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Reproduced with permission of the author
This is the final award from an ICC arbitration concerning a seller's suit for the unpaid portion of the purchase price and the buyer's counterclaim for damages caused by nonconformity of the goods. Though neither party to the sales contract had a place of business in a country that had ratified or acceded to the United Nations Convention on Contracts for the International Sale of Goods ("CISG" or the "Convention"), and though the CISG was not otherwise applicable by its terms, the arbitrators applied the CISG provisions concerning the time within which the buyer must give notice of nonconformity. The arbitral tribunal concluded that those provisions of the CISG represent international trade usages.
The published text of the award illuminates little of the context of the dispute. We do not know the names of the parties or the countries where they do business. We also know nothing of the kind of product that was bought and sold, the nature of the defect, or the amount of the damages. Nonetheless, reading the award produces a firm conviction that the result reached by the arbitrators was a just one. The reason is that the tribunal sidestepped a number of serious legal obstacles in order to permit the buyer to recover on the counterclaim. Although, in the end, the tribunal's maneuvers are not convincing, the award demonstrates one reason for lawyers to become familiar with the provisions of the CISG -- and that is that the Convention may be applied virtually anytime an arbitrator believes that it produces the proper result (see footnote 1).
Two issues are particularly troubling about this award: first, the holding that, even outside of its stated sphere of application, the CISG can displace the proper law of the contract, and second, the manner in which the CISG's conformity provisions were applied to the facts of this dispute.
The applicability of the CISG
Because the parties did not choose a law to govern their contract, the tribunal's first task was to ascertain the applicable law. The arbitrators began appropriately by consulting Art. 13(3) of ICC Rules of Arbitration, which provides that the arbitrator is to choose the proper law by reference to those conflicts rules that are deemed to be appropriate. The ICC Rules seem to mandate a two-step procedure: first, the determination of the appropriate conflicts rules, and then the application of those rules to determine the proper law of the contract. That, of course, is the appropriate procedure when a court is involved, but there has been much discussion about whether an arbitrator need follow the same steps (see footnote 2). In contrast to the judiciary, an arbitrator is not generally bound by any particular lex fori. The place of arbitration may have little or no relationship to the economy of the contract, and the choice of a different set of conflicts rules already requires a conflicts-law decision. As a result, many commentators have concluded that the arbitrator should be given great latitude in the method to be used in determining the applicable law (see footnote 3).
In this case, the tribunal's choice was well-reasoned and traditional. The arbitrators noted that, since the sale was designated in the contract to be FOB [place of shipment], the transfer of the risk of loss took place in the country of the seller. This factor, chosen expressly by the parties, established an important link between the contract and seller's law. The arbitrators also noted that, absent agreement, the modern trend in conflicts law is to attach the sales contract to the law of the seller's place of residence. In support of this proposition, the arbitrators cited Art. 3 of the Hague Convention on the Law Applicable to International Sales of Goods (1955), but might equally have referred to the recently adopted German conflicts law (see footnote 4).
The choice of seller's law, though in general unobjectionable, posed a serious problem in this case, one that the arbitrators were able to overcome only by an extremely creative use of the legal sources. The problem was that seller's law imposed what the tribunal considered to be "extremely short and specific time requirements" as far as the buyer's notice of defects was concerned, time requirements which the buyer had not met. Since the parties had not chosen a governing law, and since there was no lex fori to dictate the conflicts rules, the arbitrators might easily have escaped the difficulty. For example, though the arbitrators correctly noted that the transfer of risk took place in the country of the seller, it is also true that final inspection took place upon arrival. Thus, the particular question involved in the dispute, namely the time available for inspection and notice of defects, seems to have had even closer contacts with the law of the destination of the goods. In fact, under the Hague Convention, the law of the jurisdiction where the inspection is to take place governs the timing of notifications (see footnote 5). Moreover, it must be assumed that the buyer at least met the deadlines imposed by the law of the destination of the goods -- otherwise the equities would be entirely in favor of the seller. Thus, by choosing the law of the place of the destination of the goods to govern the notification question, the arbitrators may have been able to reach the desired result.
After choosing seller's law, the arbitrators wished to escape its rigorous consequences. This they achieved by deciding that the CISG provisions in the matter of the nonconformity of goods correspond to international trade usages and, as such, displace the proper law of the contract. This aspect of the opinion raises two difficult issues. The first concerns whether the CISG's nonconformity provisions can be considered to represent international trade usages. The second is the question of timing, for the tribunal interpreted a contract concluded in 1979 on the basis of the CISG provisions that did not become law anywhere until 1988.
