 51/93 German/Swiss/Mussels Article 39 overlooked

    Amtsgericht Nordhorn

    14.06.94 3 C 75/94 German/Italian/Shoes Yes; return of goods valid notice

    Landgericht Düsseldorf

    23.06.94 31 O 231/94 German/Turkish/Presses No; 4&20 months after delivery

    Landgericht Gießen

    05.07.94 6 O 85/93 German/Italian/Clothes No; outside time-limit agreed

    Landgericht Frankfurt

    13.07.94 3/13 O 3/94 German/Italian/Shoes No; telephone call not proven

    LG Nürnberg-Fürth

    26.07.94 5 HKO 10824/93 German/Austrian/Software Yes; 1 day after discovery

    OLG Köln

    26.08.94 19 U 282/93 German/Swiss/Research No; Article 39 not in appeal

    Landgericht Arnsberg

    12.10.94 2 O 217/94 German/Italian/Windows [CISG overlooked]

    Amtsgericht Riedlingen

    21.10.94 2 C 395/93 German/Italian/Ham No; 20 days, despite holidays

    Landgericht Oldenburg

    09.11.94 12 O 674/93 German/Italian/Lorry Parts No; need new notice after repair

    Landgericht München

    08.02.95 8 HKO 24667/93 German/French/Software No; not specific to ask for help

    OLG München

    08.02.95 3578/94 German/Austrian/Plastic No; 3 months (8 days OK)

    Bundesgerichtshof

    08.03.95 VIII ZR 159/94 German/Swiss/Mussels No; 6 weeks (1 noble month OK)

    Landgericht München

    20.03.95 10 HKO 23750/94 German/Italian/Bacon No; non-specific telex, 25 days

    Landgericht Landhut

    05.04.95 54 O 644/94 Swiss/German/Clothes No/Yes; 19 days, many n.c's

    OLG Frankfurt a.M.

    23.05.95 5 U 209/94 German/Italian/Shoes No; telephone call not proven

    OLG Hamm

    09.06.95 11 U 191/94 German/Italian/Windows Yes; applied to Article 46

    Landgericht Kassel

    22.06.95 8 O 2391/93 German/Italian/Clothes No; telephone call not proven

    Landgericht München

    09.08.95 7 U 7143/92 Italian/German/Chemicals ULIS case, not CISG (Art.100)

    LG Ellwangen

    21.08.95 1 KfH 0 32/95 German/Spanish/Paprika Article 39 issue overlooked

    OLG Stuttgart

    21.08.95 5 U 195/94 German/Italian/Machines No; 1 month & not proven

    OLG Nürnberg

    20.09.95 12 U 2919/94 German/Austrian/Software Yes; 1 day after discovery

    Amtsgericht Kehl

    06.10.95 3 C 925/93 German/Italian/Fashion No; 6 weeks & call not proven

    Landgericht Düsseldorf

    11.10.95 2 O 506/94 Danish/German/Generator Yes; 1 week, but not mentioned

    Landgericht Trier

    12.10.95 7 HO 78/95 Italian/German/Wine Article 40 prevents Article 39

    Landgericht Koblenz

    29.11.95 3 HO 188/94 German/Dutch/Blankets No; not specific enough

    Landgericht Marburg

    12.12.95 2 O 246/95 German/Italian/Machines No; notices not specific/proven

    Landgericht Bochum

    24.01.96 Unavailable German/Italian/Truffles No; not specific enough

    Amtsgericht Augsburg

    29.01.96 11 C 4004/95 German/Swiss/Fashion No; 18 months (1 month OK)

    Landgericht Kassel

    15.02.96 11 O 4187/95 German/Italian/Marble No; oral notice to third party

    Landgericht Duisburg

    17.04.96 45(19) O 80/94 German/Italian/Textiles None, and nachfrist imposed

    Landgericht Aachen

    19.04.96 43 O 70/95 Dutch/German/Machines No; notice not proven

    Landgericht Paderborn

    25.06.96 7 O 147/94 German/French/Plastic None, but fault too hard to spot

    Landgericht Heidelberg

    02.10.96 O 37/96 KfH II Austrian/German/St. Film Yes; 24 days after delivery

    Bundesgerichtshof

    04.12.96 VIII ZR 306/95 German/Austrian/Software Yes; 1 day, undoubtedly timely

    OLG Köln

    08.01.97 27 U 58/96 Dutch/German/Machines No; notice not proven

    OLG Koblenz

    31.01.97 2 U 31/96 German/Dutch/Blankets No; not specific enough

    OLG Karlsruhe

    25.06.97 1 U 280/96 Austrian/German/St. Film No; 24 days after delivery

    Bundesgerichtshof

    25.06.97 VIII ZR 300/96 Swiss/German/Kor. Steel Yes; seller accepted the notice

    OLG München

    09.07.972 7 U 2070/97 German/Italian/Leatherw. No; no notice given

    OLG Köln

    21.08.97 18 U 121/96 French/German/Aluminium No; noble month not apply

    OLG München

    11.03.98 7 U 4427/97 German/Italian/Clothing No; 1 month, 2 weeks agreed


    Austrian Courts

    Venue

    Date

    Docket No.

    Buyer/Seller/Goods

    Notice within Reasonable
    Time?

    OLG Innsbruck 01.07.94 4 R 161/94 Austrian/Danish/Flowers No; 3 weeks from discovery
    Landesgericht Feldkirch 29.03.94 5 Cg 176/92y-64 Austrian/Danish/Flowers No; non-conf. not proven


    French Courts

    Venue

    Date

    Docket No.

    Buyer/Seller/Goods

    Notice within Reasonable
    Time?

    Cour d'appel de Grenoble 13.09.95 93/4126 French/Italian/Cheese Yes; 30 days after delivery
    Cour d'appel de Versailles 29.01.98 95/1222 French/Italian/Machines Yes; before and after delivery


    Italian Courts

    Venue

    Date

    Docket No.

    Buyer/Seller/Goods

    Notice within Reasonable
    Time?

    Tribunale Civ. di Cuneo 31.01.96 93/4126 [45/96] Italian/French/Clothes No; 23 days after delivery


    Swiss Courts

    Venue

    Date

    Docket No.

    Buyer/Seller/Goods

    Notice within Reasonable Time?

    Pretura di Locarno-Campagna 27.04.92 6252 Swiss/Italian/Furniture No; not rely on customers
    Handelsgercht Zürich 09.09.93 HG 930138 U/H93 Swiss/Italian/Furniture No; notice not proven
    Handelsgericht Zürich 26.04.95 HG 920670 German/Swiss/Iso. Tank No; four weeks after disc.
    OG Kanton Luzern 08.01.97 11 95 123/357 Swiss/French/Tubes Yes; "noble month" applied


    Dutch Courts

    Venue

    Date

    Docket
    No.

    Buyer/Seller/Goods

    Notice within Reasonable Time?

    Arrondissementsrechtbank Dordrecht 21.11.90 2762/1989 Dutch/French/Textiles Interim; buyer must prove
    Arrondissementsrechtbank Roermond 19.12.91 900366 Dutch/Italian/Mozzarella No; 2 months, perishables
    Arrondissementsrechtbank Roermond 06.05.93 925159 Dutch/Italian/Kettles No; three months after disc.
    Arrondissementsrechtbank 's-Gravenhage 07.06.95 94/0670 French/Dutch/Apple Trees No; none proven by buyer


    Belgian Courts

    Venue

    Date

    Docket
    No.

    Buyer/Seller/Goods

    Notice within Reasonable Time?

    Tribunal Commercial de Bruxelles 05.10.94 RR 1.205/93 Belgian/Italian/Shoes No; nine months after delivery


    Arbitral Awards

    Venue

    Date

    Docket
    No.

    Buyer/Seller/Goods

    Notice within Reasonable Time?

    ICC International Court of Arbitration 1989 5713/1989 Unavailable Yes; 8 days after discovery
    ICC International Court of Arbitration 1994 7565/1994 U.S./Dutch/Coke Yes; undisputed
    ICC International Court of Arbitration 1994 7331/1994 Italian/Yugoslav/Cowhides Yes; agreed timeframe OK
    Int. Schiedsgericht der Bundeskammer der gewerblichen Wirtshaft 15.06.94 SCH-4318 German/Austrian/Metal No; outside agreed time-frame
    ICC International Court of Arbitration 23.08.94 7660/JK Czech/Italian/Machinery Yes; not explained why
    Hungarian Chamber of Commerce and Industry, Court of Arbitration 05.12.95 VB/94131 Austria/Hung./Containers No; 32 days speedy affairs
    Schiedsgericht der Handelskammer Hamburg, 21.03.96 Unavailable German/HongKong/Goods No; over 2 years



    APPENDIX B

    History of the Current Article 39(1) as reflected by UN Documents


    UN Document A/7618: "Report of the United Nations Commission on International Trade Law on the works of its second session (1969), Official Records of the General Assembly, Twenty-fourth Session, Supplement No. 18." Herein the UNCITRAL established the "Working Group on the International Sale of Goods" to ascertain which modifications of the Hague Convention of 1964 (ULIS) might render it capable of wider acceptance by countries of different legal, social and economic systems, and to elaborate a new text reflecting such modifications.

    UN Document A/CN.9/37: "Analysis of replies and comments by governments on the Hague Conventions of 1964, report of the Secretary-General". This report contains no replies or comments pertaining to Article 39 of the ULIS, which is the predecessor to Article 39 of the CISG. This is surprising, since this provision later became one of the more controversial and difficult to reach agreement on.

    UN Document A/CN.9/35: "Report of the Working Group on the International Sale of Goods, first session, 5th-16th January 1970." No mention is made of the notification requirement, save to mention that the duty to examine is too strict considering the consequences in Article 39. ( "Working Party IV" consequently proposed a new Article 38 in para. 109, which has been retained except for the substitution of the term "promptly".)

    UN Document A/CN.9/52: "Working Group on the International Sale of Goods; report on the work of the second session, 7th-18th December 1970". This session dealt with Articles 1 -17 of the ULIS, and therefore did not deal with Article 39 directly. However, Article 11 of the ULIS was discussed and heavily criticised as being unnecessarily complex, and unclear and ambiguous in its definition of "promptly". It was decided that the term "promptly" was unsuitable for Article 39(1), as this Article had its own starting point. A new draft article was recommended, which defined promptly in the words of the current Article 38 ("within as short a period as practicable").

    UN Document A/CN.9/62 add. 1 & add. 2: "Progress report of the Working Group on the International Sale of Goods on the work of its third session, held in Geneva from 17th to 28th January 1972". The Working Group decided to exchange the term "promptly" with the term "within reasonable time". This term is not, however, defined, and the remainder of the comments concerning Article 39 regard the two-year cut-off period and an additional period of guarantee.

    UN Document A/CN.9/WG.2/WP.10: "Analysis of comments and proposals relating to Articles 18-55 of the Uniform Law on the International Sale of Goods (ULIS): note by the Secretary-General". The Working Party to Articles 38 - 40 of the ULIS consisted of Austrian, U.S. and Kenyan delegates. The U.S. representative found Articles 38 and 39 too inflexible, and suggested a redrafting to take latent defects into consideration, as well as the possibility that price reduction be exempt from the loss of remedy ensuing from a failure to give timely notice of non-conformity. The Austrian representative did not agree, and further objected to suggestions that time-limits within which the buyer had to notify the seller of the defects of the goods should vary according to the action of the buyer (e.g. rejection versus acceptance and claim for damages). Austria furthermore suggested that Article 39(1) be amended so that the second full-stop sentence become Article 39(2).

    UN Document A/CN.9/WG.2/WP.16: "Report of the Secretary General: obligations of the seller in an international sale of goods; consolidation of work done by the Working Group on the International Sale of Goods and suggested solutions for unresolved problems". Article 39(1) has not yet been split up as suggested by the Austrian delegate. Para. 84 of this document explains the purpose of Article 39 as (i) giving the seller the opportunity to cure the defect or (ii) preserve evidence of the quality of the goods. Para. 85 explains why the substitution in terms took place. "Within reasonable time" was thought sufficiently flexible to adapt to the varying circumstances in which inspection might be required.

    UN Document A/CN.9/75: "Report of the Working Group on the International Sale of Goods on the work of its fourth session (New York, 22nd January - 2nd February, 1973)". All comments pertaining to Article 39 regard the period of guarantee.

    UN Document A/CN.9/87: "Report of the Working Group on the International Sale of Goods on the work of its fifth session (Geneva 21st January - 1st February, 1974)". No comments on Article 39, as all comments restricted to Articles 58-70 of the ULIS.

    UN Document A/CN.9/100, annex II): "Text of comments and proposals of representatives on the revised text of a uniform law on the international sale of goods as approved or deferred for further consideration by the Working Group at its first five sessions". General comments and the comment from the Russian representative regard the additional period of guarantee ("different" or "longer") mentioned in the two-year outside limit for notice. Comments from Norway include a restatement of the Austrian suggestion to split Article 39(1) up and form the current Article 39(2).

    UN Document A/CN.9/100, annex III): "Report of the Secretary General: pending questions with respect to the revised text of a Uniform Law on the International Sale of Goods". The Secretary-General observes that failure to comply with the notice requirement in Article 39(1) has drastic consequences (para. 102), but goes on to point out that the rigours of this requirement are mitigated by making the rules of Article 38 more flexible. The modification of the term "promptly" is also noted, but the term "reasonable time" is not explained or defined.

    UN Document A/CN.9/100: "Report of the Working Group on the International Sale of Goods on the work of its sixth session (New York, 27th January - 7th February 1975)". The Working Group considers the new Article 39(2), and the two year cut-off period.

    UN Document A/CN.9/116: "Report of the Working Group on the International Sale of Goods on the work of its seventh session (New York, 2nd-12th February 1976)". The Working Group has completed a Draft Convention wherein Article 39(1) of the ULIS has been restated as Article 23 in a new section dealing exclusively with non-conformity of goods. The wording of Article 39(1) as it appeared at the previous session has not been altered.

    UN Document A/CN.9/116, annex I: "Draft Convention on the International Sale of Goods". Article 39(1), in the shape of Article 23(1), is submitted with its current wording for comments from Governments and international organisations. The duty to specify the non-conformity is now included in para. 1.

    UN Document A/CN.9/116, annex II: "Commentary on the draft Convention on the International Sale of Goods". This commentary to Article 23 of the draft Convention explains the purpose of the provision, the relationship with the duty to examine the goods (the current Article 38, then Article 22), and the two-year cut-off period and contractual periods of guarantee. But the term "reasonable time" is not explained or defined.

    UN Document A/CN.9/125: "Comments by Governments and International Organisations on the draft Convention on the International Sale of Goods". Comments on the draft Convention where Article 39(1) was drafted as Article 23. Czechoslovakia proposed that the loss of remedy ensuing from the non-compliance with the duty to notify be limited to non-recovery. Pakistan stated that the term "reasonable time" needed definition.

    UN Document A/CN.9/126: "Report of the Secretary-General: Analysis of Comments by Governments and International Organisations on the draft Convention on the international sale of goods as adopted by the Working Group on the international sale of goods". The request from Pakistan on determination of "reasonable time" is re-printed but not commented. The proposal from Czechoslovakia is not mentioned.

