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Article 38. Time for Examining Goods

TEXT OF ARTICLE 38

(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 redirected in transit or 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 redirection or redispatch, examination may be deferred until after the goods have arrived at the new destination.


OUTLINE OF ISSUES

Reproduced with permission of UNCITRAL

38A Buyer's obligation to examine goods

38B When contract involves carriage of goods, postponement until after arrival at destination (art. 38(2))

38C Deferral of examination in case of redirection or redispatch

38C1 Compliance with requirements specified in art. 38(3)

38D Other issues

[Failure to comply with Article 38 may lead to serious consequences: see arts. 39 & 44.]


DESCRIPTORS

Examination of goods


CASE ANNOTATIONS: UNCITRAL DIGEST CASES PLUS ADDED CASES

UNCITRAL has identified relevant cases in Digests containing case annotations for each article of the CISG. UNCITRAL cites 54 cases in its Digest of Art. 38 case law:

Austria 2 France   1 Netherlands   5
Belgium    2        Germany    30        Stockholm Chamber      1
China 1 ICC   2 Switzerland   7
Finland 2 Italy   2 TOTAL 54

Presented below is a composite list of Art. 38 cases reporting UNCITRAL Digest cases and other Art. 38 cases. All cases are listed in chronological sequence, commencing with the most recent. Asterisks identify the UNCITRAL Digest cases, commencing with the 12 July 2000 citation reported below. Cases are coded to the UNCITRAL Thesaurus.

English texts and full-text English translations of cases are provided as indicated. In most instances, researchers can also access from this list UNCITRAL abstracts and link to Unilex abstracts and full-text original-language case texts sourced from Internet websites and other data, including commentaries by scholars to the extent available.

For a recent review of Art. 38 jurisprudence, go to CISG Advisory Opinion no 2, a guide to courts and counsel dated 7 June 2004, written by former Chief of UNCITRAL Eric E. Bergsten and endorsed by Michael Joachim Bonell, Alejandro Garro, Roy Goode, Albert H. Kritzer, Sergei N. Lebedev, Loukas Mistelis, Pilar Perales Viscasillas, Jan Ramberg, Peter Schlechtriem, Ingeborg Schwenzer, Hiroo Sono and Claude Witz.
 

Netherlands 8 July 2009 Rechtbank [District Court] 's-Gravenhage (Fruitpartner BV v. Helfer Overseas Fruit Distributor SA)

Austria 2 April 2009 Oberster Gerichtshof [Supreme Court] (Boiler case)

Italy 16 February 2009 Tribunale di Forli [District Court] (Cisterns and accessories case) 38A [translation available]

Netherlands 11 February 2009 Rechtsbank [District Court] Arnhem (Tree case) 38A [translation available]

Netherlands 16 January 2009 Rechtsbank [District Court] Breda (Watermelon case) 38A [translation available]
 

Italy 11 December 2008 Tribunale di Forli [District Court] (Mitias v. Solidea S.r.l.) [translation available]

Hungary 5 December 2008 Judicial Board of Szeged [Appellate Court] (Wine case) 38A [translation available]

Belgium 14 November 2008 Hof von beroep [Appellate Court] Ghent (Volmari Werner v. Isocab NV)

Netherlands 15 October 2008 Rechtsbank [District Court] Rotterdam (Ibromar B.V. v. Krustanord S.A.)

France 16 September 2008 Cour de cassation [Supreme Court] (Potato seedling case) [translation available]

Switzerland 18 August 2008 Obergericht [Appellate Court] Appenzell Ausseroden (Clothes case)

Belgium 11 June 2008 Hof von beroep [Appellate Court] Ghent (NV Brux-Attout v. SA Chismatex)

Germany 19 May 2008 Oberlandesgericht [Appellate Court] Köln (Pesticide case) 38A [translation available]

Netherlands 27 February 2008 Rechtbank [District Court] Zutphen (Frutas Caminito Sociedad Cooperativa Valenciana v. Groente-En Fruithandel Heemskerk BV) [abstract available]

Germany 25 January 2008 Oberlandesgericht [Appellate Court] Hamburg (Café inventory case) 38A [translation available]

Spain 17 January 2008 Supreme Court (Used automobiles case) [translation available]
 

Austria 19 December 2007 Oberster Gerichtshof [Supreme Court] (Laminated glass case) [translation available]

Spain 19 December 2007 Audiencia Provincial [Appellate Court] Pontevedra (Frozen seafood case) 38A [translation available]

Germany 8 November 2007 Oberlandesgericht [Appellate Court] Dresden (Funnel covers case) 38A ; 38C [translation available]

Slovak Republic 25 October 2007 Regional Court [District Court] Zilina (Elastic fitness clothing case) 38A [translation available]

Switzerland 6 September 2007 Kantonsgericht [District Court] Appenzel Ausserhoden (Clothing case) 38A [translation available]

Netherlands 29 August 2007 Rechtbank [District Court] Dordrecht (Isolcell Italia S.p.A. v. B. Numansdorp B.V)

Germany 2 July 2007 Oberlandesgericht [Appellate Court] Köln (Cutter head case)

Slovak Republic 27 June 2007 Supreme Court Zilina (Elastic fitness clothing case) 38A [translation available]

Argentina 31 May 2007 Appellate Court, Buenos Aires (Sr. Carlos Manuel del Corazón de Jesús Bravo Barros v. Salvador Martínez Gares) 38A [translation available]

Switzerland 27 April 2007 Tribunal cantonal [Appellate Court] Valais (Oven case) 38A [translation available]

Austria 19 April 2007 Oberster Gerichtshof [Supreme Court] (Scaffold hooks case) [translation available]

Belgium 16 April 2007 Hof van Beroep [Appellate Court] Gent (Dat-Schaub International a/s v. Kipco-Damaco N.V.) 38A [translation available]

Mexico 22 March 2007 Superior Court of Justice [Appellate Court] Toluca (Barcel S.A. de C.V. v. Steve Kliff)

Mexico 13 March 2007 Second Panel for Civil Matters of the Second Federal Circuit Court [Federal Court of Appeals] (Barcel S.A. de C.V. v. Steve Kliff)

Belgium 22 January 2007 Hof van Beroep [Appellate Court] Antwerp (BVBA I.T.M. v. S.A. Montanier) [translation available]

Germany 12 January 2007 Oberlandesgericht [Appellate Court] Köln (Paperboard containers case) 38A [translation available]

Netherlands 2 January 2007 Gerechtshof [Appellate Court] 's-Hertogenbosch (G.W.A. Bernards v. Carstenfelder Baumschulen Pflanzenhandel GmbH) 38A
 

France 19 December 2006 Cour d'appel [Appellate Court] Rouen (Potato seedling case) 38A [translation available]

Switzerland 19 December 2006 Obergericht [Appellate Court] Zug (Stove case) 38A [translation available]

Germany 5 December 2006 Landgericht [District Court] Köln (Plastic faceplates for mobile telephones case) 38A [translation available]

China December 2006 CIETAC Arbitration Award [CISG 2006/03] (Automobile case) [translation available]

Austria 30 November 2006 Oberster Gerichtshof [Supreme Court] (Water-jet cutting machine case) [translation available]

Mexico 21 November 2006 Superior Court of Justice [Appellate Court] Toluca (Barcel S.A. de C.V. v. Steve Kliff)

Spain 6 November 2006 Audiencia Provincial [Appellate Court] Girona (Quartz case)

Germany 19 October 2006 Oberlandesgericht [Appellate Court] Koblenz (T-Shirts case) 38A [translation available]

Russia 19 October 2006 Arbitration Award 53/2006

Germany 23 October 2006 Landgericht [District Court] Bamberg (Plants case) 38A [translation available]

Australia 13 October 2006 Supreme Court of New South Wales [Appellate Court] (Italian Imported Foods Pty LKtd v Pucci S.r.l.) 38A

Mexico 3 October 2006 Juzgado Primero Civil de Primera Instancia [Court of First Instance] de Lerma de Villada (Barcel S.A. de C.V. v. Steve Kliff)

Germany 13 September 2006 Landgericht [District Court] Berlin (Auston Martin automobile case) [translation available]

Germany 31 August 2006 Oberlandesgericht [Appellate Court] Köln (Chlorine tablets case) 38A [translation available]

Germany 14 August 2006 Oberlandesgericht [Appellate Court] Köln (Potatoes case) 38A [translation available]

Netherlands 18 July 2006 Gerechtshof [Appellate Court] Arnhem (Potting soil case) 38A [translation available]

Germany 20 April 2006 Landgericht [District Court] Aschaffenburg (Cotton twilled fabric case) 38A [translation available]

Germany 13 February 2006 Oberlandesgericht [Appellate Court] Köln (Woolen cloth case) [translation available]

Austria 23 January 2006 Oberlandesgericht [Appellate Court] Linz (Auto case) [translation available]

Switzerland 20 January 2006 Cour de Justice [Appellate Court] Genève (Paper products case)
 

Germany 29 November 2005 Landgericht [District Court] München (Frozen vegetables case) 38A [translation available]

Austria 8 November 2005 Oberster Gerichtshof [Supreme Court] 38A [translation available]

Netherlands 11 October 2005 Gerechtshof [Appellate Court] 's-Hertogenbosch

France 4 October 2005 Cour de Cassation [Supreme Court] (Engine parts case) [translation available]

France 1 July 2005 Cour d'appel [Appellate Court] Aix-en-Provence (Footware case) 38A [translation available]

China 29 June 2005 Dalian Maritime Court (Minermet S.p.A. Italy v. China Metallurgical Import & Export Dalian Company, China Shipping Development Co., Ltd Tramp Co.)

Austria 1 June 2005 Oberlandesgericht [Appellate Court] Linz (Hydraulic crane case) 38A [translation available]

Germany 11 April 2005 Landgericht [District Court] Frankfurt 38A ; 38B ; 38C [translation available]

Switzerland 21 February 2005 Kantonsgericht [Appellate Court] Valais (CNC machine case) [translation available]

Austria 2 February 2005 Landesgericht [District Court] Salzburg (Hydraulic crane case) 38A [translation available]

Belgium 31 January 2005 Rechtbank van Koophandel [Commerical Court] Hasselt (BV Wolvega Panelen v. NV FALL) 38A [translation available]

Spain 31 January 2005 Audiencia Provincial [Appellate Court] Cuenca (Live calves case) [translation available]
 

Germany 20 December 2004 Oberlandesgericht [Appellate Court] Stuttgart [translation available]

France 4 November 2004 Cour d'appel [Appellate Court] Paris (Kiwi case) 38A [translation available]

France 26 October 2004 Cour d'appel [Appellate Court] Poitiers 38A [translation available]

Germany 26 October 2004 Landgericht [District Court] Saarbrücken 38A [translation available]

Belgium 11 October 2004 Hof van Beroep [Appellate Court] Ghent

Belgium 4 October 2004 Hof van Beroep [Appellate Court]Ghent (Deforche NV v. Prins Gebroeders Bouwstoffenhandel BV) [translation available]

Switzerland 21 September 2004 Amtsgericht [District Court] Luzern-Land [translation available]

United States 9 September 2004 Federal District Court [State of Washington] (Delizia v. Columbia Distributing Company) 38A

Germany 6 September 2004 Landgericht [District Court] Hamburg 38A [translation available]

Switzerland 7 July 2004 Bundesgericht [Supreme Court] (Cable drum case) 38A [translation available]

Belgium 30 June 2004 Hof van Beroep [Appellate Court] Ghent (Van Oers BV v. NV Turbo's Hoet Truckcenter Productie) [translation available]

Germany 30 June 2004 Bundesgerichtshof [Supreme Court] [translation available]

Belgium 16 June 2004 Hof van Beroep [Appellate Court] Ghent (Pork meat case) 38A [translation available]

Germany 1 June 2004 Landgericht [District Court] Saarbrücken (Pallets case) 38A [translation available]

Germany 28 May 2004 Oberlandesgericht [Appellate Court] Düsseldorf [translation available]

United States 21 May 2004 U.S. District Court [Illinois] (Chicago Prime Packers v. Norham) 38A ; 38C

Belgium 10 May 2004 Hof van Beroep [Appellate Court] Ghent [translation available]

Germany 10 March 2004 Oberlandesgericht [Appellate Court] Celle 38A [translation available]

Switzerland 11 February 2004 Appelationshof [Appellate Court] Bern (Cable case) 38A [translation available]

Belgium 4 February 2004 Rechtbank van Koophandel [District Court] Hasselt

Germany 29 January 2004 Oberlandesgericht [Appellate Court] Frankfurt 38A [translation available]

Belgium 28 January 2004 Hof van Beroep [Appellate Court] Ghent 38A [translation available]

Belgium 27 January 2004 Cour d’appel [Appellate Court] Liège 38A [translation available]

Switzerland 27 January 2004 Kantonsgericht [District Court] Schaffhausen 38A [translation available]

Germany 23 January 2004 Oberlandesgericht [Appellate Court] Düsseldorf 38C [translation available]

Belgium 6 January 2004 Rechtbank van Koophandel [District Court] Hasselt 38A ; 38C [translation available]
 

Austria 17 December 2003 Oberster Gerichtshof [Supreme Court] 38A [translation available]

Switzerland 13 November 2003 Bundesgericht [Supreme Court] 38A [translation available]

Germany 27 October 2003 Oberlandesgericht [Appellate Court] Rostock [translation available]

Belgium 8 October 2003 Hof van Beroep [Appellate Court] Ghent 38A [translation available]

Germany 15 August 2003 Landgericht [District Court] Bielefeld 38A [translation available]

China 8 July 2003 CIETAC Arbitration Award [CISG 2003/13] (Copper case) 38A [translation available]

Germany 11 June 2003 Landgericht [District Court] Hannover [translation available (excerpt)]

Spain 7 June 2003 Audiencia Provincial [Appellate Court] Valencia 38A [translation available]

Romania 6 June 2003 High Court of Cassation and Justice (Terracotta stoves case) 38A [translation available]

United States 28 May 2003 U.S. District Court [Northern Dist. Illinois] (Chicago Prime Packers v. Northam) 38A

Belgium 12 May 2003 Hof van Beroep [Appellate Court] Ghent 38A

Germany 25 March 2003 Landgericht [District Court] Köln [translation available]

Germany 21 March 2003 Landgericht [District Court] Berlin 38A [translation available]

Germany 18 March 2003 Landgericht [District Court] Giessen

Austria 27 February 2003 Oberster Gerichtshof [Supreme Court] 38A [translation available]

Switzerland 11 February 2003 Handelsgericht [Commercial Court] St. Gallen 38A [translation available]

Denmark 6 February 2003 Rettin i Grenaa [District Court] (Check valves case)

