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2012 UNCITRAL Digest of case law on the United Nations Convention on the International Sale of Goods

Digest of Article 39 case law [reproduced with permission of UNCITRAL] [*]

[Text of article
Overview
Scope of article 39
Consequences of failure to give notice
Burden of proof and evidence
Form of notice
To whom and by 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.

OVERVIEW

1. Under article 39, a buyer who claims that delivered goods do not conform to the contract has 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 notice of lack of conformity be given within a reasonable time after the buyer has discovered or ought to have discovered the lack of conformity; 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. As noted in Paragraphs 5, 7, 9, 14 and 19 below, other provisions of the CISG — including those governing interpretation of the parties' statements and conduct (article 8), the effect of practices established between the parties and trade usages (article 9), form requirements (articles 11 and 29), contract formation (articles 14-24), and the effectiveness of properly transmitted notice (article 27) — govern aspects of notice under article 39.[1]

Scope of Article 39

2. The notice obligation imposed by article 39 applies if the buyer claims that delivered goods[2] suffer from a lack of conformity, regardless of the cause of such nonconformity.[3] 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 under article 35, including that the goods were not adequately contained or packaged as required by article 35(2)(d).[4] 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.[5] On the other hand, where the seller had agreed to reimburse the buyer's costs in servicing goods (television sets) resold to the buyer's customers to the extent that the defect rate in the delivered goods exceeded five per cent, the court held that this provision "does not amount to a warranty agreement in the classical sense, to which articles ... 38 and 39 CISG would be applicable"; the buyer's failure to examine and give notice as required by articles 38 and 39 CISG, therefore, did not relieve the seller of its obligations under this clause.[6] Article 39 has been applied where the claimed lack of conformity was a failure to provide proper instruction manuals to accompany the goods,[7] and where a buyer claimed that the seller's attempts to repair delivered goods (attempts made after the buyer had originally notified the seller of a lack of conformity) were unsuccessful.[8] A buyer's allegation that the seller breached not only its obligations under article 35 but also a duty to provide information about the lack of conformity did not eliminate the buyer's obligation to give notice under article 39, according to one decision.[9] It has been held that article 39 requires notice when the buyer claims that an inadequate quantity (as opposed to quality) of goods was delivered,[10] as well as when the buyer claims that the seller delivered too many goods.[11] Each separate lack of conformity (with respect to each delivery, in the case of instalment contracts) is subject to the notice requirement,[12] 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.[13]

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,[14] the right to claim damages,[15] the right to reduce the price,[16] and the right to avoid the contract,[17] although one court appears to have permitted a buyer to partially avoid the contract based on a lack of conformity that had not been timely noticed.[18] Failure to satisfy the notice requirements of article 39 eliminates a buyer's defence, based on a lack of conformity in delivered goods, to a seller's claim for payment of the price.[19] One court has stated that, where a buyer fails to satisfy the notice requirements of article 39, "[t]he buyer remains obliged to perform all obligations under the contract, namely, to accept the goods with any defects and to pay the purchase price as a consequence thereto."[20] 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.[21]

Burden of Proof and Evidence

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[22] and by implication.[23] Although several decisions have invoked domestic legal rules to justify allocating the burden to the buyer,[24] a larger number have based their allocation on the CISG itself.[25] Decisions by Italian courts, for example, have expressly rejected reliance on domestic law in determining the burden of proof, and have discovered a general CISG principle (in the sense of article 7(2)) requiring the buyer to prove valid notice.[26] One decision explained that, to carry its burden, a buyer must prove when the non-conformity was discovered, the time and exact addressee of the notice of nonconformity, and the way in which the non-conformity was described in the notice; the court held that the buyer's general statement that it had notified the seller that many deliveries were non-conforming was not sufficient because the statement failed to identify the specific deliveries and non-conformities covered.[27] Another decision declared that a buyer "must prove when he became aware of the defects and to whom and how he gave notice."[28] Yet another decision held that the buyer failed to carry its burden of proving timely notice where its allegations of oral notice were denied by the seller, and the buyer had failed to indicate precisely when it gave notice or the specific deliveries to which such alleged notice related.[29] The buyer's proof also failed where witnesses could not confirm that notice had in fact been faxed because the witnesses had not personally sent the fax and were not present when it was allegedly dispatched; furthermore, the witnesses disagreed as to the addressee of the alleged fax.[30] Testimony by witnesses concerning a phone call made in their presence but in a foreign language has also been deemed inadequate proof.[31] On the other hand, where a buyer submitted delivery notes showing when the goods had been returned to the seller, along with copies of accompanying letters that specified the lack of conformity which prompted the return, the court found that the buyer had shown that it satisfied the requirements of article 39.[32]

Form of Notice

5. Article 39 does not specify the form of notice required, although the parties can by agreement require a particular form.[33] Absent such an agreement it has been stated that, in light of articles 11, 29 and 7(2) CISG, "the buyer is free to use any form in order to notify a non-conformity."[34] Notice in written form, specifically including fax messages and registered mail[35] or email,[36] has been found satisfactory. Notice given by filing a cross-claim in a law suit, it has been implied, could satisfy the requirements of article 39 — although on the facts of the case such notice was held to be untimely.[37] The contents of a series of communications have been combined in order to satisfy the article 39 requirement;[38] similarly, in determining the propriety of a buyer's written notice of a pony's lack of conformity, a court took into account the fact that the buyer had, before a "final diagnosis" of the pony's condition was made, "continuously advised the seller" of the pony's worsening con-dition;[39] another decision indicated that, if the buyer's notice left the seller unclear concerning the nature or extent of the claimed lack of conformity, "the seller can be expected to inquire of the buyer".[40] It has been suggested that a buyer's cross-claim alleging delivery of nonconforming goods, filed in response to the seller's law suit to collect the purchase price of the goods, might constitute notice of lack of conformity under article 39(1), although such notice was held to be untimely.[41]

6. Oral notice that occurred when the seller, at the buyer's suggestion, inspected the goods on the premises of the buyer's customer has been deemed adequate both in form and content.[42] Oral notice by telephone has also been found sufficient,[43] although in several cases evidentiary issues have caused a buyer's claim to have given telephonic notice to fail.[44] It has been held that a buyer claiming to have given notice by telephone must prove when the call took place, to whom the buyer spoke, and the information conveyed concerning the lack of conformity; failure to prove these elements prevents a buyer from establishing that the article 39 notice requirement was satisfied.[45] 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.[46] Where the buyer's representative testified with particularity as to the time, manner and content of telephonic notice, as well as to the specifics of related information discussed in the phone call, and the seller's employee who allegedly received the call testified merely that she did not recall the conversation, a court held that the buyer had provided sufficient evidence of notice.[47] 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.[48]

To Whom and by Whom Must Notice be Given

7. Article 39 states that the required notice of lack of conformity must be given to the seller.[49] 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.[50] Notice given to the manufacturer of the goods, rather than the seller, has also been held insufficient, unless it was shown that the manufacturer conveyed the information to the seller within the reasonable time specified in article 39(1).[51] 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.[52] 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.[53] 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.[54] And notice given to a member of the seller's corporate group was found sufficient where the entity that received the notice shared responsibility for the sale with the seller.[55]

8. Article 39 specifies that it is the buyer who is required to give the seller notice of a lack of conformity. Nevertheless, notice sent by the buyer's customer to the seller has been held to satisfy the requirements of article 39 where that notice contained a clear and timely complaint about the quality of goods that the seller had delivered to the buyer, and the seller accepted the complaints as notice of lack of conformity in its delivery to the buyer by responding with questions to the buyer about the defect as well as a request to examine the goods in the buyer's control.[56]

Agreements Relating to Notice

9. Article 39 is subject to the parties' power under article 6 to derogate from or vary the effect of any provision of the Convention.[57] 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.[58] 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.[59] 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,[60] and/ or they suggest that the contract provisions are enforceable only to the extent they are judged reasonable by the standards of article 39.[61] 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.[62] Parties also have been found not to have derogated from article 39 just by agreeing to an 18-month contractual warranty,[63] to a provision requiring the goods to be delivered in "ready-foruse condition,"[64] or to a guaranty agreement that did not expressly address the buyer's obligation to give notice of lack of conformity.[65] 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.[66] It has been held that a seller's standard term requiring the buyer to give written notice of claimed defects in the goods within eight days of delivery was incorporated into the contract where the buyer was familiar with the term from the parties' prior dealings and the seller had expressly referred to its standard terms in his offer;[67] and that the seller's standard terms requiring notice of lack of conformity within five days after delivery became part of the contract where the buyer, without objection, signed and returned an invoice containing those terms.[68] On the other hand, a court found it unnecessary to determine whether the notice period specified in the seller's standard terms had become part of the contract where application of the "reasonable time" period for giving notice under article 39 (1) led to the same result.[69] 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.[70]

Waiver by the Seller or the Buyer

10. 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 leading the buyer to think that the seller would not object to the buyer's notice.[71] 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.[72] On the other hand, a court invoked domestic law and a policy to encourage amicable settlements in concluding that a seller had not waived its right to claim that notice was untimely: the fact that the seller had accepted return of the goods in order to examine them and had granted the buyer a provisional pro forma credit for the price did not constitute a waiver, the court held.[73] 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.[74] A 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 had not waived its right to object to the timeliness of notice of a lack of conformity merely by entering into settlement negotiations with the buyer over the non-conformity, the seller's willingness to negotiate — 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 times the price for the goods — supported the conclusion that the seller had waived its right to object to late notice.[75] And where a seller had acknowledged that it had delivered the wrong goods, and had offered to provide the correct item, a court found that the seller had waived its right to rely on a lack of notice under article 39.[76] On the other hand, where the seller entered into settlement negotiations but never acknowledged that it had delivered nonconforming goods, denied any responsibility for the claimed deficiency, and never indicated any willingness to pay any compensation, the court found that the seller had not implicitly waived its rights under article 39.[77]

11. 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.[78]

12. 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.[79] 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.[80] And a buyer who paid outstanding invoices with bank cheques and then stopped payment on the cheques before they were honoured was deemed to have lost its right to complain of defects known when the cheques were provided.[81]

Article 39(1)— Purposes

13. 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 deemed to serve several different purposes. A number of decisions indicate that a purpose is to promote prompt clarification as to whether a breach has occurred.[82] 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,[83] and more specifically to facilitate the seller's cure of defects;[84] or "to take the necessary measures, such as to send a representative to the buyer to examine the goods, to secure the necessary evidence for potential disputes regarding conformity of the goods, to offer exchange, additional delivery or cure the defect, or to have recourse against a supplier."[85] In the case of an instalment contract it has been suggested that one purpose of article 39 notice is to clarify whether the buyer can expect the seller make further deliveries.[86] One decision states that the purpose is to promote the quick settlement of disputes and to assist the seller in defending himself.[87] It has also been suggested that article 39(1) assists the seller in defending himself against invalid claims.[88] The notice requirement has also been associated with a buyer's obligation of good faith.[89] One decision asserts that the purpose of article 39(1) notice is to permit a seller to prepare to defend itself against the allegations of lack of conformity and also, on the particular facts of the case, to serve the public health by allowing the seller to take measures against the spread of a virus allegedly infecting the goods (fish eggs).[90]

Contents of Notice: Specificity Required

14. 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. Article 8 of the CISG, governing interpretation of the parties' statements and conduct, has been applied in determining whether a buyer's notice was sufficiently specific.[91] Where the seller was a professional, notice was found to be adequate because it employed precise technical terms and prompted the seller to examine the goods — itself an indication that the notice was a sufficient communication.[92] Several decisions 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;[93] that mere general formulations are insufficient, and the notice "must be precise,"[94] although the notice need not "specify the shortcomings in detail";[95] that notice whose content did not prevent the seller from having an opportunity to cure the lack of conformity is sufficiently specific;[96] 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;[97] that notice should be specific enough to allow the seller to comprehend the buyer's claim and to take appropriate steps in response,[98] e.g., to examine the goods, to secure necessary evidence for potential disputes, to arrange for a substitute delivery or otherwise remedy the lack of conformity, or to have recourse against a supplier;[99] that the notice must give the seller "a complete picture of the complaints";[100] 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;[101] that notice should be sufficiently detailed that misunderstanding by the seller would be impossible and the seller could determine unmistakably what the buyer meant[102] without further investigation;[103] 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;[104] that "[t]he buyer will be expected to identify whether and to which extent he relies on an insufficient delivery, which specific deviations in terms of quality are complained about, and in what respect the delivered goods form a mere aliud compared with the goods owed under the contract;"[105] and that notification "must enable the other party to recognize the intention to complain about the condition of the goods and must specify the nature of the lack of conformity so as to enable the seller to understand what the buyer is complaining about."[106]

15. Several decisions have emphasized that the notice should identify the particular goods claimed to be nonconforming;[107] 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.[108] 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.[109] It has been stated that discrepancies in the quantity of goods delivered must be specified with precision.[110] The specificity requirement has been applied to oral notice of lack of conformity.[111] On the other hand, it has been stated that notice which informs the seller of the "main result of an examination ... so that he is able to assess the deficiency" is sufficient;[112] several decisions, furthermore, have warned against setting up an overly-demanding standard of specificity,[113] and a decision has indicated that, if the buyer's notice left the seller unclear concerning the nature or extent of the claimed lack of conformity, "the seller can be expected to inquire of the buyer."[114] 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;[115] and that the specificity standard includes "both objective and subjective elements" and "takes the positions of both the buyer and the seller in their commercial transaction into account, any possible cultural differences as well as, in particular, the nature of the goods."[116] It has also been held 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.[117]

16. The following descriptions of a lack of conformity have been found to be sufficiently specific to satisfy article 39(1): "detailed notice" that included photographs showing defects in the goods (shoes);[118] letters stating, "right boot dissolves on the side, insufficient leather", "left boot front leather bulges, bothers while walking", "boot dissolves on the right side, material insufficient, cannot be repaired" or "right boot top in the middle, loose seam";[119] notice specifying that pallets of bottles had been incorrectly piled and the surrounding foil had been torn apart;[120] notice specifying that frozen pepper slices were "yellow and glassy," 36 per cent were broken, their length was less than 3 cm, and they were sticky and icy;[121] notice indicating the goods (a machine) were not functional;[122] a detailed description of the physical condition of sheep that had been warranted as ready for slaughter, along with a declaration that they did not comply with applicable national regulations governing sheep for slaughter and could not be accepted by the buyer — by which the seller should have understood that the buyer was objecting to the weight of the sheep;[123] notice that glass game pieces delivered by the seller were broken, that some of the delivered game pieces were "half pieces," and that the contents of plastic bags containing the pieces were faulty;[124] notice informing a shoe seller 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;[125] 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;[126] notice that floor tiles suffered from serious premature wear and discoloration;[127] notice that occurred when the seller was actually shown the non-conforming goods on the premises of the buyer's customer.[128] It has also been held, with respect to a sale of various species of plants, that notice describing the lack of conformity by species was sufficient — the buyer did not have to specify the defects in each individual plant.[129]

17. The following descriptions in notices have been found not to satisfy article 39(1) because they were insufficiently specific:[130] notice stating that the goods, poppy seeds, were contaminated by caraway, whereas they were in fact contaminated by feverfew;[131] notice merely reminding the seller that the machines had not yet been installed in ready-for-use condition;[132] "general complaints (‘not alright', ‘inadequate characteristics', ‘wrong delivery', ‘poor quality', ‘bad construction') as well as any general statements of dissatisfaction (‘not according to our expectations')";[133]a telephone call in which the buyer merely ordered new goods and, at most, communicated that the goods had undergone damage;[134] notice that merely mentions the lack of conformity incidentally among several matters, and that indicates the lack of conformity is no longer of importance;[135] a general complaint that goods were missing from deliveries, without specify precisely which goods were lacking;[136]a communication that the buyer's customer had complained about the goods, without further details;[137]notice stating particular functional faults and missing parts in machinery, but failing to state that the goods were nonfunctional based on construction;[138] the buyer's entry of a reduced price on contract records;[139] notice stating merely that the buyer would not settle its account with the seller concerning a delivery;[140]notice that glass game pieces delivered by the seller were broken, but that failed to state that some of the delivered game pieces were "half pieces," and that the contents of plastic bags containing the pieces were faulty;[141] 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;[142] 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);[143] notice that cotton cloth was of bad quality;[144] notice that furniture had wrong parts and much breakage;[145] notice of poor workmanship and improper fitting as to fashion goods;[146] notice that failed to specify that cheese was infested with maggots;[147] 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;[148] notice that agricultural machinery failed to function properly but that did not specify the serial number or the delivery date of the machine;[149] notice that truffles had softened when they in fact contained worms, even though most professional sellers would understand that softness implied worms;[150] notice that shoes were not of the quality required by the contract, but which did not describe the nature of the defects;;[151] notice that frozen bacon was rancid, but which did not specify whether all or only a part of the goods were spoiled;;[152] 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;;[153] notice that sheets of vulcanized rubber for shoe soles had problems or contained defects;;[154] 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;;[155] 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.;[156] A buyer's notice stating that it rejected the seller's invoice for repair of goods was found insufficiently specific to satisfy article 39(1) with respect to the failure of the seller to repair all defects.;[157]

