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Buyer’s obligation to give notice of lack of conformity (Articles 38, 39, 40 and 44)

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The Draft UNCITRAL Digest and Beyond
This chapter is in the book The Draft UNCITRAL Digest and Beyond
377Buyer’s obligation to give notice of lack of conformity(Articles 38, 39, 40 and 44)Harry M. Flechtner*CISGArticles 38 and 39, which govern a buyer’s obligation to examinedelivered goods and to notify the seller if they do not conform to thecontract, are among the most heavily-litigated provisions of the Conven-tion. There are several reasons for this phenomenon. One involves themanner in which Articles 38 and 39 are drafted. By necessity, the provisionsemploy flexible, and thus necessarily vague, standards. For example,Article 39(1) requires the buyer to give notice of lack of conformity within“a reasonable time” after the buyer discovers or “ought” to have discovered it.As one might expect, determining what constitutes “a reasonable time”1andthe circumstances in which a buyer “ought” to have discovered a lack ofconformity are fertile sources of disputes. The question of when the buyerought to have discovered a lack of conformity is closely connected to thebuyer’s obligation under Article 38 to examine the goods – a provision thatitself contains an uncertain deadline (the buyer must conduct the exam-ination “within as short a period as is practicable in the circumstances”).Disputes over whether a buyer’s notice was detailed enough to satisfy therequirement of Article 39(1) that the notice “specify[] the nature of the lackof conformity” have also been common.*Professor of Law, University of Pittsburgh School of Law. A.B., 1973, Harvard College;M.A. 1975, Harvard University; J.D. 1981, Harvard Law School.1At the 1980 Diplomatic Conference in Vienna at which the text of theCISGwasapproved, several delegates fretted about the uncertainty of the “reasonable time” limitationin Article 39(1). SeeSummary Records of Meetings of the First Committee of the United NationsDiplomatic Conference, Vienna, 10 March – 11 April, 1980, 21st meeting, 25 March 1980, 567(comments of Mr. Farnsworth, representing the United States), 567 (comments of Mr. Ghes-tin, representing France) & 568 (comments of Mr. Wang, representing China), U.N.DOC.A/CONF.97/C.1/SR.21,reprinted inDocumentary History of the Uniform Law forInternational Sales567 & 568 (John O. Honnold ed., 1989) [hereinafterDocumentaryHistory]. A French delegate to the conference predicted (accurately) that the determinationof what constituted a reasonable time for notice would be “a fruitful source of litigation”.Id.,Records of the 21st Meeting of the First Committee, ¶ 15.

377Buyer’s obligation to give notice of lack of conformity(Articles 38, 39, 40 and 44)Harry M. Flechtner*CISGArticles 38 and 39, which govern a buyer’s obligation to examinedelivered goods and to notify the seller if they do not conform to thecontract, are among the most heavily-litigated provisions of the Conven-tion. There are several reasons for this phenomenon. One involves themanner in which Articles 38 and 39 are drafted. By necessity, the provisionsemploy flexible, and thus necessarily vague, standards. For example,Article 39(1) requires the buyer to give notice of lack of conformity within“a reasonable time” after the buyer discovers or “ought” to have discovered it.As one might expect, determining what constitutes “a reasonable time”1andthe circumstances in which a buyer “ought” to have discovered a lack ofconformity are fertile sources of disputes. The question of when the buyerought to have discovered a lack of conformity is closely connected to thebuyer’s obligation under Article 38 to examine the goods – a provision thatitself contains an uncertain deadline (the buyer must conduct the exam-ination “within as short a period as is practicable in the circumstances”).Disputes over whether a buyer’s notice was detailed enough to satisfy therequirement of Article 39(1) that the notice “specify[] the nature of the lackof conformity” have also been common.*Professor of Law, University of Pittsburgh School of Law. A.B., 1973, Harvard College;M.A. 1975, Harvard University; J.D. 1981, Harvard Law School.1At the 1980 Diplomatic Conference in Vienna at which the text of theCISGwasapproved, several delegates fretted about the uncertainty of the “reasonable time” limitationin Article 39(1). SeeSummary Records of Meetings of the First Committee of the United NationsDiplomatic Conference, Vienna, 10 March – 11 April, 1980, 21st meeting, 25 March 1980, 567(comments of Mr. Farnsworth, representing the United States), 567 (comments of Mr. Ghes-tin, representing France) & 568 (comments of Mr. Wang, representing China), U.N.DOC.A/CONF.97/C.1/SR.21,reprinted inDocumentary History of the Uniform Law forInternational Sales567 & 568 (John O. Honnold ed., 1989) [hereinafterDocumentaryHistory]. A French delegate to the conference predicted (accurately) that the determinationof what constituted a reasonable time for notice would be “a fruitful source of litigation”.Id.,Records of the 21st Meeting of the First Committee, ¶ 15.