Belgium 15 January 2003 Rechtbank [District Court] van Koophandel [for commercial matters] Veurne
 

China 18 December 2002 CIETAC Arbitration Award [CISG 2002/14] (Sausage casing case) [translation available]

Belgium 16 December 2002 Hof van Beroep [Appellate Court] Antwerpen (Steel plates case) [translation available]

Belgium 2 December 2002 Hof van Beroep [Appellate Court] Ghent

Italy 26 November 2002 Tribunale [District Court] Rimini 38A [translation available]

China 4 November 2002 CIETAC Arbitration Award [CISG 2002/08] (Beech log case) 38A ; 38C [translation available]

Spain 3 October 2002 Audiencia Provincial [Appellate Court] Pontevedra 38A [digest available]

Germany 22 August 2002 Oberlandesgericht [Appellate Court] Schleswig 38A [translation available]

Switzerland 29 July 2002 Obergericht [Appellate Court] Luzern [translation available]

China 23 July 2002 CIETAC Arbitration Award [CISG 2002/04] (DVD HiFi case) 38A [translation available]

China 15 July 2002 CIETAC Arbitration Award [CISG 2002/19] (Coating equipment case) 38A [translation available]

China 12 July 2002 CIETAC Arbitration Award [CISG 2002/18] (Printing equipment case) 38A [translation available]

Austria 11 July 2002 Oberster Gerichtshof [Supreme Court]

Germany 2 July 2002 Landgericht [District Court] Saarbrücken 38A [translation available]

Switzerland 12 May 2002 Obergericht [Appellate Court] Luzern

Austria 26 April 2002 Oberlandesgericht [Appellate Court] Innsbruck (Tapping equipment for restaurant case)

Germany 11 April 2002 Amtsgericht [Lower Court] Viechtach 38A[translation available]

Switzerland 11 April 2002 Tribunal Cantonal [Appellate Court] Vaud

Belgium 10 April 2002 Rechtbank van Koophandel [District Court for Commercial Matters] Tongeren

Belgium 6 March 2002 Rechtbank van Koophandel [District Court] Hasselt [A.R. 2671/01] 38A

Belgium 6 March 2002 Rechtbank van Koophandel [District Court] Hasselt [A.R. 2703/01] 38A

Germany 27 February 2002 Landgericht [District Court] München 38A [translation available]

Switzerland 25 February 2002 Kantonsgericht [District Court] Schaffhausen 38A [translation available]

Belgium 14 February 2002 Hof van Beroep [Appellate Court] Antwerpen (NV Carta Mundi v. Index Syndicate Ltd.) 38A [translation available]

Denmark 31 January 2002 Sø og Handelsretten [Maritime Commercial Court] 38A [translation available]

Belgium 18 January 2002 Rechtbank van Koophandel [District Court for Commercial Matters] Mechelen 38A

Austria 14 January 2002 Oberster Gerichtshof [Supreme Court] 38A [translation available]
 

China 25 December 2001 CIETAC Arbitration Award [CISG/2001/04] (DVD HiFi case) 38A [translation available]

United States 17 December 2001 U.S. District Court [Michigan] (Shuttle Packaging v. Tsonakis) 38A

France 6 November 2001 Cour d’appel [Appellate Court] Paris 38A

Germany 30 August 2001 Landgericht [District Court] München 38A [translation available]

Netherlands 19 July 2001 Arrondissementsrechtbank [District Court] Rotterdam 38B

Austria 5 July 2001 Oberster Gerichtshof [Supreme Court] (Pentium computer parts case) 38A [translation available]

Germany 28 June 2001 Landgericht [District Court] Trier 38A [translation available]

Germany 29 May 2001 Landgericht [District Court] Darmstadt 38A [translation available]

Belgium 25 April 2001 Rechtbank van Koophandel [District Court] Veurne 38A [translation available]

Belgium 10 April 2001 Rechtbank van Koophandel [District Court for Commercial Matters] Hasselt

China 22 March 2001 CIETAC Arbitration Award [CISG/2001/02] (Mung bean case) 38A [translation available]

Germany 12 March 2001 Oberlandesgericht [Appellate Court] Stuttgart 38A ; 38B [translation available]

Belgium 29 January 2001 Rechtbank van Koophandel [District Court] Ieper 38A

Germany 19 January 2001 Landgericht [District Court] Flensburg 38A [translation available]
 

China 6 December 2000 CIETAC Arbitration Award [CISG 2000/13] (Pharmaceutical products case) 38A [translation available]

Germany 5 December 2000 Oberlandesgericht [Appellate Court] Oldenburg 38A [translation available]

Germany 16 November 2000 Landgericht [District Court] München 38A [translation available]

Germany 13 November 2000 Oberlandesgericht [Appellate Court] Köln 38A [translation available]

China 6 November 2000 CIETAC Arbitration Award [CISG/2000/12] (Marble building materials case) 38A [translation available]

Germany 23 October 2000 Oberlandesgericht [Appellate Court] Dresden (Powdered milk case) [translation available]

Germany 12 October 2000 Landgericht [District Court] Stendal 38A [translation available]

* Italy 12 July 2000 Tribunale [District Court] Vigevano 38A [translation available]

China 30 June 2000 Wuhan Economic and Technology Development Zone People's Court [District Court] (Shen Zhen fengshen Industry Development Co. v. INTER SERVICE INTERNATION France)

* Germany 9 May 2000 Landgericht [District Court] Darmstadt [translation available]

Germany 28 April 2000 Oberlandesgericht [Appellate Court] Oldenburg 38A [translation available]

Belgium 26 April 2000 Hof van Beroep [Appellate Court] Gent 38A [translation available]

Belgium 13 April 2000 Rechtbank van Koophandel [District Court]

China 31 January 2000 CIETAC Arbitration Award [CISG/2000/09] (Clothes case) 38A [translation available]

Germany 25 January 2000 Landgericht [District Court] Köln

Russia 24 January 2000 Arbitration award 54/1999 38A [translation available]

Netherlands 20 January 2000 Arrondissementsrechtbank [District Court] Rotterdam 38A

China 7 January 2000 CIETAC Arbitration Award [CISG/2000/06] (Cysteine case) 38A [translation available]

China 2000 CIETAC Arbitration Award [CISG 2000/17] (Souvenir coins case) 38A [translation available]

Hungary 2000 Budapest Arbitration proceeding VB 99144 (Grape sticks case) [translation available]
 

China 29 December 1999 CIETAC Arbitration Award [CISG/1999/33] (Indonesian round logs case) 38A [translation available]

Netherlands 1 December 1999 Arrondissementsrechtbank [District Court] Middelburg 38A

* Germany 30 November 1999 Landgericht [District Court] Köln 38A [translation available]

* Germany 18 November 1999 Oberlandesgericht [Appellate Court] Koblenz 38A

* Germany 3 November 1999 Bundesgerichtshof [Federal Supreme Court] 38A [translation available]

Netherlands 14 October 1999 Arrondissementsrechtbank [District Court] Rotterdam [translation available]

* Austria 27 August 1999 Oberster Gerichtshof [Supreme Court] 38A [translation available]

ICC August 1999 International Court of Arbitration, Case 9083 38A [translation available]

ICC August 1999 International Court of Arbitration, Case 9887 [English text]

ICC June 1999 International Court of Arbitration, Case 9187 [English text]

China 31 May 1999 CIETAC Arbitration Award [CISG/1999/27] (Indium ingot case) 38A [translation available]

* France 26 May 1999 Cour de Cassation [Supreme Court] 38A1 [translation available]

Germany 25 May 1999 Landgericht [District Court] Berlin 38A ; 38B [translation available]

Austria 19 May 1999 Oberster Gerichtshof [Supreme Court] 38A [translation available]

Belgium 19 May 1999 Rechtbank van Koophandel [District Court] Hasselt

Netherlands 27 April 1999 Gerechtshof [Appellate Court] Arnhem 38A [translation available]

China 20 April 1999 CIETAC Arbitration Award [CISG/1999/23] (Chemical cleaning product equipment case) 38C [translation available]

China 5 April 1999 CIETAC Arbitration Award [CISG/1999/19] (Air conditioner equipment case) 38A [translation available]

China 30 March 1999 CIETAC Arbitration Award [CISG/1999/16] (Flanges case) 38A [translation available]

China 30 March 1999 CIETAC Arbitration Award [CISG/1999/17] (Electric heater case) [translation available]

China 29 March 1999 CIETAC Arbitration Award [CISG/1999/14] (Flanges case) 38A [translation available]

Switzerland 10 February 1999 Handelsgericht [Commercial Court] Zürich [translation available]

China 1999 CIETAC Arbitration award [CISG/1999/01] (Piperonal aldehyde case) 38A [translation available]
 

* Switzerland 30 November 1998 Handelsgericht [Commercial Court] Zürich 38A [translation available]

* Germany 25 November 1998 Bundesgerichtshof [Federal Supreme Court] 38A1 [translation available]

Belgium 4 November 1998 Hof van beroep [Appellate Court] Antwerpen 38A [translation available]

Denmark 4 November 1998 Randers Byret [County Court] (Christmas tree case) [translation available]

Austria 15 October 1998 Oberster Gerichtshof [Supreme Court] 38A [translation available]

* Germany 11 September 1998 Oberlandesgericht [Appellate Court] Koblenz 38A [translation available]

Germany 2 September 1998 Oberlandesgericht [Appellate Court] Celle 38A [translation available]

Germany 19 August 1998 Oberlandesgericht [Appellate Court] Bamberg

Germany 29 July 1998 Landgericht [District Court] Erfurt [translation available]

Austria 30 June 1998 Oberster Gerichtshof [Supreme Court] 38A1 [translation available]

* Finland 30 June 1998 Helsingin hovioikeus [Appellate Court] Helsinki 38A [translation available]

Belgium 17 June 1998 Rechtbank van Koophandel [District Court] Hasselt

* Stockholm Chamber of Commerce 5 June 1998 Arbitration award (Beijing Light Automobile Co. v. Connell) [English text]

* Germany 3 June 1998 [Appellate Court] Saarbrücken 38A1 [translation available]

* Germany 26 May 1998 Oberlandesgericht [Appellate Court] Thüringer, Jena 38A1 [translation available]

Germany 31 March 1998 Oberlandesgericht [Appellate Court] Zweibrücken (Vine wax case) [translation available]

Germany 24 March 1998 Landgericht [District Court] Berlin (Knitwear case) [translation available]

Switzerland 24 March 1998 Obergericht [Appellate Court] Zug

Austria 11 March 1998 Oberlandesgericht [Appellate Court] Graz (Timber case) 38A [translation available]

* Germany 11 March 1998 Oberlandesgericht [Appellate Court] München 38A1 [translation available]

* Netherlands 20 February 1998 Hoge Raad [Supreme Court] 38A

Russia 18 February 1998 Arbitration award 243/1996 38A ; 38B[translation available]

Russia 16 February 1998 Arbitration award 33/1997 38A

Austria 12 February 1998 Oberster Gerichtshof [Supreme Court] [translation available]

* Finland 29 January 1998 Hovioikeus / hovrätt [Appellate Court] Helsinki 38A [translation available]

China 22 January 1998 CIETAC Arbitration award [CISG/1998/02] [translation available]

Switzerland 15 January 1998 Tribunale d'appello [Appellate Court] Lugano [translation available]

Hungary 1998 Fovárosi Biróság [Metropolitan Court] Budapest
 

* Netherlands 15 December 1997 Gerechtshof [Appellate Court] 's Hertogenbosch 38A1

Germany 11 December 1997 Landgericht [District Court] Bayreuth

Finland 12 November 1997 Hovioikeus / hovrätt [Appellate Court] Turku 38A [translation available]

Switzerland 28 October 1997 Tribunal Cantonal [Appellate Court] Valais

China 27 October 1997 CIETAC Arbitration Award [CISG/1997/31] (Hot-rolled coils) 38A [translation available]

China 13 October 1997 CIETAC Arbitration Award [CISG/1997/30] (Printing machine case) 38A [translation available]

* Belgium 6 October 1997 Rechtbank van Koophandel [District Court] Kortrijk 38A1 [translation available]

ICC September 1997 International Court of Arbitration, Case 8962 38A [English text]

* Germany 21 August 1997 Oberlandesgericht [Appellate Court] Köln 38A1 [translation available]

China 23 July 1997 CIETAC Arbitration Award [CISG/1997/23] (Polypropylene case) 38C [translation available]

China 31 July 1997 CIETAC Arbitration Award [CISG/1997/24] (Axle sleeves case) 38A [translation available]

* Belgium 27 June 1997 Rechtbank van Koophandel [District Court] Kortrijk 38A1

* Germany 25 June 1997 Bundesgerichtshof [Federal Supreme Court] 38A1 [translation available]

* Germany 25 June 1997 Oberlandesgericht [Appellate Court] Karlsruhe 38A1 [translation available]

Germany 23 June 1997 Landgericht [District Court] München

Spain 20 June 1997 Audiencia Provincial [Appellate Court] Barcelona 38A1 [translation available]

* Netherlands 17 June 1997 Gerechtshof [Appellate Court] Arnhem 38A1

Austria 27 May 1997 Oberster Gerichtshof [Supreme Court]

China 11 April 1997 CIETAC Arbitration Award [CISG/1997/05] (Silicon metal case) 38A [translation available]

* Netherlands 5 March 1997 Arrondissementsrechtbank [District Court] Zwolle 38A1

* Switzerland 8 January 1997 Obergericht [Appellate Court] Luzern 38A ; 38C [translation available]

China 1997 Shanghai Higher People's Court 38A ; 38C [translation available]
 

Belgium 16 December 1996 Rechtbank van Koophandel [District Court] Kortrijk 38A1

Netherlands 16 December 1996 Gerechtshof [Appellate Court] 's Hertogenbosch

* Germany 4 December 1996 Bundesgerichtshof [Federal Supreme Court] [translation available]

Belgium 3 December 1996 Rechtbank van Koophandel [District Court] Hasselt

France 21 November 1996 Cour d'appel [Appellate Court] Aix-en-Provence 38A1 [translation available]

Netherlands 21 November 1996 Arrondissementsrechtbank [District Court] Rotterdam 38A1

Netherlands 4 October 1996 Arrondissementsrechtbank [District Court] 's Hertogenbosch

Germany 2 October 1996 Landgericht [District Court] Heidelberg

China 28 September 1996 CIETAC Arbitration Award [CISG/1996/44] (Gloves case) 38A [translation available]

China 18 September 1996 CIETAC Arbitration Award [CISG/1996/43] (Agricultural products case) 38A [translation available]