18. 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.;[158] 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);;[159] another decision stated that a telephone call which merely informed the seller that the goods had suffered damage was not sufficient article 39 notice because "it was not possible for [Seller] to understand the telephone call as a notification about a lack of conformity;";[160] yet another decision declared that the notice must "contest the conformity of the goods" and demonstrate the buyer's "intention to object."[161]

Timely Notice in General

19. Where the parties have not agreed on a time for notice to be given,[162] 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.[163] It has also been suggested that, in instalment contracts, requiring notice within a reasonable time prevents economically-wasteful subsequent deliveries of non-conforming goods. Framing the time for notice in terms of a reasonable time is designed to promote flexibility,[164] and the period depends on the facts of each case.[165] Several decisions have indicated that the reasonable time standard is a strict one.[166] Another decision, however, suggests that the determination of a reasonable time for notice must take into account the interests of both the buyer and the seller:

"[R]egard must be had to the seller's interest not to be subject to non-conformity claims for an indefinite period of time after delivery. On the other hand, justified claims on the part of the buyer should not be excluded by erecting overly formalistic legal barriers. These interests must be given consideration when determining the meaning of ‘reasonable'."[167] It has also been held that notice whose timing did not prevent the seller from having an opportunity to cure the lack of conformity is timely.[168] And it has been suggested that the requirement of notice within a reasonable time helps the seller preserve its ability to pursue claims against its own suppliers-for a lack of conformity.[169] The time for a buyer to give notice of lack of conformity under article 39 has been distinguished from the time within which he must give notice of the remedy (such as avoidance of contract) he is pursuing; a buyer's notice of remedy, it was suggested, need not be given until a reasonable time after article 39 notice.[170] A different decision, however, asserts 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).[171] It has also been stated that, pursuant to article 27 CISG, it is sufficient to show that notice was dispatched in timely fashion.[172]

When Time for Notice Begins to Run — Relation to Article 38

20. 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 nonconformity, and the time the buyer theoretically should have discovered (ought to have discovered) the nonconformity.[173] For example, a buyer's reasonable time for giving article 39(1) notice that the goods were delivered on inadequate pallets was deemed to begin at the time of delivery where a representative of the buyer was at the site of delivery and should have discovered the inadequate pallets at that time, even though the buyer did not in fact learn of the lack of conformity until a later time.[174] And where a buyer employed an independent service to inspect the goods before they were loaded for shipment, and such inspection should have revealed the lack of conformity, the buyer's reasonable time for notice was deemed to begin at the time of such inspection.[175] On the other hand, where a buyer's proper article 38 examination did not reveal the presence of a latent or hidden lack of conformity, the buyer's reasonable time for giving notice under article 39(1) did not begin to run until it actually learned of the nonconformity through customer complaints.[176] It has been held that the buyer's time for giving notice begins to run when it discovers or ought to have discovered the lack of conformity, even if the non-conformity had not at that time caused the buyer any damage;[177] on the other hand, where a lack of conformity arose from the fact that a used car had been initially registered at an earlier date than represented, it was held that the buyer's reasonable time for giving article 39(1) notice did not begin to run until the buyer learned of its customer's reaction to this fact, even if the buyer should have known about the situation several months earlier.[178]

21. 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 [179] or there are objective facts proving when the buyer acquired such knowledge.[180] For example, documents of the buyer have been held to establish that it had discovered the lack of conformity immediately upon delivery.[181] Complaints that the buyer received from customers to whom the goods were resold may establish actual knowledge:[182] 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,[183] even if the buyer doubts their accuracy.[184] On the other hand, it has been held that mere suspicion of a lack of conformity does not constitute discovery of a lack of conformity for purposes of commencing the reasonable time period for notice under article 39(1).[185] More generally, one decision has declared: "The buyer has discovered the non-conformity in terms of article 39(1) CISG if such state of certainty is reached where a prudent buyer would be prompted to commence legal action. With particular regard to quantitative deviations, the required state of certainty exists as soon as the buyer becomes aware of the result of the quantity check."[186] On the other hand, it has been asserted that, for the buyer to actually discover a lack of conformity, it is not necessary that the lack of conformity have been ascertained by a court judgment or be undisputed: "[t]here need only be actual indications of deficiencies."[187]

22. As is noted in the discussion of article 38,[188] 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.[189] 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 article 38 provides that the goods must be examined within as short a period of time as the circumstances permit".[190] 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,[191] although some decisions do not appear to acknowledge the distinction.[192] It has been stated that the reasonable time for the buyer's notice does not begin to run until the buyer ought to have acquired knowledge, and not mere suspicion, of the lack of conformity.[193]

23. In the case of latent or hidden defects not reasonably detectable in a proper article 38 examination following delivery,[194] 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.[195] 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.[196] 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.[197] 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.[198]

Presumptive Periods for Notice

24. 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 nonconformity — is designed to be flexible and will vary with the circumstances of the case,[199] a number of decisions have attempted to establish specific presumptive time periods as general guidelines or default rules.[200] 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.[201] 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 eight days after delivery [202] (including where the goods were durable and non-seasonal [203]) 14 days for examination and notice,[204] from two weeks to one month after delivery,[205] one month after delivery,[206] and six weeks after delivery [207] 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: within a few days after the buyer discovered or ought to have discovered the lack of conformity;[208] one week [209] (following one week for examination under article 38);[210] eight days following discovery;[211] two weeks [212] (following one week for examination);[213] one month (following one week for examination).[214] 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.[215] Where the goods are perishable, some decisions have suggested very short presumptive notice periods.[216]

Factors Influencing Reasonable Time for Notice

25. It is clear that the reasonable time for notice will vary with the circumstances of the particular case.[217] 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.[218] The nature of the goods is another frequently-cited factor:[219] goods that are perishable [220] or seasonal [221] require earlier notice of defects; notice with respect to durable or non-seasonal goods, in contrast, is subject to a longer notice period,[222] particularly if the goods are complex [223] and require training and ongoing repairs.[224] The buyer's plans to process the goods [225] or otherwise handle them in a fashion that might make it difficult to determine if the seller was responsible for a lack of conformity [226] may also shorten the time for notice. Delay that defeated the purposes of article 39(1) notice — specifically, delay that deprived the seller of the opportunity to check the factual basis of the buyer's complaint and to remedy the alleged lack of conformity at minimal cost by repair or replace-ment — has been held to render notice untimely.[227] On the other hand, it has been suggested that a lack of conformity of a fraudulent character triggers an extended notice period.[228] It has also been asserted that that the reasonable time for notice may vary depending on the remedy the buyer seeks, and that the notice period if the buyer wants to keep the goods and claim damages or a price reduction may be longer than where the buyer wishes to reject the goods.[229] Trade usages [230] as well as practices established between the parties [231] 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.[232] An expert or professional buyer has been found to be subject to a shorter period for notice.[233] One court has stated that notice should have been given within as short a period as was practicable where quick notice was required for public health reasons — to permit the seller to take measures against the spread of a virus allegedly infecting the goods (fish eggs).[234] The fact that the buyer asked for expedited delivery of the goods has been cited as a factor that shortens the time for giving notice of lack of conformity.[235] On the other hand, the fact that the buyer had earlier "continuously advised" the seller of the worsening condition of a pony was cited by the court in finding that the buyer's notice given immediately after the "final diagnosis" of the pony's condition was timely.[236]

Application of Reasonable Time Standard

26. It has been found that a buyer who did not give any notice of a lack of conformity before filing a claim 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.[237] On the other hand, it has been suggested that, theoretically, a buyer's claim in arbitration, or a cross-claim filed in response to the seller's law suit to collect the purchase price of the goods, might constitute notice of lack of conformity under article 39(1), although such notices were held to be untimely on the particular facts of the cases.[238] 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: over two years;[239] 24 months;[240] at least 19 months;[241] 18 months;[242] one year;[243] nine months;[244] seven to eight months;[245] seven months;[246] six months;[247] five months;[248] four months;[249] three and one-half months;[250] three months;[251] almost three months;[252] more than two and one-half months;[253] more than two months;[254] two months;[255] two months in the case of one delivery and approximately seven weeks in the case of another delivery;[256] "several months";[257] seven weeks;[258] six weeks;[259] one and one-half months;[260] more than one month;[261] one month;[262] 25 days;[263] 24 days;[264] 23 days;[265] 21 days;[266] 20 days;[267] 19 days;[268] 16 days;[269] 15 days (perishables — fresh mushrooms);[270] a little more than two weeks (fresh fruit);[271] two weeks (foodstuffs);[272] almost two weeks;[273] 12 days;[274] four days;[275] any time beyond the day of delivery (involving perishable flowers).[276] 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: three years;[277] more than 13 months;[278] 12 months;[279] 11 or 12 months;[280] seven months;[281] at least six months;[282] more than four months;[283] almost four months;[284] three months;[285] more than two months;[286 ]almost two months;[287] one and one-half months;[288] seven weeks;[289] six weeks;[290] 32 days;[291] more than one month;[292] one month;[293] one month (by fax) and three weeks (by telephone);[294] four weeks;[295] three weeks;[296] two weeks;[297] 10 days;[298] eight days;[299] seven days.[300] Notice given 20 months after the seller replaced one part of the goods, which did not cure the problem, and 11 months after the seller had demanded payment for the goods, has been held untimely.[301]Where a buyer's notice that the seller's attempts to repair delivered goods had been unsuccessful came more than five months after the buyer's customers had informed the buyer of such failure, the court found that the notice was untimely under article 39(1), and that the buyer had lost its right to rely on the ineffective repair.[302]

27. 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): "immediately" after the buyer received complaints from its customers;[303] the same day as the buyer discovered a latent or hidden lack of conformity;[304] notice to the seller's in-country representative on the same day the buyer discovered the lack of conformity through customer complaints, and notice to the seller itself the next day;[305] immediate telephone notice when the buyer received customer complaints, followed one-week later by an email conveying laboratory test results;[306] immediately after delivery of a machine, before assembly of the machine commenced;[307] one day after the goods were handed over to the buyer;[308] within 24 hours (perishable goods);[309] one day after the goods were examined;[310] within several days of delivery of perishable goods (tomatoes);[311] three days after delivery;[312] four days after delivery;[313] six days after discovery of defect;[314] seven days after the buyer learned of the defects;[315] within eight days after the goods were examined;[316] eight days after an expert's report identified defects in the goods;[317] 11 days after delivery;[318] 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 11 months after delivery of another machine;[319] 19 days after delivery;[320] 19–21 days after the examination of the goods;[321] 20-25 days after delivery of livestock;[322] three weeks after delivery;[323] four weeks after the buyer should have known of the lack of conformity;[324] within one month of delivery;[325] within one month after the buyer discovered or ought to have discovered the lack of conformity;[326] more than a month after delivery;[327] one to two months after the buyer learned of the lack of conformity through customer complaints;[328] one month and three weeks after delivery of video screen apparatus;[329] two months after delivery, where the buyer examined the goods (frozen fish) in proper and timely fashion one month after delivery;[330] two and one-half months after the buyer received the goods;[331] nine months after delivery (thus more than a year before the two-year period for notice under article 39(2) expired);[332] Where the goods (Christmas trees) were seasonal, and earlier notice would not have permitted the seller to effectively cure the lack of conformity, notice was therefore deemed timely.[333]

Article 39(2)

28. 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.[334] The two-year period specified in article 39(2), however, is not the equivalent of the reasonable time for notice specified in article 39(1); it has been held that the two-year period for notice under article 39(2) applies only when the article 39(1) period is not shorter.[335] Without the two-year limit for notice specified in article 39(2), 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 (and subject to an exception if article 40 of the Convention applies),[336] 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, even if the lack of conformity could not reasonably have been discovered at that point.[337] 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, even where the seller has attempted to repair a lack of conformity after the goods were delivered, it has been held that the two-year period runs from the time the goods were first actually handed over to the buyer, and not from the time of the seller's attempts to repair.[338] 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.[339]

29. 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.[340] It has been held that notice given when the buyer began negotiations with the seller, within two years of delivery, to resolve a dispute over the conformity of delivered goods was sufficient to satisfy the notice requirement of article 39(2).[341] 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). A number of decisions have attempted to reconcile a shorter limitations period in domestic law with the two-year notice period in article 39(2): one decision held that, to avoid violating public international law, the shorter domestic limitations period should not be applied to cases where it would subject a claim to limitation before expiration of the two-year period for notice specified in article 39(2);[342] other decisions hold that the shorter domestic limitations period does not begin to run until the buyer gives the notice required by article 39 CISG.[343] 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.[344] A number of decisions have involved claims that the parties had derogated from article 39(2) by agreement.[345] 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.[346] 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).[347] 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.[348] 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.[349] Where the buyer's claim for price reduction based on the non-conformity of delivered goods was cut-off by failure to give notice of the lack of conformity within the two years specified in article 39(2), a court held that, for "equitable reasons," interest on the unpaid portion of the purchase price (article 78 of the Convention) should not begin to accrue until the expiration of the article 39(2) period.[350]


NOTES

* This presentation of the UNCITRAL Digest is a slightly modified version of the original UNCITRAL text at <http://www.uncitral.org/pdf/english/clout/CISG-digest-2012-e.pdf>. The following modifications were made by the Institute of International Commercial Law of the Pace University School of Law:

   -    To enhance access to contents by computer search engines, we present in html rather than pdf;
 
   -    To facilitate direct focus on aspects of the Digests of most immediate interest, we inserted linked tables of contents at the outset of most presentations;
 
   -    To support UNCITRAL's recommendation to read more on the cases reported in the Digests, we provide mouse-click access to (i) CLOUT abstracts published by UNCITRAL (and to UNILEX case abstracts and other case abstracts); and also (ii) to full-text English translations of cases with links to original texts of cases, where available, in [bracketed citations] that we have added to UNCITRAL's footnotes; and
 
   -    To enable researchers to themselves keep the case citations provided in the Digests constantly current, we have created a series of tandem documents, UNCITRAL Digest Cases + Added Cases. The new cases and other cases that are cited in these updates are coded in accordance with UNCITRAL's Thesaurus.

1. E.g., [GERMANY Oberlandesgericht Hamburg 25 January 2008]; [NETHERLANDS Rechtbank Arnhem 11 February 2009]; [GERMANY Amtsgericht Freiburg 6 July 2007] (stating that, pursuant to article 27 CISG, it is sufficient to show that notice was dispatched in timely fashion); [SWITZERLAND Appelationshof Bern 11 February 2004 (Wire and cable case)], reasoning upheld in CLOUT case No. 894 [SWITZERLAND Bundesgericht 7 July 2004] (see full text of the decision) (stating that, in light of articles 11, 29 and 7(2) CISG, notice of lack of conformity may be given in any form), and that in light of article 27 CISG the notice need only be properly dispatched).

2. See CLOUT case No. 720 [NETHERLANDS Netherlands Arbitration Institute 15 October 2002] (see full text of the decision) (holding that article 39 does not apply when the seller did not make delivery).

3. [GERMANY Landgericht Aschaffenburg 20 April 2006].

4. [GERMANY Oberlandesgericht Saarbrücken 17 January 2007].

5. CLOUT case No. 237 [SWEDEN Arbitration Institute of the Stockholm Chamber of Commerce 5 June 1998].

6. CLOUT case No. 591 [GERMANY Oberlandesgericht Düsselodorf 28 May 2004] (see full text of the decision).

7. CLOUT case No. 343 [GERMANY Landgericht Darmstadt 9 May 2000] (see full text of the decision).

8. [BELGIUM Hof van Beroep Ghent 14 November 2008 (Volmari Werner v. Isocab NV)].

9. [BELGIUM Hof van Beroep Antwerpen 14 April 2004 (ING Insurance v. BVBA HVA Koeling and Fagard Winand; HVA Koeling BVBA v. Fagard Winand and Besseling Agri-Technic BV)].

10. [GERMANY Landgericht Köln 5 December 2006]; [GERMANY Landgericht Saarbrücken 26 October 2004 (Fuses and fuse brackets case)]; [GERMANY Landgericht München 20 February 2002]; CLOUT case No. 48 [GERMANY Oberlandesgericht Düsseldorf 8 January 1993] (see full text of the decision); CLOUT case No. 282 [GERMANY Oberlandesgericht Koblenz 31 January 1997]; [GERMANY Landgericht Landshut 5 April 1995]. The article 39 notice requirement has also been applied, in a small number of cases, when the buyer complained that delivery was late. [UNITED STATES U.S. District Court, Eastern District of Kentucky, 18 March 2008 (Sky Cast, Inc. v. Global Direct Distributions, LLC)] (applying article 39 "by analogy" where the seller delivered goods late); [GERMANY Amtsgericht Augsburg 29 January 1996] (late delivery of seasonal goods). Note that the CISG provision governing time of delivery (article 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).