Chapters in this book

  1. Frontmatter I
  2. Table of Contents V
  3. Preface
  4. Digest of case law on the UN Sales Convention: The combined wisdom of judges and arbitrators promoting uniform interpretation of the Convention 1
  5. Articles 1-13, 78
  6. The CISG’s sphere of application: Articles 1-3 and 10 21
  7. Scope of application: Articles 4-5 96
  8. CISG rules on exclusion and derogation: Article 6 114
  9. Interpretation of the Convention and gap-filling: Article 7 138
  10. Interpretation of statements: Article 8 172
  11. Trade usage and practices established between the parties: Article 9 191
  12. Writing requirements: Article 11-13 206
  13. CISG foreign case law: how much regard should we have? 216
  14. A commentary on Articles 1-13 and 78 235
  15. Articles 14-24, 66-77
  16. Comments on the draft Digest relating to Articles 14-24 and 66-70 259
  17. Observations on passing of risk 292
  18. Articles 25-34, 45-52
  19. Beyond the Digest: Part III (Articles 25-34, 45-52) 319
  20. General provisions, obligations of the seller, and remedies for breach of contract by the seller 336
  21. Cases, analyses and unresolved issues in Articles 25-34, 45-52 362
  22. Articles 35-44, 79-88
  23. Buyer’s obligation to give notice of lack of conformity (Articles 38, 39, 40 and 44) 377
  24. Article 79 and a transactions test analysis of the CISG 392
  25. Revisiting the north-south debate in light of the draft Digest: Articles 38, 39 and 44 408
  26. Articles 53-65
  27. Beyond the Digest: Articles 53-65 424
  28. Buyer obligations under the CISG 440
  29. Obligations of the buyer and remedies for the buyer’s breach of contract (Articles 53-65) 468
  30. Articles 53-65 482
  31. Conclusion
  32. Concluding comments: Historic progress, opportunities, and the work ahead 496
  33. The Draft UNCITRAL Digest on the United Nations Convention on Contracts for the International Sale of Goods (1980)
  34. Articles 1-13 501
  35. Articles 14-24 580
  36. Articles 25-34 600
  37. Articles 35-44 627
  38. Articles 45-52 696
  39. Articles 53-65 725
  40. Articles 66-77 753
  41. Article 78 810
  42. Articles 79-88 818
Readers are also interested in:
https://doi.org/10.1515/9783866537309.5.377

Chapters in this book

  1. Frontmatter I
  2. Table of Contents V
  3. Preface
  4. Digest of case law on the UN Sales Convention: The combined wisdom of judges and arbitrators promoting uniform interpretation of the Convention 1
  5. Articles 1-13, 78
  6. The CISG’s sphere of application: Articles 1-3 and 10 21
  7. Scope of application: Articles 4-5 96
  8. CISG rules on exclusion and derogation: Article 6 114
  9. Interpretation of the Convention and gap-filling: Article 7 138
  10. Interpretation of statements: Article 8 172
  11. Trade usage and practices established between the parties: Article 9 191
  12. Writing requirements: Article 11-13 206
  13. CISG foreign case law: how much regard should we have? 216
  14. A commentary on Articles 1-13 and 78 235
  15. Articles 14-24, 66-77
  16. Comments on the draft Digest relating to Articles 14-24 and 66-70 259
  17. Observations on passing of risk 292
  18. Articles 25-34, 45-52
  19. Beyond the Digest: Part III (Articles 25-34, 45-52) 319
  20. General provisions, obligations of the seller, and remedies for breach of contract by the seller 336
  21. Cases, analyses and unresolved issues in Articles 25-34, 45-52 362
  22. Articles 35-44, 79-88
  23. Buyer’s obligation to give notice of lack of conformity (Articles 38, 39, 40 and 44) 377
  24. Article 79 and a transactions test analysis of the CISG 392
  25. Revisiting the north-south debate in light of the draft Digest: Articles 38, 39 and 44 408
  26. Articles 53-65
  27. Beyond the Digest: Articles 53-65 424
  28. Buyer obligations under the CISG 440
  29. Obligations of the buyer and remedies for the buyer’s breach of contract (Articles 53-65) 468
  30. Articles 53-65 482
  31. Conclusion
  32. Concluding comments: Historic progress, opportunities, and the work ahead 496
  33. The Draft UNCITRAL Digest on the United Nations Convention on Contracts for the International Sale of Goods (1980)
  34. Articles 1-13 501
  35. Articles 14-24 580
  36. Articles 25-34 600
  37. Articles 35-44 627
  38. Articles 45-52 696
  39. Articles 53-65 725
  40. Articles 66-77 753
  41. Article 78 810
  42. Articles 79-88 818
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