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Art. 38 |
191. The text of article 22 as adopted by the Working Group on the International Sale of Goods is as follows:
"(1) The buyer must examine the goods, or cause them to be examined, within as short a period
as is practicable in the circumstances.
"(2) If the contract involves carriage of examination may be deferred until after the arrived at the
place of destination.
"(3) If the goods are redispatched by the buyer without a reasonable opportunity for examination
by him and at the time of the conclusion of the contract the seller knew or ought to have known of
the possibility of such redispatch, examination may be deferred until after the goods have arrived
at the new destination."
Paragraph (1)
192. The Committee considered a proposal to replace paragraph (1) with the following provision:
"(1) Where the goods are delivered to the buyer, he is not deemed to have accepted them unless and until he has had a reasonable opportunity of examining them for the purpose of ascertaining whether they are in conformity with the contract."
193. In support of this proposal, it was stated that the buyer should have a right to examine the goods and that accordingly acceptance should be postponed until the buyer had such an opportunity for examination. However, it was pointed out that the framing of the proposal in terms of acceptance rather than, in terms of an obligation to examine the goods would cause needless difficulties since national law doctrines relating to acceptance differed widely. In any case, the buyer was adequately protected by article 23(1) which provides that the right to rely on a lack of conformity is lost only if the buyer does not give notice "within a reasonable time after he has discovered it or ought to have discovered it."
194. The Committee, after deliberation, decided not to retain this proposal.
Paragraph (2)
195. The Committee considered a proposal that in cases involving carriage of goods the examination may be deferred until the goods arrive at the final place of destination. The Committee did not retain this proposal as it commanded no support.
Decision
196. The Committee concludes that no change in substance is called for in respect of article 22. It therefore recommends the following text to the Commission:
"(1) The buyer must examine the goods, or cause them to be examined, within as short a period
as is practicable in the circumstances.
"(2) If the contract involves carriage of the goods, examination may be deferred until after the
goods have arrived at their destination.
"(3) If the goods are redispatched by the buyer without a reasonable opportunity for examination
by him and at the time of the conclusion of the contract the seller knew or ought to have known of
the possibility of such redispatch, examination may be deferred until after the goods have arrived
at the destination." [page 39]
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Go to entire text of Report of the 1977 UNCITRAL Committee of the Whole I relating to draft Convention on International Sale of Goods
Pace Law School
Institute of International Commercial Law - Last updated July 17, 2007