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Reproduced with permission from the author and 15 Journal of Law and Commerce (1995) 1-126

excerpts from

Specific Topics of the CISG in the Light of Judicial Application and Scholarly Writing

Franco Ferrari [*]

(. . .)

The Examination and Notification in Case of Non-Conformity of the Goods

1. Introduction

One of the most important issues of the CISG -- apart, of course, from its applicability -- appears to be the issue of the examination of the goods bought and the notice to be given to the seller in case of non-conformity of the goods, [686] for which the CISG provides an exhaustive set of rules [687] derived from its predecessor, the ULIS. [688]

The complexity as well as the importance of this issue [689] becomes apparent, if one considers the consequences of the lack of a proper notification, an issue which was very much debated during the 1980 Diplomatic Conference, [690] as evidenced by the Official Records of the United Nations Conference. [691] According to the wording of Article 39 CISG, [692] it appears that the failure to give proper notice not only "would bar the full range of remedies: a claim for damages (Art. 45(1)(b) and 74-77), requiring performance by the seller (Art. 46), avoidance of the contract (Art. 49) and reduction of the price (Art. 50)," [693] but also that it would exclude all claims after two years, independently from whether the non-conformity was discoverable during that time. [694] However, Article 39 cannot be considered alone. [695] Indeed, the CISG contains two provisions, Articles 40 [696] and 44, [697] which mitigate the rigor of the foregoing provision and which were introduced upon the insistence of the developing countries, [698] which considered the loss of all rights and the absolute exclusion of all claims after two years as being too harsh a solution. [699] This is why one will focus not only on Article 39, but also on the articles with which it is interrelated, such as the aforementioned ones, as well as Article 38, which stresses the importance of a timely examination of the goods, which, however, is relevant "only for the preparation of the notification that Article 39 requires." [700]

2. The Occasion which Triggers the Need to Notify

At this point, it is important to examine when the buyer is required to notify sellers of the lack of conformity. In this regard, it has been said that the concept of "lack of conformity" [701] relevant under Article 39 CISG is to be derived from Article 35 CISG. [702] According to this provision, [703] there is lack of conformity, [704] for example, when there is a defect in quality, as in cases [705] where shoes bought do not have the color agreed upon in the contract [OLG Frankfurt (Germany) 18 January 1994], [706] or where their front part has an ornament the parties had not agreed upon [LG Aachen (Germany) 3 April 1990]. [707] However, according to a very recent German Supreme Court decision [BGH 8 March 1995], there is no lack of quality where mussels bought contain a quantity of a dangerous substance higher than that indicated as a limit by the government of the country where the buyer has its place of business. [708]

Furthermore, there is lack of conformity, not unlike under the ULIS, [709] where there is a defect in respect of the quantity, the description and the packaging of the goods, [710] independently from the circumstances originating the defects. [711] And even though Article 39 CISG merely refers to the "lack of conformity of the goods," it is here suggested that the notice requirement also applies where the defect relates to the documents rather than to the goods themselves, [712] not unlike under the ULIS, on the grounds not only that "the Convention is drafted on the assumption that goods will often be delivered by way of documents," [713] but also because otherwise Article 34 CISG, [714] which allows for the seller's right to cure any lack of conformity in the documents, would have only scarce value. [715]

Quid iuris where the seller delivers an aliud, i.e., goods quite different from those specified in the contract? Does the buyer in this case have to notify the seller in order not to lose the right to rely on the lack of conformity? Under the ULIS, this question did not cause any difficulties, since Article 33(b) ULIS [716] expressly stated that the delivery of an aliud could be analogized to the delivery of non-conforming goods. [717] Even though the CISG does not expressly provide for a similar solution, it must not be doubted that the notification requirement applies in this line of cases as well. [718] Thus, "[n]otification must also be given where entirely different goods are delivered." [719] A different solution would contrast with the ratio of Article 39 CISG: the seller has to be put in a position where he can examine the goods to ascertain whether a claim is justified and, if so, cure any lack of conformity. [720]

[Note that several recent court decisions have stated that the ratio behind Article 39 CISG is the need for the seller to be put in a position to know whether his claim for the payment of the price can be barred by any counterclaim, see, e.g., [BGH (Germany) 8 March 1995; OLG Düsseldorf (Germany) 8 January 1993.]

3. The Discovery of the Defect (Article 38)

Before discussing the time requirement for a proper notice as laid down in Article 39 CISG, it is useful to focus, at least briefly, on Article 38 CISG, this Article being prefatory to Article 39. [721] Indeed, it is Article 38 [722] which, by laying down the rule according to which the buyer must examine the goods, or cause them to be examined, within as short a period of time as is practicable under the circumstances of the case, sets forth the time when the buyer ought to have discovered the defect [OLG Düsseldorf (Germany) 8 January 1993], [723] i.e., the time after the lapse of which the buyer has only a reasonable period of time within which to notify the seller of the lack of conformity in order not to lose his rights. [724] It must be pointed out, however, that even though the examination of the goods generally constitutes a prerequisite for the application of the notice requirement, the lack thereof does not per se [725] lead to the loss of the buyer's rights, [726] not unlike under the ULIS. [727] This is true, for instance, where the buyer does not inspect the goods and the lack of conformity cannot be discovered by examining the goods. [728] The contrary is true, too: "[i]f the buyer discovers a non-conformity without examining the goods, he . . . has to notify the seller." [729]

As far as the period of time is concerned within which the inspection must occur, it must be pointed out that Article 38 CISG, not unlike its predecessor, Article 38 ULIS, does not fix a specific time limit. [730] However, the CISG's period of time differs from that provided for by Article 38 ULIS according to which the examination had to be made "promptly," [731] since it requires that the inspection be made within a "short period." [732] Contrary to what statements made by various commentators have suggested, [733] an immediate examination is not necessary, [734] although it surely would avoid all doubts [LG Aachen (Germany) 3 April 1990]. [735]