Germany 13 September 1996 Oberlandesgericht [Appellate Court] Düsseldorf

China 6 September 1996 CIETAC Arbitration Award [CISG/1996/42] (Engines case) [translation available]

China 31 July 1996 CIETAC Arbitration Award [CISG/1996/34] (Sport shoes case) 38B [translation available]

China 16 July 1996 CIETAC Arbitration Award [CISG/1996/31] (Hot-rolled steel plates case) [translation available]

* Germany 25 June 1996 Landgericht [District Court] Paderborn 38A [translation available]

* ICC June 1996 International Court of Arbitration, Case 8247 38A ; 38B [English text]

Netherlands 15 May 1996 Arrondissementsrechtbank [District Court] Amsterdam

Bulgaria 24 April 1996 Bulgaria Chamber of Commerce Arbitration award 56/1995 [translation available]

* Germany 17 April 1996 Landgericht [District Court] Duisburg 38A [translation available]

* Germany 26 March 1996 Landgericht [District Court] Saarbrücken 38A1 [translation available]

Germany 12 March 1996 Landgericht [District Court] Bad Kreuznach

* Italy 31 January 1996 Tribunale Civile [District Court] Cuneo 38A1 [translation available]

Germany 25 January 1996 Landgericht [District Court] München [translation available]
 

Germany 19 December 1995 Landgericht [District Court] Krefeld

Hungary 5 December 1995 Budapest Arbitration award Vb 94131 38A [translation available]

Switzerland 30 November 1995 Kantonsgericht [District Court] Zug

* Germany 12 October 1995 Landgericht [District Court] Trier 38A [translation available]

Germany 20 September 1995 Oberlandesgericht [Appellate Court] Nürnberg

* Germany 21 August 1995 Oberlandesgericht [Appellate Court] Stuttgart 38A [translation available]

* Germany 21 August 1995 Landgericht [District Court] Ellwangen 38A [translation available]

Germany 7 July 1995 Landgericht [District Court] Koblenz

* Switzerland 30 June 1995 Gerichtskommission [Judicial Commission] Oberrheintal (Sliding doors case) 38A [translation available]

Netherlands 7 June 1995 Arrondissementsrechtbank [District Court] 's Gravenhage 38A1

Germany 23 May 1995 Oberlandesgericht [Appellate Court] Frankfurt 38A [translation available]

Switzerland 26 April 1995 Handelsgericht [Commercial Court] Zürich [translation available]

* Germany 5 April 1995 Landgericht [District Court] Landshut 38A [translation available]

Germany 20 March 1995 Landgericht [District Court] München 38A1 [translation available]

China 10 March 1995 CIETAC Arbitration Award [CISG/1995/04] (Wool case) 38A [translation available]

* Germany 8 March 1995 Bundesgerichtshof [Federal Supreme Court] [translation available]

* China 23 February 1995 CIETAC Arbitration award 38B [translation available]

* Germany 8 February 1995 Oberlandesgericht [Appellate Court] München [7 U 3758/94] (Plastic granulate case) 38A [translation available]
 

China 28 December 1994 CIETAC Arbitration Award [CISG/1994/15] (Round steel case) 38A [translation available]

Germany 9 November 1994 Landgericht [District Court] Oldenburg 38A [translation available]

* Germany 21 October 1994 Amtsgericht [Lower Court] Riedlingen 38A [translation available]

Germany 6 September 1994 Amtsgericht [Lower Court] Mayen

* Germany 26 August 1994 Oberlandgericht [District Court] Köln (Market study case)

Germany 25 August 1994 Landgericht [District Court] Düsseldorf (Fashion goods case) [translation available]

Germany 6 July 1994 Landgericht [District Court] Oldenburg

Serbia 12 July 1994 Foreign Trade Court of Arbitration, Yugoslav Chamber of Commerce (Baby beef hide case) 38A [translation available]

Austria 1 July 1994 Oberlandesgericht [Appellate Court] Innesbruck [translation available]

* Germany 23 June 1994 Landgericht [District Court] Düsseldorf 38A [translation available]

* Austria 15 June 1994 Vienna Arbitration award SCH-4318 [translation available]

Germany 20 April 1994 Oberlandesgericht [Appellate Court] Frankfurt 38A

China 30 March 1994 CIETAC Arbitration Award [CISG/1994/04] (Cow's liver fungus case) [translation available]

Austria 29 March 1994 Landesgericht [District Court] Feldkirch

* Germany 22 February 1994 Oberlandesgericht [Appellate Court] Köln 38C [translation available]

* Germany 10 February 1994 Oberlandesgericht [Appellate Court] Düsseldorf [6 U 32/93] 38A [translation available]

ICC 1994 International Court of Arbitration, Case 7565 [English text]
 

Germany 1 December 1993 Landgericht [District Court] Hanover 38A

* Germany 11 November 1993 Landgericht [District Court] Köln

* Switzerland 9 September 1993 Handelsgericht [Commercial Court] Zürich (Furniture case) 38A [translation available]

Switzerland 1 September 1993 Handelsgericht [Commercial Court] Zürich

Germany 28 July 1993 Landgericht [District Court] Aachen

China 5 July 1993 CIETAC Arbitration Award [CISG/1993/08] (Copperized steel tubes case) [translation available]

China 30 March 1993 CIETAC Arbitration Award [CISG/1993/07] (Talcum block case) [translation available]

Germany 12 March 1993 Oberlandesgericht [Appellate Court] Düsseldorf [translation available]

* Germany 13 January 1993 Oberlandesgericht [Appellate Court] Saarbrücken (Doors case) 38A ; 38C [translation available]

* Germany 8 January 1993 Oberlandesgericht [Appellate Court] Düsseldorf 38A [translation available]
 

Germany 16 September 1992 Landgericht [District Court] Berlin 38A1

* Germany 22 May 1992 Landgericht [District Court] Mönchengladbach

* Switzerland 27 April 1992 Pretore della giurisdizione [District Court] Locarno 38A1 [translation available]

Germany 23 March 1992 Landgericht [District Court] Saarbrücken
 

* Netherlands 19 December 1991 Arrondissementsrechtbank [District Court] Roermond 38A

China 16 December 1991 CIETAC Arbitration award (Cold rolled steel plates case) 38A ; 38C [translation available]

Germany 27 September 1991 Oberlandesgericht [Appellate Court] Koblenz [translation available]

China 19 April 1991 CIETAC Arbitration award [translation available]
 

* Germany 3 April 1990 Landgericht [District Court] Aachen 38A1 [translation available]
 

* Germany 31 August 1989 Landgericht [District Court] Stuttgart 38A1 [translation available]

Israel 26 June 1989 Supreme Court 38A [ULIS precedent]

* ICC 1989 International Court of Arbitration, Case 5713 38A [English text]

ICC 1989 International Court of Arbitration, Case 5904


CASE DIGEST AND ANALYSIS
-   UNCITRAL's case law digest; and
-   An analysis of CISG jurisprudence

The UNCITRAL Digest of case law on the United
Nations Convention on the International Sale of Goods
[*]

A/CN.9/SER.C/DIGEST/CISG/38 [8 June 2004]
Reproduced with the permission of UNCITRAL

[Text of Article 38
Digest of Article 38 case law
-    Overview of Article 38
-    Article 38(1) in general
-    Method of examination
-    Time period for examination
-    Latent lack of conformity
-    Article 38(2)
-    Article 38(3)]
ARTICLE 38

     (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 redirected in transit or 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 redirection or redispatch, examination may be deferred until after the goods have arrived at the new destination.

DIGEST OF ARTICLE 38 CASE LAW

Overview of Article 38

1. Article 38 directs a buyer to whom goods have been delivered to examine them or cause them to be examined. Much of the text of article 38 focuses on the time when this examination should take place. Thus article 38(1) specifies the general rule that the examination must occur "within as short a period as is practicable in the circumstances." Article 38(2) provides a special rule for cases involving carriage of goods, permitting the examination to be deferred until the goods arrive at their destination. With respect to the relationship between articles 38(1) and 38(2), one court has explained that normally the place of examination is the place where the seller's delivery obligation is performed under article 31 of the Convention, but if the contract involves carriage of the goods the examination may be deferred until the goods reach their destination.[1] Article 38(3) contains another special rule, applicable if the buyer redirects goods while they are in transit or redispatches goods before having a reasonable opportunity to examine them: in such cases, examination may be deferred until after the goods arrive at their "new destination," provided the seller was on notice of the possibility of such redirection or redispatch when the contract was concluded.

2. As is asserted by the Secretariat Commentary relating to article 38 [2] and by numerous cases,[3] the time when a buyer is required to conduct an examination of the goods under article 38 is intimately connected to the time when the buyer "ought to have discovered" a lack of conformity under article 39 -- an occurrence that starts the clock running on the buyer's obligation to give notice of the non-conformity. The examination obligation imposed by article 38, therefore, can have very serious consequences: if a buyer fails to detect a lack of conformity because it did not conduct a proper and timely examination, and as a result fails to give the notice required by article 39, the buyer will lose rights -- quite possibly all rights -- relating to the lack of conformity.[4]

3. The obligation to examine under article 38 (and to give notice of lack of conformity under art. 39) applies not just to non-conformities under CISG article 35, but also to non-conformities under contractual provisions that derogate from article 35.[5] The examination mandated by article 38, furthermore, should ascertain not only that the quality, quantity, capabilities and features of the goods conform to the seller's obligations, but also that the goods are accompanied by documentation required by the contract.[6]

4. According to several opinions, the purpose of the article 38 examination obligation, in conjunction with the notice requirement imposed by article 39, is to make it clear, in an expeditious fashion, whether the seller has properly performed the contract.[7] In this regard, article 38 is similar to rules commonly found in domestic sales law -- and, indeed, article 38 has been applied as a matter of "international trade usage" even though the States of neither the buyer nor the seller had, at the time of the transaction, ratified the Convention.[8] Article 38, however, is a provision of international uniform law distinct from similar domestic rules,[9] and is to be interpreted (pursuant to article 7(1)) from an international perspective and with a view to promoting uniformity in its application.[10] It has been asserted that the requirements of article 38 are to be strictly applied.[11]

Article 38(1) in general

5. Article 38(1) mandates that the buyer "examine the goods, or cause them to be examined, within as short a period as is practicable in the circumstances." The meaning of the phrase specifying the time within which the examination must be conducted -- "as short a period as is practicable in the circumstances" -- has been addressed in many decisions.[12] The text of article 38(1) does not expressly address the type or method of examination required, and this issue has also generated substantial comment in the cases.[13]

6. Under article 6 of the Convention, the parties can derogate from or vary the effect of any provision of the CISG. This principle has been applied to article 38, and an agreement concerning the time and/or manner of the examination of goods has been found to supersede the usual rules of article 38.[14] On the other hand, it has been found that contractual provisions addressing the terms and duration of warranties, the buyer's obligation to give notice of defects occurring after delivery, and the buyer's rights if the seller did not cure defects, did not displace the provisions of article 38.[15] Derogation from article 38 can also occur by trade usage,[16] although the express terms of the agreement may negate the applicability of a usage.[17]

7. After the goods have been delivered, the seller may waive its right to object to the propriety of the buyer's examination of the goods,[18] or it may be stopped from asserting such right.[19] On the other side, it has been asserted that a buyer may lose its rights to object to a lack of conformity if the buyer takes actions indicating acceptance of the goods without complaining of defects that it had discovered or should have discovered in its examination.[20]

8. Evidentiary questions can play a crucial role in determining whether a buyer has met its obligations under article 38(1). Several decisions have asserted that the buyer bears the burden of proving that it conducted a proper examination.[21] In determining whether an adequate examination was conducted, furthermore, it has been asserted that a tribunal should consider both "objective" and "subjective" factors, including the buyer's "personal and business situation."[22] Some decisions appear in fact to take into account the buyer's subjective circumstances in judging the adequacy of an examination, at least where such considerations suggest a high standard for the examination.[23] Other decisions, however, have refused to consider the buyer's particular situation when it was invoked to argue for a low standard for the examination.[24]

Method of examination

9. By stating that the buyer must either examine the goods or "cause them to be examined," article 38(1) implies that the buyer need not personally carry out the examination. In a number of cases, examinations were (or should have been) conducted by a person or entity other than the buyer, including the buyer's customer,[25] subcontractor,[26] or an expert appointed by the buyer.[27] It has also been held, however, that the buyer bears ultimate responsibility under article 38 for examinations carried out by others.[28]

10. Except for implying that the examination need not be carried out by the buyer personally, article 38(1) is silent about the method the buyer should employ in examining the goods. In general, it has been asserted, the manner of inspection will depend on the parties' agreement, trade usages and practices;[29] and that in the absence of such indicators a "reasonable" examination, "thorough and professional" is required, although "costly and expensive examinations are unreasonable."[30] It has also been asserted that the extent and intensity of the examination are determined by the type of goods, packaging and the capabilities of the typical buyer.[31] The issues relating to the method or manner of examination that have been addressed in decisions include: the impact of the buyer's expertise on the level of examination required;[32] whether spot testing or "sampling" is required [33] or adequate;[34] the effect of the packaging or shipping condition of the goods on the type of examination the buyer should conduct;[35] whether an outside expert can or must be utilized;[36] and whether the presence or absence of defects in earlier deliveries or transactions should affect the manner of examination.[37]

Time period for examination

11. Article 38(1) states that the buyer must examine the goods "within as short a period as is practicable in the circumstances." It has been asserted that the purpose of the deadline for examination established in article 38(1) is to allow the buyer an opportunity to discover defects before the buyer resells,[38] and to permit prompt clarification of whether the buyer accepts the goods as conforming,[39] but the period for examination has been interpreted in a fashion that serves other purposes -- for example, to mandate examination before the condition of the goods so changes that the opportunity to determine if the seller is responsible for a lack of conformity is lost.[40]

12. Except where the contract involves carriage of the goods (a situation governed by article 38(2), discussed below) or where the goods are redirected in transit or redispatched (circumstances handled in art. 38(3), discussed below), the time for the buyer's examination as a rule begins to run upon delivery of the goods [41] -- which in general corresponds to the time risk of loss passed to the buyer.[42] Requiring the buyer to conduct an examination after delivery, therefore, is consistent with article 36(1) of the Convention, which establishes the seller's liability for any lack of conformity existing when the risk passes. Where the lack of conformity is a hidden or latent one not reasonably discoverable in the initial examination, however, decisions have indicated that the period for conducting an examination to ascertain the defect does not begin to run until the defects reveal (or should reveal) themselves. Thus where a buyer alleged a lack of conformity in a grinding device that suffered a complete failure approximately two weeks after being put into service (approximately three weeks after delivery), one court indicated that the period for examining the goods with respect to this defect began to run at the time of the failure.[43]

