Just as in the case of non-conformity in quality (Article 39) the buyer has the duty to give notice in the case of defective title. If he does not give notice, he loses his rights under Articles 41 and 42, i.e. his rights pursuant to Article 45 fol. [page 170]
The buyer does not have to communicate his demands immediately when he gives notice; though this is recommendable. But if replacement of the goods is demanded, he must request it within a reasonable time (c. Article 46, para. 2; c. also Article 39, note 5).
[2] [within a reasonable time]
Here, too, a reasonable time means as early as possible (c. Article 39, note 3). Such reasonable time may include
a certain period for contemplation by the buyer, including time for an inquiry into the legal situation by consulting
a lawyer (so for ULIS Neumayer/Dölle). Unlike Article 39 (c. note 6) there is no time limit here. A motion by the
former GDR suggesting a two-year time limit was not adopted (O.R., 327 fol), which Schlechtriem (65) regrets. It
is, therefore, recommended that the seller proposes a contractual time limit for the notice.
The buyer thus has the right to give notice of third parties' intellectual property rights during the entire period of
validity of those rights, provided, of course, all other conditions of Article 42 are fulfilled. It has to also be taken into
account that the claims under Article 42 fall under the statute of limitations with the limitation period beginning the
day the goods are handed over to the buyer (c. Article 10, para. 2, Limitation Convention). According to
Schlechtriem, there are only a few practical cases left so that there is no need for a time limit.
[3] [within a reasonable time after buyer became aware or ought to have become aware of the right or
claim]
When the buyer receives knowledge of third party rights or claims he has to give notice within a reasonable
time. He must not wait. The reasonable time commences when the buyer ought to have become aware of the
third party right or claim. The buyer must not carelessly neglect rights or claims of third parties of which he
becomes aware. But he does not need to carry out research into whether a third party might intend to assert a
claim.
[4] [specificity of the notice]
The buyer not only has an obligation to give notice, he also has to specify the nature of the right or claim, the steps
that the third party has undertaken etc., so as to enable the seller to take immediate measures defending his rights.
(Compare here also the obligation to mitigate losses under Article 77.)
[5] [no notice required if seller knew of the right or claim]
It is logical that no notice is required if the seller knows of the right or claim of the third party. In that case, the
buyer retains his rights in spite of his failure to give notice. Here we see a parallel to Article 40, although there are
certain differences. Definite knowledge of third party rights is required on the part of the seller, whereas, in regard
to non-conformity of the goods, it was sufficient that the seller could not have been unaware. In the case of non-conformity, [page 171] there is the additional requirement that the seller did not disclose the non-conformity to the
buyer.
In Articles 41 and 42, the seller has to know at a different time: In Article 41, it is the time of delivery, which is
mostly identical with the time of the passing of risk; in Article 42, however, it is the time of the conclusion of the
contract.
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Pace Law School
Institute of International Commercial Law - Last updated August 14, 2002
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