CISG Advisory Council Opinion No. 2

Examination of the Goods and Notice of Non-Conformity Articles 38 and 39

5. Judicial interpretation of CISG articles 38 and 39

5.1. The provisions governing the buyer’s obligations to examine the goods and to give notice of any alleged non-conformity are among the most litigated matters in the CISG. It is striking, however, that there appear to be few decisions from countries in which the domestic law of sales does not require notice to be given in order to claim damages for non-conformity. This is consistent with the fact that there are few decisions of any nature regarding the CISG from those countries, even though several of them are party to the Convention. Similarly, there are relatively few decisions from countries in which the domestic law of sales requires notice to be given in a reasonable period of time. By far the majority of the decisions have come from those countries in which the domestic law of sales is relatively strict both in terms of the content of the notice and the time-limit within which it must be sent to the seller. This necessarily means that any review of the decisions of the courts to date is heavily weighted towards those courts.

5.2. While many of the decisions that have been reported to date are unobjectionable on their facts, there has been a tendency on the part of some courts to interpret CISG articles 38 and 39 in the light of the analogous provisions in their domestic law. This has been most overt where the CISG text is similar to that in the domestic law[9] While the method of interpreting in the light of domestic law that also requires notice to be given in a reasonable time does not accord with the requirement of CISG article 7(1), since it does not give due regard to the international character of the Convention,[10] the results in the individual cases are difficult to criticize.

5.3. The situation is noticeably different where the text of articles 38 and 39 is more lenient towards the buyer than is the domestic sales law or where the country was a party to ULIS and had numerous court decisions interpreting it. A few courts have said that they saw no significant change in the law.[11] Most, however, have struggled to apply CISG articles 38 and 39 appropriately. It is not surprising that their frame of reference to decide whether the goods were examined “as soon as [was] practicable”, whether the examination was adequate, whether the notice was given within a reasonable time and whether the notice was sufficiently detailed was based upon their prior experience with domestic law and ULIS. It is also not surprising that their decisions tend to be more demanding on the buyer than are the decisions coming from courts in countries that have long required that notice be given within a reasonable time.

5.4. Several high level courts in those countries have attempted to give guidance as to how to determine what might be a reasonable period of time within which to give notice. Perhaps because it is difficult to give a clear guideline as to how to evaluate the many commercial and other factors that might be relevant in a given case, one technique that has been used has been to fix a period of time that would be presumed to be reasonable. The Austrian Supreme Court (Obergerichtshof) has suggested that 14 days would normally be reasonable,[12] while the Obergericht Kanton Luzern from Switzerland has suggested one month.[13] While those decisions represent a genuine effort to loosen the otherwise strict notice requirements otherwise enforced in those countries, the difficulties inherent in fixing a presumptive period of reasonableness are illustrated in a 1999 decision of the German Supreme Court (Bundesgerichtshof).[14]

5.5. The buyer had purchased a grinding device and attached it to a paper-making machine. Nine days after attachment the grinding device suffered a total failure. The buyer thought that the failure had probably been caused by operating errors of its personnel and therefore appears to have taken no action in regard to the device itself. Three weeks after the failure of the grinding device a purchaser of paper produced during the period the device had been in use complained of rust in the paper. Ten days later the buyer commissioned an expert to determine the cause of the rust. After a further two weeks the expert reported that the rust was due to the grinding device. The buyer notified the seller three days after receiving the report.

5.6. There is no question but that the notice given by the buyer three days after receipt of the report of the expert was given within a reasonable time after the buyer knew that the failure of the grinding device, and the rust in the paper produced with the machine containing the device, was because the device itself was defective. Nevertheless, it is striking that the Bundesgerichtshof held that the notice was given in time, although given more than nine weeks after delivery and seven weeks after the first signs of trouble appeared.

5.7. The court commenced by noting that the court of appeals had found that the defect in the grinding device was a latent defect, so that neither the period for examination nor the period for notice could have commenced any sooner than when the device failed. The court of appeal had concluded that on failure of the device the buyer ought to have been aware that there was a defect in the device and that the reasonable period for notice began at that date. The Bundesgerichtshof disagreed. It accepted the buyer’s contention that the buyer could not have determined immediately and by itself whether the device failed because of a defect or because of operating errors by its personnel. Therefore, it was not the period for notice under article 39 that had commenced at the time when the device failed, but the period for examination under article 38.[15]

5.8. The court then calculated the amount of time available to the buyer to give notice by assuming that it should have had one week to decide whether to engage an expert to report on the source of the failure and to engage the expert. The period for the expert to prepare its report had in fact been two weeks, which the court deemed appropriate. To the three weeks thus calculated, it added a four week period for giving notice after the buyer knew or ought to have known of the lack of conformity of the goods. The court described a four week period for giving notice as “regelmäßig”, i.e., “regular” or “normal”. Thus, the court calculated that the notice given by the buyer seven weeks after the failure of the grinding device had been given within time.

5.9. Two alternative readings of the notice period as calculated by the Bundesgerichtshof are possible. One is that the court gave the buyer a single period of seven weeks from the time it first learned of symptoms that should have alerted it to the possibility that there was a latent defect in the grinding device. If that was the decision of the court, it does not accord with the CISG, which provides for two separate periods.


5.10. The second reading is that the court did calculate two separate periods as provided in CISG. The court allowed the buyer three weeks to have the device examined by the expert pursuant to article 38 starting from the time the grinding device failed and not when its customer complained of the rust in the paper. At the end of that hypothetical examination the buyer “ought to have known” of the lack of conformity of the device and the one-month period for giving notice that the court considered to be presumptively reasonable commenced. This reading of the decision illustrates that there is no independent sanction for a failure to examine the goods within the time allowed under article 38. The buyer in this case received the report of the expert 46 days after the failure of the grinding device, which was three weeks after he “ought to have known” of the defect according to the Bundesgerichtshof. Consequently, rather than three weeks to determine the nature of the defect in the grinding device and four weeks to give notice as anticipated by the Bundesgerichtshof, it took the buyer six weeks to determine the nature of the defect and only three days to give notice.

