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2008 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
Form of notice
To whom must notice be given
Agreements relating to notice
Waiver by the seller or the buyer
Article 39(1) - purposes
Contents of notice: specificity required
Timely notice in general
When time for notice begins to run - relation to article 38
Presumptive periods for notice
Factors influencing reasonable time for notice
Application of reasonable time standard
Article 39(2)]

Article 39

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

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.

Scope of article 39

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

Consequences of failure to give notice

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

Burden of proof

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

Form of notice

5. Article 39 does not specify the form of notice required, although the parties can by agreement require a particular form.[18] Notice in written form has often been found satisfactory, and the contents of a series of letters have been combined in order to satisfy the article 39 requirement.[19] 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.[20] Oral notice by telephone has also been found sufficient,[21] although in several cases evidentiary issues have caused a buyer's claim to have given telephonic notice to fail.[22] One court has found that a buyer claiming to have given notice by telephone must prove when the call took place, to whom the buyer spoke, and what was said during the conversation; the buyer's failure to prove these elements prevented it from establishing that the article 39 notice requirement was satisfied.[23] An earlier decision had similarly found that a buyer's claim of telephonic notice had not been sufficiently substantiated because the buyer had not proven the date of the call, the party spoken to, or the information conveyed concerning the lack of conformity.[24] 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.[25] 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.[26]

To whom must notice be given

6. Article 39 states that the required notice of lack of conformity must be given to the seller.[27] 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.[28] 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.[29] 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.[30] 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.[31]

Agreements relating to notice

7. Article 39 is subject to the parties' power under article 6 to derogate from or vary the effect of any provision of the Convention. A significant number of decisions have involved agreements relating to the buyer's obligation to give the seller notice of claims that the goods do not conform to the requirements of the contract.[32] 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.[33] 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,[34] and/or they suggest that the contract provisions are enforceable only to the extent they are judged reasonable by the standards of article 39.[35] 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.[36] Parties also have been found not to have derogated from article 39 just by agreeing to an 18-month contractual warranty,[37] or to a guaranty agreement that did not expressly address the buyer's obligation to give notice of lack of conformity.[38] 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.[39] A decision has also 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.[40] 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.[41]

Waiver by the seller or the buyer

8. Although article 39 gives a seller the right to prevent a buyer from relying on a lack of conformity if the buyer does not give the seller timely and proper notice thereof, a seller can waive this right by leading the buyer to think that the seller would not object to the buyer's notice. Thus where the seller, after receiving notice from the buyer that the delivered goods were not conforming, declared that it would give credit for the goods if the buyer's complaints about defects were confirmed, one court found that the seller had waived its right to object to the timeliness of the buyer's notice.[42] 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.[43] 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.[44] 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 time the price for the goods -- supported the conclusion that the seller had waived its right to object to late notice.[45] 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 customers' 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.[46]

9. Buyers have also been deemed to have waived (or to be estopped from exercising) their rights under article 39 when they affirmatively indicated acceptance of delivered goods and/or acknowledged an obligation for the price without raising objection to defects that were apparent. Thus a buyer was found to have lost its right to complain about missing parts and defects that should have been discovered when it agreed to the amount of a disputed balance remaining on the purchase price and signed bills of exchange for that balance.[47] 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.[48] And a buyer who paid outstanding invoices with bank checks and then stopped payment on the checks before they were honoured was deemed to have lost its right to complain of defects known when the checks were provided.[49]

Article 39(1) purposes

10. Article 39(1) requires a buyer who claims that the goods do not conform to the contract to give notice to the seller specifying the nature of the lack of conformity within a reasonable time after he has discovered it or ought to have discovered it. This requirement has been 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.[50] 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,[51] and more specifically to facilitate the seller's cure of defects.[52] One decision states that the purpose is to promote the quick settlement of disputes and to assist the seller in defending himself.[53] Another decision similarly suggests that article 39(1) assists the seller in defending himself against invalid claims.[54] The notice requirement has also been associated with a buyer's obligation of good faith.[55] Another 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).[56]

Contents of notice; specificity required

11. The notice required by article 39(1) must "specify the nature of the lack of conformity. ..." This language has been interpreted and applied in a large number of decisions. Several have made general pronouncements concerning the specificity requirement. It has been said that notice of the mere fact of a lack of conformity is insufficient, but that the buyer must specify the precise nature of the defects;[57] 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;[58] that notice should be specific enough to allow the seller to comprehend the buyer's claim and to take appropriate steps in response, i.e., to examine the goods and arrange for a substitute delivery or otherwise remedy the lack of conformity;[59] 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;[60] that notice should be sufficiently detailed that misunderstanding by the seller would be impossible and the seller could determine unmistakably what the buyer meant;[61] 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.[62] Several decisions have emphasized that the notice should identify the particular goods claimed to be non-conforming;[63] 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.[64] 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.[65] The specificity requirement has been applied to oral notice of lack of conformity.[66] On the other hand, several decisions have warned against setting up an overly-demanding standard of specificity.[67] 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.[68] In the case of machinery and technical equipment, it has been found that the specificity requirement is satisfied by a description of the symptoms of a lack of conformity, and that an explanation of the underlying causes is not required.[69]

12. The following descriptions of a lack of conformity have been found to be sufficiently specific to satisfy article 39(1): notice informing a shoe seller that the buyer's customer had received an alarming number of complaints about the goods, that the shoes had holes, and that the outersole and heel of the children's shoes became loose;[70] 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;[71] notice that floor tiles suffered from serious premature wear and discoloration;[72] notice that occurred when the seller was actually shown the non-conforming goods on the premises of the buyer's customer.[73]

13. The following descriptions in notices have been found not to satisfy article 39(1) because they were insufficiently specific:[74] 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;[75] 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);[76] notice that cotton cloth was of bad quality;[77] notice that furniture had wrong parts and much breakage;[78] notice of poor workmanship and improper fitting as to fashion goods;[79] notice that failed to specify that cheese was infested with maggots;[80] 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;[81] notice that agricultural machinery failed to function properly but that did not specify the serial number or the delivery date of the machine;[82] notice that truffles had softened when they in fact contained worms, even though most professional seller's would understand that softness implied worms;[83] notice that shoes were not of the quality required by the contract, but which did not describe the nature of the defects;[84] notice that frozen bacon was rancid, but which did not specify whether all or only a part of the goods were spoiled;[85] 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;[86] notice that sheets of vulcanized rubber for shoe soles had problems or contained defects;[87] 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;[88] 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.[89]

14. Beyond the specificity requirement discussed above, the CISG does not further define the contents of the notice required by article 39(1). One court has stated that, so long as the notice precisely describes defects in the goods reported by the buyer's customer, the notice need not claim that such defects constitute a breach by the seller, and may even express doubts that the customers' complaints were justified.[90] 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).[91]

Timely notice in general

15. Article 39(1) requires the buyer to give notice of lack of conformity within a reasonable time after he has discovered or ought to have discovered it. This limitation on the time in which notice must be given, it has been asserted, is to be determined on the basis of the interests of good business, so that neither side has an unfair advantage and the rapid settlement of disputes is promoted.[92] Framing the time for notice in terms of a reasonable time is designed to promote flexibility,[93] and the period varies with the facts of each case.[94] Several decisions have indicated that the reasonable time standard is a strict one.[95] 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.[96] 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).[97]