    UN Document A/CN.9/128: "Report of the Working Group on the International Sale of Goods on the work of its eight session (New York, 4th-14th January, 1977)". The Working Group has begun revising the Uniform Law on the Formation of Contracts for the International Sale of Goods as a separate Convention.

    UN Document A/CN.9/142: "Report of the Working Group on the International Sale of Goods on the work of its ninth session (Geneva, 19th-30th September 1977)". German proposal to speed up the work on the ULF and include it in the Uniform Law for International Sales made. New draft for the Uniform Law on Formation of Contracts for the International Sales completed.

    UN Document A/CN.9/145: "Report of the Secretary General: incorporation of the provisions of the draft Convention on the Formation of Contracts for the International Sale of Goods into the draft Convention for the International Sale of Goods". German proposition for integration of revised laws on formation and sales adopted, meaning shift in numbers of provisions. Article 23 becomes Article 37 in the new draft on Uniform law on Contracts for the International sale of Goods.

    UN Document A/CONF. 97/5: "Commentary on the Draft Convention on Contracts for the International Sale of Goods, prepared by the Secretariat". Integration and improvements on the former commentaries on "sales" and "formation" draft conventions. The commentary to Article 37 is very similar to the commentary to Article 23 in UN Doc. A/CN.9/116, annex II, and there is still no reference to the determination of "reasonable time".

    UN Document A/33/17: "Report of the United Nations Commission on Trade Law on the works of its eleventh session". A unanimous approval of the Draft Convention on Contracts for the International Sale of Goods, and recommendation for the UN General Assembly to convene an international conference.

    UN Document A/CN.9/183: "United Nations Conference on Contracts for the International Sale of Goods". The conference was held on 10th March - 11th April 1980, and the CISG (A/CONF.97/18, annex I) was adopted with protocol (A/CONF.97/18, annex II) by a final act of the General Assembly (A/CONF.9/18). After final changes to the incorporation of the Draft Convention, Article 37 is now Article 39.

    UN Document A/CN.9/SER.C/GUIDE/1 English 12 September 1995: "UNCITRAL Outline of the CISG [The UNCITRAL Thesaurus]". In 1995, the United Nations Commission on International Trade Law commissioned Professor John O. Honnold (working in conjunction with Professor Michael Joachim Bonell and Ambassador Mahmoud Soliman) to devise a classification of each of the provisions of the CISG. The issues under 39(1) were classified as: 39A1: Specification of nature of non-conformity. 39A11: Degree of specificity required 39A2: Within reasonable time.


    APPENDIX C

    Table of Authorities


    Reference Works


    Barbalich, Roberto

    "Italy - Practical Commercial Law", Longman, London 1991.

    Beltramo, Longo & Merryman

    "The Italian Civil Code, translated", Oceana, New York, 1991.

    Bernstein, H. & Lookofsky, J.

    "Understanding the CISG in Europe", Kluwer, 1997.

    van den Berg, Albert Jan

    "New York Arbitration Convention of 1958 - towards a uniform judicial interpretation", Kluwer, Deventer, 1981.

    Bonell, M.J. & Bianca, C.M. (ed.)

    "Commentary on the International Sales Law - the 1980 Vienna Sales Convention", Guifrè, Milan 1987. Authorities quoted include: Will, Sono, Bianca and Bonell.

    Bonell, M.J. (ed.)

    "UNILEX - A Comprehensive and "intelligent" database on the 1980 UN Convention on Contracts for the International Sale of Goods (CISG)", Italian National Research Council (CNR), Transnational Juris Publications, New York, 1996.

    Böcker, Märzheuser, Nusser & Scheja

    "Germany - Practical Commercial Law", Longman, London 1992.

    v. Caemmerer & Schlechtriem(ed.)

    "Kommentar zum Einheitlichen UN-Kaufrecht", CH Beck, Munich 1995. Authorities quoted include: Schwenzer, Huber & Schlechtriem.

    Crombrugghe, N. & Arendt, G.

    "Belgium and Luxembourg - Practical Commercial Law", Longman, London 1992.

    Enderlein, F. & Maskow, D.

    "International Sales Law", Oceana, 1992.

    Gabriel, Henry

    "Practitioner's Guide to the CISG & the UCC", Oceana, 1994.

    Galston, N. & Smit, H.

    "International Sales", Matthew Bender, New York, 1984.

    Giles, O.C.

    "Uniform Commercial Law - An Essay on International Conventions in National Courts", A.W.Sijthoff, Leyden 1970.

    Gomard, Bernhard

    "Almindelig kontraktsret",Jurist-& Økonomforbundet, Copenhagen, 1988.

    Gotzen, Paul von

    "Niederländisches Handels - und Wirtschaftsrecht", Heidelberg 1979.

    Hansen, Inge Gorm

    "Selected Texts on Commercial Law", Schønbergske, Copenhagen 1980.

    Honnold, John O.

    "Uniform Law for International Sales under The 1980 United Nations Convention International Sale of Goods", 2d ed., Kluwer, Deventer 1991.

    Hoyng, Roelvink & Schlingmann

    "The Netherlands - Practical Commercial Law", Longman, London 1992.

    Hultmark, Christina

    "Reklamation vid Kontraksbrott", Jüristforlaget, Stockholm, 1996.

    Jauffret, Alfred

    "Droit Commercial", 17th Ed., LGDJ, Paris 1982

    Klunzinger, Eugen

    "Grundzüge des Handelsrechts", 8th Ed., Franz Vahlen, Munich 1994.

    Kritzer, Albert

    "Guide to Practical Applications of the United Nations Convention on Contracts for the International Sale of Goods", Kluwer, Boston, 1989.

    Lando, Ole

    "Udenrigshandelens Kontrakter", Jurist-og Økonomforbundet, Copenhagen, 1991.

    Leuschel, Roland

    "Handelsrecht schnell erfasst", Springer, Heidelberg 1995

    Lookofsky, Joseph

    "Internationale Køb", Jurist- og Økonomforbundet, Copenhagen, 1989.

    Lookofsky, Joseph

    "Consequential Damages in Comparative Context", Jurist- og Økonomforundet, Copenhagen 1989.

    Lookofsky, Joseph

    "Transnational Litigation and Commercial Arbitration", Transnational Juris, New York, 1992.

    Lookofsky, Joseph

    "International privatret på formuerettens område", Jurist- og Økonomforbundet, Copenhagen, 1993.

    Lookofsky, Joseph

    "Understanding the CISG in Scandinavia", DJØF, Copenhagen 1996.

    Maitland Hudson, Alexis

    "France - Practical Commercial Law", Longman, London 1991.

    Nicholas, Barry

    "French Law of Contract", Butterworths, London 1982.

    Nørgaard, J. & Vagner, H.H.

    "Lærebog i erstatningsret",Jurist-og Økonomforbundet, Copenhagen 1990.

    Pestalozzi Gmuer & Heiz

    "Business Law Guide to Switzerland", CCH Europe, Wiesbaden, 1992.

    Pottschmidt & Rohr

    "Privatrecht für den Kaufmann", 10th Ed., Franz Vahlen, Munich 1994.

    Schlechtriem, Peter

    "Einheitliches Kaufrecht und Nationalen Obligationenrecht", essays from the Uniform Sales Seminar of 16/17 February 1987, Nomos, Baden Baden, 1987.

    Schlechtriem, Peter

    "Internationales UN-Kaufrecht", J.C.B. Mohr, Tübingen, 1996.

    Schlechtriem, Peter

    "Uniform Sales Law", Manzsche, Vienna, 1986.

    Stadler, Hans Jörg

    "Internationale Lieferverträge", Heidelberger Musterverträge 80, 1994.

    Stuer Lauridsen, Preben

    "Om ret og retsvidenskab", Gyldendal, Copenhagen 1992.

    Svenne Schmidt, Torben

    "International Formueret", GAD, Copenhagen, 1987.

    Tamm, Ditlev

    "Retshistorie", Jurist- og Økonomforbundet, Copenhagen 1990.

    Treitel, G.H.

    "Remedies for Breach of Contract - A Comparative Account", Clarendon Press, Oxford 1988.

    UNCITRAL

    "United Nations Commission on International Trade Law, Yearbooks Vol. I - X", United Nations, New York 1970 - 1980.

    White & Summers

    "Handbook of the Law under the Uniform Commercial Code", West Publishing Co., St. Paul, 1980.

    Articles


    Aagaard, H. & Hansen, J.L. "Sælgers stilling ved købets ikke-opfyldelse efter købeloven af 1906 og The 1980 United Nations Convention on Contracts for the International Sale of Goods", in Justitia, Vol. 1 1989, p. 1-53.

    Ferrari, Franco

    "Specific Topics of the CISG in the Light of Judicial Application and Scholarly Writing", in Journal of Law and Commerce, Vol. 15, 1995, p. 1 - 127.

    Ferrari, Franco

    "Uniform Application and Interest Rates Under the 1980 Vienna Sales Convention", in Georgia Journal of International and Comparative Law, Vol. 24, 1995, p. 467-478.

    Halstrøm, Viggo

    "Kjøpsretten, Norsk Kjøpslov og Internasjonal Rettsenhet", in Tidsskrift for Rettsvitenskap, Vol. 4, 1995, p. 561-588.

    Hellner, Jan

    "CISG och den nya kontraktsrätten", in Tidsskrift for Rettsvitenskap, Vol. 1-2, 1992, p. 1-19.

    Honnold, John O.

    "The 1980 Sales Convention - Can Uniform Words give us Uniform Results?", in Juridisk Tidsskrift, Vol. 2, Nr. 1, 1990-91, p. 3-14.

    Honnold, John O.

    "The Sales Convention in Action - Uniform International Words: Uniform Application?", in Journal of Law and Commerce Vol. 8, 1988, p. 207-212.

    Huber, Peter

    "Mangelfolgeschäden: Deliktsstatut trotz Einheitskaufrechts", in Praxis des Internationalen Privat- und Verfahrensrechts, Vol. 1, 1997, p. 22-23

    Kindler, Peter

    "Sachmängelhaftung, Aufrechnung und Zinssatzbemessung: Typische Fragen des UN-Kaufrechts in der gerichtlichen Praxis", in Praxis des Internationalen Privat- und Verfahrensrechts, Vol. 1, 1996, p. 16-17.

    Lando, Ole

    "De Nye Købelove", in Nyt om Markedsret, No. 15, 1987, p. 1-16.

    Lookofsky, Joseph

    "At fremme en ensartet anvendelse af CISG", in Ugeskrift for Retsvæsen, 1996 Volume B, p. 139-144.

    Lookofsky, Joseph

    "CISG: The basis of Liability", in Justitia, Vol. 5, 1981, p. 1-72.

    Lookofsky, Joseph

    "Nye Love: International Købelov", in Juristen, Vol. 3, 1989, p. 106-117.

    Pilt, Burghard

    "Zur Mängelanzeige nach dem Einheitlichen Kaufgesetz", in Praxis des Internationalen Privat- und Verfahrensrechts, Vol. 6, 1981, p. 198-199.

    Schlechtriem, Peter

    "Das Wiener Kaufrechtsübereinkommen von 1980 (Convention on the Sale of Goods)", in Praxis des Internationalen Privat- und Verfahrensrechts, Vol. 5, 1990, p. 277-283.

    Schlechtriem, Peter

    "Uniform Sales Law - The Experience with Uniform Sales Laws in the Federal Republic of Germany", in Juridisk Tidskrift vid Stockholms Universitet, Vol. 1, 1991-92, p. 1-28.

    Schlechtriem, Peter

    "Some Observations on the United Nations Convention on Contracts for the International Sale of Goods", in Frontiers of Liability, Vol. 2, P.B.H. Birks.

    Veneziano, Anna

    "Non-Conformity of Goods in International Sales - A Survey of Current Caselaw on CISG", in Revue de Droit des Affaires Internationales, 1997, p. 36-65.

    Winship, Peter

    "Private International Law and the U.N. Sales Convention", in Cornell International Law Journal, Vol. 21, 1988, p. 487.


    Internet Websites & Databases


    http://www.jura.uni-freiburg.de/ipr1/cisg Database of CISG judgements at Freiburg University in Germany. Specialising in the full text of German and Austrian CISG judgements, and details of many others.
    http://www.eurospider.ch/BUGE/ Swiss Supreme Court judgements from 1975 - 1997.

    http://www.jura.uni-sb.de/FB/LS/witz/cisg.htm

    CISG-France database, with many French CISG cases.
    http://www.cisg.law.pace.edu/ Pace University CISG information page.
    http://www.law.cornell.edu/library/sales.htm Guide to research and literature on CISG, Cornell.
    http://soi.cnr.it/~crdcs/crdcs/case_law.htm Database of the Centre for Comparative and Foreign Law Studies - Rome, with Italian CISG cases.
    http://www.uc3m.es/cisg CISG-Spain and Latin America database, with Spanish-language CISG cases.
    http://cisgw3.law.pace.edu/galindo-da-fonseca/brasil-uff CISG-Brasil database, with CISG cases from Brazil as they emerge.
    http://www.utu.fi/oik/tdk/cisg/cisg.htm CISG-Finland database, with CISG cases from Finland.
    http://supct.law.cornell.edu/supct/ The judgements of the US Supreme Court, Cornell.
    http://uniserve.edu.au/law/pub/icl Australian International Commercial Law page.
    http://www.un.or.at/uncitral/ Homepage of the United Nations Commission on International Trade Law, including caselaw of UNCITRAL Texts (CLOUT).
    http://www.uni-wuerzburg.de/glaw/index.html German Law info-page from University of Wuerzburg.
    http://itl.irv.uit.no/trade-law/ International Trade Law Monitor, Tromsø, Norway. Information about CISG and Norwegian implementation.
    http://www.law.ubc.ca/links/index.html University of British Columbia, Faculty of Law Page. Specialises in law-related links world wide.
    http://law.house.gov/1.htm The Internet Library of the U.S. House of Representatives.
    http://www.law.upenn.edu/bll/ulc/ulc.htm Excerpts from the work of the US Uniform Law Commission, available drafts of the UCC in progress.


    FOOTNOTES

    * University of Copenhagen: Pace essay submission, September 1998 publication date.

    1. As Prof. Honnold so eloquently states: "We lawyers have to work with blunt, unreliable tools - words! . . . mushy ambiguous things even for ordinary communications.", see "The Sales Convention in Action - Uniform International Words: Uniform Application?" in Journal of Law and Commerce, Vol. 8, 1988, p. 207.

    2. A good example would be the term "avoid", which linguistically would be defined as not coming into contact with something, whereas in the language of the 1980 United Nations Convention on Contracts for the International Sale of Goods it means the ceasing of a contract which the parties have entered into.

    3. In the case of the term "avoid" from above, this is a term exclusive to the regime of the 1980 United Nations Convention on Contracts for the International Sale of Goods. Other legal systems would use the term "terminate" or "cancel" to mean the same.

    4. Please note that the determination of "reasonable time" in the present paper solely concerns Article 39(1). The term as understood by other provisions of the CISG, such as Article 46, must be interpreted and understood differently.

    5. Although drafted in 1980, the Convention could not enter into force until there were ten signatories to the Convention. With the accession to the Convention on 11 December 1986 of China, Italy and the United States of America, a date for the application of the Convention could be set. This date was 1 January 1988.

