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Article 39. Requirement to Notify Seller of Lack of Conformity: Sanctions

TEXT OF ARTICLE 39

(1) The buyer loses the right to rely on a lack of conformity of the goods if he does not give notice to the seller specifying the nature of the lack of conformity within a reasonable time after he has discovered it or ought to have discovered it.

(2) In any event, the buyer loses the right to rely on a lack of conformity of the goods if he does not give the seller notice thereof at the latest within a period of two years from the date on which the goods were actually handed over to the buyer, unless this time-limit is inconsistent with a contractual period of guarantee.


OUTLINE OF ISSUES

Reproduced with permission of UNCITRAL

39A Buyer must notify seller within reasonable time (art. 39(1))

39A1 Specification of nature of non-conformity

39A11 Degree of specificity required

39A2 Within reasonable time (on dispatch of notice see art. 27)

39A3 Exception in case of seller's knowledge (see art. 40). Excuse for failure to comply with art. 39(1): See art. 44

39B Cut-off period of two years (art. 39(2))

39B1 Starting point: actual handing over of goods

39B2 Effect of time-limit: buyer loses right to rely on non-conformity

39B3 Guarantee period (art. 36(2)); seller's knowledge (art. 40)

39B4 Relationship to statutory limitation/prescription period

39B41 See United Nations Convention on the Limitation Period in the International Sale of Goods (1974) and Protocol (1980)

39B42 Independent effect of notice and limitation periods

39C Other issues concerning notification


DESCRIPTORS

Lack of conformity notice, timeliness ; Lack of conformity notice, specificity ; Latent defects


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 102 cases in its Digest of Art. 39 case law:

Austria 2          Germany 55          Stockholm Chamber       1
Belgium     3 Hungary   1 Spain     1
Canada 1 ICC   6 Switzerland   15
Finland 2 Italy   4 United States     1
France 3 Netherlands      7 TOTAL 102

Presented below is a composite list of Art. 39 cases reporting UNCITRAL Digest cases and other Art. 39 cases. All cases are listed in chronological sequence, commencing with the most recent. Asterisks identify the UNCITRAL Digest cases, commencing with the 13 December 2001 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. 39 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)

Switzerland 18 May 2009 Bundesgerichtshof [Federal Supreme Court] (Packaging machine case)

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

United States 26 March 2009 U.S. District Court [Ohio] (Miami Valley Paper, LLC v. Lebbing Engineering & Consulting GmbH) 39A2

Italy 16 February 2009 Tribunale di Forli [District Court] (Cisterns and accessories case) 39A2 [translation available]

Netherlands 11 February 2009 Rechtsbank [District Court] Arnhem (Tree case) 39A [translation available]

France 3 February 2009 Cour de cassation [Supreme Court] (Société Novodec / Société Sigmakalon v. Sociétés Mobacc et Sam 7) 39B [translation available]

Netherlands 16 January 2009 Rechtsbank [District Court] Breda (Watermelon case) 39A2 [translation available]
 

Italy 11 December 2008 Tribunale di Forli [District Court] (Mitias v. Solidea S.r.l.) 39A [translation available]

Hungary 5 December 2008 Judicial Board of Szeged [Appellate Court] (Wine case) 39A2 [translation available]

Switzerland 26 November 2008 Handelsgericht [Commercial Court] Aargau (Fruit and vegetables case) [translation available]

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

Slovak Republic 3 November 2008 Regional Court [Appellate Court] in Nitra (Barrels for fizzy drinks case) 39A [translation available]

Australia 24 October 2008 Federal Court [South Australia District] (Hannaford v Australian Farmlink Pty Ltd) 39A11

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)

France 27 May 2008 Cour d'appel [Appellate Court] Rennes (Brassiere cups case) 39A2 [translation available]

Germany 19 May 2008 Oberlandesgericht [Appellate Court] Köln (Pesticide case) 39A2 [translation available]

Austria 8 May 2008 Oberster Gerichtshof [Supreme Court] Vienna (Poppy seed case) 39A11 [translation available]

United States 18 March 2008 U.S. District Court [Kentucky] (Sky Cast, Inc. v. Global Direct Distribution, LLC) 39A3 ; 39B

Netherlands 27 February 2008 Rechtbank [District Court] Zutphen (Frutas Caminito Sociedad Cooperativa Valenciana v. Groente-En Fruithandel Heemskerk BV) 39A2 [abstract available]

Germany 25 January 2008 Oberlandesgericht [Appellate Court] Hamburg (Café inventory case) 39A11 ; 39A2 [translation available]

Spain 17 January 2008 Supreme Court (Used automobiles case) 39A2 [translation available]
 

Spain 27 December 2007 Audiencia Provincial [Appellate Court] Navarra (Case involving machine to repair bricks) [translation available]

Austria 19 December 2007 Oberster Gerichtshof [Supreme Court] (Laminated glass case) 39B [translation available]

Spain 19 December 2007 Audiencia Provincial [Appellate Court] Pontevedra (Frozen seafood case) 39A2 [translation available]

Germany 21 November 2007 Oberlandesgericht [Appellate Court] Koblenz (Shoes case) [translation available]

Germany 8 November 2007 Oberlandesgericht [Appellate Court] Dresden (Funnel covers case) 39A2 [translation available]

Slovak Republic 25 October 2007 Regional Court [District Court] Zilina (Elastic fitness clothing case) 39A2 [translation available]

Spain 23 October 2007 Juzgado de Primera Instancia [District Court] La Laguna

Denmark 19 October 2007 Rettin i Københaven [District Court] (Pony case)

France 27 September 2007 Cour d'appel [Appellate Court] Amiens (Société Novodec / Société Sigmakalon v. Sociétés Mobacc et Sam 7) 39B [translation available]

Austria 24 September 2007 Oberlandesgericht [Appellate Court] Linz (Laminated glass case) 39B [translation available]

Switzerland 6 September 2007 Kantonsgericht [District Court] Appenzel Ausserhoden (Clothing case) 39A2 [translation available]

Switzerland 30 August 2007 Kantonsgericht [District Court] Zug (GMS modular case) 39A11 ; 39A2 [translation available]

Switzerland 26 July 2007 Tribunal cantonal [Appellate Court] Jena (Industrial furnace case)

Netherlands 18 July 2007 Rechtsbank [District Court] Utrecht (Prodema S.A. v. Michon B.V.) 39A2 [translation available]

Germany 6 July 2007 Amtsgericht [Lower Court] Freiburg (Shoe case) 39A [translation available]

Austria 4 July 2007 Oberster Gerichtshof [Supreme Court] (Auto case) [translation available]

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

Slovak Republic 27 June 2007 Supreme Court Zilina (Elastic fitness clothing case) 39A [translation available]

Argentina 31 May 2007 National Commercial Court of Appeals, Division "A" (Sr. Carlos Manuel del Corazón de Jesús Bravo Barros v. Salvador Martínez Gares) 39A [translation available]

Netherlands 23 May 2007 Rechtbank [District Court] Rotterdam

Spain 16 May 2007 Supreme Court (Water apparatus case)

Austria 3 May 2007 Handelsgericht [Commercial Court] Vienna (Poppy seed case) 39A11 ; 39A2 [translation available]

Switzerland 27 April 2007 Tribunal cantonal [Appellate Court] Valais (Oven case) 39A1 ; 39A2 [translation available]

Belgium 16 April 2007 Hof van Beroep [Appellate Court] Gent (Dat-Schaub International a/s v. Kipco-Damaco N.V.) 39A2 [translation available]

Ukraine 13 April 2007 Commercial Court of Donetz Region (Crucible press case) [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)

Austria 23 February 2007 Landesgericht [District Court] Salzberg (Laminated glass case)

France 13 February 2007 Cour de cassation [Supreme Court] (Computer motherboard case) [translation available]

Spain 8 February 2007 Appellate Court Pontevedra (Heating valve case)

Germany 17 January 2007 Oberlandesgericht [Appellate Court] Saarbrücken

Germany 12 January 2007 Oberlandesgericht [Appellate Court] Köln (Paperboard containers case) 39A2 [translation available]

Netherlands 2 January 2007 Gerechtshof [Appellate Court] 's-Hertogenbosch (G.W.A. Bernards v. Carstenfelder Baumschulen Pflanzenhandel GmbH) 39A
 

France 19 December 2006 Cour d'appel [Appellate Court] Rouen (Potato seedling case) 39B2 [translation available]

Switzerland 19 December 2006 Obergericht [Appellate Court] Zug (Stove case) 39A1 ; 39A2 [translation available]

Germany 14 December 2006 Oberlandesgericht [Appellate Court] Koblenz (Bottles case) 39A1 [translation available]

Germany 12 December 2006 Landgericht [District Court] Coburg (Plants case) 39A11 ; 39A2 [translation available]

Germany 5 December 2006 Landgericht [District Court] Köln (Plastic faceplates for mobile telephones case) 39A1 ; 39A2 [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)

Germany 17 November 2006 Oberlandesgericht [Appellate Court] München (Dust ventilator case) 39A [translation available]

Switzerland 8 November 2006 Zivilgericht [Civil Court] Basel-Stadt (Packaging machine case)

Spain 6 November 2006 Audiencia Provincial [Appellate Court] Girona (Quartz case) 39B [translation available]

Germany 23 October 2006 Landgericht [District Court] Bamberg (Plants case) 39A1 ; 39A2 [translation available]

Germany 19 October 2006 Oberlandesgericht [Appellate Court] Koblenz (T-Shirts case) 39A1 ; 39A2 [translation available]

Russia 19 October 2006 Arbitration Award 53/2006

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)

Slovak Republic 3 October 2006 District Court in Nitra (African ostrich case) 39A [translation available]

Netherlands 19 September 2006 Gerechtshof [Appellate Court] 's-Hertogenbosch

Germany 13 September 2006 Landgericht [District Court] Berlin (Auston Martin automobile case) 39A [translation available]

Germany 31 August 2006 Oberlandesgericht [Appellate Court] Köln (Chlorine tablets case) 39A1 ; 39A2 [translation available]

United States 23 August 2006 Federal District Court [New York] (TeeVee Tunes v. Gerhard Schubert GmbH)

Germany 14 August 2006 Oberlandesgericht [Appellate Court] Köln (Potatoes case) 39A2 [translation available]

China August 2006 CIETAC Arbitration Award [CISG 2006/13] (Chilling press case) 39A [translation available]

Netherlands 18 July 2006 Gerechtshof [Appellate Court] Arnhem (Potting soil case) 39A2 [translation available]

Switzerland 23 May 2006 Tribunal cantonal [Higher Cantonal Court] Valais (Suits case) [translation available]

Germany 20 April 2006 Landgericht [District Court] Aschaffenburg (Cotton twilled fabric case) 39A [translation available]

Russia 13 April 2006 Arbitration Award 105/2005 39A2 [translation available]

Spain 21 March 2006 Appellate Court Castellón (case on apparatus for the reduction of consumption of gasoline) 39A2

Switzerland 9 March 2006 Kantonsgericht [District Court] Appenzell-Ausserhoden (Fitness equipment case) 39A2 [translation available]

Germany 8 February 2006 Oberlandesgericht [Appellate Court] Karlsruhe (Hungarian wheat case) 39A1 [translation available]

Austria 23 January 2006 Oberlandesgericht [Appellate Court] Linz (Auto case) 39A2 [translation available]

Switzerland 20 January 2006 Cour de Justice [Appellate Court] Genève (Paper products case) 39A2 [translation available]

Germany 11 January 2006 Bundesgerichtshof [Supreme Court] (Automobile case) [translation available]
 

China 7 December 2005 CIETAC Arbitration Award [CISG/2005/05] (Heaters case) 39A11 ; 39A2 [translation available]

Germany 29 November 2005 Landgericht [District Court] München (Frozen vegetables case) 39A11 [translation available]

China 19 November 2005 Guangzhou Intermediate People's Court (Ginger case) 39B [translation available]

Austria 8 November 2005 Oberster Gerichtshof [Supreme Court] 39A1 ; 39A2 [translation available]

China 21 October 2005 CIETAC Arbitration Award [CISG/2005/03] (Sheet metal producing system case) 39A [translation available]

France 13 October 2005 Cour d'appel [Appellate Court] (Versailles) (Caterpillar toys case) 39A2 [translation available]

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

Switzerland 10 October 2005 Corte civile del Tribunale federale svizzero [Supreme Court]

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

Belgium 20 September 2005 Rechtbank van Koophandel [Commercial Court] Hasselt (J.M. Smithuis Pre Pain v. Bakkershuis) 39A11 ; 39A2 [translation available]

France 1 July 2005 Cour d'appel [Appellate Court] Aix-en-Provence (Footware case) 39A [translation available]

China 27 June 2005 Shandong Higher People's Court [Appellate Court] (Norway Royal Supreme Seafoods v. China Rizhao Jixiang Ocean Food Company et al.) 39A [translation available]

Austria 1 June 2005 Oberlandesgericht [Appellate Court] Linz (Hydraulic crane case) 39A [translation available]

Austria 24 May 2005 Oberster Gerichtshof [Supreme Court] 39A [translation available]

Finland 24 May 2005 Hovioikeus / hovrätt [Appellate Court] Turku (Radiated spice case) 39A2

Austria 23 May 2005 Oberster Gerichtshof [Supreme Court] [translation available]

Netherlands 17 May 2005 Netherlands Arbitration Institute (Machines case) 39A ; 39B [English text]

Germany 11 April 2005 Landgericht [District Court] Frankfurt 39A [translation available]

Spain 29 March 2005 Juzgado de primera instancia [Court of First Instance] Tudela [translation available]

France 25 February 2005 Cour d'appel [Appellate Court] Paris

Switzerland 21 February 2005 Kantonsgericht [Appellate Court] Valais (CNC machine case) 39A11 [translation available]

Netherlands 4 February 2005 Hoge Raad [Supreme Court] 39A

Austria 2 February 2005 Landesgericht [District Court] Salzburg (Hydraulic crane case) 39A2 ; 39A11 [translation available]

Austria 1 February 2005 Oberlandesgericht [Appellate Court] Innsbruck (Powdered tantalum case) [translation available]

Spain 31 January 2005 Audiencia Provincial [Appellate Court] Cuenca (Live calves case) 39A [translation available]

Greece 2005 Decision 165/2005 of the Single-Member Court of First Instance of Larissa 39B4
 

Germany 20 December 2004 Oberlandesgericht [Appellate Court] Stuttgart 39A [translation available]

Germany 10 December 2004 Landgericht [District Court] Bayreuth (Titles case) 39A11 ; 39A2 [translation available]

France 26 October 2004 Cour d'appel [Appellate Court] Poitiers 39A2 [translation available]

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

Belgium 11 October 2004 Hof van Beroep [Appellate Court] Ghent (NV Frans Bijttebier-Bouckaert v. BV Nooteboom International) [translation available]

Belgium 4 October 2004 Hof van Beroep [Appellate Court] Ghent (Deforche NV v. Prins Gebroeders Bouwstoffenhandel BV) 39A2 [translation available]

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

China 10 September 2004 Higher People's Court [Appellate Court] of Shandong Province (WS China Import GmbH v. Longkou Guanyuan Food Company) [translation available]

United States 9 September 2004 Federal District Court [State of Washington] (Delizia v. Columbia Distributing Company) 39A

Germany 6 September 2004 Landgericht [District Court] Hamburg 39A [translation available]

Germany 27 July 2004 Landgericht [District Court] Kiel (Fat for frying case) 39A2 [translation available]

Netherlands 27 July 2004 Gerechtshof [Appellate Court] Arnhem

Switzerland 7 July 2004 Bundesgericht [Supreme Court] (Cable drums case) 39A2 [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) 39A2 [translation available]

Belgium 4 June 2004 Rechtbank van Koophandel [District Court] Kortrijk

Germany 1 June 2004 Landgericht [District Court] Saarbrücken (Pallets case) 39A2 ; 39A11 [translation available]

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

Australia 27 May 2004 Supreme Court of Western Australia (Summit Chemicals v. Vetrotex Espana)

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

Belgium 17 May 2004 Hof van Beroep [Appellate Court] Ghent (Cooling installation case) 39B [translation available]

Belgium 10 May 2004 Hof van Beroep [Appellate Court] Ghent 39A [translation available]

Canada 4 May 2004 Court of Appeal of Manitoba (Brown & Root v. Aerotech)

Germany 21 April 2004 Oberlandesgericht [Appellate Court] Düsseldorf [15 U 222/02] 39A2 [detailed abstract available]

Belgium 14 April 2004 Hof van Beroep [Appellate Court] Antwerp (ING Insurance v. HVA Koeling BVBA and Fagard Winand / HVA Koeling BVBA v. Fagard Winand and Besseling Agri-Technic BV) 39A2 ; 39A11 [translation available]

United States 29 March 2004 Federal Bankruptcy Court [Oregon] (In re: Siskiyou Evergreen, Inc. Debtor) 39A

Belgium 24 March 2004 Hof van Beroep [Appellate Court] Ghent (NV Segers-Van Ingelgem v. NV Axima et al.) 39B [translation available]

China 12 March 2004 CIETAC Arbitration Award [CISG 2004/04] (Fireworks case) [translation available]

Germany 10 March 2004 Oberlandesgericht [Appellate Court] Celle 39A ; 39A11 [translation available]

Switzerland 11 February 2004 Appelationshof [Appellate Court] Bern (Cable case) 39A [translation available]

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

Germany 2 February 2004 Oberlandesgericht [Appellate Court] Zweibrücken 39A [translation available]

Germany 29 January 2004 Oberlandesgericht [Appellate Court] Frankfurt 39A [translation available]

Belgium 28 January 2004 Hof van Beroep [Appellate Court] Ghent 39A ; 39A11 [translation available]

Belgium 27 January 2004 Cour d’appel [Appellate Court] Liège 39A [translation available]

Switzerland 27 January 2004 Kantonsgericht [District Court] Schaffhausen 39A [translation available]

Germany 23 January 2004 Oberlandesgericht [Appellate Court] Düsseldorf 39A1 ; 39A2 [translation available]

Belgium 6 January 2004 Rechtbank van Koophandel [District Court] Hasselt 39A [translation available]
 

France 18 December 2003 Cour d’appel [Appellate Court] Lyon 39B

Austria 17 December 2003 Oberster Gerichtshof [Supreme Court] 39A [translation available]

Netherlands 16 December 2003 Gerechtshof [Appellate Court] 's-Hertogenbosch

Switzerland 13 November 2003 Bundesgericht [Supreme Court] 39A1 ; 39A2 [translation available]

