CISG Article 38
1. The buyer must examine the goods, or cause them to be examined, within as short a period as is practicable in the circumstances.
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.
ULIS Article 38
1. The buyer shall examine the goods, or cause them to be examine, promptly. ["promptly" = "performed within as short a period as possible, in the circumstances, from the moment when the act could reasonably be performed" (ULIS Article 11)]
2. In case of carriage of the goods the buyer shall examine them at the place of destination.
3. If the goods are redespatched by the buyer without transhipment and the seller knew or ought to have known, at the time when the contract was concluded, of the possibility of such redespatch, examination of the goods may be deferred until they arrive at the new destination.
4. The methods of examination shall be governed by the agreement of the parties or, in the absence of such agreement, by the law or usage of the place where the examination is to be effected.
Comments on the match-up
"[CISG] Article 38 . . . can be traced back to Article 38 ULIS. However, whereas Article 38(1) ULIS provided that the goods were to be examined 'promptly', the CISG merely requires examination to take place 'within as short a period as is practicable in the circumstances'. . . . A further difference is that, unlike Article 38(3) ULIS, Article 38(3) CISG permits deferral of an examination even where goods are redispatched with transshipment. That was intended to deal with the case where goods are carried in containers and it would be unreasonable to open them before arrival at their ultimate destination. Finally, the CISG omits the rule in Article 38(4) ULIS, under which, in the absence of the parties' contrary agreement, the methods of examination are to be governed by the law or usage of the place where the examination is to be effected. It was considered that the place of examination might be a matter of chance and unforeseeable by the parties at the time of the conclusion of the contract; moreover, there might be no link whatsoever to the parties themselves; nor was it clear whether Article 38(4) ULIS referred to international usage in the sense of Article 9 or merely to local usages. Finally, the view was taken that in that case the parties' agreement would be overridden by any mandatory provisions of the law of the place of examination.
"The changes made in relation to ULIS as much as the new Article 44 illustrate a clear intention to make the obligation to examine the goods and to notify complaints not only more flexible than under ULIS, but also more favourable to the buyer. This was in response to concerns voiced especially by developing countries. That factor must be taken into account when interpreting Articles 38 and 39. Reference cannot therefore simply be made to strict case law on ULIS (particularly of the German courts), which was inspired by the treatment of such matters in the Germanic legal systems." Schwenzer in Commentary on the UN Convention on the International Sale of Goods, Peter Schlechtriem ed. (Oxford 1998) 300-301 [citations omitted].
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