LEGISLATIVE HISTORY

CISG ANTECEDENTS

• Match-up of CISG Article 39 with ULIS provisions
• Comments on the match-up

     CISG Article 39                  ULIS Article 39 
                                                
1. The buyer loses the right to   1. The buyer shall lose the 
rely on a lack of conformity      right to rely on a lack of 
of the goods if he does not       conformity of the goods if he 
give notice to the seller         has not given the seller notice 
specifying the nature of the      there of promptly after he has 
lack of conformity within a       discovered the lack of conformity 
reasonable time after he has      or ought to have discovered it. 
discovered it or ought to         If a defect which could not have 
have discovered it.               been revealed by the examination 
                                  of the goods provided for in 
2. In any event, the buyer        Article 38 is found later, the 
loses the right to rely on a      buyer may nonetheless rely on 
a lack of conformity of the       that defect, provided that he gives 
goods if he does not give the     the seller notice thereof promptly 
seller notice thereof at the      after its discovery.  In any event, 
latest within a period of two     the buyer shall lose the right to 
years from the date on which      rely on a lack of conformity of the 
the goods were actually handed    goods if he has not given notice 
over to the buyer, unless this    thereof to the seller within a period 
time-limit is inconsistent with   of two years from the date on which 
a contractual period of           the goods were handed over, unless 
guarantee.                        the lack of conformity constitutes 
                                  a breach of a guarantee covering 
[NB. The word "promptly" as       a longer period. 
used in ULIS is defined as 
follows: "Where under the         2. In giving notice to the seller of 
present Law an act is required    any lack of conformity, the buyer 
to be performed 'promptly',       shall specify its nature and invite 
it shall be performed within      the seller to examine the goods or 
as short a period as possible,    to cause them to be examined by his 
in the circumstances, from the    agent. 
moment when the act could 
reasonably be performed."]        3. Where any notice referred to in 
                                  paragraph 1 of this Article has been 
                                  sent by letter, telegram or other 
                                  appropriate means, the fact that such 
                                  notice is delayed or fails to arrive 
                                  at its destination shall not deprive 
                                  the buyer of the right to relay thereon. 
SEE ALSO: 
 
ULIS Article 49.  
 
1. The buyer shall lose his right to rely on lack of  
conformity with the contract at the expiration of a 
period of one year after he has given notice as provided in 
Article 39, unless he has been prevented from exercising his 
right because of fraud on the part of the seller. 
 
2.  After the expiration of this period, the buyer shall not be entitled 
to rely on the lack of conformity, even by way of defence to an action. 
Nevertheless, if the buyer has not paid for the goods and provided that 
he has given due notice of the lack of conformity promptly, as provided 
in Article 39, he may advance as a defence to a claim for payment of the 
price a claim for a reduction in the price or for damages.

Comments on the match-up

"[CISG] Article 39 can be traced back to Article 39 ULIS. The basic principle underlying the buyer's duty to notify any lack of conformity was maintained in the CISG, but the duty differs in important respects from that under ULIS. Already during discussions in UNCITRAL the reference to the buyer's giving notice of lack of conformity 'promptly' had been replaced by the requirement that he do so 'within a reasonable time'. That is significantly more favourable to the buyer and will have to be reflected in practice. The rule in the second sentence of Article 39(1) ULIS was deleted, because it was considered superfluous. Nor was the provision in Article 39(2) included, under which, when giving notice to the seller of any lack of conformity, the buyer had to invite the seller to examine the goods or to cause them to be examined, since it was considered that such a rule did not correspond to international trade practice. Finally, further changes result from the fact that the provisions of Article 39(3) ULIS are now covered by the general rule in [CISG] Article 27.

"At the Diplomatic Conference, the question of the consequences of a buyer's failure to give notice of lack of conformity and the question of the 2-year limitation period in Article 39(2) were amongst the most contentious issues in the entire Convention. There was no acceptance of a proposal by Ghana that Article 39(1) should be deleted in its entirety or that, if notice was not given, there should be no loss of rights; however, by way of compromise it was agreed to adopt Article 44, which preserves the buyer's right to reduce the price or to claim damages (except for loss of profit), if he has a reasonable excuse for his failure to give notice of lack of conformity." Schwenzer in Commentary on the UN Convention on the International Sale of Goods, Peter Schlechtriem ed. (Oxford 1998) 310-311 [citations omitted].

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Pace Law School Institute of International Commercial Law - Last updated June 22, 1998

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