    6. As of 4 September 1998, the Contracting States are: Argentina *Australia *Austria *Belarus *Belgium *Bosnia-Herzegovina *Bulgaria *Burundi *Canada *Chile *China (PRC) *Croatia *Cuba *Czech Republic *Denmark *Ecuador *Egypt *Estonia *Finland *France *Georgia *Germany *Ghana *Greece *Guinea *Hungary *Iraq *Italy *Latvia *Lesotho *Lithuania *Luxembourg *Mexico *Moldova *Mongolia *Netherlands *New Zealand *Norway *Poland *Romania *Russian Federation *Singapore *Slovakia *Slovenia *Spain *Sweden *Switzerland *Syria *Uganda *Ukraine *United States *Uzbekistan *Venezuela *Yugoslavia *Zambia. The CISG is not yet in force in Greece, Mongolia, or Burundi but will be after 1 February 1999, 1 January 1999 and 1 October 1999, respectively.

    7. Please note that the ULIS and ULF have not been completely abandoned, but can still be applied between Contracting States if the CISG does not apply. See, for example, Oberlandesgericht München of 9 August 1995 [7 U 7143/92] [http://cisgw3.law.pace.edu/cases/950809g1.html], which applied the ULIS to a contract between an Italian buyer and a German, since the CISG did not apply by virtue of Article 100, as the contract was drawn up before the entry into force of the Convention in Italy or Germany.

    8. See UN Doc. A/7618 from the second session of the United Nations Commission on International Trade Law (UNCITRAL), where the Working Group on the International Sale of Goods was established.

    9. Please note that in spite of this, the United Kingdom has not yet signed the Convention. According to the Department of Trade and Industry, the issue was consulted in 1989, but although there was a majority in favour of accession, the Department felt this majority to be too slight for it to be pushed to legislature. With the arrival of a new Government in May 1997, however, the new Ministry of Trade felt -- in the light of the popularity of the Convention, especially amongst EU member States -- that the UK was out of step with international trade law, and new consultations for a UK accession to the CISG are currently in progress, see Department of Trade and Industry Doc. U.R.N. 97 - 875. This trend re the Consultation Document slightly leans towards the favouring of ratification, but the proposal to legislature is not (yet) a reality.

    10. UN Doc. A/CONF. 97/5

    11. See, amongst other legal scholars, Prof. Lookofsky in "Understanding the CISG in Scandinavia", p. 23.

    12. Although common law countries do not traditionally credit travaux préparatoires with much importance, some Courts have been known to look to that source for inspiration, see for example, US Supreme Court Chan v. Korean Airlines, 490 U.S. 122-123 (1989) concerning the Warsaw Convention, wherein the Court stated: ". . . the Convention's drafting history might be consulted to elucidate a text that is ambiguous".

    13. See Prof. Honnold in "The 1980 Sales Convention - Can Uniform Words Give Us Uniform Results?", p. 11-14, wherein he explains how consideration and critique of caselaw in other jurisdictions as well as help from scholars and comparative law centres smooth any divergent interpretations of uniform law.

    14. Respectively, the Caselaw of UNCITRAL Texts (UN Doc. A/CN.9/SER.C/ABSTRACTS) or the UNILEX Database edited by Prof. Bonell, from the Italian National Research Council (CNR), for a listing of Internet-sites, see Appendix C to the present paper. An excellent database on the Internet (which has already been referred to in US CISG practice in MCC Marble Ceramic v. Ceramica, CA 11th Cir. decided June 29, 1998 [http://cisgw3.law.pace.edu/cases/980629u1.html]) is the CISG database from Pace University at http:\www.cisg.law.pace.edu/ .

    15. During a seminar on uniform sales law held on 16/17th February, 1987, Prof. Honnold endorsed the importance of the establishing of "a center for research and documentation in all branches of internationally uniform law, or, if this is considered too ambitious, the research center could be confined to UNCITRAL activities", as proposed by the Polish scholar Prof. Rajski. The activities of such a centre would include documentation, research, legal training and expert advice. Prof. Honnold added: "Surely the general entry into force of the Sales Convention should and will stipulate these developments" -- sadly, that was not the case. See Prof. Honnold in Schlechtriem's "Einheitliches Kaufrecht und Nationalen Obligationenrecht", p. 145.

    16. Although the international CISG scholars have cross-references to the practice from the countries of other scholars, this is still primarily restricted to the practice from the "western" hemisphere.

    17. For example, in the CISG regime the Courts of the United States refer to the theories of Prof. Honnold (see for example Rotorex Corp. v. Delchi Carrier S.p.A. (71 F. 3d 1024-1031 2d Cir. 1995] [http://cisgw3.law.pace.edu/cases/951206u1.html]), whereas in German caselaw the scholarly commentary most frequently referred to is Prof. Schlechtriem's (see amongst many others Landgericht Kassel of 15 February 1996 [11 O 4185/95] [http://cisgw3.law.pace.edu/cases/960215g2.html]).

    18. Article 7(1) of the CISG provides: "In the interpretation of this Convention, regard is to be had to its international character and to the need to promote uniformity in its application and the observance of good faith in international trade."

    19. See Prof. Lookofsky in "At fremme en ensartet anvendelse af CISG", UfR 1996B, p. 144: "Man skal tage hensyn til den internationale præcedens, til hvad de forskellige domstole har sagt."[Consideration must be had to international precedents, to what the different Courts have said. -- my translation], and p. 140 with reference to Prof. Ferrari and Bonell in Bianca & Bonell's "Commentary on the International Sales Law", p. 91

    20. See Prof. Ferrari: "Uniform Application and Interest Rates under the 1980 Vienna Sales Convention" (24 Ga. J. Int'l & Comp. Law 467): "In order to achieve uniformity in international trade law, however, it is not sufficient to enact uniform law conventions . . . It is equally important that its provisions . . . be interpreted the same way in various countries . . ." with references to Prof. Bonell in Bianca & Bonell's: "Commentary on the International Sales Law".

    21. See Prof. Schlechtriem in Juridisk Tidsskrift, Vol. 1, 1991-92, p. 28: "With the Uniform Sales Law there is a chance that for the first time since the medieval ages, when Roman law equipped most continental lawyers with their conceptual tools, that we not only have a common language but also common legal concepts to circumscribe the decisive issues.", with reference to Prof. Hellner in Festschrift Riesenfeld, (Heidelberg 1983).

    22. Article 7(2) provides: "Questions concerning matters governed by this Convention which are not expressly settled in it are to be settled in conformity with the general principles on which it is based or, in the absence of such principles, in conformity with the law applicable by virtue of the rules of private international law." According to Kritzer in "Practical Applications of the United Nations Convention on Contracts for the International Sale of Goods", p. 114-117, these general principles, reasoned by analogy, of the Convention include: i) providing needed co-operation, ii) a duty to disclose material information, iii) reasonableness, and iv) equal treatment and respect for the different cultural, social and legal backgrounds of individual traders (the latter with reference to the scholar Kastely).

    23. An example of such faux amis in the CISG-regime is found in Article 47(1) which the Secretariat labelled a "Nachfrist" rule in its commentary. However, this has misled some German practitioners to consider Article 47(1) a duty for the buyer as opposed to a right, by equating it to the domestic "Nachfrist" rule in § 326 of the German Commercial Code (HGB). See text with note 165 infra for examples of this unfortunate practice.

    24. Articles 8(2), 8(3), 16(2)(b), 18(2), 25, 33(c), 34, 35(2)(b), 37, 38(3), 39(1), 43(1), 44, 46(3), 47(1), 48(1), 48(2), 49(2)(a), 49(2)(b), 60(a), 63(1), 64(2)(b), 65(2), 72(2), 73(2), 75, 76(2), 77, 79(1), 79(4), 85, 86(1), 86(2), 87, 88(1), 88(2), 88(3) -- see also extrapolations of the concept of the "reasonable person" to still other parts of the Convention, e.g., Articles 9 and 24.

    25. Article 8(2) provides: "If the preceding paragraph is not applicable, statements made by and other conduct of a party are to be interpreted according to the understanding that a reasonable person of the same kind as the other party would have had in the same circumstances." This is largely an improvement of Article 13 of the ULIS, which stated: "For the purposes of the present Law, the expression "a party knew or ought to have known", or any similar expression, refers to what should have been known to a reasonable person in the situation."

    26. See Kritzer in "Practical Application of the United Nations Convention on Contracts for the International Sale of Goods", p. 116.

    27. Regarding "reasonable time", see UN Doc. A/CN.9/WG.2/WP.16, para. 85: ". . . the Working Group concluded that the expression "within a reasonable time" was sufficiently flexible to adapt to the varying circumstances . . .".

    28. During the drafting of the CISG, a representative expressed concern that since the Uniform Law applies irrespective of the commercial or civil character of the parties, a lack of definitions of terms as viewed by international trade might lead to different approaches by Courts through the application of domestic or subjective criteria. He further considered it necessary to have a definition of the term "reasonable time", see UN Doc. A/CN.9/52, para. 94.

    29. This margin of appreciation is a doctrine stemming from the regime of the European Convention on Human Rights (the ECHR), which the European Court of Human Rights has adopted to grant Contracting States "space" for their own assessment of cases since the ECHR does not set out to establish a uniform Europe.

    30. For example, with regard to the right to reasonably interpret actions in Article 8(2), certain criteria for the determination of this particular reasonableness are listed in Article 8(3) [Article 8(3) provides: "In determining the intent of a party or the understanding a reasonable person would have had, due consideration is to be given to all relevant circumstances of the case including the negotiations, any practices which the parties have established between themselves, usages and any subsequent conduct of the parties."] Although somewhat vague and general, these criteria ensure -- to a certain extent -- that the provisions which Article 8(2) may affect remain uniform while retaining the intended flexibility of reasonableness. But this is one of the few provisions for which the Convention has set a guideline for the determination of its reasonableness.

    31. See Prof. Bonell in Bianca & Bonell's "Commentary on the International Sales Law", p. 74: "Yet, to have regard to the "international character of the Convention also implies the necessity of interpreting its terms and concept autonomously, i.e., in the context of the Convention itself and not by referring to the meaning which might traditionally be attached to them within a particular domestic law."

    32. This tendency was also true for the CISG precedents, ULF and ULIS, see Schlechtriem in "Some Observations on the United Nations Convention on Contracts for the International Sale of Goods" in Frontiers of Liability, vol. 2, p. 43: "It was clear from our collection of judgements involving the Hague Sales Laws (ULIS and ULFIS) that about 1/5 of all the cases concerned questions of correct and timely notice and the consequences of failure to give notice." However, where the CISG is concerned, Art. 39 judgements represent more than 20 % of reported practice: in the Pace CISG database of 453 reported judgements (visited 5 August 1998 at http:\www.cisg.law.pace.edu/ ), a total of 118 cases concern Art. 39, i.e., 26 %.

    33. See Prof. Ferrari in "Specific Topics of the CISG", p. 99: "One of the most important issues of the CISG . . . appears to be . . . the notice to be given to the seller in case of non-conformity of the goods", and reference to Magnus in note 686, who states: "the obligation to notify the seller in case of lack of conformity of the goods bought is one of the most important practical issues of the CISG."

    34. See Prof. Treitel in "Remedies for Breach of Contract - A Comparative Account", p. 400, para. 291 re. Lapse of time: "The prejudice which termination can cause to the defaulting party obviously increases the longer the aggrieved party delays in claiming this remedy; and most systems of law contain provisions designed to ensure that the right to terminate is exercised without undue delay."

    35. The consequences of non-compliance with Article 39(1) have been considered drastic as well as disastrous. See, for example, Sono in Bianca & Bonell's "Commentary on the International Sales Law", p. 326: "Under Article 39(1), the buyer's failure to give a timely notice of non-conformity of the goods will deprive the buyer of his right to rely on the lack of conformity against the seller. Thus, the sanction against the failure to give the adequate notice is drastic, i.e., the loss of remedy." See Bernstein & Lookofsky in "Understanding the CISG in Europe", p. 63, who consider the sanction disastrous for the buyer.

    36. See Secretariat Commentary, UN Doc. A/CONF. 97/5: "The purpose of the notice is to inform the seller what he must do to remedy the lack of conformity, to give him the basis on which to conduct his own examination of the goods, and in general to gather evidence for use in any dispute with the buyer over the alleged lack of conformity." In Landgericht Kassel of 15 February 1996 [11 O 4185/95] [http://cisgw3.law.pace.edu/cases/960215g1.html], the Court stated that the purpose of the provision was not only the general interests of the industry to have a quick settlement of legal issues, but also first and foremost the seller's opportunity to undertake measures (which will become more difficult in time) to defend himself from claims such as damages. This latter consideration, however, is the driving force behind Article 39(2) according to the Secretariat Commentary to Article 37 (former draft to Article 39), para. 5.

    37. See Profs. Enderlein & Maskow in "International Sales Law", p. 159-160: "It is in the interest of the buyer himself to inform the seller because the latter can do nothing to cure the lack before he becomes aware of it."

    38. For instance, in the case of commodities which fluctuate greatly in value, the buyer should not be permitted "free options" of lengthy time-frames based on speculations of the increase in price vs. his assessment of the significance of the non-conformity in question.

    39. Article 35 provides:

    "(1) The seller must deliver goods which are of the quantity, quality and description required by the contract and which are contained or packaged in the manner required by the contract.

    "(2) Except where the parties have agreed otherwise, the goods do not conform with the contract unless they:

    (a) are fit for the purposes for which goods of the same description would ordinarily be used;

    (b) are fit for any particular purpose expressly or impliedly made known to the seller at the time of the conclusion of the contract, except where the circumstances show that the buyer did not rely, or that it was unreasonable for him to rely, on the seller's skill and judgement;

    (c) possess the qualities of goods which the seller has held out to the buyer as a sample or model;

    (d) are contained or packaged in the manner usual for such goods or, where there is no such manner, in a manner adequate to preserve and protect the goods.

    "(3) The seller is not liable under subparagraphs (a) to (d) of the preceding paragraph for any lack of conformity of the goods if at the time of the conclusion of the contract the buyer knew or could not have been unaware of such lack of conformity."

    40. For a discussion of what constitutes lack of conformity under Article 35, see amongst others, Ferrari in "Specific Topics of the CISG", p. 101-104, and Bianca in Bianca & Bonell's "Commentary on the International Sales Law", from p. 273. Generally, goods which do not conform to the specifications of the buyer or are unfit for ordinary purposes are non-conforming, the question of whether this includes the delivery of completely different goods (aliuds) is not finally settled. Article 33(1)(b) of the ULIS explicitly includes aliuds as non-conforming goods, but this provision was not restated in the CISG. Scholars are not in complete agreement as to the question under the CISG, see for example Prof. Schlechtriem in "Uniform Sales Law", p. 67, as opposed to Bianca in Bianca & Bonell's "Commentary on the International Sales Law", p. 273.

    41. Any non-performance by the seller entitles the buyer to exercise his rights under the Convention or claim damages, see Article 45 of the Convention which is a no-fault basis of contractual liability. For a comparative analysis of the fault and no-fault theories of contractual liability pursuant to the Danish Sale of Goods Act, the American Uniform Commercial Code and the CISG, see Prof. Lookofsky in Justitia, Vol. 5, 1981, p. 1-72.