From what has just been said, it follows that one should refrain from applying solutions elaborated in respect of the time requirement set forth in Article 38 ULIS to that laid down in Article 38 CISG. [736] Indeed, whereas the ULIS formula gave the same (very short and rigid) [737] indication for every case and, thus, lacked flexibility, [738] "the [1980] Convention has adopted a more flexible criterion than ULIS, because it allows an appropriate reference to different situations." [739] This does not mean, however, that all circumstances must be taken into consideration, but only the objective ones. [740] Therefore, "[i]mpediments relating personally to the buyer or to those in charge of examining the goods are not relevant," [741] unlike a general strike which, for instance, must be considered as being relevant under Article 38 CISG. [742] In respect of the goods bought, the aforementioned rule results not only in the "short period" for inspection being longer where the goods to be examined are -- from a technological point of view -- more sophisticated, [743] but also in its being shorter where the goods bought are perishable. [744]

As far as the inspection itself is concerned, the period for which commences generally [745] after the receipt of the goods, [746] Article 38 CISG does not specify what criteria should be used. However, from the legislative history as well as from the text of Article 38 itself, it can be derived that, unlike under the ULIS, [747] the criteria for inspection cannot be based upon "the law or usage of the place where the examination takes place,'' [748] mainly because of the international nature of the contract. [749] As far as the standard for inspection is concerned, it has also been suggested that the buyer (or someone of his staff or even a third person authorized to do so) [750] does not have to make extraordinary efforts; [751] it is sufficient that in inspecting the goods he employs the skills of a reasonable person of the same kind, [752] i.e., of a reasonable person involved in a contract of the same type in the particular trade concerned. [753] Indeed, "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 [the] lack of conformity." [754] However, where previous deliveries of the same goods by the same seller lacked conformity, the standard in inspecting the goods has to be higher, as pointed out by a German court [LG Stuttgart 31 August 1989]. [755]

4. The Time for Notice and Its Contents (Article 39)

As mentioned above, [756] from the time he discovers or ought to have discovered the lack of conformity, the buyer must send [757] notice of it to the seller "within a reasonable time.'' [758] But what is a "reasonable time" under Article 39 CISG? It is here suggested that the "reasonable time" cannot be analogized to the period of time required under Article 39(1) ULIS, [759] which asked for a "prompt" notification. Indeed, the time requirement of ULIS was shorter. [760] This is why one must be careful in using case decisions rendered in applying the ULIS. [761] In this respect, two basic rules can be established: (a) a notice which under the ULIS was considered late, does not necessarily have to be considered as being late under the CISG; (b) a notice considered to be given in time under the ULIS is to be considered in time under the CISG as well.

However, the CISG time requirement is not only more generous from a temporal point of view, but it is also more flexible than that of the ULIS. [762] Indeed, in determining the "reasonable time" one must have regard to the circumstances of the case, [763] for instance whether the buyer intends to reject the goods or keep them and claim damages. [764] In determining the period of time de quo, other circumstances have to be taken into account as well, [765] such as the perishability of the goods. [766] Indeed, where the goods are perishable, the "reasonable time" period must be shorter, [767] and this is why it is not surprising that a German court has recently decided that a notice given 7 days after the delivery of gherkins is unreasonable, i.e., too late [OLG Düsseldorf 8 January 1993; see, however, BGH 8 March 1995, also involving perishable goods (mussels) in which the German Supreme Court stated that a one month period would have been "reasonable"]. [768] Where the goods are not perishable, the period for notice may be longer. However, stating, as two very recent arbitral awards have done, that two months are "reasonable," [Austrian Arbitral Award 4318 and Austrian Arbitral Award 4366 (both dated 15 June 1994] [769] appears to be exaggerated.

Furthermore, the terms of the contract are to be taken into consideration as well. [770] And since Article 39 is dispositive, [771] the parties may agree upon a specific time period within which the notice of lack of conformity has to occur, [772] as pointed out by several court decisions [LG Giessen (Germany) 5 July 1994; LG Baden-Baden (Germany) 14 August 1991; OLG Saarbrücken (Germany) 13 January 1993]. [773]

Apart from the relative [774] time period for notice required by Article 39(1), the CISG also contains an absolute, [775] inflexible "outer time limit" [776] beyond which no notice, not even one that would satisfy the Article 39(1) requirements, can avoid the loss of the buyer's right to rely on the lack of conformity. [777] This latter period -- which, compared to some domestic law rules, has been considered as being pro-buyer [778] -- differs from the former one not only on the grounds of its inflexibility, but also because it starts to run from the time the goods are actually handed over to the buyer, [779] without it being possible to interrupt its running. [780] Even though in some instances this rule may lead to harsh results, as in the case where "an importer has to meet domestic claims for a latent nonconformity which becomes apparent more than two years after delivery but is unable to claim against the seller because the importing contract is governed by the convention," [781] this provision was considered as being necessary in order to protect the seller against claims which may arise long after the delivery of the goods. [782]

In order to bar the loss of the right to rely on the lack of conformity, it is not sufficient, however, that the buyer notifies the seller in time. In effect, according to Article 39(1) CISG, the buyer must also "specify the lack of conformity" in order to give the seller the possibility to decide how to react to the buyers claim [783] (by examining the goods himself, by remedying the lack of conformity by repair or by delivering substitute goods). [784] Thus, the lack of conformity must be so specific as to enable the seller to take that decision. [785] Not unlike under the ULIS, [786] a notice that merely states that the goods are defective cannot be considered a proper notice in the sense of Article 39(1). [787] The same is true in respect of a notice concerning defective fashion goods which says no more than "poor workmanship and improper fitting" [LG München (Germany) 3 July 1989] [788] or a notice regarding defective shoes which just states that "the goods are defective in all makings" [OLG Frankfurt (Germany) 18 January 1994]. [789] A notice which merely states that the shoes bought "are partially very badly stitched" [790] does not fulfill the Article 39(1) requirement either. [791] This does not mean, however, that the buyer must specify the defects in all details, since that would signify to locate the risk of the breach of contract with the buyer. [792] However, the notice must contain the indication of the defective goods, [793] their approximate quantity [794] as well as the result of the inspection of the goods. [795] As far as the form of the notice is concerned, Article 39 does not require any specific form; thus, it can be given both in writing or orally, [796] and also via phone [LG Stuttgart (Germany) 31 August 1989]. [797]

5. The Mitigation of the Consequences of an Improper Notice (Article 40 and 44)

As mentioned above, [798] according to Article 39 CISG an improper notice by the buyer leads to the loss of his right to rely on the lack of conformity, i.e., an improper notice bars the full range of the buyer's remedies, from the avoidance of the contract [799] to the reduction of the price. [800]