CISG as representing international trade usages
The arbitrators found that "there is no better source to determine the prevailing trade usages" than the terms of the CISG. Specifically, they found that, since the CISG had been ratified by seventeen countries, it "may be fairly taken to reflect the generally recognized usages regarding the matter of the nonconformity of goods in international sales."
In order to evaluate the tribunal's holding on this issue, the first question to ask is this: What law is to be used to determine the relevance of trade usages? Since the CISG was not applicable, the CISG provision on usages (Art. 9) did not apply. Rather the arbitrators should have looked to the proper law of the contract -- in this case, seller's law. Unfortunately, they did not discuss the criteria which seller's law uses to decide how to recognize trade usages and how to determine when they become part of a sales agreement. An examination of comparative law reveals that none of the criteria currently used either in international or in domestic sales law can justify the tribunal's conclusion that the CISG provisions on this point represent international trade usages.
CISG's own provisions on usages provides a convenient starting point. It provides that the parties are bound by any usages to which they have agreed, either expressly or by implication (Art. 9) (see footnote 6). An agreement may be implied only when the usage "is widely known to, and regularly observed by parties to contracts of the type involved in the particular trade concerned" (Art. 9(2)). In the contract at issue here, there was neither an express agreement concerning the time available for inspection and notice of defects nor a course of dealing between the parties (see footnote 7). Thus, as judged by CISG's own provision on usages, its conformity provisions can be considered to reflect trade usages only if they can be incorporated by implication into the sales agreement.
The fact that CISG has barely been in force for a lustrum does not, at least as a theoretical matter, disqualify its conformity provisions from representing international commercial usage. Some commentators have specifically suggested that, in arbitration, CISG may serve as a source for international usages (see footnote 8). Moreover, there is no suggestion in the text of Art. 9 that only "ancient" or "long established" usages may be held to be binding (see footnote 9).
Nonetheless, there are at least three reasons why CISG's inspection and notice provisions should not be take to represent commercial usages. First, they do not fulfill the requirement of being widely known and regularly observed. Second, usages are generally the spontaneous creation of merchants and not, as was CISG, the product of an international conference. Finally, it may be problematic to consider CISG's inspection and notice provisions to represent commercial usages in a case in which they conflict with an important policy of the proper law of the contract.
Under the Convention, only usages that are both "widely known" and "regularly observed" may be held to be binding on the parties. As the commentators have emphasized repeatedly, this language includes only those patterns of conduct that are so well known and widely practiced that, when considered objectively, they can be assumed to represent the expectations of both parties (see footnote 10). In order for a practice in international trade to be considered a usage, "a distinct majority of the relevant merchants must follow it." (see footnote 11).
CISG has by now been ratified by over thirty nations. Its provisions may therefore be considered to represent an emerging consensus about what an international sales law should include. Nonetheless, the limitations aspects of its conformity provisions cannot be said, in this case, to represent standard usage. The reason is simple -- neither party could possibly have expected those provisions to be applied when the CISG was not the governing law.
Comparative law would come to a similar result. In American law, a practice can be considered to be a usage of trade only if it can "justify an expectation that it will be observed with respect to the transaction in questions" (see footnote 12). German law is in agreement -- "as a rule, the legal order protects those who expect, and have the right to expect, that their contractual partner will respect the customs and usages" (see footnote 13).
The second problem is that commercial usages are not typically created of whole cloth by the lawgiver. Modern legal systems tend to respect as a usage only what can be considered to be an actual industry practice. In American law, for example, the test of a usage is its regularity of observance, as demonstrated either by repeated application or by industry-wide recognition and acceptance (see footnote 14). As far as the question of the time for inspection and notice is concerned, American courts permit delay only when the buyer establishes a uniform industry practice (see footnote 15). Before a German court may find that a particular practice has become a legally enforceable usage, there must be "a binding rule that reflects a continuous, uniform and voluntary practice in the trades concerned over an appropriate period of time" (see footnote 16 the masses. It is born of the repetition of the same acts, from a similar attitude. The case law emphasizes the requirement of generality" (see footnote 17). As is well known, the source of CISG's conformity provisions was not a uniform commercial practice, as found, for example, in standard terms frequently employed in international commercial contracts (see footnote 18). Rather, those provisions represent a careful political compromise between those States that demanded much shorter periods for inspection and notice of defects and those States that had hoped that the CISG would permit even longer periods (see footnote 19). In other words, there is no reason to believe that the CISG rules on this question rest on generalized trade practice. As a result, they do not fit into the category of trade usage.
