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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 44 [Excuse for failure to give notice]

[TEXT OF THE UNIFORM LAW]

Notwithstanding the provisions of paragraph (1) of article 39 and paragraph (1) of article 43, the buyer [2] may reduce the price in accordance with article 50 or claim damages, except for loss of profit, if he has a reasonable excuse [1] for his failure [4] to give the required notice [3].

[COMMENTARY]

[1] In discussing Article 39 (see note 1) it was pointed out that it would not always be possible to give notice of a lack of conformity within a reasonable time. The loss of all rights by the buyer as a consequence of the failure to give notice seemed to some to be too harsh a punishment because it was the seller who committed the breach of contract. It was expressed at the diplomatic conference that in many developing countries illiterate traders will learn of the notice requirement only after they consult their lawyer because of a non-conformity, and also that under the law of some developing countries there is no obligation to give a written notice of such non-conformity. To permit the seller to collect the full price nonetheless is considered as unfair (see also Date-Bah, Standpoint, 39, 48).

It was, therefore, decided to add Article 44 which is to ease, to some extent, the buyer's burden in regard to the harsh consequences of a failure to give notice (c. note 2), if he has a reasonable excuse for such failure. No examples were given at the conference of what could be a reasonable excuse. Sono (326), citing Date-Bah, leaves open whether he would consider insufficient knowledge as a reasonable excuse. One would imagine that impediments like force majeure could have prevented the buyer from giving notice. It is difficult to justify a failure to give notice within a reasonable time if the buyer knew of the non-conformity. One could assume that the buyer, at first might have believed the defect to be unimportant and have learnt of its significance only later. Article 44 could apply if the buyer has given notice without specifying the nature of the non-conformity (Article 39) or the nature of the right or claim of a third party (Article 43). (Compare Honnold, 284). Article 44 could, as Honnold (284) sees it, also be applied when, for justifiable reasons, the buyer's inspection [page 172] is not made as called for under Article 38 (not so Schlechtriem, 61). It remains to be seen how the courts interpret the requirement of a reasonable excuse. It cannot be excluded that remaining payments are withheld or recourse is taken against securities (Schlechtriem, 60 fol).

But summed up, only in exceptional cases will the buyer have a chance to successfully invoke Article 44. (Sono, 328).

[2] Failure to give notice will entail some consequences for the buyer. He will be deprived of some of the rights which he would have had, if he had given notice within a reasonable time. He will then no longer have the right to delivery of substitute goods or to repair of the goods (Article 46); neither will he have the right to make the contract void (Article 49). As far as his right to claim damages is concerned, this will remain limited to the direct damage, excluding restitution of lost profit, and the buyer will retain the obligation to mitigate losses (Article 77).

[3] The required notice relates here to the reasonable time; upon the expiration of the time limit under Article 39, para. 2, there will no longer be a possibility for excuse.

[4] A failure to notify may cause damage to the seller, e.g. if he is no longer in a position to claim compensation from the supplier. The damage to the seller could also be higher expenses for the examination of the goods or for procuring evidence; such evidence by witnesses may have been lost in the meantime (Sono, 327).

According to a proposal made originally to the conference by Finland, Ghana, Nigeria, Pakistan and Sweden, the seller could set off the demands of the buyer with the damages that are caused to him by, or can be foreseen by him as a consequence of, the failure to give notice (O.R., 108). This consequence may also be inferred from Article 77. (As to the relationship between Articles 44, 77 and 80 see also Schlechtriem, 61). [page 173]

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Pace Law School Institute of International Commercial Law - Last updated August 14, 2002
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