ANNOTATED TEXT OF CISG
Article 38

(2) If the contract involves carriage of the goods, examination may be deferred until after the goods have arrived at their destination.

(3) If the goods are redirected in transit or redispatched by the buyer without a reasonable opportunity for examination by him and at the time of the conclusion of the contract the seller knew or ought to have known of the possibility of such redirection or redispatch, examination may be deferred until after the goods have arrived at the new destination.

Legislative history || Case law || Scholarly writings || Links to related articles || Words and phrases || CISG (full-text)

Guide to this article

• UNCITRAL outline of issues present
  
• Editorial analysis of this article with cross-references to related subjects [not yet available]
  
• Secretariat Commentary (closest counterpart to an Official Commentary on this article)
• Match-up of this article with the 1978 draft
(to validate Secretariat Commentary)
• CISG-AC Advisory Opinion on Articles 38 and 39

• Roadmap to the legislative history of this article
• Legislative history of this article: long form
• Legislative history of this article: short form
  • Chronology of development of Article 38 at the 1980 Vienna Diplomatic Conference
  • North-South tensions over Arts. 38/39: development of compromise Art. 44 "safety net"
• Summary of UNCITRAL legislative history
• Hague Convention antecedent
  • Article 38 match-up with ULIS
  • ULIS (full-text) and André Tunc Commentary on ULIS
  • See also the Report of the Special U.S. Committee, dated 1 December 1964,
    explaining why the United States elected not to adopt either ULIS or ULF

• CASES INVOLVING CISG ARTICLE 38
  • Computer list of annotated cases

• For a report on case law and doctrine published in Fall 2000 and for an earlier report on case law from Germany, go to:
  • Claude Witz [France], A Raw Nerve in Disputes relating to the Vienna Sales Convention: The Reasonable time for the Buyer to Give Notice of a Lack of Conformity, ICC International Court of Arbitration Bulletin, Vol. 11/No. 2 (2000) 15-21

  • Martin Karollus [Austria], excerpt from Judicial Interpretation and Application of the CISG in Germany 1988-1994, Cornell Review of the Convention on Contracts for the International Sale of Goods (1995) 51-94

  • Peter Schlechtriem [Germany], in: Uniform Sales Law in the Decisions of the Bundesgerichtshof (2001), at Section IV.2

• For a companion report on CISG case law and other material, go to Unilex: click for description of and link to this excellent service

• See also:
  • UNCITRAL digest

  • UNCITRAL digest + added cases

• Selected monographs and anthologies
• Comments on Article 38 by Peter Schlechtriem [Germany] at 1984 Parker School seminar of the American Association for the Comparative Study of Law: Ch. 6, p. 30

• Comments on Article 38 from seminal 1986 text by Peter Schlechtriem [Germany]
• Comments on Article 38 from monograph by Jacob S. Ziegel [Canada]

• Comments on Article 38 by Cesare Massimo Bianca [Italy] in 1987 Bianca-Bonell Commentary on the International Sales Law
• Comments on Article 38 by John O. Honnold [U.S.] in the 3rd ed. (1999) of the most frequently cited text on the CISG: Uniform Law for International Sales
• Comments on Article 38 in December 2000 text by Joseph Lookofsky [Denmark / U.S.]
• Commentarios al Articulo 38 sobre textos de 2001 por Pilar Perales [España]
• See also the helpful Enderlein & Maskow text (cited below under the words and phrases section of this Annotated Text material)
• Citations to materials on this article in other texts (selected texts only)
• Selected law journal articles and other commentaries
• Camilla B. Andersen [Denmark], The Duty to Examine Goods under the Uniform International Sales Law -- An Analysis of Article 38 CISG, 18 European Business Law Review (2007) 797-814

• Fritz Enderlein [Germany (DDR)], Rights and Obligations of the Seller under the UN Convention on Contracts for the International Sale of Goods [General obligations: Art. 30], in Sarcevic / Volken ed., International Sale of Goods: Dubrovnik Lectures, Oceana (1996) at 166-169