    42. Article 47 (1) provides: "The buyer may fix an additional period of time of reasonable length for performance by the seller". Note that with respect to non-conformity, this is a right for the buyer and not the seller. Only where avoidance of a contract based on non-delivery is concerned may a buyer be obligated to have fixed such an additional period before avoidance, see Article 49(1)(b).

    43. Article 50 provides: "If the goods do not conform with the contract and whether or not the price has already been paid, the buyer may reduce the price in the same proportion as the value that the goods actually delivered had at the time of the delivery bears to the value that conforming goods would have had at that time. However, if the seller remedies any failure to perform his obligations in accordance with article 37 or article 48 or if the buyer refuses to accept performance by the seller in accordance with those articles, the buyer may not reduce the price." For commentaries on Article 50, see Prof. Honnold in "Uniform Law for International Sales" from p. 309; and Profs. Enderlein & Maskow in "International Sales Law", from p. 195.

    44. Article 74 provides: "Damages for breach of contract by one party consist of a sum equal to the loss, including loss of profit, suffered by the other party as a consequence of the breach. Such damages may not exceed the loss which the party in breach foresaw or ought to have foreseen at the time of the conclusion of the contract, in the light of the facts and matters of which he then knew or ought to have known, as a possible consequence of the breach of contract." For commentaries on Article 74, see Prof. Honnold in "Uniform Law for International Sales", from p. 403; and Profs. Enderlein & Maskow in "International Sales", from p. 297.

    45. In the CISG regime, the term "avoidance" is applied for the termination of a contract. Avoidance by the buyer is regulated in Article 49, which provides when such avoidance may take place (para. 1) and the time-frames for declaration of avoidance (in accordance with Article 26) when the buyer intends to avoid (para. 2). Article 49(1)(a) provides: "(1) The buyer may declare the contract avoided: (a) if the failure by the seller to perform any of his obligations under the contract or this Convention amounts to a fundamental breach of contract;" For commentaries, see Prof. Honnold in "Uniform Law for International Sales", from p. 301; Profs. Enderlein & Maskow in "International Sales Law", from p. 189; and Will in Bianca & Bonell's "Commentary on the International Sales Law", from p. 359. Note that damages for loss under Article 74 can still be awarded after avoidance (Article 76(1)) as well as damages under Article 75 for difference in price.

    46. The fundamentality of a breach is determined according to Article 25, which provides: "A breach of contract committed by one of the parties is fundamental if it results in such detriment to the other party as substantially to deprive him of what he is entitled to expect under the contract, unless the party in breach did not foresee and a reasonable person of the same kind in the same circumstances would not have foreseen such a result." Scholars seem to agree that the substantiality of the breach is determined according to the individual facts of each case, Prof. Honnold includes the seller's right to cure, see Prof. Honnold in "Uniform Law for International Sales", p. 185. See also Will in Bianca & Bonell's "Commentary on the International Sales Law", from p. 205; and Profs. Enderlein & Maskow in "International Sales Law", from p. 111.

    47. UN Doc. A/CN.9/SER.C/GUIDE/1 English 12 September 1995 (UNCITRAL Thesaurus), classifies this issue as 39A1, and the degree of specificity as 39A11.

    48. See for example Landgericht Landhut of 5 April 1995 [54 O 644/94] [http://cisgw3.law.pace.edu/cases/950405g1.html] explained in text accompanying note 174 infra.

    49. See for example Landgericht Bielefeld of 18 January 1991 [15 O 201/90] [http://cisgw3.law.pace.edu/cases/910118g1.html] where notice was considered communicated to the seller within reasonable time (3 days), but was not considered specific enough with regard to one aspect of the non-conformity which the buyer could, consequently, not rely on.

    50. See, for example, the Dutch judgement Arrondissementsrechtsbank Gravenhage of 7 June 1995 [94/0670] [http://cisgw3.law.pace.edu/cases/950607n1.html] wherein the buyer failed to indicate when and how he gave timely notice.

    51. Article 38 provides that: "(1) The buyer must examine the goods, or cause them to be examined, within as short a period as is practicable in the circumstances. (2) If the contract involves carriage of the goods, examination may be deferred until after the goods have arrived at their destination. (3) If the goods are redirected in transit or redispatched by the buyer without a reasonable opportunity for examination by him and at the time of the conclusion of the contract the seller knew or ought to have known of the possibility of such redirection or redispatch, examination may be deferred until after the goods have arrived at the new destination."

    52. See Prof. Ferrari in "Specific Topics of the CISG", p. 105, who disagrees with Reishofer regarding the need for an immediate examination, and rejects the rule of Piltz according to which three to four days is generally considered a short period.

    53. The impediments influencing the permitted period for examination are limited to those which are "general and objective", see Bianca in Bianca & Bonell's "Commentary on the International Sales Law", p. 299.

    54. See UN Doc.A/CONF.97/5, the Secretariat Commentary to Article 36 (former draft to Article 38), para. 2: "The time when the buyer is obligated to examine the goods under article 36 [current Article 38] constitutes the time when the buyer "ought to have discovered" the lack of conformity under article 37 [current Article 39], unless the non-conformity is one which could not have been discovered by such examination."

    55. The reasonableness of the extent of the duty to examine the goods can be reached through an application of the general principle of reasonableness via Article 7(2) gap-filling, see Peter Winship in "Private International Law and the U.N. Sales Convention", p. 530, and Sono in Bianca & Bonell's "Commentary on the International Sales Law", p. 309-310 who also finds the expectations of the seller as a "reasonable person" in Article 8(2) relevant to what the examination may reveal.

    56. See, for example, Landgericht Paderborn of 25 June 1996 [7 O 147/94] [http://cisgw3.law.pace.edu/cases/960625g1.html], wherein the non-conformities could only have been discovered by way of a detailed chemical analysis which the buyer could not have been required to carry out.

    57. See Prof. Lookofsky in "Internationale Køb", p. 62.

    58. Article 9(2) provides: "The parties are considered, unless otherwise agreed, to have impliedly made applicable to their contract or its formation a usage of which the parties knew or ought to have known and which in international trade is widely known to, and regularly observed by, parties to contracts of the type involved in the particular trade concerned."

    59. UN Doc.A/CONF.97/5, Secretariat Commentary to Article 36 (former draft of Article 38), para. 3: "The examination which this article requires the buyer to make is one which is reasonable in the circumstances . . . That which is reasonable in the circumstances . . . will depend on such factors as the type of goods and the nature of the parties. For example, a party would not be expected to discover a lack of conformity of the goods if he neither had nor had available the necessary technical facilities and expertise, even though other buyers in a different situation might be expected to discover such a lack of conformity."

    60. UN Doc.A/CONF.97/5, Secretariat Commentary to Article 37 (former draft of Article 39), Example 37A: "The non-conformity in the goods was not such that Buyer ought to have discovered it in the examination required by article 36 [former draft of Article 38]. However, the non-conformity was such that it ought to have been discovered once Buyer began to use the goods. In this case Buyer must give notice of the non-conformity within a reasonable time after he "ought to have discovered" it by use."

    61. For example, in a Swiss judgement from 1992, the Court stated that the buyer ought to have discovered that the cushions of sofas sold on to customers slid when sat in over a period of time, and specifically pointed out that a buyer re-selling the goods must carry out his own thorough Article 38 testing of the goods and not rely on customer complaints for the purpose of Article 39(1). See Pretura delle giurisdizione di Locarna-Campagna judgement of 27 April 1992 [6252] [http://cisgw3.law.pace.edu/cases/920427s1.html] detailed in text accompanying note 226 infra. A similar conclusion is reached in the German judgement Oberlandesgericht Karlsruhe of 25 June 1997 [1 U 280/96] [http://cisgw3.law.pace.edu/cases/970625g1.html] where the Court stated that the buyer should have discovered the short-comings of sticky film before selling it on, see text accompanying note 178 infra where this judgement is analysed.

    62. See Anna Veneziano in "Non-conformity of goods in international sales - A survey of current caselaw on CISG" in Revue de droit des affaires internationales 1997, p. 52, with reference to ICC Court of Arbitration case 5713/1989 [http://cisgw3.law.pace.edu/cases/895713i1.html].

    63. It should, however, be noted that such an excuse for not examining the goods will be hard to substantiate. For instance, the exception in Article 38(3) has been interpreted so restrictively that it solely applies where the buyer does not actually handle the goods himself at all; see for example Oberlandesgericht Saarbrücken of 13 January 1993 [1 U 69/92] [http://cisgw3.law.pace.edu/cases/930113g1.html], where the deferment of the obligation to inspect the goods did not apply since the buyer took possession of the goods in order to redirect them -- since he should have examined them, he ought to have discovered the non-conformities and he lost his right to rely on the non-conformity as he did not give notice thereof within reasonable time.

    64. See Profs. Enderlein & Maskow in "International Sales Law", p. 160: "If the buyer already discovers defects before taking over the goods, the reasonable time still commences at this time of discovery -- i.e., before delivery."

    65. See Prof. Sono in Bianca & Bonell's "Commentary of the International Sales Law", p. 309-310, section 2.5., where no mention of Article 38 is made.

    66. See Prof. Schlechtriem in "Uniform Sales Law", p. 71-72: "The time limit for the notification of the defects is determined by the actual handing over of the goods."

    67. See, for example Anna Veneziano in "Non-conformity of goods in international sales", p. 51: "The interpretation of what is meant by "reasonable time" has been -- not surprisingly -- one of the most frequent issues in caselaw . . . One important element taken into account by courts is whether the defects are easily discovered.", with reference to an Italian judgement.

    68. Article 27 provides: "Unless otherwise expressly provided in this Part of the Convention, if any notice, request or other communication is given or made by a party in accordance with this Part and by means appropriate in the circumstances, a delay or error in the transmission of the communication or its failure to arrive does not deprive that party of the right to rely on the communication."

    69. See Prof. Schlechtriem in "Internationales UN-Kaufrecht", p. 89.

    70. Article 40 provides: "The seller is not entitled to rely on the provisions of articles 38 and 39 if the lack of conformity relates to facts of which he knew or could not have been unaware and which he did not disclose to the buyer."

    71. See Schwenzer in Prof. Schlechtriem's "Kommentar zum Einheitlichen UN-Kaufrecht", p. 370: "Kenntnis oder nicht in unkenntnis sein können des Verkäufers hat der Käufer zu beweisen." [The seller's awareness or inability to be unaware is for the buyer to prove.] The text has now been translated into English, see Peter Schlechtriem (ed.) "Commentary on the UN Convention on the International Sale of Goods", Oxford University Press 1998.

    72. See ibidem, p. 368-369: "Nicht in unkentniss sein können ist mehr als grobe fahrlässigkeit. Es muss sich vielmehr um ins auge springende Vertragswidrigkeiten handlen." [Not being unaware requires more than gross negligence. It is rather a question of obvious undertakings which leap out at the eye -- my translation.] According to Huber, it is defined as "a little bit less than cunning and a little bit more than gross negligence", see Enderlein & Maskow's "International Sales Law", p. 164.

    73. See Profs. Enderlein & Maskow in "International Sales Law", p. 164: "The wording of the CISG itself would, in our view, include simple negligence, which could also be described as a violation of customary care in trade."

    74. ICC case no. 5713/1989, wherein the arbitrators stated that it clearly transpired from the files and materials of the case that the seller could not have been unaware of the non-conformity. In the famous judgement regarding maggots in mozzarella from Arrondissementrechtbank Roermond of 19 December 1991 [http://cisgw3.law.pace.edu/cases/911219n1.html], the Court allowed the buyer time to prove that the maggots were in the cheese at the time of shipment, and added in an obiter dictum that if they succeeded the seller's knowledge would be presumed. Other judgements have been more restrictive in their findings for the buyer; Article 40 was applied in Landgericht Landshut of 5 April 1995 [54 O 644/94] [http://cisgw3.law.pace.edu/cases/950405g1.html] since the seller had admitted knowledge of the non-conformity, and in Landgericht Trier of 12 October 1995 [7 HO 78/95] [http://cisgw3.law.pace.edu/cases/951012g1.html] as the addition of water in wine was clearly fraudulent and could not happen without the seller's knowledge.

    75. Article 44 provides: "Notwithstanding the provisions of paragraph (1) of article 39 and paragraph (1) of article 43, the buyer may reduce the price in accordance with article 50 or claim damages, except for loss of profit, if he has a reasonable excuse for his failure to give the required notice."

    76. See Prof. Honnold in "Uniform Law for the International Sales", p. 261: "It seems difficult to justify a buyer's failure to give notice within a "reasonable time" after he knew of the non-conformity."

    77. Ibidem: "However, a buyer who notices a defect in the goods might reasonably consider the defect to be unimportant and only later discover the significance of the defect--"

    78. The burden of evidence for proving a reasonable excuse lies on the buyer, and a reasonable excuse is often rejected for lack of evidence, see for example, ICC Court of Arbitration case 7331/1994 [http://cisgw3.law.pace.edu/cases/947331i1.html] and Oberlandesgericht Saarbrücken, judgement of 13 January 1993 [http://cisgw3.law.pace.edu/cases/930113g1.html].

    79. See Oberlandesgericht München of 8 February 1995 [7 U 3758/94] [http://cisgw3.law.pace.edu/cases/950208g2.html] where the Court agrees with Huber's conclusion in Prof. Schlechtriem's "Kommentar zum Einheitlichen UN-Kaufrecht", that when taking all things into account, a fast-paced business requires quick decisions and prompt actions and is thus unlikely to have an excuse, as opposed to single traders, artisans or free professionals.

    80. Such a differentiation between businesses would seem characteristic of the "inflexible flexibility" arising from the application of the term "reasonable" to uniform law. Although the considerations leading to the original conclusion of differentiation are fair in certain cases, formulating such a criterion for the presentation of a reasonable excuse (in the absence of criteria laid down in the Convention) may not, in fact, be reasonable when applied to all cases. If Courts of another country were to feel bound by this aspiring criterion the same consideration might not rightly apply -- but on the other hand, if this criterion solely applies to German law the "reasonable excuse" in Article 44 will be rendered non-uniform in practice. In the latter scenario, the unfortunate phenomenon of forum-shopping would most certainly become attractive to buyers wishing to present a reasonable excuse, who would then be well advised to avoid a German forum. It is a tricky tight-rope to walk. The present paper will not, however, delve deeper into the problems of Article 44.

    81. Interestingly, it has been applied in German domestic law as a "yardstick" for measuring periods of guarantee; in a judgement from the German supreme Court from 1990 (quoted by Prof. Schlechtriem in "Juridisk Tidskrift Vol. 1, 1991-1992, p. 3), the court stated that a buyer's standard conditions could not extend the seller's warranties to exceed 2 years, with reference to Article 39(2).

    82. See Prof. Sono, in Bianca & Bonell's "Commentary on the International Sales Law", p. 307.

    83. See Profs. Enderlein & Maskow in "International Sales Law", p. 161: "This is not a limitation period, but rather a period of exclusion. It may neither be checked nor interrupted, e.g., through repair."