11. [GERMANY Oberlandesgericht Rostock 25 September 2002].

12. [NETHERLANDS Rechtbank Breda 16 January 2009]; [SWITZERLAND Appellationsgericht Basel-Stadt 26 November 2008]; [SWITZERLAND Obergericht des Kantons Appenzell Ausserhoden 18 August 2008] (see full text of the decision); [NETHERLANDS Arrondissementsrechtbank Zutphen 27 February 2008 (Frutas Caminito Sociedad Cooperativa Valenciana. v. Groente-En Fruithandel Heemskerk BV)]; CLOUT case No. 939 [NETHERLANDS Gerechtshof 's-Hertogenbosch 19 September 2006]; CLOUT case No. 944 [NETHERLANDS Gerechtshof 's-Hertogenbosch 11 October 2005] (see full text of the decision); CLOUT case No. 597 [GERMANY Oberlandesgericht Celle 10 March 2004] (see full text of the decision); [SWITZERLAND Appelationshof Bern 11 February 2004], reasoning upheld in CLOUT case No. 894 [SWITZERLAND Bundesgericht 7 July 2004] (see full text of the decision); [BELGIUM Rechtbank van Koophandel Hasselt 6 January 2004]; CLOUT case No. 885 [SWITZERLAND Bundesgericht 13 November 2003] (see full text of the decision); [GERMANY Oberlandesgericht München 13 November 2002].

13. CLOUT case No. 944 [NETHERLANDS Gerechtshof 's-Hertogenbosch 11 October 2005] (see full text of the decision); CLOUT case No. 597 [GERMANY Oberlandesgericht Celle 10 March 2004] (see full text of the decision); [SWITZERLAND Appelationshof Bern 11 February 2004], reasoning upheld in CLOUT case No. 894 [SWITZERLAND Bundesgericht 7 July 2004] (see full text of the decision); CLOUT case No. 885 [SWITZERLAND Bundesgericht 13 November 2003] (see full text of the decision); [GERMANY Oberlandesgericht München 13 November 2002]; CLOUT case No. 123 [GERMANY Bundesgerichtshof 8 March 1995] (see full text of the decision); [GERMANY Landgericht Landshut 5 April 1995 (Sport clothing case)]; [GERMANY Landgericht Bielefeld 18 January 1991]; CLOUT case No. 423 [AUSTRIA Oberster Gerichtshof 27 August 1999]; CLOUT case No. 597 [GERMANY Oberlandesgericht Celle 10 March 2004].

14. CLOUT case No. 196 [SWITZERLAND Handelsgericht des Kantons Zürich 26 April 1995].

15. CLOUT case No. 50 [GERMANY Landgericht Baden-Baden 14 August 1991]; CLOUT case No. 230 [GERMANY Oberlandesgericht Karlsruhe 25 June 1997] (see full text of the decision), reversed on other grounds by CLOUT case No. 270 [GERMANY Bundesgerichtshof 25 November 1998].

16. CLOUT case No. 232 [GERMANY Oberlandesgericht München 11 March 1998] (see full text of the decision); CLOUT case No. 273 [GERMANY Oberlandesgericht München 9 July 1997]. Compare also CLOUT case No. 46 [GERMANY Landgericht Aachen 3 April 1990] (finding that buyer had the right to reduce the price under article 50 because it had given proper notice of lack of conformity) (see full text of the decision).

17. CLOUT case No. 232 [GERMANY Oberlandesgericht München 11 March 1998]; CLOUT case No. 282 [GERMANY Oberlandesgericht Koblenz 31 January 1997] (see full text of the decision).

18. CLOUT case No. 50 [GERMANY Landgericht Baden-Baden 14 August 1991].

19. [SWITZERLAND Appellationsgericht Basel-Stadt 26 November 2008] [NETHERLANDS Rechtbank Breda 16 January 2009]; [AUSTRIA Oberlandesgericht Linz 1 June 2005].

20. CLOUT case No. 938 [SWITZERLAND Kantonsgericht Zug 30 August 2007] (see full text of the decision).

21. See the Digests for articles 40 and 44.

22. [GERMANY Landgericht Stuttgart 15 October 2009]; [SLOVAKIA District Court in Komarno 12 March 2009]; [NETHERLANDS Rechtbank Breda 16 January 2009]; [GREECE Polimeles Protodikio Athinon 2009 (docket no. 4505/2009)]; [SWITZERLAND Handelsgericht Aargau 26 November 2008]; CLOUT case No. 934 [SWITZERLAND Tribunal Cantonal Valais 27 April 2007] (see full text of the decision); [GERMANY Oberlandesgericht Köln 12 January 2007]; [SWITZERLAND Obergericht Zug 19 December 2006]; CLOUT case No. 909 [SWITZERLAND Kantonsgericht Appenzell-Ausserhoden 9 March 2006] (see full text of the decision); [BELGIUM Rechtbank van Koophandel Kortrijk 4 June 2004 (Steinbock-Bjonustan EHF v. N.V. Duma)]; [UNITED STATES U.S. District Court, Northern District of Illinois, 21 May 2004 (Chicago Prime Packers, Inc. v. Northam Food Trading Co.)]; [SWITZERLAND Appelationshof Bern 11 February 2004], reasoning upheld in CLOUT case No. 894 [SWITZERLAND Bundesgericht 7 July 2004] (see full text of the decision); [GERMANY Landgericht Bielefeld 15 August 2003]; CLOUT case No. 608 [ITALY Tribunale Rimini 26 November 2002 (Al Palazzo S.r.l v. Bernardaud di Limoges S.A.)] (see full text of the decision); [SWITZERLAND Kantonsgericht Schaffhausen 25 February 2002]; CLOUT case No. 378 [ITALY Tribunale di Vigevano 12 July 2000]; CLOUT case No. 251 [SWITZERLAND Handelsgericht des Kantons Zürich 30 November 1998]; CLOUT case No. 423 [AUSTRIA Oberster Gerichtshof 27 August 1999]; CLOUT case No. 305 [AUSTRIA Oberster Gerichtshof 30 June 1998]; [ITALY Pretura di Torino 30 January 1997]; CLOUT case No. 196 [SWITZERLAND Handelsgericht des Kantons Zürich 26 April 1995] (see full text of the decision); CLOUT case No. 97 [SWITZERLAND Handelsgericht des Kantons Zürich 9 September 1993].

23. [NETHERLANDS Rechtbank Arnhem 11 February 2009]; [GERMANY Amtsgericht Freiburg 6 July 2007]; [UKRAINE Commercial Court of Donetsk Region 13 April 2007], reinstated in [UKRAINE Supreme Court of Ukraine 11 December 2007] (implying that the buyer bears the burden of proving that it gave the required notice of lack of conformity within the two-year period specific in article 39(2)); [GERMANY Landgericht Coburg 12 December 2006]; CLOUT case No. 825 [GERMANY Oberlandesgericht Köln 14 August 2006] (see full text of the decision); [SWITZERLAND Cour de Justice [Appellate Court] de Genève 20 January 2006]; CLOUT case No. 748 [AUSTRIA Oberster Gerichtshof 24 May 2005]; [GERMANY Landgericht Bayreuth 10 December 2004]; [GERMANY Landgericht Tübingen 18 June 2003]; [GERMANY Oberlandesgericht Rostock 25 September 2002]; [GERMANY Oberlandesgericht Schleswig 22 August 2002]; CLOUT case No. 538 [AUSTRIA Oberlandesgericht Innsbruck 26 April 2002]; [NETHERLANDS Rechtbank 's-Gravenhage 7 June 1995]; [GERMANY Landgericht Marburg 12 December 1995]; [GERMANY Landgericht Duisburg 17 April 1996]; CLOUT case No. 290 [GERMANY Oberlandesgericht Saarbrücken 3 June 1998]; CLOUT case No. 289 [GERMANY Oberlandesgericht Stuttgart 21 August 1995]; CLOUT case No. 291 [GERMANY Oberlandesgericht Frankfurt a.M. 23 May 1995], (see full text of the decision); CLOUT case No. 81 [GERMANY Oberlandesgericht Düsseldorf 10 February 1994] (see full text of the decision); [ICC Arbitration Court of the International Chamber of Commerce, 23 January 1997 (Arbitral award No. 8611)]; [SWITZERLAND Arbitral Panel of the Zurich Chamber of Commerce 31 May 1996 (Arbitral award No. ZHK 273/95)].

24. [SLOVAKIA District Court in Komarno 12 March 2009]; [ITALY Pretura di Torino 30 January 1997] .

25. [UNITED STATES U.S. District Court, Northern District of Illinois, 21 May 2004 (Chicago Prime Packers, Inc. v. Northam Food Trading Co.)] (citing a German decision applying the CISG for the proposition that the buyer bears the burden of proof under article 39); CLOUT case No. 608 [ITALY Tribunale Rimini 26 November 2002] (see full text of the decision); CLOUT case No. 378 [ITALY Tribunale di Vigevano 12 July 2000]; CLOUT case No. 251 [SWITZERLAND Handelsgericht des Kantons Zürich 30 November 1998]; CLOUT case No. 196 [SWITZERLAND Handelsgericht des Kantons Zürich 26 April 1995] (see full text of the decision); CLOUT case No. 97 [SWITZERLAND Handelsgericht des Kantons Zürich 9 September 1993].

26. CLOUT case No. 608 [ITALY Tribunale Rimini 26 November 2002 (Al Palazzo S.r.l v. Bernardaud di Limoges S.A.)] (see full text of the decision) (holding that the principle "onus probandi incumbit ei qui dicit" [the party seeking to establish his rights must carry the burden of proof] is a general principle on which the CISG is based under article 7(2), and results in the buyer bearing the burden of proving it gave proper notice); CLOUT case No. 378 [ITALY Tribunale di Vigevano 12 July 2000].

27. [SWITZERLAND Appellationsgericht Basel-Stadt 26 November 2008].

28. CLOUT case No. 934 [SWITZERLAND Tribunal Cantonal Valais 27 April 2007] (see full text of the decision). Accord, [SWITZERLAND Kantonsgericht Schaffhausen 25 February 2002].

29. [NETHERLANDS Rechtbank Breda 16 January 2009].

30. [GERMANY Amtsgericht Freiburg 6 July 2007].

31. [SERBIA Foreign Trade Court of Arbitration attached to the Yugoslav Chamber of Commerce 27 November 2002] (requiring that notice by telephone be confirmed in writing within a reasonable time).

32. [GERMANY Oberlandesgericht Koblenz 21 November 2007].

33. [GERMANY Landgericht Coburg 12 December 2006]; CLOUT case No. 222 [UNITED STATES U.S. Court of Appeals for the Eleventh Circuit, United States, 29 June 1998], in which 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.

34. [SWITZERLAND Appelationshof Bern 11 February 2004 (Wire and cable case)], reasoning upheld in CLOUT case No. 894 [SWITZERLAND Bundesgericht 7 July 2004] (see full text of the decision). See also CLOUT case No. 694 [UNITED STATES U.S. Bankruptcy Court, Oregon, 29 March 2004 (In re Siskiyou Evergreen, Inc.)] (see full text of the decision) (notice not required to be in any particular form); [BELGIUM Hof van Beroep Gent 28 January 2004 (J.B. and G.B. v. BV H.V.)] (notice "not bound by an specific formal requirements"); CLOUT case No. 879 [SWITZERLAND Handelsgericht Bern 17 January 2002] (see full text of the decision).

35. [NETHERLANDS Rechtbank Arnhem 11 February 2009]; [SWITZERLAND Appelationshof Bern 11 February 2004 (Wire and cable case)], reasoning upheld in CLOUT case No. 894 [SWITZERLAND Bundesgericht 7 July 2004] (see full text of the decision) (fax).

36. CLOUT case No. 867 [ITALY Tribunale di Forlí 11 December 2008 (Mitias v. Solidea S.r.l.)]; [GERMANY Landgericht München 29 November 2005] (an email in English); [FINLAND Hoviokeus/hovrätt Turku 24 May 2005].

37. [AUSTRALIA Federal Court of Australia 13 August 2010 (Cortem SpA v. Controlmatic Pty Ltd.)]. Compare CLOUT case No. 798 [SPAIN Audiencia Provincial Girona 6 November 2006], where the court held that notice given when the buyer began negotiations with the seller to resolve the dispute over the conformity of delivered goods was sufficient to satisfy the notice requirement of article 39(2).

38. [FINLAND Hoviokeus/hovrätt Turku 24 May 2005] (notice by telephone that the buyer had received complaints about the goods from its customers, later followed by emails detailing laboratory test results); CLOUT case No. 225 [FRANCE Cour d'appel, Versailles 29 January 1998] (see full text of the decision). See also [FRANCE Cour d'appel Versailles 13 October 2005], where the court took into account a series of communications from the buyer to the seller and its representative in determining that the seller was made aware of the lack of conformity.

39. CLOUT case No. 992 [DENMARK Rettin i Københaven 19 October 2007].

40. [GERMANY Landgericht Bamberg 23 October 2006].

41. [AUSTRALIA Federal Court of Australia 13 August 2010 (Cortem SpA v. Controlmatic Pty Ltd.)].

42. CLOUT case No. 593 [GERMANY Oberlandesgericht Karlsruhe 6 March 2003] (see full text of the decision) (stating that the Convention does not require buyer's notice to be in a particular form). But see [SERBIA Foreign Trade Court of Arbitration attached to the Serbian Chamber of Commerce 6 November 2005] (indicating that, although the Convention does specify the form of notice, it implies that notice should be in written form); [SERBIA Foreign Trade Court of Arbitration attached to the Serbian Chamber of Commerce in Belgrade 23 February 2004] (same); [SERBIA Foreign Trade Court of Arbitration attached to the Yugoslav Chamber of Commerce 27 November 2002] (requiring that notice by telephone be confirmed in writing within a reasonable time). See also [SERBIA Foreign Trade Court of Arbitration attached to the Serbian Chamber of Commerce, 21 February 2005] (avoiding question whether telephone notice was proper).

43. [SLOVAKIA District Court in Komarno 24 February 2009]; CLOUT case No. 938 [SWITZERLAND Kantonsgericht Zug 30 August 2007] (see full text of the decision); CLOUT case No. 724 [GERMANY Oberlandesgericht Koblenz 14 December 2006] (see full text of the decision); CLOUT case No. 825 [GERMANY Oberlandesgericht Köln 14 August 2006] (see full text of the decision); [FINLAND Hoviokeus/hovrätt Turku 24 May 2005]; [BELGIUM Rechtbank van Koophandel Hasselt 4 February 2004 District Court Hasselt (N S.p.A. v. S NV)]; CLOUT case No. 879 [SWITZERLAND Handelsgericht Bern 17 January 2002] (see full text of the decision); [GERMANY Landgericht Frankfurt 9 December 1992]. This is one of the 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 Frankfurt 13 July 1994]. 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. CLOUT case No. 411 [GERMANY Landgericht Bochum 24 January 1996]; [BELGIUM Rechtbank van Koophandel Kortrijk 16 December 1996]. But see [SERBIA Foreign Trade Court of Arbitration attached to the Yugoslav Chamber of Commerce 27 November 2002] (requiring that notice by telephone be confirmed in writing within a reasonable time).

44. [GERMANY Oberlandesgericht Saarbrücken 17 January 2007]; [GERMANY Landgericht Bayreuth 10 December 2004]; CLOUT case No. 879 [SWITZERLAND Handelsgericht Bern 17 January 2002] (see full text of the decision); [GERMANY Landgericht Marburg 12 December 1995]; [GERMANY Amtsgericht Kehl 6 October 1995]; CLOUT case No. 4 [GERMANY Landgericht Stuttgart 31 August 1989] (see full text of the decision). But see CLOUT case No. 825 [GERMANY Oberlandesgericht Köln 14 August 2006] (see full text of the decision) (holding that testimony by witnesses provided sufficient proof that the buyer had given telephonic notice). See generally [BELGIUM Rechtbank van Koophandel Hasselt 4 February 2004 District Court Hasselt (N S.p.A. v. S NV)] (stating that the buyer has the burden of proving that it gave notice by telephone).

45. CLOUT case No. 4 [GERMANY Landgericht Stuttgart 31 August 1989] (see full text of the decision); [GERMANY Landgericht Frankfurt 13 July 1994]; CLOUT case No. 4 [GERMANY Landgericht Stuttgart 31 August 1989] (see full text of the decision).

46. [BELGIUM Rechtbank van Koophandel Kortrijk 27 June 1997]. Compare [SERBIA Foreign Trade Court of Arbitration attached to the Yugoslav Chamber of Commerce 27 November 2002] (requiring that notice by telephone be confirmed in writing within a reasonable time).

47. [SLOVAKIA District Court in Komarno 24 February 2009].

48. [GERMANY Landgericht Aachen 28 July 1993], reversed on other grounds by CLOUT case No. 120 [GERMANY Oberlandesgericht Köln 22 February 1994].

49. 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." [GERMANY Landgericht Bielefeld 15 August 2003].