Switzerland 29 October 2003 Tribunale d’appello [Appellate Court] Lugano, Cantone del Ticino [translation available]

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

Belgium 8 October 2003 Hof van Beroep [Appellate Court] Ghent 39A2 [translation available]

France 19 September 2003 Cour d’appel [Appellate Court] Paris 39A [translation available]

Germany 15 August 2003 Landgericht [District Court] Bielefeld (Strapping machine case) 39A ; 39A11 [translation available]

Germany 15 July 2003 Landgericht [District Court] Mönchengladbach [translation available]

Germany 18 June 2003 Landgericht [District Court] Tübingen 39A [translation available]

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

United States 11 June 2003 U.S. Circuit Court of Appeals [5th Cir.] (BP Oil International v. Empresa Estatal Petroleos de Ecuador) 39A

Spain 7 June 2003 Audiencia Provincial [Appellate Court] Valencia 39A2 [translation available]

Romania 6 June 2003 High Court of Cassation and Justice (Terracotta stoves case) 39A [translation available]

Russia 6 June 2003 Arbitration Award No. 97/2002 39A [translation available]

China 3 June 2003 CIETAC Arbitration Award [CISG/2003/01] (Clothes case) 39A ; 39B [translation available]

United States 28 May 2003 U.S. District Court [Northern Dist. Illinois] (Chicago Prime Packers v. Northam) 39A

Belgium 12 May 2003 Hof van Beroep [Appellate Court] Ghent 39A2

Switzerland 30 April 2003 Tribunal Cantonal [Appellate Court] Valais (Furniture case) 39A2 [translation available]

Germany 21 March 2003 Landgericht [District Court] Berlin 39A2 [translation available]

Belgium 19 March 2003 Rechtbank van Koophandel [District Court] Veurne

Germany 18 March 2003 Landgericht [District Court] Giessen

Germany 6 March 2003 Oberlandesgericht [Appellate Court] Karlsruhe 39A11 ; 39A2 [translation available]

Austria 27 February 2003 Oberster Gerichtshof [Supreme Court] 39A [translation available]

Russia 17 February 2003 Arbitration Award No. 168/2001 [translation available]

Switzerland 11 February 2003 Handelsgericht [Commercial Court] St. Gallen 39A2 [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 39A2
 

China 23 December 2002 CIETAC Arbitration Award [CISG 2002/28] (Hydraulic press case) [translation available]

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] Gent

Italy 26 November 2002 Tribulale [District Court] Rimini 39A2 [translation available]

Germany 13 November 2002 Oberlandesgericht [Appellate Court] München 39A2

Netherlands 15 October 2002 Case No. 2319 of the Netherlands Arbitration Institute 39A2 [English text]

Spain 3 October 2002 Audiencia Provincial [Appellate Court] Pontevedra 39A [digest available]

Germany 25 September 2002 Oberlandesgericht [Appellate Court] Rostock 39A [translation available]

Germany 22 August 2002 Oberlandesgericht [Appellate Court] Schleswig 39A11 ; 39A2 [translation available]

Switzerland 29 July 2002 Obergericht [Appellate Court] Luzern 39A ; 39A11 [translation available]

Germany 26 July 2002 Oberlandesgericht [Appellate Court] Zweibrücken [translation available]

China 23 July 2002 CIETAC Arbitration Award [CISG/2002/04] (DVD HiFi case) 39A [translation available]

Argentina 21 July 2002 Cámara Nacional de Apelaciones en lo Comercial [Appellate Court] [translation available]

Austria 11 July 2002 Oberster Gerichtshof [Supreme Court]

Germany 2 July 2002 Landgericht [District Court] Saarbrücken 39A11 [translation available]

Germany 1 July 2002 Oberlandesgericht [Appellate Court] München 39A2 [translation available]

Spain 21 June 2002 Audiencia Provincial [Appellate Court] Coruña 39A [translation available]

Switzerland 28 May 2002 [Federal Supreme Court] 39A11 [translation available (excerpt)]

Switzerland 12 May 2002 Obergericht [Appellate Court] Luzern

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

Austria 17 April 2002 Oberster Gerichtshof [Supreme Court] [7 Ob 54/02m] 39A [translation available]

Germany 11 April 2002 Amtsgericht [Lower Court] Viechtach [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] 39A

Belgium 6 March 2002 Rechtbank van Koophandel [District Court] Hasselt [A.R. 2703/01] 39A

Switzerland 1 March 2002 Zivilgericht [Civil Court] Basel 39A [translation available]

Germany 27 February 2002 Landgericht [District Court] Müchen 39A2 [translation available]

Belgium 26 February 2002 Rechtbank van Koophandel [Commercial Court] Hasselt (Fagard Winand v. HVA Koeling BVBA / HVA Koeling BVBA v. Besseling Agri-Technic BV and NV De Vanderlandsehe)

Switzerland 25 February 2002 Kantonsgericht [District Court] Schaffhausen 39A ; 39A11 [translation available]

Germany 20 February 2002 Landgericht [District Court] München 39A2 [translation available]

Belgium 14 February 2002 Hof van Beroep [Appellate Court] Antwerpen (NV Carta Mundi v. Index Syndicate Ltd.) 39A2 ; 39A11 [translation available]

Denmark 31 January 2002 Sø og Handelsretten [Maritime and Trade Court] 39A1 ; 39A2 [translation available]

Belgium 18 January 2002 Rechtbank van Koophandel [District Court for Commercial Matters] Mechelen 39A2

Switzerland 17 January 2002 Handelsgericht [Commercial Court] Bern 39A ; 39B [translation available]

Austria 14 January 2002 Oberster Gerichtshof [Supreme Court] 39A ; 39A11 [translation available]

China 2002 Shanghai Yangpu District People's Court (China Xhanghai Dongda Import & Export Corp. v. Germany Laubholz – Meyer Corp) 39A [translation available]

ICC 2002 International Court of Arbitration, Case 11333 (Machine case) 39A ; 39B [English text]
 

China 25 December 2001 CIETAC Arbitration Award [CISG/2001/04] (DVD HiFi case) 39A [translation available]

United States 17 December 2001 U.S. District Court [Michigan] (Shuttle Packaging v. Tsonakis) 39A

* Italy 13 December 2001 Tribunale [District Court] Busto Arsizio 39A ; 39A1

France 6 November 2001 Cour d'appel [Appellate Court] Paris 39A

Switzerland 30 October 2001 Handelsgericht [Commercial Court] Bern 39B4

Spain 12 September 2001 Audiencia Provincial [Appellate Court] Barcelona 39A [translation available]

Germany 30 August 2001 Landgericht [District Court] München 39A11 ; 39A2 [translation available]

Austria 5 July 2001 Oberster Gerichtshof [Supreme Court] (Pentium computer parts case) 39A11 [translation available]

Germany 28 June 2001 Landgericht [District Court] Trier 39A2 [translation available]

Belgium 27 June 2001 Hof van Beroep [Appellate Court] 39A [translation available]

Germany 29 May 2001 Landgericht [District Court] Darmstadt 39A [translation available]

Belgium 23 May 2001 Hof van Beroep [Appellate Court] Gent 39A [translation available]

Belgium 25 April 2001 Rechtbank van Koophandel [District Court] Veurne 39A [translation available]

Germany 29 March 2001 Landgericht [District Court] Trier 39A2 [translation available]

Belgium 8 March 2001 Cour d'appel [Appellate Court] Mons 39A

Germany 14 February 2001 Oberlandesgericht [Appellate Court] Saarbrücken 39B [translation available]

Germany 31 January 2001 Landgericht [District Court] Hamburg (Frozen pork and apple blinies case) 39A [translation available]

Belgium 29 January 2001 Rechtbank van Koophandel [District Court] Ieper 39A

Austria 24 January 2001 Oberlandesgericht [Appellate Court] Graz (Ice cream robots case) 39A [translation available]

Germany 19 January 2001 Landgericht [District Court] Flensburg 39A [translation available]

Belgium 18 January 2001 Rechtbank van Koophandel [District Court] Turnhout
 

Germany 14 December 2000 Amtsgericht [Lower Court] Hamburg-Altona

China 6 December 2000 CIETAC Arbitration Award [CISG 2000/13] (Pharmaceutical products case) 39A ; 39B [translation available]

Germany 5 December 2000 Oberlandesgericht [Appellate Court] Oldenburg 39A2 [translation available]

Germany 16 November 2000 Landgericht [District Court] München 39A11 ; 39A2 [translation available]

Germany 13 November 2000 Oberlandesgericht [Appellate Court] Köln 39A2 [translation available]

China 6 November 2000 CIETAC Arbitration Award [CISG/2000/12] (Marble building materials case) 39A2 [translation available]

France 24 October 2000 Cour d'appel [Appellate Court] Colmar 39A2 [translation available]

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

Germany 12 October 2000 Landgericht [District Court] Stendal 39A2 [translation available]

Germany 13 September 2000 Landgericht [District Court] Memmingen (Plastic filter plate case) 39A1 ; 39A2 [translation available]

* Italy 12 July 2000 Tribunale [District Court] Vigevano 39A [translation available]

Spain 16 June 2000 Audiencia Provincial [Appellate Court] Castellón

Belarus 30 May 2000 International Court of Arbitration of the Chamber of Commerce and Industry of the Belarus Republic

* Germany 9 May 2000 Landgericht [District Court] Darmstadt 39A [translation available]

Germany 28 April 2000 Oberlandesgericht [Appellate Court] Oldenburg 39A11 ; 39A2 [translation available]

Belgium 26 April 2000 Hof van Beroep [Appellate Court] Gent 39A [translation available]

Belgium 13 April 2000 Rechtbank van Koophandel [District Court]

Spain 27 March 2000 Audiencia Provincial [Appellate Court] Navarra

Austria 21 March 2000 Oberster Gerichtshof [Supreme Court] 39A11 [translation available]

Belgium 17 February 2000 Rechtbank van Koophandel [District Court] Hasselt 39A

Switzerland 17 February 2000 Handelsgericht [Commercial Court] Zürich 39A11 [translation available]

Russia 11 February 2000 Arbitration award 226/1999 39A2 [translation available]

Germany 25 January 2000 Landgericht [District Court] Köln

Russia 24 January 2000 Arbitration award 54/1999 39A [translation available]

Netherlands 20 January 2000 Arrondissementsrechtbank [District Court] Rotterdam 39A2

China 2000 CIETAC Arbitration Award [CISG 2000/17] (Souvenir coins case) 39A [translation available]

Hungary 2000 Budapest Arbitration proceeding VB 99144 (Grape sticks case) 39A2 [translation available]
 

Netherlands 1 December 1999 Arrondissementsrechtbank [District Court] Middelburg 39A

* Germany 30 November 1999 Landgericht [District Court] Köln 39A1 [translation available]

* Germany 18 November 1999 Oberlandesgericht [Appellate Court] Koblenz 39A

Denmark 10 November 1999 Vestre Landsret [Western Appellate Court] 39A [translation available]

* Germany 3 November 1999 Bundesgerichtshof [Federal Supreme Court] 39A11 ; 39A2 [translation available]

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

Slovenia 13 October 1999 Higher Court [Appellate Court] Lujubljana (Dryers case) [translation available]

Germany 12 October 1999 Amtsgericht [Lower Court] Stendal

* Canada 31 August 1999 Ontario Superior Court of Justice (La San Giuseppe v. Forti Moulding Ltd) 39A

* Austria 27 August 1999 Oberster Gerichtshof [Supreme Court] 39A2 [translation available]

ICC August 1999 International Court of Arbitration, Case 9083 39A2 [translation available]

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

* Switzerland 8 June 1999 Tribunale d'appello [Appellate Court] Lugano 39A [translation available]

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

* France 26 May 1999 Cour de Cassation [Supreme Court] 39A [translation available]

Germany 25 May 1999 Landgericht [District Court] Berlin 39A [translation available]

Austria 19 May 1999 Oberster Gerichtshof [Supreme Court] 39A2 [translation available]

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

Netherlands 27 April 1999 Gerechtshof [Appellate Court] Arnhem 39A ; 39B [translation available]

China 20 April 1999 CIETAC Arbitration Award [CISG/1999/23] (Chemical cleaning product equipment case) 39A [translation available]

China 5 April 1999 CIETAC Arbitration Award [CISG/1999/19] (Air conditioner equipment case) 39A2 [translation available]

China 30 March 1999 CIETAC Arbitration Award [CISG/1999/16] (Flanges case) 39A ; 39B [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) 39A2 ; 39B [translation available]

Germany 24 March 1999 Landgericht [District Court] Flensburg [translation available]

Switzerland 10 February 1999 Handelsgericht [Commercial Court] Zürich 39A [translation available]

ICC February 1999 International Court of Arbitraton, Case 9474 39A [English text]

Germany 13 January 1999 Oberlandesgericht [Appellate Court] Bamberg [translation available]

China 1999 CIETAC Arbitration award [CISG/1999/01] (Piperonal aldehyde case) 39A [translation available]
 

China 24 December 1998 CIETAC Arbitration award [CISG/1998/05] (Diesel generator case) 39A [translation available]

* Switzerland 30 November 1998 Handelsgericht [Commercial Court] Zürich 39A ; 39A11 [translation available]

Germany 26 November 1998 Landgericht [District Court] Mainz [translation available]

* Germany 25 November 1998 Bundesgerichtshof [Federal Supreme Court] 39A2 [translation available]

Germany 15 November 1998 Landgericht [District Court] Karlsruhe [translation available]

Belgium 4 November 1998 Hof van beroep [Appellate Court] Antwerpen 39A2 ; 39A11 [translation available]

Denmark 4 November 1998 Randers Byret [County Court] (Christmas tree case) 39A2 [translation available]

* Switzerland 28 October 1998 Bundesgericht [Federal Supreme Court] (Meat case) 39A [translation available]

Austria 15 October 1998 Oberster Gerichtshof [Supreme Court] 39A ; 39A11 ; 39B [translation available]

Germany 5 October 1998 Oberlandesgericht [Appellate Court] Hamburg [translation available]

Germany 24 September 1998 Landgericht [District Court] Regensburg 39A [translation available]

* Switzerland 21 September 1998 Handelsgericht [Commercial Court] Zürich (Catalogue case) 39A1 [translation available]

* Switzerland 16 September 1998 Bezirksgericht [District Court] Unterrheintal 39A2

* Germany 11 September 1998 Oberlandesgericht [Appellate Court] Koblenz 39A [translation available]

Germany 2 September 1998 Oberlandesgericht [Appellate Court] Celle 39A [translation available]

* Germany 29 July 1998 Landgericht [District Court] Erfurt 39B [translation available]

* Austria 30 June 1998 Oberster Gerichtshof [Supreme Court] 39A11 [translation available]

* Finland 30 June 1998 Helsingin hovioikeus [Appellate Court] Helsinki 39A [translation available]

* Switzerland 29 June 1998 Tribunal Cantonal [Appellate Court] Valais 39A

* United States 29 June 1998 Federal Appellate Court [11th Circuit] (MCC-Marble Ceramic Center v. Ceramica Nuova D'Agostino)

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 Oberlandesgericht [Appellate Court] Saarbrücken 39A11 ; 39A2 [translation available]

Germany 26 May 1998 Oberlandesgericht [Appellate Court] Thüringer, Jena 39A2 [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) 39A [translation available]

Switzerland 24 March 1998 Obergericht [Appellate Court] Zug

Austria 11 March 1998 Oberlandesgericht [Appellate Court] Graz (Timber case) 39A11 ; 39A2 [translation available]

* Germany 11 March 1998 Oberlandesgericht [Appellate Court] München 39A2 [translation available]

* Netherlands 20 February 1998 Hoge Raad [Supreme Court] 39A

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

* France 29 January 1998 Cour d'appel [Appellate Court] Versailles 39A [translation available]

China 22 January 1998 CIETAC Arbitration award

France 19 January 1998 Tribunal de commerce [District Court] Besançon 39A ; 39B [translation available]

Hungary 1998 Fovárosi Biróság [Metropolitan Court] Budapest
 

* Netherlands 15 December 1997 Gerechtshof [Appellate Court] 's Hertogenbosch 39A

Germany 11 December 1997 Landgericht [District Court] Bayreuth

Austria 10 December 1997 Vienna Arbitration award S 2/97 39A2 [translation available]

* Switzerland 3 December 1997 Kantonsgericht [District Court] Nidwalden (Furniture case) 39A11 [translation available]

Finland 12 November 1997 Hovioikeus / hovrätt [Appellate Court] Turku 39A [translation available]

Germany 28 October 1997 Landgericht [District Court] Erfurt

* Switzerland 28 October 1997 Tribunal Cantonal [Appellate Court] Valais 39A

Germany 15 October 1997 Landgericht [District Court] Hagen [translation available]

China 13 October 1997 CIETAC Arbitration Award [CISG/1997/30] (Printing machine case) 39A [translation available]

* Switzerland 10 October 1997 Cour de Justice [Appellate Court] Genève 39B

Belgium 6 October 1997 Rechtbank van Koophandel [District Court] Kortrijk 39A2 ; 39A11 [translation available]

Germany 18 September 1997 Landgericht [District Court] Hamburg

ICC September 1997 International Court of Arbitration, Case 8962 39A2 [English text]

* Germany 21 August 1997 Oberlandesgericht [Appellate Court] Köln 39A2 [translation available]

China 31 July 1997 CIETAC Arbitration Award [CISG/1997/24] (Axle sleeves case) 39A2 [translation available]

Germany 18 July 1997 Landgericht [District Court] Saarbrücken

* Germany 9 July 1997 Oberlandesgericht [Appellate Court] München [7 U 2070/97] 39A11 [translation available]

Hungary 1 July 1997 Fovárosi Bíróság [Metropolitan Court] [translation available]

* Belgium 27 June 1997 Rechtbank van Koophandel [District Court] Kortrijk 39A2

* Germany 25 June 1997 Bundesgerichtshof [Federal Supreme Court] 39A ; 39A11 [translation available]

* Germany 25 June 1997 Oberlandesgericht [Appellate Court] Karlsruhe 39A2 [translation available]

Germany 23 June 1997 Landgericht [District Court] München

* Spain 20 June 1997 Audiencia Provincial [Appellate Court] Barcelona 39A [translation available]

* Netherlands 17 June 1997 Gerechtshof [Appellate Court] Arnhem 39A

Russia 4 June 1997 Arbitration award 256/1996 39A [translation available]

Austria 27 May 1997 Oberster Gerichtshof [Supreme Court]