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

16. The reasonable time within which the buyer must give notice under article 39(1) commences at the moment the buyer discovered or ought to have discovered the lack of conformity. Thus the period for the buyer's notice begins to run at the earlier of two moments: the time the buyer actually (or subjectively) discovered the non-conformity, and the time the buyer theoretically should have discovered (ought to have discovered) the non-conformity.[98]

17. The time when the buyer actually discovered the lack of conformity can be shown if the buyer admits the time at which it became subjectively aware of the defects [99] or there are objective facts proving when the buyer acquired such knowledge.[100] Complaints that the buyer received from customers to whom the goods were resold may establish actual knowledge: it has been found that the time for giving notice of lack of conformity commences, if it has not started previously, when the buyer receives such complaints,[101] even if the buyer doubts their accuracy.[102]

18. As was earlier noted in the discussion of article 38,[103] the time at which the buyer should have discovered a lack of conformity for purposes of article 39(1) is closely connected to the buyer's obligation under article 38 to examine the goods. In the case of a non-conformity that should reasonably have been discovered by the buyer upon the initial examination of the goods, the buyer's time for giving notice begins to run from the time such examination should have been conducted. As one court stated, "[t]he point in time at which the buyer was obligated to have determined the breach of contract is governed by the provisions regulating the duty to examine. In this context, CISG article 38 provides that the goods must be examined within as short a period of time as the circumstances permit".[104] 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,[105] although some decisions do not appear to acknowledge the distinction.[106]

19. In the case of latent defects not reasonably detectable before some period of actual use, the time when the buyer should discover the lack of conformity occurs later than the time for the initial examination of the goods immediately following delivery.[107] 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.[108] 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.[109] 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.[110]]

Presumptive periods for notice

20. Although the time period set in article 39(1) for the buyer to give notice -- within a reasonable time after the buyer discovers or ought to have discovered the non-conformity -- is designed to be flexible [111] and will vary with the circumstances of the case,[112] a number of decisions have attempted to establish specific presumptive time periods as general guidelines or default rules. Courts adopting this approach usually contemplate that the presumptive notice periods they put forward will be adjusted to reflect the facts of the particular case.[113] The suggested presumptive periods vary considerably both in length and in the approach taken to measuring the period. Several decisions propose presumptive periods measured from the time goods are delivered, so that the periods encompass not only the time for giving notice after discovery of the lack of conformity, but also the time for the buyer to discover the non-conformity in the first place. In this vein, presumptive periods of 8 days after delivery (in the case of durable, non-seasonal goods),[114] 14 days for examination and notice,[115] from two weeks to one month after delivery,[116] and one month after delivery [117] have been suggested. Other decisions distinguish between the time for discovering the lack of conformity and the time for giving notice following discovery, often proposing presumptive periods for both components and frequently indicating particular categories of goods to which the period would apply. The following have been suggested as the presumptive reasonable time for giving notice: a few days after discovery of the lack of conformity;[118] one week (following one week for examination under article 38);[119] eight days following discovery;[120] two weeks (following one week for examination).[121] 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.[122] Where the goods are perishable, some decisions have suggested very short presumptive notice periods.[123]

Factors influencing reasonable time for notice

21. It is clear that the reasonable time for notice will vary with the circumstances of the particular case.[124] 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.[125] The nature of the goods is another frequently-cited factor:[126] goods that are perishable [127] or seasonal [128]] require earlier notice of defects; notice with respect to durable or non-seasonal goods, in contrast, is subject to a longer notice period.[129] The buyer's plans to process the goods [130] or otherwise handle them in a fashion that might make it difficult to determine if the seller was responsible for a lack of conformity [131] may also shorten the time for notice. Trade practices [132] as well as usages established between the parties [133] 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.[134] An expert or professional buyer has been found to be subject to a shorter period for notice.[135] 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).[136] 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.[137]

Application of reasonable time standard

22. It has been found that a buyer who did not give any notice of a lack of conformity before filing suit against the seller had failed to meet the requirements for timely notice under article 39(1), and had lost the right to rely on the lack of conformity.[138] 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;[139] 24 months;[140] one year;[141] nine months;[142] seven to eight months;[143] four months;[144] three and one-half months;[145] three months;[146] more than two and one-half months;[147] two months;[148] two months in the case of one delivery and approximately seven weeks in the case of another delivery;[149] seven weeks;[150] six weeks;[151] one month;[152] 25 days;[153] 24 days;[154] 23 days;[155] 21 days;[156] 20 days;[157] 19 days;[158] 16 days;[159] almost two weeks;[160] any time beyond the day of delivery (involving perishable flowers).[161] As measured from the date that the buyer discovered or ought to have discovered the lack of conformity, notices given at the following times have been found too late on the facts of particular cases: seven months;[162] almost four months;[163] more than two months;[164] six weeks;[165] 32 days;[166] slightly more than one month;[167] one month (by fax) and three weeks (by telephone);[168] four weeks;[169] three weeks;[170] approximately two weeks;[171] seven days.[172] On the other hand, a number of decisions have found that the buyer gave notice in timely fashion. On the facts of particular cases, notices given at the following times have been found to be within the reasonable time mandated by article 39(1): one day after the goods were handed over to the buyer;[173] one day after the goods were examined;[174] three days after delivery;[175] seven days after the buyer learned of the defects;[176] within eight days after the goods were examined;[177] eight days after an experts report identified defects in the goods;[178] 11 days after delivery;[179] a series of notices, one given two weeks after an initial provisional test on the goods, another given a month after a second test, and final notices given six months after delivery of one machine and eleven months after delivery of another machine;[180] 19 days after delivery;[181] 1921 days after the examination of the goods;[182] four weeks after the buyer hypothetically ought to have known of the lack of conformity;[183] within one month of delivery.[184]

Article 39(2)

23. Article 39(2) establishes an absolute cut-off date for notice of lack of conformity -- two years from the date the goods were actually handed over to the buyer, subject to an exception where such a time limit would be inconsistent with a contractual period of guarantee.[185] Without such a limit the time for notice might not have a clear end under the flexible and variable time standards in article 39(1). In the case of latent defects, for example, the time the buyer discovers or ought to discover the lack of conformity, and thus the moment that the buyer's reasonable time for giving notice under article 39(1) commences, could be long after the goods are delivered. In such cases, absent a contractual guarantee period that protects the buyer for a longer time, article 39(2) will cut-off the buyer's right to give notice at two years after the goods were actually handed over, and thus prevent the buyer from preserving its rights to rely on a lack of conformity which is not discovered and noticed before that point.[186] Unlike the period for notice established in 39(1), which is designed to be flexible and to vary with the circumstances, the two-year limit in article 39(2) is precise and non-variable (except where the contractual period of guarantee exception applies). Indeed, the apparent purpose of article 39 is to provide a specific, predictable period beyond which a seller can be confident that claims of a lack of conformity in the goods will not be legally cognizable.