50. CLOUT case No. 220 [SWITZERLAND Kantonsgericht Nidwalden 3 December 1997] (see full text of the decision).

51. [GERMANY Landgericht Bielefeld 15 August 2003].

52. CLOUT case No. 409 [GERMANY Landgericht Kassel 15 February 1996]. The court also noted that the notice must be specifically directed to the seller.

53. CLOUT case No. 411 [GERMANY Landgericht Bochum 24 January 1996]. Compare CLOUT case No. 4 [GERMANY Landgericht Stuttgart 31 August 1989] (see full text of the decision) (holding that the buyer had not satisfied the requirements of article 39 because it did not prove, inter alia, that the person to whom the buyer faxed notice had "reception competency in regard to the faxes").

54. CLOUT case No. 364 [GERMANY Landgericht Köln 30 November 1999]. Another decision avoided determining whether notice sent to the seller's agent met the requirements of article 39 because the alleged notice was insufficient on other grounds. [GERMANY Amtsgericht Freiburg 6 July 2007].

55. [NETHERLANDS Hoge Raad 4 February 2005].

56. [BELGIUM Hof van Beroep Antwerpen 14 February 2002 (NV Carta Mundi v. Index Syndicate Ltd.)].

57. See, e.g., CLOUT case No. 608 [ITALY Tribunale Rimini 26 November 2002 (Al Palazzo S.r.l v. Bernardaud di Limoges S.A.)] (see full text of the decision).

58. See, e.g., CLOUT case No. 1057 [AUSTRIA Oberster Gerichtshof 2 April 2009] (contractual provisionshortening the usual time for examining the goods and giving notice of lack of conformity); [NETHERLANDS Rechtbank Arnhem 11 February 2009]; J[HUNGARY Judicial Board of Szeged 5 December 2008]; CLOUT case No. 541 [AUSTRIA Oberster Gerichtshof 14 January 2002] (term requiring buyer to give written notice of claimed defects within eight days of delivery (although seller was found to have waived its rights under this term) (see full text of the decision).

59. [HUNGARY Judicial Board of Szeged 5 December 2008]; [GERMANY Landgericht Coburg 12 December 2006]; CLOUT case No. 336 [SWITZERLAND Canton of Ticino Tribunale d'appello 8 June 1999]; [GERMANY Landgericht Gießen 5 July 1994]; [GERMANY Landgericht Hannover 1 December 1993]; CLOUT case No. 303 [ICC Arbitration Court of the International Chamber of Commerce, 1994 (Arbitral award No. 7331)] (see full text of the decision); CLOUT case No. 94 [AUSTRIA Internationales Schiedsgericht der Bundeskammer der gewerblichen Wirtschaft — Wien 15 June 1994]; CLOUT case No. 50 [GERMANY Landgericht Baden-Baden 14 August 1991]. See also CLOUT case No. 305 [AUSTRIA Oberster Gerichtshof 30 June 1998] (remanding to determine whether contractual provision governing time for giving notice of defects had been complied with); but see [NETHERLANDS Rechtbank Zwolle 5 March 1997] (the court notes that the seller's standard term setting the time for giving notice of defects was part of the contract, but the court apparently did not apply the term; its analysis of whether the buyer gave notice within a reasonable time, however, was influenced by the term).

61. [NETHERLANDS Rechtbank Arnhem 11 February 2009]; CLOUT case No. 232 [GERMANY Oberlandesgericht München 11 March 1998] (see full text of the decision); CLOUT case No. 303 [ICC Arbitration Court of the International Chamber of Commerce, 1994 (Arbitral award No. 7331)] (see full text of the decision).

62. CLOUT case No. 378 [ITALY Tribunale di Vigevano 12 July 2000] (see full text of the decision). Compare [BELGIUM Rechtbank van Koophandel Mechelen 18 January 2002] (because seller's terms, which required notice within 24 hours of delivery of perishable goods (tomatoes), were barely legible and in a language foreign to buyer, they were not deemed part of contract). In CLOUT case No. 222 [UNITED STATES U.S. Court of Appeals for the Eleventh Circuit, United States, 29 June 1998] 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 Baden-Baden 14 August 1991] (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 Saarbrücken 13 January 1993] (see full text of the decision).

63. CLOUT case No. 237 [SWEDEN Arbitration Institute of the Stockholm Chamber of Commerce 5 June 1998] (see full text of the decision).

64. [GERMANY Oberlandesgericht Hamburg 25 January 2008] .

65. CLOUT case No. 542 [AUSTRIA Oberster Gerichtshof 17 April 2002] (see full text of the decision).

66. CLOUT case No. 292 [GERMANY Oberlandesgericht Saarbrücken 13 January 1993]. 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.

67. CLOUT case No. 541 [AUSTRIA Oberster Gerichtshof 14 January 2002] (see full text of the decision approving reasoning of lower appeals court).

68. [NETHERLANDS Rechtbank Arnhem 11 February 2009].

69. CLOUT case No. 828 [NETHERLANDS Gerechtshof 's-Hertogenbosch 2 January 2007].

70. CLOUT case No. 229 [GERMANY Bundesgerichtshof 4 December 1996] (agreement requiring the buyer to give immediate notice of defects that arose 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 Arbitration Court of the International Chamber of Commerce, 23 January 1997 (Arbitral award No. 8611)] (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)).

71. See, e.g., CLOUT case No. 1057 [AUSTRIA Oberster Gerichtshof 2 April 2009] (indicating that a seller can waive its right to proper notice under article 39(1), but that in the case before the court the buyer had failed to allege and prove such a waiver); [BELGIUM Rechtbank van Koophandel Kortrijk 4 June 2004 (Steinbock-Bjonustan EHF v. N.V. Duma)].

72. CLOUT case No. 235 [GERMANY Bundesgerichtshof 25 June 1997]. See also CLOUT case No. 542 [AUSTRIA Oberster Gerichtshof 17 April 2002] (buyer argued seller had waived its right to object to late notice under article 39(1) through a course of dealing in which seller had failed to object to the buyer's repeated untimely notice, although the court rejected the argument); CLOUT case No. 541 [AUSTRIA Oberster Gerichtshof 14 January 2002] (approving holding of lower appeals court that seller had waived his right to object to timeliness of notice of defects under contract clause requiring notice within eight days of delivery when seller accepted the buyer's late notice and offered a remedy) (see full text of the decision).

73. CLOUT case No. 310 [GERMANY Oberlandesgericht Düsseldorf 12 March 1993]. 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.

74. CLOUT case No. 251 [SWITZERLAND Handelsgericht des Kantons Zürich 30 November 1998].

75. CLOUT case No. 270 [GERMANY Bundesgerichtshof 25 November 1998].

76. [BELGIUM Rechtbank van Koophandel Kortrijk 4 June 2004 (Steinbock-Bjonustan EHF v. N.V. Duma)].

77. [GERMANY Landgericht Aschaffenburg 20 April 2006].

78. CLOUT case No. 94 [AUSTRIA Internationales Schiedsgericht der Bundeskammer der gewerblichen Wirtschaft — Wien 15 June 1994]. 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.

79. CLOUT case No. 337 [GERMANY Landgericht Saarbrücken 26 March 1996].

80. CLOUT case No. 343 [GERMANY Landgericht Darmstadt 9 May 2000].

81. [NETHERLANDS Arrondissementsrechtsbank Hof's-Hertogenbosch 26 February 1992].

82. [NETHERLANDS Rechtbank Breda 16 January 2009]; [HUNGARY Judicial Board of Szeged 5 December 2008]; [NETHERLANDS Arrondissementsrechtbank Zutphen 27 February 2008 (Frutas Caminito Sociedad Cooperativa Valenciana. v. Groente-En Fruithandel Heemskerk BV)] (to permit the seller to inspect the goods); CLOUT case No. 724 [GERMANY Oberlandesgericht Koblenz 14 December 2006] (see full text of the decision); [AUSTRIA Oberster Gerichtshof 30 November 2006] (to minimize disputes over whether the condition of the goods had changed after delivery); CLOUT case No. 939 [NETHERLANDS Gerechtshof 's-Hertogenbosch 19 September 2006]; [UNITED STATES U.S. District Court, Northern District of Illinois, 21 May 2004 (Chicago Prime Packers, Inc. v. Northam Food Trading Co.)] (to avoid controversies over the condition of the goods at the time of transfer); [SWITZERLAND Bundesgericht 28 May 2002] (dicta — transaction governed by domestic law); CLOUT case No. 423 [AUSTRIA Oberster Gerichtshof 27 August 1999]; CLOUT case No. 48 [GERMANY Oberlandesgericht Düsseldorf 8 January 1993] (see full text of the decision); CLOUT case No. 284 [GERMANY Oberlandesgericht Köln 21 August 1997] (see full text of the decision); CLOUT case No. 3 [GERMANY Landgericht München 3 July 1989] (see full text of the decision).

83. CLOUT case No. 724 [GERMANY Oberlandesgericht Koblenz 14 December 2006]; [AUSTRIA Oberster Gerichtshof 30 November 2006] ("to enable the parties to take appropriate measures"); CLOUT case No. 337 [GERMANY Landgericht Saarbrücken 26 March 1996]; CLOUT case No. 378 [ITALY Tribunale di Vigevano 12 July 2000] (see full text of the decision).

84. [GERMANY Landgericht Aschaffenburg 20 April 2006]; CLOUT case No. 694 [UNITED STATES U.S. Bankruptcy Court, Oregon, 29 March 2004 (In re Siskiyou Evergreen, Inc.)] (see full text of the decision)] ("European cases construing the Convention have required the notice to describe the claimed non-conformity with enough detail to allow the seller to identify and correct the problem without further investigation. A more practical interpretation would hold that the notice must be given in time, and in sufficient detail, to allow the seller to cure the defect in a manner allowing the buyer the benefit of his bargain."); [SWITZERLAND Bundesgericht 28 May 2002] (English translation of excerpt available) (dicta — transaction governed by domestic law); CLOUT case No. 344 [GERMANY Landgericht Erfurt 29 July 1998]; CLOUT case No. 3 [GERMANY Landgericht München 3 July 1989] (see full text of the decision). See also CLOUT case No. 282 [GERMANY Oberlandesgericht Koblenz 31 January 1997] (implying that purpose of notice is to facilitate cure by the seller).

85. [GERMANY Landgericht Stuttgart 15 October 2009]. See also [HUNGARY Judicial Board of Szeged 5 December 2008] (to arrange for repair or replacement of the goods at minimal cost); [NETHERLANDS Arrondissementsrechtbank Zutphen 27 February 2008 (Frutas Caminito Sociedad Cooperativa Valenciana. v. Groente-En Fruithandel Heemskerk BV)] (to permit the seller to gather evidence); CLOUT case No. 938 [SWITZERLAND Kantonsgericht Zug 30 August 2007] (see full text of the decision) ("to put the seller in a position to understand the asserted lack of conformity and to take the necessary steps to gather any required evidence for possible future legal proceedings about the question of conformity, to initiate either a substitute delivery or a repair of the goods, and finally to take recourse against its own supplier"); [NETHERLANDS Hoge Raad 4 February 2005] (to give the seller "a fair opportunity to remedy the defects and in general gather evidence on the alleged lack of conformity").

86. CLOUT case No. 939 [NETHERLANDS Gerechtshof 's-Hertogenbosch 19 September 2006].

87. CLOUT case No. 409 [GERMANY Landgericht Kassel 15 February 1996].

88. [NETHERLANDS Rechtbank Breda 16 January 2009]; CLOUT case No. 849 [SPAIN Audiencia Provincial de Pontevedra 19 December 2007] (see full text of the decision) (to minimize questions concerning the time the lack of conformity arose); CLOUT case No. 423 [AUSTRIA Oberster Gerichtshof 27 August 1999].

89. [NETHERLANDS Arrondissementsrechtbank Zwolle 5 March 1997].

90. CLOUT case No. 486 [SPAIN Audiencia Provincial de La Coruña 21 June 2002].

91. [GERMANY Oberlandesgericht Hamburg 25 January 2008]; CLOUT case No. 885 [SWITZERLAND Bundesgericht 13 November 2003] (see full text of the decision).

92. [GERMANY Landgericht München 29 November 2005].

93. CLOUT case No. 721 [GERMANY Oberlandesgericht Karlsruhe 8 February 2006] (identify the lack of conformity exactly); CLOUT case No.597 [GERMANY Oberlandesgericht Celle 10 March 2004] (see full text of the decision) ("the buyer must describe the nonconformity as precisely as possible"); [GERMANY Landgericht Hannover 1 December 1993]. Compare CLOUT case No. 597 [GERMANY Oberlandesgericht Celle 10 March 2004] (stating that notice "must describe the non-conformity as precisely as possible") (see full text of the decision). But see CLOUT case No. 885 [SWITZERLAND Bundesgericht 13 November 2003] (see full text of the decision) (indicating that the German translation of article 39 used by German-speaking courts requires greater precision than the official texts of the CISG).

94. [AUSTRIA Oberlandesgericht Linz 1 June 2005]; [GERMANY Landgericht Saarbrücken 2 July 2002].

95. [BELGIUM Hof van Beroep Gent 28 January 2004 (J.B. and G.B. v. BV H.V.)].

96. CLOUT case No. 694 [UNITED STATES U.S. Bankruptcy Court, Oregon, 29 March 2004 (In re Siskiyou Evergreen, Inc.)] (see full text of the decision).

97. CLOUT case No. 344 [GERMANY Landgericht Erfurt 29 July 1998] (see full text of the decision). See also [GERMANY Oberlandesgericht Koblenz 21 November 2007] (notice should make seller "aware of the nature and the scale of the lack of conformity").

98. [GERMANY Landgericht München 29 November 2005] ("to enable the seller to react adequately"). Compare [BELGIUM Hof van Beroep Gent 28 January 2004 (J.B. and G.B. v. BV H.V.)] (article 39 notice should be specific enough that it "should at least be possible to conclude that the goods purchased are ridden with certain defects or for some reason or another are not in conformity with the contract, so that the seller, for whom it should be clear that the buyer has complaints regarding the delivery, is able to make a judgment about the consequence it should reserve for the complaint. The notice must enable parties to decide if certain measures (possibly regarding the furnishing of proof) arise").

99. [GERMANY Landgericht Stuttgart 15 October 2009]; CLOUT case No. 344 [GERMANY Landgericht Erfurt 29 July 1998] (see full text of the decision). See also [GERMANY Oberlandesgericht Hamm 2 April 2009] (notice should be specific enough to permit the seller to "form an idea" of the lack of conformity and take "necessary steps"); CLOUT case No. 938 [SWITZERLAND Kantonsgericht Zug 30 August 2007] (see full text of the decision) ("to put the seller in a position to understand the asserted lack of conformity and to take the necessary steps to gather any required evidence for possible future legal proceedings about the question of conformity, to initiate either a substitute delivery or a repair of the goods, and finally to take recourse against its own supplier"); CLOUT case No. 934 [SWITZERLAND Tribunal Cantonal Valais 27 April 2007] (see full text of the decision) (notice should be precise enough to permit the seller to react by examining the goods and to cure the lack of conformity); CLOUT case No. 593 [GERMANY Oberlandesgericht Karlsruhe 6 March 2003] (stating that buyer's notice should permit the seller to react to the claim of lack of conformity in an appropriate fashion, and to chose among the several responses available to it, such as curing the lack of conformity, replacing the non-conforming goods, or demanding the opportunity to examine the goods himself) (see full text of the decision); CLOUT case No. 541 [AUSTRIA Oberster Gerichtshof 14 January 2002] (approving approach of lower appeals court which had stated: "Notice must specify the nature of the lack of conformity adequately enough to put the seller in a position to be able to reasonably react to it") (see full text of the decision).

100. [BELGIUM Hof van Beroep Antwerpen 14 February 2002 (NV Carta Mundi v. Index Syndicate Ltd.)].

101. CLOUT case No. 229 [GERMANY Bundesgerichtshof 4 December 1996] (see full text of the decision). For similar statements, see CLOUT case No. 724 [GERMANY Oberlandesgericht Koblenz 14 December 2006] (see full text of the decision) (sufficient information about the goods' non-compliance with the contractually-agreed qualities so that the seller can take all necessary steps to make up for the defect); [GERMANY Landgericht Bamberg 23 October 2006]; CLOUT case No. 319 [GERMANY Bundesgerichtshof 3 November 1999] (see full text of the decision); see also CLOUT case No. 282 [GERMANY Oberlandesgericht Koblenz 31 January 1997] (implying that the purpose of the specificity requirement is to permit the seller to remedy the lack of conformity).

102. Ibid.

103. [GERMANY Landgericht Saarbrücken 2 July 2002].

104. See also CLOUT case No. 319 [GERMANY Bundesgerichtshof 3 November 1999].

105. CLOUT case No. 938 [SWITZERLAND Kantonsgericht Zug 30 August 2007] (see full text of the decision).

106. [GERMANY Oberlandesgericht Saarbrücken 17 January 2007].