Germany 17 April 1997 Landgericht [District Court] Frankenthal

China 11 April 1997 CIETAC Arbitration Award [CISG/1997/05] (Silicon metal case) 39A [translation available]

Austria 27 March 1997 Oberster Gerichtshof [Supreme Court]

* Netherlands 5 March 1997 Arrondissementsrechtbank [District Court] Zwolle 39A

* Germany 31 January 1997 Oberlandesgericht [Appellate Court] Koblenz 39A11 [translation available]

* Italy 30 January 1997 Pretura [District Court] Torino 39A [translation available]

* ICC 23 January 1997 International Court of Arbitration, Case 8611 39A11 ; 39A2 [translation available]

Belgium 21 January 1997 Rechtbank van Koophandel [District Court] Hasselt 39A

Finland 17 January 1997 Tampere Court of First Instance 39A [translation available]

* Switzerland 8 January 1997 Obergericht [Appellate Court] Luzern 39A2 [translation available]

Germany 8 January 1997 Oberlandesgericht [Appellate Court] Köln 39A2 [translation available]

Switzerland 8 January 1997 Obergericht [Appellate Court] Luzern 39A2 [translation available]

ICC January 1997 International Court of Arbitration, Case 8786 [English text]
 

* Belgium 16 December 1996 Rechtbank van Koophandel [District Court] Kortrijk 39A2

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

* Germany 4 December 1996 Bundesgerichtshof [Federal Supreme Court] 39A11 [translation available]

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

China 28 November 1996 CIETAC Arbitration Award [CISG/1996/54] (Moly-oxide case) [translation available]

France 21 November 1996 Cour d'appel [Appellate Court] Aix-en-Provence 39A [translation available]

Netherlands 21 November 1996 Arrondissementsrechtbank [District Court] Rotterdam 39A

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) 39A [translation available]

China 18 September 1996 CIETAC Arbitration Award [CISG/1996/43] (Agricultural products case) 39A [translation available]

Germany 13 September 1996 Oberlandesgericht [Appellate Court] Düsseldorf

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 [translation available]

Netherlands 20 June 1996 Arrondissementsrechtbank [District Court] Zutphen

Germany 17 June 1996 Landgericht [District Court] Hamburg 39A2 [translation available]

* ICC June 1996 International Court of Arbitration, Case 8247 39A [English text]

* Switzerland 31 May 1996 Arbitration ZHK 273/1995 [Zürich Chamber of Commerce] 39A [English text]

China 22 May 1996 CIETAC Arbitration Award [CISG/1996/25] (Broadcasting equipment case) 39A [translation available]

Netherlands 20 May 1996 Gerechtshof [Appellate Court] 's Hertogenbosch

Netherlands 15 May 1996 Arrondissementsrechtbank [District Court] Amsterdam

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

Germany 19 April 1996 Landgericht [District Court] Aachen

China 17 April 1996 CIETAC Arbitration Award [CISG/1996/19] (Air purifier case) 39A [translation available]

* Germany 17 April 1996 Landgericht [District Court] Duisburg 39A2 [translation available]

* Germany 26 March 1996 Landgericht [District Court] Saarbrücken 39A ; 39A11 [translation available]

Germany 21 March 1996 Hamburg Arbitration proceeding [translation available]

Germany 12 March 1996 Landgericht [District Court] Bad Kreuznach

Russia 12 March 1996 Arbitration award 166/1995 [translation available]

* Germany 15 February 1996 Landgericht [District Court] Kassel [11 O 4185/95] (Marble slabs cases) 39A [translation available]

* Italy 31 January 1996 Tribunale Civile [District Court] Cuneo 39A [translation available]

* Germany 29 January 1996 Amtsgericht [Lower Court] Augsburg 39A11

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

* Germany 24 January 1996 Landgericht [District Court] Bochum 39A1 ; 39C [translation available]
 

Germany 19 December 1995 Landgericht [District Court] Krefeld

* Germany 12 December 1995 Landgericht [District Court] Marburg 39A11 ; 39A2 [translation available]

* Hungary 5 December 1995 Budapest Arbitration award Vb 94131 39A2 [translation available]

Switzerland 30 November 1995 Kantonsgericht [District Court] Zug

Germany 30 November 1995 Landgericht [District Court] Stuttgart

Argentina 31 October 1995 Cámara Nacional de Apelaciones en lo Comercial [Appellate Court]

Germany 12 October 1995 Landgericht [District Court] Trier 39A [translation available]

Germany 11 October 1995 Landgericht [District Court] Düsseldorf [translation available]

* Germany 6 October 1995 Amtsgericht [Lower Court] Kehl 39A [translation available]

ICC October 1995 International Court of Arbitration, Case 8453 39A2 [English text]

Germany 20 September 1995 Oberlandesgericht [Appellate Court] Nürnberg

* France 13 September 1995 Cour d'appel [Appellate Court] Grenoble 39A2 ; 39B4 [translation available]

* Germany 21 August 1995 Oberlandesgericht [Appellate Court] Stuttgart 39A1 ; 39A2 [translation available]

* Germany 21 August 1995 Landgericht [District Court] Ellwangen 39A [translation available]

Germany 9 August 1995 Oberlandesgericht [Appellate Court] München [ULIS precedent]

Germany 7 July 1995 Landgericht [District Court] Koblenz

* Switzerland 30 June 1995 Gerichtskommission [Judicial Commission] Oberrheintal (Sliding doors case) 39A2 [translation available]

Germany 22 June 1995 Landgericht [District Court] Kassel 39A2 [translation available]

Germany 9 June 1995 Oberlandesgericht [Appellate Court] Hamm [translation available]

* Netherlands 7 June 1995 Arrondissementsrechtbank [District Court] 's Gravenhage 39A1 ; 39A2

* Germany 23 May 1995 Oberlandesgericht [Appellate Court] Frankfurt 39A1 ; 39A2 [translation available]

* Switzerland 26 April 1995 Handelsgericht [Commercial Court] Zürich 39A2 [translation available]

China 18 April 1995 CIETAC Arbitration Award [CISG/1995/06] (Clothes case) 39A2 [translation available]

* Germany 5 April 1995 Landgericht [District Court] Landshut 39A1 ; 39A3 [translation available]

Germany 31 March 1995 Oberlandesgericht [Appellate Court] Frankfurt 39A [translation available]

* Germany 20 March 1995 Landgericht [District Court] München 39A11 ; 39A2 [translation available]

* Germany 8 March 1995 Bundesgerichtshof [Federal Supreme Court] 39A [translation available]

China 23 February 1995 CIETAC Arbitration award 39A [translation available]

* Germany 8 February 1995 Oberlandesgericht [Appellate Court] München [7 U 3758/94] (Plastic granulate case) 39A [translation available]

* Germany 8 February 1995 Landgericht [District Court] München 39A [translation available]

China 4 January 1995 CIETAC Arbitration Award [CISG/1995/02] (Shirts case) 39A [translation available]
 

China 28 December 1994 CIETAC Arbitration Award [CISG/1994/15] (Round steel case) 39A [translation available]

China December 1994 Fujian Higher People's Court [Appellate Court] [translation available]

Germany 9 November 1994 Landgericht [District Court] Oldenburg 39A ; 39C [translation available]

* Germany 21 October 1994 Amtsgericht [Lower Court] Riedlingen 39A2 [translation available]

* Belgium 5 October 1994 Tribunal commercial [District Court] Bruxelles 39A2 [translation available]

Germany 6 September 1994 Amtsgericht [Lower Court] Mayen

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

Germany 26 July 1994 Landgericht [District Court] Nürnberg-Fürth

* Germany 13 July 1994 Landgericht [District Court] Frankfurt 39A1 ; 39A2

Serbia 12 July 1994 Foreign Trade Court of Arbitration, Yugoslav Chamber of Commerce (Baby beef hide case) 39A2 [translation available]

Germany 6 July 1994 Landgericht [District Court] Oldenburg

* Germany 5 July 1994 Landgericht [District Court] Giessen 39A

Austria 1 July 1994 Oberlandesgericht [Appellate Court] Innsbruck 39A [translation available]

* Germany 23 June 1994 Landgericht [District Court] Düsseldorf 39A [translation available]

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

Germany 14 June 1994 Amtsgericht [Lower Court] Nordhorn 39A ; 39C [translation available]

Germany 4 May 1994 Amtsgericht [Lower Court] Charlottenburg 39A [translation available]

Germany 20 April 1994 Oberlandesgericht [Appellate Court] Frankfurt 39A

Austria 29 March 1994 Landesgericht [District Court] Feldkirch

* Germany 22 February 1994 Oberlandesgericht [Appellate Court] Köln 39A2 [translation available]

China 20 February 1994 CIETAC Arbitration Award [CISG/1994/03] (Cysteine case) 39A [translation available]

* Germany 10 February 1994 Oberlandesgericht [Appellate Court] Düsseldorf [6 U 32/93] 39A [translation available]

Germany 10 February 1994 Oberlandesgericht [Appellate Court] Düsseldorf [6 U 119/93] 39A [translation available]

Netherlands 4 February 1994 Arrondissementsrechtbank [District Court] 's Hertogenbosch

Germany 18 January 1994 Oberlandesgericht [Appellate Court] Frankfurt 39A11 [translation available]

* ICC 1994 International Court of Arbitration, Case 7331 39A [English text]

* ICC 1994 International Court of Arbitration, Case 7565 39B4 [English text]

* ICC 1994 International Court of Arbitration, Case 7660 39B3 [English text]
 

* Germany 1 December 1993 Landgericht [District Court] Hanover 39A1 ; 39A2

* Germany 11 November 1993 Landgericht [District Court] Köln

Germany 17 September 1993 Oberlandesgericht [Appellate Court] Koblenz [translation available]

* Switzerland 9 September 1993 Handelsgericht [Commercial Court] Zürich (Furniture case) 39A [translation available] 39A

Switzerland 1 September 1993 Handelsgericht [Commercial Court] Zürich

* Germany 28 July 1993 Landgericht [District Court] Aachen

Germany 24 May 1993 Landgericht [District Court] München

Netherlands 6 May 1993 Arrondissementsrechtbank [District Court] Roermond 39A2

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

* Germany 12 March 1993 Oberlandesgericht [Appellate Court] Düsseldorf 39A [translation available]

* Germany 13 January 1993 Oberlandesgericht [Appellate Court] Saarbrücken (Doors case) 39A [translation available]

* Germany 8 January 1993 Oberlandesgericht [Appellate Court] Düsseldorf 39A [translation available]
 

* Germany 9 December 1992 Landgericht [District Court] Frankfurt 39A ; 39A1

* Germany 30 September 1992 Landgericht [District Court] Berlin 39A [translation available]

* Germany 16 September 1992 Landgericht [District Court] Berlin 39A

* Germany 22 May 1992 Landgericht [District Court] Mönchengladbach

* Switzerland 27 April 1992 Pretore della giurisdizione [District Court] Locarno 39A2 [translation available]

Germany 23 March 1992 Landgericht [District Court] Saarbrücken

* Netherlands 26 February 1992 Gerechtshof [Appellate Court] 's Hertogenbosch 39A
 

* Netherlands 19 December 1991 Arrondissementsrechtbank [District Court] Roermond 39A1 ; 39A2 ; 39A3

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

Netherlands 23 September 1991 Arrondissementsrechtbank [District Court] Breda

* Germany 14 August 1991 Landgericht [District Court] Baden-Baden 39C [translation available]

Germany 13 August 1991 Landgericht [District Court] Stuttgart (Women's clothes case) [translation available]

China 19 April 1991 CIETAC Arbitration award [translation available]

* Germany 18 January 1991 Landgericht [District Court] Bielefeld
 

Netherlands 21 November 1990 Arrondissementsrechtbank [District Court] Dordrecht 39A2

* Germany 3 April 1990 Landgericht [District Court] Aachen 39A11 ; 39A2
 

* Germany 31 August 1989 Landgericht [District Court] Stuttgart 39A [translation available]

* Germany 3 July 1989 Landgericht [District Court] München 39A11 [translation available]

Israel 26 June 1989 Supreme Court 39A2 [ULIS precedent]

* ICC 1989 International Court of Arbitration, Case 5713 39A ; 39B [English text]

ICC 1989 International Court of Arbitration, Case 5904
 

China 4 August 1988 [date claim filed] CIETAC Arbitration award 39A [translation available]


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/39 [8 June 2004]
Reproduced with the permission of UNCITRAL

[Text of Article 39
Digest of Article 39 case law
-   Overview of Article 39
-   Scope of Article 39
-   Consequences of failure to give notice
-   Burden of proof
-   Form of notice
-   To whom must notice be given
-   Agreements relating to notice
-   Waiver by the seller or the buyer
-   Article 39(1): purposes
-   Contents of notice: specificity required
-   Timely notice in general
-   When time for notice begins to run: relation to article 38
-   Presumptive periods for notice
-   Factors influencing reasonable time for notice
-   Application of reasonable time standard
-   Article 39(2)]
ARTICLE 39

(1) The buyer loses the right to rely on a lack of conformity of the goods if he does not give notice to the seller specifying the nature of the lack of conformity within a reasonable time after he has discovered it or ought to have discovered it.

(2) In any event, the buyer loses the right to rely on a lack of conformity of the goods if he does not give the seller notice thereof at the latest within a period of two years from the date on which the goods were actually handed over to the buyer, unless this time limit is inconsistent with a contractual period of guarantee.

DIGEST OF ARTICLE 39 CASE LAW

Overview of Article 39

1. Article 39 imposes on a buyer who claims that delivered goods do not conform to the contract an obligation to give the seller notice of the lack of conformity. The provision is divided into two subsections addressing different time periods for the required notice: article 39(1) requires that the notice be given within a reasonable time after the buyer has discovered it or ought to have discovered it; article 39(2) specifies that, in any event, the buyer must give the seller notice of the claimed lack of conformity within two years of the date on which the goods were actually handed over to the buyer, unless this time limit is inconsistent with a contractual period of guarantee.

Scope of Article 39

2. The notice obligation imposed by article 39 applies if the buyer claims that delivered goods suffer from a lack of conformity. The concept of conformity is defined in article 35. The great majority of decisions applying the article 39 notice requirements involve claims that the goods were defective or otherwise not of conforming quality. Nevertheless, the article 39 notice obligation has been applied not only to breaches of the quality obligations imposed by article 35, but also to a breach of a contractual warranty made in derogation of article 35.[1] It has also been applied where the claimed lack of conformity was a failure to provide proper instruction manuals to accompany the goods.[2] Several decisions have found that article 39 requires notice when the buyer claims that an inadequate quantity (as opposed to quality) of goods was delivered.[3] One court has also applied the article 39 notice requirement when the buyer complained that delivery of seasonal goods was late,[4] although that decision has not been followed in other cases.[5] Each separate lack of conformity is subject to the notice requirement, and the fact that the buyer may have given proper notice as to one defect does not necessarily mean it has given valid notice as to all claimed non-conformities.[6]

Consequences of failure to give notice

3. Both article 39(1) and article 39(2) state that failure to give the requisite notice results in the buyer losing the right to rely on the lack of conformity. This appears to mean that the buyer loses the right to any remedy for the non-conformity, including, e.g., the right to require the seller to repair the goods,[7] the right to claim damages,[8] the right to reduce the price,[9] and the right to avoid the contract.[10] One court, however, appears to have permitted the buyer to partially avoid the contract based on a lack of conformity that had not been timely noticed.[11] It should also be noted that a buyer’s remedies for a lack of conformity concerning which it has not given proper notice may be restored in whole or in part under CISG articles 40 and 44.[12]

Burden of proof

4. There appears to be a consensus in reported decisions that the buyer bears the burden of proving that it gave the required article 39 notice of non-conformity. This position has been adopted both expressly [13] and by implication.[14] Although several decisions have invoked domestic legal rules to justify allocating the burden to the buyer,[15] a larger number have based their allocation on the general principles underlying the CISG.[16] A decision by an Italian court, for example, expressly rejected reliance on domestic law in determining the burden of proof, and discovered in provisions such as article 79(1) a general CISG principle (in the sense of art. 7(2)) requiring the buyer to prove valid notice.[17]

Form of notice

5.Article 39 does not specify the form of notice required, although the parties can by agreement require a particular form.[18] Notice in written form has often been found satisfactory, and the contents of a series of letters has been combined in order to satisfy the article 39 requirement.[19] Oral notice (by telephone) has also been found sufficient,[20] although in several cases evidentiary issues have caused a buyer’s claim to have given telephonic notice to fail.[21] One court has found that a buyer claiming to have given notice by telephone must prove when the call took place, to whom the buyer spoke, and what was said during the conversation; the buyer’s failure to prove these elements prevented it from establishing that the article 39 notice requirement was satisfied.[22] An earlier decision had similarly found that a buyer’s claim of telephonic notice had not been sufficiently substantiated because the buyer had not proven the date of the call, the party spoken to, or the information conveyed concerning the lack of conformity.[23] In one decision, moreover, a court appeared to impose special requirements for sufficient oral notice by stating that, if the seller failed to respond to telephone notice given to the seller’s agent, the buyer was obliged to follow-up with written notice to the seller.[24] Finally, a court has rejected a buyer’s argument that it gave implied notice of lack of conformity when it refused to pay the seller, holding that the notice required by article 39 must be express.[25]

To whom must notice be given

6. Article 39 states that the required notice of lack of conformity must be given to the seller.[26] Thus it has been stated that communications between the buyer and its customer concerning defects in the goods did not satisfy the article 39 notice requirement because they did not involve the seller.[27] Notice of defects conveyed by the buyer to an independent third party who had acted as an intermediary in the formation of the contract but who had no further relationship to the seller was found not to have been given by means appropriate in the circumstances within the meaning of article 27, and thus the buyer bore the risk when the notice was not received by the seller.[28] Similarly, notice given to an employee of the seller who was not authorized to receive such communications but who promised to transmit the information to the seller was found to be insufficient when the employee in fact did not inform the seller; the court noted that, when notice is not given to the seller personally, the buyer must ensure that the seller actually receives the notice.[29] On the other hand, it has been found that notice given to an agent of the seller would satisfy article 39, although the question of the recipient’s agency status and authority were matters beyond the scope of the CISG to be determined under applicable domestic law.[30]