There is a third reason why the category of trade usage is problematic in this type of case. The reason is that the CISG's inspection and notice provisions offer a vision of the economy of the sales contract that is clearly at odds with the vision implicit in the proper law of this contract. Before a trade usage should be permitted to displace a statutory provision, there should be some assurance that the usage does not conflict with one of the fundamental values implicit in the applicable law. "Customs and usages of trade can be respected only to the extent they are in harmony with the values of the legal order. . . ." (see footnote 20). For example, one American court refused to substitute for the UCC's inspection and notice provisions a usage that subverted the goal of the statute, name ly the final resolution of claims (see footnote 21). In the arbitral award noted here, for example, the short notice period mandated by seller's law may be ba lanced by significant advantages in terms of proof and presumptions for a buyer who claims that the goods are defective. Unfortunately, the arbitral tribunal chose not to raise the issue.
In sum, I conclude that, in this case, the arbitral tribunal incorrectly found that the CISG conformity provisions could be invoked as international trade usages for the purpose of displacing the inspection and notice provisions included in the proper law of the contract. I do not thereby wish to suggest that CISG's provisions can never assist an arbitrator who is called on to decide a case outside of CISG's specified sphere of application. In fact, the CISG solution may prove quite useful in certain situations. One of them, for example is where neither the agreement nor the proper law of the contract provides an answer to the question at hand. Another is where the judge or arbitrator is called on to suggest a reasonable term. In other words, CISG may recommend itself as a gap-filler or as the result of long and informed deliberation. Usages have occasionally fulfilled this function in American law (see footnote 22).
CISG as applied to contracts previously concluded
The CISG was approved at an international conference held in Vienna in 1980. By December 1986, eleven states had either ratified or acceded to it. The Convention went into force among those eleven states on January 1, 1988.
The contract at issue in this case was concluded in 1979, before the CISG took final shape in Vienna and almost a decade before the Convention became binding law anywhere. It therefore goes without saying that the CISG could not possibly govern this contract. There are at least two reasons for this. First, by its own terms, the CISG applies only to contracts concluded after it enters into force as applicable law (Art. 100(2)) (see footnote 23). The second point is more general. Developed legal systems generally apply to a contract the law that was in force at the time the contract was concluded. As the United States Supreme Court explained long ago and has constantly repeated, he laws which subsist at the time and place of the making of a contract, and where it is to be performed, enter into and form a part of it, as if they were expressly referred to or incorporated in its terms.'' This principal presumes that contracting parties adopt the terms of their bargain in reliance on the law in effect at the time the agreement is reached (see footnote 24). French law too prohibits retroactive legislation (see footnote 25). In the field of contractual obligation, the law in force at the moment the contract is concluded generally continues to govern the contract throughout its life, except when subsequent legislation specifies that it is to be effective immediately or when there is a compelling need for uniformity (see footnote 26). The German courts take the matter of non-retroactivity so seriously that they have decided to apply the former law to govern the continuing effects of contracts concluded between East German firms under the previous regime (see footnote 27).
In comparative law, there is thus relatively little controversy about questions relating to the law applicable to contractual relations ratione temporis. The notion of freedom of contract is thought to mandate that, absent very good reasons, the law in force at the time the contract is concluded will continue to govern that contract despite modifications in the applicable law. Thus, the CISG could not be applied, even by analogy, to the contract at issue in this case.
Of course, that is not the end of the matter, for the arbitrators in this case did not purport to apply the CISG directly. Rather they referred to the CISG as reflecting generally recognized usages. The issue then is whether the CISG can be said to reflect the relevant trade usages at the time the contract was concluded. As Judge Skelly Wright once observed, the mere fact that a statute is promulgated subsequent to the conclusion of a contract does not mean that the law was otherwise before the enactment (see footnote 28). Nonetheless, "usages can be taken into account only if they were actually controlling at the time the contract was concluded" (see footnote 29). Whatever the final decision, there should at least be some pleading and proof on the question of the usages at the time of the conclusion of the contract. The burden of proof on this issue should be on the party that seeks to rely on the usage (see footnote 30). Given the complex negotiations that took place at Vienna concerning the question of the notice of defects, those CISG provisions, especially the two-year cutoff, almost certainly do not represent a prior consensus.