However, according to Article 40 CISG, [801] an improper notice by the buyer does not lead to the loss of his right to rely on the lack of conformity, if this lack of conformity relates to facts which the seller knew or could not have been unaware of and which he did not disclose to the buyer -- and this is true even if more than two years from the date of delivery of the defective goods have passed. [802] This provision, the language of which corresponds nearly literally to that of Article 40 ULIS, [803] relaxes the rigor of the consequences of an improper notice laid down in Article 39, [804] on the grounds that "[i]n such situations, the seller has no reasonable basis for requiring the buyer to notify him of these facts.'' [805] In order for a missing disclosure to lead to the seller's impossibility of relying upon Articles 38 and 39, it is, however, not necessary that the seller does not disclose the lack of conformity in bad faith. [806] Unlike under the German Commercial Code, for instance, which contains a similar provision which is, however, limited to deceit, [807] according to Article 40 CISG gross negligence as well is relevant. [808]

The aforementioned provision is not the only one by virtue of which the rigor of an improper notice of the lack of conformity is relaxed. [809] During the 1980 Vienna Diplomatic Conference, [developing] countries raised their voices against the "drastic" rule [810] set forth in Article 39. [811] Despite some reservations, [812] this criticism finally led to the inclusion of Article 44 [813] which maintains the remedies of price reduction and compensatory damages, except for loss of profit, [814] in cases where the buyer has a reasonable excuse for his failure to give required notice, [815] i.e., for not giving a notice at all or for giving a notice which is not specific enough. [816] According to the text of Article 44, this rule does not, however, affect the two-year cut-off period provided for in paragraph (2) of Article 39. [817] Thus, after the expiration of two years after the delivery of the goods, the buyer loses his rights to rely on the lack of conformity, even though he may have a "reasonable excuse." [818]

In regard to Article 44 CISG, the main question is to what extent it will serve as a means of relaxation of the rule set forth in Article 39(1). The answer to this question depends on how the vague [819] "reasonable excuse" criterion will be interpreted. In this respect, some legal scholars have pointed out that Article 44 CISG will rarely become applicable, since a buyer who discovers or ought to have discovered a defect can hardly be excused for not giving a proper notice. [820] Other legal writers, on the contrary, have asserted that the provision de quo will become rather important, since it may put a considerable burden on the seller, especially because of the "reasonable excuse" criterion being vague and open to an interpretation advantageous to the buyer. [821]

At this point it is too early to foresee how the provision will be applied by the courts, [822] although it is very probable that it will be applied restrictively, because of its being an exception to a general rule (Article 39(1)). [823] Despite this uncertainty, it can be predicted that in the application of the "reasonable excuse" criterion, regard will be had to the circumstance that it resulted from a compromise [824] intended to mitigate the harsh consequences of Article 39(1). In other words, in its application regard will be had to the need to reach equitable results, [825] a goal which can be reached by, among other means, resorting to "more individualized considerations than would otherwise be relevant under Article 39(1).'' [826]

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FOOTNOTES

* Professor of Comparative Private Law, Katholieke Universiteit Brabant, Tilburg, the Netherlands; J.D. (Honors), University of Bologna, Italy; LL.M., University of Augsburg, Germany. Copyright, Franco Ferrari.

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686. For a similar affirmation, see Magnus, supra note 156, at 316, stating that the obligation to notify the seller in case of lack of conformity of the goods bought is one of the most important practical issues of the CISG; under the 1964 Uniform Sales Law, about one fourth of all the published court decisions dealt with the notification of the buyer.

687. For this affirmation, see Reinhard Resch, Zur Rüge bei Sachmängeln nach UN-Kaufrecht, ÖSTERREICHISCHE JURISTENZEITUNG 470, 470 (1992).

688. See Herber & Czerwenka, supra note 43, at 181, stating that Article 39 CISG is based upon Article 39 ULIS, but that there are some differences. Indeed, Article 39(2) ULIS was not retained. Thus, unlike under the ULIS, under the CISG it is not necessary that "[i]n giving the notice to the seller of any lack of conformity, the buyer shall . . . invite the seller to examine the goods or cause them to be examined by his agent." Article 39(2) ULIS.

689. See, e.g., Schlechtriem, supra note 187, at 60.

690. For this statement, see also Schlechtriem, supra note 92, at 70, stating that "[o]ne of the [1980 Diplomatic] Conference's most difficult problems concerned the consequences of failing to give timely notice of non-conformity." For a similar statement, see Eörsi, supra note 274, at 350, where the author states that "one of the most dramatic debates at the U.N. Conference concerned the procedure in cases of nonconformity."

691. See, e.g., OFFICIAL RECORDS OF THE UNITED NATIONS CONFERENCE, supra note 27, at 320 ff. & 345 ff.

692. See Article 39 CISG:

"(1) The buyer loses the right to rely on a lack of conformity of the goods if he does not give notice to the seller specifying the nature of the lack of conformity within a reasonable time after he has discovered it or ought to have discovered it.

(2) In any event, the buyer loses the right to rely on a lack of conformity of the goods if he does not give the seller notice thereof at the latest within a period of two years from the date on which the goods were actually handed over to the buyer, unless this time-limit is inconsistent with a contractual period of guarantee."

693. Honnold, supra note 25, at 337, where the author also states that under the language of Article 39 "a seller's action to recover the price would not be subject to a set-off or counterclaim based on a defect which the buyer knew or ought to have discovered if the buyer fails to notify the seller within the periods stated in Article 39." (footnote omitted)

694. See Schlechtriem, supra note 92, at 70.

695. For a similar statement, see also Honnold, supra note 25, at 331, stating that Article 39 CISG is so interrelated with other Articles that they have to be considered as a group.

696. See Article 40 CISG: "The seller is not entitled to rely on the provisions of articles 38 and 39 if the lack of conformity relates to facts of which he knew or could not have been unaware and which he did not disclose to the buyer."

697. See Article 44 CISG: "Notwithstanding the provisions of paragraph (1) of articles 39 and paragraph (1) of article 43, the buyer may reduce the price in accordance with article 50 or claim damages, except for loss of profit, if he has a reasonable excuse for his failure to give notice."

698. See Elizabeth H. Patterson, United Nations Convention on Contracts for the International Sale of Goods: Unification and the Tension Between Compromise and Domination, 22 STAN. J. INT'L. L. 263, 289 (1986).