Agreements relating to notice

7. Article 39 is subject to the parties’ power under article 6 to derogate from or vary the effect of any provision of the Convention. A significant number of decisions have involved agreements relating to the buyer’s obligation to give the seller notice of claims that the goods do not conform to the requirements of the contract. Such agreements have generally been enforced, and buyers have several times lost the right to complain of a lack of conformity because they failed to comply with the terms of such an agreement.[31] A few decisions, however, appear reluctant to enforce contractual provisions governing notice: they rely on the standards of article 39 even though the parties’ contract included clauses addressing notice of defects,[32] and/or they suggest that the contract provisions are enforceable only to the extent they are judged reasonable by the standards of article 39.[33] Of course to be enforceable under any approach, terms relating to notice of lack of conformity must have become part of the parties’ agreement under applicable contract formation rules, which in the case of the CISG are found in Part II of the Convention. Thus it has been found that, although the parties can derogate from article 39, they had not done so where a clause requiring the buyer to give notice within eight days of delivery was illegible and appeared on documents unilaterally generated by the seller after the contract was concluded.[34] Parties also have been found not to have derogated from article 39 just by agreeing to an 18-month contractual warranty.[35] On the other hand, it has been recognized that a trade usage relating to notice of defects can derogate from article 39 if the trade usage is binding on the parties under CISG article 9.[36] To the extent an agreement by the parties relating to notice of non-conformity fails to address particular issues, the provisions of article 39 have been invoked to fill the gaps.[37]

Waiver by the seller or the buyer

8. Although article 39 gives a seller the right to prevent a buyer from relying on a lack of conformity if the buyer does not give the seller timely and proper notice thereof, a seller can waive this right by misleading the buyer into thinking that the seller would not object to the buyer’s notice. Thus where the seller, after receiving notice from the buyer that the delivered goods were not conforming, declared that it would give credit for the goods if the buyer’s complaints about defects were confirmed, one court found that the seller had waived its right to object to the timeliness of the buyer’s notice.[38] On the other hand, another court invoked domestic law and a policy encouraging amicable settlements in concluding that a seller did not waive its right to claim that notice was untimely just because it accepted return of the goods in order to examine them and granted the buyer a provisional pro forma credit for the price.[39] And yet another court has found that the mere fact that the seller examined the goods, at the buyer’s request, after receiving the buyer’s complaint of lack of conformity did not constitute a waiver of the right to argue that the buyer’s notice of non-conformity was late.[40] Another court has stated that a seller can waive its rights under article 39 either expressly or impliedly, and that implied waiver requires specific indications that would lead the buyer to understand that the seller’s actions constituted a waiver; the court went on to conclude that, although the seller in the case did not waive its right to object to the timeliness of notice of a lack of conformity by entering into settlement negotiations with the buyer over the non-conformity, the willingness to negotiate was a fact to consider; and this fact, in combination with the extended period during which such negotiations continued (15 months), the failure of the seller to reserve its rights under article 39 during that time, and the seller’s actions in acceding to the buyer’s request to pay for an expert to examine the goods and in offering the buyer damages equal to seven time the price for the goods, supported the conclusion that the seller had waived its right to object to late notice.[41] Another court has distinguished between waiver of a seller’s article 39 rights and estoppel from asserting such rights: it concluded that the seller had not waived its right to object to late notice because the intention of parties to waive rights had to be very clearly established, and the mere fact that the seller did not immediately reject the notice as late at the time it was given was not sufficient evidence of waiver; on the other hand, by remaining in communication with the buyer in order to keep informed of the buyer’s customer’s complaints, and by making statements to the buyer indicating that the seller would not raise the defence of late notice, the seller became estopped from invoking that defence when the buyer relied on the impression that the seller would not complain of untimely notice.[42]

9. Buyers have also been deemed to have waived (or to be estopped from exercising) their rights under article 39 when they affirmatively indicated acceptance of delivered goods and/or acknowledged an obligation for the price without raising objection to defects that were apparent. Thus a buyer was found to have lost its right to complain about missing parts and defects that should have been discovered when it agreed to the amount of a disputed balance remaining on the purchase price and signed bills of exchange for that balance.[43] Similarly, a buyer who negotiated a reduction in the price of video recorders on the basis of certain defects lost its right to object to other defects known to the buyer at the time the price-reduction was agreed to.[44] And a buyer who paid outstanding invoices with bank checks and then stopped payment on the checks before they were honored was deemed to have lost its right to complain of defects known when the checks were provided.[45]

Article 39(1) - Purposes

10. Article 39(1) requires a buyer who claims that the goods do not conform to the contract to give notice to the seller specifying the nature of the lack of conformity within a reasonable time after he has discovered it or ought to have discovered it. This requirement has been identified with several different purposes. A number of decisions indicate that a purpose is to promote prompt clarification as to whether a breach has occurred.[46] It has also been suggested that the required notice is designed to give the seller the information needed to determine how to proceed in general with respect to the buyer’s claim,[47] and more specifically to facilitate the seller’s cure of defects.[48] One decision states that the purpose is to promote the quick settlement of disputes and to assist the seller in defending itself.[49] Another decision similarly suggests that article 39(1) assists the seller in defending itself against invalid claims.[50] The notice requirement has also been associated with a buyer’s obligation of good faith.[51]

Contents of notice; specificity required

11. The notice required by article 39(1) must "specify the nature of the lack of conformity. . .". This language has been interpreted and applied in a large number of decisions. Several have made general pronouncements concerning the specificity requirement. It has been said that notice of the mere fact of a lack of conformity is insufficient, but that the buyer must specify the precise nature of the defects;[52] that notice should indicate both the nature and the extent of the lack of conformity, and should convey the results of the buyer’s examination of the goods;[53] that notice should be specific enough to allow the seller to comprehend the buyer’s claim and to take appropriate steps in response, i.e., to examine the goods and arrange for a substitute delivery or otherwise remedy the lack of conformity;[54] that the purpose of the specificity requirement is to enable the seller to understand the kind of breach claimed by the buyer and to take the steps necessary to cure it, such as initiating a substitute or additional delivery;[55] that notice should be sufficiently detailed that misunderstanding by the seller would be impossible and the seller could determine unmistakably what the buyer meant;[56] that the notice should be sufficiently specific to permit the seller to know what item was claimed to lack conformity and what the claimed lack of conformity consisted of.[57] Several decisions have emphasized that the notice should identify the particular goods claimed to be non-conforming;[58] one such decision found that, even though the piece of agricultural machinery that the buyer claimed was defective was the only one of its type that the buyer had purchased from the seller, the specificity requirement was not satisfied where the notice failed to identify the serial number or the date of delivery, because the seller should not be forced to search its files for the records of the machine in question.[59] A number of decisions have noted that each claimed non-conformity must be specifically described, and the fact that notice may be sufficiently specific as to one defect does not mean that the notice requirement for other claimed defects is satisfied.[60] The specificity requirement has been applied to oral notice of lack of conformity.[61] On the other hand, several decisions have warned against setting up an overly-demanding standard of specificity.[62] It has also been suggested that different standards of specificity are required of different kinds of buyers, with expert buyers expected to provide more detailed notice.[63] In the case of machinery and technical equipment, it has been found that the specificity requirement is satisfied by a description of the symptoms of a lack of conformity, and that an explanation of the underlying causes is not required.[64]

12. The following descriptions of a lack of conformity have been found to be sufficiently specific to satisfy article 39(1): notice informing a seller of shoes that the buyers customer had received an alarming number of complaints about the goods, that the shoes had holes, and that the outer sole and heel of the children’s shoes became loose;[65] notice to a seller of a machine for processing moist hygienic tissues that the buyer’s customer had found steel splinters in semi-finished products produced by the machine, resulting in patches of rust on the finished products;[66] notice that floor tiles suffered from serious premature wear and discoloration.[67]

13. The following descriptions in notices have been found not to satisfy article 39(1) because they were insufficiently specific:[68] notice that stones for the facade of a building were mislabelled, that some stones and sills were not the proper size, and that the glue provided for mounting the stones was defective, where the notice failed to specify which specific items were unlabelled, the quantity and specific items that were of the wrong size, and the exact quantity of stones treated with the defective glue;[69] notice that flowering plants were in miserable condition and suffered from poor growth (the court noted that the latter might refer to either the size or the appearance of the plants);[70]; notice that cotton cloth was of bad quality;[71] notice that furniture had wrong parts and much breakage;[72] notice of poor workmanship and improper fitting as to fashion goods;[73] notice that failed to specify that cheese was infested with maggots;[74] notice that the quality of fabric was objectionable and the dimensions of the delivered cloth prevented it from being cut in an economical fashion, where the notice failed to specify the nature of the quality problems and failed to indicate what dimensions would permit economical cutting;[75] notice that agricultural machinery failed to function properly but that did not specify the serial number or the delivery date of the machine;[76] notice that truffles had softened when they in fact contained worms, even though most professional sellers would understand that softness implied worms;[77] notice that shoes were not of the quality required by the contract, but which did not describe the nature of the defects;[78] notice that frozen bacon was rancid, but which did not specify whether all or only a part of the goods were spoiled;[79] notice that documentation for a printer was missing, where it was ambiguous whether the buyer was referring to the entire printing system or just the printer component of system;[80] notice that sheets of vulcanized rubber for shoe soles had problems or presented defects;[81] notice stating that leather goods did not conform to the buyer’s specifications, could not be sold to the buyer’s customers, and 250 items were badly stamped;[82] notice that five reels of blankets were missing, but which did not specify the design of the missing blankets and therefore did not permit seller to cure.[83]

14. Beyond the specificity requirement discussed above, the CISG does not further define the contents of the notice required by article 39(1). One court has stated that, so long as the notice precisely describes defects in the goods reported by the buyer’s customer, the notice need not claim that such defects constitute a breach by the seller, and may even express doubts that the customer’s complaints were justified.[84] On the other hand, another court has concluded that a buyer who merely requested the seller’s assistance in addressing problems with computer software had not given notice of lack of conformity as required by article 39(1).[85]

Timely notice in general

15. Article 39(1) requires the buyer to give notice of lack of conformity within a reasonable time after he has discovered or ought to have discovered it. This limitation on the time in which notice must be given, it has been asserted, is to be determined on the basis of the interests of good business, so that neither side has an unfair advantage and the rapid settlement of disputes is promoted.[86] Framing the time for notice in terms of a reasonable time is designed to promote flexibility,[87] and the period varies with the facts of each case.[88] Several decisions have indicated that the reasonable time standard is a strict one.[89] It has also been asserted that the reasonable time for giving notice of lack of conformity under article 39(1) is the same as the reasonable time for giving notice of avoidance under article 49(2)(b).[90]

When time for notice begins to run - relation to Article 38

16. The reasonable time within which the buyer must give notice under article 39(1) commences at the moment the buyer discovered or ought to have discovered the lack of conformity. Thus the period for the buyer’s notice begins to run at the earlier of two moments: the time the buyer actually (or subjectively) discovered the non-conformity, and the time the buyer theoretically should have discovered (ought to have discovered) the non-conformity.[91]

17. The time when the buyer actually discovered the lack of conformity can be shown if the buyer admits the time at which it became subjectively aware of the defects [92] or there are objective facts proving when the buyer acquired such knowledge.[93] Complaints that the buyer received from customers to whom the goods were resold may establish actual knowledge: it has been found that the time for giving notice of lack of conformity commences, if it has not started previously, when the buyer receives such complaints,[94] even if the buyer doubts their accuracy.[95]

18. As was earlier noted in the discussion of article 38,[96] the time at which the buyer should have discovered a lack of conformity for purposes of article 39(1) is closely connected to the buyer’s obligation under article 38 to examine the goods. In the case of a non-conformity that should reasonably have been discovered by the buyer upon the initial examination of the goods, the buyer’s time for giving notice begins to run from the time such examination should have been conducted. As one court stated, "[t]he point in time at which the buyer was obligated to have determined the breach of contract is governed by the provisions regulating the duty to examine. In this context, CISG Art. 38 provides that the goods must be examined within as short a period of time as the circumstances permit".[97] Thus in cases in which an initial examination following delivery should have revealed the lack of conformity, the buyer’s reasonable time for giving notice begins after the period for examining the goods under article 38 has run, and the deadline for buyer’s notice should accommodate both the period for examination under article 38 and a further reasonable time for notice under article 39(1). Many decisions have recognized these two separate components of the time for the buyer’s notice of non-conformities,[98] although some decisions do not appear to acknowledge the distinction.[99]

19. In the case of latent defects not reasonably detectable before some period of actual use, the time when the buyer should discover the lack of conformity occurs later than the time for the initial examination of the goods immediately following delivery.[100] One decision raised the question whether the time for giving notice of latent defects should ever start before the buyer acquires actual knowledge of the defects, although the decision avoided resolving the issue.[101] Other decisions, however, have determined that the reasonable time for giving notice of latent defects commenced at a time when the buyer should have discovered the defects, whether or not the buyer had actual knowledge of the defects at that time.[102] Some decisions appear to recognize that the discovery of latent defects may be a process that occurs over a period of time, and have suggested that the buyer’s notice need only convey the information reasonably available to the buyer at the time of the notice, to be supplemented by information in later notices.[103]

Presumptive periods for notice

20. Although the time period set in article 39(1) for the buyer to give notice — within a reasonable time after the buyer discovers or ought to have discovered the non-conformity — is designed to be flexible [104] and will vary with the circumstances of the case,[105] a number of decisions have attempted to establish specific presumptive time periods as general guidelines or default rules. Courts adopting this approach usually contemplate that the presumptive notice periods they put forward will be adjusted to reflect the facts of the particular case.[106] The suggested presumptive periods vary considerably both in length and in the approach taken to measuring the period. Several decisions propose presumptive periods measured from the time goods are delivered, so that the periods encompass not only the time for giving notice after discovery of the lack of conformity, but also the time for the buyer to discover the non-conformity in the first place. In this vein, presumptive periods of 8 days after delivery (in the case of durable, non-seasonal goods),[107] 14 days for examination and notice,[108] and one month after delivery [109] have been suggested. Other decisions distinguish between the time for discovering the lack of conformity and the time for giving notice following discovery, often proposing presumptive periods for both components and frequently indicating particular categories of goods to which the period would apply. The following have been suggested as the presumptive reasonable time for giving notice: a few days after discovery of the lack of conformity;[110] one week (following one week for examination under art. 38);[111] eight days following discovery;[112] two weeks (following one week for examination).[113] A theory that in normal circumstances the reasonable time for giving notice is one month following the time the defect was or ought to have been discovered — sometimes referred to as the noble month approach — has been accepted in several decisions.[114] Where the goods are perishable, some decisions have suggested very short presumptive notice periods.[115]

Factors influencing reasonable time for notice

21. It is clear that the reasonable time for notice will vary with the circumstances of the particular case.[116] Decisions have identified a variety of factors that will impact the length of the notice period. A frequently cited factor relates to the obviousness of the lack of conformity — a patent, easily noticeable defect tends to shorten the period for notice.[117] The nature of the goods is another frequently-cited factor:[118] goods that are perishable [119] or seasonal [120] require earlier notice of defects; notice with respect to durable or non-seasonal goods, in contrast, is subject to a longer notice period.[121] The buyer’s plans to process the goods [122] or otherwise handle them in a fashion that might make it difficult to determine if the seller was responsible for a lack of conformity [123] may also shorten the time for notice. Trade practices [124] as well as usages established between the parties [125] can also influence the time for notice, as can the buyer’s awareness that the seller itself was operating under a deadline that would require prompt notice of defects.[126] An expert or professional buyer has been found to be subject to a shorter period for notice.[127]

Application of reasonable time standard

22. It has been found that a buyer who did not give any notice of a lack of conformity before filing suit against the seller had failed to meet the requirements for timely notice under article 39(1), and had lost the right to rely on the lack of conformity.[128] Even where the buyer did provide notice, the notice has been found too late in many instances. As measured from the date the goods were delivered, notices given at the following times have been found untimely on the facts of particular cases: 24 months;[129] one year;[130] nine months;[131] seven to-eight months;[132] four months;[133] three and one-half months;[134] three months;[135] more than two and one-half months;[136] two months;[137] two months in the case of one delivery and approximately seven weeks in the case of another delivery;[138] six weeks;[139] one month;[140] 25 days;[141] 24 days;[142] 23 days;[143] 21 days;[144] 20 days;[145] 19 days;[146] 16 days;[147] almost two weeks;[148] any time beyond the day of delivery (involving perishable flowers).[149] As measured from the date that the buyer discovered or ought to have discovered the lack of conformity, notices given at the following times have been found too late on the facts of particular cases: seven months;[150] almost four months;[151] more than two months;[152] six weeks;[153] 32 days;[154] one month (by fax) and three weeks (by telephone);[155] four weeks;[156] three weeks;[157] approximately two weeks;[158] seven days.[159] On the other hand, a number of decisions have found that the buyer gave notice in timely fashion. On the facts of particular cases, notices given at the following times have been found to be within the reasonable time mandated by article 39(1): one day after the goods were handed over to the buyer;[160] one day after the goods were examined;[161] three days after delivery;[162] seven days after the buyer learned of the defects;[163] within eight days after the goods were examined;[164] eight days after an expert’s report identified defects in the goods;[165] a series of notices, one given two weeks after an initial provisional test on the goods, another given a month after a second test, and final notices given six months after delivery of one machine and eleven months after delivery of another machine;[166] 19 days after delivery;[167] 19-21 days after the examination of the goods;[168] four weeks after the buyer hypothetically ought to have known of the lack of conformity;[169] within one month of delivery.[170]

Article 39(2)

23. Article 39(2) establishes an absolute cut-off date for notice of lack of conformity — two years from the date the goods were actually handed over to the buyer, subject to an exception where such a time limit would be inconsistent with a contractual period of guarantee.[171] Without such a limit the time for notice might not have a clear end under the flexible and variable time standards in article 39(1). In the case of latent defects, for example, the time the buyer discovers or ought to discover the lack of conformity, and thus the moment that the buyer’s reasonable time for giving notice under article 39(1) commences, could be long after the goods are delivered. In such cases, absent a contractual guarantee period that protects the buyer for a longer time, article 39(2) will cut-off the buyer’s right to give notice at two years after the goods were actually handed over, and thus prevent the buyer from preserving its rights to rely on a lack of conformity which is not discovered and noticed before that point.[172] Unlike the period for notice established in 39(1), which is designed to be flexible and to vary with the circumstances, the two-year limit in article 39(2) is precise and non-variable (except where the contractual period of guarantee exception applies). Indeed, the apparent purpose of article 39 is to provide a specific, predictable period beyond which a seller can be confident that claims of a lack of conformity in the goods will not be legally cognizable.

