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GUIDE TO CISG ARTICLE 38

Secretariat Commentary (closest counterpart to an Official Commentary)


Guide to the use of this commentary

The Secretariat Commentary is on the 1978 Draft of the CISG, not the Official Text, which re-numbered most of the articles of the 1978 Draft. The Secretariat Commentary on article 36 of the 1978 Draft is quoted below with the article references contained in this commentary conformed to the numerical sequences of the Official Text, e.g., article 36 [draft counterpart of CISG article 38].

To the extent it is relevant to the Official Text, the Secretariat Commentary on the 1978 Draft is perhaps the most authoritative source one can cite. It is the closest counterpart to an Official Commentary on the CISG. A match-up of this article of the 1978 Draft with the version adopted for the Official Text is necessary to document the relevancy of the Secretariat Commentary on this article. See the match-up for this article for a validation of citations to this Secretariat Commentary. This match-up indicates that article 36 of the 1978 Draft and CISG article 38 are substantially identical.


Text of Secretariat Commentary on article 36 of the 1978 Draft
[draft counterpart of CISG article 38]   [Examination of the goods]

PRIOR UNIFORM LAW

ULIS, article 38.

COMMENTARY

1. Article 36 [draft counterpart of CISG article 38] describes the point of time when the buyer is obligated to examine the goods. The buyer's right to examine the goods prior to paying the price is considered in article 54(3) [draft counterpart of CISG article 58(3)].

2. This article is prefatory to article 37 [draft counterpart of CISG article 39], which provides that if the buyer fails to notify the seller of lack of conformity of the goods within a reasonable time after he has discovered it or ought to have discovered it, he loses the right to rely on the lack of conformity [unless the buyer "has a reasonable excuse for his failure to give the required notice" (CISG article 44)]. The time when the buyer is obligated to examine the goods under article 36 [draft counterpart of CISG article 38] constitutes the time when the buyer "ought to have discovered" the lack of conformity under article 37 [draft counterpart of CISG article 39] unless the non-conformity is one which could not have been discovered by such examination.

3. The examination which this article requires the buyer to make is one which is reasonable in the circumstances. The buyer is normally not required to make an examination which would reveal every possible defect. That which is reasonable in the circumstances will be determined by the individual contract and by usage in the trade and will depend on such factors as the type of goods and the nature of the parties. For example, a party would not be expected to discover a lack of conformity of the goods if he neither had nor had available the necessary technical facilities and expertise, even though other buyers in a different situation might be expected to discover such a lack of conformity. Because of the international nature of the transaction, the determination of the type and scope of examination required should be made in the light of international usages.

4. Paragraph (1) states the basic rule that the buyer must examine the goods or cause them to be examined "within as short a period as is practicable in the circumstances". Paragraphs (2) and (3) state special applications of this rule for two particular situations.

5. Paragraph (2) provides that if the contract of sale involves the carriage of goods "examination may be deferred until after the good have arrived at their destination". This rule is necessary because, even though delivery is effected when the goods are handed over to the final carrier for transmission to the buyer and even though risk of loss may also pass at that time [see footnote 1], the buyer is normally not in a physical position to examine the goods until they arrive at the destination [see footnote 2].

6. Paragraph (3) carries this thought one step further. Where the buyer redispatches the goods without a reasonable opportunity for examination by him, examination of the goods may be deferred until after the goods have arrived at the new destination. The typical situation in which the buyer will not have a reasonable opportunity to examine the goods prior to their redispatch is where they are packed in such a manner that unpacking them for inspection prior to their arrival at the final destination is impractical. The redispatch of the goods may be necessary because the buyer intends to use the goods himself at some place other than the place of destination of the contract of carrier, but more often it will arise because the buyer is a middleman who has resold the goods in quantities at least equal to the quantities in which they are packed [Paragraph (3) of the Official Text also addresses the situation in which the goods are "redirected in transit".]

7. The examination may be deferred until after the goods have arrived at the new destination only if the seller knew or ought to have known at the time the contract was concluded of the possibility of redispatch [or redirection in transit]. It is not necessary that the seller knew or ought to have known that the goods would be redispatched [or redirected in transit], only that there was such a possibility (OFFICIAL RECORD, p. 34).

[At the 1980 Vienna Diplomatic Conference, the words "redirected in transit" were added to the text. "[Mr. Loewe (Austria) asked what the distinction was between 'redirected in transit' and 'redispatched'. The words used in the French text seemed to be synonymous. Mr. Fokkema (Netherlands) said that was indeed true of the choice of words in the French text but in English there was a distinction between the two terms used. 'Redispatched' implied that the goods had reached their first destination and had subsequently been sent on. 'Redirected in transit' implied that they had never reached their first destination" (OFFICIAL RECORDS, p. 320).]


FOOTNOTES

1. Articles 29(a) and 79(1) [draft counterpart of CISG articles 31(a) and 67(1)]. See paras. 3 to 8 of the commentary to article 79 [of the 1978 Draft, draft counterpart of CISG article 67] for a discussion of the rules which determine when risk passes if the contract of sale involves carriage of the goods.

2. See paragraph 6 of the commentary to article 54 [draft counterpart of CISG article 58] for a discussion of the buyer's obligation to pay the price prior to examination of the goods.


Pace Law School Institute of International Commercial Law - Last updated August 30, 2006
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