699. See also Henry Gabriel, PRACTITIONER'S GUIDE TO THE CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS (CISG) AND THE UNIFORM COMMERCIAL CODE (UCC) 117-118 (1994), where the author states that "Articles 40 and 44 modify the harshness of the consequences to the buyer who fails to give notice in conjunction with Article 39."

700. Id. at 115.

701. For a detailed discussion of the conformity of goods under the CISG and the seller's liability in case of non-conformity, see, among others, Richard Hyland, Liability of the Seller for Conformity of the Goods under the UN Convention (CISG) and the Uniform Commercial Code, in EINHEITLICHES KAUFRECHT UND NATIONALES OBLIGATIONENRECHT, supra note 16, 305.

702. For a similar statement, see, for instance, Honnold, supra note 25, at 334, where the author states -- in respect of the "nonconformity" of goods -- that "[t]he area embraced by this concept is defined in Article 35." For a similar statement, see also Herber & Czerwenka, supra note 43, at 182.

703. See Article 35 CISG:

"(1) The seller must deliver the goods which are of the quantity, quality and description required by the contract and which are contained or packaged in the manner required by the contract.

"(2) except where the parties have agreed otherwise, the goods do not conform with the contract unless they:

(a) are fit for the purposes for which the goods of the same description would ordinarily be used;

(b) are fit for any particular purpose expressly or impliedly made known to the seller at the time of the conclusion of the contract except where the circumstances show that the buyer did not rely, or that it was unreasonable for him to rely, on the seller's skill and judgment;

(c) posses the qualities of goods which the seller has held out to the buyer as a sample or model;

(d) are contained or packaged in the manner usual for such goods or, where there is no such manner, in a manner adequate to preserve and protect the goods.

"(3) The seller is not liable under subparagraph (a) to (d) of the preceding paragraph for any lack of conformity of the goods if at the time of the conclusion of the contract the buyer knew or could not have been unaware of such lack of conformity."

704. For papers written on the lack of conformity, see, among others, Marino Bin, La non conformità dei beni nella convenzione di Vienna sulla vendita internazionale, RIVISTA TRIMESTRALE DI DIRITTO E PROCEDURA CIVILE 755 (1990); Luciana Cabella Pisu, La "mancanza" di conformità: il modello della Convenzione e la tradizione giuridica italiana, in LA VENDITA INTERNAZIONALE, supra note 32, 359; Denis Tallon, La consécration de la notion de conformité après la Convention des Nations Unies sur les contrats de vente internationale de marchandises, in GEDÄCHTNISSCHRIFT FÜR LEONTIN-JEAN CONTANTINESCO 753 (Köln 1983); René Wyler, Garantie, conformité et inspection des marchandises dans la vente internationale. Etude de la convention de Vienne, in FESTSCHRIFT FÜR GILLIARD 175 (Tolochenaz 1987).

705. For a gathering of cases concerning the non-conformity of goods, see Witz, supra note 68, at 86.

706. See OLG Frankfurt a.M., January 18, 1994, published in NEUE JURISTISCHE WOCHENSCHRIFT 1013 (1994).

707. See LG Aachen, April 3, 1990, published in RECHT DER INTERNATIONALEN WIRTSCHAFT 491 (1990).

708. See BGH, March 8, 1995, published in RECHT DER INTERNATIONALEN WIRTSCHAFT 595 (1995).

709. For cases specifying when there is lack of conformity under the ULIS, see Schlechtriem & Magnus, supra note 168, at 220-229.

710. For this statement, see Gabriel, supra note 699, at 118; Honnold, supra note 25, at 334.

Note, however, that under the ULIS, defects in packaging were not always considered as defects in the sense of Article 33 ULIS; see, in this regard, Rechtbank Alkmaar, May 2, 1985, reported in Schlechtriem & Magnus, supra note 168, at 228-229.

711. See for this statement, Ingeborg Schwenzer, Art. 39, in KOMMENTAR ZUM EINHEITLICHEN UN-KAUFRECHT, supra note 48, 357 at 358.

For a judicial affirmation of this principle, see OLG Bamberg, February 23, 1979, published in RECHT DER INTERNATIONALEN WIRTSCHAFT 566 (1979), relating, however, to the ULIS.

712. For this solution, see also Gabriel, supra note 699, at 118-119.

713. Honnold, supra note 25, at 334.

714. See Article 34 CISG:

"If the seller is bound to hand over documents relating to the goods, he must hand them over at the time and place and in the form required by the contract. If the seller has handed over documents before that time, he may, up to that time, cure any lack of conformity in the documents, if the exercise of this right does not cause the buyer unreasonable inconvenience or unreasonable expense. However, the buyer retains any right to claim damages as provided for in this Convention."

715. For a similar suggestion, see also Honnold, supra note 25, at 334, where the author also suggests applying the notice requirement to cases where the defect relates to the documents on the grounds that "supplying the correct documents is part of the seller's obligation to deliver the goods. . . . Moreover, the provision in Article 34 allowing the seller to cure a defect in documents would be of little value unless the seller is notified of the defect." (footnote omitted)

For this solution, see also Enderlein et al., supra note 48, at 135; Herber & Czerwenka, supra note 43, at 160-161; Magnus, supra note 156, at 319.

716. See Article 33 ULIS:

"(1) The seller shall not have fulfilled his obligation to deliver the goods where he has handed over:

(a) part only of the goods sold or a larger or a smaller quantity of the goods than he contracted to sell;

(b) goods which are not those to which the contract relates or goods of a different kind;

(c) goods which lack the qualities of a sample or model which the seller has handed over or sent to the buyer, unless the seller has submitted it without any express or implied undertaking that the goods would conform therewith;

(d) goods which do not possess the quantities necessary for their ordinary or commercial use;

(e) in general, goods which do not possess the qualities and characteristics expressly or impliedly contemplated by the contract.

"(2) No difference in quantity, lack of part of the goods or absence of any quality or characteristic shall be taken into consideration where it is not material."

