Reproduced with permission from Juridisk Tidskrift (1991/92) 1-28
Peter Schlechtriem [*]
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By way of compromise, Art. 44 of the CISG . . . allows for an excuse for the failure to give timely notice and as such leaves the buyer with the remedy of price reduction and a restricted remedy for damages. This was a concession to certain states who said that their merchants could not live with the provisions on notice and the loss of all remedies in case of failure to give timely notice. On the other hand, this concession was the price for keeping the absolute exclusion of all claims after two years when the buyer did not give notice at all, whether or not the defects were discoverable during that time. It is yet to be seen whether the reasonable excuse for failure to give the required notice will cause difficulties because of its vagueness and may be open to an interpretation favourable to buyers in certain countries. It has rightly been pointed out by a German legal writer, however, that the excuse of Art. 44 would very likely not only be used by buyers in developing countries but by German merchants as well. For, in analyzing cases decided under ULIS, it is striking to find that of about 300 cases more than 60 were concerned with the notice requirement and buyers who allegedly did not meet these requirements. Notice and its requirements, in other words, are difficult to meet even by merchants in countries whose legal systems require notice in case of non-conformity and who, therefore, should be familiar with this procedure.
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* Dr. jur. ord. Professor Albert-Ludwigs-Universität Freiburg i. Breisgau, Director of the Institute of Foreign and Private International Law, Freiburg. President of the German Association of Comparative Law. The following article is based on a paper read to the Law Faculty of the University of Stockholm on Jan. 25, 1991. I have added footnotes and some remarks, but in general preserved the text of the oral lecture.
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84. O.R. 107-108, 320 et seq., 323-324, 345 et seq.; see Sono in: Bianca/Bonell, supra note 18, Art. 44 § 1; Huber in: v. Caemmerer/Schlechtriem, supra note 7, Art. 44 § 4-7; P. Schlechtriem, supra note 27, at 70-71.
85. Huber in: v. Caemmerer/Schlechtriem, supra note 7, Art. 44§9.
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