107. CLOUT case No. 319 [GERMANY Bundesgerichtshof 3 November 1999]; [ICC Arbitration Court of the International Chamber of Commerce, 23 January 1997 (Arbitral award No. 8611)]; CLOUT case No. 282 [GERMANY Oberlandesgericht Koblenz 31 January 1997]; [GERMANY Landgericht München 20 March 1995].

108. [GERMANY Landgericht Marburg 12 December 1995];

109. CLOUT case No. 597 [GERMANY Oberlandesgericht Celle 10 March 2004]; CLOUT case No. 541 [AUSTRIA Oberster Gerichtshof 14 January 2002]; CLOUT case No. 123 [GERMANY Bundesgerichtshof 8 March 1995] (see full text of the decision); [GERMANY Landgericht Bielefeld 18 January 1991]; CLOUT case No. 423 [AUSTRIA Oberster Gerichtshof 27 August 1999].

110. [GERMANY Landgericht Coburg 12 December 2006]; [AUSTRIA Oberlandesgericht Linz 1 June 2005] (buyer should specify which goods were missing from deliveries). See also [GERMANY Landgericht Köln 5 December 2006], where the buyer's complaint that the seller had delivered huge excess quantities of the goods valued at €90,000 was held to be insufficiently specific.

111. CLOUT case No. 4 [GERMANY Landgericht Stuttgart 31 August 1989] (see full text of the decision). See also CLOUT case No. 593 [GERMANY Oberlandesgericht Karlsruhe 6 March 2003].

112. CLOUT case No. 879 [SWITZERLAND Handelsgericht Bern 17 January 2002] (see full text of the decision).

113. CLOUT case No. 938 [SWITZERLAND Kantonsgericht Zug 30 August 2007] (see full text of the decision); [GERMANY Landgericht Bamberg 23 October 2006] (indicating that the requirements regarding the content of the notice should not be "exaggerated"); [AUSTRIA Oberster Gerichtshof 8 November 2005] (same); [SWITZERLAND Bundesgericht 28 May 2002] (English translation of excerpt available) (dicta — transaction governed by domestic law) ("The notice requirement is not supposed to burden the buyer with the risk of the defect. Therefore, the demands for a sufficient specification of the defect may not be set too high"); CLOUT case No. 538 [AUSTRIA Oberlandesgericht Innsbruck 26 April 2002] ("the requirements of the notice should not be too burdensome for the buyer"); CLOUT case No. 541 [AUSTRIA Oberster Gerichtshof 14 January 2002] (see full text of the decision) (stating that, after giving initial notice of lack of conformity the buyer need notify the seller of additional details only if they are discoverable within the examination period at reasonable cost); CLOUT case No. 229 [GERMANY Bundesgerichtshof 4 December 1996] (see full text of the decision); CLOUT case No. 252 [SWITZERLAND Handelsgericht des Kantons Zürich 21 September 1998].

114. [GERMANY Landgericht Bamberg 23 October 2006]. See also CLOUT case No. 885 [SWITZERLAND Bundesgericht 13 November 2003] (see full text of the decision) ("in the age of technology, the seller can be expected to ask questions if he desires more precise instructions from the buyer").

115. CLOUT case No. 938 [SWITZERLAND Kantonsgericht Zug 30 August 2007] (see full text of the decision); [SWITZERLAND Obergericht Zug 19 December 2006]; CLOUT case No. 252 [SWITZERLAND Handelsgericht des Kantons Zürich 21 September 1998]; CLOUT case No. 344 [GERMANY Landgericht Erfurt 29 July 1998] (see full text of the decision).

116. CLOUT case No. 938 [SWITZERLAND Kantonsgericht Zug 30 August 2007] (see full text of the decision).

117. CLOUT case No. 938 [SWITZERLAND Kantonsgericht Zug 30 August 2007] (see full text of the decision); CLOUT case No. 724 [GERMANY Oberlandesgericht Koblenz 14 December 2006] (see full text of the decision); CLOUT case No. 905 [SWITZERLAND Kantonsgericht Wallis 21 February 2005] (see full text of the decision); CLOUT case No. 885 [SWITZERLAND Bundesgericht 13 November 2003] (see full text of the decision); CLOUT case No. 319 [GERMANY Bundesgerichtshof 3 November 1999]. See also CLOUT case No. 833 [NETHERLANDS Hoge Raad 20 February 1998] (implying that a description of symptoms rather than the causes of defects in floor tiles would be sufficient); [ITALY Tribunale di Busto Arsizio 13 December 2001] (buyer was under no duty to indicate the specific cause of the malfunction in a machine, particularly where the seller could not provide the necessary information).

118. [ITALY Tribunale di Forlí 11 December 2008 (Mitias v. Solidea S.r.l.)].

119. [GERMANY Oberlandesgericht Koblenz 21 November 2007].

120. CLOUT case No. 724 [GERMANY Oberlandesgericht Koblenz 14 December 2006] (see full text of the decision).

121. [GERMANY Landgericht München 29 November 2005].

122. CLOUT case No. 905 [SWITZERLAND Kantonsgericht Wallis 21 February 2005] (see full text of the decision).

123. [GERMANY Oberlandesgericht Schleswig 22 August 2002].

124. [BELGIUM Hof van Beroep Antwerpen 14 February 2002 (NV Carta Mundi v. Index Syndicate Ltd.)].

125. CLOUT case No. 423 [AUSTRIA Oberster Gerichtshof 27 August 1999].

126. CLOUT case No. 319 [GERMANY Bundesgerichtshof 3 November 1999] (see full text of the decision).

127. CLOUT case No. 833 [NETHERLANDS Hoge Raad 20 February 1998].

128. CLOUT case No. 593 [GERMANY Oberlandesgericht Karlsruhe 6 March 2003].

129. [GERMANY Landgericht Bamberg 23 October 2006].

130. For other decisions holding that buyer's notice lacked sufficient specificity, see CLOUT case No. 337 [GERMANY Landgericht Saarbrücken 26 March 1996]; CLOUT case No. 336 [SWITZERLAND Canton of Ticino Tribunale d'appello 8 June 1999]; [ICC Arbitration Court of the International Chamber of Commerce, 23 January 1997 (Arbitral award No. 8611)]; CLOUT case No. 4 [GERMANY Landgericht Stuttgart 31 August 1989] (see full text of the decision); CLOUT case No. 252 [SWITZERLAND Handelsgericht des Kantons Zürich 21 September 1998] (see full text of the decision).

131. [AUSTRIA Oberster Gerichtshof 8 May 2008].

132. [GERMANY Oberlandesgericht Hamburg 25 January 2008].

133. CLOUT case No. 938 [SWITZERLAND Kantonsgericht Zug 30 August 2007] (see full text of the decision) (dicta). See also [GERMANY Landgericht Coburg 12 December 2006] ("A mere reference to inferior or poor quality is not sufficient").

134. [GERMANY Oberlandesgericht Saarbrücken 17 January 2007].

135. CLOUT case No. 721 [GERMANY Oberlandesgericht Karlsruhe 8 February 2006].

136. [AUSTRIA Oberlandesgericht Linz 1 June 2005].

137. [GERMANY Oberlandesgericht Düsseldorf 23 January 2004].

138. CLOUT case No. 885 [SWITZERLAND Bundesgericht 13 November 2003] (see full text of the decision).

139. [SERBIA Foreign Trade Court of Arbitration attached to the Yugoslav Chamber of Commerce 27 November 2002] (requiring that notice by telephone be confirmed in writing within a reasonable time).

140. [GERMANY Landgericht Saarbrücken 2 July 2002].

141. [BELGIUM Hof van Beroep Antwerpen 14 February 2002 (NV Carta Mundi v. Index Syndicate Ltd.)].

142. CLOUT case No. 364 [GERMANY Landgericht Köln 30 November 1999].

143. CLOUT case No. 290 [GERMANY Oberlandesgericht Saarbrücken 3 June 1998].

144. [BELGIUM Rechtbank van Koophandel Kortrijk 16 December 1996].

145. CLOUT case No. 220 [SWITZERLAND Kantonsgericht Nidwalden 3 December 1997].

146. CLOUT case No. 3 [GERMANY Landgericht München 3 July 1989].

147. CLOUT case No. 98 [NETHERLANDS Rechtbank Roermond 19 December 1991 (Cheese case)].

148. CLOUT case No. 339 [GERMANY Landgericht Regensburg 24 September 1998].

149. [GERMANY Landgericht Marburg 12 December 1995];.

150. CLOUT case No. 411 [GERMANY Landgericht Bochum 24 January 1996].

151. [GERMANY Landgericht Hannover 1 December 1993].

152. [GERMANY Landgericht München 20 March 1995].

153. CLOUT case No. 229 [GERMANY Bundesgerichtshof 4 December 1996].

154. CLOUT case No. 378 [ITALY Tribunale di Vigevano 12 July 2000].

155. CLOUT case No. 273 [GERMANY Oberlandesgericht München 9 July 1997] (see full text of the decision).

156. CLOUT case No. 282 [GERMANY Oberlandesgericht Koblenz 31 January 1997].

157. [BELGIUM Hof van Beroep Ghent 14 November 2008 (Volmari Werner v. Isocab NV)].

158. CLOUT Case No. 833 [NETHERLANDS Hoge Raad 20 February 1998].

159. CLOUT case No. 131 [GERMANY Landgericht München 8 February 1995].

160. [GERMANY Oberlandesgericht Saarbrücken 17 January 2007].

161. CLOUT case No. 721 [GERMANY Oberlandesgericht Karlsruhe 8 February 2006].

162. CLOUT case No. 608 [ITALY Tribunale Rimini 26 November 2002 (Al Palazzo S.r.l v. Bernardaud di Limoges S.A.)] (see full text of the decision).

163. CLOUT case No. 310 [GERMANY Oberlandesgericht Düsseldorf 12 March 1993] (see full text of the decision).

164. [ITALY Tribunale Civile di Cuneo 31 January 1996].

165. [UNITED STATES U.S. District Court, Southern District of Ohio, 26 March 2009 (Miami Valley Paper, LLC v. Lebbing Engineering & Consulting GmbH)]; [NETHERLANDS Rechtbank Breda 16 January 2009]; [ITALY Tribunale di Forlí 16 February 2009]; CLOUT case No. 867 [ITALY Tribunale di Forlí 11 December 2008 (Mitias v. Solidea S.r.l.)]; CLOUT case No. 938 [SWITZERLAND Kantonsgericht Zug 30 August 2007] (see full text of the decision); CLOUT case No. 934 [SWITZERLAND Tribunal Cantonal Valais 27 April 2007] (see full text of the decision); CLOUT case No. 723 [GERMANY Oberlandesgericht Koblenz 19 October 2006 (Tee shirts case)] (see full text of the decision); [ITALY Tribunale Civile di Cuneo 31 January 1996]; [GERMANY Landgericht Hamburg 6 September 2004]; CLOUT case No. 892 [SWITZERLAND Kantonsgericht Schaffhausen 27 January 2004] (see full text of the decision); [GERMANY Landgericht Tübingen 18 June 2003]; [GREECE Single-Member Court of First Instance of Thessalonika 2003 (docket No. 14953/2003)] (English editorial remarks available); CLOUT case No. 608 [ITALY Tribunale Rimini 26 November 2002 (Al Palazzo S.r.l v. Bernardaud di Limoges S.A.)] (see full text of the decision); CLOUT case No. 310 [GERMANY Oberlandesgericht Düsseldorf 12 March 1993] (see full text of the decision); CLOUT case No. 81 [GERMANY Oberlandesgericht Düsseldorf 10 February 1994] (see full text of the decision); CLOUT case No. 378 [ITALY Tribunale di Vigevano 12 July 2000]; CLOUT case No. 593 [GERMANY Oberlandesgericht Karlsruhe 6 March 2003].

166. [BELGIUM Rechtbank van Koophandel Hasselt 20 September 2005 (J.M. Smithuis Pre Pain v. Bakkershuis)] ("The reasonable time of article 39(1) is a short term"); [GERMANY Landgericht Tübingen 18 June 2003] ("a common assumption that [the reasonable time for notice] should be short .... a strict standard"); CLOUT case No. 423 [AUSTRIA Oberster Gerichtshof 27 August 1999]; CLOUT case No. 310 [GERMANY Oberlandesgericht Düsseldorf 12 March 1993] (see full text of the decision); CLOUT case No. 81 [GERMANY Oberlandesgericht Düsseldorf 10 February 1994] (see full text of the decision); CLOUT case No. 251 [SWITZERLAND Handelsgericht des Kantons Zürich 30 November 1998] (see full text of the decision). But see [SWITZERLAND Appelationshof Bern 11 February 2004 (Wire and cable case)], reasoning upheld in CLOUT case No. 894 [SWITZERLAND Bundesgericht 7 July 2004] (see full text of the decision) ("the CISG in general attempts to avoid too strict time limits"); CLOUT case No. 538 [AUSTRIA Oberlandesgericht Innsbruck 26 April 2002] ("the requirements of the notice should not be too burdensome for the buyer").

167. [GERMANY Oberlandesgericht Saarbrücken 17 January 2007]. See also [SWITZERLAND Appelationshof Bern 11 February 2004], reasoning upheld in CLOUT case No. 894 [SWITZERLAND Bundesgericht 7 July 2004] (see full text of the decision) ("it is not justified for the buyer to suffer from mistakes made by the seller by way of a reversal of the burden of proof caused by strict time limits for examination and notification").

168. CLOUT case No. 694 [UNITED STATES U.S. Bankruptcy Court, Oregon, 29 March 2004 (In re Siskiyou Evergreen, Inc.)] (see full text of the decision).

169. [GERMANY Landgericht Hamburg 6 September 2004].

170. CLOUT case No. 541 [AUSTRIA Oberster Gerichtshof 14 January 2002] (see full text of the decision).

171. CLOUT case No. 196 [SWITZERLAND Handelsgericht des Kantons Zürich 26 April 1995] (see full text of the decision). See also CLOUT case No. 123 [GERMANY Bundesgerichtshof 8 March 1995] (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).

172. [GERMANY Amtsgericht Freiburg 6 July 2007]; CLOUT case No. 748 [AUSTRIA Oberster Gerichtshof 24 May 2005]; [SWITZERLAND Appelationshof Bern 11 February 2004 (Wire and cable case)], reasoning upheld in CLOUT case No. 894 [SWITZERLAND Bundesgericht 7 July 2004] (see full text of the decision); CLOUT case No. 892 [SWITZERLAND Kantonsgericht Schaffhausen 27 January 2004] (see full text of the decision). See also [GERMANY Oberlandesgerich München 17 November 2006] (under article 27 CISG, the seller bore the risk of transmis sion of notice, and was obliged to inform the buyer of the seller's change of address; thus the timeliness of the buyer's notice was determined as of the time it was dispatched, and the fact that the seller never received the notice at its new location did not prevent the notice from being effective).

173. 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., [GERMANY Oberlandesgericht Saarbrücken 17 January 2007]; CLOUT case No. 775 [GERMANY Landgericht Frankfurt 11 April 2005] (see full text of the decision); CLOUT case No. 634 [GERMANY Landgericht Berlin 21 March 2003]; CLOUT case No. 378 [ITALY Tribunale di Vigevano 12 July 2000]; CLOUT case No. 4 [GERMANY Landgericht Stuttgart 31 August 1989]; CLOUT case No. 81 [GERMANY Oberlandesgericht Düsseldorf 10 February 1994]; CLOUT case No. 482 [FRANCE Cour d'appel Paris 6 November 2001].

174. [GERMANY Oberlandesgericht Saarbrücken 17 January 2007] (also holding that the buyer had a reasonable excuse for failure to give timely article 39(1) because buyer was not informed of the lack of conformity by its expert until a later time).

175. [UNITED STATES U.S. Court of Appeals for the Fifth Circuit, 11 June 2003 (BP Oil International v. Empresa Estatal Petroleos de Ecuador)].

176. [FINLAND Hoviokeus/hovrätt Turku 24 May 2005].

177. CLOUT case No. 941 [NETHERLANDS Hof Arnem 18 July 2006]; [BELGIUM Hof van Beroep Antwerpen 14 April 2004 (ING Insurance v. BVBA HVA Koeling and Fagard Winand; HVA Koeling BVBA v. Fagard Winand and Besseling Agri-Technic BV)].

178. [GERMANY Landgericht Berlin 13 September 2006].

179. [GERMANY Landgericht Bamberg 23 October 2006]; [GERMANY Landgericht Berlin 16 September 1992].

180. An example of such objective evidence can be found in [FINLAND Helsinki Court of First Instance 11 June 1995, affirmed by Helsinki Court of Appeal 30 June 1998], where the buyer commissioned a chemical analysis of the goods which revealed their defects. See also CLOUT case No. 909 [SWITZERLAND Kantonsgericht Appenzell-Ausserhoden 9 March 2006] (see full text of the decision) (buyer's statements indicated he was present at delivery, when the damage to the goods occurred); CLOUT case No. 486 [SPAIN Audiencia Provincial de La Coruña 21 June 2002] (buyer of fish eggs who sent them to an expert for analysis should have known that they were infected with a virus, at the latest, by the end of the normal time for incubation and diagnosis of the virus).