24. The rather limited number of decisions applying article 39(2) have addressed several aspects of the provision. Thus several decisions have indicated that notice which is not specific enough to satisfy article 39(1) will not constitute adequate notice under article 39(2), even though the latter provision does not expressly incorporate the language in article 39(1) requiring that the notice specify the nature of the lack of conformity.[173] Several other decisions have explored the relationship between article 39(2) and rules specifying a deadline for commencing litigation based on breach of a sales contract (statutes of limitation or prescription periods). One court which considered this question struggled to reconcile a one-year limitations period in domestic law with the two-year notice period in article 39(2), eventually opting to extend the domestic limitations period to two years.[174] Other decisions were at pains to distinguish between the rule of article 39(2), which establishes a deadline for giving notice of lack of conformity, and a statute of limitations or prescription period, which establishes deadlines for commencing litigation.[175] A number of decisions have involved claims that the parties had derogated from article 39(2) by agreement. Thus an arbitral tribunal found that the parties had derogated from article 39(2) by agreeing to a maximum guarantee period of 18-months, although the tribunal also explained that the prescription period for a buyer who has given timely notice was not governed by article 39(2), and was a matter beyond the scope of the CISG to be subject to domestic law.[176] On the other hand, an arbitral panel has determined that a clause requiring that disputes be submitted to arbitration within 30 days after the parties reached an impasse in negotiations did not operate as a derogation from article 39(2).[177] Yet another arbitral decision found that the parties had not derogated from the two-year cut-off in article 39(2) just because the seller may have orally represented to the buyer that the goods (sophisticated machinery) would last 30 years.[178] This decision presumably implies that such a representation does not constitute a contractual period of guarantee within the meaning of article 39(2), because otherwise the clause would have extended the cut-off period for notice. Another decision also dealt with the meaning of the phrase contractual period of guarantee, finding that a clause fixing a deadline for submitting disputes to arbitration did not create such a contractual guarantee period.[179]


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 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>].

2. CLOUT case No. 343 [GERMANY Landgericht [District Court] Darmstadt 9 May 2000, available online at <http://cisgw3.law.pace.edu/cases/000509g1.html>] (see full text of the decision).

3. 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); CLOUT case No. 282 [GERMANY Oberlandesgericht [Appellate Court] Koblenz 31 January 1997, available online at <http://cisgw3.law.pace.edu/cases/970131g1.html>]; [GERMANY Landgericht [District Court] Landshut 5 April 1995, available online at <http://cisgw3.law.pace.edu/cases/950405g1.html>].

4. [GERMANY Amtsgericht [Lower Court] Augsburg 29 January 1996, available online at <http://cisgw3.law.pace.edu/cases/960129g1.html>].

5. Note that the CISG provision governing time of delivery (art. 33) is not found in the section of the CISG entitled "Conformity of the goods and third party claims" (Section II of Part III, Chapter I), but rather is located in the section entitled "Delivery of the goods and handing over of documents" (Section I of Part III, Chapter II).

6. 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); [GERMANY Landgericht [District Court] Landshut 5 April 1995, available online at <http://cisgw3.law.pace.edu/cases/950405g1.html>]; [GERMANY Landgericht [District Court] Bielefeld 18 January 1991, available online at <http://cisgw3.law.pace.edu/cases/910118g1.html>]; [AUSTRIA Oberster Gerichtshof [Supreme Court] 27 August 1999, available online at <http://cisgw3.law.pace.edu/cases/990827a3.html>].

7. CLOUT case No. 196 [SWITZERLAND Handelsgericht [Commercial Court] Zürich 26 April 1995, available online at <http://cisgw3.law.pace.edu/cases/950426s1.html>].

8. CLOUT case No. 50 [GERMANY Landgericht [District Court] Baden-Baden 14 August 1991, available online at <http://cisgw3.law.pace.edu/cases/910814g1.html>]; 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), 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>].

9. 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. 273 [GERMANY Oberlandesgericht [Appellate Court] München 9 July 1997, available online at <http://cisgw3.law.pace.edu/cases/970709g1.html>]. Compare also CLOUT case No. 46 [GERMANY Landgericht [District Court] Aachen 3 April 1990, available online at <http://cisgw3.law.pace.edu/cases/00403g1.html>] (finding that buyer had the right to reduce the price under art. 50 because it had given proper notice of lack of conformity) (see full text of the decision).

10. CLOUT case No. 232 [GERMANY Oberlandesgericht [Appellate Court] München 11 March 1998, available online at <http://cisgw3.law.pace.edu/cases/980311g1.html>]; CLOUT case No. 282 [GERMANY Oberlandesgericht [Appellate Court] Koblenz 31 January 1997, available online at <http://cisgw3.law.pace.edu/cases/970131g1.html>] (see full text of the decision).

11. CLOUT case No. 50 [GERMANY Landgericht [District Court] Baden-Baden 14 August 1991, available online at <http://cisgw3.law.pace.edu/cases/910814g1.html>].

12. See the discussion of these provisions infra.

13. 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. 251 [SWITZERLAND Handelsgericht [Commercial Court] Zürich 30 November 1998, available online at <http://cisgw3.law.pace.edu/cases/981130s1.html>]; [AUSTRIA Oberster Gerichtshof [Supreme Court] 27 August 1999, available online at <http://cisgw3.law.pace.edu/cases/990827a3.html>]; CLOUT case No. 305 [AUSTRIA Oberster Gerichtshof [Supreme Court] 30 June 1998, available online at <http://cisgw3.law.pace.edu/cases/980630a3.html>]; [ITALY Pretura [District Court] Torino 30 January 1997, available online at <http://cisgw3.law.pace.edu/cases/970130i3.html>]; CLOUT case No. 196 [SWITZERLAND Handelsgericht [Commercial Court] Zürich 26 April 1995, available online at <http://cisgw3.law.pace.edu/cases/950426s1.html>] (see full text of the decision); CLOUT case No. 97 [SWITZERLAND Handelsgericht [Commercial Court] Zürich 9 September 1993, available online at <http://cisgw3.law.pace.edu/cases/930909s1.html>].

14. [NETHERLANDS Rechtbank [District Court] s'Gravehage 7 June 1995, available online at <http://cisgw3.law.pace.edu/cases/950607n1.html>]; [GERMANY Landgericht [District Court] Marburg 12 December 1995, available online at <http://cisgw3.law.pace.edu/cases/951212g1.html>]; [GERMANY Landgericht [District Court] Duisburg 17 April 1996, available online at <http://cisgw3.law.pace.edu/cases/960417g1.html>]; CLOUT case No. 290 [GERMANY Oberlandesgericht [Appellate Court] Saarbrücken 3 June 1998, available online at <http://cisgw3.law.pace.edu/cases/980603g1.html>]; CLOUT case No. 289 [GERMANY Oberlandesgericht [Appellate Court] Stuttgart 21 August 1995, available online at <http://cisgw3.law.pace.edu/cases/950821g1.html>]; CLOUT case No. 291 [GERMANY Oberlandesgericht [Appellate Court] Frankfurt 23 May 1995, available online at <http://cisgw3.law.pace.edu/cases/950523g1.html>] (see full text of the decision); 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); [ICC Court of Arbitration, case No. 8611 of 23 January 1997, available online at <http://cisgw3.law.pace.edu/cases/978611i1.html>]; [SWITZERLAND Zurich Chamber of Commerce Arbitration award no. ZHK 273/95 of 31 May 1996, available online at <http://cisgw3.law.pace.edu/cases/960531s1.html>].

15. [ITALY Pretura [District Court] Torino 30 January 1997, available online at <http://cisgw3.law.pace.edu/cases/970130i3.html>].

16. 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. 251 [SWITZERLAND Handelsgericht [Commercial Court] Zürich 30 November 1998, available online at <http://cisgw3.law.pace.edu/cases/981130s1.html>]; CLOUT case No. 196 [SWITZERLAND Handelsgericht [Commercial Court] Zürich 26 April 1995, available online at <http://cisgw3.law.pace.edu/cases/950426s1.html>] (see full text of the decision); CLOUT case No. 97 [SWITZERLAND Handelsgericht [Commercial Court] Zürich 9 September 1993, available online at <http://cisgw3.law.pace.edu/cases/930909s1.html>].

17. CLOUT case No. 378 [ITALY Tribunale [District Court] Vigevano 12 July 2000, available online at <http://cisgw3.law.pace.edu/cases/000712i3.html>].

18. CLOUT case No. 222 [UNITED STATES MCC-Marble Ceramic Center v. Ceramica Nuova D'Agostino, Federal Appellate Court [11th Circuit] 29 June 1998, available online at <http://cisgw3.law.pace.edu/cases/980629u1.html>], the buyer had signed an order form containing a clause requiring complaints of defects in the goods to be in writing and made by certified letter. The decision proceeds on the premise that, if this clause became part of the parties' contract, the buyer's oral notice of lack of conformity would not have been valid. The court remanded the case to determine whether the clause had in fact been incorporated into the agreement.

19. CLOUT case No. 225 [FRANCE Cour d'appel [Appellate Court] Versailles 29 January 1998, available online at <http://cisgw3.law.pace.edu/cases/980129f1.html>] (see full text of the decision).

20. [GERMANY Landgericht [District Court] Frankfurt 9 December 1992, available online at <http://cisgw3.law.pace.edu/cases/921209g1.html>]. This is one of the very rare decisions in which a particular telephonic notice was held to satisfy the notice requirement in fact. Another decision recognized the theoretical validity of telephone notice while finding on its particular facts that the requirements of article 39 had not been satisfied. [GERMANY Landgericht [District Court] Frankfurt 13 July 1994, available online at <http://cisgw3.law.pace.edu/cases/940713g1.html>]. Some decisions have found that telephonic notice failed to satisfy article 39 in some respect (e.g., because it was given too late) without commenting on the form of the notice. [GERMANY Landgericht [District Court] Bochum 24 January 1996, available online at <http://cisgw3.law.pace.edu/cases/960124g1.html>]; [BELGIUM Rechtbank [District Court] Kortrijk 16 December 1996, available online at <http://cisgw3.law.pace.edu/cases/961216b1.html>].

21. [GERMANY Landgericht [District Court] Marburg 12 December 1995, available online at <http://cisgw3.law.pace.edu/cases/951212g1.html>]; [GERMANY Amtsgericht [Lower Court] Kehl 6 October 1995, available online at <http://cisgw3.law.pace.edu/cases/951006g1.html>]; 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).

22. [GERMANY Landgericht [District Court] Frankfurt 13 July 1994, available online at <http://cisgw3.law.pace.edu/cases/940713g1.html>].

23. 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).

24. [BELGIUM Rechtbank [District Court] Kortrijk 27 June 1997, available online at <http://cisgw3.law.pace.edu/cases/970627b1.html>].

25. [GERMANY Landgericht [District Court] Aachen 28 July 1993, available online at <http://cisgw3.law.pace.edu/cases/930728g1.html>] reversed on other grounds by [GERMANY Oberlandesgericht [Appellate Court] Köln, 22 February 1994, available online at <http://cisgw3.law.pace.edu/cases/940222g1.html>].

26. Article 39(1) requires the buyer to give notice to the seller, and article 39(2) states that the buyer must give the seller notice.

27. CLOUT case No. 220 [SWITZERLAND Kantonsgericht [District Court] Nidwalden 3 December 1997, available online at <http://cisgw3.law.pace.edu/cases/971203s1.html>] (see full text of the decision).

28. [GERMANY Landgericht [District Court] Kassel 15 February 1996, available online at <http://cisgw3.law.pace.edu/cases/960215g1.html>]. The court also noted that the notice must be specifically directed to the seller.

29. [GERMANY Landgericht [District Court] Bochum 24 January 1996, available online at <http://cisgw3.law.pace.edu/cases/960124g1.html>].

30. CLOUT case No. 364 [GERMANY Landgericht [District Court] Köln 30 November 1999, available online at <http://cisgw3.law.pace.edu/cases/991130g1.html>].

31. CLOUT case No. 336 [SWITZERLAND Tribunale d'appello [Appellate Court] Ticino, Lugano 8 June 1999, available online at <http://cisgw3.law.pace.edu/cases/990608s1.html>]; [GERMANY Landgericht [District Court] Giessen 5 July 1994, available online at <http://cisgw3.law.pace.edu/cases/940705g1.html>]; [GERMANY Landgericht [District Court] Hannover 1 December 1993, available online at <http://cisgw3.law.pace.edu/cases/931201g1.html>]; CLOUT case No. 303 [ICC Court of Arbitration, case No. 7331 of 1994, available online at <http://cisgw3.law.pace.edu/cases/947331i1.html>] (see full text of the decision); 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>]; CLOUT case No. 50 [GERMANY Landgericht [District Court] Baden-Baden 14 August 1991, available online at <http://cisgw3.law.pace.edu/cases/910814g1.html>]. See also CLOUT case No. 305 [AUSTRIA Oberster Gerichtshof [Supreme Court] 30 June 1998, available online at <http://cisgw3.law.pace.edu/cases/980630a3.html>] (remanding to determine whether contractual provision governing time for giving notice of defects had been complied with); but see [NETHERLANDS Arrondissementsrechtbank [District Court] Zwolle 5 March 1997, available online at <http://cisgw3.law.pace.edu/cases/970305n1.html>] (although the court notes that the seller's standard term setting the time for giving notice of defects applied to the contract, the court apparently did not apply the term - although its analysis of whether the buyer gave notice within a reasonable time was influenced by the term).

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. 292 [GERMANY Oberlandesgericht [Appellate Court] Saarbrücken 13 January 1993, available online at <http://cisgw3.law.pace.edu/cases/930113g1.html>] (see full text of the decision).

33. 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. 303 [ICC Court of Arbitration, case No. 7331 of 1994, available online at <http://cisgw3.law.pace.edu/cases/947331i1.html>] (see full text of the decision).

34. CLOUT case No. 378 [ITALY Tribunale [District Court] Vigevano 12 July 2000, available online at <http://cisgw3.law.pace.edu/cases/000712i3.html>] (see full text of the decision). In CLOUT case No. 222 [UNITED STATES MCC-Marble Ceramic Center v. Ceramica Nuova D'Agostino, Federal Appellate Court [11th Circuit] 29 June 1998, available online at <http://cisgw3.law.pace.edu/cases/980629u1.html>] the court ruled that, although the parties had each signed a form with a provision requiring the buyer to give written notice of defects within 10 days of delivery, evidence showing the parties did not subjectively intend to be bound by the provision should have been admitted under CISG article 8(1). One court has held that a term requiring the buyer to give notice of defects within 30 days of delivery bound the buyer because it had been incorporated into the contract under the rules of article 19 of the CISG; see CLOUT case No. 50 [GERMANY Landgericht [District Court] Baden-Baden 14 August 1991, available online at <http://cisgw3.law.pace.edu/cases/910814g1.html>] (see full text of the decision). Another court found that under article 18(1) a buyer accepted terms on the seller's order confirmation, including a clause requiring notice of defects to be given within eight days after delivery, by accepting delivery of the goods; see CLOUT case No. 292 [GERMANY Oberlandesgericht [Appellate Court] Saarbrücken 13 January 1993, available online at <http://cisgw3.law.pace.edu/cases/930113g1.html>] (see full text of the decision).

35. 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>] (see full text of the decision).

36. CLOUT case No. 292 [GERMANY Oberlandesgericht [Appellate Court] Saarbrücken 13 January 1993, available online at <http://cisgw3.law.pace.edu/cases/930113g1.html>]. On the facts of the particular case, the court found that the parties' agreement to a clause requiring notice within eight days of delivery excluded the applicability of any such trade usage.

37. CLOUT case No. 229 [GERMANY Bundesgerichtshof [Supreme Court] 4 December 1996, available online at <http://cisgw3.law.pace.edu/cases/961204g1.html>] (agreement requiring the buyer to give immediate notice of defects occurring after delivery of the goods did not govern the obligation to notify of defects existing at delivery; the latter was therefore regulated by article 39(1)); [ICC Court of Arbitration, case No. 8611 of 23 January 1997, available online at <http://cisgw3.law.pace.edu/cases/978611i1.html>] (because the parties' agreement regarding notice of defects did not address, e.g., the specificity with which the notice must describe the claimed defect, the court supplemented the agreement by reference to article 39(1)).

38. CLOUT case No. 235 [GERMANY Bundesgerichtshof [Supreme Court] 25 June 1997, available online at <http://cisgw3.law.pace.edu/cases/970625g2.html>].

39. CLOUT case No. 310 [GERMANY Oberlandesgericht [Appellate Court] Düsseldorf 12 March 1993, available online at <http://cisgw3.law.pace.edu/cases/930312g1.html>]. The court indicated that waiver by the seller of its article 39 rights would only be deemed to occur in clear circumstances, as where the seller unconditionally accepted return of the goods by the buyer.

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

41. CLOUT case No. 270 [GERMANY Bundesgerichtshof [Supreme Court] 25 November 1998, available online at <http://cisgw3.law.pace.edu/cases/981125g1.html>].

42. 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>]. According to the court, the buyer had relied on the impression that the seller would not object to late notice because the buyer refrained from taking immediate legal action against its customer or the seller.

43. CLOUT case No. 337 [GERMANY Landgericht [District Court] Saarbrücken 26 March 1996, available online at <http://cisgw3.law.pace.edu/cases/960326g1.html>].

44. CLOUT case No. 343 [GERMANY Landgericht [District Court] Darmstadt 9 May 2000, available online at <http://cisgw3.law.pace.edu/cases/000509g1.html>].

45. [NETHERLANDS Gerechtshof [Appellate Court] s-Hertogenbosch 26 February 1992, available online at <http://cisgw3.law.pace.edu/cases/920226n1.html>].

46. [AUSTRIA Oberster Gerichtshof [Supreme Court] 27 August 1999, available online at <http://cisgw3.law.pace.edu/cases/990827a3.html>]; 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); 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. 3 [GERMANY Landgericht [District Court] München 3 July 1989, available online at <http://cisgw3.law.pace.edu/cases/890703g1.html>] (see full text of the decision).

47. CLOUT case No. 337 [GERMANY Landgericht [District Court] Saarbrücken 26 March 1996, available online at <http://cisgw3.law.pace.edu/cases/960326g1.html>]; CLOUT case No. 378 [ITALY Tribunale [District Court] Vigevano 12 July 2000, available online at <http://cisgw3.law.pace.edu/cases/000712i3.html>] (see full text of the decision).