13. The mandate in article 38(1) to examine the goods "within as short a period as is practicable" has indeed been applied in a strict fashion in several cases.[44] It has also been asserted that the phrase is to be strictly interpreted.[45] In light of the requirement in article 38(1) that the time period for examination be one that is "practicable in the circumstances," however, decisions have also recognized that the standard is a flexible one, and that the period for examination will vary with the facts of each case. According to one court, the short period for the examination depends on the size of the buyer's company, the type of the goods to be examined, their complexity or perishability or their character as seasonal goods, the type of the amount in question, the efforts necessary for an examination, etc. Furthermore, the objective and subjective circumstances of the concrete case must be considered, in particular the buyer's personal and business situation, characteristic features of the goods, the amount of the delivery of goods or the type of the chosen legal remedy.[46]

14. As the aforementioned statement indicates, the perishable nature of goods is a factor that tribunals have considered in determining the period for examination.[47] Other factors that the decisions recognize as relevant include the professionalism and/or expertise of the buyer,[48] the timing and nature of the buyer's expected use or resale of the goods,[49] the buyer's knowledge of the seller's need for speedy notice of lack of conformity,[50] whether the goods had passed a pre-delivery inspection,[51] whether there were non-business days during the period for examination,[52] the complexity of the goods,[53] the difficulty of conducting an examination,[54] whether there were defects in prior deliveries,[55] and the obviousness (or non-obviousness) of the lack of conformity.[56]

15. Although the flexibility and variability of the period within which the buyer must examine the goods is widely recognized, several decisions have attempted to establish presumptive time periods for the buyer's examination. Thus some opinions have asserted that the general base-line period for examination (which might be lengthened or shortened by particular circumstances) is one week after delivery.[57] Other decisions have set presumptive examination periods ranging from three or four days [58] to a month.[59] Based on the facts of the particular case, examinations have been found timely when they were conducted within approximately two weeks of the first delivery under the contract,[60] within a few days after delivery at the port of destination,[61] and on the day of delivery.[62] An examination by an expert was also deemed timely when it was conducted and completed at an unspecified time following delivery, but where arrangements to have the expert examine the goods were initiated before the goods arrived at their destination.[63] Examinations in the following periods have been found to be untimely in the particular circumstances: four months after the delivery of the second of two engines (20 months after the delivery of the first engine);[64] more than 10 days following delivery;[65] beyond one week to 10 days after delivery;[66] beyond one week following delivery;[67] more than a few days after delivery;[68] after three or four days following delivery;[69] beyond three days after delivery;[70] after the day of arrival at the port of destination;[71] any time later than immediately following delivery.[72]

Latent lack of conformity

16. The question of the buyer's obligation to examine the goods for a hidden or latent lack of conformity not discernible during an initial inspection [73] is an important one because article 39(1) of the Convention requires the buyer to give notice of a lack of conformity "within a reasonable time after [the buyer] discovered or ought to have discovered it" (emphasis added). Tribunals have adopted different approaches to examination for latent defects, apparently varying with the view taken of the nature of the examination required by article 38. Some decisions appear to conceive of the article 38 examination as an ongoing or repeated process involving a continuous search for all non-conformities, including latent ones. Such decisions seem to treat the question of when the buyer ought to have found any defect, including a latent one not discoverable in an initial examination, as an issue governed by article 38, on the apparent assumption that article 38 requires the buyer to continue examining the goods until all defects are revealed. Thus some decisions indicate that the period for an article 38 examination for latent defects does not begin to run until such defects should reveal themselves,[74] whereas the period for examination of obvious defects begins to run immediately upon delivery.[75] These opinions apparently contemplate multiple or continuous examinations under article 38. Other decisions appear to conceive of the examination required by article 38 as a single discrete event to occur shortly after delivery. For tribunals adopting this approach, the question of when latent defects should be discovered if they are not reasonably discernible in the initial article 38 examination is an issue beyond the scope of article 38.[76]

17. Illustrating this approach, one decision has emphasized that the Article 38 examination occurs upon delivery of the goods, and failure to discern a lack of conformity that was not discoverable at the time does not violate article 38.[77]

Article 38(2)

18. As was noted previously, under article 38(1) the period for the buyer to examine the goods as a rule begins to run upon delivery of the goods.[78] Where such delivery is to occur, in turn, is governed by the sales contract or, in the absence of a contractual provision addressing this question, by the default rules stated in article 31.[79] In many transactions in which the goods will be delivered to the buyer by means of a third-party carrier, the place of delivery will be where the seller hands over the goods to the carrier for transportation.[80] In such cases, it will often not be convenient or even possible for the buyer to examine the goods at the point of delivery, and thus in fairness the period for examination should not begin running at that point. For this reason, in transactions involving "carriage of goods" (i.e., transportation by third-party carrier), article 38(2) permits the buyer to defer the examination "until after the goods have arrived at their destination." This rule has been applied in several cases. In one transaction involving goods to be transported from Tallinn, Estonia to Abu Dhabi in the United Arab Emirates, the court found that the buyer could postpone examination until the goods arrived at Abu Dhabi even though the contract provided for delivery FOB Tallinn.[81] On the other hand, article 38(2) is subject to the contrary agreement of the parties.[82] Thus where a contract between a seller and a buyer provided that the goods were to be delivered "free on refrigerated truck Turkish loading berth (Torbali)" and from there to be shipped on to the buyer's country by carrier, the court found that the parties' agreement had excluded article 38(2) and the buyer was required to conduct the article 38 examination in Turkey rather than at the place of arrival, because the contract contemplated that a representative of the buyer would inspect the goods at the Turkish loading dock and the buyer was responsible for making arrangements for transporting the goods to its country.[83]

Article 38(3)

19. Article 38(3) permits a buyer in certain circumstances to defer examination of the goods until after the time that the period for examination would otherwise have commenced.[84] Specifically, where the goods are "redirected in transit" or "redispatched by the buyer without a reasonable opportunity for examination by him,"[85] article 38(3) permits examination to be deferred "until after the goods have arrived at the new destination," provided the seller "knew or ought to have known of the possibility of such redirection or redispatch" when the contract was concluded. Under this provision, an examination of a delivery of rare hard woods that the buyer (with the seller's knowledge) redispatched to the buyer's customer could be deferred until the goods arrived at the customer's facilities.[86] Several decisions, however, have strictly construed the requirements for article 38(3) to apply. Thus it has been stated that the provision only applies if the goods are delivered directly from the seller to the end customer or if the buyer acts simply as an intermediary between the seller and the end customer, and the provision was held inapplicable where the buyer received and stored the goods in its own warehouse without knowing in advance whether and when they would be resold.[87] It has also been stated that article 38(3) allows a deferred examination only if all (rather than just a part) of a delivery of goods is redispatched, or redirected in transit, and then only if the buyer does not have a reasonable opportunity to examine the delivery.[88]


FOOTNOTES

* The present text was prepared using the full text of the decisions cited in the Case Law on UNCITRAL Texts (CLOUT) abstracts and other citations listed in the footnotes. The abstracts are intended to serve only as summaries of the underlying decisions and may not reflect all the points made in the digest. Readers are advised to consult the full texts of the listed court and arbitral decisions rather than relying solely on the CLOUT abstracts.

[Citations to cisgw3 case presentations have been substituted [in brackets] for the case citations provided in the UNCITRAL Digest. This substitution has been made to facilitate online access to CLOUT abstracts, original texts of court and arbitral decisions, and full text English translations of these texts (available in most but not all cases). For citations UNCITRAL had used, go to <http://www.uncitral.org/english/clout/digest_cisg_e.htm>.]

1. [GERMANY Landgericht [District Court] Landshut 5 April 1995, available online at <http://cisgw3.law.pace.edu/cases/950405g1.html>].

2. Secretariat Commentary to draft counterpart to final Article 38, p. 34, para.  2.

3. E,g., CLOUT case No. 123 [GERMANY Bundesgerichtshof [Supreme Court] 8 March 1995, available online at <http://cisgw3.law.pace.edu/cases/950308g3.html>]; CLOUT case No. 378 [ITALY Tribunale [District Court] Vigevano 12 July 2000, available online at <http://cisgw3.law.pace.edu/cases/000712i3.html>]; [ICC Court of Arbitration case No. 8247 of June 1996, available online at <http://cisgw3.law.pace.edu/cases/968247i1.html>]; CLOUT case No. 81 [GERMANY Oberlandesgericht [Appellate Court] Düsseldorf 10 February 1994, available online at <http://cisgw3.law.pace.edu/cases/940210g1.html>]; CLOUT case No. 48 [GERMANY Oberlandesgericht [Appellate Court] Düsseldorf 8 January 1993, available online at <http://cisgw3.law.pace.edu/cases/930108g1.html>].

4. See, e.g., CLOUT case No. 4 [GERMANY Landgericht [District Court] Stuttgart 31 August 1989, available online at <http://cisgw3.law.pace.edu/cases/890831g1.html>]; [NETHERLANDS Hoge Raad [Supreme Court] 20 February 1998, available online at <http://cisgw3.law.pace.edu/cases/980220n1.html>]; CLOUT case No. 364 [GERMANY Landgericht [District Court] Köln 30 November 1999, available online at <http://cisgw3.law.pace.edu/cases/991130g1.html>]; CLOUT case No. 56 [SWITZERLAND Canton of Ticino [District Court] Locarno Campagna 27 April 1992, available online at <http://cisgw3.law.pace.edu/cases/920427s1.html>] (see full text of the decision). For further information concerning the effect of failure to give timely notice, see the discussion infra of arts. 39, 40 and 44.

5. CLOUT case No. 237 [STOCKHOLM CHAMBER OF COMMERCE Arbitration Award of 5 June 1998, available online at <http://cisgw3.law.pace.edu/cases/980605s5.html>].

6. [NETHERLANDS Gerechtshof [Appellate Court] Arnhem 17 June 1997, available online at <http://cisgw3.law.pace.edu/cases/970617n1.html>].

7. [AUSTRIA Obester Gerichtshof [Supreme Court] 27 August 1999, available online at <http://cisgw3.law.pace.edu/cases/990827a3.html>]; CLOUT case No. 284 [GERMANY Oberlandesgericht [Appellate Court] Köln 21 August 1997, available online at <http://cisgw3.law.pace.edu/cases/970821g1.html>] (see full text of the decision). The buyer's obligation to examine goods under Article 38 has also been linked to the principle of good faith in the performance of international sales contracts. [NETHERLANDS Arrondissementsrechtbank [District Court] Zwolle 5 March 1997, available online at <http://cisgw3.law.pace.edu/cases/970305n1.html>].

8. CLOUT case No. 45 [ICC Court of Arbitration, case No. 5713 of 1989, available online at <http://cisgw3.law.pace.edu/cases/895713i1.html>].

9. CLOUT case No. 230, [GERMANY Oberlandesgericht [Appellate Court] Karlsruhe 25 June 1997, available online at <http://cisgw3.law.pace.edu/cases/970625g1.html>] (see full text of the decision).

10. CLOUT case No. 284 [GERMANY Oberlandesgericht [Appellate Court] Köln 21 August 1997, available online at <http://cisgw3.law.pace.edu/cases/970821g1.html>] (see full text of the decision).

11. CLOUT case No. 81 [GERMANY Oberlandesgericht [Appellate Court] Düsseldorf 10 February 1994, available online at <http://cisgw3.law.pace.edu/cases/940210g1.html>] (see full text of the decision).

12. See the discussion paras. 11-14 infra. The time frame specified in article 38(1) is subject to articles 38(2) and 38(3), which state special rules applicable to particular situations. See paras. 16-17 infra. See also the discussion of latent defects in para. 15 infra.

13. See the discussion paras. 9-10 infra.

14. CLOUT case No. 94 [AUSTRIA Vienna Arbitration Award, case No. SCH-4318 of 15 June 1994; available at <http://cisgw3.law.pace.edu/cases/940615a4.html>] (agreement as to time and manner of examination); [AUSTRIA Obester Gerichtshof [Supreme Court] 27 August 1999, available online at <http://cisgw3.law.pace.edu/cases/990827a3.html>]; [NETHERLANDS Arrondissementsrechtbank [District Court] Zwolle 5 March 1997, available online at <http://cisgw3.law.pace.edu/cases/970305n1.html>] (agreement as to time).

15. CLOUT case No. 229 [GERMANY Bundesgerichtshof [Supreme Court] 4 December 1996, available online at <http://cisgw3.law.pace.edu/cases/961204g1.html>].

16. [FINLAND Court of First Instance [Appellate Court] Helsinki 29 January 1998, available online at <http://cisgw3.law.pace.edu/cases/980129f5.html>]; [AUSTRIA Obester Gerichtshof [Supreme Court] 27 August 1999, available online at <http://cisgw3.law.pace.edu/cases/990827a3.html>]; [NETHERLANDS Arrondissementsrechtbank [District Court] Zwolle 5 March 1997, available online at <http://cisgw3.law.pace.edu/cases/970305n1.html>]; CLOUT case No. 170 [GERMANY Landgericht [District Court] Trier 12 October 1995, available online at <http://cisgw3.law.pace.edu/cases/951012g1.html>] (see full text of the decision); CLOUT case No. 290 [GERMANY Oberlandesgericht [Appellate Court] Saarbrücken 3 June 1998, available online at <http://cisgw3.law.pace.edu/cases/980603g1.html>].

17. CLOUT case No. 292 [GERMANY Oberlandesgericht [Appellate Court] Saarbrücken 13 January 1993, available online at <http://cisgw3.law.pace.edu/cases/930113g1.html>].

18. CLOUT case No. 270 [GERMANY Bundesgerichtshof [Supreme Court] 25 November 1998, available online at <http://cisgw3.law.pace.edu/cases/981125g1.html>] (seller impliedly waived it rights because it had negotiated for a period of 15 months over the amount of damages for non-conforming goods without reserving the right to rely on articles 38 and 39, it had paid for an expert at buyer's request, and it had offered damages amounting to seven times the price of the goods); CLOUT case No. 235 [GERMANY Bundesgerichtshof [Supreme Court] 25 June 1997, available online at <http://cisgw3.law.pace.edu/cases/970625g2.html>] (seller waived rights by agreeing to give a credit for goods that the buyer showed were non-conforming). But see CLOUT case No. 94 [AUSTRIA Vienna Arbitration Award, case No. SCH-4318 of 15 June 1994; available at <http://cisgw3.law.pace.edu/cases/940615a4.html>] (seller had not waived its rights under articles 38 and 39 merely by failing to object immediately to the timeliness of buyer's notice; the seller's intention to waive must be clearly established); CLOUT case No. 251 [SWITZERLAND Handelsgericht [Commercial Court] Zürich 30 November 1998, available online at <http://cisgw3.law.pace.edu/cases/981130s1.html>] (the fact that seller, at the buyer's request, examined goods that the buyer claimed were non-conforming did not mean that seller waived its right to claim late notice of the non-conformity).