    84. Prof. Lookofsky states, in "Consequential Damages in Comparative Context", p. 261 n.36, that "[t]he more controversial of these provisions is Article 39(2), with its absolute 2-year cutoff."

    85.Although the foreseeability of the time-limit in Article 39(2) is not a problem, this relatively short period of exclusion clashes with two other limitation periods: on one hand it may clash with shorter domestic limitation periods in, for example, German, Swiss and Austrian Law as well as longer periods which may apply under the US UCC in the case of latent defects, and on the other hand it also causes problems in relation to the 4-year prescription period in the Convention on the Limitation Period in the International Sale of Goods (Article 8 and Article 10(2)). For more information see Prof. Sono, in Bianca & Bonell's "Commentary on the International Sales Law", from p. 306 and Profs. Enderlein & Maskow in "International Sales", p. 161.

    86. For an overlook of the UN Documents on the drafting of this provision, see Appendix B, infra.

    87. Article 39(1) of the ULIS provides: " The buyer shall lose the right to rely on a lack of conformity of the goods if he has not given the seller notice thereof promptly after he discovered the lack of conformity or ought to have discovered it."

    88. See for example Prof. Ferrari, in "Specific Topics of the CISG", p. 108: ". . . the time requirement of the ULIS was shorter", and Witz in "Les premiéres applications jurisprudentielles du droit uniforme de la vente internationale", who critisizes the German judges for their failure to recognise the difference between the two provisions, quoted from Prof. Lookofsky's "Understanding the CISG in Scandinavia", p. 24, note 82.

    89. See Landgericht Heidelberg of 2 October 1996 [O 37/96 KfH II] [http://cisgw3.law.pace.edu/cases/961002g1.html] wherein the Court stated (perhaps as a consequence of Witz's criticisms the year before, see note 84 above), that Article 39 of the CISG is more buyer-friendly than Article 39 of the ULIS as it does not require prompt notification. This judgement was subsequently reversed in Oberlandesgericht Karlsruhe 25 June 1997 [1 U 280/96] [http://cisgw3.law.pace.edu/cases/970625g1.html], but the statement regarding the ULIS was not commented on by the higher instance.

    90.Article 11 of the ULIS provides: "Where under the present Law an act is required to be performed "promptly", it shall be performed within as short a period as possible, in the circumstances, from the moment when the act could reasonably be performed."

    91. Profs. Enderlein & Maskow also conclude that the two time-frames are alike, see "International Sales Law", p.159: "The reasonable time is in any case . . . like Article 39, paragraph 1 ULIS . . .", as does Ole Lando in "Udenrigshandelens Kontrakter", p. 351: "Hvor det drejer sig om reklamationsfristen ved mangler, er forskellen mellem CISG og ukbl næppe store" [Where the notification time-frame for non-conforming goods is concerned, the difference between CISG and ULIS is not great -- my translation.]

    92. See UN Doc. A/CN.9/52, para. 91.

    93. See UN Doc. A/CN.9/52, para. 94 and A/CN.9/WG.2/WP.6, para. 72, in connection with the re-drafting of Article 11 (which was later stricken from the Convention).

    94. See UN Doc. A/CN.9/125; "Comments by Governments and International Organisations on the Draft Convention on the International Sale of Goods",

    95. See UN Doc. A/CN.9/116, annex I - Draft Convention on the International Sale of Goods following the seventh session of the working group (before the formation of contracts on international sale was incorporated into the Convention).

    96. If "reasonable time" had been defined in the Convention, an individual determination for each of the provisions applying the term would have been necessary, as they each pertain to different scenarios and cannot be determined equally. A general determination of "reasonable time" would have been too general and vague to be of much actual use in the practitioner's assessment of the individual time-frame -- the guideline which is needed is a specific one.

    97. UN Doc. A/CN.9/SER.C/GUIDE/1 English 12 September 1995, classifies this issue as 39A2.

    98. Although it may well be argued that a right to reasonably interpret "reasonable time" pursuant to Article 8(2) would enable the application of criteria in Article 8(3), these do not help in the definition of a time-frame.

    99. See text with notes 93 and 94 supra.

    100. See Prof. Honnold in "Uniform Law for International Sales", p. 281: "The determination of the "reasonable period" for notice following the time when the buyer discovers (or ought to have discovered) the non-conformity would be influenced by a wide range of factors."

    101. Article 9(2) of the CISG provides only that international trade usages are impliedly made applicable to agreements between parties, and Article 9(1) solely binds the parties to trade usages they have agreed or previously established between themselves. In an Austrian judgement from Oberlandesgericht Graz of 9 November 1995 [6 R 194/95] [http://cisgw3.law.pace.edu/cases/951109a3.html], the Court found that a seller doing longstanding business in a particular trade in a particular country is bound by national trade usage. This conclusion should, however, be regarded as subject to a variety of conditions and not a sanctioning of the inclusion of national trade usage to Article 9.

    102. See Schlechtriem "Kommentar zum Einheitlichen UN-Kaufrecht", p. 362: "Deutsche Autoren wollen tendenziell enen Zeitraum von ca. acht tagen zugrunde legen", with references to Herber/Czerwenka, Piltz, Asam, and Reinhart in note 58. The text has now been translated into English, see Peter Schlechtriem (ed.) "Commentary on the UN Convention on the International Sale of Goods", Oxford University Press 1998.

    103. Ibidem, p. 362: "Will man allzu großen Auslegungsdivergenzen vorbeugen, erscheint eine Annäherung der Standpunkte unabdingbar. Als grobem Mittelwert sollte man deshalb wenigstens von ca. einem Monat ausgehen."

    104. This general principle originates with the Scholar Kastely, see note 22 supra.

    105. Ibidem, p. 361-362.

    106. See Sono in Bianca & Bonell "Commentary on the International Sales Law", p. 309: "In such cases [rejection of the goods], a prompt communication may also be important to give the seller an opportunity to care for or redispose of the rejected goods and thus reduce the chance for loss or damage to the goods or the incurring of unnecessary expense".

    107. This proposal was first made by the United States, see UN Doc. A/CN.9/WG.2/WP.10, para. 49. The Austrian representative objected to this suggestion, however, and it was not drafted. A similar proposal was re-stated by the Czechoslovakian representative in UN Doc. A/CN.9/125. Interestingly, in the current re-drafting of the United States Uniform Commercial Code, such an amendment to restrict the consequences of failure to give notice has been introduced, see text with notes 275 and 276 infra.

    108. See Prof. Ferrari in "Specific Topics of the CISG", p. 109-110, with reference to Magnus, Schwenzer, Rohwer & Coe and Schlechtriem in notes 766 and 770. The terms of the contract will always supersede the CISG, by way of Article 6, except in cases of invalid contract terms. The CISG does not concern the question of contract validity unless otherwise expressly provided, and this issue is to be settled by Article 7(2) gap-filling, i.e., otherwise applicable law and general principles of the Convention. Some examples of international principles for contract validity are found in the UNIDROIT Principles of International Commercial Contracts (Rome, 1994), see, for example, Article 2.20 on surprising contract terms.

    109. See Profs. Enderlein & Maskow in "International Sales Law", p. 160: "The wording of this paragraph, however, requires the giving of notice within reasonable time also in this case. Furthermore, this view [Prof. Sono's choice of remedy criteria] underestimates the difficulties to prove a non-conformity which grows with time."

    110. For a brief overlook of the caselaw mentioned in this section, see Appendix A infra.

    111. See Klunzinger in "Grundzüge des Handelsrechts", p. 248: "Untersuchung und Rüge müssen "unverzüglich" erfolgen. Hierzu bestimmt die bekannte Definition in § 121 BGB: unverzöglich bedeutet "ohne schuldhaftiges Zögern". Zeigen sich (verdeckte) Mängel erst später, so muß die Anzeige unverzüglich nach der Entdeckung gemacht werden." The translations of the terms are mine.

    112. The goods will be considered accepted by the buyer if correct notice is not given, see HGB § 377, Abs. 3 regarding non-conform goods.

    113. See Pottschmidt & Rohr in "Privatrecht für den Kaufmann", p. 247: "Die Mängelanzeige ist nicht formbedürftig. Sie muß deshalb nicht schriftlich, sondern kann auch mündlich, telefonisch oder per Fernschreiben erklärt werden."

    114. The Convention was signed by the former German Democratic Republic on 13 August 1981, ratified on 23 February 1989 and entered into force on 1 March 1990. Upon ratifying the Convention, Germany declared that it would not apply Article 1(1)(b) in respect of any State that had made a declaration that that State would not apply Article 1(1)(b).

    115. For instance, of the 92 cases regarding Article 39 examined for the present paper, 71 are from German Courts, see Appendix A infra.

    116. Prof. Schlechtriem introduces this theory as to the wealth of German practice in "Vienna Sales Convention 1980 - Developed Countries Perspectives". He states that it took some years for the German Courts to become accustomed to ULF and ULIS, and that their experience may have made them more CISG friendly, see p. 103. Previous ULF and ULIS practice was also largely focused on timely notice (1/5 of it concerned such issues, see note 32 supra), although not quite as predominantly as the CISG practice is focused on Article 39.

    117. Codified in Article 2 of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgements in Civil and Commercial Matters (to which both Italy and Germany adhere). However, this jurisdiction is not necessarily exclusive. Jurisdiction is also present, according to Article 5(1) of this convention, in the state where the law which applies according to domestic rules of conflict of laws deems "the place of performance of the obligation in question" to be (see Industrie Tessili Italiana Como v. Dunlop AG, European Court of Justice Case 12/76 [1979] ECR 1473, [1977] 1 CMLR 26(B). In CISG cases of the seller suing the buyer for the purchase price, the obligation in question would be the payment of price, and the place determined by the contract, trade usage or Article 57(1)(a) of the CISG which primarily appoints the seller's place of business. So the seller might have the option to elect to bring a buyer to his own venue.

    118. German Courts will also have jurisdiction according to Article 5(1) of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgements in Civil and Commercial Matters (to which both Italy and Germany adhere),

    119. Approximately half of the judgements from German Courts examined for this paper, concerned contracts with a German buyer and an Italian seller (32 of 68, see Appendix A infra).

    120. See Section I.1.2. supra.

    121. See Landgericht München of 20 March 1995 [10 HKO 23750/94] [http://cisgw3.law.pace.edu/cases/950320g1.html], regarding the delivery of frozen bacon which proved to be rancid upon veterinary examination. In his comments to this judgement, Dr. Kindler criticises the Court for not examining the (hypothetical) question of whether the veterinary examination revealing the rancidness could or should have been carried out sooner, see Praxis des Internationalen Privat- und Verfahrensrechts IPRax,Vol.1, 1996, p.16-17.

    122. See Landgericht München of 8 February 1995 [8 HKO 24667/93] [http://cisgw3.law.pace.edu/cases/950208g4.html].

    123. See Landgericht München of 3 July 1989 [17 HKO 3726/89] [http://cisgw3.law.pace.edu/cases/890703g1.html].

    124. See Oberlandesgericht Koblenz of 31 January 1997 [2 U 31/96] [http://cisgw3.law.pace.edu/cases/970131g1.html].

    125. The Court stated: ". . . spricht die Beklagte in ihrem u. a. die Fehlmenge rügenden Schreiben vom 8 [December] 1993 lediglich davon, daß fünf Rollen fehlten. Eine solche Angabe versetzt die Klägerin nicht in die Lage, eine Ersatz- oder Nachlieferung in die Wege zu leiten, was die Regelung von Art. 39 CISG u. a. bezweckt."

    126. Pending before the Bundesgerichtshof docket number ZR 64/97.

    127. See Landgericht Bochum of 24 January 1996 [Docket number not available] [http://cisgw3.law.pace.edu/cases/960124g1.html].

    128. See Landgericht Kassel of 15 February 1996 [11 O 4185/95] [http://cisgw3.law.pace.edu/cases/960215g1.html], regarding the sale of marble: "Es genügt keineswegs die Mängelanzeige an irgendeiner mit der Vertragsabwiklung befaßte Person zu richten".

    129. See Landgericht Bielefeld of 18 January 1991 [15 O 201/90] [http://cisgw3.law.pace.edu/cases/910118g1.html], regarding the delivery of bacon which was unclean (properly specified) and not satisfactorily smoked (not properly specified).

    130. See Landgericht Marburg of 12 December 1995 [2 O 246/95] [http://cisgw3.law.pace.edu/cases/951212g1.html].

    131. It is surprising that the Court does not seem to consider the fact that the buyer had a duty to examine the goods (according to Article 38) and thus discover the non-conformity before redirecting the goods. Article 38(3) should not apply where the buyer takes possession of the goods before they are redirected, and the duty to examine the goods should not have been deferred (see Oberlandesgericht Saarbrücken of 13 January 1993 [1 U 69/92] [http://cisgw3.law.pace.edu/cases/930113g1.html] and note 63 supra).

    132. For those interested in comparing the judicial interpretations of the specificity requirement with the language of the U.S. Uniform Commercial Code, which distinguishes between rejection (Sections 2-602 and 2-605) and revocation (Sections 2-606, 2-607 and 2-608) of acceptance and the specificity required, please see Kritzer in "Guide to Practical Application of the CISG", Suppl. 9 (April 1994), Detailed Analysis, pp. 309-310, footnote **.

    133. See Landgericht Frankfurt am Main of 9 December 1992 [3/3 O 37/92] [http://cisgw3.law.pace.edu/cases/921209g1.html].

    134. See Landgericht Stuttgart of 31 August 1989 [3 KfH O 97/89] [http://cisgw3.law.pace.edu/cases/890831g1.html]. This judgement is rather unique as it leaves open the question of whether Article 39(1) of the CISG or HGB §377 applies, and concludes that neither requirement is fulfilled in the case at hand, see also note 149 infra.

    135. See Landgericht Frankfurt am Main of 13 July 1994 [3/13 O 3/94] [http://cisgw3.law.pace.edu/cases/940713g1.html].

    136. See Oberlandesgericht Frankfurt am Main of 23 May 1995 [5 U 209/94] [http://cisgw3.law.pace.edu/cases/950523g1.html], Landgericht Kassel of 22 June 1995 [8 O 2391/93] [http://cisgw3.law.pace.edu/cases/950622g1.html] and Amtsgericht Kehl of 6 October 1995 [3 C 925/93] [http://cisgw3.law.pace.edu/cases/951006g1.html].

    137. See Landgericht Aachen of 28 July 1993 [42 O 68/93] [http://cisgw3.law.pace.edu/cases/930728g1.html] regarding the sale of rare wood from Nigeria. The judgement was subsequently reversed in Oberlandesgericht Köln of 22 February 1994 [29 U 202/93] [http://cisgw3.law.pace.edu/cases/940222g1.html], but this was primarily due to the surfacing of a fax which proved that timely notice had been given. This fax is not mentioned before the first instance.

    138. See Amtsgericht Nordhorn of 20 April 1994 [3 C 75/94] [http://cisgw3.law.pace.edu/cases/940614g1.html].

    139. See Landgericht Marburg of 12 December 1995 [2 O 246/95] [http://cisgw3.law.pace.edu/cases/951212g1.html], and the text with note 130 supra.

    140. The six equally authentic official language texts are in: Arabic, Chinese, English, French, Russian and Spanish.

    141. Of the 71 German judgement concerning Article 39(1) analysed for the present paper, only 11 find that notice was given satisfactorily within reasonable time, see Appendix A infra, and one of these was subsequently reversed by a higher Court.