48. CLOUT case No. 344 [GERMANY Landgericht [District Court] Erfurt 29 July 1998, available online at <http://cisgw3.law.pace.edu/cases/980729g1.html>]; CLOUT case No. 3 [GERMANY Landgericht [District Court] München 3 July 1989, available online at <http://cisgw3.law.pace.edu/cases/890703g1.html>] (see full text of the decision). See also CLOUT case No 282 [GERMANY Oberlandesgericht [Appellate Court] Koblenz 31 January 1997, available online at <http://cisgw3.law.pace.edu/cases/970131g1.html>] (implying that purpose of notice is to facilitate cure by the seller).

49. [GERMANY Landgericht [District Court] Kassel 15 February 1996, available online at <http://cisgw3.law.pace.edu/cases/960215g1.html>].

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

51. [NETHERLANDS Rechtbank [District Court] Zwolle 5 March 1997, available online at <http://cisgw3.law.pace.edu/cases/970305n1.html>].

52. [GERMANY Landgericht [District Court] Hannover 1 December 1993, available online at <http://cisgw3.law.pace.edu/cases/931201g1.html>].

53. CLOUT case No. 344 [GERMANY Landgericht [District Court] Erfurt 29 July 1998, available online at <http://cisgw3.law.pace.edu/cases/980729g1.html>] (see full text of the decision).

54. Id.

55. CLOUT case No. 229 [GERMANY Bundesgerichtshof [Supreme Court] 4 December 1996, available online at <http://cisgw3.law.pace.edu/cases/961204g1.html>] (see full text of the decision). For a similar statement, 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); see also CLOUT case No. 282 [GERMANY Oberlandesgericht [Appellate Court] Koblenz 31 January 1997, available online at <http://cisgw3.law.pace.edu/cases/970131g1.html>] (implying that the purpose of the specificity requirement is to permit the seller to remedy the lack of conformity).

56. Id.

57. See also CLOUT case No. 319 [GERMANY Bundesgerichtshof [Supreme Court] 3 November 1999, available online at <http://cisgw3.law.pace.edu/cases/991103g1.html>].

58. CLOUT case No. 319 [GERMANY Bundesgerichtshof [Supreme Court] 3 November 1999, available online at <http://cisgw3.law.pace.edu/cases/991103g1.html>]; [ICC Court of Arbitration, case No. 8611 of 23 January 1997, available online at <http://cisgw3.law.pace.edu/cases/978611i1.html>]; CLOUT case No. 282 [GERMANY Oberlandesgericht [Appellate Court] Koblenz 31 January 1997, available online at <http://cisgw3.law.pace.edu/cases/970131g1.html>]; [GERMANY Landgericht [District Court] München 20 March 1995, available online at <http://cisgw3.law.pace.edu/cases/950320g1.html>].

59. [GERMANY Landgericht [District Court] Marburg 12 December 1995, available online at <http://cisgw3.law.pace.edu/cases/951212g1.html>].

60. 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); [GERMANY Landgericht [District Court] Bielefeld 18 January 1991, available online at <http://cisgw3.law.pace.edu/cases/910118g1.html>]; [AUSTRIA Oberster Gerichtshof [Supreme Court] 27 August 1999, available online at <http://cisgw3.law.pace.edu/cases/990827a3.html>].

61. 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).

62. CLOUT case No. 229 [GERMANY Bundesgerichtshof [Supreme Court] 4 December 1996, available online at <http://cisgw3.law.pace.edu/cases/961204g1.html>] (see full text of the decision); CLOUT case No. 252 [SWITZERLAND Handelsgericht [Commercial Court] Zürich 21 September 1998, available online at <http://cisgw3.law.pace.edu/cases/980921s1.html>].

63. CLOUT case No. 252 [SWITZERLAND Handelsgericht [Commercial Court] Zürich 21 September 1998, available online at <http://cisgw3.law.pace.edu/cases/980921s1.html>]; CLOUT case no. 344 [GERMANY Landgericht [District Court] Erfurt 29 July 1998, available online at <http://cisgw3.law.pace.edu/cases/980729g1.html>] (see full text of the decision).

64. CLOUT case No. 319 [GERMANY Bundesgerichtshof [Supreme Court] 3 November 1999, available online at <http://cisgw3.law.pace.edu/cases/991103g1.html>]. See also [NETHERLANDS Hoge Raad [Supreme Court] 20 February 1998, available online at <http://cisgw3.law.pace.edu/cases/980220n1.html>] (implying that description of symptoms rather than causes of defects in floor tiles would be sufficient); [ITALY Tribunale [District Court] Busto Arsizio 13 December 2001, available online at <http://cisgw3.law.pace.edu/cases/011213i3.html>] (buyer under no duty to indicate the specific case of the malfunction in a machine, particularly where the seller could not provide the necessary information).

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

66. 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).

67. [NETHERLANDS Hoge Raad [Supreme Court] 20 February 1998, available online at <http://cisgw3.law.pace.edu/cases/980220n1.html>].

68. For other decisions holding that buyer's notice lacked sufficient specificity, see CLOUT case No. 337 [GERMANY Landgericht [District Court] Saarbrücken 26 March 1996, available online at <http://cisgw3.law.pace.edu/cases/960326g1.html>]; CLOUT case No. 336 [SWITZERLAND Tribunale d'appello [Appellate Court] Ticino, Lugano 8 June 1999, available online at <http://cisgw3.law.pace.edu/cases/990608s1.html>]; [ICC Court of Arbitration, case No. 8611 of 23 January 1997, available online at <http://cisgw3.law.pace.edu/cases/978611i1.html>]; 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); CLOUT case No. 252 [SWITZERLAND Handelsgericht [Commercial Court] Zürich 21 September 1998, available online at <http://cisgw3.law.pace.edu/cases/980921s1.html>] (see full text of the decision).

69. CLOUT case No. 364 [GERMANY Landgericht [District Court] Köln 30 November 1999, available online at <http://cisgw3.law.pace.edu/cases/991130g1.html>].

70. CLOUT case No. 290 [GERMANY Oberlandesgericht [Appellate Court] Saarbrücken 3 June 1998, available online at <http://cisgw3.law.pace.edu/cases/980603g1.html>].

71. [BELGIUM Rechtbank [District Court] Kortrijk 16 December 1996, available online at <http://cisgw3.law.pace.edu/cases/961216b1.html>].

72. CLOUT case No. 220 [SWITZERLAND Kantonsgericht [District Court] Nidwalden 3 December 1997, available online at <http://cisgw3.law.pace.edu/cases/971203s1.html>].

73. CLOUT case No. 3 [GERMANY Landgericht [District Court] München 3 July 1989, available online at <http://cisgw3.law.pace.edu/cases/890703g1.html>].

74. CLOUT case No. 98 [NETHERLANDS Rechtbank [District Court] Roermond 19 December 1991, available online at <http://cisgw3.law.pace.edu/cases/911219n1.html>].

75. CLOUT case No. 339 [GERMANY Landgericht [District Court] Regensburg 24 September 1998, available online at <http://cisgw3.law.pace.edu/cases/980924g1.html>].

76. [GERMANY Landgericht [District Court] Marburg 12 December 1995, available online at <http://cisgw3.law.pace.edu/cases/951212g1.html>].

77. [GERMANY Landgericht [District Court] Bochum 24 January 1996, available online at <http://cisgw3.law.pace.edu/cases/960124g1.html>].

78. [GERMANY Landgericht [District Court] Hannover 1 December 1993, available online at <http://cisgw3.law.pace.edu/cases/931201g1.html>].

79. [GERMANY Landgericht [District Court] München 20 March 1995, available online at <http://cisgw3.law.pace.edu/cases/950320g1.html>].

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

81. CLOUT case No. 378 [ITALY Tribunale [District Court] Vigevano 12 July 2000, available online at <http://cisgw3.law.pace.edu/cases/000712i3.html>].

82. CLOUT case No. 273 [GERMANY Oberlandesgericht [Appellate Court] München 9 July 1997, available online at <http://cisgw3.law.pace.edu/cases/970709g1.html>] (see full text of the decision).

83. CLOUT case No. 282 [GERMANY Oberlandesgericht [Appellate Court] Koblenz 31 January 1997, available online at <http://cisgw3.law.pace.edu/cases/970131g1.html>].

84. [NETHERLANDS Hoge Raad [Supreme Court] 20 February 1998, available online at <http://cisgw3.law.pace.edu/cases/980220n1.html>].

85. CLOUT case No. 131 [GERMANY Landgericht [District Court] München 8 February 1995, available online at <http://cisgw3.law.pace.edu/cases/950208g4.html>].

86. CLOUT case No. 310 [GERMANY Oberlandesgericht [Appellate Court] Düsseldorf 12 March 1993, available online at <http://cisgw3.law.pace.edu/cases/930312g1.html>] (see full text of the decision).

87. [ITALY Tribunale [District Court] Cuneo 31 January 1996, available online at <http://cisgw3.law.pace.edu/cases/960131i3.html>].

88. Id.; CLOUT case No. 310 [GERMANY Oberlandesgericht [Appellate Court] Düsseldorf 12 March 1993, available online at <http://cisgw3.law.pace.edu/cases/930312g1.html>] (see full text of the decision); 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. 378 [ITALY Tribunale [District Court] Vigevano 12 July 2000, available online at <http://cisgw3.law.pace.edu/cases/000712i3.html>].

89. [AUSTRIA Oberster Gerichtshof [Supreme Court] 27 August 1999, available online at <http://cisgw3.law.pace.edu/cases/990827a3.html>]; CLOUT case No. 310 [GERMANY Oberlandesgericht [Appellate Court] Düsseldorf 12 March 1993, available online at <http://cisgw3.law.pace.edu/cases/930312g1.html>] (see full text of the decision); 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>] (see full text of the decision).

90. CLOUT case No. 196 [SWITZERLAND Handelsgericht [Commercial Court] Zürich 26 April 1995, available online at <http://cisgw3.law.pace.edu/cases/950426s1.html>] (see full text of the decision). See also CLOUT case No. 123 [GERMANY Bundesgerichtshof [Supreme Court] 8 March 1995, available online at <http://cisgw3.law.pace.edu/cases/950308g3.html>] (distinguishing between late notice of lack of conformity under article 39(1) and late notice of avoidance under article 49(2)(b), but suggesting that the periods for both notices should be limited in the interest of promoting prompt clarification of the legal relationship between the parties) (see full text of the decision).

91. For decisions in which the buyer's notice was found to be too late because it should have discovered the defects before it in fact did, see, e.g., 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. 4 [GERMANY Landgericht [District Court] Stuttgart 31 August 1989, available online at <http://cisgw3.law.pace.edu/cases/890831g1.html>]; CLOUT case No. 81 [GERMANY Oberlandesgericht [Appellate Court] Düsseldorf 10 February 1994, available online at <http://cisgw3.law.pace.edu/cases/940210g1.html>].

92. This was the case in the decision of the [GERMANY Landgericht [District Court] Berlin 16 September 1992, available online at <http://cisgw3.law.pace.edu/cases/920916g1.html>].

93. An example of such objective evidence can be found in Helsinki Court of First Instance, Finland, 11 June 1995, and [FINLAND Hovioikeus / Hovrätt [Appellate Court] Helsinki 30 June 1998, available online at <http://cisgw3.law.pace.edu/cases/980630f5.html>], where the buyer commissioned a chemical analysis of the goods which revealed their defects.

94.. CLOUT case No. 210 [SPAIN Audienca Provincial [Appellate Court] Barcelona 20 June 1997, available online at <http://cisgw3.law.pace.edu/cases/970620s4.html>].

95. [NETHERLANDS Hoge Raad [Supreme Court] 20 February 1998, available online at <http://cisgw3.law.pace.edu/cases/980220n1.html>].

96. See the discussion supra Article 38 at para. 2.

97. 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). Accord, CLOUT case No. 378 [ITALY Tribunale [District Court] Vigevano 12 July 2000, available online at <http://cisgw3.law.pace.edu/cases/000712i3.html>]. For decisions finding that the buyer's notice came too late because the buyer should have discovered the lack of conformity during the initial examination of the goods, see CLOUT case No. 81 [GERMANY Oberlandesgericht [Appellate Court] Düsseldorf 10 February 1994, available online at <http://cisgw3.law.pace.edu/cases/940210g1.html>] (the buyer should have examined and discovered the lack of conformity within a few days after delivery, and therefore buyer's notice given more than two months after delivery was too late); CLOUT case No. 262 [SWITZERLAND Gerichtskommission Oberrheintal Kanton St. Gallen 30 June 1995, available online at <http://cisgw3.law.pace.edu/cases/950630s1.html>] (buyer's time for giving notice of lack of conformity began to run upon delivery and substantial installation of sliding gates, even though the seller had not entirely completed its duties; notice given a year after delivery was too late); [ITALY Pretura [District Court] Torino 30 January 1997, available online at <http://cisgw3.law.pace.edu/cases/970130i3.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. 48 [GERMANY Oberlandesgericht [Appellate Court] Düsseldorf 8 January 1993, available online at <http://cisgw3.law.pace.edu/cases/930108g1.html>]; CLOUT case No. 123 [GERMANY Bundesgerichtshof [Supreme Court] 8 March 1995, available online at <http://cisgw3.law.pace.edu/cases/950308g3.html>]; [NETHERLANDS Gerechtshof [Appellate Court] 's-Hertogenbosch 15 December 1997, available online at <http://cisgw3.law.pace.edu/cases/971215n1.html>]; CLOUT case No. 4 [GERMANY Landgericht [District Court] Stuttgart 31 August 1989, available online at <http://cisgw3.law.pace.edu/cases/890831g1.html>].

98. E.g., 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); 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. 285 [GERMANY Oberlandesgericht [Appellate Court] Koblenz 11 September 1998, available online at <http://cisgw3.law.pace.edu/cases/980911g1.html>]; [GERMANY Landgericht [District Court] Düsseldorf 23 June 1994, available online at <http://cisgw3.law.pace.edu/cases/940623g1.html>]; [GERMANY Landgericht [District Court] Mönchengladbach May 22 1992, available online at <http://cisgw3.law.pace.edu/cases/920522g1.html>]; [GERMANY Amtsgericht [Lower Court] Riedlingen 21 October 1994, available online at <http://cisgw3.law.pace.edu/cases/941021g1.html>].

99. E.g., [BELGIUM Tribunal commercial [District Court] Bruxelles 5 October 1994, available online at <http://cisgw3.law.pace.edu/cases/941005b1.html>]; CLOUT abstract No. 256 [SWITZERLAND Tribunal cantonal [Appellate Court] Valais 29 June 1998, available online at <http://cisgw3.law.pace.edu/cases/980629s1.html>] (concluding that notice given seven to eight months after delivery was too late, without distinguishing time for examination and discovery) (see full text of the decision).

100. [GERMANY Landgericht [District Court] Paderborn 25 June 1996, available online at <http://cisgw3.law.pace.edu/cases/960625g1.html>]; [GERMANY Landgericht [District Court] Ellwangen 21 August 1995, available online at <http://cisgw3.law.pace.edu/cases/950821g2.html>]; Helsinki Court of First Instance, Finland, 11 June 1995, and [FINLAND Hovioikeus / Hovrätt [Appellate Court] Helsinki 30 June 1998, available online at <http://cisgw3.law.pace.edu/cases/980630f5.html>]. In the case of latent defects not reasonably discoverable in an initial examination, it is not clear whether the obligation to examine under article 38 remains relevant to determining when the buyer ought to have discovered the non-conformity; see the discussion supra article 38 para. 15.

101. CLOUT case No. 319 [GERMANY Bundesgerichtshof [Supreme Court] 3 November 1999, available online at <http://cisgw3.law.pace.edu/cases/991103g1.html>].

102. CLOUT case No. 378 [ITALY Tribunale [District Court] Vigevano 12 July 2000, available online at <http://cisgw3.law.pace.edu/cases/000712i3.html>] (even supposing that the defects could not have been discovered at delivery, the buyer should have discovered them at the latest when processing the goods and given notice immediately thereafter, while it waited until it received complaints by its own customer); [GERMANY Landgericht [District Court] Düsseldorf 23 June 1994, available online at <http://cisgw3.law.pace.edu/cases/940623g1.html>].

103. CLOUT case No. 225 [FRANCE Cour d'appel [Appellate Court] Versailles 29 January 1998, available online at <http://cisgw3.law.pace.edu/cases/980129f1.html>]; [NETHERLANDS Hoge Raad [Supreme Court] 20 February 1998, available online at <http://cisgw3.law.pace.edu/cases/980220n1.html>]; [ITALY Tribunale [District Court] Busto Arsizio 13 December 2001, available online at <http://cisgw3.law.pace.edu/cases/011213i3.html>] .

104. [ITALY Tribunale [District Court] Cuneo 31 January 1996, available online at <http://cisgw3.law.pace.edu/cases/960131i3.html>].

105. Id.; see also CLOUT case No. 310 [GERMANY Oberlandesgericht [Appellate Court] Düsseldorf 12 March 1993, available online at <http://cisgw3.law.pace.edu/cases/930312g1.html>]; 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. 378 [ITALY Tribunale [District Court] Vigevano 12 July 2000, available online at <http://cisgw3.law.pace.edu/cases/000712i3.html>].

106. E.g., [AUSTRIA Oberster Gerichtshof [Supreme Court] 27 August 1999, available online at <http://cisgw3.law.pace.edu/cases/990827a3.html>] (suggesting a presumptive period of 14 days for examining the goods and giving notice "[i]nsofar as there are no specific circumstances militating in favor of a shorter or longer period"); CLOUT case No. 284 [GERMANY Oberlandesgericht [Appellate Court] Köln 21 August 1997, available online at <http://cisgw3.law.pace.edu/cases/970821g1.html>]; CLOUT case No. 164 [HUNGARY Budapest Arbitration Award case No. Vb 94131 of 5 December 1995, available online at <http://cisgw3.law.pace.edu/cases/951205h1.html>] (see full text of the decision).

107. CLOUT case No. 167 [GERMANY Oberlandesgericht [Appellate Court] München 8 February 1995, available online at <http://cisgw3.law.pace.edu/cases/950208g2.html>] (see full text of the decision).

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

109. CLOUT case No. 192 SWITZERLAND Obergericht [Appellate Court] Luzern 8 January 1997, available online at <http://cisgw3.law.pace.edu/cases/970108s1.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).

110. [GERMANY Landgericht [District Court] Landshut 5 April 1995, available online at <http://cisgw3.law.pace.edu/cases/950405g1.html>] (presumptive time period for defects that are not hidden).

111. 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>]. The latter case indicated that the presumptive periods it proposed applied where the goods were textiles.