717. See, e.g., Herbert Stumpf, Art. 33, in KOMMENTAR ZUM EINHEITLICHEN KAUFRECHT, supra note 166, 269 at 271.

718. For this line of reasoning, see also Resch, supra note 687, at 471.

719. Schlechtriem, supra note 92, at 70. For this solution, see also Michael Binder, Diskussionsbeitrag, in DAS UNCITRAL-KAUFRECHT, supra note 119, 146 at 146; Ebenroth, supra note 389, at 689; Ulrich Huber, Die Haftung des Verkäufers für Verzug und Sachmängel nach dem Wiener Kaufrechtsübereinkommen, ÖSTERREICHISCHE JURISTISCHE BLÄTTER 273, 278; Huber, supra note 270, at 483-484; Karollus, supra note 59, at 125-126; Magnus, supra note 156, at 319; Piltz, supra note 21, at 50; Elisabeth Stern, ERKLÄRUNGEN IM UNCITRAL-KAUFRECHT 73 (Vienna, 1990).

Contra, in the sense that he does not consider the delivery of an aliud as requiring a notification in order not to lose one's rights, Massimo Cesare Bianca, Art. 35, in COMMENTARY ON THE INTERNATIONAL SALES LAW, supra note 12, 268 at 273-274; Franz Bydlinski, Diskussionsbeitrag, in DAS UNCITRAL-KAUFRECHT, supra note 119, 137 at 137; LOEWE, supra note 346, at 51; Karl Neumayer, Diskussionsbeitrag, in DAS UNCITRAL-KAUFRECHTS, supra note 119, 135 at 136. For this line of reasoning, see also OFFICIAL RECORDS OF THE UNITED NATIONS CONFERENCE, supra note 27, at 29, stating that "if the contract calls for the delivery of corn, the seller has not delivered if he provides potatoes."

720. According to Honnold, supra note 25, at 333-334, as well, the ratio behind the notification requirement laid down in Article 39 CISG lies in the possibility for the seller, if the buyer notifies him promptly, "[to] inspect and test the goods to ascertain whether a claim is justified. Moreover, when the inspection shows that the goods are defective, the seller may be able to exercise its right to cure the defect." See also Enderlein, supra note 326, at 170-171.

Note, that several recent court decisions have stated that the ratio behind Article 39 CISG is the need for the seller to be put in a position to know whether his claim for the payment of the price can be barred by any counterclaim; see, e.g., BGH, March 8, 1995, reprinted in RECHT DER INTERNATIONALEN WIRTSCHAFT 595, 597 (1995); OLG Düsseldorf, January 8, 1993, published in RECHT DER INTERNATIONALEN WIRTSCHAFT 325, 325 (1993). For this rationale behind the notice requirement, see, with reference, however, to the ULIS provisions, BGH, June 2, 1982, published in NEUE JURISTISCHE WOCHENSCHRIFT 2730, 2731 (1982); OLG Bamberg, February 23, 1979, published in RECHT DER INTERNATIONALEN WIRTSCHAFT 566, 567 (1979); OLG Köln, December 19, 1977, published in MONATSSCHRIFT FÜR DEUTSCHES RECHT 1023, 1023 (1980).

721. See, for instance, OFFICIAL RECORDS OF THE UNITED NATIONS CONFERENCE, supra note 27, at 34, which expressly states that Article 38 is prefatory to Article 39; see also Schlechtriem, supra note 92, at 69 (stating the same).

722. See Article 38 CISG:

"(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."

723. This has been expressly pointed out by a recent German court decision; see OLG Düsseldorf, January 8, 1993, published in RECHT DER INTERNATIONALEN WIRTSCHAFT 325 (1993).

724. For a similar statement evidencing the interrelationship of Articles 38 and 39, see OFFICIAL RECORDS OF THE UNITED NATIONS CONFERENCE, supra note 27, at 34:

"This article [38] is prefatory to article [39], which provides that if the buyer fails to notify the seller of lack of conformity of the goods within a reasonable period of time after he has discovered it or ought to have discovered it, he loses the right to rely on the lack of conformity. The time when the buyer is obligated to examine the goods under article [38] constitutes the time when the buyer "ought to have discovered" the lack of conformity under article [39]."

725. See, however, Honnold, supra note 25, at 328, stating that the inspection of the goods constitutes "a necessary step towards the timely notification of defects required by Article 39."

726. For a similar statement, see also Herber & Czerwenka, supra note 43, at 175; Magnus, supra note 156, at 302-303.

727. See BGH, June 2, 1982, published in PRAXIS DES INTERNATIONALEN PRIVAT- UND VERFAHRENSRECHTS 228 (1983).

728. This was true under the ULIS, as expressly pointed out by a German Supreme Court decision; see BGH, June 2, 1982, published in PRAXIS DES INTERNATIONALEN PRIVAT- UND VERFAHRENSRECHTS 228 (1983).

729. Enderlein, supra note 326, at 166.

730. This is why one cannot agree with Piltz, supra note 21, at 192, where the author states a rule according to which a period of time of 3 or 4 days is to be generally considered as being a "short period" in the sense of Article 38 CISG.

731. See Article 38 ULIS:

"(1) The buyer shall examine the goods, or cause them to be examined, promptly.

"(2) In case of carriage of the goods the buyer shall examine them at the place of destination.

"(3) If the goods are redispatched by the buyer without transshipment and the seller knew or ought to have known, at the time when the contract was concluded, of the possibility of such redispatch, 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. (emphasis added.)"

[ULIS defines promptly as "performed within as short a period as possible in the circumstances, from the moment when the act could reasonably be performed" (ULIS Article 11).]

732. See Huber, supra note 270, at 482.

733. See Wolfgang Reishofer, Diskussionsbeitrag, in DAS UNCITRAL-KAUFRECHT, supra note 119, 134 at 134; Ingeborg Schwenzer, Art. 38, in KOMMENTAR ZUM EINHEITLICHEN UN-KAUFRECHT, supra note 48, 347 at 352.

734. See Reinhart, supra note 139, at 92.

735. See, e.g., LG Aachen, April 3, 1990, published in RECHT DER INTERNATIONALEN WIRTSCHAFT, where the court states that an examination made the same day as the delivery is timely. But this is not surprising; see Resch, supra note 687, at 473.

736. For a similar conclusion, see also Magnus, supra note 156, at 307.

Note, however, that Herber & Czerwenka, supra note 43, at 177, state that from a substantial point of view the provisions of the ULIS and the CISG do not differ, and this is why the authors have recourse to case law concerning the ULIS when trying to determine the concept of the "short period" of time referred to in Article 38 CISG.