    142. Article 6 states: "The parties may exclude the application of this Convention or, subject to article 12, derogate from or vary the effect of any of its provisions." Article 12 prescribes that parties must agree in writing if declarations under Article 96 have been made -- if no such declaration is made any agreement will suffice (where evidenced or not disputed).

    143. See Oberlandesgericht München of 11 March 1998 [7 U 4427/97] [http://cisgw3.law.pace.edu/cases/980311g1.html].

    144. See Landgericht Baden-Baden of 14 August 1991 [4 O 113/90] [http://cisgw3.law.pace.edu/cases/910814g1.html].

    145. This is in accordance with Article 19(2) of the CISG, which states: "(2) However, a reply to an offer which purports to be an acceptance but contains additional or different terms which do not materially alter the terms of the offer constitutes an acceptance, unless the offeror, without undue delay, objects orally to the discrepancy or dispatches a notice to that effect. If he does not so object, the terms of the contract are the terms of the offer with the modifications contained in the acceptance."

    146. See Landgericht Hannover of 1 December 1993 [22 O 107/93] [http://cisgw3.law.pace.edu/cases/931201g1.html].

    147. See Section II, subsection 1.3.1 supra.

    148. See, for example, Landgericht Berlin of 30 September 1992 [99 O 123/92] [http://cisgw3.law.pace.edu/cases/920930g1.html] (which takes into consideration that the non-conformity was easily discernible without mentioning Article 38), Landgericht Berlin of 16 September 1992 [99 O 29/93] [http://cisgw3.law.pace.edu/cases/920916g1.html] (which makes no mention of Article 38 at all) and Oberlandesgericht Saarbrücken of 13 January 1993 [1 U 69/92] [http://cisgw3.law.pace.edu/cases/930113g1.html] (which holds together Article 38 and Article 39), all of which assess the reasonable time of the notice from the date of delivery. The worst confusion was in Landgericht Saarbrücken of 23 March 1992 [9 O 4048/89] [http://cisgw3.law.pace.edu/cases/920323g1.html] regarding the sale of doors, where the Court suffered under the misapprehension that the duty to notify of the lack of conformity was implied by Article 38 (this confusion was, however, subsequently cleared up upon appeal of the case in Oberlandesgericht Saarbrücken of 13 January 1993 [1 U 69/92] [http://cisgw3.law.pace.edu/cases/930113g1.html])

    149. A good example of a mix-up can be found in a District Court judgement from Stuttgart, which left open the question of whether Articles 38 and 39 of the CISG or §377 of HGB applied. In reasoning why notice 16 days after delivery was not timely, the Court stated that the fact that the defects of the shoes in question were easily discernible, combined with the fact that the seller had been forewarned to possible defect by a previous defective shipment of shoes, prompted a swifter notice. While these are certainly valid considerations in the case at hand, they solely concern the question of when the defects ought to have been discovered (i.e., Article 38), and not the reasonable period of time for giving notice, See Landesgericht Stuttgart of 31 August 1989 [3 KfHO 97/89] [http://cisgw3.law.pace.edu/cases/890831g1.html], mentioned in note 37 supra.

    150. See Landgericht Aachen of 3 April 1990 [41 O 198/89] [http://cisgw3.law.pace.edu/cases/900403g1.html].

    151. See Landgericht Bielefeld of 18 January 1991 [15 O 201/90] [http://cisgw3.law.pace.edu/cases/910118g1.html]. However, although considered timely by the Court, notice was not considered specific enough and the buyer could not rely on the non-conformity.

    152. See Landgericht Frankfurt am Main of 9 December 1992 [3/3 O 37/92] [http://cisgw3.law.pace.edu/cases/921209g1.html]: "Im Hinblick darauf, daß hier die Lieferung erst am 19 [October] 1991 erfolgt war und die telefonische Verständigung des Vertreters Mayer nach dem insoweit unbestrittenen gebliebenen Beklagtenvorbringen zwischen diesem Zeitpunkt und dessen nächster Vorsprache bei der Beklagten am 07 [November] 91 erfolgte, bestehen keine Zweifel an der Wahrung der Rügefrist."

    153. See Landgericht Mönchengladbach of 22 May 1992 [7 O 80/91] [http://cisgw3.law.pace.edu/cases/920522g1.html], where a notice of a month was found to be untimely: "Selbst wenn man der Beklagten eine Frist von 1 Woche für die Untersuchung und eine Frist von einer weitere Woche für die Absendung der Mängelrüge zubilligen wollte, wäre die mit Schreiben vom 7. [November] 1989 erhobene Mängelrüge auch für die Lieferung vom 6. Oktober 1989 nicht mehr rechtzeitig."

    154. See note 106 supra.

    155. See Landgericht Köln of 11 November 1993 [86 O 119/93] [http://cisgw3.law.pace.edu/cases/931111g1.html].

    156. See Landgericht Berlin of 16 September 1992 [99 O 29/93] [http://cisgw3.law.pace.edu/cases/920916g1.html] and Landgericht Berlin of 30 September 1992 [99 O 123/92] [http://cisgw3.law.pace.edu/cases/920930g1.html], respectively.

    157. See Oberlandesgericht Saarbrücken 13 January 1993 [1 U 69/92] [http://cisgw3.law.pace.edu/cases/930113g1.html], also mentioned in note 148 supra. This case was tried in the first instance in Landgericht Saarbrücken of 23 March 1992 [9 O 4084/89] [http://cisgw3.law.pace.edu/cases/920323g1.html], where the District Court mistakenly found the duty to notify the seller comprised by Article 38. The Higher District Court corrected the misconstruction of the CISG but affirmed the judgement.

    158. See Landgericht Düsseldorf of 23 June 1994 [31 O 231/94] [http://cisgw3.law.pace.edu/cases/940623g1.html] regarding 2 hydraulic press engines delivered 16 months apart. The court stated that even allowing longer time for the discovery of engine trouble (which was not easily discernible) the examination period was too long, and notice was untimely regarding both engines. This judgement contains a very good explanation of the relationship between Articles 38 and 39.

    159. See Landesgericht Düsseldorf of 23 June 1994 [31 O 231/94] [http://cisgw3.law.pace.edu/cases/940623g1.html].

    160. See Amtsgericht Riedlingen of 21 October 1994 [2 C 395/93] [http://cisgw3.law.pace.edu/cases/941021g1.html].

    161. See Oberlandesgericht Düsseldorf of 8 January 1993 [17 U 82/92] [http://cisgw3.law.pace.edu/cases/930108g1.html].

    162. Article 38(2) prescribes that the examination of goods in carriage may be deferred until they arrive at their destination.

    163. Such time-frames can be agreed between the parties and recognised by the Courts, see subsection 1.3.1 supra.

    164. Moreover, any influence from §378 HGB on the application of Article 39 may pose a severe problem, since the requirement of notice in the case of aliuds (i.e., whether the delivery of completely different goods is a delivery of non-conforming goods as understood by Article 35) is not completely settled under the Convention, whereas such notice is prescribed by §378 HGB. This may already have influenced the Court in a judgement from Bundesgerichtshof from 3 April 1996 regarding the sale of cobalt sulphate [http://cisgw3.law.pace.edu/cases/960403g1.html], which concluded that the CISG does not differentiate between aliuds and non-conforming goods.

    165. See Oberlandesgericht Düsseldorf of 10 February 1994 [6 U 119/93] [http://cisgw3.law.pace.edu/cases/940210g2.html], regarding the sale of textiles from Italy to Germany. Unfortunately, in Landgericht Duisburg of 17 April 1996 [45(19) O 80/94] [http://cisgw3.law.pace.edu/cases/960417g1.html], a similar conclusion was reached: Although no notice of non-conformity had been given, the Court pronounced the lack of "Nachfrist" as an additional reason why the buyer could not rely on the non-conformity, by stating: "Hinzu kommt, daß die Beklagte die weiteren Voraussetzungen eines Schadensersatzanspruchs nach Artikel 45 ff. CISG, nämlich Fristsetzung zur Nachlieferung, nicht dargetan hat." This judgement was not appealed to the Higher District Court.

    166. See Oberlandesgericht Düsseldorf of 12 March 1993 [17 U 136/92] [http://cisgw3.law.pace.edu/cases/930312g1.html].

    167. The Court stated: "Eine Frist von 25 Tagen ist aber nicht mehr kurz bzw. angemessen im Sinne der Art. 38 und 39 CISG. Besondere Schwierigkeiten, die angeblichen Webfehler festzustellen, sind nicht ersichtlich."

    168. See also Bundesgerichtshof of 25 June 1997 [VIII ZR 300/96] [http://cisgw3.law.pace.edu/cases/970625g2.html] mentioned in the text accompanying note 185 infra and Internationalen Schiedsgericht der Bundeskammer der geweblichen Wirtshaft SCH-4318 [http://cisgw3.law.pace.edu/cases/940615a4.html] and 4366 [http://cisgw3.law.pace.edu/cases/940615a3.html], mentioned in the text accompanying note 254 infra.

    169. See Oberlandesgericht München of 8 February 1995 [7 U 3758/94] [http://cisgw3.law.pace.edu/cases/950208g2.html], regarding the sale of plastic granules, where the buyer waited 3 months after delivery to give notice: "Bei der bestimmung der "Angemessen frist" sind die Unstände des einzelfalles zu berücksichtigen; im Normalfall wird bei dauerhaften, nicht saisonabhängigen Waren ein Zeitraum von ca. 8 Tagen zugrundezulegen sein." By the verbatum reference to the time-frame in Article 39(1) it would seem likely that the Court means 8 days after discovery. The Court refers to the first observation by Schwenzer as explained in the text accompanying note 103 supra, but neglects to take the second (highly relevant) point of congruent international application and the "noble month" into consideration.

    170. See Bundesgerichthof of 8 March 1995 [VIII ZR 159/94] [http://cisgw3.law.pace.edu/cases/950308g3.html]. The case was previously tried in Landgericht Darmstadt of 22 December 1992 [14 O 165/92] [http://cisgw3.law.pace.edu/cases/921222g1.html] and Oberlandesgericht Frankfurt of 20 April 1994 [13 U 51/93] [http://cisgw3.law.pace.edu/cases/940420g1.html]. Both previous instances neglected to take Article 39 into independant consideration.

    171. The classification of the cadmium-mussels as fit for ordinary purposes since only great quantities would be hazardous for human consumption, in accordance with Article 35(2)(a) of the Convention, is another interesting aspect of this case, and one which has been commented on widely. See for example Prof. Schlechtriem in "Praxis der Internationalen Privat- und Verfahrensrechts", Vol. 1, 1996, p. 12-14 and Lookofsky in "Understanding the CISG in Scandinavia", p. 58.

    172. The concept of the "noble month" [Großzügiger Monat] originates with the Swiss scholar Schwenzer for the sake of congruent international application, in Prof. Schlechtriem's "Kommentar zum Einheitlichen UN-Kaufrecht", see the text accompanying note 103 supra with reference.

    173. The Court stated: "Selbst wenn man insoweit nach Auffassung des erkennenden Senats sehr großzügig wegen der unterschiedlichen nationalen Rechtstraditionen von einem "groben Mittelwert" von etwa einem Monat ausgehen wollte, war die Rügefrist vor dem 3. März 1992 abgelaufen.", with reference to Schwenzer, ibidem.

    174. See Landgericht Landhut of 5 April 1995 [54 O 644/94] [http://cisgw3.law.pace.edu/cases/950405g1.html]: "Eine Minderlieferung stellt keinen versteckten Mangel dar, so daß die Anzeigefrist nur wenige Tage läuft." The case concerned sports clothes which suffered from three different non-conformities (colour, shrinkage and wrong quantity).

    175. See Oberlandesgericht Stuttgart of 21 August 1995 [5 U 195/94 ] [http://cisgw3.law.pace.edu/cases/950821g1.html]: "Diese frist betragt im rahmen des CISG im hinblick auf die unterschiedlichen nationalen Rechtstraditionen etwa einen Monat." However, in the present case, the buyer could not prove that he had given notice. For a commentary on this judgement, see Blume & Asam in Praxis der Internationalen Privat- und Verfahrensrechts IPRax, Vol. 2, 1996, p. 139, who does not criticise this application of the "noble month".

    176. See Amtsgericht Augsburg of 29 January 1996 [11 C 4004/95] [http://cisgw3.law.pace.edu/cases/960129g1.html]: "Das Recht sich auf Vertragswidrigkeit - wie hier Verspätung der Lieferung - zu berufen, erlischt, wenn die Vertragswidrigkeit nicht innerhalb einer angemessenen Frist angezeigt wird. Insbesondere ist eine rasche Rüge bei Saisonwaren wie den vorliegenden geboten. Die maximale Frist beträgt einen Monat ab Kenntniserlangung von dem Mangel." The latter part of the statement almost resembles an obiter dictum since the buyer waited 18 months to notify the seller.

    177. See Amtsgericht Kehl of 6 October 1995 [3 C 925/93] [http://cisgw3.law.pace.edu/cases/951006g1.html] regarding the sale of Italian fashion wear, where notice was given by telephone.

    178. See Landgericht Heidelberg of 2 October 1996 [O 37/96 KfH II] [http://cisgw3.law.pace.edu/cases/961002g1.html] and Oberlandesgericht Karlsruhe of 25 June 1997 [1 U 280/96] [http://cisgw3.law.pace.edu/cases/970625g1.html].

    179. The District Court also stated that Article 39 of the CISG represented a more buyer-friendly provision than Article 39 of the ULIS, see text accompanying note 90 supra.

    180. The Court stated: "Damit steht fest, daß bei einer der Klägerin oblegenen Probeverarbeitung nach maximal sieben Tagen Flecken festzustellen gewesen wären. Hätte die Klägerin mit der Probeverarbeitung nach drei bis vier Tagen begonnen, hätte sie den Mangel gegenüber der Beklagten spätestens nach zehn bis elf Tagen rügen können."

    181. See Oberlandesgericht Köln of 21 August 1997 [18 U 121/96] [http://cisgw3.law.pace.edu/cases/970821g1.html].

    182. The Court stated: "Eine solche Frist [Monatsfrist] kann freilich nur für Waren gelten, bei denen keine Veränderungen zu besorgen ist . . ." in a case where a very swift notice was required to ensure that the seller could ascertain the non-conformity.

    183. See Bundesgerichtshof of 4 December 1996 [VIII ZR 306/95] [http://cisgw3.law.pace.edu/cases/961204g1.html].

    184. The Court stated: "Rechzeitigkeit der rüge steht ausser frage".

    185. See Bundesgerichtshof of 25 June 1997 [VIII ZR 300/96] [http://cisgw3.law.pace.edu/cases/970625g2.html].

    186. The Court stated: ". . . die Klägerin hat mit Schreiben vom 27. November 1992 die Materialbeanstandungen der Beklagten entgegengenommen und deren Weiterleitung an ihr Werk in Korea angezeigt; mit Schreiben vom 2. Dezember 1992 und 27. Januar 1993 hat sie weiter erklärt, sie werde, falls sich in den Vorräten der Beklagten wieder Ausschüsse zeigten und die Reklamationen berechtigt seien, "auch dafür geradestehen und ordentlich abwickeln". Damit hat die Klägerin nicht nur hinsichtlich der Mängelrügen vom 5. November 1992 deren Rechtzeitigkeit anerkannt, sondern auch für spätere Beanstandungen auf den Einwand der nicht rechtzeitigen Rügeerhebung verzichtet . . ." [emphasis added]. According to an older judgement, Oberlandesgericht Düsseldorf of 12 March 1993 [17 U 136/92] [http://cisgw3.law.pace.edu/cases/930312g1.html], such acceptance of the notice must be explicit; the seller did not signify that he found the notice timely if responding to an alleged late notice by taking back the goods to inspect them, see text accompanying note 166 supra.