181. CLOUT case No. 867 [ITALY Tribunale di Forlí 11 December 2008 (Mitias v. Solidea S.r.l.)].

182. [GERMANY Oberlandesgericht Koblenz 21 November 2007]; [SLOVAKIA Regional Court Zilina 25 October 2007]; [FRANCE Cour d'appel Versailles 13 October 2005]; [FINLAND Hoviokeus/hovrätt Turku 24 May 2005]; [NETHERLANDS Hoge Raad 4 February 2005] [BELGIUM Hof van Beroep Antwerpen 14 February 2002 (NV Carta Mundi v. Index Syndicate Ltd.)].

183. CLOUT case No. 210 [SPAIN Audiencia Provincial Barcelona 20 June 1997].

184. CLOUT case No. 833 [NETHERLANDS Hoge Raad 20 February 1998].

185. CLOUT case No. 590 [GERMANY Landgericht Saarbrücken 1 June 2004] (see full text of the decision).

186. [SWITZERLAND Appelationshof Bern 11 February 2004 (Wire and cable case)], reasoning upheld in CLOUT case No. 894 [SWITZERLAND Bundesgericht 7 July 2004] (see full text of the decision).

187. CLOUT case No. 879 [SWITZERLAND Handelsgericht Bern 17 January 2002] (see full text of the decision).

188. See the Digest for article 38, paragraph 2.

189. CLOUT case No. 1057 [AUSTRIA Oberster Gerichtshof 2 April 2009]; [ITALY Tribunale di Forlí 16 February 2009]; CLOUT case No. 867 [ITALY Tribunale di Forlí 11 December 2008 (Mitias v. Solidea S.r.l.)]; [SWITZERLAND Appellationsgericht Basel-Stadt 26 November 2008]; CLOUT case No. 802 [SPAIN Tribunal Supremo 17 January 2008] (see full text of the decision); CLOUT case No. 828 [NETHERLANDS Gerechtshof 's-Hertogenbosch 2 January 2007]; [GERMANY Landgericht Aschaffenburg 20 April 2006]; CLOUT case No. 944 [NETHERLANDS Gerechtshof 's-Hertogenbosch 11 October 2005] (see full text of the decision); CLOUT case No. 775 [GERMANY Landgericht Frankfurt 11 April 2005] (see full text of the decision); [GERMANY Landgericht Hamburg 6 September 2004]; [BELGIUM Rechtbank van Koophandel Kortrijk 4 June 2004 (Steinbock-Bjonustan EHF v. N.V. Duma)]; [BELGIUM Hof van Beroep Gent 16 June 2004 (Mermark Fleischhandelsgesellschaft mbH v. Cvba Lokerse Vleesveiling)]; CLOUT case No. 590 [GERMANY Landgericht Saarbrücken 1 June 2004] (see full text of the decision); [UNITED STATES U.S. District Court, Northern District of Illinois, 21 May 2004 (Chicago Prime Packers, Inc. v. Northam Food Trading Co.)]; [SWITZERLAND Appelationshof Bern 11 February 2004 (Wire and cable case)], reasoning upheld in CLOUT case No. 894 [SWITZERLAND Bundesgericht 7 July 2004] (see full text of the decision); CLOUT case No. 892 [SWITZERLAND Kantonsgericht Schaffhausen 27 January 2004] (see full text of the decision); [GERMANY Oberlandesgericht Düsseldorf 23 January 2004]; [BELGIUM Rechtbank van Koophandel Hasselt 6 January 2004]; CLOUT case No. 885 [SWITZERLAND Bundesgericht 13 November 2003] (see full text of the decision); [BELGIUM Hof van Beroep Gent 8 October 2003]; [GERMANY Landgericht Bielefeld 15 August 2003]; [BELGIUM Rechtbank van Koophandel Veurne 19 March 2003 (CVBA L. v. E.G. BV)]; [SWITZERLAND Handelsgericht St. Gallen 11 February 2003]; CLOUT case No. 608 [ITALY Tribunale Rimini 26 November 2002 (Al Palazzo S.r.l v. Bernardaud di Limoges S.A.)] (see full text of the decision); [GERMANY Oberlandesgericht München 13 November 2002]; CLOUT case No. 484 [SPAIN Audiencia Provincial de la Pontevedra 3 October 2002 (frozen fish)]; [BELGIUM Rechtbank van Koophandel Hasselt 6 March 2002 (Roelants Eurosprint v. Beltronic Engineering International)]; [GERMANY Landgericht Saarbrücken 2 July 2002]; CLOUT case No. 997 [DENMARK Sø og Handelsretten 31 January 2002]; CLOUT case No. 81 [GERMANY Oberlandesgericht Düsseldorf 10 February 1994]; CLOUT case No. 262 [SWITZERLAND Kanton St. Gallen, Gerichtskommission Oberrheintal 30 June 1995]; [ITALY Pretura di Torino 30 January 1997]; [ICC Arbitration Court of the International Chamber of Commerce, June 1996 (Arbitral award No. 8247)]; CLOUT case No. 48 [GERMANY Oberlandesgericht Düsseldorf 8 January 1993]; CLOUT case No. 123 [GERMANY Bundesgerichtshof 8 March 1995]; [NETHERLANDS Arrondissementsrechtsbank 's-Hertogenbosch 15 December 1997]; CLOUT case No. 4 [GERMANY Landgericht Stuttgart 31 August 1989]. Compare [FINLAND Hoviokeus/hovrätt Turku 24 May 2005] (because the article 38 examination conducted by the buyer, which was proper and in accordance with trade usage and practices established between the parties, did not reveal the lack of conformity, the buyer's reasonable time for giving article 39(1) notice did not begin until the buyer learned of the lack of conformity through complaints from its customers); [BELGIUM Hof van Beroep Antwerpen 14 February 2002 (NV Carta Mundi v. Index Syndicate Ltd.)] (the buyer was justified in not examining the goods (thus delaying discovery of the lack of conformity) until the seller had made enough deliveries of glass game pieces to permit the assembly of full-game packages; the buyer's reasonable time for giving article 39(1) notice did not begin to run until that point).

190. See the Digest for article 38.

191. E.g., CLOUT case No. 1057 [AUSTRIA Oberster Gerichtshof 2 April 2009]; [ITALY Tribunale di Forlí 16 February 2009]; [SWITZERLAND Appellationsgericht Basel-Stadt 26 November 2008]; CLOUT case No. 849 [SPAIN Audiencia Provincial de Pontevedra 19 December 2007] (see full text of the decision); [SWITZERLAND Obergericht Zug 19 December 2006]; [GERMANY Landgericht Hamburg 6 September 2004]; [BELGIUM Rechtbank van Koophandel Kortrijk 4 June 2004 (Steinbock-Bjonustan EHF v. N.V. Duma)]. [SWITZERLAND Appelationshof Bern 11 February 2004], reasoning upheld in CLOUT case No. 894 [SWITZERLAND Bundesgericht 7 July 2004] (see full text of the decision); [BELGIUM Rechtbank van Koophandel Hasselt 6 January 2004]; [BELGIUM Hof van Beroep Gent 8 October 2003]; [SWITZERLAND Handelsgericht St. Gallen 11 February 2003]; CLOUT case No. 608 [ITALY Tribunale Rimini 26 November 2002 (Al Palazzo S.r.l v. Bernardaud di Limoges S.A.)] (see full text of the decision); CLOUT case No. 484 [SPAIN Audiencia Provincial de la Pontevedra 3 October 2002 (frozen fish)]; [BELGIUM Rechtbank van Koophandel Hasselt 6 March 2002 (Roelants Eurosprint v. Beltronic Engineering International)]; CLOUT case No. 634 [GERMANY Landgericht Berlin 21 March 2003]; CLOUT case No. 123 [GERMANY Bundesgerichtshof 8 March 1995] (see full text of the decision); CLOUT case No. 251 [SWITZERLAND Handelsgericht des Kantons Zürich 30 November 1998]; CLOUT case No. 285 [GERMANY Oberlandesgericht Koblenz 11 September 1998]; [GERMANY Landgericht Düsseldorf 23 June 1994]; [GERMANY Landgericht Mönchengladbach May 22 1992]; [GERMANY Amtsgericht Riedlingen 21 October 1994].

192. [BELGIUM Hof van Beroep Ghent 16 April 2007 (Dat-Schaub International a/s v. Kipco Damaco N.V.)]; [BELGIUM Tribunal commercial de Bruxelles 5 October 1994]; CLOUT case No. 256 [SWITZERLAND Tribunal Cantonal du Valais 29 June 1998] (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).

193. [ITALY Tribunale di Forlí 16 February 2009]. Compare CLOUT case No. 1040 [SPAIN Audiencia Provincial de Cuenca 31 January 2005], holding that, even though the buyer had been informed of the results of a veterinarian's examination soon after livestock was delivered, the buyer's delay in giving article 39 notice that the livestock was in poor condition was "reasonable for the [Buyer] to be convinced of the actual sanitary condition of the animals."

194. For the description of a latent defect, see CLOUT case No. 590 [GERMANY Landgericht Saarbrücken 1 June 2004] (see full text of the decision) (also stating that the buyer bears the burden of proving that a lack of conformity was hidden or latent). See also [GERMANY Landgericht Saarbrücken 2 July 2002] (defect that was "immediately discernible by way of a simple test" that the buyer should have carried out was not a latent defect and did not extend the time for notice); [GERMANY Landgericht München 27 February 2002] (buyer's reasonable time for giving article 39(1) notice did not begin to run until it actually became aware of defects because it was under no duty to discover non-conformity — lack of basic electrical safety features — during its article 38 examination upon delivery).

195. [SLOVAKIA Regional Court Zilina 25 October 2007]; [FINLAND Hoviokeus/hovrätt Turku 24 May 2005]; [NETHERLANDS Hoge Raad 4 February 2005]; [FRANCE Cour d'appel de Poitiers 26 October 2004]; CLOUT case No. 773 [GERMANY Bundesgerichtshof 30 June 2004] (see full text of the decision); CLOUT case No. 590 [GERMANY Landgericht Saarbrücken 1 June 2004] (see full text of the decision); [GERMANY Landgericht München 27 February 2002] (buyer's reasonable time for giving article 39(1) notice did not begin to run until it actually became aware of defects because it was under no duty to discover non-conformity — lack of basic electrical safety features — during its article 38 examination upon delivery); CLOUT case No. 879 [SWITZERLAND Handelsgericht Bern 17 January 2002] (see full text of the decision); CLOUT case No. 541 [AUSTRIA Oberster Gerichtshof 14 January 2002] (see full text of the decision approving approach of lower appeals court); [GERMANY Landgericht Paderborn 25 June 1996]; [GERMANY Landgericht Ellwangen 21 August 1995]; [FINLAND Helsinki Court of First Instance 11 June 1995, affirmed by Helsinki Court of Appeal 30 June 1998]. 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 Digest for article 38 at paragraph 15.

196. CLOUT case No. 319 [GERMANY Bundesgerichtshof 3 November 1999].

197. CLOUT case No. 944 [NETHERLANDS Gerechtshof 's-Hertogenbosch 11 October 2005] (see full text of the decision); [FRANCE Cour d'appel de Poitiers 26 October 2004]; CLOUT case No. 590 [GERMANY Landgericht Saarbrücken 1 June 2004] (see full text of the decision) (reasonable time to give notice of a latent non-conformity commences "when a prudent buyer would take steps to examine the goods closer as well as take legal steps due to the existence of suspicious circumstances"); CLOUT case No. 879 [SWITZERLAND Handelsgericht Bern 17 January 2002] (see full text of the decision); CLOUT case No. 634 [GERMANY Landgericht Berlin 21 March 2003]; CLOUT case No. 378 [ITALY Tribunale di Vigevano 12 July 2000] (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 should have given notice immediately thereafter; the buyer in fact waited until it received complaints from its own customer before notifying the seller); [GERMANY Landgericht Düsseldorf 23 June 1994].

198. CLOUT case No. 225 [FRANCE Cour d'appel, Versailles 29 January 1998]; CLOUT case No. 833 [NETHERLANDS Hoge Raad 20 February 1998]; [ITALY Tribunale di Busto Arsizio 13 December 2001].

199. See the discussion in paragraph 19 supra.

200. For a survey of some of the presumptive notice periods that have been suggested, see [SWITZERLAND Appelationshof Bern 11 February 2004], reasoning upheld in CLOUT case No. 894 [SWITZERLAND Bundesgericht 7 July 2004] (see full text of the decision).

201. E.g., [GERMANY Oberlandesgericht Hamburg 25 January 2008]; [GERMANY Landgericht Hamburg 6 September 2004]; [GERMANY Oberlandesgericht Schleswig 22 August 2002]; [SWITZERLAND Obergericht Luzern 29 July 2002 (complex machinery)]; CLOUT case No. 593 [GERMANY Oberlandesgericht Karlsruhe 6 March 2003] (asserting that the time for giving notice varies with the circumstances of the case, but generally ranges from two weeks to one month) (see full text of the decision); CLOUT case No. 541 [AUSTRIA Oberster Gerichtshof 14 January 2002] (approving approach of lower appeals court that has set a period of one week for notice as "a rough norm for orientation", resulting in a total presumptive period of 14 days for examining the goods and giving notice) (see full text of the decision); CLOUT case No. 423 [AUSTRIA Oberster Gerichtshof 27 August 1999] (suggesting a presumptive period of 14 days for examining the goods and giving notice "[i] nsofar as there are no specific circumstances militating in favour of a shorter or longer period"); CLOUT case No. 284 [GERMANY Oberlandesgericht Köln 21 August 1997] ; CLOUT case No. 164 [HUNGARY Arbitration Court attached to the Hungarian Chamber of Commerce and Industry 5 December 1995] (see full text of the decision).

202. [SWITZERLAND Obergericht Luzern 29 July 2002 (complex machinery)].

203. CLOUT case No. 167 [GERMANY Oberlandesgericht München 8 February 1995] (see full text of the decision).

204. CLOUT case No. 1057 [AUSTRIA Oberster Gerichtshof 2 April 2009]; [AUSTRIA Oberlandesgericht Linz 1 June 2005]; CLOUT case No. 892 [SWITZERLAND Kantonsgericht Schaffhausen 27 January 2004] (see full text of the decision); CLOUT case No. 538 [AUSTRIA Oberlandesgericht Innsbruck 26 April 2002]; CLOUT case No. 423 [AUSTRIA Oberster Gerichtshof 27 August 1999].

205. [GERMANY Oberlandesgericht Hamburg 25 January 2008]; CLOUT case No. 593 [GERMANY Oberlandesgericht Karlsruhe 6 March 2003].

206. [GERMANY Landgericht Bamberg 23 October 2006]; [SWITZERLAND Cour de Justice [Appellate Court] de Genève 20 January 2006]; [GERMANY Landgericht Saarbrücken 2 July 2002]; CLOUT case No. 192 [SWITZERLAND Obergericht des Kantons Luzern 8 January 1997]; CLOUT case No. 232 [GERMANY Oberlandesgericht München 11 March 1998] (see full text of the decision).

207. [SWITZERLAND Obergericht Zug 19 December 2006].

208. CLOUT case No. 941 [NETHERLANDS Hof Arnem 18 July 2006]; [GERMANY Landgericht Tübingen 18 June 2003]; [GERMANY Landgericht Landshut 5 April 1995] (presumptive time period for defects that are not hidden).

209. CLOUT case No. 909 [SWITZERLAND Kantonsgericht Appenzell-Ausserhoden 9 March 2006] (see full text of the decision).

210. CLOUT case No. 892 [SWITZERLAND Kantonsgericht Schaffhausen 27 January 2004] (see full text of the decision); CLOUT case No. 541 [AUSTRIA Oberster Gerichtshof 14 January 2002] (see full text of the decision approving approach of lower appeals court); CLOUT case No. 285 [GERMANY Oberlandesgericht Koblenz 11 September 1998]; [GERMANY Landgericht Mönchengladbach 22 May 1992]. The latter case indicated that the presumptive periods it proposed applied where the goods were textiles.

211. CLOUT case No. 280 [GERMANY Oberlandesgericht Jena 26 May 1998]; CLOUT case No. 230 [GERMANY Oberlandesgericht Karlsruhe 25 June 1997], reversed on other grounds, CLOUT case No. 270 [GERMANY Bundesgerichtshof 25 November 1998] (presumptive period applicable to non-perishable goods).

212. [GERMANY Oberlandesgericht München 13 November 2002].

213. [SLOVAKIA District Court in Nitra 3 October 2006]; CLOUT case No. 359 [GERMANY Oberlandesgericht Koblenz 18 November 1999] (applicable to case of obvious defects); CLOUT case No. 251 [SWITZERLAND Handelsgericht des Kantons Zürich 30 November 1998] (also proposing presumptive period of seven to 10 days for examination).

