Excerpt from John O. Honnold, Uniform Law for International Sales under the 1980 United Nations Convention, 3rd ed. (1999), page 298. Reproduced with permission of the publisher, Kluwer Law International, The Hague.
§ 271 Article 39 required the buyer to notify the seller of "a lack of conformity of the goods." (See Arts. 39, 40 and 44, supra at §256.) Under Article 43 the buyer must also notify the seller of third-party claims for which the seller may be responsible under Articles 41 and 42, supra.
"(1) The buyer loses the right to rely on the provisions of article 41 or article 42 if he does not give notice to the seller specifying the nature of the right or claim of the third party within a reasonable time after he has become aware or ought to have become aware of the right or claim.
"(2) The seller is not entitled to rely on the provisions of the preceding paragraph is he knew of the right or claim of the third party and the nature of it."
The notice requirement under paragraph (1) is comparable to the "reasonable time" requirement in Article 39(1); no cut-off period is specified comparable to the two-year limit set in Article 39(2).
Paragraph (2) dispenses with the notice requirement if the seller "knew" of the right or claim. This corresponds to Article 40, except that the present article omits the phrase "or could not have been unaware and which he did not disclose to the buyer." Article 43(2) needs to be considered in relation to Article 41, which denies protection to a buyer who "agreed to take the goods subject to" a third-party claim of ownership, and also Article 42(2)(a) which denies protection with respect to third-party claims based on intellectual property where the buyer "knew or could not have been unaware of the right or claim."
See: Schlechtriem, Com.(1998) 343–347 (Schwenzer).[page 298]
FOOTNOTES: Chapter on Article 43
1. Paragraph (1) of this article is based on Arts. 39(2) and 40(3) of the 1978 Draft Convention. Cf. ULIS 52(1), summarized under Art. 41, supra at §266, n. 9.