112. CLOUT case No. 280 [GERMANY Oberlandesgericht [Appellate Court] Jena 26 May 1998, available online at <http://cisgw3.law.pace.edu/cases/980526g1.html>]; 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, CLOUT case No. 270 [GERMANY Bundesgerichtshof [Supreme Court] 25 November 1998, available online at <http://cisgw3.law.pace.edu/cases/981125g1.html>] (presumptive period applicable to non-perishable goods).

113. CLOUT case No. 359 [GERMANY Oberlandesgericht [Appellate Court] Koblenz 18 November 1999, available online at <http://cisgw3.law.pace.edu/cases/991118g1.html>] (applicable to case of obvious defects); CLOUT case No. 251 [SWITZERLAND Handelsgericht [Commercial Court] Zürich 30 November 1998, available online at <http://cisgw3.law.pace.edu/cases/981130s1.html>] (also proposing presumptive period of seven to 10 days for examination).

114. 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. 289 [GERMANY Oberlandesgericht [Appellate Court] Stuttgart 21 August 1995, available online at <http://cisgw3.law.pace.edu/cases/950821g1.html>]; [GERMANY Amtsgericht [Lower Court] Augsburg 29 January 1996, available online at <http://cisgw3.law.pace.edu/cases/960129g1.html>]; CLOUT case No. 319 [GERMANY Bundesgerichtshof [Supreme Court] 3 November 1999, available online at <http://cisgw3.law.pace.edu/cases/991103g1.html>]. See also CLOUT case No. 164 [HUNGARY Budapest Arbitration Award case No. Vb 94131 of 5 December 1995, available online at <http://cisgw3.law.pace.edu/cases/951205h1.html>] (suggesting acceptance of a notice period of approximately one month in general, but finding that facts of particular case required quicker notice) (see full text of the decision).

115. CLOUT case No. 290 [GERMANY Oberlandesgericht [Appellate Court] Saarbrücken 3 June 1998, available online at <http://cisgw3.law.pace.edu/cases/980603g1.html>] (in sales of fresh flowers, notice should be given on day of delivery); 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), reversed on other grounds CLOUT case No. 270 [GERMANY Bundesgerichtshof [Supreme Court] 25 November 1998, available online at <http://cisgw3.law.pace.edu/cases/981125g1.html>] (asserting that notice of defects in perishable goods often due in a few hours). See also [GERMANY Amtsgericht [Lower Court] Riedlingen 21 October 1994, available online at <http://cisgw3.law.pace.edu/cases/941021g1.html>], where the court stated that the buyer should have examined ham within 3 days and given notice within further three days. Although the goods in that case were perishable, the court did not specifically mention this factor in setting out its time limits.

116. [ITALY Tribunale [District Court] Cuneo 31 January 1996, available online at <http://cisgw3.law.pace.edu/cases/960131i3.html>]; CLOUT case No. 310 [GERMANY Oberlandesgericht [Appellate Court] Düsseldorf 12 March 1993, available online at <http://cisgw3.law.pace.edu/cases/930312g1.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. 378 [ITALY Tribunale [District Court] Vigevano 12 July 2000, available online at <http://cisgw3.law.pace.edu/cases/000712i3.html>].

117. [BELGIUM Rechtbank [District Court] Kortrijk 16 December 1996, available online at <http://cisgw3.law.pace.edu/cases/961216b1.html>]; CLOUT case No 310 [GERMANY Oberlandesgericht [Appellate Court] Düsseldorf 12 March 1993, available online at <http://cisgw3.law.pace.edu/cases/930312g1.html>] (see full text of the decision): 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); [GERMANY Landgericht [District Court] Landshut 5 April 1995, available online at <http://cisgw3.law.pace.edu/cases/950405g1.html>]; [GERMANY Landgericht [District Court] Berlin 16 September 1992, available online at <http://cisgw3.law.pace.edu/cases/920916g1.html>]; [GERMANY Amtsgericht [Lower Court] Riedlingen 21 October 1994, available online at <http://cisgw3.law.pace.edu/cases/941021g1.html>]; [ITALY Tribunale [District Court] Cuneo 31 January 1996, available online at <http://cisgw3.law.pace.edu/cases/960131i3.html>]; [GERMANY Landgericht [District Court] Berlin 30 September 1992, available online at <http://cisgw3.law.pace.edu/cases/920930g1.html>]. Consideration of the obviousness of the defect may be more relevant to determining when the reasonable time for notice should commence (i.e., when the buyer ought to have discovered the lack of conformity) than to the question of the duration of the reasonable time.

118. CLOUT case No. 98 [NETHERLANDS Rechtbank [District Court] Roermond 19 December 1991, available online at <http://cisgw3.law.pace.edu/cases/911219n1.html>]; [ITALY Pretura [District Court] Torino 30 January 1997, available online at <http://cisgw3.law.pace.edu/cases/970130i3.html>] (referring to the "nature and value of the goods"); CLOUT case No. 378 [ITALY Tribunale [District Court] Vigevano 12 July 2000, available online at <http://cisgw3.law.pace.edu/cases/000712i3.html>].

119. CLOUT case No. 98 [NETHERLANDS Rechtbank [District Court] Roermond 19 December 1991, available online at <http://cisgw3.law.pace.edu/cases/911219n1.html>]; CLOUT case No. 290 [GERMANY Oberlandesgericht [Appellate Court] Saarbrücken 3 June 1998, available online at <http://cisgw3.law.pace.edu/cases/980603g1.html>]; CLOUT case No. 378 [ITALY Tribunale [District Court] Vigevano 12 July 2000, available online at <http://cisgw3.law.pace.edu/cases/000712i3.html>] (see full text of the decision). See also [NETHERLANDS Arrondissementsrechtbank [District Court] Zwolle 5 March 1997, available online at <http://cisgw3.law.pace.edu/cases/970305n1.html>] (citing perishable nature of goods as factor mandating a short period for examination under art. 38, which in turn meant that buyer's notice was given beyond a reasonable time from when it should have discovered the defects).

120. [GERMANY Amtsgericht [Lower Court] Augsburg 29 January 1996, available online at <http://cisgw3.law.pace.edu/cases/960129g1.html>].

121. CLOUT case No. 167 [GERMANY Oberlandesgericht [Appellate Court] München 8 February 1995, available online at <http://cisgw3.law.pace.edu/cases/950208g2.html>] (see full text of the decision). See also CLOUT case No. 248 [SWITZERLAND Bundesgericht [Supreme Court] 28 October 1998, available online at <http://cisgw3.law.pace.edu/cases/981028s1.html>] (noting that the appeals court did not review lower court's decision that notice was timely because the goods consisted of frozen rather than fresh meat).

122. [NETHERLANDS Gerechtshof [Appellate Court] 's-Hertogenbosch 15 December 1997, available online at <http://cisgw3.law.pace.edu/cases/971215n1.html>]; [BELGIUM Rechtbank [District Court] Kortrijk 16 December 1996, available online at <http://cisgw3.law.pace.edu/cases/961216b1.html>]; see also [NETHERLANDS Arrondissementsrechtbank [District Court] Zwolle 5 March 1997, available online at <http://cisgw3.law.pace.edu/cases/970305n1.html>] (citing buyer's plans to process goods as factor mandating a short period for examination under art. 38, which in turn meant that buyer's notice was given beyond a reasonable time from when it should have discovered the defects).

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

124. [BELGIUM Rechtbank [District Court] Kortrijk 16 December 1996, available online at <http://cisgw3.law.pace.edu/cases/961216b1.html>]; [NETHERLANDS Arrondissementsrechtbank [District Court] Zwolle 5 March 1997, available online at <http://cisgw3.law.pace.edu/cases/970305n1.html>].

125. CLOUT case No 164 [HUNGARY Budapest Arbitration Award case No. Vb 94131 of 5 December 1995, available online at <http://cisgw3.law.pace.edu/cases/951205h1.html>] (see full text of the decision).

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

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

128. CLOUT case No. 219 [SWITZERLAND Tribunal [Appellate Court] Valais 28 October 1997, available online at <http://cisgw3.law.pace.edu/cases/971028s1.html>] (see full text of the decision). See also CLOUT case No. 341 [CANADA La San Giuseppe v. Forti Moulding Ltd. Ontario Superior Court of Justice 31 August 1999, available online at <http://cisgw3.law.pace.edu/cases/990831c4.html>] where on disputed evidence the court concluded the buyer had not given the seller notice of lack of conformity.

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

130. CLOUT case No. 262 [SWITZERLAND Gerichtskommission Oberrheintal Kanton St. Gallen 30 June 1995, available online at <http://cisgw3.law.pace.edu/cases/950630s1.html>]; CLOUT case No. 263 [SWITZERLAND Bezirksgericht [District Court] Unterrheintal 16 September 1998, available online at <http://cisgw3.law.pace.edu/cases/980916s1.html>].

131. [BELGIUM Tribunal commercial [District Court] Bruxelles 5 October 1994, available online at <http://cisgw3.law.pace.edu/cases/941005b1.html>].

132. CLOUT case No. 256 [SWITZERLAND Tribunal cantonal [Appellate Court] Valais 29 June 1998, available online at <http://cisgw3.law.pace.edu/cases/980629s1.html>].

133. 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. 378 [ITALY Tribunale [District Court] Vigevano 12 July 2000, available online at <http://cisgw3.law.pace.edu/cases/000712i3.html>].

134. CLOUT case No. 192 SWITZERLAND Obergericht [Appellate Court] Luzern 8 January 1997, available online at <http://cisgw3.law.pace.edu/cases/970108s1.html>]; [GERMANY Landgericht [District Court] Berlin 16 September 1992, available online at <http://cisgw3.law.pace.edu/cases/920916g1.html>].

135. [NETHERLANDS Gerechtshof [Appellate Court] Arnhem 17 June 1997, available online at <http://cisgw3.law.pace.edu/cases/970617n1.html>]; [BELGIUM Rechtbank [District Court] Kortrijk 27 June 1997, available online at <http://cisgw3.law.pace.edu/cases/970627b1.html>]; CLOUT case No. 167 [GERMANY Oberlandesgericht [Appellate Court] München 8 February 1995, available online at <http://cisgw3.law.pace.edu/cases/950208g2.html>].

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

137. [BELGIUM Rechtbank [District Court] Kortrijk 16 December 1996, available online at <http://cisgw3.law.pace.edu/cases/961216b1.html>]; CLOUT case No. 81 [GERMANY Oberlandesgericht [Appellate Court] Düsseldorf 10 February 1994, available online at <http://cisgw3.law.pace.edu/cases/940210g1.html>].

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

139. [GERMANY Amtsgericht [Lower Court] Kehl 6 October 1995, available online at <http://cisgw3.law.pace.edu/cases/951006g1.html>].

140. [GERMANY Landgericht [District Court] Mönchengladbach 22 May 1992, available online at <http://cisgw3.law.pace.edu/cases/920522g1.html>].

141. CLOUT case No. 359 [GERMANY Oberlandesgericht [Appellate Court] Koblenz 18 November 1999, available online at <http://cisgw3.law.pace.edu/cases/991118g1.html>]; CLOUT case No. 310 [GERMANY Oberlandesgericht [Appellate Court] Düsseldorf 12 March 1993, available online at <http://cisgw3.law.pace.edu/cases/930312g1.html>].

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

143. [ITALY Tribunale [District Court] Cuneo 31 January 1996, available online at <http://cisgw3.law.pace.edu/cases/960131i3.html>].

144. 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] Köln 11 November 1993, available online at <http://cisgw3.law.pace.edu/cases/931111g1.html>], reversed on grounds that CISG was inapplicable by CLOUT case No. 122 [GERMANY Oberlandesgericht [Appellate Court] Köln 26 August 1994, available online at <http://cisgw3.law.pace.edu/cases/940826g1.html>].

145. [GERMANY Amtsgericht [Lower Court] Riedlingen 21 October 1994, available online at <http://cisgw3.law.pace.edu/cases/941021g1.html>]; [GERMANY Landgericht [District Court] Berlin 16 September 1992, available online at <http://cisgw3.law.pace.edu/cases/920916g1.html>].

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

147. CLOUT case No. 4 [GERMANY Landgericht [District Court] Stuttgart 31 August 1989, available online at <http://cisgw3.law.pace.edu/cases/890831g1.html>].

148. 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).

149. CLOUT case No. 290 [GERMANY Oberlandesgericht [Appellate Court] Saarbrücken 3 June 1998, available online at <http://cisgw3.law.pace.edu/cases/980603g1.html>].

150. [ITALY Pretura [District Court] Torino 30 January 1997, available online at <http://cisgw3.law.pace.edu/cases/970130i3.html>].

151. [NETHERLANDS Hoge Raad [Supreme Court] 20 February 1998, available online at <http://cisgw3.law.pace.edu/cases/980220n1.html>].

152. [GERMANY Landgericht [District Court] Berlin 16 September 1992, available online at <http://cisgw3.law.pace.edu/cases/920916g1.html>].

153. 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).

154. CLOUT case No 164 [HUNGARY Budapest Arbitration Award case No. Vb 94131 of 5 December 1995, available online at <http://cisgw3.law.pace.edu/cases/951205h1.html>] (see full text of the decision).

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

156. CLOUT case No. 280 [GERMANY Oberlandesgericht [Appellate Court] Jena 26 May 1998, available online at <http://cisgw3.law.pace.edu/cases/980526g1.html>]; CLOUT case No. 196 [SWITZERLAND Handelsgericht [Commercial Court] Zürich 26 April 1995, available online at <http://cisgw3.law.pace.edu/cases/950426s1.html>] (see full text of the decision).

157. [NETHERLANDS Gerechtshof [Appellate Court] 's-Hertogenbosch 15 December 1997, available online at <http://cisgw3.law.pace.edu/cases/971215n1.html>].

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

159. CLOUT case No. 48 [GERMANY Oberlandesgericht [Appellate Court] Düsseldorf 8 January 1993, available online at <http://cisgw3.law.pace.edu/cases/930108g1.html>]. Several other decisions have found that the buyer's notice was untimely, although the precise time of the buyer's notice is not clear. In this respect see CLOUT case No. 210 [SPAIN Audienca Provincial [Appellate Court] Barcelona 20 June 1997, available online at <http://cisgw3.law.pace.edu/cases/970620s4.html>]; CLOUT case No. 339 [GERMANY Landgericht [District Court] Regensburg 24 September 1998, available online at <http://cisgw3.law.pace.edu/cases/980924g1.html>]; CLOUT case No. 56 [SWITZERLAND Pretore [District Court] Canton of Ticino, Locarno Campagna 27 April 1992, available online at <http://cisgw3.law.pace.edu/cases/920427s1.html>]; [NETHERLANDS Arrondissementsrechtbank [District Court] Zwolle 5 March 1997, available online at <http://cisgw3.law.pace.edu/cases/970305n1.html>].

160. CLOUT case No. 229 [GERMANY Bundesgerichtshof [Supreme Court] 4 December 1996, available online at <http://cisgw3.law.pace.edu/cases/961204g1.html>] (see full text of the decision).

161. 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).

162. [GERMANY Landgericht [District Court] Bielefeld 18 January 1991, available online at <http://cisgw3.law.pace.edu/cases/910118g1.html>].

163. Helsinki Court of First Instance, Finland, 11 June 1995, and [FINLAND Hovioikeus / Hovrätt [Appellate Court] Helsinki 30 June 1998, available online at <http://cisgw3.law.pace.edu/cases/980630f5.html>].

164. [GERMANY Oberlandesgericht [Appellate Court] Köln, 22 February 1994, available online at <http://cisgw3.law.pace.edu/cases/940222g1.html> (noting that buyer examined goods at the beginning of July and gave notice on or before July 8, which the court held was timely, particularly in light of fact that July 4 and 5 were weekend days).

165. 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).

166. CLOUT case No. 225 [FRANCE Cour d'appel [Appellate Court] Versailles 29 January 1998, available online at <http://cisgw3.law.pace.edu/cases/980129f1.html>] (see full text of the decision); see also [ITALY Tribunale [District Court] Busto Arsizio 13 December 2001, available online at <http://cisgw3.law.pace.edu/cases/011213i3.html>] (notice made immediately after installation of machinery reasonable, followed by subsequent notices regarding further discoveries made by the buyer).

167. GERMANY Landgericht [District Court] Frankfurt 9 December 1992, available online at <http://cisgw3.law.pace.edu/cases/921209g1.html>].

168. 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).

169. CLOUT case No. 319 [GERMANY Bundesgerichtshof [Supreme Court] 3 November 1999, available online at <http://cisgw3.law.pace.edu/cases/991103g1.html>].

170. CLOUT case No. 202 [FRANCE Cour d'appel [Appellate Court] Grenoble 13 September 1995, available online at <http://cisgw3.law.pace.edu/cases/950913f1.html>]. Several other decisions have found that the buyer's notice was timely, although the precise period found reasonable by the court is not clear; see CLOUT case No. 98 [NETHERLANDS Rechtbank [District Court] Roermond 19 December 1991, available online at <http://cisgw3.law.pace.edu/cases/911219n1.html>]; [GERMANY Landgericht [District Court] Paderborn 25 June 1996, available online at <http://cisgw3.law.pace.edu/cases/960625g1.html>].

171. The buyer's obligation to give notice under article 39(2) is also subject to article 40, which prevents the seller from invoking article 39 "if the lack of conformity relates to facts of which he knew or could not have been unaware and which he did not disclose to the buyer".

172. See [GERMANY Landgericht [District Court] Marburg 12 December 1995, available online at <http://cisgw3.law.pace.edu/cases/951212g1.html>], where the court invoked article 39(2) to deny the buyer any remedy for a claimed lack of conformity.

173. CLOUT case No. 344 [GERMANY Landgericht [District Court] Erfurt 29 July 1998, available online at <http://cisgw3.law.pace.edu/cases/980729g1.html>]; [GERMANY Landgericht [District Court] Marburg 12 December 1995, available online at <http://cisgw3.law.pace.edu/cases/951212g1.html>]. Both of these cases held that, because the notice given by the buyer was not specific enough to satisfy article 39(1), the two-year period in article 39(2) had elapsed before proper notice was given. Neither court, apparently, considered the possibility that the buyer's notice might have been sufficient to satisfy article 39(2) even though it did not comply with the specificity requirement in article 39(1).

174. CLOUT case No. 249 [SWITZERLAND Cour de Justice [Appellate Court] Genève 10 October 1997, available online at <http://cisgw3.law.pace.edu/cases/971010s1.html>].

