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Cite as Sono, in Bianca-Bonell Commentary on the International Sales Law, Giuffrè: Milan (1987) 314-315. Reproduced with permission of Dott. A Giuffrè Editore, S.p.A.

Article 40

Kazuaki Sono

1. History of the provision
2. Meaning and purpose of the provision

ARTICLE 40

The seller is not entitled to rely on the provisions of articles 38 and 39 if the lack of conformity relates to facts of which he knew or could not have been unaware and which he did not disclose to the buyer.

1. History of the provision

     1.1. - The language is the same as in ULIS Article 40 and was adopted by the Working Group without change during the early days of deliberation and remained the same throughout the entire legislative process (Yearbook, IV (1973), 49).

2. Meaning and purpose of the provision

     2.1. - This article relaxes the notice requirements of Articles 38 and 39 where the lack of conformity relates to facts which the seller knew or of which he could not have been unaware and which he did not disclose. In such situations, the seller has no reasonable basis for requiring the buyer to notify him of these facts. A similar consequence of the seller's knowledge with regard to the right or claim of a third party over the goods is dealt with in Article 43(2).

     2.2. - Where Article 40 applies, the failure of the buyer to give notice of non-conformity will not deprive him of the remedy available to him because of the non-conformity. The two-year time-limit as provided in Article 39(2) will not apply if the non-conformity relates to facts of which the seller either knew or could not have been unaware and which he did not disclose to the buyer. It is not necessary for the seller to know the exact extent of the non-conformity. It would be sufficient if the seller [page 314] knew of the facts the nature of which would ordinarily result in non-conforinity. Article 40 would also dispense with the notice requirement where parties have agreeed to a different length of time-limit for notice (Article 7(2)). [page 315]


Pace Law School Institute of International Commercial Law - Last updated January 31, 2005
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