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Article 43. Notice of Third-party Claim

TEXT OF ARTICLE 43

(1) The seller must deliver goods which are free from any right or claim of a third party based on industrial property or other intellectual property, of which at the time of the conclusion of the contract the seller knew or could not have been unaware, provided that the right or claim is based on industrial property or other intellectual property:

(a) under the law of the State where the goods will be resold or otherwise used, if it was contemplated by the parties at the time of the conclusion of the contract that the goods would be resold or otherwise used in that State; or

(b) in any other case, under the law of the State where the buyer has his place of business.

(2) The obligation of the seller under the preceding paragraph does not extend to cases where:

(a) at the time of the conclusion of the contract the buyer knew or could not have been unaware of the right or claim; or

(b) the right or claim results from the seller's compliance with technical drawings, designs, formulae or other such specifications furnished by the buyer.


OUTLINE OF ISSUES

Reproduced with permission of UNCITRAL

43A Buyer's obligation to notify seller:

43A1 Specifying nature of claim under articles 41 or 42

43A2 Within a reasonable time after buyer's awareness of claim

43A3 Effect of buyer's failure to give notice:

43A31 Loss of rights under arts. 41 or 42

43B Effect of seller's knowledge of claim and its nature:

43B1 Effect: No right to rely on art. 43(1)

43C Other issues


DESCRIPTORS

Property in the goods ; Intellectual property


CASE ANNOTATIONS: UNCITRAL DIGEST CASES PLUS ADDED CASES

UNCITRAL does not report any case law applications of Art. 43.
 

The following cases mention Art. 43.
 

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

Germany 21 March 2007 Oberlandesgericht [Appellate Court] Dresden (Stolen automobile case) 43A2 [translation available]
 

Germany 5 December 2006 Landgericht [District Court] Köln (Plastic faceplates for mobile telephones case) 43A [translation available]

Austria 12 September 2006 Oberster Gerichtshof [Supreme Court] (CD media case) 43A [translation available]

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

Germany 11 January 2006 Bundesgerichtshof [Supreme Court] (Automobile case) 43A1 ; 43A2 [translation available]
 

France 13 November 2002 Cour d’appel [Appellate Court] Colmar [translation available]
 

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

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


UNCITRAL CASE DIGEST

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

A/CN.9/SER.C/DIGEST/CISG/43 [8 June 2004]. Reproduced with the permission of UNCITRAL.

ARTICLE 43

     (1) The buyer loses the right to rely on the provisions of article 41 or article 42 if he does not give notice to the seller specifying the nature of the right or claim of the third party within a reasonable time after he has become aware or ought to have become aware of the right or claim.  

     (2) The seller is not entitled to rely on the provisions of the preceding paragraph if he knew of the right or claim of the third party and the nature of it.

Article 43 in general

1. Article 43(1) imposes on the buyer a notice requirement with respect to breaches of articles 41 and 42. Article 43(2) provides for a defense for a buyer’s failure to give the notice required by article 43(1). The provisions of article 43 parallel in many ways the notice requirement and defense thereto that articles 39 and 40 establish with respect to breaches of article 35.

2. There is very little in the way of decisions construing article 43. Presumably those called upon to interpret article 43(1) or 43(2) may look for guidance from the numerous decisions that apply the parallel provisions of article 39 and 40, although the differences between those provisions and article 43 should certainly be kept in mind.


Pace Law School Institute of International Commercial Law - Last updated March 30, 2009
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