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Art. 39 |
(a) The Committee deleted, in paragraph (1) of article 23, the words "[in the circumstances]" which appear within the expression "after he has discovered it or ought [in the circumstances] to have discovered it." In its original discussion the Committee had requested the Drafting Group to consider including [page 25] this expression in the text. However, the Drafting Group queried whether the expression should be included because, although the length of the period clearly depended on the circumstances of the case, the insertion of this expression in only one article could lead to a contrary conclusion in other articles of the draft Convention which did not use this expression in relation to other time-limits imposed on the parties. The Committee agreed with this reasoning. [page 26]
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197. The text of article 23, as adopted by the Working Group on the International Sale of Goods, is as follows:
"(1) The buyer loses the right to rely on a lack of conformity of the goods if he does not give the
seller a notice specifying the nature of the lack of conformity within a reasonable time after he has
discovered it or ought to have discovered it.
"(2) In any event, the buyer loses the right to rely on a lack of conformity of the goods if he does
not give the seller notice thereof at the latest within a period of two years from the date on which
the goods were actually handed over to the buyer, unless such time-limit is inconsistent with a
contractual period of guarantee."
Paragraph (1)
198. The Committee considered a proposal that the text should be reworded to indicate that the buyer does not lose his "right" to rely on a lack of conformity in the goods if he fails to give notice but that he loses the power to enforce his rights. This would furnish a better legal basis for the common occurrence that, without being obligated to do so, the seller recognizes his obligations in respect of his having delivered goods which failed to conform to the contract, in spite of not having received notice of the lack of conformity in proper time.
199. The Committee did not retain this proposal for lack of support.
200. The Committee considered two proposals to reduce the obligation of the buyer to examine the goods. The first proposal was for the replacement of the words "ought to have discovered [the lack of conformity]" by "could have discovered it in the circumstances." The second proposal would have deleted the words "within a reasonable time." It was suggested that the buyer should be placed under no obligation to discover defects. In particular, buyers from developing countries are at a particular disadvantage when it comes to examining technologically complicated machinery.
201. The Committee did not retain these proposals since it was of the view that the buyer should have the duty both to examine the goods and to notify the seller of lack of conformity. However, the Committee referred to the Drafting Group the question as to whether the words "in the circumstances" should be added to the words "or ought to have discovered it."
Recommendation of the Drafting Group [f]
202. The Drafting Group, however, queried whether the expression "in the circumstances" should be included in paragraph (1) of article 23 because, although the length of the period clearly depended on the circumstances of the case, the insertion of this expression in only one article could lead to a contrary conclusion in other articles of the Convention which did not use this expression in relation to other time-limits imposed on the parties. The Drafting Group accordingly placed the expression "in the circumstances" within square brackets. The Committee accepted the recommendation of the Drafting Group and deleted the expression from the article.
Paragraph (2)
203. The Committee considered a proposal to shorten the maximum period during which notice can be given from two years to one year. A two-year period was said to be longer than that which is found in most national legislation and to be an excessively long period for a seller not to know whether a claim for lack of conformity of the goods would be made by the buyer.
204. On the other hand it was said that it would work to the disadvantage of the developing countries if the maximum period of time for giving notice were to be shortened. The Committee decided not to retain this proposal.
205. The Committee also considered various proposals to [page 39] have the point of time at which the two-year time-limit commences more clearly associated with the point of time at which the buyer is required to examine the goods under article 22, and especially where examination of the goods may be deferred because of redispatch. It was noted that under article 22 the buyer is required to examine the goods within as short a period as is practicable in the circumstances, which, in the case where the contract involves the carriage of goods, is after the goods have arrived at their place of destination. It was also noted that where the goods are redispatched by the buyer without a reasonable opportunity for examination by him, in certain circumstances the examination may be deferred until after the goods have arrived at the new destination. However, under article 23(2) the two-year time-limit for giving notice of lack of conformity commenced on the date the goods "were actually handed over to the buyer."
206. However, it was pointed out that a period of fixed length, such as the two-year maximum period for giving notice under article 23(2), should commence on an easily ascertainable date. The most easily ascertainable date is the date on which the goods were actually handed over to the buyer. Even if that date may be as much as several months prior to the date on which examination of the goods is practicable or required under article 22 (3) in those cases in which the goods have been redispatched, it is not an unreasonable point of time from which to measure the maximum period for giving notice in view of the fact that two years is a relatively long time for giving such notice. It was also noted that the time the goods were actually handed over to the buyer was the point of time at which the four-year period of limitation commences under the Convention on the Limitation Period. As a result the Committee did not retain this proposal.
Decision
207. The Committee concludes that no change of substance is called for in respect of article 23. It therefore recommends that the Commission should adopt the following text:
"Article 23
"(1) The buyer loses the right to rely on a lack of conformity of the goods if he does not give notice to the seller specifying the nature of the lack of conformity within a reasonable time after he has discovered it or ought to have discovered it.
"(2) In any event, the buyer loses the right to rely on a lack of conformity of the goods if he does not give the seller notice thereof at the latest within a period of two years from the date on which the goods were actually handed over to the buyer, unless such time-limit is inconsistent with a contractual period of guarantee." [page 40]
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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
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Institute of International Commercial Law - Last updated July 17, 2007