Applying the CISG
When the buyer counterclaimed for damages due to defective delivery, the seller apparently responded that the buyer's claim was barred because the inspection and the notice of defects had not been timely. The arbitrators found that both the inspection and the notice were carried out in a commercially reasonable manner and held that the counterclaim was admissible. It is worth repeating that this result may well be appropriate to the facts of the case.
Nonetheless, there remains something troubling about the way the tribunal reached this result, and particularly about the arbitrators' approach to the CISG. They implicitly suggested that the CISG offers a set of rules of virtually unlimited flexibility that permit the decision-maker to reach whatever result is desired. In effect, the arbitrators seemed to pick and choose among the Convention's provisions instead of constructing them into a rigorous analytic framework and applying them as a whole.
Two aspects of the tribunal's approach to the Convention are particularly problematic. First, the arbitrators read the rigor and specificity out of the provisions concerning the timing of inspection and the notice of defects. Second, by the placement and discussion of the CISG provision concerning the seller's knowledge of defects, the arbitrators opened the door to an interpretation of the Convention that eliminates those timing limits altogether. The tribunal's approach raises concerns about whether the CISG will be interpreted in a way that permits those engaged in international commerce to rely on it. It is therefore worthwhile to devote some attention to each question.
The timing of inspection and the notice of defects
As the arbitrators correctly indicated, the CISG imposes two timing requirements on the buyer who inspects and gives notice of defects. First, the buyer must examine the goods, or have them examined, "within as short a period as is practicable in the circumstances" (Art. 38(1)) and must give notice of nonconformity "within a reasonable time" after the buyer discovers or ought to have discovered the problem (Art. 39(1)). Second, the outside limit for the notice of defective performance is set at two years from the date the buyer actually receives the goods (Art. 39(2)). What is problematic is the tribunal's attempt to construct and interpret each of these two timing requirements.
In reaching the conclusion that notice was given within a reasonable time, the arbitrators focused on the fact that the buyer had requested an expert to inspect the goods even before they arrived and that notice was given eight days after the expert's report was published. Here two comments are in order. The first concerns the eight days that seem to have caught the arbitrators' eye. It is important to note that there is nothing magic about eight days. There are numerous cases in which even greater speed is customary and necessary. Some of the relevant facts include whether the tools are perishable, whether they will be resold to third parties, whether the seller has the right to cure, or whether evidence of their condition would soon disappear (see footnote 31). In some circumstances, a buyer who waits eight days has waited too long (see footnote 32). "Reasonable, in many cases, will mean giving notice immediately" (see footnote 33). There is no substitute in sales cases for an analysis of the specific circumstances. Such an analysis might have been particularly useful with regard to the contract at issue here. As a general rule, the timing of notice for rejection should be significantly more rigorous than when the buyer has decided to accept the goods and seek damages (see footnote 34). In this case, the buyer chose to resell rather than reject. Nonetheless, since the buyer chose not to retain the goods, the speed of the notice may have been important to the seller. Unfortunately, the arbitrators did not see fit to discuss the issue.
The second problem concerns the use to which the arbitrators put the CISG provision regarding the two-year cutoff. They quoted the entire provision verbatim (Art. 39(2)). Yet that provision is almost certainly irrelevant to the case at hand. The arbitrators found that inspection took place upon the buyer's re ception of the goods and that only eight days transpired between inspection and notice. There is then no reason whatever to invoke the two-year rule. The reasoning behind the two-year cutoff is that, under the CISG, the reasonable time within which the buyer must give notice of defects does not begin to run until those defects have been or ought to have been discovered (Art. 39(1)). Without a cutoff date, the seller's liability for nonconformity would be completely open-ended. Since two years certainly had not run since delivery, the arbitrators must have had another reason to quote the provision. It is possible that they wished to use the two-year rule to demonstrate that the CISG is more permissive about inspection and notice then are domestic sales laws. Of course, the concept of "reasonableness" is necessary in a Convention that is designed to govern a wide variety of sales transactions. However, in any individual case, the CISG offers no greater flexibility as to timing than does any other developed commercial law. The arbitrators noted that the time limits in seller's law are "extremely short and specific". It is worth remembering that, in some cases, the CISG timing provisions may be even shorter. The flexibility that the Convention provides in order to accommodate a great variety of sales transactions should not be used as an excuse to expand the normal commercial under standing of reasonableness, which is that the goods must be inspected and notice given "without delay" (see footnote 35). Any necessary correction is available through the CISG provision (Art. 44) that permits appropriate relief for a buyer who presents a valid excuse for failing to meet the notice deadlines.