737. See Magnus, supra note 156, at 307.

738. See also Massimo Cesare Bianca, Art. 38, in COMMENTARY ON THE INTERNATIONAL SALES LAW, supra note 12, 295 at 299.

739. Id. at 296. For a similar conclusion, see also Magnus, supra note 156, at 307.

740. For this assertion, see Bianca, supra note 738, at 299; Magnus, supra note 156, at 308.

741. Bianca, supra note 738, at 299.

742. See Herber & Czerwenka, supra note 43, at 177.

743. For a similar statement, see Enderlein & Maskow, supra note 58, at 155, stating that "[g]enerally, it can be said that goods of more sophisticated technology or of complex composition require longer time to be examined." See also Bianca, supra note 738, at 299.

744. For this assertion, see also Magnus, supra note 156, at 308.

For a more detailed list of circumstances which might influence the length of the "short period" mentioned in Article 38 CISG, see, e.g., Enderlein, supra note 326, at 167, stating that

"[t]he circumstances which have to be taken into account include the place where the goods are situated at the time of passing of the risk (cf. Art. 36 para. 1 and Art. 66 et seq.); the type of goods, for instance, a single piece, bulk goods, perishable goods, consumer goods; how the goods are packaged or the type of container; whether there is a package which, for example, will not be opened till the goods reach the final consumer; whether the buyer uses the goods himself or resells them; the technical prerequisites at the buyer's disposal; and . . . whether usages and practices apply."

745. Where a contract involves carriage of the goods, however, Article 38 CISG defers inspection until the goods arrive at their destination (see, e.g., Gabriel, supra note 699, at 115), since "[a]n examination of the goods at the frontier or when passing the rail of a ship is hardly imaginable, and, in general, . . . neither possible nor necessary." Enderlein, supra note 326, at 168.

According to Article 38(3) CISG, inspection is also deferred in cases where the goods are redirected or redispatched provided (a) that the buyer did not have a reasonable opportunity to examine them and (b) that at the time of the conclusion of the contract the seller knew or ought to have known of the possibility of such dispatch or redirection; see Bianca, supra note 738, at 300.

746. For this statement, see also Herber & Czerwenka, supra note 43, at 177.

747. See Schlechtriem, supra note 92, at 69.

748. Article 38(4) ULIS.

749. See OFFICIAL RECORDS OF THE UNITED NATIONS CONFERENCE, supra note 27, at 34, stating that "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." (emphasis added)

For a similar statement, see also Bianca, supra note 738, at 297, where the author also states that "the reference to the law or usage made in ULIS . . . does not seem satisfactory, especially because it could lead to exonerating the buyer from his burden when there are no laws, rules, or sound usages in the place where the goods must be examined."

750. It has been often pointed out that the inspection need not be made by the buyer himself; see, for instance, Enderlein, supra note 326, at 166, stating that "[t]he goods need not be examined personally by the buyer or his own staff. The buyer may also order third persons, for instance, specialized and impartial control organizations, to examine the goods."

751. For a similar statement, see also OFFICIAL RECORDS OF THE UNITED NATIONS CONFERENCE, supra note 27, at 34, stating that "[t]he examination which this article requires the buyer to make is one which is reasonable in the circumstances. The buyer normally is not required to make an examination which would reveal every possible defect."

752. See Kazuaki Sono, Art. 39, in COMMENTARY ON THE INTERNATIONAL SALE LAW, supra note 12, 303 at 310.

753. See Resch, supra note 687, at 472.

754. OFFICIAL RECORDS OF THE UNITED NATIONS CONFERENCE, supra note 27, at 34.

755. For this principle, see LG Stuttgart, August 31, 1989, published in RECHT DER INTERNATIONALEN WIRTSCHAFT 984, 984 (1989).

756. See supra text accompanying notes 721 & 722.

757. By virtue of Article 27 CISG ("Unless otherwise expressly provided in this Part of the Convention, if any notice, request, or other communication is given or made by a party in accordance with this Part and by means appropriate in the circumstances, a delay or error in the transmission of the communication or its failure to arrive does not deprive that party of the right to rely on the communication") it is sufficient for the notice de quo to be sent in time. See also Karollus, supra note 59, at 126; Resch, supra note 687, at 476; Schlechtriem, supra note 187, at 59.

758. See Sono, supra note 752, at 309.

759. But see Heuzé, supra note 177, at 230, stating that the concept of "reasonable time" under Article 39 CISG is to be considered very similar to that of "prompt" notification under the ULIS; see also Reinhart, supra note 139, at 95, which presupposes the foregoing analogization, when stating that the cases rendered under the ULIS can be taken into account in order to determine whether the buyer has to give notice.

760. Contra, see Enderlein & Maskow, supra note 58, at 159, stating that "[t]he reasonable time is in any case a short period (just like in Article 39, paragraph 1 ULIS). Such time is a relative time. . . . Reasonable, in many cases, will mean giving notice immediately."

761. For this suggestion, see also Magnus, supra note 156, at 324; Schwenzer, supra note 711, at 361.

762. For this conclusion, see also Schwenzer, supra note 711, at 361.

763. For this assertion in legal writing, see also Magnus, supra note 156, at 325; Piltz, supra note 21, at 194. See also 3 UNITED NATIONS COMMISSION ON INTERNATIONAL TRADE LAW YEARBOOK 87 (1972).

764. For the importance of this element in determining the "reasonable time" under Article 39 CISG, see also Sono, supra note 752, at 309, where the author states that

"[w]here the buyer is rejecting the goods, a prompt communication to the seller is important so that he can have an opportunity to make a tender of conforming goods within the required period. In such cases, a prompt communication might also be important to give the seller an opportunity to care for or redispose of the rejected goods and reduce the chance for loss or damage to the goods or the incurring of unnecessary expense. On the other hand, where the buyer decides to keep the defective goods, subject to a claim for damages, the above reasons for prompt notification may not be applicable."

765. For a list of different circumstances which can impact on the determination of the period for notice, see Claude D. Rohwer & Jack Coe, The 1980 Vienna Convention on the International Sale of Goods and the UCC -- Peaceful Coexistence?, in LEGAL ASPECTS OF INTERNATIONAL BUSINESS TRANSACTIONS 272-273 (Dennis Campbell and Claude D. Rohwer eds., Elsevier, 1984), where the authors state that

"[f]actors important in determining whether a reasonable time has passed might include: (1) difficulty of discovering the defect -- influenced by the nature of the defect, the complexity of the goods, and the sophistication of the buyer; (2) the terms of the contract; (3) relative perishability of the goods; (4) course of performance of the contract to date; and (5) usage of trade."