19. CLOUT case No. 94 [AUSTRIA Vienna Arbitration Award, case No. SCH-4318 of 15 June 1994; available at <http://cisgw3.law.pace.edu/cases/940615a4.html>] (seller was estopped from asserting its rights under arts. 38 and 39 because 1) it engaged in conduct that the buyer could justifiably interpret as indicating the seller accepted the validity of buyer's complaint of lack of conformity, and 2) buyer relied upon the indication that seller would not raise a defense based on arts. 38 or 39).

20. CLOUT case No. 343 [GERMANY Landgericht [District Court] Darmstadt 9 May 2000, available online at <http://cisgw3.law.pace.edu/cases/000509g1.html>]; CLOUT case No. 337 [GERMANY Landgericht [District Court] Saarbrücken 26 March 1996, available online at <http://cisgw3.law.pace.edu/cases/960326g1.html>]. But see CLOUT case No. 253 [SWITZERLAND Tribunale d'appello [Appellate Court] Lugano, Cantone del Ticino 15 January 1998, available online at <http://cisgw3.law.pace.edu/cases/980115s1.html>] (acceptance of pre-shipment certificate showing proper quality of cocoa beans, for purposes of drawing on letter of credit, did not deprive the buyer of right to examine goods after delivery and to contest their quality) (see full text of the decision).

21. CLOUT case No. 251 [SWITZERLAND Handelsgericht [Commercial Court] Zürich 30 November 1998, available online at <http://cisgw3.law.pace.edu/cases/981130s1.html>]; CLOUT case No. 97 [SWITZERLAND Handelsgericht [Commercial Court] Zürich 9 September 1993, available online at <http://cisgw3.law.pace.edu/cases/930909s1.html>]; CLOUT case No. 378 [ITALY Tribunale [District Court] Vigevano 12 July 2000, available online at <http://cisgw3.law.pace.edu/cases/000712i3.html>]; [AUSTRIA Obester Gerichtshof [Supreme Court] 27 August 1999, available online at <http://cisgw3.law.pace.edu/cases/990827a3.html>]. See also [GERMANY Landgericht [District Court] Duisburg 17 April 1996, available online at <http://cisgw3.law.pace.edu/cases/960417g1.html>] (holding in favor of seller because buyer had not produced evidence of timely examination of goods and timely notice of defect).

22. [AUSTRIA Obester Gerichtshof [Supreme Court] 27 August 1999, available online at <http://cisgw3.law.pace.edu/cases/990827a3.html>].

23. CLOUT case No. 232 [GERMANY Oberlandesgericht [Appellate Court] München 11 March 1998, available online at <http://cisgw3.law.pace.edu/cases/980311g1.html>] (because buyer was an experienced merchant, it should have conducted an expert examination and detected defects) (see full text of the decision); CLOUT case No. 4 [GERMANY Landgericht [District Court] Stuttgart 31 August 1989, available online at <http://cisgw3.law.pace.edu/cases/890831g1.html>] (in light of its expertise and the fact that it had found defects in the first delivery, buyer should have conducted a more thorough examination).

24. [NETHERLANDS Hoge Raad [Supreme Court] 20 February 1998, available online at <http://cisgw3.law.pace.edu/cases/980220n1.html>] (despite buyer's summer vacation, it should not have delayed in examining the goods when its customer complained in July); CLOUT case No. 285 [GERMANY Oberlandesgericht [Appellate Court] Koblenz 11 September 1998, available online at <http://cisgw3.law.pace.edu/cases/980911g1.html>] (fact that buyer's manufacturing facilities were still under construction and that buyer was disorganized should not be considered in determining whether the buyer conducted a proper examination).

25. CLOUT case No. 167 [GERMANY Oberlandesgericht [Appellate Court] München 8 February 1995, available online at <http://cisgw3.law.pace.edu/cases/950208g2.html>] (buyer's customer should have examined goods and discovered defect sooner than it did); CLOUT case No. 120 [GERMANY Oberlandesgericht [Appellate Court] Köln 22 February 1994, available online at <http://cisgw3.law.pace.edu/cases/940222g1.html>] (examination by buyer's customer, to whom the goods had been transshipped, was timely and proper) (see full text of the decision).

26. CLOUT case No. 359 [GERMANY Oberlandesgericht [Appellate Court] Koblenz 18 November 1999, available online at <http://cisgw3.law.pace.edu/cases/991118g1.html>] (third party to whom buyer transferred the goods (fiberglass fabrics) for processing would conduct the Article 38 examination; because buyer unjustifiably delayed transferring the goods to the third party, the examination was late).

27. CLOUT case No. 319 [GERMANY Bundesgerichtshof [Supreme Court] 3 November 1999, available online at <http://cisgw3.law.pace.edu/cases/991103g1.html>]; [AUSTRIA Obester Gerichtshof [Supreme Court] 27 August 1999, available online at <http://cisgw3.law.pace.edu/cases/990827a3.html>].

28. CLOUT case No. 167 [GERMANY Oberlandesgericht [Appellate Court] München 8 February 1995, available online at <http://cisgw3.law.pace.edu/cases/950208g2.html>].

29. [AUSTRIA Obester Gerichtshof [Supreme Court] 27 August 1999, available online at <http://cisgw3.law.pace.edu/cases/990827a3.html>]. For discussion of contractual provisions and usages relating to examination, see para. 6 supra.

30. [AUSTRIA Obester Gerichtshof [Supreme Court] 27 August 1999, available online at <http://cisgw3.law.pace.edu/cases/990827a3.html>]. See also [GERMANY Landgericht [District Court] Paderborn 25 June 1996, available online at <http://cisgw3.law.pace.edu/cases/960625g1.html>] (holding that the buyer did not need to conduct special chemical analyses of plastic compound).

31. CLOUT case No. 230 [GERMANY Oberlandesgericht [Appellate Court] Karlsruhe 25 June 1997, available online at <http://cisgw3.law.pace.edu/cases/970625g1.html>], reversed on other grounds by CLOUT case No. 270 [GERMANY Bundesgerichtshof [Supreme Court] 25 November 1998, available online at <http://cisgw3.law.pace.edu/cases/981125g1.html>].

32. CLOUT case No. 232 [GERMANY Oberlandesgericht [Appellate Court] München 11 March 1998, available online at <http://cisgw3.law.pace.edu/cases/980311g1.html>] (see full text of the decision); CLOUT case No. 4 [GERMANY Landgericht [District Court] Stuttgart 31 August 1989, available online at <http://cisgw3.law.pace.edu/cases/890831g1.html>] (see full text of the decision) (in view of his expertise, merchant buyer should have conducted "a more thorough and professional examination").

33. CLOUT case No. 230 [GERMANY Oberlandesgericht [Appellate Court] Karlsruhe 25 June 1997, available online at <http://cisgw3.law.pace.edu/cases/970625g1.html>] (requiring test use of goods for defects that would only become apparent upon use and asserting that random testing is always required), reversed on other grounds by CLOUT case No. 270 [GERMANY Bundesgerichtshof [Supreme Court] 25 November 1998, available online at <http://cisgw3.law.pace.edu/cases/981125g1.html>]; CLOUT case No. 232 [GERMANY Oberlandesgericht [Appellate Court] München 11 March 1998, available online at <http://cisgw3.law.pace.edu/cases/980311g1.html>] (see full text of the decision); CLOUT case No. 98 [NETHERLANDS Rechtbank [District Court] Roermond 19 December 1991, available online at <http://cisgw3.law.pace.edu/cases/911219n1.html>] (buyer required to thaw and examine a portion of shipment of frozen cheese) (see full text of the decision); [AUSTRIA Obester Gerichtshof [Supreme Court] 27 August 1999, available online at <http://cisgw3.law.pace.edu/cases/990827a3.html>]; CLOUT case No. 292 [GERMANY Oberlandesgericht [Appellate Court] Saarbrücken 13 January 1993, available online at <http://cisgw3.law.pace.edu/cases/930113g1.html>]; CLOUT case No. 285 [GERMANY Oberlandesgericht [Appellate Court] Koblenz 11 September 1998, available online at <http://cisgw3.law.pace.edu/cases/980911g1.html>] (buyer should have conducted a test by processing a sample of delivered plastic using its machinery) (see full text of the decision); CLOUT case No. 251 [SWITZERLAND Handelsgericht [Commercial Court] Zürich 30 November 1998, available online at <http://cisgw3.law.pace.edu/cases/981130s1.html>]; CLOUT case No. 81 [GERMANY Oberlandesgericht [Appellate Court] Düsseldorf 10 February 1994, available online at <http://cisgw3.law.pace.edu/cases/940210g1.html>]; CLOUT case No. 4 [GERMANY Landgericht [District Court] Stuttgart 31 August 1989, available online at <http://cisgw3.law.pace.edu/cases/890831g1.html>] (spot checking of delivery of shoes not sufficient where defects had been discovered in an earlier delivery).

34. CLOUT case No. 170 [GERMANY Landgericht [District Court] Trier 12 October 1995, available online at <http://cisgw3.law.pace.edu/cases/951012g1.html>] (taking samples of wine for examination the day after delivery was adequate; buyer did not have to examine for dilution with water because that is not generally done in the wine trade); CLOUT case No. 280 [GERMANY Oberlandesgericht [Appellate Court] Jena 26 May 1998, available online at <http://cisgw3.law.pace.edu/cases/980526g1.html>] (examination of random samples of live fish after delivery would have been sufficient); CLOUT case No. 192 SWITZERLAND Obergericht [Appellate Court] Luzern 8 January 1997, available online at <http://cisgw3.law.pace.edu/cases/970108s1.html>] (spot checking of wrapped medical devices would be adequate) (see full text of the decision). But see [NETHERLANDS Arrondissementsrechtbank [District Court] Zwolle 5 March 1997, available online at <http://cisgw3.law.pace.edu/cases/970305n1.html>] (examination of delivery of fish by sample would not be sufficient where the buyer had ready opportunity to examine entire shipment when it was processed and buyer had discovered lack of conformity in another shipment by the seller).

35. CLOUT case No. 98 [NETHERLANDS Rechtbank [District Court] Roermond 19 December 1991, available online at <http://cisgw3.law.pace.edu/cases/911219n1.html>] (fact that delivery consisted of frozen cheese did not excuse buyer from obligation to examine: buyer should have thawed and examined a portion of shipment); CLOUT case No. 292 [GERMANY Oberlandesgericht [Appellate Court] Saarbrücken 13 January 1993, available online at <http://cisgw3.law.pace.edu/cases/930113g1.html>] (fact that doors had been delivered wrapped in plastic sheets on pallets and buyer contemplated sending them on to its customers did not prevent buyer from examining goods: buyer should have unwrapped a sample of the doors); [BELGIUM Rechtbank [District Court] Kortrijk 6 October 1997, available online at <http://cisgw3.law.pace.edu/cases/971006b1.html>] (not reasonable to expect buyer of yarn to unroll the yarn in order to examine it before processing); CLOUT case No. 192 SWITZERLAND Obergericht [Appellate Court] Luzern 8 January 1997, available online at <http://cisgw3.law.pace.edu/cases/970108s1.html>] (buyer should have removed a sample of medical devices from shipping boxes and examined them through transparent wrapping) (see full text of the decision).

36. CLOUT case No. 319 [GERMANY Bundesgerichtshof [Supreme Court] 3 November 1999, available online at <http://cisgw3.law.pace.edu/cases/991103g1.html>]; [AUSTRIA Obester Gerichtshof [Supreme Court] 27 August 1999, available online at <http://cisgw3.law.pace.edu/cases/990827a3.html>]; [GERMANY Landgericht [District Court] Ellwangen 21 August 1995, available online at <http://cisgw3.law.pace.edu/cases/950821g2.html>].

37. [GERMANY Landgericht [District Court] Ellwangen 21 August 1995, available online at <http://cisgw3.law.pace.edu/cases/950821g2.html>]; CLOUT case No. 4 [GERMANY Landgericht [District Court] Stuttgart 31 August 1989, available online at <http://cisgw3.law.pace.edu/cases/890831g1.html>] (spot checking of delivery of shoes not sufficient where defects had been discovered in an earlier delivery).

38. CLOUT case No. 251 [SWITZERLAND Handelsgericht [Commercial Court] Zürich 30 November 1998, available online at <http://cisgw3.law.pace.edu/cases/981130s1.html>].

39. CLOUT case No. 230 [GERMANY Oberlandesgericht [Appellate Court] Karlsruhe 25 June 1997, available online at <http://cisgw3.law.pace.edu/cases/970625g1.html>] (see full text of the decision).

40. CLOUT case No. 284 [GERMANY Oberlandesgericht [Appellate Court] Köln 21 August 1997, available online at <http://cisgw3.law.pace.edu/cases/970821g1.html>] (immediate examination of chemicals required where the chemicals were going to be mixed with other substances soon after delivery); [NETHERLANDS Arrondissementsrechtbank [District Court] Zwolle 5 March 1997, available online at <http://cisgw3.law.pace.edu/cases/970305n1.html>] (examination was due quickly where shipment of fish was to be processed by the buyer, making it impossible to ascertain whether the fish were defective when sold); [NETHERLANDS Arrondissementsrechtsbank [Appellate Court] 's-Hertogenbosch 15 December 1997, available online at <http://cisgw3.law.pace.edu/cases/971215n1.html>] (examination of furs not conducted until they had already undergone processing was not timely).