24. The rather limited number of decisions applying article 39(2) have addressed several aspects of the provision. Thus several decisions have indicated that notice which is not specific enough to satisfy article 39(1) will not constitute adequate notice under article 39(2), even though the latter provision does not expressly incorporate the language in article 39(1) requiring that the notice specify the nature of the lack of conformity.[187] Several other decisions have explored the relationship between article 39(2) and rules specifying a deadline for commencing litigation based on breach of a sales contract (statutes of limitation or prescription periods). One court which considered this question struggled to reconcile a one-year limitations period in domestic law with the two-year notice period in article 39(2), eventually opting to extend the domestic limitations period to two years.[188] 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.[189] A number of decisions have involved claims that the parties had derogated from article 39(2) by agreement. Thus an arbitral tribunal found that the parties had derogated from article 39(2) by agreeing to a maximum guarantee period of 18 months, although the tribunal also explained that the prescription period for a buyer who has given timely notice was not governed by article 39(2), and was a matter beyond the scope of the CISG to be subject to domestic law.[190] 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).[191] 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.[192] 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 cutoff 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.[193]


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_second_edition.pdf>. The following modifications were made by the Institute of International Commercial Law of the Pace University School of Law:

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1. [SWEDEN Arbitration Institute of the Stockholm Chamber of Commerce, 5 June 1998 (4,000 ton rail press case)].

2. [GERMANY Landgericht, Darmstadt 9 May 2000 (Video recorders case)] (see full text of the decision).

3. [GERMANY Oberlandesgericht Düsseldorf 8 January 1993 (Tinned cucumbers case)] (see full text of the decision); [GERMANY Oberlandesgericht Koblenz 31 January 1997 (Acrylic blankets case)]; [GERMANY Landgericht Landshut 5 April 1995 (Sport clothing case)].

4. [GERMANY Amtsgericht Augsburg 29 January 1996 (Shoe case)].

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

6. [GERMANY Bundesgerichtshof 8 March 1995 (New Zealand mussels case)] (see full text of the decision); [GERMANY Landgericht Landshut 5 April 1995 (Sport clothing case)]; [GERMANY Landgericht Bielefeld 18 January 1991; [AUSTRIA Oberster Gerichtshof 27 August 1999 (Trekking shoes case)]; [GERMANY Oberlandesgericht Celle 10 March 2004 (Commercial vehicles case)].

7. [SWITZERLAND Handelsgericht des Kantons Zürich 26 April 1995 (Saltwater isolation tank case)].

8. [GERMANY Landgericht Baden-Baden 14 August 1991 (Wall tiles case)]; [GERMANY Oberlandesgericht Karlsruhe 25 June 1997 (Surface protective film case)] (see full text of the decision), reversed on other grounds by [GERMANY Bundesgerichtshof 25 November 1998 (Surface protective film case)].

9. [GERMANY Oberlandesgericht München 11 March 1998 (Cashmere sweaters case)] (see full text of the decision); [GERMANY Oberlandesgericht München 9 July 1997 (Leather goods case)]. Compare also [GERMANY Landgericht Aachen 3 April 1990 (Shoes case)] (finding that buyer had the right to reduce the price under art. 50 because it had given proper notice of lack of conformity) (see full text of the decision).

10. [GERMANY Oberlandesgericht München 11 March 1998 (Cashmere sweaters case)]; [GERMANY Oberlandesgericht Koblenz 31 January 1997 (Acrylic blankets case)] (see full text of the decision).

11. [GERMANY Landgericht Baden-Baden 14 August 1991 (Wall tiles case)].

12. See the Digests for arts. 40 and 44.

13. [ITALY Tribunale di Vigevano 12 July 2000 (Sheets of vulcanized rubber used in manufacture of shoe soles case)]; [SWITZERLAND Handelsgericht des Kantons Zürich 30 November 1998 (Lambskin coat case)]; [AUSTRIA Oberster Gerichtshof 27 August 1999 (Trekking shoes case)]; [AUSTRIA Oberster Gerichtshof 30 June 1998 (Pineapples case)]; [ITALY Pretura di Torino 30 January 1997 (Cotton fabric case)]; [SWITZERLAND Handelsgericht des Kantons Zürich 26 April 1995 (Saltwater isolation tank case)] (see full text of the decision); [SWITZERLAND Handelsgericht des Kantons Zürich 9 September 1993 (Furniture case)].

14. [NETHERLANDS Rechtbank 's-Gravenhage 7 June 1995 (Apple trees case)]; [GERMANY Landgericht Marburg 12 December 1995 (Agricultural machine case)]; [GERMANY Landgericht Duisburg 17 April 1996 (Textiles case)]; [GERMANY Oberlandesgericht Saarbrücken 3 June 1998 (Flowers case)]; [GERMANY Oberlandesgericht Stuttgart 21 August 1995 (Machinery case)]; [GERMANY Oberlandesgericht Frankfurt a.M. 23 May 1995 (Shoes case)], (see full text of the decision); [GERMANY Oberlandesgericht Düsseldorf 10 February 1994 (Shirts case)] (see full text of the decision); [ICC International Court of Arbitration, Award 8611 of 23 January 1997 (Industrial equipment case)]; [SWITZERLAND Arbitral Panel of the Zurich Chamber of Commerce, Award ZhK 273/95 of 31 May 1996].

15. [ITALY Pretura di Torino 30 January 1997 (Cotton fabric case)].

16. [ITALY Tribunale di Vigevano 12 July 2000 (Sheets of vulcanized rubber used in manufacture of shoe soles case)]; [SWITZERLAND Handelsgericht des Kantons Zürich 30 November 1998 (Lambskin coat case)]; [SWITZERLAND Handelsgericht des Kantons Zürich 26 April 1995 (Saltwater isolation tank case)] (see full text of the decision); [SWITZERLAND Handelsgericht des Kantons Zürich 9 September 1993 (Furniture case)].

17. [ITALY Tribunale di Vigevano 12 July 2000 (Sheets of vulcanized rubber used in manufacture of shoe soles case)].

18. [UNITED STATS Federal Court of Appeals for the Eleventh Circuit, 29 June 1998 (MCC-Marble v. Ceramica Nuova)], 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.

19. [FRANCE Cour d'appel de Versailles 29 January 1998 (Machines case)] (see full text of the decision).

20. [GERMANY Oberlandesgericht Karlsruhe 6 March 2003 (Pullovers case)] (see full text of the decision) (stating that the Convention does not require buyer's notice to be in a particular form).

21. [GERMANY Landgericht Frankfurt 9 December 1992 (Shoes case)]. This is one of the very rare decisions in which a particular telephonic notice was held to satisfy the notice requirement in fact. Another decision recognized the theoretical validity of telephone notice while finding on its particular facts that the requirements of article 39 had not been satisfied. [GERMANY Landgericht Frankfurt 13 July 1994 (Shoes case)]. Some decisions have found that telephonic notice failed to satisfy article 39 in some respect (e.g., because it was given too late) without commenting on the form of the notice. [GERMANY Landgericht Bochum 24 January 1996 (Wine case)]; [BELGIUM Rechtbank van Koophandel Kortrijk 16 December 1996 (Cloth case)].