However, it is here suggested that not all the foregoing circumstances must be taken into account in determining whether the notice is made within a reasonable period of time. The complexity of the goods, for instance, may be relevant for the time needed for the inspection. But it does not appear to be relevant in order to determine whether a reasonable period has passed between the moment the defects are discovered (or ought to have been discovered) and that at which the notice is given.

766. It has often been said that perishability is a circumstance to be taken into account in determining the "reasonable period" of time for notice; see, e.g., Magnus, supra note 156, at 325; Schwenzer, supra note 711, at 361.

767. See also Enderlein et al., supra note 48, at 135.

768. See OLG Düsseldorf, January 8, 1993, published in RECHT DER INTERNATIONALEN WIRTSCHAFT 325, 325 (1993).

Note, however, that in a recent case the German Supreme Court stated, although the sales contract [involved] perishable goods (mussels), that a one month period would have been "reasonable," but that in the case at hand the buyer lost his rights since he gave notice more than a month after the (apparent) defect ought to have been discovered; see BGH, March 8, 1995, published in RECHT DER INTERNATIONALEN WIRTSCHAFT 595, 597 (1995).

769. See Internationales Schiedsgericht der Bundeskammer der gewerblichen Wirtschaft in Österreich, Arbitral Awards Nos. 4366 & 4318, published in RECHT DER INTERNATIONALEN WIRTSCHAFT 590 (1995).

770. See Rohwer & Coe, supra note 765, at 272; Schlechtriem, supra note 92, at 72.

771. For this assertion, see also Herber & Czerwenka, supra note 43, at 187; Magnus, supra note 156, at 330.

772. See also Schwenzer, supra note 711, at 366.

773. See LG Giessen, July 5, 1994, published in NEUE JURISTISCHE WOCHENSCHRIFT RECHTSSPRECHUNGS-REPORT 438 (1995) (stating that the agreement of the parties to limit the period of time within which the notice must occur to 8 days is valid); LG Baden-Baden, August 14, 1991, published in RECHT DER INTERNATIONALEN WIRTSCHAFT 62, 62 (1992) (considering the agreement of a 30 days limitation as being valid); OLG Saarbrücken, January 13, [1993], quoted in Schwenzer, supra note 711, at 367 n.101 (deciding that the agreement concerning an eight day "reasonable time period" is valid).

774. For this qualification, see Schwenzer, supra note 711, at 363.

775. For this qualification, see Resch, supra note 687, at 476.

776. Honnold, supra note 25, at 336.

777. See Sono, supra note 752, at 310, where the author states that

"in the absence of a contrary contractual agreement, Article 39(2) provides a cut off period of two years beyond which the buyer can no longer give notice of non-conformity of the goods. Accordingly, although Article 39(1) provides that, in order to assert a lack of conformity against the seller, notice of the non-conformity must be given within a reasonable time after the buyer has discovered it or ought to have discovered it, such assertion will be practically precluded if the time of the discovery of the non-conformity is after the two-year time-limit."

See also Honnold, supra note 25, at 336, stating that according to Article 39(2) "the notice must be given within the two-year period even though a defect is discovered subsequent to that period, and even though a later notice would satisfy the general standards of Article 39(1). . . ."

For similar remarks, see also Jacob Ziegel, REPORT TO THE UNIFORM LAW CONFERENCE OF CANADA ON THE CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS 96 (Uniform Law Conference of Canada ed., 1981).

778. See Joseph Lookofsky, Remedies for Breach under the CISG, in COMMERCIAL DAMAGES: A GUIDE TO REMEDIES IN BUSINESS LITIGATION 1, 21-22 (Charles L. Knapp ed., 1986), where the author states that "[Article 39(2)] with its absolute, two-year cutoff regarding the right to rely -- i.e., assert any cause of action for nonconformity -- marks a significant departure from some national laws. . . . Compared with the UCC, which contains no comparable provision, the rule is clearly pro-seller. But the provision also represents a pro-buyer shift when compared with national statutes of seller which provide for even shorter cutoff periods." See also Reitz, supra note 315, at 462-463, stating that "the two-year cap represents a compromise between the German six-month limitations period and the UCC (and Limitations Convention) period of four years." (footnotes omitted)

For a list of some domestic cutoff periods, see, e.g., Kritzer, supra note 56, at 317.

779. See Enderlein et al., supra note 48, at 136.

780. See id. at 137.

781. J.D. Feltham, The United Nations Convention on Contracts for the International Sale of Goods, J. BUS. LAW 346, 354 (1981).

782. For a similar justification of the rule set forth in Article 39(2) CISG, see also OFFICIAL RECORDS OF THE UNITED NATIONS CONFERENCE, supra note 27, at 355, where it is stated that

"[e]ven though it is important to protect the buyer's right to rely on the latent defects which become evident only after a period of time has passed, it is also important to protect the seller against claims which arise long after the goods have been delivered. Claims made long after the goods have been delivered are often of doubtful validity and when the seller receives his first notice of such a contention at a late date, it would be difficult for him to obtain evidence as to the condition of the goods at the time of delivery, or to invoke the liability of a supplier from whom the seller may have obtained the goods or the materials for their manufacture."

783. For this conclusion, see also Magnus, supra note 156, at 321; Resch, supra note 687, at 475.

784. See OFFICIAL RECORDS OF THE UNITED NATIONS CONFERENCE, supra note 27, at 35, where it is stated that

"The purpose of the notice is to inform the seller what he must do to remedy the lack of conformity, to give him the basis on which to conduct his own examination of the goods, and in general to gather evidence for use in any dispute with the buyer over the alleged lack of conformity. Therefore, the notice must not only be given to the seller within a reasonable period of time after the buyer has discovered the lack of conformity or ought to have discovered it, but it must specify the nature of the lack of conformity."

785. See also Honnold, supra note 25, at 334-335, where the author states that "[q]uestions as to what the notice must say should be answered with regard for the functions served by the notice. . . . [T]he principal functions are to give the seller an opportunity to obtain and preserve evidence of the condition of the goods and to cure the deficiency." See also Magnus, supra note 156, at 321; Resch, supra note 687, at 475.