41. E.g., CLOUT case No. 48 [GERMANY Oberlandesgericht [Appellate Court] Düsseldorf 8 January 1993, available online at <http://cisgw3.law.pace.edu/cases/930108g1.html>] (where the contract provided for delivery of cucumbers "free on refrigerated truck Turkish loading berth," the German buyer should have examined the goods when they were loaded in Turkey, instead of waiting until they had been forwarded to GERMANY); CLOUT case No. 81 [GERMANY Oberlandesgericht [Appellate Court] Düsseldorf 10 February 1994, available online at <http://cisgw3.law.pace.edu/cases/940210g1.html>] (asserting that the period for examining the goods under art. 38 and giving notice under art. 39 begins upon delivery to the buyer); CLOUT case No. 378 [ITALY Tribunale [District Court] Vigevano 12 July 2000, available online at <http://cisgw3.law.pace.edu/cases/000712i3.html>] (buyer's time for examining goods begins to run upon delivery or shortly thereafter, except where the defect can only be discovered when the goods are processed); CLOUT case No. 56 [SWITZERLAND Canton of Ticino [District Court] Locarno Campagna 27 April 1992, available online at <http://cisgw3.law.pace.edu/cases/920427s1.html>] (buyer must examine goods upon delivery); [NETHERLANDS Arrondissementsrechtbank [District Court] Zwolle 5 March 1997, available online at <http://cisgw3.law.pace.edu/cases/970305n1.html>] (examination due at the time of delivery or shortly after). The German Supreme Court has suggested that an article 38 examination of machinery should be conducted both at the time of delivery and at the time of installation; see CLOUT case No. 319 [GERMANY Bundesgerichtshof [Supreme Court] 3 November 1999, available online at <http://cisgw3.law.pace.edu/cases/991103g1.html>] (see full text of the decision). In a decision involving the sale and installation of sliding gates, one court held that the defects in the gates should have been discovered when installation of the gates was substantially complete, even though some minor work remained unperformed by the seller; see CLOUT case No. 262 [SWITZERLAND Gerichtskommission Oberrheintal Kanton St. Gallen 30 June 1995, available online at <http://cisgw3.law.pace.edu/cases/950630s1.html>]. The court did not actually cite article 38. Instead, it discussed the article 39(1) obligation to give notice of a lack of conformity within a reasonable time after the non-conformity was discovered or should have been discovered -- but the decision clearly implies that the time for the buyer's examination of the goods commenced even before seller had completed all its duties.

42. See CISG art. 69.

43. CLOUT case No. 319 [GERMANY Bundesgerichtshof [Supreme Court] 3 November 1999, available online at <http://cisgw3.law.pace.edu/cases/991103g1.html>] (see full text of the decision). See also CLOUT case No 378 [ITALY Tribunale [District Court] Vigevano 12 July 2000, available online at <http://cisgw3.law.pace.edu/cases/000712i3.html>] ("the time when the buyer is required to examine the goods under Art. 38(1) ... as a rule is upon delivery or shortly thereafter and only exceptionally may be later, for instance when the defect is discoverable only by processing the goods."); [NETHERLANDS Hoge Raad [Supreme Court] 20 February 1998, available online at <http://cisgw3.law.pace.edu/cases/980220n1.html>] (implying that the period for examining for latent defects in floor tiles began to run when buyer's customer complained, some seven months after seller delivered the tiles to buyer); [GERMANY Landgericht [District Court] Düsseldorf 23 June 1994, available online at <http://cisgw3.law.pace.edu/cases/940623g1.html>] (suggesting that period to examine engines for latent defects did not begin until buyer had installed and put goods into operation); [BELGIUM Rechtbank [District Court] Kortrijk 27 June 1997, available online at <http://cisgw3.law.pace.edu/cases/970627b1.html>] (time for examination of goods and notice of lack of conformity was extended for goods that had to be processed before defects could be discovered).

44. [ICC Court of Arbitration case No. 8247 of June 1996, available online at <http://cisgw3.law.pace.edu/cases/968247i1.html>] (buyer should have examined a large shipment of chemical compound on the day it arrived in the port of destination); [GERMANY Landgericht [District Court] Landshut 5 April 1995, available online at <http://cisgw3.law.pace.edu/cases/950405g1.html>] (asserting that buyer's obligation to examine the goods must be complied with immediately, even if the goods are not perishable); CLOUT case No. 56 [SWITZERLAND Canton of Ticino [District Court] Locarno Campagna 27 April 1992, available online at <http://cisgw3.law.pace.edu/cases/920427s1.html>] (because both buyer and seller were merchants, buyer should have examined the goods immediately upon delivery) (see full text of the decision); [NETHERLANDS Gerechtshof [Appellate Court] Arnhem 17 June 1997, available online at <http://cisgw3.law.pace.edu/cases/970617n1.html>] (buyer, who was a dealer in medical equipment, should have checked immediately after delivery whether documents necessary to satisfy regulations were present); CLOUT case No. 290 [GERMANY Oberlandesgericht [Appellate Court] Saarbrücken 3 June 1998, available online at <http://cisgw3.law.pace.edu/cases/980603g1.html>] (buyer must examine flowers on the day of delivery); CLOUT case No. 81 [GERMANY Oberlandesgericht [Appellate Court] Düsseldorf 10 February 1994, available online at <http://cisgw3.law.pace.edu/cases/940210g1.html>] (examination of shirts was required immediately following delivery).

45. CLOUT case No. 81 [GERMANY Oberlandesgericht [Appellate Court] Düsseldorf 10 February 1994, available online at <http://cisgw3.law.pace.edu/cases/940210g1.html>] (see full text of the decision); CLOUT case No. 251 [SWITZERLAND Handelsgericht [Commercial Court] Zürich 30 November 1998, available online at <http://cisgw3.law.pace.edu/cases/981130s1.html>].

46. [AUSTRIA Obester Gerichtshof [Supreme Court] 27 August 1999, available online at <http://cisgw3.law.pace.edu/cases/990827a3.html>]. The opinion continues by asserting that "the reasonable periods pursuant to Arts. 38 and 39 CISG are not long periods." For other statements on the flexible standard for the time for examination and/or the factors that should be considered in determining whether examination was timely, see CLOUT case No. 192 SWITZERLAND Obergericht [Appellate Court] Luzern 8 January 1997, available online at <http://cisgw3.law.pace.edu/cases/970108s1.html>] (indicating that a tribunal should consider "the nature of the goods, the quantity, the kind of wrapping and all other relevant circumstances") (see full text of the decision); [ITALY Tribunale [District Court] Cuneo 31 January 1996, available online at <http://cisgw3.law.pace.edu/cases/960131i3.html>] (asserting that scholars discussing Article 38 have indicated that the time frame is "elastic, leaving space to the interpreter and in the end to the judge, in terms of reasonableness, so that the elasticity will be evaluated in accordance with the practicalities of each case"); CLOUT case No. 81 [GERMANY Oberlandesgericht [Appellate Court] Düsseldorf 10 February 1994, available online at <http://cisgw3.law.pace.edu/cases/940210g1.html>] (in determining the time for examining the goods "the circumstances of the individual case and the reasonable possibilities of the contracting parties are crucial") (see full text of the decision); CLOUT case No. 230 [GERMANY Oberlandesgericht [Appellate Court] Karlsruhe 25 June 1997, available online at <http://cisgw3.law.pace.edu/cases/970625g1.html>] (asserting that, although the "median" time for an examination of durable goods is three-to-four days, "[t]his figure can be corrected upward or downward as the particular case requires") (see full text of the decision).

47. CLOUT case No. 290 [GERMANY Oberlandesgericht [Appellate Court] Saarbrücken 3 June 1998, available online at <http://cisgw3.law.pace.edu/cases/980603g1.html>] (flowers); CLOUT case No. 98 [NETHERLANDS Rechtbank [District Court] Roermond 19 December 1991, available online at <http://cisgw3.law.pace.edu/cases/911219n1.html>] (cheese); [NETHERLANDS Arrondissementsrechtbank [District Court] Zwolle 5 March 1997, available online at <http://cisgw3.law.pace.edu/cases/970305n1.html>] (fish).

48. CLOUT case No. 56 [SWITZERLAND Canton of Ticino [District Court] Locarno Campagna 27 April 1992, available online at <http://cisgw3.law.pace.edu/cases/920427s1.html>] (see full text of the decision); [NETHERLANDS Gerechtshof [Appellate Court] Arnhem 17 June 1997, available online at <http://cisgw3.law.pace.edu/cases/970617n1.html>].

49. CLOUT case No. 284 [GERMANY Oberlandesgericht [Appellate Court] Köln 21 August 1997, available online at <http://cisgw3.law.pace.edu/cases/970821g1.html>] (immediate examination of chemicals required where the chemicals were going to be mixed with other substances soon after delivery); [NETHERLANDS Arrondissementsrechtbank [District Court] Zwolle 5 March 1997, available online at <http://cisgw3.law.pace.edu/cases/970305n1.html>] (examination was due quickly where shipment of fish was to be processed by the buyer, making it impossible to ascertain whether the fish were defective when sold);  [NETHERLANDS Arrondissementsrechtsbank [Appellate Court] 's-Hertogenbosch 15 December 1997, available online at <http://cisgw3.law.pace.edu/cases/971215n1.html>] (examination of furs not conducted until they had already undergone processing was not timely).

50. [GERMANY Landgericht [District Court] Köln 11 November 1993, available online at <http://cisgw3.law.pace.edu/cases/931111g1.html>] reversed on other grounds by CLOUT case No. 122 [GERMANY Oberlandesgericht [Appellate Court] Köln 26 August 1994, available online at <http://cisgw3.law.pace.edu/cases/940826g1.html>] (see full text of the decision).

51. [FINLAND Court of First Instance [Appellate Court] Helsinki 30 June 1998, available online at <http://cisgw3.law.pace.edu/cases/980630f5.html>] (existence of pre-delivery tests showing acceptable vitamin content for skin care products excused buyer from testing for vitamin content immediately after delivery) with CLOUT case No. 280 [GERMANY Oberlandesgericht [Appellate Court] Jena 26 May 1998, available online at <http://cisgw3.law.pace.edu/cases/980526g1.html>] (buyer was not entitled to rely on pre-importation veterinarian's inspection certificate certifying health of live fish: buyer should have examined samples of fish after delivery).

52. CLOUT case No. 120 [GERMANY Oberlandesgericht [Appellate Court] Köln 22 February 1994, available online at <http://cisgw3.law.pace.edu/cases/940222g1.html>] (buyer's examination was timely, taking into account the fact that two days of the period were weekend days) (see full text of the decision); [GERMANY Amtsgericht [Lower Court] Riedlingen 21 October 1994, available online at <http://cisgw3.law.pace.edu/cases/941021g1.html>] (3 days for examining delivery of ham was sufficient even though Christmas holidays interfered with examination). But see [NETHERLANDS Hoge Raad [Supreme Court] 20 February 1998, available online at <http://cisgw3.law.pace.edu/cases/980220n1.html>] (despite buyer's summer vacation, it should not have delayed in examining the goods when its customer complained in July).

53. [GERMANY Landgericht [District Court] Düsseldorf 23 June 1994, available online at <http://cisgw3.law.pace.edu/cases/940623g1.html>] (where the goods consisted of two engines to be used for manufacturing hydraulic presses and welding machines, buyer had more than the usual time for an examination in order to determine conformity with technical specifications; because buyer delayed examining the goods until some four months after delivery of the second engine (16 months after delivery of first engine), however, the examination was untimely).

54. CLOUT case No. 315 [FRANCE Cour de Cassation [Supreme Court] 26 May 1999, available online at <http://cisgw3.law.pace.edu/cases/990526f1.html>] (time for examination took into account the difficulty of handling the metal sheets involved in the sale); [BELGIUM Rechtbank [District Court] Kortrijk 27 June 1997, available online at <http://cisgw3.law.pace.edu/cases/970627b1.html>] (period for examination was longer for goods that had to be processed before defects could be discovered (in this case, yarn to be woven)); [BELGIUM Rechtbank [District Court] Kortrijk 6 October 1997, available online at <http://cisgw3.law.pace.edu/cases/971006b1.html>] (buyer of crude yarn did not have to examine goods until they were processed; it would be unreasonable to expect buyer to unroll the yard in order to examine it before processing); [GERMANY Landgericht [District Court] Düsseldorf 23 June 1994, available online at <http://cisgw3.law.pace.edu/cases/940623g1.html>] (buyer had longer than normal period to examine engines to be used in its manufacturing process because buyer had to install and put goods into operation in order to discover defects). Compare CLOUT case No. 81 [GERMANY Oberlandesgericht [Appellate Court] Düsseldorf 10 February 1994, available online at <http://cisgw3.law.pace.edu/cases/940210g1.html>] (the time for examination depends on the circumstances of the particular case, in this case, involving a sale of shirts, "it was easily possible to examine the shirts -- at least by way of sampling – immediately after their delivery") (see full text of the decision). But see CLOUT case No. 98 [NETHERLANDS Rechtbank [District Court] Roermond 19 December 1991, available online at <http://cisgw3.law.pace.edu/cases/911219n1.html>] (fact that sale involved frozen cheese did not excuse buyer from prompt examination, buyer could thaw and examine a sample of delivery) (see full text of the decision).

55. [NETHERLANDS Arrondissementsrechtbank [District Court] Zwolle 5 March 1997, available online at <http://cisgw3.law.pace.edu/cases/970305n1.html>] (buyer should have examined fish before processing and selling them to its customers given that buyer had already discovered lack of conformity in a previous shipment by the seller); [BELGIUM Rechtbank [District Court] Kortrijk 27 June 1997, available online at <http://cisgw3.law.pace.edu/cases/970627b1.html>] ("defects in prior shipments a factor to consider in determining timeliness of examination").

56. [GERMANY Amtsgericht [Lower Court] Riedlingen 21 October 1994, available online at <http://cisgw3.law.pace.edu/cases/941021g1.html>] (defects in under-seasoned ham were easily discernible, and thus buyer should have examined goods and discovered defects quickly); [GERMANY Landgericht [District Court] Köln 11 November 1993, available online at <http://cisgw3.law.pace.edu/cases/931111g1.html>], reversed on other grounds in CLOUT case No. 122 [GERMANY Oberlandesgericht [Appellate Court] Köln 26 August 1994, available online at <http://cisgw3.law.pace.edu/cases/940826g1.html>] (mistake in business report was easily discoverable, and thus examination was required to be quick) (see full text of the decision); CLOUT case No. 359 [GERMANY Oberlandesgericht [Appellate Court] Koblenz 18 November 1999, available online at <http://cisgw3.law.pace.edu/cases/991118g1.html>] (where defects are easy to discover, the time for examination should not exceed one week); CLOUT case No. 284 [GERMANY Oberlandesgericht [Appellate Court] Köln 21 August 1997, available online at <http://cisgw3.law.pace.edu/cases/970821g1.html>] (where chemicals were to be mixed with other substances and defects were easily discernible, immediate examination of the goods was required). See also [ITALY Tribunale [District Court] Cuneo 31 January 1996, available online at <http://cisgw3.law.pace.edu/cases/960131i3.html>] (time period for notice (and, perhaps, examination) is reduced if defects are easily recognizable).