22. [GERMANY Landgericht Marburg 12 December 1995 (Agricultural machine case)]; [GERMANY Landgericht Kehl 6 October 1995 (Knitware case)]; [GERMANY Landgericht Stuttgart 31 August 1989 (Shoes case)] (see full text of the decision).

23. [GERMANY Landgericht Frankfurt 13 July 1994 (Shoes case)].

24. [GERMANY Landgericht Stuttgart 31 August 1989 (Shoes case)] (see full text of the decision).

25. [BELGIUM Rechtbank van Koophandel Kortrijk 27 June 1997 (Yarn / textiles case)].

26. [GERMANY Landgericht Aachen 28 July 1993 (Rare hard wood case)], reversed on other grounds by the [GERMANY Oberlandesgericht Köln 22 February 1994 (Rare hard wood case)]

27. 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."

28. [SWITZERLAND Kantonsgericht Nidwalden 3 December 1997 (Furniture case)] (see full text of the decision).

29. [GERMANY Landgericht Kassel 15 February 1996 (Marble slab case)]. The court also noted that the notice must be specifically directed to the seller.

30. [GERMANY Landgericht Bochum 24 January 1996 (Wine case)].

31. [GERMANY Landgericht Köln 30 November 1999 (Facade stones case)].

32. See, e.g., [AUSTRIA Oberster Gerichtshof 14 January 2002 (Cooling system case)] (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).

33. [SWITZERLAND Canton of Ticino Tribunale d'appello 8 June 1999 (Wine bottles case)]; [GERMANY Landgericht Giessen 5 July 1994 (Women's clothes case)]; [GERMANY Landgericht Hannover 1 December 1993 (Shoes case)]; [ICC International Court of Arbitration, Award 7331 of 1994 (Cowhides case)] (see full text of the decision); [AUSTRIA Arbitration-Internationales Schiedsgericht der Bundeskammer der gewerblichen Wirtschaft Wien, 15 June 1994 (SCH- 4318) (Rolled metal sheets case)]; [GERMANY Landgericht Baden-Baden 14 August 1991 (Wall tiles case)]. See also [AUSTRIA Oberster Gerichtshof 30 June 1998 (Pineapples case)] (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 (Fish case)] (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).

34. [GERMANY Oberlandesgericht München 11 March 1998 (Cashmere sweaters case)] (see full text of the decision); [GERMANY Oberlandesgericht Saarbrücken 13 January 1993 (Doors case)] (see full text of the decision).

35. [GERMANY Oberlandesgericht München 11 March 1998 (Cashmere sweaters case)] (see full text of the decision); [ICC International Court of Arbitration, Award 7331 of 1994 (Cowhides case)] (see full text of the decision).

36. [ITALY Tribunale di Vigevano 12 July 2000 (Sheets of vulcanized rubber used in manufacture of shoe soles case)] (see full text of the decision). In [UNITED STATES Federal Court of Appeals for the Eleventh Circuit 29 June 1998 (MCC-Marble v. Ceramica Nuova)] 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 [Landgericht Baden-Baden, Germany, 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 [GERMANY Oberlandesgericht Saarbrücken 13 January 1993 (Doors case)] (see full text of the decision).

37. [SWEDEN Arbitration Institute of the Stockholm Chamber of Commerce, 5 June 1998 (4,000 ton rail press case)] (see full text of the decision).

38. [AUSTRIA Oberster Gerichtshof 17 April 2002] (see full text of the decision).

39. [GERMANY Oberlandesgericht Saarbrücken 13 January 1993 (Doors case)]. 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.

40. [AUSTRIA Oberster Gerichtshof 14 January 2002 (Cooling system case)] (see full text of the decision approving reasoning of lower appeals court).

41. [GERMANY Bundesgerichtshof 4 December 1996 (Printing system and software case)] (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 International Court of Arbitration, Award 8611 of 23 January 1997 (Industrial equipment case)] (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)).

42. [GERMANY Bundesgerichtshof 25 June 1997 (Stainless steel wire case)]. See also [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 rejedcted the argument); [AUSTRIA Oberster Gerichtshof 14 January 2002 (Cooling system case)] (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).

43. [GERMANY Oberlandesgericht Düsseldorf 12 March 1993 (Textiles case)]. 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.

44. [SWITZERLAND Handelsgericht des Kantons Zürich 30 November 1998 (Lambskin coat case)].

45. [GERMANY Bundesgerichtshof 25 November 1998 (Surface protective film case)].

46. [AUSTRIA Arbitration-Internationales Schiedsgericht der Bundeskammer der gewerblichen Wirtschaft Wien, 15 June 1994 (SCH-4318) (Rolled metal sheets case)]. 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.

47. [GERMANY Landgericht Saarbrücken 26 March 1996 (Ice-cream parlor furnishings case)].

48. [GERMANY Landgericht, Darmstadt 9 May 2000 (Video recorders case)].

49. [NETHERLANDS Rechtsbank Hof 's-Hertogenbosch 26 February 1992 (Shoes case)].

50. [AUSTRIA Oberster Gerichtshof 27 August 1999 (Trekking shoes case)]; [GERMANY Oberlandesgericht Düsseldorf 8 January 1993 (Tinned cucumbers case)] (see full text of the decision); [GERMANY Oberlandesgericht Köln 21 August 1997 (Aluminium hydroxide case)] (see full text of the decision); [GERMANY Landgericht München 3 July 1989 (Fashion textiles case)] (see full text of the decision).

51. [GERMANY Landgericht Saarbrücken 26 March 1996 (Ice-cream parlor furnishings case)]; [ITALY Tribunale di Vigevano 12 July 2000 (Sheets of vulcanized rubber used in manufacture of shoe soles case)] (see full text of the decision).

52. [GERMANY Landgericht Erfurt 29 July 1998 (Shoe soles case)]; [GERMANY Landgericht München 3 July 1989 (Fashion textiles case)] (see full text of the decision). See also [GERMANY Oberlandesgericht Koblenz 31 January 1997 (Acrylic blankets case)] (implying that purpose of notice is to facilitate cure by the seller).

53. [GERMANY Landgericht Kassel 15 February 1996 (Marble slab case)].

54. [AUSTRIA Oberster Gerichtshof 27 August 1999 (Trekking shoes case)].

55. [NETHERLANDS Rechtbank Zwolle 5 March 1997 (Fish case)].

56. [SPAIN Audiencia Provincial de La Coruña 21 June 2002 (Rainbow trout eggs case)].

57. [GERMANY Landgericht Hannover 1 December 1993 (Shoes case)]. Compare [GERMANY Oberlandesgericht Celle 10 March 2004 (Commercial vehicles case)] (stating that notice must describe the non-conformity as precisely as possible) (see full text of the decision).

58. [GERMANY Landgericht Erfurt 29 July 1998 (Shoe soles case)] (see full text of the decision).

59. Id. See also [GERMANY Oberlandesgericht Karlsruhe 6 March 2003 (Pullovers case)] (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 nonconforming goods, or demanding the opportunity to examine the goods himself) (see full text of the decision); [AUSTRIA Oberster Gerichtshof 14 January 2002 (Cooling system case)] (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).

