UNCITRAL Digest of Article 38 case law

DIGEST OF ARTICLE 38 CASE LAW

Overview of Article 38

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

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

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

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

Article 38(1) in general

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

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

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

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

Method of examination

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

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

Time period for examination

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

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

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

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

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

Latent lack of conformity

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

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

Article 38(2)

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

Article 38(3)

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

FOOTNOTES

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

42. See CISG art. 69.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

78. See footnote 41 supra and accompanying text.

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

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

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

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

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

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

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

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

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

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