57. CLOUT case No. 285 [GERMANY Oberlandesgericht [Appellate Court] Koblenz 11 September 1998, available online at <http://cisgw3.law.pace.edu/cases/980911g1.html>] ("Generally speaking, examination of the goods by the buyer should occur within a week after delivery"); CLOUT case No. 284 [GERMANY Oberlandesgericht [Appellate Court] Köln 21 August 1997, available online at <http://cisgw3.law.pace.edu/cases/970821g1.html>] (where chemicals were to be mixed with other substances and defects were easily discernible, immediate examination of the goods was required); CLOUT case No. 359 [GERMANY Oberlandesgericht [Appellate Court] Koblenz 18 November 1999, available online at <http://cisgw3.law.pace.edu/cases/991118g1.html>] ("where defects are easy to discover ... the examination period should not exceed a period of one week"); [GERMANY Landgericht [District Court] Mönchengladbach 22 May 1992, available online at <http://cisgw3.law.pace.edu/cases/920522g1.html>] (generally allowing one week for examination of goods). Compare [AUSTRIA Obester Gerichtshof [Supreme Court] 27 August 1999, available online at <http://cisgw3.law.pace.edu/cases/990827a3.html>] (unless special circumstances suggest otherwise, buyer has a total of approximately 14 days to examine and give notice of defects).

58. CLOUT case No. 230 [GERMANY Oberlandesgericht [Appellate Court] Karlsruhe 25 June 1997, available online at <http://cisgw3.law.pace.edu/cases/970625g1.html>]. Compare [GERMANY Landgericht [District Court] Düsseldorf 23 June 1994, available online at <http://cisgw3.law.pace.edu/cases/940623g1.html>] (a few working days).

59. CLOUT case No. 284 [GERMANY Oberlandesgericht [Appellate Court] Köln 21 August 1997, available online at <http://cisgw3.law.pace.edu/cases/970821g1.html>].

60. CLOUT case No. 315 [FRANCE Cour de Cassation [Supreme Court] 26 May 1999, available online at <http://cisgw3.law.pace.edu/cases/990526f1.html>] (see full text of the decision).

61. [CHINA CIETAC Arbitration Award case of 23 February 1995; available at <http://cisgw3.law.pace.edu/cases/950223c1.html>] .

62. CLOUT case No. 46 [GERMANY Landgericht [District Court] Aachen 3 April 1990, available online at <http://cisgw3.law.pace.edu/cases/00403g1.html>] (see full text of the decision).

63. CLOUT case No. 45 [ICC Court of Arbitration, case No. 5713 of 1989, available online at <http://cisgw3.law.pace.edu/cases/895713i1.html>] (see full text of the decision).

64. [GERMANY Landgericht [District Court] Düsseldorf 23 June 1994, available online at <http://cisgw3.law.pace.edu/cases/940623g1.html>].

65. CLOUT case No. 192 SWITZERLAND Obergericht [Appellate Court] Luzern 8 January 1997, available online at <http://cisgw3.law.pace.edu/cases/970108s1.html>] (see full text of the decision).

66. CLOUT case No. 251 [SWITZERLAND Handelsgericht [Commercial Court] Zürich 30 November 1998, available online at <http://cisgw3.law.pace.edu/cases/981130s1.html>].

67. CLOUT case No. 285 [GERMANY Oberlandesgericht [Appellate Court] Koblenz 11 September 1998, available online at <http://cisgw3.law.pace.edu/cases/980911g1.html>]; [GERMANY Landgericht [District Court] Mönchengladbach 22 May 1992, available online at <http://cisgw3.law.pace.edu/cases/920522g1.html>]; CLOUT case No. 359 [GERMANY Oberlandesgericht [Appellate Court] Koblenz 18 November 1999, available online at <http://cisgw3.law.pace.edu/cases/991118g1.html>].

68. [GERMANY Landgericht [District Court] Köln 11 November 1993, available online at <http://cisgw3.law.pace.edu/cases/931111g1.html>].

69. CLOUT case No. 230 [GERMANY Oberlandesgericht [Appellate Court] Karlsruhe 25 June 1997, available online at <http://cisgw3.law.pace.edu/cases/970625g1.html>].

70. [GERMANY Amtsgericht [Lower Court] Riedlingen 21 October 1994, available online at <http://cisgw3.law.pace.edu/cases/941021g1.html>]; [GERMANY Landgericht [District Court] Landshut 5 April 1995, available online at <http://cisgw3.law.pace.edu/cases/950405g1.html>] (examination for proper quantity of sports clothing).

71. [ICC Court of Arbitration case No. 8247 of June 1996, available online at <http://cisgw3.law.pace.edu/cases/968247i1.html>].

72. CLOUT case No. 81 [GERMANY Oberlandesgericht [Appellate Court] Düsseldorf 10 February 1994, available online at <http://cisgw3.law.pace.edu/cases/940210g1.html>].

73. For the distinction between latent and obvious (patent) defects, see CLOUT case No. 4 [GERMANY Landgericht [District Court] Stuttgart 31 August 1989, available online at <http://cisgw3.law.pace.edu/cases/890831g1.html>]; CLOUT case No. 378 [ITALY Tribunale [District Court] Vigevano 12 July 2000, available online at <http://cisgw3.law.pace.edu/cases/000712i3.html>]; CLOUT case No. 284 [GERMANY Oberlandesgericht [Appellate Court] Köln 21 August 1997, available online at <http://cisgw3.law.pace.edu/cases/970821g1.html>] (see full text of the decision); CLOUT case No. 230 [GERMANY Oberlandesgericht [Appellate Court] Karlsruhe 25 June 1997, available online at <http://cisgw3.law.pace.edu/cases/970625g1.html>].

74. See footnote 43 supra and accompanying text discussing CLOUT case No. 319 [GERMANY Bundesgerichtshof [Supreme Court] 3 November 1999, available online at <http://cisgw3.law.pace.edu/cases/991103g1.html>] (period for examination to discover latent defects in grinding device did not begin until device broke down approximately three weeks after delivery).

75. See footnote 41 supra and accompanying text; footnote 56 supra and accompanying text.

76. Under this approach, the question of the timely discovery of such latent defects is an issue governed not by article 38 but by the requirement in article 39(1) that the buyer notify the seller of a lack of conformity "within a reasonable time after [the buyer] discovered or ought to have discovered it." In other words, even though this approach posits that a latent defect might not be reasonably discoverable during the examination required by article 38, the buyer still is charged with taking reasonable action to discover such defects under article 39. For further discussion related to this issue, see the discussion infra of article 39.

77. [GERMANY Landgericht [District Court] Paderborn 25 June 1996, available online at <http://cisgw3.law.pace.edu/cases/960625g1.html>] (see full text of the decision). For other decisions that may take a similar approach to the relationship between the article 38 examination and discovery of latent defects, see CLOUT case No. 280 [GERMANY Oberlandesgericht [Appellate Court] Jena 26 May 1998, available online at <http://cisgw3.law.pace.edu/cases/980526g1.html>] (failure to examine goods as provided in art. 38 would be irrelevant if the buyer could show that an expert examination would not have detected the defect); [AUSTRIA Obester Gerichtshof [Supreme Court] 27 August 1999, available online at <http://cisgw3.law.pace.edu/cases/990827a3.html>] (suggesting that, if buyer had conducted a thorough and professional post-delivery examination of the goods that did not reveal a latent lack of conformity, buyer would have satisfied its obligations under art. 38); [GERMANY Landgericht [District Court] Ellwangen 21 August 1995, available online at <http://cisgw3.law.pace.edu/cases/950821g2.html>] (suggesting that buyer satisfied its art. 38 obligations by examining the goods without a chemical analysis that, when conducted later, revealed a latent defect).

78. See footnote 41 supra and accompanying text.

79. See [GERMANY Landgericht [District Court] Landshut 5 April 1995, available online at <http://cisgw3.law.pace.edu/cases/950405g1.html>] (stating that the art. 38 examination must usually be conducted at the place for the performance of the obligation to deliver under art. 31).

80. This will be true, for example, if the parties agree to any of the various trade terms under which the buyer bears the risk of loss while the goods are in transit -- e.g., Free Carrier (FCA) named point under the Incoterms. The same result would occur in transactions involving carriage of the goods if the parties have not agreed upon the place of delivery: in such cases, article 31(a) provides that delivery occurs when the seller hands the goods over to the first carrier for transmission to the buyer.

81. [FINLAND Court of First Instance [Appellate Court] Helsinki 29 January 1998, available online at <http://cisgw3.law.pace.edu/cases/980129f5.html>]. For other cases applying article 38(2), see CLOUT case No. 123 [GERMANY Bundesgerichtshof [Supreme Court] 8 March 1995, available online at <http://cisgw3.law.pace.edu/cases/950308g3.html>] (see full text of the decision); [ICC Court of Arbitration case No. 8247 of June 1996, available online at <http://cisgw3.law.pace.edu/cases/968247i1.html>]; [ITALY Tribunale [District Court] Cuneo 31 January 1996, available online at <http://cisgw3.law.pace.edu/cases/960131i3.html>]; [GERMANY Landgericht [District Court] Landshut 5 April 1995, available online at <http://cisgw3.law.pace.edu/cases/950405g1.html>]; [CHINA CIETAC Arbitration Award case of 23 February 1995; available at <http://cisgw3.law.pace.edu/cases/950223c1.html>] (under a CIF contract, where delivery to the buyer occurs when the goods pass the ship's rail at the port for loading, the buyer's time for examination did not start until the goods arrived at the port of destination).

82. Not only does article 6 of the CISG provide that the parties may "derogate from or vary the effect of any of [the Convention's] provisions," but article 38(2) itself is phrased in permissive ("examination may be deferred") as opposed to mandatory fashion.

83. CLOUT case No. 48 [GERMANY Oberlandesgericht [Appellate Court] Düsseldorf 8 January 1993, available online at <http://cisgw3.law.pace.edu/cases/930108g1.html>] (see full text of the decision).

84. Unless article 38(3) applies, the time for the buyer to examine the goods usually commences when the goods are delivered or, in the case of goods transported by a third-party carrier, when the goods arrive at their destination. See para. 18 supra.

85. According to a statement of a delegate from the NETHERLANDS at the 1980 Vienna Diplomatic Conference at which the final text of the CISG was adopted, the distinction between "redirected in transit" and "redispatched" is as follows: "'Redispatched' implied that the goods had reached their first destination and had subsequently been sent on. 'Redirected in transit' implied that they had never reached their first destination." Summary Records of the United Nations Conference on Contracts for the International Sale of Goods, 16th meeting of Committee 1, A/CONF.97/C.1/SR.16, reproduced in  Official Records of the United Nations Conference on Contracts for the International Sale of Goods, Vienna, 10 March - 11 April 1980, at. p. 320, para. 18 [available online at <http://cisgw3.law.pace.edu/cisg/firstcommittee/Meeting16.html>]; Note to Secretariat Commentary on Article 38 (Article 36 of the draft Convention) available online at <http://cisgw3.law.pace.edu/cisg/text/secomm/secomm-38.html>.

86. [GERMANY Oberlandesgericht [Appellate Court] Köln 22 February 1994, available online at <http://cisgw3.law.pace.edu/cases/940222g1.html>].

87. CLOUT case No. 292 [GERMANY Oberlandesgericht [Appellate Court] Saarbrücken 13 January 1993, available online at <http://cisgw3.law.pace.edu/cases/930113g1.html>].

88. CLOUT case No. 192 [SWITZERLAND Obergericht [Appellate Court] Luzern 8 January 1997, available online at <http://cisgw3.law.pace.edu/cases/970108s1.html>] (see full text of the decision).


ANALYSIS OF CISG CASE LAW

Reprinted by special permission of Northwestern University School of Law. 34 Northwestern Journal of International Law and Business (Winter 2004) 299-440.[*]

excerpt from

The Interpretive Turn in International Sales Law:
An Analysis of Fifteen Years of CISG Jurisprudence

Larry A. DiMatteo, Lucien Dhooge, Stephanie Greene,
Virginia Maurer and Marisa Pagnattaro

[...]

A. The Duty to Inspect, Give Notice, and Preserve Goods

The CISG requires buyers to inspect goods, and provide adequate and timely notice, with respect to any defects in the seller's performance and preserve the goods in the event the buyer elects to reject the seller's tender. These obligations are set forth in Articles 38, 39, 44 and 86. The initial obligation of all buyers is the duty of inspection. Article 38 provides that the buyer "must examine the goods, or cause them to be examined, within as short a period as is practicable in the circumstances." [320] Special rules apply in the event the contract involves the carriage of goods or their redirection in transit. Examination may be deferred until after the goods arrive at their destination in the event the contract involves carriage.[321] By contrast, examination of the goods may be deferred until after their arrival at their ultimate destination in the event they have been redirected in transit or re-dispatched by the buyer.[322] However, the inspection may be deferred under these circumstances only if the redirection or re-dispatch occurred without a "reasonable opportunity" for examination.[323] In addition, the buyer must demonstrate that the seller knew or should have known of the possibility of such redirection or re-dispatch at the time of the conclusion of the contract.[324]

The failure to comply with the provisions of Article 38 deprives the buyer of the right to rely upon the defense of non-conformity of the goods in a future dispute with the seller. The buyer also loses this defense in the event its notice does not specify "the nature of the lack of conformity within a reasonable time."[325] The time for providing this notice begins to run from [page 358] the time of the actual discovery of the non-conformity or from when the buyer should have discovered it. [326] In any event, the buyer loses the right to rely upon non-conformity of the tendered goods if it does not give notice to the seller "at the latest within a period of two years from the date on which the goods were actually handed over to the buyer."[327] This two-year window for notice is inapplicable to the extent that it is inconsistent with any guarantees set forth in the sales contract. [328] Furthermore, the buyer retains the right to reduce the price payable to the seller or claim damages, except for loss of profits, if it has a "reasonable excuse" for its failure to provide the required notice.[329]

The buyer's ability to reject non-conforming goods is accompanied by a corresponding duty to preserve such goods for the benefit of the seller. Article 86 provides that the buyer must take steps to preserve the goods as are "reasonable in the circumstances."[330] The buyer is entitled to reimbursement from the seller of reasonable expenses incurred in preservation of the goods and is entitled to retain the goods until its receipt of such payment.[331] In the event the goods have been placed at its disposal by the seller and are subsequently rejected, the buyer must take possession on the seller's behalf.[332] The buyer's obligation in this regard is contingent upon its ability to take possession of the goods without payment of the price and without "unreasonable inconvenience or ... expense."[333] Buyer's duties under Article 86 are inapplicable in the event the seller or a person authorized to take control of the goods on its behalf is present at the destination at the time of the arrival of the goods.[334]

1. Inspection Duties and Rights: Article 38

National courts interpreting the CISG's provisions relating to inspection, notice and preservation of goods have concentrated on three issues raised by Article 38. These issues are the amount of time the buyer has to conduct an inspection of the goods, what constitutes an adequate inspection, and the enforceability of contractual provisions modifying the buyer's inspection rights.