60. [GERMANY Bundesgerichtshof 4 December 1996 (Printing system and software case)] (see full text of the decision). For a similar statement, see [GERMANY Bundesgerichtshof 3 November 1999 (Machine for producing hygenic tissues case)] (see full text of the decision); see also [GERMANY Oberlandesgericht Koblenz 31 January 1997 (Acrylic blankets case)] (implying that the purpose of the specificity requirement is to permit the seller to remedy the lack of conformity).

61. Id.

62. See also [GERMANY Bundesgerichtshof 3 November 1999 (Machine for producing hygenic tissues case)].

63. [GERMANY Bundesgerichtshof 3 November 1999 (Machine for producing hygenic tissues case)]; [ICC International Court of Arbitration, Award 8611 of 23 January 1997 (Industrial equipment case)]; [GERMANY Oberlandesgericht Koblenz 31 January 1997 (Acrylic blankets case)]; [GERMANY Landgericht München 20 March 1995 (Rancid bacon case)].

64. [GERMANY Landgericht Marburg 12 December 1995 (Agricultural machine case)].

65. [GERMANY Oberlandesgericht Celle 10 March 2004 (Commercial vehicles case)]; [AUSTRIA Oberster Gerichtshof 14 January 2002 (Cooling system case)]; [GERMANY Bundesgerichtshof 8 March 1995 (New Zealand mussels case)] (see full text of the decision); [GERMANY Landgericht Bielefeld 18 January 1991 (Bacon case)]; [AUSTRIA Oberster Gerichtshof 27 August 1999 (Trekking shoes case)].

66. [GERMANY Landgericht Stuttgart 31 August 1989 (Shoes case)] (see full text of the decision). See also [GERMANY Oberlandesgericht Karlsruhe 6 March 2003 (Pullovers case)].

67. [AUSTRIA Oberster Gerichtshof 14 January 2002 (Cooling system case)] (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); [GERMANY Bundesgerichtshof 4 December 1996 (Printing system and software case)] (see full text of the decision); [SWITZERLAND Handelsgericht des Kantons Zürich 21 September 1998 (Catalogue case)].

68. [SWITZERLAND Handelsgericht des Kantons Zürich 21 September 1998 (Catalogue case)]; [GERMANY Landgericht Erfurt 29 July 1998 (Shoe soles case)] (see full text of the decision).

69. [GERMANY Bundesgerichtshof 3 November 1999 (Machine for producing hygenic tissues case)]. See also [NETHERLANDS Hoge Raad 20 February 1998 (Floor tiles case)] (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 (Machinery case)] (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).

70. [AUSTRIA Oberster Gerichtshof 27 August 1999 (Trekking shoes case)].

71. [GERMANY Bundesgerichtshof 3 November 1999 (Machine for producing hygenic tissues case)] (see full text of the decision).

72. [NETHERLANDS Hoge Raad 20 February 1998 (Floor tiles case)].

73. [GERMANY Oberlandesgericht Karlsruhe 6 March 2003 (Pullovers case)].

74. For other decisions holding that buyer's notice lacked sufficient specificity, see [GERMANY Landgericht Saarbrücken 26 March 1996 (Ice-cream parlor furnishings case)]; [SWITZERLAND Canton of Ticino Tribunale d'appello 8 June 1999 (Wine bottles case)]; [ICC International Court of Arbitration, Award 8611 of 23 January 1997 (Industrial equipment case)]; [GERMANY Landgericht Stuttgart 31 August 1989 (Shoes case)] (see full text of the decision); [SWITZERLAND Handelsgericht des Kantons Zürich 21 September 1998 (Catalogue case)] (see full text of the decision).

75. [GERMANY Landgericht Köln 30 November 1999 (Facade stones case)].

76. [GERMANY Oberlandesgericht Saarbrücken 3 June 1998 (Flowers case)].

77. [BELGIUM Rechtbank van koophandel Kortrijk 16 December 1996 (Cloth case)].

78. [SWITZERLAND Kantonsgericht Nidwalden 3 December 1997 (Furniture case)].

79. [GERMANY Landgericht München 3 July 1989 (Fashion textiles case)].

80. [NETHERLANDS Rechtbank Roermond 19 December 1991 (Cheese case)].

81. [GERMANY Landgericht Regensburg 24 September 1998 (Cloth case)].

82. [GERMANY Landgericht Marburg 12 December 1995 (Agricultural machine case)].

83. [GERMANY Landgericht Bochum 24 January 1996 (Wine case)].

84. [GERMANY Landgericht Hannover 1 December 1993 (Shoes case)].

85. [GERMANY Landgericht München 20 March 1995 (Rancid bacon case)].

86. [GERMANY Bundesgerichtshof 4 December 1996 (Printing system and software case)].

87. [ITALY Tribunale di Vigevano 12 July 2000 (Sheets of vulcanized rubber used in manufacture of shoe soles case)].

88. [GERMANY Oberlandesgericht München 9 July 1997 (Leather goods case)] (see full text of the decision).

89. [GERMANY Oberlandesgericht Koblenz 31 January 1997 (Acrylic blankets case)].

90. [NETHERLANDS Hoge Raad 20 February 1998 (Floor tiles case)].

91. [GERMANY Landgericht München 8 February 1995 (Standard softwear case)].

92. [GERMANY Oberlandesgericht Düsseldorf 12 March 1993 (Textiles case)] (see full text of the decision).

93. [ITALY Tribunale Civile di Cuneo 31 January 1996 (Sports clothes case)].

94. Id.; [GERMANY Oberlandesgericht Düsseldorf 12 March 1993 (Textiles case)] (see full text of the decision); [GERMANY Oberlandesgericht Düsseldorf 10 February 1994 (Shirts case)] (see full text of the decision); [ITALY Tribunale di Vigevano 12 July 2000 (Sheets of vulcanized rubber used in manufacture of shoe soles case)]; [GERMANY Oberlandesgericht Karlsruhe 6 March 2003 (Pullovers case)].

95. [AUSTRIA Oberster Gerichtshof 27 August 1999 (Trekking shoes case)]; [GERMANY Oberlandesgericht Düsseldorf 12 March 1993 (Textiles case)] (see full text of the decision); [GERMANY Oberlandesgericht Düsseldorf 10 February 1994 (Shirts case)] (see full text of the decision); [SWITZERLAND Handelsgericht des Kantons Zürich 30 November 1998 (Lambskin coat case)] (see full text of the decision).

96. [AUSTRIA Oberster Gerichtshof 14 January 2002 (Cooling system case)] (see full text of the decision).

97. [SWITZERLAND Handelsgericht des Kantons Zürich 26 April 1995 (Saltwater isolation tank case)] (see full text of the decision). See also [GERMANY Bundesgerichtshof 8 March 1995 (New Zealand mussels case)] (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).

98. 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 Landgericht Berlin 21 March 2003 (Fabrics case)]; [ITALY Tribunale di Vigevano 12 July 2000 (Sheets of vulcanized rubber used in manufacture of shoe soles case)]; [GERMANY Landgericht Stuttgart 31 August 1989 (Shoes case)]; [GERMANY Oberlandesgericht Düsseldorf 10 February 1994 (Shirts case)]; [FRANCE Cour d'appel Paris 6 November 2001 (Cables case)].