The seller's knowledge
The most mystifying aspect of the award is its conclusion. The arbitrators correctly noted that the rigorous limitations on inspection and notice cannot be enforced by a seller who "knew or could not have been unaware" of the non-conformity and did not disclose it to the buyer (Art. 40). In this case, the tribunal held, the seller forfeited the protection of the short inspection and notice periods because "it clearly transpires from the file and the evidence that the Seller knew and could not be unaware" of the nonconformity.
What is mystifying is why this paragraph is placed at the end of the award. If the seller truly knew of the defects and did not disclose them, there would have been no need for a close examination of the provisions on inspection and notice. Once a finding is made that the seller had knowledge of the defects, the timing issues vanishes. In other words, the tribunal's discussion of the CISG's inspection and notice provisions is dictum -- and totally irrelevant dictum at that.
The tribunal's method of analysis subverts the careful balance achieved at Vienna. By invoking the seller's knowledge of the defects merely in order to shore up the reasoning, the award creates the impression that such knowledge may be presumed, or that complete proof on the issue is not required, or that the seller's knowledge is simply another factor to be considered in the reasonableness calculus. In some legal systems, such as under French law, manufacturers and professional dealers are in fact presumed to be aware of the defects found in their products (see footnote 36). The French courts created such a presumption in order to permit an action in damages against all sellers for latent defects, an action permitted by the text of the Code only when the seller is aware of the defects (see footnote 37). This problem, of course, is not present in the CISG, which permits damage actions against sellers regardless of the degree of their knowledge. It is devoutly to be hoped that arbitrators and courts will not seize on the CISG provision concerning the seller's knowledge of nonconformity as a way of eliminating the carefully worded restrictions on the buyer's remedies.February 1994
* Professor of Law, Rutgers University Law School
1. "By applying the CISG as trade usages, regardless of whether it was applicable as law, the doors for the application of the CISG are wide open. It has to be assumed that this is not an exceptional case." Peter Schlechtriem, Vienna Sales Convention 1980 (recent developments) - Developed Countries" Perspectives, in Penna, L.R. (ed.), Current Developments in International Transfers of Goods and Services (6th Singapore Confrence on International Business Law, September 1992) Singapore, Butterworths Asia, 1994 (referring to ICC Case No. 5713 (1989)).
2. See J. Lew, Applicable Law in International Commercial Arbitration 300-47 (1978).
3. See R. David, Arbitration in International Trade nos. 3 86-87 at 340-42 (1985); De Ly, The Place of Arbitration in the Conflict of Laws of International Commercial Arbitration: An Exercise in Arbitration Planning, 12 NW. J. Int'l & Bus. 48, 62-69 (1991).
4. See EGBGB '28 II; see also Hague Convention on the Law Applicable to Contracts for the International Sale of Goods Art. 8(1) (1986). The idea was theorized by Schnitzler as "the law of the characteristic performance." See 2 A. Schnitzler, Handbuch des Internationalen Privatrechts 639-46 (4th ed. 1958) (translation by Hyland).
5. See Hague Convention on the Law Applicable to International Sales of Goods, Art. 4 (1955).
6. See P. Schlechtriem, Uniform Sales Law 40-41 (1986); Secretariat's Commentary to the Draft Convention, Art. 8, comment 2 (1979), in U.N. Conf. on CISG, Official Records 14, 19 (1981).
7. This is not a case, for example, in which the buyer had not previously been required to inspect immediately or to give notice of defects within the statutory period. Cf. OLG Düsseldorf, Nov. 12, 1982, in Internationale Rechtsprechung zu EKG und EAG 167-69 (P. Schlechtriem & U. Magnus eds. 1987).
8. See Audit, The Vienna Sales Convention and the Lex Mercatoria, in Lex Mercatoria and Arbitration 139, 144 (T. Carbonneau ed. 1990).
9. See J. Honnold, Uniform Law for International Sales no. 117 at 175-76 (2d ed. 1991) (hereinafter "Honnold").
10. See id. no. 119 at 177.
11. Junge, in P. Schlechtriem, Kommentar zum Einheitlichen UN- Kaufrecht Art. 9, no. 12 at 104 (1990) (translation by Hyland).
12. UCC '1-205(2).
13. K. Larenz, Allgemeiner Teil des deutschen Burgerlichen Rechts '1 Ic at 12 (7th ed. 1989) (hereinafter "Larenz") (translation by Hyland).