214. CLOUT case No. 885 [SWITZERLAND Bundesgericht 13 November 2003] (see full text of the decision).

215. [GERMANY Landgericht Stuttgart 15 October 2009]; [SWITZERLAND Appellationsgericht Basel-Stadt 26 November 2008]; CLOUT case No. 938 [SWITZERLAND Kantonsgericht Zug 30 August 2007] (see full text of the decision); [SWITZERLAND Obergericht Zug 19 December 2006]; CLOUT case No. 723 [GERMANY Oberlandesgericht Koblenz 19 October 2006 (Tee shirts case)] (see full text of the decision); [BELGIUM Rechtbank van Koophandel Hasselt 20 September 2005 (J.M. Smithuis Pre Pain v. Bakkershuis)]; [GERMANY Landgericht Hamburg 6 September 2004]; [GERMANY Landgericht Kiel 27 July 2004]; [BELGIUM Rechtbank van Koophandel Kortrijk 4 June 2004 (Steinbock-Bjonustan EHF v. N.V. Duma)]; [GERMANY Oberlandesgericht München 13 November 2002]; [SWITZERLAND Kantonsgericht Schaffhausen 25 February 2002]; CLOUT case No. 123 [GERMANY Bundesgerichtshof 8 March 1995]; CLOUT case No. 289 [GERMANY Oberlandesgericht Stuttgart 21 August 1995]; [GERMANY Amtsgericht Augsburg 29 January 1996]; CLOUT case No. 319 [GERMANY Bundesgerichtshof 3 November 1999]. See also CLOUT case No. 164 [HUNGARY Arbitration Court attached to the Hungarian Chamber of Commerce and Industry 5 December 1995] (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).

216. CLOUT case No. 825 [GERMANY Oberlandesgericht Köln 14 August 2006] (see full text of the decision) (notice with respect to perishable goods due within 24 hours); [GREECE Single-Member Court of First Instance of Thessalonika 2003 (docket No. 14953/2003)] (English editorial remarks available) ("for consumables the reasonable period corresponds to a few days or sometimes even a few hours"); [GERMANY Oberlandesgericht Schleswig 22 August 2002] (notice of lack of conformity of live sheep gener ally due in three to four days after delivery); CLOUT case No. 290 [GERMANY Oberlandesgericht Saarbrücken 3 June 1998] (in sales of fresh flowers, notice should be given on day of delivery); CLOUT case No. 230 [GERMANY Oberlandesgericht Karlsruhe 25 June 1997] (see full text of the decision), reversed on other grounds CLOUT case No. 270 [GERMANY Bundesgerichtshof 25 November 1998] (asserting that notice of defects in perishable goods often due in a few hours). See also [GERMANY Amtsgericht Riedlingen 21 October 1994], where the court stated that the buyer should have examined ham within three 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.

217. See paragraph 19 supra.

218. [NETHERLANDS Arrondissementsrechtbank Zutphen 27 February 2008 (Frutas Caminito Sociedad Cooperativa Valenciana. v. Groente-En Fruithandel Heemskerk BV)]; CLOUT case No. 849 [SPAIN Audiencia Provincial de Pontevedra 19 December 2007] (see full text of the decision); CLOUT case No. 934 [SWITZERLAND Tribunal Cantonal Valais 27 April 2007] (see full text of the decision) ("the extent of the non-conformity"); [UNITED STATES U.S. District Court, Northern District of Illinois, 21 May 2004 (Chicago Prime Packers, Inc. v. Northam Food Trading Co.)]; [BELGIUM Hof van Beroep Gent 12 May 2003 (S. GmbH v. A. bvba)]; [BELGIUM Rechtbank van Koophandel Kortrijk 16 December 1996]; CLOUT case No. 310 [GERMANY Oberlandesgericht Düsseldorf 12 March 1993] (see full text of the decision): CLOUT case No. 284 [GERMANY Oberlandesgericht Köln 21 August 1997] (see full text of the decision); [GERMANY Landgericht Landshut 5 April 1995]; [GERMANY Landgericht Berlin 16 September 1992]; [GERMANY Amtsgericht Riedlingen 21 October 1994]; [ITALY Tribunale Civile di Cuneo 31 January 1996]; [GERMANY Landgericht Berlin 30 September 1992]. See also CLOUT case No. 776 [MEXICO Juzgado Primero Civil de Primera Instancia de Lerma de Villada 3 October 2006] (equating the rule of article 39(1) with a provision of Mexican domestic sales law that required a buyer to give written notice to the seller within five days after delivery if a lack of conformity was apparent, but which extended the notice period to 30 days if the lack of conformity was not apparent). 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.

219. CLOUT case No. 934 [SWITZERLAND Tribunal Cantonal Valais 27 April 2007] (see full text of the decision); [GREECE Single-Member Court of First Instance of Thessalonika 2003 (docket No. 14953/2003)] (English editorial remarks available); CLOUT case No. 608 [ITALY Tribunale Rimini 26 November 2002 (Al Palazzo S.r.l v. Bernardaud di Limoges S.A.)] (see full text of the decision) ("the nature of the goods and ... their use"); CLOUT case No. 98 [NETHERLANDS Rechtbank Roermond 19 December 1991 (Cheese case)]; [ITALY Pretura di Torino 30 January 1997] (referring to the "nature and value of the goods"); CLOUT case No. 378 [ITALY Tribunale di Vigevano 12 July 2000].

220. [NETHERLANDS Rechtbank Arnhem 11 February 2009]; [NETHERLANDS Rechtbank Breda 16 January 2009]; [NETHERLANDS Arrondissementsrechtbank Zutphen 27 February 2008 (Frutas Caminito Sociedad Cooperativa Valenciana. v. Groente-En Fruithandel Heemskerk BV)]; CLOUT case No. 849 [SPAIN Audiencia Provincial de Pontevedra 19 December 2007] (see full text of the decision) (perishable goods intended for human consumption); [BELGIUM Hof van Beroep Ghent 16 April 2007 (Dat-Schaub International a/s v. Kipco Damaco N.V.)] (frozen meat for human consumption); CLOUT case No. 828 [NETHERLANDS Gerechtshof 's-Hertogenbosch 2 January 2007] (live trees); CLOUT case No. 723 [GERMANY Oberlandesgericht Koblenz 19 October 2006 (Tee shirts case)] (see full text of the decision); CLOUT case No. 825 [GERMANY Oberlandesgericht Köln 14 August 2006] (see full text of the decision); [BELGIUM Rechtbank van Koophandel Veurne 19 March 2003 (CVBA L. v. E.G. BV)] (fresh vegetables); [GREECE Single-Member Court of First Instance of Thessalonika 2003 (docket No. 14953/2003)] (English editorial remarks available) ("consumables"); CLOUT case No. 608 [ITALY Tribunale Rimini 26 November 2002] (see full text of the decision); CLOUT case No. 98 [NETHERLANDS Rechtbank Roermond 19 December 1991]; CLOUT case No. 290 [GERMANY Oberlandesgericht Saarbrücken 3 June 1998]; CLOUT case No. 378 [ITALY Tribunale di Vigevano 12 July 2000] (see full text of the decision). See also [NETHERLANDS Arrondissementsrechtbank Zwolle 5 March 1997] (citing perishable nature of goods as factor mandating a short period for examination under article 38, which in turn meant that buyer's notice was given beyond a reasonable time from when it should have discovered the defects); CLOUT case No. 593 [GERMANY Oberlandesgericht Karlsruhe 6 March 2003] (dicta stating that perishability of the goods would shorten reasonable time for notice, although the goods in the case were not perishable).

221. CLOUT case No. 723 [GERMANY Oberlandesgericht Koblenz 19 October 2006 (Tee shirts case)] (see full text of the decision); [BELGIUM Hof van Beroep Gent 12 May 2003 (S. GmbH v. A. bvba)]; CLOUT case No. 423 [AUSTRIA Oberster Gerichtshof 27 August 1999]; [GERMANY Amtsgericht Augsburg 29 January 1996]. Compare CLOUT case No. 694 [UNITED STATES U.S. Bankruptcy Court, Oregon, 29 March 2004 (In re Siskiyou Evergreen, Inc.)] (see full text of the decision) (where the goods (Christmas trees) were seasonal, and earlier notice would not have permitted the seller to effectively cure the lack of conformity, notice was deemed timely, since facilitating cure is the purpose of the article 39 notice requirement).

222. [SLOVAKIA District Court in Komarno 24 February 2009] (because the goods — new potatoes — were not subject to rapid deterioration, the buyer had a longer time in which to give notice); [SWITZERLAND Obergericht Zug 19 December 2006]; [GERMANY Landgericht München 27 February 2002] (video screen apparatus); CLOUT case No. 167 [GERMANY Oberlandesgericht München 8 February 1995] (see full text of the decision). See also CLOUT case No. 248 [SWITZERLAND Schweizerisches Bundesgericht 28 October 1998] (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).

223. [SWITZERLAND Obergericht Luzern 29 July 2002] (complex machinery).

224. [UNITED STATES U.S. District Court, Southern District of Ohio, 26 March 2009 (Miami Valley Paper, LLC v. Lebbing Engineering & Consulting GmbH)].

225. CLOUT case No. 941 [NETHERLANDS Hof Arnem 18 July 2006]; [NETHERLANDS Arrondissementsrechtsbank 's-Hertogenbosch 15 December 1997]; [BELGIUM Rechtbank van Koophandel Kortrijk 16 December 1996]; see also [NETHERLANDS Rechtbank Zwolle 5 March 1997] (citing buyer's plans to process goods as factor mandating a short period for examination under article 38, which in turn meant that buyer's notice was given beyond a reasonable time from when it should have discovered the defects).

226. [NETHERLANDS Rechtbank Breda 16 January 2009]; [NETHERLANDS Arrondissementsrechtbank Zutphen 27 February 2008 (Frutas Caminito Sociedad Cooperativa Valenciana. v. Groente-En Fruithandel Heemskerk BV)] (buyer arranged for inappropriate transportation that hastened the deterioration of perishable goods); [GERMANY Landgericht Hamburg 6 September 2004]; CLOUT case No. 284 [GERMANY Oberlandesgericht Köln 21 August 1997]. Compare [AUSTRIA Oberster Gerichtshof 30 November 2006] (a purpose of article 39 is to minimize disputes over whether the goods had changed condition after delivery).

227. [HUNGARY Judicial Board of Szeged 5 December 2008].

228. [GREECE Single-Member Court of First Instance of Thessalonika 2003 (docket No. 14953/2003)] (English editorial remarks available).

229. CLOUT case No. 938 [SWITZERLAND Kantonsgericht Zug 30 August 2007] (see full text of the decision); [GREECE Single-Member Court of First Instance of Thessalonika 2003 (docket No. 14953/2003)] (English editorial remarks available).

230. CLOUT case No. 938 [SWITZERLAND Kantonsgericht Zug 30 August 2007] (see full text of the decision); CLOUT case No. 934 [SWITZERLAND Tribunal Cantonal Valais 27 April 2007] (see full text of the decision); [BELGIUM Rechtbank van Koophandel Kortrijk 16 December 1996]; [NETHERLANDS Arrondissementsrechtbank Zwolle 5 March 1997]. See also CLOUT case No. 939 [NETHERLANDS Gerechtshof 's-Hertogenbosch 19 September 2006] (court rejected the seller's argument that the season in which the goods (live trees from a tree nursery) had been delivered should influence the reasonable time because "nothing indicated that the tree nurseries made any such distinction").

231. CLOUT case No. 938 [SWITZERLAND Kantonsgericht Zug 30 August 2007] (see full text of the decision); CLOUT case No. 939 [NETHERLANDS Gerechtshof 's-Hertogenbosch 19 September 2006] (applying the five-to-six day notice period established in past transactions between the parties); CLOUT case No. 164 [HUNGARY Arbitration Court attached to the Hungarian Chamber of Commerce and Industry 5 December 1995] (see full text of the decision).

232. [GERMANY Oberlandesgericht München 11 March 1998].

233. [UNITED STATES U.S. District Court, Southern District of Ohio, 26 March 2009 (Miami Valley Paper, LLC v. Lebbing Engineering & Consulting GmbH)]; CLOUT case No. 941 [NETHERLANDS Hof Arnem 18 July 2006]; [NETHERLANDS Gerechtshof Arnhem 17 June 1997]; CLOUT case No. 232 [GERMANY Oberlandesgericht München 11 March 1998] (see full text of the decision).

234. CLOUT case No. 486 [SPAIN Audiencia Provincial de La Coruña 21 June 2002].

235. CLOUT case No. 634 [GERMANY Landgericht Berlin 21 March 2003].

236. CLOUT case No. 992 [DENMARK Rettin i Københaven 19 October 2007].

237. [CHINA International Economic and Trade Arbitration Commission, People's Republic of China, 12 March 2004]; CLOUT case No. 219 [SWITZERLAND Tribunal Cantonal Valais 28 October 1997] (see full text of the decision). See also CLOUT case No. 341 [CANADA Ontario Superior Court of Justice, 31 August 1999], where on disputed evidence the court concluded the buyer had not given the seller notice of lack of conformity.

238. [AUSTRALIA Federal Court of Australia 13 August 2010 (Cortem SpA v. Controlmatic Pty Ltd.)]; [CHINA International Economic & Trade Arbitration Commission, People's Republic of China, 21 October 2005]. Compare CLOUT case No. 798 [SPAIN Audiencia Provincial Girona 6 November 2006], where the court held that notice given when the buyer began negotiations with the seller to resolve the dispute over the conformity of delivered goods was sufficient to satisfy the notice requirement of article 39(2).

239. CLOUT case No. 596 [GERMANY Oberlandesgericht Zweibrücken 2 February 2004] (see full text of the decision).

240. [GERMANY Landgericht Düsseldorf 23 June 1994].

241. [BELGIUM Hof van Beroep Gent 28 January 2004 (J.B. and G.B. v. BV H.V.)].

242. [AUSTRALIA Federal Court of Australia 13 August 2010 (Cortem SpA v. Controlmatic Pty Ltd.)].

243. CLOUT case No. 799 [SPAIN Audiencia Provincial de Pontevedra 8 February 2007]; CLOUT case No. 262 [SWITZERLAND Kanton St. Gallen, Gerichtskommission Oberrheintal 30 June 1995]; CLOUT case No. 263 [SWITZERLAND Bezirksgericht Unterrheintal 16 September 1998].

244. [BELGIUM Tribunal commercial de Bruxelles 5 October 1994].

245. CLOUT case No. 256 [SWITZERLAND Tribunal Cantonal du Valais 29 June 1998].

246. CLOUT case No. 538 [AUSTRIA Oberlandesgericht Innsbruck 26 April 2002].

247. [NETHERLANDS Rechtbank Breda 16 January 2009] (perishable goods); [GERMANY Oberlandesgericht Köln 19 May 2008] (pesticides); CLOUT case No. 608 [ITALY Tribunale Rimini 26 November 2002 (Al Palazzo S.r.l v. Bernardaud di Limoges S.A.)] (see full text of the decision).

248. [BELGIUM Rechtbank van Koophandel Hasselt 6 March 2002 (Roelants Eurosprint v. Beltronic Engineering International)].

249. [SWITZERLAND Obergericht Zug 19 December 2006] (four months after the seller completed installation of the goods); CLOUT case No. 232 [GERMANY Oberlandesgericht München 11 March 1998] (see full text of the decision); CLOUT case No. 378 [ITALY Tribunale di Vigevano 12 July 2000].

250. CLOUT case No. 192 [SWITZERLAND Obergericht des Kantons Luzern 8 January 1997]; [GERMANY Landgericht Berlin 16 September 1992].

251. [BELGIUM Hof van Beroep Gent 12 May 2003 (S. GmbH v. A. bvba)]; [SWITZERLAND Handelsgericht St. Gallen 11 February 2003] (where buyer should have discovered the defects within a few days after delivery); [NETHERLANDS Gerechtshof Arnhem 17 June 1997]; [BELGIUM Rechtbank van Koophandel Kortrijk 27 June 1997]; CLOUT case No. 167 [GERMANY Oberlandesgericht München 8 February 1995].

252. [BELGIUM Hof von Beroep Gent 2 December 2002 (B.V.B.A. A.S. v. GmbH P.C.)].

253. [GERMANY Oberlandesgericht München 13 November 2002]; CLOUT case No. 292 [GERMANY Oberlandesgericht Saarbrücken 13 January 1993].

254. [GERMANY Oberlandesgericht Saarbrücken 17 January 2007] (also holding that the buyer had a reasonable excuse for failure to give timely article 39(1) because buyer was not informed of the lack of conformity by its expert until a later time).

255. [HUNGARY Judicial Board of Szeged 5 December 2008]; [BELGIUM Rechtbank van Koophandel Hasselt 6 March 2002 (Roelants Eurosprint v. Beltronic Engineering International)]; [BELGIUM Rechtbank van Koophandel Kortrijk 16 December 1996]; CLOUT case No. 81 [GERMANY Oberlandesgericht Düsseldorf 10 February 1994].

