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LEGISLATIVE HISTORY

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)

The buyer does not have the right to rely on the provisions of this article 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 became aware or ought to have become aware of the right or claim.

  

CISG 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.


Editorial comments

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).


Pace Law School Institute of International Commercial Law - Last updated July 12, 1999
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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