175. CLOUT case No. 202 [FRANCE Cour d'appel [Appellate Court] Grenoble 13 September 1995, available online at <http://cisgw3.law.pace.edu/cases/950913f1.html>] (see full text of the decision); CLOUT case No. 302 [ICC Court of Arbitration, case No. 7660 of 23 August 1994, available online at <http://cisgw3.law.pace.edu/cases/947660i1.html>]; CLOUT case No. 300 [ICC Court of Arbitration, case No. 7565 of 1994, available online at <http://cisgw3.law.pace.edu/cases/947565i1.html>].

176. CLOUT case No. 302 [ICC Court of Arbitration, case No. 7660 of 23 August 1994, available online at <http://cisgw3.law.pace.edu/cases/947660i1.html>].

177. CLOUT case No. 300 [ICC Court of Arbitration, case No. 7565 of 1994, available online at <http://cisgw3.law.pace.edu/cases/947565i1.html>].

178. 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>] (see full text of the decision).

179. CLOUT case No. 300 [ICC Court of Arbitration, case No. 7565 of 1994, available online at <http://cisgw3.law.pace.edu/cases/947565i1.html>].


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

[...]

2. Notice of Non-conformity: Article 39

The majority of the opinions of national courts on inspection and notice have focused on interpreting Article 39. These opinions have focused on determining a reasonable time for notice of lack of conformity, the buyer's obligations with respect to the discovery of defects, and the specificity of the required notice.

There are numerous opinions of national courts addressing the time in which the buyer must give notice of lack of conformity to the seller. Unfortunately, these opinions are completely lacking in uniformity. The opinions have required notice within a wide range of time from immediate to an extended period of time after delivery. The one common element of these opinions is the placement of the burden on the buyer to demonstrate the reasonableness of the time in which it gave notice of non-conformity to [page 364] the seller.[367]

An initial group of opinions held that notice of non-conformity needed to be sent within an immediate or very short period of time. For example, a national court in Denmark required a Russian purchaser of a load of fish give "prompt" notice of the non-conformity of the species ultimately delivered by the seller.[368] In a similar vein, a Belgian court held that the Dutch buyer of neon signage was required to give notice of non-conformity to the Belgian seller within a "short time."[369] By contrast, a Dutch court required notice of non-conformity of cheese products within a short period of time after delivery.[370] Similarly, a German court held that a German buyer of textiles that failed to provide notice of non-conformity to the French seller within a few days of delivery was not in compliance with the requirement of reasonable notice set forth in Article 39.[371]

Some courts have linked the time within which inspection must occur pursuant to Article 38 to the time within which notice of non-conformity must be given pursuant to Article 39. For example, a German court required immediate inspection and notice of non-conformity by a German purchaser of flowers from an Italian seller.[372] Similarly, another court required that a German buyer of shoes provide the Italian seller notice of non-conformities one day after delivery.[373]

There are another group of opinions that have granted buyers extended periods of time to give notice of non-conformities. For example, despite the ease of discovery of non-conformities in a shipment of lambskin jackets from a Swiss seller to a buyer in Liechtenstein, a Swiss court held that the buyer had seven to fourteen days within which to notify the seller.[374] In a similar fashion, a German court required an Austrian buyer to inform a German seller of non-conformities in plastic granulate within eight days of delivery.[375] This period of time was extended to ten days by a different German court.[376] Two courts have extended the notice period to two weeks [page 365] for similar goods.[377]

The national courts of four states have extended the period of notification beyond two weeks. These cases have set a specific time for notification of non-conformities beyond two weeks or have set an indefinite period of time for such notification depending on the circumstances. For example, courts in Germany and Switzerland have granted buyers one month from the date of delivery to notify sellers of non-conformities. This one-month period has been deemed applicable to a wide range of perishable and nonperishable goods.[378] By contrast, national courts in Italy and the Netherlands have refused to set specific dates for the buyer's notification. Specifically, an Italian court held that a German buyer of vulcanized rubber should have provided notice to the Italian seller of non-conformities immediately upon processing the product.[379] However, the court did not set a time within which such processing was to occur other than to note that four months after delivery was untimely.[380] A similar result was reached by a court in the Netherlands in its determination that a Greek buyer of furs from a Dutch seller should have provided notice of non-conformities prior to processing of the product.[381] The Dutch court did not set a specific time for such processing to occur other than to conclude that notice provided three weeks after delivery was untimely.[382]

There are far fewer cases addressing the time within which notice must given in the event of redirection of the goods in transit by the buyer to a third party. Opinions have established two preconditions for granting delays in providing notice of non-conformity. Initially, delays in providing notice will only be permitted when the buyer serves as a simple intermediary or when the goods are directly delivered to the end user.[383] Delays in providing notice will not be excused when, at the time of the delivery at the buyer's facilities, the buyer does not know to what extent and when the goods will be resold to its customers.[384] In addition, delays will not be countenanced in the event that the buyer has a "real opportunity" [page 366] to examine the goods despite their transshipment to a third party end user.[385]

In the event of transshipment, national courts have not permitted prolonged delays in giving of notice. In a case involving the sale of adhesive foil covers by a German seller to an Austrian buyer, the court held that notice of defects provided twenty-four days after delivery of the goods to the ultimate end user was untimely.[386] The court held that notice within ten or eleven days after delivery was reasonable under the circumstances.[387] A key fact was that the defect was apparent and could easily have been discovered by the buyer and its end user upon delivery.[388]

A number of decisions have upheld the enforceability of contractual provisions altering the notice requirements of Article 39.[389] However, in order for such an alteration to be effective, particularized consent [390] must be given by the disadvantaged party. The party must have been aware that the CISG is applicable to the specific contract in question and demonstrate an affirmative intent to exclude its application.[391] Furthermore, the period of time selected by the parties for the provision of notice must be reasonable.[392] The opinions of national courts to date have found contractually designated periods of time ranging from eight to fourteen days to be reasonable and thus enforceable.[393] Courts in Germany and the Netherlands have also accepted notification periods consistent with accepted usages within the trade.[394]

The requirement of timely notice also raises the issue of the buyer's obligation with respect to the discovery of defects. The court opinions focus on the ease of discovery of the alleged non-conformity. In addition, [page 367] court opinions concluding that the buyer's notice was untimely have concentrated on whether the defect was apparent from examination of the goods at the time of their delivery, from the time of subsequent processing, or at the time they were incorporated as a component in an end product. In Handelsagentur v. DAT-SCHAUB A/S,[395] a Danish court refused to excuse an untimely notice with respect to non-conformities that were easily detectable upon the completion of a reasonable inspection at the time of delivery. German and Dutch courts have declined to give effect to notices when the defects were readily apparent upon subsequent processing that was to occur as soon as practicable after delivery.[396] The buyer's notice obligations are also triggered by defects that become apparent when the goods are incorporated into an end product. [397]

By contrast, untimely notice of defects will be excused in the event the non-conformity was one of which the seller knew and actively concealed it from the buyer. Thus, a German court excused an untimely notice from a German buyer with respect to wine that was intentionally adulterated with water by an Italian seller.[398] Similarly, a Dutch court excused untimely notice from a Dutch buyer with respect to infested cheese delivered by an Italian seller.[399] National courts have also excused untimely notice in the event the defect could only have been discovered through the performance of inspections that are not customary in the trade.[400] At least one court has also excused untimely notice when the non-conformity is such that its existence could only have been detected by a highly trained expert, such as [page 368] a health professional.[401] In any event, the burden of presenting evidence with respect to the seller's misconduct or knowledge or the latency of the non-conformity rests with the buyer.[402]

The courts have dealt with Article 39's requirement of specificity of notice. The specificity of notice is important in informing the seller of what actions are necessary to remedy the non-conformity and provides the seller with a basis for conducting his own examination of the goods.[403] As a result, a notice merely stating that the goods are non-conforming is insufficient to excuse the buyer's contractual performance.[404] If the non-conformity is capable of precise description, such description must be provided to the seller on a timely basis.[405] Furthermore, the notice must identify defects and demand remediation rather than constitute a request for assistance in addressing specific problems.[406]

There are numerous cases in which buyers have lost their rights to reject goods because their notices lacked specificity. A German court refused to give effect to a notice that informed the seller of flowers that its goods were of "bad quality" and "poor appearance."[407] Similarly, German and Italian courts have deemed notices stating that the goods are "defective" or "present problems" as lacking sufficient specificity to be effective pursuant to Article 39.[408] A Swiss court refused to give effect to a [page 369] notice an Italian seller that its furniture had "wrong parts" and was "full of breakages."[409]

German courts have devised rules with respect to specificity of the required notice in the event the subject matter of the contract consists of an integrated system or multiple components or deliveries. With respect to an integrated system containing defects, the notice of non-conformity must specifically identify the defective components.[410] Reference to the system in its entirety is insufficient to satisfy the requirements of Article 39.[411] Rather, the notice must precisely identify the defective components by serial number and date of delivery.[412] Similar rules are applicable to sales consisting of multiple items or deliveries. In such circumstances, the notice must identify those items or deliveries that are defective.[413] A notice deeming the entire performance to be defective not specifically identifying the items or specific deliveries do not meet the strict requirements of Article 39.[414] [page 370]

[...]


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.

[...]

367. See, e.g., OLG Koblenz 3 O 212/97, Jul. 30, 1998 (F.R.G.), available at <http://cisgw3.law.pace.edu/cases/980730g1.html>.

368. Handelsagentur v. DAT-SCHAUB A/S, Handelsretten [Maritime Comm. Ct.] Copenhagen, n. H-0126-98, Jan. 31, 2002.

369. Epsilon BVBA v. Interneon Valkenswaard BV, Rechtbank van Koophandel, Hasselt, n. AR 1972/96, Jan. 21, 1997 (Belg.), available at [<http://cisgw3.law.pace.edu/cases/970121b1.html>].

370. See Rb. Roermond, Dec. 19, 1991, supra note 345.

371. See OLG Düsseldorf RIW, 1050-51, Feb 10, 1994, supra note 340.

372. OLG Saarbrücken 1 U 703/97-143, June 3, 1998, supra note 345.

373. See LG Aachen 41 O 198/89, Apr. 3,1990, supra note 346.

374. See HG Zürich, SZ HG 930634/O, Nov. 30, 1998, supra note 339.

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

376. See OLG Karlsruhe, 1 U 280/96, Jun. 25, 1997, supra note 346 .

377. See Giustina Int'l S.p.A. v. Perfect Circle Europe SARL, CA Versailles, Cass. Com., no. 56, Jan. 29, 1998 (Fr.), available at [<http://cisgw3.law.pace.edu/cases/980129f1.html>] [English translation by Sant 'Elia, translation edited by Kirsten Statländer]; see also OLG Koblenz 14 S 358/94, Jul. 7, 1995, supra note 339 (chemical compounds).

378. See, e.g., AG Augsburg n. 11 C 4004/95, Jan. 29, 1996 (F.R.G.), available at [<http://cisgw3.law.pace.edu/cases/960129g1.html>] (shoes).

379. OG, 11 95 123/357, Jan. 8, 1997, supra note 93.

380. Id.

381. See Nurka Furs/Nertsenfokkerij De Ruiter, HOF Hertogenbosch C9700046/HE, Dec. 15, 1997 (Neth.), available at <http://cisgw3.law.pace.edu/cases/971215n1.html>.

382. Id.

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

384. Id.

385. OG, 11 95 123/357, Jan. 8, 1997, supra note 93.

386. See OLG Karlsruhe 1 U 280/96, June 25, 1997, supra note 346.

387. Id.

388. Id. Similarly, in a case involving the purchase of plastic granulate by an Austrian buyer from a German seller, the court held that the Danish end user's notice of defects one month after delivery was untimely. OLG München 7 U 3758/94, Feb. 8, 1995, supra note 347. This conclusion was further bolstered by the Austrian buyer's additional two month delay in communicating this notice of non-conformity to the German seller. Id.

389. See, e.g., LG Hannover 22 O 107/93, Dec. 1, 1993, supra note 362.

390. See infra Part VII.A.2.

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

392. See, e.g., OLG München 7 U 4427/97, Mar. 11, 1998, supra note 301.

393. Id. (fourteen days after delivery for the provision of notice of non-conformity in the sale of cashmere textiles); see also OLG Saarbrücken 1 U 69/92, Jan. 13, 1993, supra note 299 (eight days after delivery for the provision of notice of non-conformity in the sale of doors); LG Hannover, 22 O 107/93, Dec. 1, 1993, supra note 362 (ten days from the date of delivery for the provision of notice of non-conformity in the sale of shoes).

394. See, e.g., OLG Saarbrücken 1 U 69/92, Jan. 13, 1993, supra note 299, (trade usages in the door manufacturing industry); HA ZA 95-640, Mar. 5, 1997, supra note 344 (trade usages in the fish industry). However, usages are superseded by the specific notification requirements contained in the contract.

395. See Maritime Comm. Ct. of Copenhagen, H-0126-98, Jan. 31, 2002, supra note 342 (non-conformity of species of fish sold by Danish seller to Russian buyer easily detectable from examination of the label and packaging); see also OLG München 7 U 4427/97, Mar. 11, 1998, supra note 301 (spot checks of cashmere textiles by the German buyer at the time of their delivery by the Italian seller would have disclosed defects).

396. See OLG Koblenz 2 U 580/96, Sept. 11, 1998 (F.R.G.) (non-conformity of chemicals purchased by Moroccan buyer from German seller were readily apparent when chemicals were utilized to manufacture plastic tubes one month after delivery) available at <http://cisgw3.law.pace.edu/cases/980911g1.html> [English translation by Todd J. Fox, translation edited by Ruth M. Janal]; see also OLG Karlsruhe 1 U 280/96, June 25, 1997, supra note 346 (non-conformity of adhesive foil covers purchased by Austrian buyer from German seller was readily discoverable at the time of their subsequent processing); HA ZA 95-640, Mar. 5, 1997, supra note 344 (non-conformity of fish purchased by Dutch buyer from French seller was readily apparent upon processing, which should have occurred as soon as practicable after delivery given the perishable nature of the product).

397. See, e.g., OLG Köln 18 U 121/97, Aug. 21, 1997 (F.R.G.) (defect in chemicals utilized to produce glass were readily discoverable upon their incorporation into the manufacturing process), available at <http://cisgw3.law.pace.edu/cases/970821g1.html> [English translation by Julian Waiblinger].

398. See LG Trier 7 HO 78/95, Oct. 12, 1995, supra note 358.

399. See Rb. Roermond, Dec. 19, 1991, supra note 345.

400. See, e.g., LG Trier 7 HO 78/95, Oct. 12, 1995, supra note 358 (holding that inspections to determine if wine had been adulterated with water were not customarily undertaken in the wine industry).

401. See OLG Thüringener 8 U 1667/97, May 26, 1998 (F.R.G.) (excusing untimely notice by a German buyer of live fish from a Czech seller on the basis that only a health professional could have determined that the fish suffered from a viral infection at the time of their delivery), available at <http://cisgw3.law.pace.edu/cases/980526g1.html> [English translation by Ruth M. Janal, translation edited by Camilla Baasch Andersen].

402. Id. See also, Trib. di Vigevano, July 12, 2000, n. 405, supra note 340; HG Zürich, HG 930634, Nov. 11, 1998 (Switz.), available at <http://cisgw3.law.pace.edu/cases/981130s1.html>.

403. See LG Erfurt 3 HKO 43/98, Jul. 29, 1998 (F.R.G.), available at <http://cisgw3.law.pace.edu/cases/980729g1.html> [English translation by Ruth M. Janal, translation edited by Camilla Baasch Andersen].

404. See LG Hannover 22 O 107/93, Dec. 1, 1993, supra note 362.

405. Id. (shoes); See also, LG Regensberg 6 O 107/98, Sept 24, 1998 (F.R.G.) (textiles), available at <http://cisgw3.law.pace.edu/cases/980924g1.html> [English translation by Ruth M. Janal, translation edited by Camilla Baasch Andersen]; LG Erfurt 3 HKO 43/98, Jul. 29, 1998, supra note 403 (soles); Bronneberg/Ceramica Belvedere, HR, Feb. 20, 1998, NJ 480 (Neth.) (floor tiles), available at <http://cisgw3.law.pace.edu/cases/980220n1.html>; HG Zürich, HG 930634, Nov. 11, 1998, supra note 340 (lambskin jackets).

406. See LG München 8 HKO 24667/93, Feb. 8, 1995 (F.R.G.) (sale of computer programs), available at <http://cisgw3.law.pace.edu/cases/950208g4.html> [English translation by Dr. Peter Feuerstein, translation edited by Todd J. Fox].

407. OLG Saarbrücken 1 U 703/97-143, Jun. 3, 1998, supra note 345.

408. LG Erfurt, 3 HKO 43/98, Jul. 29, 1998, supra note 403 (soles). See also Trib. di Vigevano, July 12, 2000, n. 405, supra note 340 (buyer did not retain samples of vulcanized rubber for trial and thus were unable to prove that seller sold defective rubber for shoes). Another German court reached the same conclusion with respect to a notice given by a German purchaser of leather goods from an Italian seller that the merchandise was "badly stamped" and incapable of sale to customers. OLG München 7 U 2070, Jul. 9, 1997 (F.R.G.), available at <http://cisgw3.law.pace.edu/cases/970709g1.html> [English translation by Tobias Koppitz].

409. Kantonsgericht [District Court] [KG] Nidwalden, 15/96 Z, Dec. 3, 1997 (Switz.), available at <http://cisgw3.law.pace.edu/cases/971203s1.html>.

410. See BGH VIII ZR 306/95, Dec. 4, 1996 (F.R.G.), available at <http://cisgw3.law.pace.edu/cases/961204g1.html> [English translation by Walter, Conston, Alexander & Green, P.C., editors: William M. Barron, Esq. & Birgit Kurtz, Esq.] (sale of a printing system).

411. Id.

412. See LG Marburg 2 O 246/95, Dec. 12, 1995 (F.R.G.), available at <http://cisgw3.law.pace.edu/cases/951212g1.html> [English translation by Ruth M. Janal, translation edited by Camilla Baasch Andersen] (sale of agricultural machinery).

413. LG München 10 HKO 23750/94, Mar. 20, 1995 (F.R.G.) available at <http://cisgw3.law.pace.edu/cases/950320g1.html> [English translation by Ruth M. Janal, translation edited by Camilla Baasch Andersen] (sale of frozen bacon).

414. LG Marburg 2 O 246/95, Dec. 12, 1995 supra note 412 (sale of agricultural machinery). Furthermore, as previously noted with respect to integrated systems, the serial numbers and dates of delivery of such components must be included in the notice in order to spare the seller the inconvenience of researching the sales documentation with respect to all of the components or deliveries.

[...]

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