256. CLOUT case No. 423 [AUSTRIA Oberster Gerichtshof 27 August 1999].

257. [GERMANY Landgericht München 20 February 2002].

258. CLOUT case No. 634 [GERMANY Landgericht Berlin 21 March 2003].

259. [GERMANY Amtsgericht Kehl 6 October 1995].

260. [SWITZERLAND Obergericht Luzern 29 July 2002] (complex machinery).

261. [GERMANY Landgericht Köln 5 December 2006].

262. CLOUT case No. 828 [NETHERLANDS Gerechtshof 's-Hertogenbosch 2 January 2007], (perishable goods — live trees; stating that notice given anytime more than six days after delivery would have been untimely); [GERMANY Landgericht Mönchengladbach 22 May 1992].

263. CLOUT case No. 359 [GERMANY Oberlandesgericht Koblenz 18 November 1999]; CLOUT case No. 310 [GERMANY Oberlandesgericht Düsseldorf 12 March 1993].

264. CLOUT case No. 230 [GERMANY Oberlandesgericht Karlsruhe 25 June 1997].

265. [ITALY Tribunale Civile di Cuneo 31 January 1996].

266. CLOUT case No. 285 [GERMANY Oberlandesgericht Koblenz 11 September 1998]; [GERMANY Landgericht Köln 11 November 1993], reversed on grounds that CISG was inapplicable by CLOUT case No. 122 [GERMANY Oberlandesgericht Köln 26 August 1994].

267. [GERMANY Amtsgericht Riedlingen 21 October 1994]; [GERMANY Landgericht Berlin 16 September 1992].

268. [GERMANY Landgericht Landshut 5 April 1995 (Sport clothing case)].

269. CLOUT case No. 4 [GERMANY Landgericht Stuttgart 31 August 1989].

270. [SERBIA Foreign Trade Court of Arbitration attached to the Yugoslav Chamber of Commerce 27 November 2002] (requiring that notice by telephone be confirmed in writing within a reasonable time).

271. [BELGIUM Rechtbank van Koophandel Veurne 19 March 2003 (CVBA L. v. E.G. BV)].

272. [BELGIUM Hof van Beroep Ghent 16 April 2007 (Dat-Schaub International a/s v. Kipco Damaco N.V.)].

273. CLOUT case No. 284 [GERMANY Oberlandesgericht Köln 21 August 1997] (see full text of the decision).

274. [NETHERLANDS Arrondissementsrechtbank Zutphen 27 February 2008 (Frutas Caminito Sociedad Cooperativa Valenciana. v. Groente-En Fruithandel Heemskerk BV)] (perishable goods (fruit) with easily discoverable defects).

275. [NETHERLANDS Arrondissementsrechtbank Zutphen 27 February 2008 (Frutas Caminito Sociedad Cooperativa Valenciana. v. Groente-En Fruithandel Heemskerk BV)] (buyer arranged improper mode of transportation that wouold hasten the deterioration of perishable goods); [GERMANY Oberlandesgericht Schleswig 22 August 2002] (sheep warranted to be ready for slaughter, subject to rapid change in relevant condition).

276. CLOUT case No. 290 [GERMANY Oberlandesgericht Saarbrücken 3 June 1998].

277. [ISRAEL Supreme Court 17 March 2009 (Pamesa Cerámica v. Yisrael Mendelson Ltd.)].

278. [ITALY Tribunale di Forlí 16 February 2009].

279. [BELGIUM Hof van Beroep Antwerpen 14 April 2004 (ING Insurance v. BVBA HVA Koeling and Fagard Winand; HVA Koeling BVBA v. Fagard Winand and Besseling Agri-Technic BV)].

280. [FRANCE Cour d'appel de Poitiers 26 October 2004].

281. CLOUT case No.597 [GERMANY Oberlandesgericht Celle 10 March 2004] (see full text of the decision); [GERMANY Landgericht Saarbrücken 2 July 2002]; CLOUT case No. 997 [DENMARK Sø og Handelsretten 31 January 2002] (frozen mackerel); [ITALY Pretura di Torino 30 January 1997].

282. [GERMANY Landgericht Aschaffenburg 20 April 2006]; [SWITZERLAND Tribunal Cantonal Valais 30 April 2003].

283. CLOUT case No. 1057 [AUSTRIA Oberster Gerichtshof 2 April 2009]; [AUSTRIA Oberlandesgericht Linz 1 June 2005]; [BELGIUM Hof van Beroep Gent 8 October 2003].

284. CLOUT case No. 833 [NETHERLANDS Hoge Raad 20 February 1998].

285. [GERMANY Landgericht Stuttgart 15 October 2009]; [SERBIA Foreign Trade Court of Arbitration attached to the Serbian Chamber of Commerce, 21 February 2005].

286. [GERMANY Oberlandesgericht Saarbrücken 17 January 2007]; [GERMANY Landgericht Hamburg 6 September 2004]; CLOUT case No. 773 [GERMANY Bundesgerichtshof 30 June 2004] (see full text of the decision); [GERMANY Landgericht Berlin 16 September 1992].

287. [BELGIUM Hof van Beroep Gent 16 June 2004 (Mermark Fleischhandelsgesellschaft mbH v. Cvba Lokerse Vleesveiling)].

288. CLOUT case No. 941 [NETHERLANDS Hof Arnem 18 July 2006].

289. [BELGIUM Rechtbank van Koophandel Kortrijk 4 June 2004 (Steinbock-Bjonustan EHF v. N.V. Duma)].

290. [GERMANY Oberlandesgericht Hamm 2 April 2009] (English headnotes available); [BELGIUM Rechtbank van Koophandel Hasselt 6 January 2004]; CLOUT case No. 123 [GERMANY Bundesgerichtshof 8 March 1995] (see full text of the decision).

291. CLOUT case No. 164 [HUNGARY Arbitration Court attached to the Hungarian Chamber of Commerce and Industry 5 December 1995] (see full text of the decision).

292. [GERMANY Landgericht Bamberg 23 October 2006]; CLOUT case No. 486 [SPAIN Audiencia Provincial de La Coruña 21 June 2002] (involving special circumstances requiring that notice be given as soon as was practicable).

293. CLOUT case No. 849 [SPAIN Audiencia Provincial de Pontevedra 19 December 2007] (see full text of the decision).

294. [ICC Arbitration Court of the International Chamber of Commerce, June 1996 (Arbitral award No. 8247)].

295. CLOUT case No. 280 [GERMANY Oberlandesgericht Jena 26 May 1998]; CLOUT case No. 196 [SWITZERLAND Handelsgericht des Kantons Zürich 26 April 1995] (see full text of the decision).

296. CLOUT case No. 775 [GERMANY Landgericht Frankfurt 11 April 2005] (see full text of the decision); [NETHERLANDS Arrondissementsrechtsbank 's-Hertogenbosch 15 December 1997].

297. [SLOVAKIA District Court in Nitra 3 October 2006]; CLOUT case No. 230 [GERMANY Oberlandesgericht Karlsruhe 25 June 1997].

298. CLOUT case No. 909 [SWITZERLAND Kantonsgericht Appenzell-Ausserhoden 9 March 2006] (see full text of the decision); [UNITED STATES U.S. District Court, Northern District of Illinois, 21 May 2004 (Chicago Prime Packers, Inc. v. Northam Food Trading Co.)] (frozen pork ribs for human consumption).

299. [GERMANY Landgericht Tübingen 18 June 2003].

300. CLOUT case No. 48 [GERMANY Oberlandesgericht Düsseldorf 8 January 1993]. 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 Audiencia Provincial Barcelona 20 June 1997]; CLOUT case No. 339 [GERMANY Landgericht Regensburg 24 September 1998]; CLOUT case No. 56 [SWITZERLAND Canton of Ticino Pretore di Locarno Campagna 27 April 1992]; [NETHERLANDS Rechtbank Zwolle 5 March 1997].

301. CLOUT case No. 1038 [SPAIN Audiencia Provincial de Valencia 8 April 2008].

302. [BELGIUM Hof van Beroep Ghent 14 November 2008 (Volmari Werner v. Isocab NV)].

303. [GERMANY Oberlandesgericht Koblenz 21 November 2007].

304. CLOUT case No. 590 [GERMANY Landgericht Saarbrücken 1 June 2004] (see full text of the decision).

305. [FRANCE Cour d'appel Versailles 13 October 2005].

306. [FINLAND Hoviokeus/hovrätt Turku 24 May 2005].

307. CLOUT case No. 905 [SWITZERLAND Kantonsgericht Wallis 21 February 2005] (see full text of the decision).

308. CLOUT case No. 229 [GERMANY Bundesgerichtshof 4 December 1996] (see full text of the decision).

309. CLOUT case No. 825 [GERMANY Oberlandesgericht Köln 14 August 2006] (see full text of the decision).

310. [SLOVAKIA District Court in Komarno 24 February 2009]; CLOUT case No. 46 [GERMANY Landgericht Aachen 3 April 1990] (see full text of the decision).

311. [BELGIUM Rechtbank van Koophandel Mechelen 18 January 2002].

312. [GERMANY Landgericht Bielefeld 18 January 1991].

313. [GERMANY Landgericht Coburg 12 December 2006].

314. CLOUT case No. 723 [GERMANY Oberlandesgericht Koblenz 19 October 2006 (Tee shirts case)] (see full text of the decision); [FINLAND Hovioikeus / hovrätt Helsinki 31 May 2004 (Crudex Chemicals Oy v. Landmark Chemicals S.A.)].

315. [ITALY Tribunale di Forlí 11 December 2008 (Mitias v. Solidea S.r.l.)]; [SWITZERLAND Appelationshof Bern 11 February 2004], reasoning upheld in CLOUT case No. 894 [SWITZERLAND Bundesgericht 7 July 2004] (see full text of the decision); [FINLAND Helsinki Court of First Instance 11 June 1995] and [FINLAND Helsinki Court of Appeals 30 June 1998].

316. CLOUT case No. 120 [GERMANY Oberlandesgericht Köln 22 February 1994] (noting that buyer examined goods at the beginning of July and gave notice on or before 8 July, which the court held was timely, particularly in light of fact that 4 and 5 July were weekend days).

317. CLOUT case No. 45 [ICC Arbitration Court of the International Chamber of Commerce, 1989 (Arbitral award No. 5713)] (see full text of the decision).

318. CLOUT case No. 593 [GERMANY Oberlandesgericht Karlsruhe 6 March 2003].

319. CLOUT case No. 225 [FRANCE Cour d'appel, Versailles 29 January 1998] (see full text of the decision); see also [ITALY Tribunale di Busto Arsizio 13 December 2001] (notice made immediately after installation of machinery reasonable, followed by subsequent notices regarding further discoveries made by the buyer).

320. [GERMANY Landgericht Frankfurt 9 December 1992].

321. CLOUT case No. 315 [FRANCE Cour de Cassation 26 May 1999] (see full text of the decision).

322. CLOUT case No. 1040 [SPAIN Audiencia Provincial de Cuenca 31 January 2005].

323. CLOUT case No. 892 [SWITZERLAND Kantonsgericht Schaffhausen 27 January 2004] (see full text of the decision).

324. [GERMANY Oberlandesgericht Düsseldorf 23 January 2004]; CLOUT case No. 319 [GERMANY Bundesgerichtshof 3 November 1999].

325. CLOUT case No. 885 [SWITZERLAND Bundesgericht 13 November 2003] (see full text of the decision); CLOUT case No. 202 [FRANCE Cour d'appel, Grenoble 13 September 1995]. 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 Roermond 19 December 1991 (Cheese case)]; [GERMANY Landgericht Paderborn 25 June 1996].

326. [SWITZERLAND Appellationsgericht Basel-Stadt 26 November 2008]; CLOUT case No. 885 [SWITZERLAND Bundesgericht 13 November 2003] (see full text of the decision).

327. [UNITED STATES U.S. District Court, Southern District of New York 23 August 2006 (TeeVee Toons, Inc. v. Gerhard Schubert GmbH)].

328. [SLOVAKIA Regional Court Zilina 25 October 2007] (decision indicates that buyer received customer complaints in August and September, and notified seller of the lack of conformity in October).

329. [GERMANY Landgericht München 27 February 2002].

330. CLOUT case No. 484 [SPAIN Audiencia Provincial de la Pontevedra 3 October 2002 (frozen fish)].

331. [GREECE Single-Member Court of First Instance of Thessalonika 2003 (docket No. 14953/2003)] (English editorial remarks available).

332. [CHINA International Economic and Trade Arbitration Commission 3 June 2003].

333. CLOUT case No. 694 [UNITED STATES U.S. Bankruptcy Court, Oregon, 29 March 2004 (In re Siskiyou Evergreen, Inc.)] (see full text of the decision).

334. 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."

335. CLOUT case No. 799 [SPAIN Audiencia Provincial de Pontevedra 8 February 2007].

336. See, e.g., [FRANCE Cour d'appel de Rouen 19 December 2006 (Société Agrico v. Société SIAC)], affirmed by CLOUT case No. 1028 [FRANCE Cour de Cassation 16 September 2008] (holding that the requirements of article 40 were not satisfied on the facts of the case). See generally the Digest for article 40.

337. See [AUSTRALIA Federal Court of Australia 13 August 2010 (Cortem SpA v. Controlmatic Pty Ltd.)]; CLOUT case No. 1026 [FRANCE Cour de Cassation 8 April 2009 (Société Bati-Seul v. Société Ceramiche Marca Corona)]; [ISRAEL Supreme Court 17 March 2009 (Pamesa Cerámica v. Yisrael Mendelson Ltd.)]; CLOUT case No. 1058 [AUSTRIA Oberster Gerichtshof 19 December 2007] (holding that there is no "gap" in article 39(2) regarding the treatment of latent defects); [FRANCE Cour d'appel de Rouen 19 December 2006 (Société Agrico v. Société SIAC)]; [GERMANY Oberlandesgericht Stuttgart 20 December 2004]; [GERMANY Landgericht Marburg 12 December 1995]; (invoking article 39(2) to deny the buyer any remedy for a claimed lack of conformity).

338. CLOUT case No. 934 [SWITZERLAND Tribunal Cantonal Valais 27 April 2007] (see full text of the decision).

339. CLOUT case No. 1058 [AUSTRIA Oberster Gerichtshof 19 December 2007].

340. CLOUT case No. 934 [SWITZERLAND Tribunal Cantonal Valais 27 April 2007] (see full text of the decision); CLOUT case No. 344 [GERMANY Landgericht Erfurt 29 July 1998]; [GERMANY Landgericht Marburg 12 December 1995];. 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).

341. CLOUT case No. 798 [SPAIN Audiencia Provincial Girona 6 November 2006].

342. [SWITZERLAND Bundesgericht 18 May 2009]. An earlier decision had chosen to extend the domestic limitations period to two years in such cases. CLOUT case No. 249 [SWITZERLAND Cour de Justice, Genève 10 October 1997].

343. [GREECE Single-Member Court of First Instance Larissa 2005 (docket No. 165/2005)] (English editorial analysis available); CLOUT case No. 879 [SWITZERLAND Handelsgericht Bern 17 January 2002], see full text of the decision.

344. [SWITZERLAND Bundesgericht 18 May 2009]; CLOUT case No. 1027 [FRANCE Cour de cassation 3 February 2009]; [UNITED STATES U.S. District Court, Eastern District of Kentucky, 18 March 2008 (Sky Cast, Inc. v. Global Direct Distributions, LLC)]; [BELGIUM Hof van Beroep Ghent 17 May 2004 (Noma B.V.B.A. v. Misa Sud Refrigerazione S.p.A.)]; CLOUT case No. 879 [SWITZERLAND Handelsgericht Bern 17 January 2002], see full text of the decision; CLOUT case No. 202 [FRANCE Cour d'appel, Grenoble 13 September 1995] (see full text of the decision); CLOUT case No. 302 [ICC Arbitration Court of the International Chamber of Commerce, 23 August 1994 (Arbitral award No. 7660)]; CLOUT case No. 300 [ICC Arbitration Court of the International Chamber of Commerce, 1994 (Arbitral award No. 7565)].

345. For a decision indicating that parties may agree to derogate from article 39(2), see CLOUT case No. 1058 [AUSTRIA Oberster Gerichtshof 19 December 2007].

346. CLOUT case No. 302 [ICC Arbitration Court of the International Chamber of Commerce, 23 August 1994 (Arbitral award No. 7660)].

347. CLOUT case No. 300 [ICC Arbitration Court of the International Chamber of Commerce, 1994 (Arbitral award No. 7565)].

348. CLOUT case No. 237 [SWEDEN Arbitration Institute of the Stockholm Chamber of Commerce 5 June 1998] (see full text of the decision).

349. CLOUT case No. 300 [ICC Arbitration Court of the International Chamber of Commerce, 1994 (Arbitral award No. 7565)].

350. [SPAIN Juzgado de Primera Instancia e Instrucción, no. 5 de La Laguna 23 October 2007].


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