99. This was the case in the decision of the [GERMANY Landgericht Berlin 16 September 1992 (Children's shoes case)].

100. An example of such objective evidence can be found in [FINLAND Helsinki Court of First Instance 11 June 1995 (Skin care products case)], and [FINLAND Helsinki Court of Appeals 30 June 1998 (Skin care products case)], where the buyer commissioned a chemical analysis of the goods which revealed their defects. See also [SPAIN Audiencia Provincial de La Coruña 21 June 2002 (Rainbow trout eggs case)] (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).

101. [SPAIN Audienca Provincial, Barcelona 20 June 1997 (Dye for clothes case)].

102. [NETHERLANDS Hoge Raad 20 February 1998 (Floor tiles case)].

103. See the Digest for art. 38 at para. 2.

104. [GERMANY Oberlandesgericht Düsseldorf 10 February 1994 (Shirts case)] (see full text of the decision). Accord [ITALY Tribunale di Vigevano 12 July 2000 (Sheets of vulcanized rubber used in manufacture of shoe soles case)]. For decisions finding that the buyer's notice came too late because the buyer should have discovered the lack of conformity during the initial examination of the goods, see [GERMANY Oberlandesgericht Düsseldorf 10 February 1994 (Shirts case)] (the buyer should have examined and discovered the lack of conformity within a few days after delivery, and therefore buyer's notice given more than two months after delivery was too late); [SWITZERLAND Kanton St. Gallen, Gerichtskommission Oberrheintal 30 June 1995 (Sliding doors case)] (buyer's time for giving notice of lack of conformity began to run upon delivery and substantial installation of sliding gates, even though the seller had not entirely completed its duties; notice given a year after delivery was too late); [ITALY Pretura di Torino 30 January 1997 (Cotton fabric case)]; [ICC International Court of Arbitration, Award 8247 of June 1996 (Chemical compound case)]; [GERMANY Oberlandesgericht Düsseldorf 8 January 1993 (Tinned cucumbers case)]; [GERMANY Bundesgerichtshof 8 March 1995 (New Zealand mussels case)]; [NETHERLANDS Rechtsbank 's-Hertogenbosch 15 December 1997 (Furs / mink skins case)]; [GERMANY Landgericht Stuttgart 31 August 1989 (Shoes case)].

105. E.g., [GERMANY Landgericht Berlin 21 March 2003 (Fabrics case)]; [GERMANY Bundesgerichtshof 8 March 1995 (New Zealand mussels case)] (see full text of the decision); [SWITZERLAND Handelsgericht des Kantons Zürich 30 November 1998 (Lambskin coat case)]; [GERMANY Oberlandesgericht Koblenz 11 September 1998 (Chemical substance case)]; [GERMANY Landgericht Düsseldorf 23 June 1994 (Engines for hydraulic presses and welding machines case)]; [GERMANY Landgericht Münchengladbach 22 May 1992 (Clothing case)]; [GERMANY Amtsgericht Riedlingen 21 October 1994 (Ham case)].

106. E.g., [BELGIUM Tribunal commercial de Bruxelles 5 October 1994 (Shoes case)]; [SWITZERLAND Tribunal Cantonal du Valais 29 June 1998 (Sports clothing case)] (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).

107. [AUSTRIA Oberster Gerichtshof 14 January 2002 (Cooling system case)] (see full text of the decision approving approach of lower appeals court); [GERMANY Landgericht Paderborn 25 June 1996 (Granulated plastic case)]; [GERMANY Landgericht Ellwangen 21 August 1995 (Paprika case)]; [FINLAND Helsinki Court of First Instance 11 June 1995 (Skin care products case)], and [FINLAND Helsinki Court of Appeal 30 June 1998 (Skin care products case)]. 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 art. 38 at para. 15.

108. [GERMANY Bundesgerichtshof 3 November 1999 (Machine for producing hygenic tissues case)].

109. [GERMANY Landgericht Berlin 21 March 2003 (Fabrics case)]; [ITALY Tribunale di Vigevano 12 July 2000 (Sheets of vulcanized rubber used in manufacture of shoe soles case)] (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 (Engines for hydraulic presses and welding machines case)].

110. [FRANCE Cour d'appel de Versailles 29 January 1998 (Machines case)]; [NETHERLANDS Hoge Raad 20 February 1998 (Floor tiles case)]; [ITALY Tribunale di Busto Arsizio 13 December 2001 (Machinery case)].

111. [ITALY Tribunale Civile di Cuneo 31 January 1996 (Sports clothes case)].

112. Id.; see also [GERMANY Oberlandesgericht Düsseldorf 12 March 1993 (Textiles case)]; [GERMANY Oberlandesgericht Düsseldorf 10 February 1994 (Shirts case)] (see full text of the decision); [ITALY Tribunale di Vigevano 12 July 2000 (Sheets of vulcanized rubber used in manufacture of shoe soles case)]; [GERMANY Oberlandesgericht Karlsruhe 6 March 2003 (Pullovers case)].

113. E.g., [GERMANY Oberlandesgericht Karlsruhe 6 March 2003 (Pullovers case)] (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); [AUSTRIA Oberster Gerichtshof 14 January 2002 (Cooling system case)] (approving approach of lower appeals court that has set 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); [AUSTRIA Oberster Gerichtshof 27 August 1999 (Trekking shoes case)] (suggesting a presumptive period of 14 days for examining the goods and giving notice [i]n so far as there are no specific circumstances militating in favour of a shorter or longer period); [GERMANY Oberlandesgericht Köln 21 August 1997 (Aluminium hydroxide case)]; [HUNGARY Arbitration Court attached to the Hungarian Chamber of Commerce and Industry 5 December 1995 (Waste containers case)] (see full text of the decision).

114. [GERMANY Oberlandesgericht München 8 February 1995 (Plastic granules case)] (see full text of the decision).

115. [AUSTRIA Oberster Gerichtshof 27 August 1999 (Trekking shoes case)].

116. [GERMANY Oberlandesgericht Karlsruhe 6 March 2003 (Pullovers case)].

117. [SWITZERLAND Obergericht des Kantons Luzern 8 January 1997 (Blood infusion devices case)]; [GERMANY Oberlandesgericht München 11 March 1998 (Cashmere sweaters case)] (see full text of the decision).

118. [GERMANY Landgericht Landshut 5 April 1995 (Sport clothing case)] (presumptive time period for defects that are not hidden).

119. [AUSTRIA Oberster Gerichtshof 14 January 2002 (Cooling system case)] (see full text of the decision approving approach of lower appeals court); [GERMANY Oberlandesgericht Koblenz 11 September 1998 (Chemical substance case)]; [GERMANY Landgericht Münchengladbach 22 May 1992 (Clothing case)]. The latter case indicated that the presumptive periods it proposed applied where the goods were textiles.

120. [GERMANY Oberlandesgericht Jena 26 May 1998 (Live fish case)]; [GERMANY Oberlandesgericht Karlsruhe 25 June 1997 (Surface protective film case)], reversed on other grounds, [GERMANY Bundesgerichtshof 25 November 1998 (Surface protective film case)] (presumptive period applicable to non-perishable goods).

