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2008 UNCITRAL Digest of case law on the United Nations Convention on the International Sale of Goods

Digest of Article 43 case law [reproduced with permission of UNCITRAL]

Article 43

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

OVERVIEW

1. Article 43(1) imposes on the buyer a notice requirement with respect to claims that the seller breached articles 41 or 42. In certain circumstances, Article 43(2) provides for a defence if a buyer has failed to give the notice required by article 43(1). The provisions of article 43 parallel in many ways the notice requirement and defence thereto that articles 39 and 40 establish with respect to breaches of article 35.

Application of Article 43

2. At the time this is written there is little of note in the available case law concerning the proper construction of article 43. Presumably those called upon to interpret article 43(1) or 43(2) may look for guidance from the numerous decisions that apply the parallel provisions of article 39 and 40, although the differences between those provisions and article 43 should certainly be kept in mind.


©Pace Law School Institute of International Commercial Law - Last updated June 15, 2009
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