The initial issue addressed by national courts with respect to Article 38 is the time within which the buyer must inspect goods purchased from their [page 359] vendors. Article 38(1) provides that this inspection must occur within "as short a period as practicable in the circumstances." [335] This language does not establish a definite time within which such inspection must occur in order to permit the buyer to reject the goods on the basis of non-conformity. Rather, it appears that the time within which such inspection must occur is flexible depending upon the individual circumstances in each case. Indeed, commentators have noted that "[t]his language seems to acknowledge that the shortest applicable period to inspect complex machinery received by a buyer in an isolated town of a developing country may be different from the shortest applicable period to inspect other types of goods by a sophisticated buyer in a big industrial city."[336]

There is some acknowledgement of the flexibility of this standard in the opinions of national courts. A U.S. court noted that it was required to take into account the uniqueness of the goods involved, the method of delivery (including installments) and the familiarity of the buyer's employees with the goods.[337] Courts adopting this approach have noted that buyers may produce proof demonstrating why under the specific circumstances inspection could not occur in a diligent fashion. [338] Although not expressly stated in the CISG, buyers seeking such additional time bear the burden of proof with respect to the reasons justifying such additional time.[339]

However, this interpretive "flexibility" has not been universally accepted. Rather, the majority of cases have rejected this approach in favor of less flexibility in the inspection requirement.[340] These courts have adopted two different approaches to determine whether the buyer's inspection was within as short a time period as practicable. The first approach requires the buyer to prove a special burden existed prior to the request for additional time for inspection. These courts have refused to grant time extensions for inspection of goods, based upon the absence of a burden upon the buyer. Courts adopting this approach have focused upon the ease with which the inspection could have occurred at the time of [page 360] delivery [341] or the obviousness of the alleged non-conformity, such as readily apparent defects and disparities in color and weight.[342] The uniqueness of the goods, their complicated nature, their delivery in installments and the need for training of employees may also place unique burdens on the buyer justifying additional time within which to perform inspections.[343] Moreover, the ultimate disposition of the goods after delivery also may be relevant to this inquiry. The two states that have placed primary importance on this factor have not set specific times for the occurrence of inspections, although they require that these inspections occur prior to the processing, transformation or incorporation of goods into the manufacturing process. [344]

By contrast, other courts have established specific deadlines for the completion of the buyer's inspection, specifically supporting a deadline for inspection with respect to perishable goods. In this regard, national courts have required the inspection occur immediately upon delivery of the goods to the buyer.[345] This is an understandable result given the consequences of delays in inspections with respect to such goods. However, several national courts have extended this inspection upon delivery requirement to nonperishable goods as well.[346] Courts in two states have adopted a more lenient approach by granting buyers one week from the time of delivery to complete their inspection.[347] [page 361]

National courts have also addressed the time within which the buyer's inspection must occur in the event of redirection or reshipment of the goods to the ultimate consumer. Article 38(3) appears to grant buyers some leeway in the event inspection is rendered impractical by surrounding circumstances, such as the necessity of significant unpacking prior to inspection. However, Article 38 does not define the circumstances under which this deferral is available or the time within which the inspection must be completed upon the arrival of the goods at their final destination.

There is less case law with respect to the timeliness of inspection in the event of transshipment than inspection pursuant to Article 38(1). Nevertheless, existing jurisprudence has exhibited a common theme of strict construction. Strict construction of Article 38(3) is evident in three separate holdings. First, inspection may be deferred pursuant to Article 38(3) only when the buyer is a mere intermediary or when the goods are delivered directly to end-users.[348] By contrast, inspection may not be deferred when the buyer takes possession of the goods without advance knowledge at to what extent, when and to whom the goods will ultimately be resold.[349] Second, if the buyer serves as a mere intermediary or direct delivery occurs, inspection may be deferred only if the buyer can demonstrate the absence of a "real opportunity" to examine all of the goods.[350] By contrast, if only a portion of the goods is retransmitted to the ultimate end user, the buyer is still under an obligation to inspect those goods remaining in its possession.[351] The failure to conduct a timely inspection prevents the buyer from rejecting the goods for non-conformity pursuant to Article 38. The buyer may also lose its ability to defer inspection pursuant to Article 38(3) if the goods were reprocessed or repackaged prior to their shipment to the end user.[352] Finally, any delays by the end user in inspecting the goods or transmitting notice of non-conformity are attributable to the buyer and may prevent the utilization of Article 38 as a basis for rejection.[353]

A separate issue addressed by national courts is what constitutes a reasonable inspection. The buyer is not required to make an examination that would reveal every possible defect. Rather, the buyer's inspection must be reasonable under the circumstances and is dependent upon the provisions of the contract in question, usage of the trade, the type of goods, and the technical facilities and expertise of the parties. [page 362]

Four general rules emerge from an examination of the opinions with respect to the thoroughness of the inspection required by Article 38. The buyer has an affirmative obligation to examine the packaging to discover any non-conformity readily apparent from such inspection, including labeling, weight and date of production.[354] Failure to discover any such non-conformity will prevent the buyer from rejecting the goods pursuant to Article 38. Next, buyers are required to carefully examine the goods themselves and discover readily apparent non-conformities. The opinions have not defined what constitutes an apparent non-conformity. However, national courts have held discrepancies in color, weight and consistency to be apparent non-conformities.[355] Additionally, buyers are excused from a complete examination of the goods in the event the quantity or nature of the product renders comprehensive inspection unreasonable. However, buyers are not completely excused from conducting inspections under such circumstances. Rather, buyers are required to sample or spot check the product upon delivery and discover and report any apparent non-conformities.[356] Buyers may not rely upon sampling or spot checking in the event previous shipments from the seller, if any, were non-conforming.[357] Buyers are not required to discover non-conformities that have been actively concealed by their sellers.[358] In any event, the burden of proving reasonable inspection rests with the buyer.[359]

The final issue addressed by national courts is the enforceability of contractual provisions abrogating the inspection duties of Article 38. Commentators have noted that the provisions of Article 38 are optional, and the parties are free to contract upon different terms, including provisions for the inspection of goods and notice. Several national courts have addressed this issue in their opinions. The intent of the parties to derogate from the provisions of Article 38 must be clearly stated in the parties' agreement. In this regard, the party seeking enforcement of such a provision must demonstrate that both parties were aware of the potential applicability of the CISG and expressly intended to exclude it from their agreement.[360] [page 363] Language purporting to derogate from Article 38 must clearly provide for exclusion of its provisions and cannot be implied from related terms.[361]

Upon a finding of an express intent to derogate from Article 38, the parties may elect to set specific time periods for the performance of inspections or to rely upon time periods established by usage and custom of the trade. If the parties elect to set specific dates in their contract, notices must be sent within these time periods in order to be valid.[362] Periods of time upheld in the opinions of national courts range from eight to fourteen days of delivery.[363] The time periods for inspection and the provision of notice may also be based upon usage and custom of the trade. [364] However, parties relying upon such provisions bear the burden of proof with respect the custom or usage, its applicability to the trade at issue, and the intent of the parties to incorporate it in their agreement.[365] In addition, parties cannot rely upon usage and custom if the agreement establishes specific periods for the performance of inspections and provision of notice of non-conformity.[366] [page 364]

[...]


FOOTNOTES

* For a subsequent text on this subject by these authors, see Larry A. DiMatteo, Lucien Dhooge, Stephanie Greene, Virginia Maurer & Marisa Pagnattaro, "International Sales Law: A Critical Analysis of CISG Jurisprudence", Cambridge University Press (2005) 241 p.

[...]

320. CISG, supra note 4, at art. 38(1).

321. Id. at art. 38(2).

322. Id. at art. 38(3).

323. Id.

324. Id.

325. Id. at art. 39(1).

326. Id.

327. Id. at art. 39(2).

328. Id.

329. Id. at art. 44.

330. Id. at art. 86(1).

331. Id.

332. Id. at art. 86(2).

333. Id.

334. Id.

335. Id. at art. 38(1).

336. Garro, Reconciliation, supra note 114.

337. See Shuttle Packaging Sys. v. Jacob Tsonakis, INA, S.A., 1:01- CIV-691, 2001 U.S. Dist. LEXIS 21630, at *22 (W.D. Mich. Dec. 17, 2001).

338. See, e.g., OLG Koblenz 14 S 358/94, Jul. 7, 1995 (F.R.G.), available at <http://cisgw3.law.pace.edu/cases/950707g1.html>.

339. See Handelsgericht [Commercial Court] [HG] Zürich, SZ 930634/O, Nov. 30, 1998 (Switz.), available at <http://cisgw3.law.pace.edu/cases/981130s1.html>.

340. See OLG Düsseldorf Recht der Internationalen Wirtschaft [RIW] 1050-51, Feb 10, 1994 (F.R.G.), available at <http://cisgw3.law.pace.edu/cases/940210g1.html> [English translation by Walter, Conston, Alexander & Green, P.C., editors: William M. Barron, Esq. & Birgit Kurtz, Esq.]; Rheinland Versicherungen v. Atlarex S.r.l., Trib. Di Vigevano, 12 Jul. 2000 n.405, available at <http://cisgw3.law.pace.edu/cases/000712i3.html> [English translation by Francesco G. Mazzotta].

341. See, e.g., Handelsagentur v. DAT-SCHAUB A/S, Mar. and Commercial Ct. of Copenhagen, n. H-0126-98, Jan. 31, 2002 (Den.), available at [<http://cisgw3.law.pace.edu/cases/020131d1.html>, translation by CISG-Denmark website]; RIW 1050-51, Feb 10, 1994, supra note 341.

342. See SZ 930634/O, Nov. 30, 1998, supra note 339.

343. See, e.g., Shuttle Packaging Sys., 2001 U.S. Dist. LEXIS 21630, at *22.

344. See Kortrjik [District Court] [Kh] A.R 651/97, Jun. 27, 1997 (Belg.), available at <http://cisgw3.law.pace.edu/cases/970627b1.html>; Nurka Furs v. Nertsenfokkerij De Ruiter, Hof Hertogenbosch [District Court of Appeal] [HOF], NIPR 201, Dec. 15, 1997 (Neth.), available at <http://cisgw3.law.pace.edu/cases/971215n1.html>; CME Coop. Mar. Etaploise v. Bos Fishproducts, Rb. Zwolle, HA ZA 95-640, Mar. 5, 1997, (Neth.), available at <http://cisgw3.law.pace.edu/cases/970305n1.html>.

345. See, e.g., OLG Saarbrücken 1 U 703/97-143, June 3,1998 (F.R.G.), available at <http://cisgw3.law.pace.edu/cases/980603g1.html> [English translation by Todd Fox, translation edited by Dr Loukas Mistelis] (flowers); OLG Düsseldorf 17 U 82/92, Jan. 8, 1993 (F.R.G.), available at <http://cisgw3.law.pace.edu/cases/930108g1.html> [English translation by Walter, Conston, Alexander & Green, P.C., editors: William M. Barron, Esq. & Birgit Kurtz, Esq.] (cucumbers); CME Coop. Mar. Etaploise/Bos Fishproducts, Rb. Zwolle, Mar. 5, 1997, NIPR 230 (Neth.), available at <http://cisgw3.law.pace.edu/cases/970305n1.html>, (fish); Fallini Stefano & Co./Foodik, Rb. Roermond, Dec. 19, 1991, NIPR 394 (Neth.), available at <http://cisgw3.law.pace.edu/cases/911219n1.html> (cheese).

346. See, e.g., OLG Karlsruhe 1 U 280/96, June 25,1997 (F.R.G.), available at <http://cisgw3.law.pace.edu/cases/970625g1.html> [English translation by Danielle Alexis Thompson]; OLG München 7 U 3758/94, Feb. 8, 1995 (F.R.G.), available at <http://cisgw3.law.pace.edu/cases/950208g2.html>; LG Aachen 41 O 198/89, Apr. 3, 1990 (F.R.G.), available at <http://cisgw3.law.pace.edu/cases/900403g1.html>.

347. See, e.g., OLG Koblenz 14 S 358/94, Jul. 7, 1995, supra note 338; Handelsgericht Zürich, HG 930634/O, Nov. 30, 1998, supra note 339.

348. See OLG Saarbrücken 1 U 69/92, Jan. 13, 1993, supra note 299.

349. Id.

350. Id.

351. Id.

352. See OLG Karlsruhe, 1 U 280/96 June 25, 1997, available at <http://cisgw3.law.pace.edu/cases/970625g1.html> [English translation by Danielle Alexis Thompson].

353. OLG München 7 U 3758/94 Feb. 8, 1995, supra note 346.

354. Id.

355. See also, HG Zürich, HG 930634/O, Nov. 30, 1998, supra note 339.

356. See OLG Koblenz 14 S 358/94, Jul. 7, 1995, supra note 338 (chemicals).

357. See LG Stuttgart 3 KfH O 97/89, Aug. 31, 1989 (F.R.G.), available at <http://cisgw3.law.pace.edu/cases/890831g1.html> [English translation by Jutta Surovic] (non-conformity in initial shipment of shoes required buyer to conduct complete examination of second shipment of shoes from the same seller).

358. See LG Trier 7 HO 78/95, Oct. 12, 1995 (F.R.G.), available at <http://cisgw3.law.pace.edu/cases/951012g1.html> [English translation by Ruth M. Janal, translation edited by Camilla Baasch Andersen] (intentional adulteration by Italian seller of wine sold to German buyer and subsequent concealment prevented seller from alleging that buyer failed to conduct adequate inspection of the product upon delivery).

359. See, e.g., OG, 11 95 123/357, Jan. 8, 1997, supra note 93.

360. See, e.g., id.

361. See, e.g., Int'l Chamber Of Commerce, Pub. No. 7565/1994, 6 ICC Int'l Ct. of Arb. Bull. 64-66 (Nov. 1995) (refusing to imply a derogation from Article 38 on the basis of a related provision fixing a thirty day time limit to file a request for arbitration upon the failure of negotiation).

362. See, e.g., LG Hannover 22 O 107/93, Dec. 1, 1993 (F.R.G.), available at <http://cisgw3.law.pace.edu/cases/931201g1.html>.

363. See, e.g., OLG Saarbrücken 1 U 69/92, Jan. 13, 1993, supra note 299 (eight day period for the provision of notice of non-conformity in the purchase of doors); LG Hannover 22 O 107/93, Dec. 1, 1993, supra note 365 (ten day period for the provision of notice of non-conformity in the purchase of shoes).

364. See, e.g., OLG Saarbrücken 1 U 69/92, Jan. 13, 1993, supra note 299; CME Coop. Mar. Etaploise v. Bos Fishproducts, Rb. Zwolle, Mar. 5, 1997, supra note 345.

365. See, e.g., OLG Saarbrücken 1 U 69/92, Jan. 13, 1993, supra note 299.

366. Id.

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