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 39(2) of the 1978 Draft -- paragraphs 6 through 8 of the Secretariat Commentary on article 39 of the 1978 Draft -- are quoted below with the article references contained in this commentary conformed to the numerical sequences of the Official Text, e.g., article 39(2) [draft counterpart of CISG article 43(1)]. The entire Secretariat Commentary on Article 39 of the 1978 Draft may be accessed by turning to the Library page of the Rabel database: "http://www.jura.uni-freiburg.de/ipr1/cisg".
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 partial relevancy of the
Secretariat Commentary on this article. See the match-up for this article for a partial validation of
citations to this Secretariat Commentary. This match-up indicated that paragraph (2)
of article 39 of the 1978 Draft is substantively
identical to paragraph (1) of CISG article 43.
Paragraph (2) of CISG article 43 was added at the 1980
Vienna Diplomatic Conference. It is explained below.
Also to be considered is CISG article 44. This is
another provision that was added at the 1980 Vienna
Diplomatic Conference. It can be relevant to CISG
Text of Secretariat Commentary on article 39(2) of the 1978 Draft
[draft counterpart of CISG article 43(1)] [Failure to give notice]
PRIOR UNIFORM LAW
ULIS, article 52.
Notice, paragraph (2)
[draft counterpart of CISG article 43(1)]
6. Paragraph (2) [draft counterpart of CISG article 43(1)] requires the buyer to give the seller a notice similar to the notice required by article 37(1) [draft counterpart of CISG article 39(1)] in respect of goods which do not conform to the contract. If this notice is not given within a reasonable time after the buyer became aware or ought to have become aware of the third-party right or claim, the buyer does not have the right to rely on the provisions of paragraph (1) [draft counterpart of CISG article 41 or article 42.]
[Enderlein states: "A reasonable time may include a certain period for contemplation by the buyer for inquiry into the legal situation by consulting his lawyer. The buyer should not delay the notice beyond a time that could no longer be regarded as reasonable. The buyer must not wait. The reasonable time already commences when the buyer ought to have become aware of the third-party right or claim. The buyer may not carelessly neglect rights or claims of third parties of which he receives knowledge." Fritz Enderlein, in: Sarcevic & Volken ed., "The Vienna Convention: History and Perspective, Oceana (1986), p. 184.. Beldarrain is to the same effect. He further states "The notice requirement under Article 43(1) is similar to the provisions contained in Article 39[( 1)] concerning the lack of conformity of the goods with regard to their quality and quantity. Although both Articles 39 and 43 emphasize the necessity of giving correct notice in a 'reasonable time', Article 43 does not specify a maximum period of time for giving notice as is required by Article 39[(2)] (two year limit). ... It is very well known that the concept 'reasonable time' depends on the circumstances of the specific case, and gives to the buyer a certain period of time prior to its giving notice in order to obtain information about the certainty, validity and nature of the claim. Nevertheless the buyer cannot delay the giving of the notice for a long time." "The Delivery of Goods Not Free from Third-Party Rights or Claims", presentation at XXXVI UIA Congress, Berlin (26 August 1992), p. 10. As is the case under Article 39(1), a notice that does not specify the nature of the problem will not suffice. "The buyer not only has an obligation to give notice, he also has to specify the nature of the right or claim, the steps that the third party has undertaken, etc., so as to enable the seller to take immediate measures defending his rights. ..." Fritz Enderlein & Dietrich Maskow, "International Sales Law", Oceana (1992), p. 171.]
Relationship to lack of conformity of the goods
7. In some legal systems the seller's obligation to deliver goods free from the right or claim of any third party is part of the obligation to deliver goods which conform to the contract. However, in this Convention the two obligations are independent of each other. [Note, however, that the article 44 added to the Official Text ignores this distinction. CISG article 44 relates to both obligations.]
8. As a consequence [subject to the exception contained in the new CISG article 44], those provisions in this Convention which apply to the seller's obligation to deliver goods which conform to the contract do not apply to the seller's obligation to deliver goods free from the right or claim or any third party under article 39 [draft counterpart of CISG article 43]. Those provisions are:
Article 33 [draft counterpart of CISG article 35]. Conformity of the goods
Article 34 [draft counterpart of CISG article 36]. Seller's liability for lack of conformity
Article 35 [draft counterpart of CISG article 37]. Cure of lack of conformity prior to date for delivery
Article 37 [draft counterpart of CISG article 39]. Notice of lack of conformity
Article 38 [draft counterpart of CISG article 40]. Seller's knowledge of lack of conformity
Article 42(2) [draft counterpart of CISG article 46(2)]. Buyer's right to require performance (paragraph (2) deals with delivery of substitute goods)
Article 46 [draft counterpart of CISG article 50]. Reduction of the price
Article 47 [draft counterpart of CISG article 51]. Partial non-performance (OFFICIAL RECORDS, p. 36.)
Separate commentary on CISG article 43(2)
CISG article 43(2) was added at the 1980 Vienna Diplomatic Conference.
"Mr. Klingsporn (Federal Republic of Germany), introducing his delegation's proposal . . . said that the buyer lost the benefit of articles 39 and 40 [draft counterparts of CISG articles 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 article 38 [draft counterpart of CISG article 40], which specified that the seller was not entitled to rely on the provision of articles 36 and 37 [draft counterparts of CISG articles 38 and 39] if the lack of conformity related to facts of which he knew or could not have been unaware." (OFFICIAL RECORDS, p. 350).