Go to Database Directory || Go to Bibliography


Reproduced with the permission of Oceana Publications

excerpt from

INTERNATIONAL SALES LAW

United Nations Convention on Contracts for the International Sale of Goods

Convention on the Limitation Period in the International Sale of Goods

Commentary by
Prof. Dr. jur. Dr. sc. oec. Fritz Enderlein
Prof. Dr. jur. Dr. sc. oec. Dietrich Maskow

Oceana Publications, 1992

Article 39 [Notice of lack of conformity]

[TEXT OF THE UNIFORM LAW]

(1) The buyer loses the right [1] to rely on a lack of conformity of the goods [2] if he does not give notice [9] to the seller specifying [5] the nature of the lack of conformity within a reasonable time [3] after he has discovered it or ought to have discovered [4] it.

(2) In any event, the buyer loses the right [1] to rely on a lack of conformity of the goods if he does not give the seller notice [9] thereof at the latest within a period of two years [6] from the date on which the goods were actually handed over [7] to the buyer, unless this time-limit is inconsistent with a contractual period of guarantee [8].

[WORDS AND PHRASES, CONCEPTS

1. buyer's right to rely on lack of conformity of the goods lost if buyer fails to notify within a reasonable time
2. principle analogously applied to notice of lack of conformity of documents
3. the reasonable time within which notice must be given
4. time when buyer ought to have discovered the lack of conformity
5. specificity requirement
6. maximum period of two years
7. from the date on which the goods were actually handed over
8. contractual guarantees
9. notice appropriately sent but delay in transmission, or notice lost ]

[COMMENTARY]

[1] [buyer's right to rely on lack of conformity of the goods lost if buyer fails to notify within a reasonable time]

The right of a buyer to rely on a lack of conformity of the goods lapses if he does not give notice of such lack of conformity within a reasonable time. A lack of conformity refers here only to quality, quantity (deficiencies in quantity, missing parts) and false deliveries (c. Article 35, note 5; Loewe, 58, believes differently). Notification of third party rights and claims is dealt with elsewhere (c. Article 43, paragraph 1).

The rights which the buyer loses in case of omission of notice include the right:

(i) to claim damages (Article 45, paragraph 1, subpara.(b)),

(ii) to require delivery of substitute goods or repair (Article 46, paragraphs 2 and 3,

(iii) the right to declare the contract avoided (Article 49) and, [page 158]

(iv) the right to reduce the price (Article 50).

Finally, the buyer loses the right to set off with his claims in regard to defects (Honnold, 282).

Hence, after failing to give notice, the buyer has to retain the non-conforming goods and pay the price in spite of the non-conformity, provided that Articles 40 or 44 do not apply.

At the diplomatic conference, many delegations from developing countries spoke against the loss of the buyer's rights in the case of not giving notice within a reasonable time.

According to their views, such a consequence would be unknown in many countries; moreover, it would be too harsh a penalty for the buyer and would unjustifiably favour the seller (O.R. 320 fol). Conversely, other delegations stressed that the practice of short-time notice of a lack of conformity had stood the test in their countries and that there was no reason why a buyer should not be interested in notifying non-conformities to the seller once he has discovered them. The seller's possibilities to remedy such non-conformities, and to establish their cause would depend on whether he is aware of them or not (O.R., 321). This discussion resulted in a new Article 44 which was not contained in the draft at that time (Article 44).

[2] [principle analogously applied to notice of lack of conformity of documents]

The duty under Article 39 to give notice is analogously applied also to a lack of conformity of documents. The seller cannot exercise his right to cure any lack of conformity under Articles 34 and 48, unless such lack is made known to him. As far as non-conformity of documents is concerned, there will, however, be no more problems after the goods are handed over (Honnold, 280). This concerns, however, only documents transferring title in the goods.

[3] [the reasonable time within which notice must be given]

The reasonable time is in any case a short period (just like in Article 39, paragraph 1 ULIS). Such time is a relative time (unlike the absolute time of paragraph 2, see Welser/Doralt, 112). It is in the interest of the buyer himself to inform the seller because the latter can do nothing to cure the lack before he becomes aware of it. In the event that a lack cannot be remedied, like in the case of perishable goods, there would be need for speed so that impartial control would be possible (Honnold, 281). Reasonable, in many cases, will mean giving notice immediately. [page 159]

According to Sono (309) there is actually no reason for a short time if the buyer wants to retain the goods and content himself with claiming damages. The wording of this paragraph, however, requires the giving of notice within a reasonable time also in this case. Furthermore, this view underestimates the difficulties to prove a non-conformity which grow as time goes by.

The reasonable time commences at the time of discovery of the non-conformity. In the case of apparent defects, this will usually be the time of the taking over and examination of the goods. In regard to latent defects, the time of discovery of the non-conformity will be the time of commencement of the use of the goods, the time of putting them into operation or even later. If the buyer already discovers defects before taking over the goods, the reasonable time also commences at the time of discovery, i.e. before taking delivery (c. Article 60).

[4] [time when buyer ought to have discovered the lack of conformity]

It should be taken into consideration that it is not only the factual discovery of non-conformity which is decisive, but as the Convention proceeds, the time when the non-conformity ought to have been discovered. In the case of apparent defects this will be the time when the buyer has the obligation to examine the goods (c. Article 38).

[5] [specificity requirement]

Notice of non-conformity serves several purposes: It allows the seller to examine the goods himself, to substitute or repair them, and to collect or obtain evidence which he might need in a probable dispute with the buyer (Sono, 309). The buyer's notice should enable the seller to take the necessary steps to remedy the non-conformity. For this reason, an exact description of the non-conformity is required. The notice should relate the essential result of the examination of the goods.