    187. See Profs. Berstein & Lookofsky in "Understanding the CISG in Europe", p. 63.

    188. See Schwenzer in Prof. Schlechtriem's "Kommentar zum Einheitlichen UN-Kaufrecht", p. 362: " Deutsche Autoren wollen tendenziell einen zeitraum von ca. acht Tagen zugrunde legen. Auch die errsten deutschen entscheidungen zum CISG weisen in diese Richtung.", and references in note 59 supra.

    189. Landgericht Frankfurt of 9 December 1992 [http://cisgw3.law.pace.edu/cases/921209g1.html], see text accompanying note 152 supra.

    190. Landgericht Köln of 11 November 1993 [http://cisgw3.law.pace.edu/cases/931111g1.html], see text accompanying note 155 supra.

    191. Landgericht Landhut of 5 April 1995 [54 O 644/94] [http://cisgw3.law.pace.edu/cases/950405g1.html].

    192. Landgericht Frankfurt of 9 December 1992 [3/3 O 37/92] [http://cisgw3.law.pace.edu/cases/921209g1.html].

    193. See, for example, Landgericht Mönchengladbach of 22 May 1992 [7 O 80/91] [http://cisgw3.law.pace.edu/cases/920522g1.html] regarding notice given 1 month after delivery and Oberlandesgericht Stuttgart of 21 August 1995 [5 U 195/94] [http://cisgw3.law.pace.edu/cases/950821g1.html] also regarding notice given 1 month after delivery. In both cases, the lack of conformity was discoverable upon delivery, so the time-frames are equal.

    194. See Bundesgerichtshof of 8 March 1995 [VIII ZR 159/94] [http://cisgw3.law.pace.edu/cases/950308g3.html] and text accompanying note 170 supra.

    195. See Landgericht Heidelberg of 2 October 1996 [O 37/96 KfH II] [http://cisgw3.law.pace.edu/cases/961002g1.html] and Oberlandesgericht Karlsruhe of 25 June 1997 [I U 280/96] [http://cisgw3.law.pace.edu/cases/970625g1.html], and text accompanying note 178 supra.

    196. See Witz in "Les premiéres applications jurisprudentielles du droit uniforme de la vente internationale", who critisizes the German judges for their failure to recognised the alleged difference between the two provisions. Referred by Prof. Lookofsky in "Understanding the CISG in Scandinavia", p. 61 note 85.

    197. See Section II. 2 supra.

    198. Prof. Lookofsky deems the interpretation of Article 39 by German Courts unusually demanding and seller-friendly, see "Understanding the CISG in Scandinavia", p. 61.

    199. See Appendix supra for an overlook of Article 39(1) caselaw results.

    200. See subsection 1.3.2. supra for a discussion of this.

    201. Oberlandesgericht Koblenz of 31 January 1997 [2 U 31/96] [http://cisgw3.law.pace.edu/cases/970131g1.html], appealed as Bundesgerichtshof ZR 64/97 pending.

    202. See Giles in "Uniform Commercial Law", p. 35, note 29: "Germany and Austria provide an example of this [uniformity] in respect of their practically identical commercial codes. This uniformity has been maintained without compulsion, for since there is very little Austrian caselaw on the matters regulated by the Austrian code, Austrian lawyers largely rely on relevant German case law.", with reference to Ferdinand Melchior in "Die Auslegung des HGB in Deutschland und in Österreich".

    203. For an explanation of these provisions, see Section III subsection 1.1.1. supra.

    204. Austria signed the Convention on 1 April 1980, ratified it on 29 December 1987 and it entered into force in Austrian law on 1 January 1989. Austria took out reservations against agreements not in writing.

    205. See Oberlandesgericht Innsbruck of 1 July 1994 [4 R 161/94] [http://cisgw3.law.pace.edu/cases/940701a3.html], decided in the first instance by Landesgericht Feldkirch of 29 March 1994 [5 Cg 176/92y - 64] [http://cisgw3.law.pace.edu/cases/940329a3.html].

    206. The Court stated: "Werde dem Beklagten eine Frist von zwei Monaten für die Erkennung des Mangels zugebilligt, hätte spätestens Anfang Juli der Mangel erkannt werden müssen. Da er aber erst gegen Ende Juli nach dem Urlaub gerügt habe, könne er sich weder auf Gewährleistungs- noch auf Schadenersatzansprüche berufen."

    207. Netherlands signed the Convention on 29 May 1981, ratified it on 13 December 1990, and it entered into force in Dutch law on 1 January 1992.

    208. Belgium acceded the Convention on 31 October 1996, and it entered into force on 1 November 1997. Note that the third Benelux-country, Luxembourg, has acceded the Convention on 30 January 1997, with entry into force on 1 February 1998.

    209. By appointing the law of the seller's country pursuant to Article 4 of the 1955 Hague Convention on the Law Applicable to International Sales of Goods, to which Belgium is a party.

    210. See Tribunal Commercial Bruxelles of 5 October 1994 [RR 1.205/93] [http://cisgw3.law.pace.edu/cases/941005b1.html].

    211. See Arrondissementsrechtbank Dordrecht of 21 November 1990 [2762/1989] [http://cisgw3.law.pace.edu/cases/901121n1.html] regarding the sale of textiles from a French seller to a Dutch buyer.

    212. See Arrondissementsrechtbank Roermond of 19 December 1991 [900366] [http://cisgw3.law.pace.edu/cases/911219n1.html].

    213. See Arrondissementsrechtbank Roermond of 6 May 1993 [920159] [http://cisgw3.law.pace.edu/cases/930506n1.html] regarding the sale of 20 kettles from an Italian seller to a Dutch buyer, 4 of which were defective.

    214. See Arrondissementsrechtbank 's-Gravenhage of 7 June 1995 [94/0670] [http://cisgw3.law.pace.edu/cases/950607n1.html].

    215. See "Non Conformity of Goods in International Law", Revue de droit des affaires internationales 1997, where Anna Veneziano refers to France as "a country whose domestic law is traditionally more sympathetic to the buyer . . ."

    216. See Schwenzer in Prof. Schlechtriem's "Kommentar zum Einheitlichen UN-Kaufrecht", p. 362: "Dasselbe gilt für Frankreich, wo die Gerichte im Rahmen des Art. 1648 C.C. oft fristen von zwei bis drei Jahren für die Klageerhebung annerkennen", with reference to Gestin, Gestin/Desché and Audit in note 62. The text has now been translated into English, see Peter Schlechtriem (ed.) "Commentary on the UN Convention on the International Sale of Goods", Oxford University Press 1998.

    217. France signed the Convention on 27 August 1981, ratified it on 6 August 1982, and it entered into force in French law on 1 January 1988.

    218. According to the CISG database at Pace University, there have been 39 French judgement concerning the CISG to date, several of these first instance judgements, however, have overlooked the Convention.

    219. See Cour d'Appel de Grenoble of 13 September 1995 [93/4126] [http://cisgw3.law.pace.edu/cases/950913f1.html].

    220. Briefer notice-periods have been judged untimely by German Courts in: LG Mönchengladbach of 22 May 1992 [http://cisgw3.law.pace.edu/cases/920522g1.html], Oberlandesgericht Düsseldorf 12 March 1993 [http://cisgw3.law.pace.edu/cases/930312g1.html], Amtsgericht Riedlingen of 21 October 1994 [http://cisgw3.law.pace.edu/cases/941021g1.html], Landgericht Landhut of 5 April 1995 [http://cisgw3.law.pace.edu/cases/950405g1.html], Oberlandesgericht Stuttgart of 21 August 1995 [http://cisgw3.law.pace.edu/cases/950821g1.html], and Oberlandesgericht Karlsruhe of 25 June 1997 [http://cisgw3.law.pace.edu/cases/970625g1.html].

    221. See Cour d'Appel de Versailles of 29 January 1998 [95/1222] [http://cisgw3.law.pace.edu/cases/980129f1.html].

    222. The Swiss Courts are: Schweizerisches Bundesgericht (Supreme Court), Bezirksgericht, Pretore, Zivilgericht, Tribunal civil, Richteramt (District Courts), Apellationsgericht and Obergericht (Appellate Courts), Tribunal cantonal/Kantonsgericht (Canton Court) and finally the Handelsgericht (Commercial Court).

    223. See Swiss Supreme Court of 12 May 1981 [107 II 172] Gischig vs. Frölich Flachdach AG, wherein the court states that the time-frame is considered "large" to let the buyer be sure of the consequences of the non-conformity, but that 3 weeks is the maximum in the present case. A more recent Supreme Court judgement of 17 February 1992 [118 II 142] refers to this paradigm and upholds it.

    224. Switzerland acceded the Convention on 21 February 1990, and it entered into force in Swiss law on 1 March 1991.

    225. Schweizerisches Bundesgericht of 18 January 1996 [http://cisgw3.law.pace.edu/cases/960118s1.html] (In the case of Firma T. S.r.l vs. Firma S. AG, regarding Articles 57(1) and 58).

    226. See Pretura delle guirisdizione di Locarno-Campagna of 27 April 1992 [6252] [http://cisgw3.law.pace.edu/cases/920427s1.html], regarding the sale of furniture from an Italian seller to a Swiss buyer.

    227. The Court stated: "Nella specie inoltre le parti sono entrambe commercianti e pertanto il dovere di verifica si impone con più rigore", with reference to Bucher in Obligantionenrecht, Besonderer Teil, 3. Ed., p. 93.

    228. According to the drafters, the Uniform Law applies irrespective of the commercial or civil character of the parties, see UN Doc. A/CN.9/52, para. 94.

    229. See Handelsgericht Zürich of 26 April 1995 [HG 920670] [http://cisgw3.law.pace.edu/cases/950426s1.html] regarding the sale of an isolation-tank (fitness device) from a Swiss seller to a German buyer.

    230. Article 49(2)(b)(i) provides: "(2) . . . the buyer loses the right to declare the contract avoided unless he does so: (b): in respect of any breach other than late delivery, within a reasonable time: (i): after he knew or ought to have known of the breach."

    231. See Handelsgericht Zürich of 9 September 1993 [HG 930138 U/H93] [http://cisgw3.law.pace.edu/cases/930909s1.html] regarding the sale of furniture from an Italian seller to a Swiss buyer.

    232. See Obergericht Kanton Luzern of 8 January 1997 [11 95 123/357] [http://cisgw3.law.pace.edu/cases/970108s1.html], which contains numerous references to v. Caemerer/Schlechtriem (ed.) "Kommentar zum Einheitlichen UN-Kaufrecht".

    233. See Barbalich, in "Italy - Practical Commercial Law", p. 1.

    234. The Italian Civil Courts are: Corte Suprema di Cassazione (Supreme Court), Corte di Appello (Court of Appeals), and Tribunale Civile (District Court).

    235. See Beltramo, Longo & Merryman in "The Italian Civil Code, Translated", Vol. 6 p. 75: "1495: Time limits and conditions of action. The buyer forfeits the right of warranty if he fails to notify the seller of the defects in the thing within eight days from their discovery, unless a different time limit is established by the parties or by law. Notification is not necessary if the seller has acknowledged the existence of the defect or if he has concealed it. In all cases, the action is prescribed in one year from delivery; but the buyer who is sued for performance of the contract can always plead the warranty, provided that the defect in the thing was notified within eight days from discovery and within one year from delivery."

    236. Italy signed the Convention on 30 September 1981, ratified it on 11 December 1986, and it entered into force in Italian law on 1 January 1988.

    237. See Tribunale Civile di Cuneo of 31 January 1996 [45/96] (Sport D'Hiver di Genevieve Culet v. Ets. Louyes et Fils) [http://cisgw3.law.pace.edu/cases/960131i3.html].

    238. See Giles in "Uniform Commercial Law", p. 35: "How should Courts, in the day-to-day administration of justice, proceed? . . . The best hope, it is generally recognised, is the awareness of foreign precedents and the willingness and ability to follow them" on uniformity in general.

    239. Of the 87 cases analysed for the present paper, there have been only two: the present one from Tribunale Civile from Cueno and the above judgement from Obergericht Canton Luzern of 8 January 1997 [http://cisgw3.law.pace.edu/cases/970108s1.html]. In "Remarks on the Autonomy and the Uniform Application of the CISG on the Occasion of its Tenth Anniversary" in International Contract Advisor, p. 41 note 33, Prof. Ferrari sites Tribunale Civile of Cuneo of 31 January 1996 [http://cisgw3.law.pace.edu/cases/960131i3.html] as the only one of nearly 300 CISG cases published by Michael Will which refers to international caselaw.

    240. Prof. Lookofsky states, in "Transnational Litigation and Commercial Arbitration", p. 560: "Indeed, the fact that many states enforce arbitral awards far more readily than foreign judgements is itself a very good reason for choosing the arbitration route."

    241. See Ibidem, p. 559 where Prof. Lookofsky criticises this perception: "In actual fact, international arbitration is sometimes a slow-moving business, and it rarely comes cheap."

    242. See van den Berg in his introduction to "The New York Arbitration Convention of 1958 - Towards a Uniform Judicial Interpretation", p. 1.

    243. Although the Tribunal is technically stateless, the arbitrator or arbitrators are not; as such they may naturally be influenced by their cultural, legal and economic backgrounds.

    244. In the regime of the International Chamber of Commerce (hereinafter the ICC), the CISG is often taken as a reflection of trade usage and used directly even if neither buyer nor seller reside in countries which are party to the convention, as a reflection of lex mercatoria (see, for example, ICC International Court of Arbitration 5713/1989 [http://cisgw3.law.pace.edu/cases/895713i1.html] and 7331/1994 [http://cisgw3.law.pace.edu/cases/947331i1.html], both concerning Article 39). Note also, that since the CISG is technically part of domestic law, reference in a choice-of-law clause in an international sales contract to the domestic laws of a specific country party to the Convention will mean a reference to the CISG, unless the Convention is explicitly exempted (see, for example, ICC International Court of Arbitration 7565/1994 [http://cisgw3.law.pace.edu/cases/947565i1.html] and 7660/JK of 23 August 1994 [http://cisgw3.law.pace.edu/cases/947660i1.html], both concerning Article 39).

    245. See ICC International Court of Arbitration 5713/1989 [http://cisgw3.law.pace.edu/cases/895713i1.html], where the CISG applied as a reflection of trade usage although neither the buyer's nor the seller's countries were parties to the Convention.

    246. In any event, the seller could not rely on Article 39 as he could not have been unaware of the non-conformity in accordance with Article 40.