• Harry M. Flechtner [U.S.], Conformity of Goods, Third Party Claims, and Buyer's Notice of Breach under the CISG ... University of Pittsburgh School of Law Working Paper Series. Working Paper 64 (August 2007) <http://law.bepress.com/pittlwps/papers/art64>, Section III

• Daniel Girsberger [Switzerland], The Time Limits of Article 39 CISG, 25 Journal of Law and Commerce (2005-2006) 241-251

• Sanna Kuoppala [Finland], Examination of the Goods under the CISG and the Finnish Sale of Goods Act (Turku 2000) [This is an analysis of four related CISG provisions: Arts. 38, 39, 40 and 44 and their counterparts in the Finnish Sale of Goods Act (FSGA). The FSGA, which was enacted subsequent to the CISG, tracks it to a certain extent. The author reviews doctrine and digests relevant cases (over forty such cases) and refers to the CISG case law (mostly German case law is cited) as, for the most part, more "seller friendly" in contrast to Finish case law on the counterpart provisions, which is characterized as more "buyer friendly".]

• Peter Schlechtriem [Germany], Beginn und Dauer der Untersuchungs- und Rügefrist beim grenzüberschreitenden Kauf [Beginning and duration of the inspection period in international sales (under the CISG) - in German], Entscheidungen zum Wirtschaftsrecht (2000) 125-156

• Go to Annotated Text of Article 39 [Notice of lack of conformity] for links to other journal commentaries that also address Article 38

• Supplementary list of citations to Article 38 commentaries: Unilex citations*

  * Most members of the Autonomous Network of CISG Websites also offer bibliographies. Many are tailored, concentrating on commentaries by authors from or writing on CISG issues of special interest to specific countries or regions; some, e.g. CISG online are general and extensive; some, e.g., CISG-Belgium and CISG-Finland also list commentaries by individual articles of the CISG.

• To identify other relevant commentaries, go to the cisgw3 Bibliography and Bibliography Search Form [examination and notice are search form entries you may wish to consider]

  Bibliography citations on examination

  Citations on notice

  We also encourage you to tailor your own cisgw3 bibliography search to the specific aspect of this article that you are researching.*

  * The cisgw3 bibliography contains over 500 pages of citations. Analyzing these listings can pay dividends.

Links to related articles

Attention to related articles and to the CISG in its entirety is important. This is an autonomous law, i.e., it is meant to be construed within its four corners. When considering aspects of the CISG, because this law relies heavily on general principles, one ought to look at related provisions and the CISG in its entirety.

• As Article 38 [Time for examining the goods] will generally be read with Article 39, go to Annotated Text of Article 39 [Notice of lack of conformity]

Words, phrases and concepts

• The Enderlein & Maskow text is a good place to commence words and phrases research. Click for their analysis of words, phrases and concepts in this article.

  See also:

• State of knowledge ("ought to have known") [38(3)]: link to same language and to variations on this theme recited elsewhere in the CISG

• "redirected in transit" (38(3)). A colloquy at the Diplomatic Conference explains this phrase. OR 318-320, paras. 1-30 [OR = Official Records of the United Nations Conference on Contracts for the International Sale of Goods, Vienna 10 March - 11 April 1980, A/CONF. 97/19]

• reasonableness [38(3)]: In addition to being specifically mentioned in this article, reasonableness is a general principle of the CISG
  • For the definition of reasonableness recited in the Principles of European Contract Law and references to reasonableness in Continental and Common Law domestic rules, doctrine and jurisprudence, go to PECL article 1:302 and the comment and notes prepared for this provision

  • To drive home the correlation between the PECL's definition of reasonableness and the evident same meaning of this term to CISG legislators when they used the concept either specifically or as a general principle of the uniform law they drafted, see overview comments and comments that illustrate the similar manner in which this concept fits the CISG

For a Doctoral thesis on "Reasonableness" in International Commercial Law, go to Guillaume Weiszberg, Le "Raisonnable" en Droit du Commerce International [pour le doctorat en droit de l’Université Panthéon-Assas (Paris II), 7 novembre 2003]