The parties may agree whether and which means of evidence have to be attached to the notice.

It is recommended that the buyer specify his claims at the time of giving notice. Whether he requests substitute goods or repair, he has to do so in conjunction with his notice or within a reasonable time thereafter (Article 46, paragraphs 2 and 3).

[6] [maximum period of two years]

Latent defects, which in spite of an examination at the time of the taking over of the goods could not be discovered, can become visible while the goods are being used. The later the defects are discovered, the more difficult it is to decide whether they were caused by a breach of an obligation of the seller or by outside influence after the passing of the risk, e.g. wrong use by the buyer or normal [page 160] wear and tear. Therefore, a maximum period of two years after the taking over of the goods is laid down in the, Convention. This is not a limitation period but rather a period of exclusion. It may neither be checked nor interrupted, e.g. through repair.

This exclusive period was greatly disputed during preparation of the Convention since the relevant period is much shorter in many domestic laws. (In Mexico, for instance, the period is extremely short: five days from receipt for curing a deficiency in the quantity and apparent defects, 30 days after receipt for inherent defects. c. Honnold, 281). However, under the conditions of international trade, the two-year period has been considered justifiable. Moreover, it may be modified by the parties (c. note 8.) This two-year period causes difficulties to countries which have a shorter limitation period, like Germany, Switzerland and Austria, because claims to remedy non-conformity are in lapse already before the period for giving notice has expired (Krapp/Lausanne, 105). On the other hand, the Limitation Convention prescribes a limitation period of four years, counted from the day the goods are handed over to the buyer, during which the buyer may take action against the seller because of a lack of conformity with a contract (Article 8, Article 10, paragraph 2, Limitation Convention). The above-mentioned difficulties should thus not arise if all States Parties to the CISG also acceded to the Limitation Convention. Otherwise, problems will have to be solved in the respective countries invoking domestic legislation or judicature (Loewe/Lausanne, 106).

After long discussions, a two-year exclusive period was stipulated in the CISG because at a later date difficulties would almost inevitably arise with regard to evidence on the status of the goods at the time of delivery, and the seller would no longer be in a position to take action against his suppliers (of the goods themselves or of the material needed for their manufacture) (Sono, 307).

A period that would be equally suitable for all goods cannot be established. Whether or not the two-year period is too short or too long depends on the goods in question (see Farnsworth/Lausanne, 106).

[7] [from the date on which the goods were actually handed over]

A factual handing over means physically handing over the goods and not just a transfer of title through handing over the respective documents. The maximum period does not commence when the risk passes or when the goods are handed over to the first carrier. If the goods are redispatched to a new buyer then it is the actual handing over of the goods to the latter that is decisive (see Schlechtriem, 62, relating to discussions at the diplomatic conference). If the buyer has taken over the goods himself, but has no sufficient [page 161] time to examine them (c. Article 38, notes 6 and 9), the two-year period nevertheless commences with the handing over of the goods to him. The beginning of the two-year exclusive period may hence be much earlier than the time of examination required under Article 38, paragraph 3 (Sono, 311).

[8] [contractual guarantees]

If a contractual guarantee is given the question has to be asked whether this guarantee as agreed between the parties is given in addition to the remedies of the CISG or whether the guarantee shall replace the Convention's remedies. There are several kinds of "guarantees". A seller could, for instance, guarantee that he will substitute defective parts if the buyer gives notice within 30 days after having taken over the goods. Where perishable goods are concerned such a short period would certainly be justifiable (Sono, 311).

If the guarantee clearly is granted in addition to the remedial rights under the Convention, and if the period of guarantee is shorter than two years, the buyer's rights to notify latent defects within a period of two year are not affected.

Sono (313) makes a distinction between guarantees which refer to the original status of the goods (practically in the sense of promised characteristics and qualities) and such which assure that the goods will retain their specific characteristics or their fitness for an ordinary or particular purpose over a certain period. If the contractual period of guarantee does not cover two years, the buyer may nonetheless take action against the seller within two years if he can prove that in their original status the goods were not in conformity with the contract. If the guarantee is to replace the remedies under the Convention, which is absolutely possible under Article 6 and is what many sellers aim to, the period under Article 39 may also be extended or shortened. See here Welser (Doralt, 113); Loewe (60). Other authors only mention the possibility of extending the exclusive period of two years by a contractual period of guarantee (see Schlechtriem, 62; Honnold, 282).

In the event that a guarantee was granted, the seller will have the duty to examine the goods immediately and to give notice, without delay, of a non-conformity at its discovery. Apparent defects may not be notified at the end of a guarantee period. If the period of guarantee covers more than two years, the seller may give notice of non-conformity till the end of that period. In the case of a contractual guarantee period, notice should be possible within a reasonable time even after that period itself has elapsed, provided that the defect was discovered only a short time before the guarantee expired (Sono, 312). [page 162]

[9] [notice appropriately sent but delay in transmission, or notice lost]

A seller does not have to acknowledge the receipt of a notice. The buyer retains his rights even if there is a delay in the transmission of the notice or if the notice gets lost on its way to the seller. The buyer, however, must give notice of non-conformity using the means that are appropriate in the circumstances (c. Article 27).

Go to Table of Abbreviations || Go to Explanation of Abbreviated Bibliographic References
Go to entire contents of Enderlein & Maskow text


Pace Law School Institute of International Commercial Law - Last updated August 14, 2002
Go to Database Directory || Go to Bibliography
Comments/Contributions