    247. See Hungarian Chamber of Commerce and Industry, Court of Arbitration, Award of 5 December 1995 [VB/94131] [http://cisgw3.law.pace.edu/cases/951205h1.html] regarding the sale of waste containers from an Austrian seller to a Hungarian buyer.

    248. Quoted from the abstract of the judgement printed in UNILEX 1996.

    249. Article 9(1) provides: "The parties are bound by any usage to which they have agreed and by any practices which they have established between themselves."

    250. See ICC International Court of Arbitration 7331/1994 [http://cisgw3.law.pace.edu/cases/947331i1.html], concerning the sale of cowhides from Yugoslavia to Italy.

    251. Regardless of the fact that the CISG applies in this case as a reflection of trade usage, it is peculiar that the Tribunal stated that it upheld the agreed notice time-frame since it considered it in accordance with Articles 38 and 39. Surely, even if it had not been considered reasonable by the tribunal, the agreed time-frame for notification would have had to be upheld in any event by way of Article 6 of the CISG which allows parties to derogate from the Convention, or by way of the general principle of pacta sunt servanda.

    252. See ICC International Court of Arbitration 7565/1994 [http://cisgw3.law.pace.edu/cases/947565i1.html], which primarily concerned the contractual period of guarantee permitted in Article 39(2) and ICC Court of Arbitration 7660/JK of 23 August 1994 [http://cisgw3.law.pace.edu/cases/947660i1.html] which pronounced that a prescription period of commencement of legal action is not relevant to Article 39(2) or any other provision of the CISG, but is to be decided in accordance with otherwise applicable domestic law. Neither judgement discusses the reasonable time of the actual notices of non-conformity given.

    253. See Schiedsgericht der Handelskammer Hamburg, Teilschiedsspruch of 21 March 1996 [http://cisgw3.law.pace.edu/cases/960321g1.html], regarding the sale of Chinese goods from Hong Kong to Germany.

    254. See Internationales Schiedsgericht der Bundeskammer der gewerblichen Wirtshaft, Wien SCH-4318 [http://cisgw3.law.pace.edu/cases/940615a4.html] and SCH-4366 [http://cisgw3.law.pace.edu/cases/940615a3.html] of 15 June 1994 regarding the sale of metal sheets from Austria to Germany. The former award concerns the notification and estoppel.

    255. The comment by Prof. Ferrari in "Specific Topics of the CISG" on p. 109-110, that these awards are overdoing it when stating that 2 months are "reasonable" seems puzzling since this was the agreed time-frame for notification.

    256. This conclusion with respect to the former notice would seem to contradict the earlier mentioned German practice, according to which the seller's right to rely on the timeliness of the notice could not be implied by taking back the goods (OLG Düsseldorf of 12 March 1993 [http://cisgw3.law.pace.edu/cases/930312g1.html]), but only by directly accepting the notice (Bundesgerichthof of 25 June 1997 [http://cisgw3.law.pace.edu/cases/970625g2.html]), see text accompanying note 185 supra.

    257. It is surprising that the arbitrator reaches this conclusion by inference that the principle of estoppel is a general principle which applies to the Convention via Article 7(2), and not by way of Article 8(2) and 8(3) which together would grant the buyer a right to rely on the reasonable conclusions that the negotiations for settlement represented acceptance of the timeliness of the notice.

    258. See Prof. Honnold in "The 1980 Sales Convention - Can Uniform Words Give Us Uniform Results?", p.3: "Scandinavia and my country of fifty states have had a century or more of experience with uniform laws. These laws operate within a relatively homogenous legal and economic background; we are now concerned with a uniform law that is going into force in each inhabited continent and in settings with different economic systems, legal tradition and judicial practices."

    259. Finland did not, to begin with, adhere to the Sales Act due to the Czar-regime, but gradually developed regulations corresponding to the Scandinavian Sales Act.

    260. With the exception of regulations on consumer law, which were introduced differently, from 1979 and onwards.

    261. Prof. Schlechtriem refers to the CISG as the blueprint of the new Swedish Sales Law (which is the new Nordic Sales Act), see Juridisk Tidskrift, Vol. 1, 1991-1992, p. 1.

    262. For further information on the new Nordic Sales Act, see Prof. Leif Sevón's paper from the seminar on uniform sales law held on 16/17th February 1987, printed in Prof. Schlechtriem's "Einheitliches Kaufrecht und Nationalen Obligationenrecht".

    263. In Finland in 1987, Norway in 1988 and Sweden in 1989. Norwegian Law has adopted incorporated provision regarding consumer sales in the Sales Act, whereas Swedish and Finnish Law has a separate law for consumer sales.

    264. See Lando, in "Udenrigshandelens Kontrakter", p. 353: "Den nye nordiske kbl. pålægger ligesom CISG art. 39(1) køberen at give meddelelse om mangelen inden rimelig tid efter, at han har eller burde have opdaget den. Køberen skal samtidig angive, hvori manglen består, se §32(1). Det er ligesom efter CISG ikke tilstrækkeligt at meddele at varen er dårlig . . ." [The new Nordic Sales Act, like Article 39(1) of the CISG, imposes a duty on the buyer to notify of non-conformity within reasonable time after he discovers it or ought to have discovered it. At the same time, the buyer must also specify the nature of the non-conformity, see §32(1). Just like according to the CISG, it is not enough to communicate that the goods are bad -- my translation.]

    265. Other major changes throughout the Nordic Sales Act concern the abolition of the distinction between specific (Species) and generic (Genus) objects in sales, and the provisions on damages. For more information, see Vinding Kruse in "Købsretten", p. 135-141.

    266. The subtle nuance of the Swedish language in the difference between "skälig tid" (from the Nordic Sales Act) and "rimlig tid" (from the Swedish translation of Article 39(1) of the CISG) would not seem significant, albeit slightly puzzling.

    267. In the determination of "skälig tid", Christina Hultmark notes that the time-frame is influenced by the practical possibilities of the buyer for communication, any obstacles to notice giving, the seller's need for receiving swift notice, and whether a late notice has jeopardised a restriction of the consequences of a breach, see "Reklamation vid Kontraksbrott", p. 58-60.

    268. Karnov Lovsamling på CD-Rom, note 334 to "Lovbekendtgørelse 1980.28 - Købelov".

    269. Pending the discernability of the defect, or other factors, the time-frame can be as brief as under four days after delivery (in a case of potatoes from 1946, see UfR 1946 p.719) where the goods are perishable. In a comparison between the examination and notification provisions of the CISG and Danish law, Prof. Lookofsky has stated that the CISG provisions seem less strict, see Juristen, Vol.3, 1989, p. 112: "CISG-kravene til købers undersøgelsespligt, reklamation m.v. virker noget mildere end de tilsvarende KBL(I) krav." [The CISG-requirements for the buyers examination, notification, etc., seem somewhat milder than the corresponding Sales Act requirements -- my translation.]

    270. All Nordic countries signed the Convention from 4-26 May 1981. Denmark acceded CISG on 14 February 1989, with entry into force on 1 March 1990. Sweden acceded on 15 December 1987, with entry into force on 1 January 1989. Finland acceded on 15 December 1987, with entry into force on 1 January 1989. Norway acceded on 20 July 1988 with entry into force in Norwegian law on 1 August 1989.

    271. See UN Doc. A/CN.9/440 of 22 May April 1997 on the Status of Conventions: "Upon ratifying the Convention, Denmark, Finland, Norway and Sweden declared in accordance with article 92(1) that they would not be bound by Part II of the Convention (Formation of the Contract). Upon ratifying the Convention, Denmark, Finland, Norway and Sweden declared, pursuant to article 94(1) and 94(2), that the Convention would not apply to contracts of sale where the parties have their places of business in Denmark, Finland, Sweden, Iceland or Norway."

    272. The Norwegian implementation of the CISG is highly unorthodox, as it incorporates the Convention into the Norwegian Sales Act, creating some problems. For a critical analysis of the Norwegian incorporation of the CISG and the uniformity of the Convention, see Prof. Halstrøm in Tidsskrift for Rettsvitenskap, Vol. 4, 1995, p. 561-588, who concludes with a hope that the Norwegian solution forms no precedents and is temporary.

    273. The Danish periodical of the judiciary, "Ugeskrift for Retsvæsen" (UfR), reports only one judgement concerning the CISG (UfR 1996, p. 616 regarding Article 57).This may in part be due to the fact that CISG cases are heard solely in the smaller District Courts (Byretterne), whose judgements are rarely reported.

    274. There are certainly some case which border on overlooking the CISG, see for example the Danish Supreme Court judgement in UfR 1989, p. 713, concerning the sale of tinned tomatoes from Germany to a Danish supermarket, via a Danish middleman. Although the case concerned the contract between the two Danish parties (the middleman and the supermarket), the contract between the German supplier and the middleman was also analysed. The Supreme Court did not apply the CISG to this contract, or state any deliberations as to why it should not apply.

    275. The two provisions are: §2-602(1), which prescribes a rejection of goods which have not yet been accepted "within reasonable time" after delivery or tender, and §2-608(2), which prescribes that revocation of acceptance occurs "within a reasonable time after the buyer discovers or should have discovered the ground for it and before any substantial change in condition of the goods which is not caused by their own defects". The former notice would seem briefer as it commences sooner. The duty to specify the defect is prescribed by UCC §2-605(1).

    276. The 1997 draft to Article 2 of the UCC (from the conference of Commissioner on Uniform Law on 25th July - 1st August 1997) provides:

    Section 2-707(c): "If a tender has been accepted, the following rules apply: (1) The buyer, within a reasonable time after the buyer discovers or should have discovered a breach of contract, shall notify the party claimed against of the breach. However, a failure to give notice bars the buyer from a remedy only to the extent that the party entitled to notice establishes that it was prejudiced by the failure.", and

    Section 2-707(d): "A buyer has the burden of establishing a breach of contract with respect to goods accepted.".

    The 1997 draft has retained two provisions for rejection and revocation, Section 2-703 and Section 2-708 respectively. The only major difference in these to date is that Section 2-703 amends the current §2-602(1) so the time-frame commences from discovery (or when discovery ought to have taken place) instead of from delivery or tender. See draft articles:

    Section 2-703(b): "A rejection under subsection (a) is not effective unless the buyer notifies the seller within a reasonable time after [tender of delivery] [the nonconformity was or should have been discovered].", and

    Section 2-708(b): "To be effective, a buyer's acceptance must be revoked within a reasonable time after the buyer discovers or should have discovered the ground for it and before any substantial change in condition of the goods which is not caused by their own defects. The revocation is not effective until the buyer notifies the seller of it."

    277. Draft Article 2-207(c)(1), second full stop sentence, above. This proposition was made by the US representative regarding Article 39 of the CISG, see UN Doc. A/CN.9/WG.2/WP.10, para. 49, but was not drafted following objections from the Austrian representative.

    278. See White & Summers in "Uniform Commercial Code", p. 421-422.

    279. See ibidem, p. 421 note 84 for examples of caselaw. Notices held timely include periods of up to 60 weeks (from time when underground gasoline tank began leaking 150 gallons per week), 2 ½ years (from delivery of non-additive oil which dealer knew was suspect) and 6 ½ months (after delivery of horse suffering from splints).

    280. See, for example, Hays Merchandise, Inc. v. Dewey, [78 Wash.2d 343, 474 P.2d 270, 8 UCC 31] from 1970, where a notice given after two months was held unreasonable since the goods were toys connected to the Christmas season. (This criteria of goods connected to a special season requiring swifter notice is well known from the regime of Article 39(1), see text accompanying note 105 supra)

    281. See A.C. Carter Inc. v. Boyer Potato Chips [28 Agri.Dec. 1557, 7 UCC 493] from 1969, where the seller's receipt of a letter notifying of non-conformity 12 days after delivery of non-conforming potatoes was untimely as the goods were perishable.

    282. The United States of America acceded the Convention on 11 December 1986 and it entered into force on 1 January 1988.

    283. For instance, the notes to the re-drafting of the UCC relates every article to the CISG and compares and equates the content.

    284. See MCC Marble Ceramic v. Ceramica, CA 11th Cir. decided 29 June 1998 [http://cisgw3.law.pace.edu/cases/980629u1.html], which refers to the Pace CISG database at http:\www.cisg.law.pace.edu/ to ensure thorough research of International caselaw.

    285. There have, as yet, been no reported US CISG case in which the judge has referred directly to foreign caselaw. In Filanto S.p.A. v. Chilewich Int. Corp. [789 F. Supp. 1229 (1992)] [http://cisgw3.law.pace.edu/cases/920414u1.html], the judge observed the lack of US caselaw on the CISG, but did not consider turning to international precedents, see para 6, 7 of the judgement.

    286. Reference to Prof. Honnold has been given in several cases, for instance in Rotorex Corp. Vs. Delchi Carrier S.p.A. [71 F. 3d 1024-1031 2d Cir. 1995] [http://cisgw3.law.pace.edu/cases/951206u1.html].

    287. See Orbisphere Corp. v. United States [726 F. Supp. 1344, 1990] [http://cisgw3.law.pace.edu/cases/891024u1.html].

    288. With regard to the United Kingdom, the other principal common law country, note that the UK is not currently party to the Convention, and that there has been no reported practice on Article 39(1) through the application of the CISG via Article 1(1)(b). Although, as practitioners of common-law, the UK Courts might be expected to naturally look for international precedents in the determination of "reasonable time", there may be a labelling problem in UK Law, due to Article 59 of the UK Sales of Goods Act of 1979, which provides: "Where a reference is made in this Act to a reasonable time the question what is a reasonable time is a question of fact." In other words, UK judges will presumably be conditioned to not looking to precedents in the determination of the timeframe, but solely applying the facts of the case. The practice of Article 39(1) from UK Courts is eagerly awaited, as is the accession of the UK to the Convention, see note 9 supra.

    289. The only reported judgement concerning Article 39(1) which is not from Europe is a judgement from Argentina, where the Court decided that there was no need to address the question of notice, see Cámera Nacional de Apelaciones en lo Commercial of 14 October 1993 [45626] (Inta S.A. vs. MCS Officina Meccania S.P.A.) [http://cisgw3.law.pace.edu/cases/931014a1.html].

    290. I find it especially hard to believe that throughout the now 8 years that the CISG has applied in my country of study, Denmark, there have been only two interesting (reportworthy) cases concerning a contract for the international sale of goods.

    291. The hierarchy of (1) Contract, (2) Trade usage, and (3) CISG gap-filling, is evidenced in Articles 6 and 9 of the Convention. See also Prof. Lookofsky in "Understanding the CISG in Scandinavia", p. 48-49.

    292. However, there are indications that some Courts may have considered this, see Landgericht Frankfurt of 9 December 1992 [3/3 O 37/92] [http://cisgw3.law.pace.edu/cases/921209g1.html], mentioned in the text accompanying note 152 supra, and Cour d'Appel de Grenoble of 13 September 1995 [93/4126] [http://cisgw3.law.pace.edu/cases/950913f1.html], mentioned in the text accompanying note 219 supra.

    293. Referring to general problems of uniformity in the Warsaw Convention in "Air Charter" from 1963, quoted by Giles in "Uniform Commercial Law", p. 23-24.


    Pace Law School Institute of International Commercial Law - Last updated August 18, 1999
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