Reproduced with the permission of the author
 

Table of Contents

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

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

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

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".

2.1. 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

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.

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:

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]

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.

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

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:

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 reasonabl