Go to Database Directory || Go to CISG Table of Contents
Legislative history of CISG article 43: Match-up with 1978 Draft to assess relevance of Secretariat Commentary
1978 Draft article 39(2) and article 40(3) CISG article 43 The buyer does not have the right to (1)The buyer loses the right to rely on rely on the provisions of this article if the provisions of article 41 or he does not give notice to the seller article 42 if he does not give notice specifying the nature of the right or to the seller specifying the nature of claim of the third party within a the right or claim of the third party reasonable time after he became aware within a reasonable time after he has or ought to have become aware of the become aware or ought to have be- right or claim. come 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.
There is no substantive difference between 1978 Draft article 39(2) and 40(3) and CISG article 43(1). The Secretariat Commentary on 1978 Draft article 39(2) and 40(3) should therefore be relevant to the interpretation of CISG article 43(1). One should, however, recognize that a new CISG article 44 has been added to the Official Text which can impact upon CISG article 43(1)
CISG article 43(2) is new. The Summary Records of Committee Meetings of the Vienna Diplomatic Conference contain the following explanation:
"Mr. KLINGSPORN (Federal Republic of Germany), introducing his delegation's proposal for [this article], said that the buyer lost the benefit of [CISG article 41 and 42] if he did not give notice to the seller specifying the nature of the claim of the third party within a reasonable time.... Those considerations were not valid if the seller was aware of the existence of the right or claim of the third party concerned. In that case, it would be unfair to deprive the buyer of his remedy on grounds of non-notification within a reasonable time. Comparison might be made with the situation covered by [CISG article 40], which specified that the seller was not entitled to rely on the provison of [CISG article 38 and 39] if the lack of conformity related to facts of which he knew or could not have been aware" (Official Records, p.350).
To examine 1978 Draft provisions in context, go to the full-text of the 1978 Draft || To examine CISG provisions in context, go to the full text of the CISG