[For more current case annotated texts by this author, see Bernstein & Lookofsky, Understanding the CISG in Europe, 2d ed. (2003) and Lookofsky, Understanding the CISG in the USA, 2d ed. (2004).]
1. Timely Examination
186. Obviously, a buyer can first give the seller notice of a given non-conformity at that point in time when the buyer becomes (or ought to become) aware that the non-conformity exists. Usually, this awareness will coincide with the buyer's examination upon delivery, and Article 38 lays down the rules which define the concept of timely examination. [page 102]
Paragraph (1) of Article 38 sets forth the general rule: 'The buyer must examine the goods, or cause them to be examined, within as short a period as is practicable in the circumstances.'
2. Nature of Examination
187. Article 38(1) describes only the time for buyer's examination, not the intensity thereof. It is to be assumed, however, that this question is a 'matter' which is 'governed' by the Convention, and that the examination required is one which is reasonable in the circumstances, not one which would reveal every possible defect.[l] More generally, the nature of the examination required will depend, inter alia, on international usages in the trade concerned. Arguably, a buyer not having the requisite technical expertise and special equipment could not be expected to effect an examination for hidden defects discoverable only by such technical means, so a middleman who purchases goods in sealed containers would not normally be expected to undertake (or secure) a laboratory analysis of the contents prior to resale.
The developing CISG case law indicates a certain measure of disagreement on this important question, however, and some courts have taken a rather demanding (i.e. seller-friendly) stance as regards the nature of the examination required. In one case, the German buyer of 48 pairs of shoes was held to have lost all remedial rights by failing to undertake a thorough examination at the time of delivery. In another instance, a buyer who gave notice of defects 24 days after delivery of adhesive foil covers lost all remedial rights, since the buyer had not processed a sample immediately upon delivery (which, in the court's view, was 'practicable in the circumstances'); while acknowledging that Articles 38 and 39 are less severe than the corresponding provisions in German domestic law, the court still found that this CISG buyer could have given notice within 10 to 11 days.
3. Contract of Carriage: Examination May Be Deferred
188. As regards a common kind of international sales case, paragraph (2) of Article 38 provides:
The main (general) rule in paragraph 1 of Article 38 (discussed in the foregoing sections) applies, inter alia, if the contract 'involves carriage'. In these, as in other cases, the examination is to be effected 'within as short a period as is practicable in the circumstances.'
However, in cases involving carriage, the 'circumstances' will often dictate the application of the special rule in paragraph 2, for in these (carriage) cases, 'examination may be deferred until [as short a period as is practicable in the circumstances] after the goods have arrived'. In other words, inspection is presumed to first become 'practicable' at this point in time.
Article 38(2) is supplemented by a rule which provides for a further extension in some cases where the goods have been redirected in transit or redispatched. [page 104]