5.11. Under either reading of the decision, the buyer had seven weeks from the failure of the device in which to give notice.

5.12. If the court had restricted itself to saying that the four week period from the time the buyer “ought to have discovered” the lack of conformity of the goods and the time it sent the notice was a reasonable time, the decision might be questioned on the facts. A period of one month from the time the buyer knew or ought to have known of the lack of conformity in this case seems rather long to be presumptively “regelmäßig”, i.e. “regular” or “normal”. Nevertheless, it would have been unobjectionable as a matter of legal interpretation. One month or even longer to give notice might be reasonable under the particular facts of the case.

5.13. The most positive aspect of the decision of the Bundesgerichtshof, as of the decisions of the Obergerichtshof in Austria and the Obergericht Kanton Luzern in Switzerland, is that it is an indication to the German courts that they should be willing to accept longer periods for the giving of notice than in regard to ULIS or § 377 HGB.

5.14. One last feature of the decision of the Bundesgerichtshof calls for comment and approval. In earlier cases the German courts had required the buyer to inform the seller in detail as to the nature of the lack of conformity. That can be beyond the power of a buyer, especially where the buyer does not have the technical knowledge to know what is wrong with the goods. In the instant case the Bundesgerichtshof clearly states that a buyer of machinery and technical equipment need give notice only of the symptoms, not an explanation of the underlying causes. The notice given by the buyer to the seller in this case stated that a purchaser of its paper had found steel splinters in the paper produced using the grinding device in question. The buyer voiced the suspicion that the grinding device was defective. The court held that the buyer’s notice was sufficiently specific in accordance with the buyer’s knowledge at that time. It would seem that description of the symptoms would also put the typical seller in a position to decide what further actions it should take to protect its interests.

5.15. By way of contrast, the French Cour de Cassation in its decision of 26 May 1999 refused to declare any specific period of time as reasonable.[16] It stated that the Court of Appeals had “used its sovereign discretion in maintaining, after having recalled the chronology of the facts, that the buyer had inspected the goods in a prompt and normal period of time, bearing in mind the handling that the [laminated metal sheets] required, and that the [buyer] had alerted [seller] of the non-conformities within a reasonable time in the meaning of Article 39(1) CISG”. (Emphasis in original) The decision was a strong affirmation that the determination whether examination of the goods under article 38 or the giving of notice of non-conformity under article 39 are ultimately dependent on the circumstances with which the buyer was confronted.

FOOTNOTES

9. Chicago Prime Packers, Inc. v. Northam Food Trading Co., 29 May 2003, U.S. District Court [Northern Dist. Illinois], 2003 WL 21254261 (N.D. Ill.), case presentation http://cisgw3.law.pace.edu/cases/030529u1.html, "[c]ase law interpreting analogous provisions of Article 2 of the ... [UCC] may also inform a court where the language of the relevant CISG provision tracks that of the UCC. However, UCC case law 'is not per se applicable'," citing Delchi Carrier S.p.A. v. Rotorex Corp., 6 December 1995, U.S. Circuit Court of Appeals, 71 F.3d 1024, 1028 (2nd Cir.1995) case presentation http://cisgw3.law.pace.edu/cases/951206u1.html

10. "In the interpretation of this Convention, regard is to be had to its international character and to the need to promote uniformity in its application and the observance of good faith in international trade."

11. OLG Oldenburg 5 December 2000, 12 U 40/00, RIW 2001, 381-382, case presentation and English translation  http://cisgw3.law.pace.edu/cases/001205g1.html. The court acknowledged that, in regard to the notice requirement, the CISG gave the appearance of being more "buyer friendly" than ULIS. The court stated, however, that there were no differences between ULIS article 38 and CISG article 38 that were so significant as to call in question the jurisprudence in regard to ULIS. It cited a decision of the Bundesgerichtshof (BGH, 2 June 1982, VIII ZR 43/81, NJW 1982.2730, 2731) concerning ULIS in support of its decision that the buyer should and could have examined the goods earlier than it did, an action it said should be "as soon as possible".

12. OGH 27 August 1999, 1 Ob 223/99x, [2000] RdW No. 10, case presentation and English translation http://cisgw3.law.pace.edu/cases/990827a3.html.

13. OG des Kantons Luzern, 8 January 1997, 11 95 123/357, [1998] Schweizerische Juristen-Zeitung 94, 515-518, case presentation http://cisgw3.law.pace.edu/cases/970108s1.html.

14. BGH, 3 November 1999, VIII ZR 287/98, [2000] RIW 381, case presentation and English translation http://cisgw3.law.pace.edu/cases/991103g1.html.

15. The court said it was not necessary to decide whether, in the case of a latent defect, the period for examination began when the buyer learned of the lack of conformity of the goods from the report of the expert or at the earlier time the symptoms first appeared. For the purposes of the case, it calculated the period for examination from the time the symptoms first appeared.

16. Société Karl Schreiber GmbH v. Société Termo Dynamique Service et autres, 26 May 1999, Cour de Cassation, [2000] Recueil Dalloz 788, http://Witzjura.uni-sb.de/CISG/decisions/260559v.htm, case presentation and English translation, http://cisgw3.law.pace.edu/cases/990526f1.html, affirming, Cour d'Appel d'Aix-en-Provence, 21 November 1996.