121. [GERMANY Oberlandesgericht Koblenz 18 November 1999 (Fiberglass fabrics for filters case)] (applicable to case of obvious defects); [SWITZERLAND Handelsgericht des Kantons Zürich 30 November 1998 (Lambskin coat case)] (also proposing presumptive period of seven to 10 days for examination).

122. [GERMANY Bundesgerichtshof 8 March 1995 (New Zealand mussels case)]; [GERMANY Oberlandesgericht Stuttgart 21 August 1995 (Machinery case)]; [GERMANY Amtsgericht Augsburg 29 January 1996 (Shoe case)]; [GERMANY Bundesgerichtshof 3 November 1999 (Machine for producing hygenic tissues case)]. See also [HUNGARY Arbitration Court attached to the Hungarian Chamber of Commerce and Industry 5 December 1995 (Waste containers case)] (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).

123. [GERMANY Oberlandesgericht Saarbrücken 3 June 1998 (Flowers case)] (in sales of fresh flowers, notice should be given on day of delivery); [GERMANY Oberlandesgericht Karlsruhe 25 June 1997 (Surface protective film case)] (see full text of the decision), reversed on other grounds [GERMANY Bundesgerichtshof 25 November 1998 (Surface protective film case)] (asserting that notice of defects in perishable goods often due in a few hours). See also [GERMANY Amtsgericht Riedlingen 21 October 1994 (Ham case)] where the court stated that the buyer should have examined ham within 3 days and given notice within further three days. Although the goods in that case were perishable, the court did not specifically mention this factor in setting out its time limits.

124. [ITALY Tribunale Civile di Cuneo 31 January 1996 (Sports clothes case)]; [GERMANY Oberlandesgericht Düsseldorf 12 March 1993 (Textiles case)]; [GERMANY Oberlandesgericht Düsseldorf 10 February 1994 (Shirts case)]; [ITALY Tribunale di Vigevano 12 July 2000 (Sheets of vulcanized rubber used in manufacture of shoe soles case)].

125. [BELGIUM Rechtbank van koophandel Kortrijk 16 December 1996 (Cloth case)]; [GERMANY Oberlandesgericht Düsseldorf 12 March 1993 (Textiles case)] (see full text of the decision): [GERMANY Oberlandesgericht Köln 21 August 1997 (Aluminium hydroxide case)] (see full text of the decision); [GERMANY Landgericht Landshut 5 April 1995 (Sport clothing case)]; [GERMANY Landgericht Berlin 16 September 1992 (Children's shoes case)]; [GERMANY Amtsgericht Riedlingen 21 October 1994 (Ham case)]; [ITALY Tribunale Civile di Cuneo 31 January 1996 (Sports clothes case)]; [GERMANY Landgericht Berlin 30 September 1992 (Shoes case)]. 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.

126. [NETHERLANDS Rechtbank Roermond 19 December 1991 (Cheese case)]; [ITALY Pretura di Torino 30 January 1997 (Cotton fabric case)] (referring to the nature and value of the goods), [ITALY Tribunale di Vigevano 12 July 2000 (Sheets of vulcanized rubber used in manufacture of shoe soles case)].

127. [NETHERLANDS Rechtbank Roermond 19 December 1991 (Cheese case)]; [GERMANY Oberlandesgericht Saarbrücken 3 June 1998 (Flowers case)]; [ITALY Tribunale di Vigevano 12 July 2000 (Sheets of vulcanized rubber used in manufacture of shoe soles case)] (see full text of the decision). See also [NETHERLANDS Rechtbank Zwolle 5 March 1997 (Fish case)] (citing perishable nature of goods as factor mandating a short period for examination under art. 38, which in turn meant that buyer's notice was given beyond a reasonable time from when it should have discovered the defects); [GERMANY Oberlandesgericht Karlsruhe 6 March 2003 (Pullovers case)] (dicta stating that perishability of the goods would shorten reasonable time for notice, although the goods in the case were not perishable).

128. [AUSTRIA Oberster Gerichtshof 27 August 1999 (Trekking shoes case)]; [GERMANY Amtsgericht Augsburg 29 January 1996 (Shoe case)].

129. [GERMANY Oberlandesgericht München 8 February 1995 (Plastic granules case)] (see full text of the decision). See also [SWITZERLAND Bundesgericht 28 October 1998 (Meat case)] (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).

130. [NETHERLANDS Rechtsbank 's-Hertogenbosch 15 December 1997 (Furs / mink skins case)]; [BELGIUM Rechtbank van koophandel Kortrijk 16 December 1996 (Cloth case)]; see also [NETHERLANDS Rechtbank Zwolle 5 March 1997 (Fish case)] (citing buyer's plans to process goods as factor mandating a short period for examination under art. 38, which in turn meant that buyer's notice was given beyond a reasonable time from when it should have discovered the defects).

131. [GERMANY Oberlandesgericht Köln 21 August 1997 (Aluminium hydroxide case)].

132. [BELGIUM Rechtbank van koophandel Kortrijk 16 December 1996 (Cloth case)]; [NETHERLANDS Rechtbank Zwolle 5 March 1997 (Fish case)].

133. [HUNGARY Arbitration Court attached to the Hungarian Chamber of Commerce and Industry 5 December 1995 (Waste containers case)] (see full text of the decision).

134. [GERMANY Landgericht Köln 11 November 1993 (Market research study case)].

135. [NETHERLANDS Gerechtshof Arnhem 17 June 1997 (Gas compressors case)]; [GERMANY Oberlandesgericht München 11 March 1998 (Cashmere sweaters case)] (see full text of the decision).

136. [SPAIN Audiencia Provincial de La Coruña 21 June 2002 (Rainbow trout eggs case)].

137. [GERMANY Landgericht Berlin 21 March 2003 (Fabrics case)].

138. [SWITZERLAND Tribunal Cantonal du Valais 28 October 1997 (Second hand bulldozer case)] (see full text of the decision). See also [CANADA Ontario Superior Court of Justice 31 August 1999 (Picture frame mouldings case)], where on disputed evidence the court concluded the buyer had not given the seller notice of lack of conformity.

139. [GERMANY Oberlandesgericht Zweibrcken 2 February 2004 (Milling equipment case)] (see full text of the decision).

140. [GERMANY Landgericht Düsseldorf 23 June 1994 (Engines for hydraulic presses and welding machines case)].

141. [SWITZERLAND Kanton St. Gallen, Gerichtskommission Oberrheintal 30 June 1995 (Sliding doors case)]; [SWITZERLAND Bezirksgericht Unterrheintal 16 September 1998].

142. [BELGIUM Tribunal commercial de Bruxelles 5 October 1994 (Shoes case)].

143. [SWITZERLAND Tribunal Cantonal du Valais 29 June 1998 (Sports clothing case)].

144. [GERMANY Oberlandesgericht München 11 March 1998 (Cashmere sweaters case)] (see full text of the decision); [ITALY Tribunale di Vigevano 12 July 2000 (Sheets of vulcanized rubber used in manufacture of shoe soles case)].

145. [SWITZERLAND Obergericht des Kantons Luzern 8 January 1997 (Blood infusion devices case)]; [GERMANY Landgericht Berlin 16 September 1992 (Children's shoes case)].