786. See, e.g., LG Giessen, June 6, 1978, reported in Schlechtriem & Magnus, supra note 187, at 243-244.

787. For this assertion, see also Piltz, supra note 68, at 1104.

788. See LG München, July 3, 1989, published in PRAXIS DES INTERNATIONALEN PRIVAT- UND VERFAHRENSRECHTS 316 (1990).

789. See OLG Frankfurt, January 18, 1994, published in RECHT DER INTERNATIONALEN WIRTSCHAFT 240 (1994).

790. See LG Stuttgart, August 31, 1989, published in PRAXIS DER INTERNATIONALEN PRIVAT- UND VERFAHRENSRECHTS 317 (1990).

791. For a reference to the cases mentioned in the text as well as other cases decided under the CISG, see, most recently, Magnus, supra note 156, at 321.

792. Id. at 322.

793. See also Resch, supra note 687, at 475.

794. See, in respect, however, of the ULIS, OLG Koblenz, published in RECHT DER INTERNATIONALEN WIRTSCHAFT 591 (1991).

795. See Magnus, supra note 156, at 322.

796. Id. at 327.

797. See LG Stuttgart, August 31, 1989, published in PRAXIS DER INTERNATIONALEN PRIVAT- UND VERFAHRENSRECHTS 984 (1989).

798. See supra text accompanying notes 693-94.

799. See Honnold, supra note 25, at 337.

800. According to Resch, supra note 687, at 474, the buyer who does not give a proper notice (because it is either untimely or not specified enough), has to pay the entire amount even though the lack of conformity consists in the delivery of less goods than agreed upon. The contrary is true as well: where the seller delivers a quantity of goods greater than that provided for in the contract, the improper notice binds the buyer to pay for the excess quantity at the contract rate.

801. For the text of Article 40 CISG, see supra note 696.

802. See Resch, supra note 687, at 478.

803. See Article 40 ULIS: "The seller shall not be entitled to rely on the provisions of Articles 38 and 39 if the lack of conformity relates to facts of which he knew, or of which he could not have been unaware, and which he did not disclose."

804. See also Kazuaki Sono, Art. 40, in COMMENTARY ON THE INTERNATIONAL SALES LAW, supra note 12, 314 at 314, stating that Article 40 "relaxes the notice requirements of Article 38 and 39." However, it does not appear the notice requirements are relaxed, but rather the consequences of an improper notice.

805. Id.

806. For this statement, see also Magnus, supra note 156, at 333.

807. See par. 377(5) of the German Commercial Code.

808. See Schlechtriem, supra note 92, at 70, where the author states that Article 40 "concerns not only the seller's deceit . . . but also his gross negligence." For similar statements, see also Loewe, supra note 346, at 61; Magnus, supra note 156, at 332-333; Resch, supra note 687, at 478.

809. See Resch, supra note 698, at 471.

810. For this evaluation, see Kazuaki Sono, Art. 44, in COMMENTARY ON THE INTERNATIONAL SALES LAW, supra note 12, 324 at 326.

811. For a summary of the criticism of the rule laid down in Article 39, see S.K. Date-Bah, The Convention on the International Sale of Goods from the Perspective of the Developing Countries, in LA VENDITA INTERNAZIONALE, supra note 32, 23 at 30-31.

812. See Herber & Czerwenka, supra note 43, at 201-202, stating that the industrialized nations reluctantly accepted the compromise in which the introduction of Article 44 CISG resulted.

813. See, e.g., Honnold, supra note 25, at 338.

814. See Sono, supra note 810, at 326, stating that

"[u]nder Article 44, the buyer who has a reasonable excuse for his failure to give the required notice will be afforded some limited remedies: the buyer may reduce the price in accordance with Article 50 or claim damages under Article 74 except for his loss of profit such as the profit that he would have gained by resale had the goods conformed to the contract. There are only residual remedies that the buyer may pursue. Accordingly, the buyer can no longer require the seller to cure the lack of conformity as a matter of right under Article 46. Most importantly, the buyer cannot avoid the contract under Article 49 even if the avoidance would have otherwise been possible."

815. See Article 44 CISG: "Notwithstanding the provisions of paragraph (1) of article 39 and paragraph (1) of article 43, the buyer may reduce the price in accordance with article 50 or claim damages, except for loss of profit, if he has a reasonable excuse for his failure to give the required notice."

816. See Magnus, supra note 156, at 359.

817. See Honnold, supra note 25, at 338; Loewe, supra note 346, at 65.

818. For this statement, see Magnus, supra note 156, at 259.

819. See OFFICIAL RECORDS OF THE UNITED NATIONS CONFERENCE, supra note 27, at 346, where the statements of the French delegate are reported, who considered the "reasonable excuse" criterion not only as being vague, but also as being a "fruitful source of litigation."

820. See, e.g., Honnold, supra note 25, at 340, stating that "the problems [Article 44] poses can easily be overstated. The sanction imposed by Article 39(1) . . . is severe and significant sanctions are preserved against even a buyer who qualifies for 'excuse' under Article 44. Consequently buyers are not likely to refrain from making a prompt complaint when they receive defective goods. In any event, an undue delay in asserting a defect will continue to militate against the credibility of the claim." (footnote omitted)

821. See Schlechtriem, supra note 92, at 70, asserting that "[t]his inroad to the seller's interest in regarding the transaction as fully completed may put a considerable burden on the seller, particularly because 'reasonable excuse for his failure to give the required notice' is indefinite and open to an interpretation favorable to the buyer."

822. The provision de quo has already been referred to in a court decision where, however, it was not examined in detail. Indeed, the court referred to it and merely stated that there was no "reasonable excuse" in the case at hand, without elaborating further on it. See OLG Düsseldorf, February 10, 1994, published in RECHT DER INTERNATIONALEN WIRTSCHAFT 53 (1995).

823. For similar statements, see also Magnus, supra note 156, at 360; Reinhart, supra note 139, at 105.

824. See for a similar assertion, Honnold, supra note 25, at 338, stating that "[t]he "reasonable excuse" for a failure to give notice in conformity with Article 39(1) needs to be understood and applied in the light of its legislative history."

825. Several legal scholars have pointed out that the "reasonable excuse" criterion has been introduced to reach equitable results in cases where the application of the rule laid down in Article 39(1) appears to be too drastic. See, e.g., Karollus, supra note 59, at 128; Resch, supra note 687, at 479.

826. Honnold, supra note 25, at 338.

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Pace Law School Institute of International Commercial Law - Last updated August 13, 1999
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