146. [NETHERLANDS Gerechtshof Arnhem 17 June 1997 (Gas compressors case)]; [BELGIUM Rechtbank van Koophandel Kortrijk 27 June 1997 (Yarn / textiles case)]; [GERMANY Oberlandesgericht München 8 February 1995 (Plastic granules case)].

147. [GERMANY Oberlandesgericht Saarbrücken 13 January 1993 (Doors case)].

148. [BELGIUM Rechtbank van koophandel Kortrijk 16 December 1996 (Cloth case)]; [GERMANY Oberlandesgericht Düsseldorf 10 February 1994 (Shirts case)].

149. [AUSTRIA Oberster Gerichtshof 27 August 1999 (Trekking shoes case)].

150. [GERMANY Landgericht Berlin 21 March 2003 (Fabrics case)].

151. [GERMANY Landgericht Kehl 6 October 1995 (Knitware case)].

152. [GERMANY Landgericht Münchengladbach 22 May 1992 (Clothing case)].

153. [GERMANY Oberlandesgericht Koblenz 18 November 1999 (Fiberglass fabrics for filters case)]; [GERMANY Oberlandesgericht Düsseldorf 12 March 1993 (Textiles case)].

154. [GERMANY Oberlandesgericht Karlsruhe 25 June 1997 (Surface protective film case)].

155. [ITALY Tribunale Civile di Cuneo 31 January 1996 (Sports clothes case)].

156. [GERMANY Oberlandesgericht Koblenz 11 September 1998 (Chemical substance case)]; [GERMANY Landgericht Köln 11 November 1993 (Market research study case)], reversed on grounds that CISG was inapplicable by [GERMANY Oberlandesgericht Köln 26 August 1994 (Market study case)].

157. [GERMANY Amtsgericht Riedlingen 21 October 1994 (Ham case)]; [GERMANY Landgericht Berlin 16 September 1992 (Children's shoes case)].

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

159. [GERMANY Landgericht Stuttgart 31 August 1989 (Shoes case)].

160. [GERMANY Oberlandesgericht Köln 21 August 1997 (Aluminium hydroxide case)] (see full text of the decision).

161. [GERMANY Oberlandesgericht Saarbrücken 3 June 1998 (Flowers case)].

162. [ITALY Pretura di Torino 30 January 1997 (Cotton fabric case)].

163. [NETHERLANDS Hoge Raad 20 February 1998 (Floor tiles case)].

164. [GERMANY Landgericht Berlin 16 September 1992 (Children's shoes case)].

165. [GERMANY Bundesgerichtshof 8 March 1995 (New Zealand mussels case)] (see full text of the decision).

166. [HUNGARY Arbitration Court attached to the Hungarian Chamber of Commerce and Industry 5 December 1995 (Waste containers case)] (see full text of the decision).

167. [SPAIN Audiencia Provincial de La Coruña 21 June 2002 (Rainbow trout eggs case)] (involving special circumstances requiring that notice be given as soon as was practicable).

168. [ICC International Court of Arbitration, Award 8247 of June 1996 (Chemical compound case)].

169. [GERMANY Oberlandesgericht Jena 26 May 1998 (Live fish case)]; [SWITZERLAND Handelsgericht des Kantons Zürich 26 April 1995 (Saltwater isolation tank case)] (see full text of the decision).

170. [NETHERLANDS Rechtsbank 's-Hertogenbosch 15 December 1997 (Furs / mink skins case)].

171. [GERMANY Oberlandesgericht Karlsruhe 25 June 1997 (Surface protective film case)].

172. [GERMANY Oberlandesgericht Düsseldorf 8 January 1993 (Tinned cucumbers case)]. 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 [SPAIN Audienca Provincial Barcelona 20 June 1997 (Dye for clothes case)]; [GERMANY Landgericht Regensburg 24 September 1998 (Cloth case)]; [SWITZERLAND Canton of Ticino Pretore di Locarno Campagna 27 April 1992 (Furniture case)]; [NETHERLANDS Rechtbank Zwolle 5 March 1997 (Fish case)].

173. [GERMANY Bundesgerichtshof 4 December 1996 (Printing system and software case)] (see full text of the decision).

174. [GERMANY Landgericht Aachen 3 April 1990 (Shoes case)] (see full text of the decision).

175. [GERMANY Landgericht Bielefeld 18 January 1991 (Bacon case)].

176. [FINLAND Helsinki Court of First Instance 11 June 1995 (Skin care products case)], and [FINLAND Helsinki Court of Appeal 30 June 1998 (Skin care products case)].

177. [GERMANY Oberlandesgericht Köln 22 February 1994 (Rare hard wood case)] (noting that buyer examined goods at the beginning of July and gave notice on or before July 8, which the court held was timely, particularly in light of fact that July 4 and 5 were weekend days).

178. [ICC International Court of Arbitration, Award 5713 of 1989] (see full text of the decision).

179. [GERMANY Oberlandesgericht Karlsruhe 6 March 2003 (Pullovers case)].

180. [FRANCE Cour d'appel de Versailles 29 January 1998 (Machines case)] (see full text of the decision); see also [ITALY Tribunale di Busto Arsizio 13 December 2001 (Machinery case)] (notice made immediately after installation of machinery reasonable, followed by subsequent notices regarding further discoveries made by the buyer).

181. [GERMANY Landgericht Frankfurt 9 December 1992 (Shoes case)].

182. [FRANCE Cour de cassation 26 May 1999 (Laminated sheet metal case)] (see full text of the decision).

183. [GERMANY Bundesgerichtshof 3 November 1999 (Machine for producing hygenic tissues case)].

184. [FRANCE Cour d'appel, Grenoble 13 September 1995 (Cheese case)]. 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 [NETHERLANDS Rechtbank Roermond, 19 December 1991 (Cheese case)]; [GERMANY Landgericht Paderborn 25 June 1996 (Granulated plastic case)].

185. 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.

186. See [GERMANY Landgericht Marburg 12 December 1995 (Agricultural machine case)] where the court invoked article 39(2) to deny the buyer any remedy for a claimed lack of conformity.

187. [GERMANY Landgericht Erfurt 29 July 1998 (Shoe soles case)]; [GERMANY Landgericht Marburg 12 December 1995 (Agricultural machine case)]. 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).

188. [SWITZERLAND Cour de Justice, Genève 10 October 1997 (Acrylic cotton case)].

189. [FRANCE Cour d'appel, Grenoble 13 September 1995 (Cheese case)] (see full text of the decision); [ICC International Court of Arbitration, Award 7660 of 23 August 1994 (Battery machinery case)]; [ICC International Court of Arbitration, Award 7565 of 1994 (Coke case)].

190. [ICC International Court of Arbitration, Award 7660 of 23 August 1994 (Battery machinery case)].

191. [ICC International Court of Arbitration, Award 7565 of 1994 (Coke case)].

192. [SWEDEN Arbitration Institute of the Stockholm Chamber of Commerce, 5 June 1998 (4,000 ton rail press case)] (see full text of the decision).

193. [ICC International Court of Arbitration, Award 7565 of 1994 (Coke case)].


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