14. Posttape Associates v. Eastman Kodak Co., 450 F.Supp. 407, 410 (E.D. Penn. 1978).
15. See, e.g., GNP Commodities v. Walsh Heffernan Co., 420 N.E.2d 659, 665 (Ill. App. 1981) ("in the meat industry inspection is not made until the buyer is ready to deliver the pork bellies from the warehouse against a short sale futures contract on the Exchange"); La Villa Fair v. Lewis Carpet Mills, 548 P.2d 825, 832 (Kan. 1976) (the industry practice is not to inspect until a purchaser is found and is ready to use the goods); La Nasa v. Russell Packing Co., 198 F.2d 992 (7th Cir. 1952) ("the custom of the industry [is] not to test the standard ingredients used in baking prior to their use").
16. A. Baumbach & K. Duden, Handelsgesetzbuch '346 no. I at 842 (K. Hopt eds., 28th ed. 1989) (translation by Hyland) (emphasis added) (hereinafter "Baumbach & Duden").
17. Pedomon, Y a-t-il lieu de distinguer les usages et les coutumes en droit commercial?, 12 Rev. trim. dr. comm. 335, 345 (1959) (translation by Hyland).
18. Merchants' custom does not appear to have played as significant a role in the drafting of the CISG. Proponents of the notice rule, for example, do not appear to have based their arguments to any significant extent on custom. Reitz, "A History of Cutoff Rules as a Form of Caveat Emptor: Part I--The 1980 U.N. Convention on the International Sale of Goods", 36 Am. J. Com. L. 437, 471 n. 127 (1988).
19. Mr. DATE-BAH (Ghana) . . . said his delegation wished to see article [(39(1)] deleted and the matter regulated by paragraph 2. The sanction contained in paragraph 2 was too draconian. . . . Mr. TARKO (Austria) said that, under Austrian law, the time-limit for a buyer to give notice of non-conformity was eight days. Experience . . . showed that the provision was a good one. His delegation considered the two-year period specified in article 39(2) unduly long, but was prepared to accept it as a compromise. U.N. Conf. on CISG, Official Records 3 20, 322 (1981). For a history of the debate, see Reitz, id. for a summary of the different positions, see Eorsi, "A Propos the 1980 Vienna Convention on Contracts for the International Sale of Goods", 31 Am. J. Comp. L. 333, 349-51 (1983).
20. Larenz, supra note 13 at id.
21.See Steel & Wire Corp. v. Thyssen Inc. 20 UCC Rep. Serv. (Callaghan) 892, 896-97 (E.D. Mich. 1976).
22. See Restatement (Second) of Contracts '221 comment a (1981).
23. Another ICC arbitration award, also made in 1989, expressly held that CISG did not apply to a contract concluded in 1987, even though the Convention entered into force a few months later in both countries in which the parties' places of business were located. See ICC Case No. 281 (Aug. 26 1989), in 15 Y.B. Com. Arb. 96, 97 (1990).
24. United States Trust Co. v. New Jersey, 431 U.S. 1, 19-20 n. 17 (1977) quoting Home Building & Loan Assn. v. Blaisdell, 290 U.S. 398, 429-30 (1934), quoting in turn from Von Hoffmann v. City of Quincy, 4 Wall, 535, 550 (1867).
25. C. civ. Art. 2.
26. See J. Ghestin & G. Goubeaux. Traité de droit civil (Introduction générale) nos. 372-82 at 332-43 (3d ed. 2990).
27. See BGH, Oct. 14, 1992, in NJW 1993, 259, 260.
28. Williams v. Walker-Thomas Furniture Co., 350 F.2d 445, 448-49 (D.C. Cir. 1965).
29. Heinrichs, in Palandt, Bürgerliches Gesetzbuch '133 no. 221 (51st ed. 1992) (translation by Hyland).
30. See J. White & R. Summers, Uniform Commercial Code '3-3 at 128 n. 42 (3d ed. 1988); Baumbach & Duden, supra note 16, '346 no. 2 at 844.
31. See Honnold, supra note 9, no. 252 at 328-29 and no. 257 at 335-36.
32. See Spudco, Inc. v. Yick Lung Co., 22 UCC Rep. Serv (Callaghan) 394 (U.D. Dept. Ag. 1977) (Seven days too long for chipping potatoes); Max Bauer Meat Packer, Inc. v. U.S., 458 F.2d 88, 91 (Ct. Cl. 1972) (notice given three hours after inspection is unreasonable for flash frozen pork roasts); Miron v. Yonkers Raceway, Inc. 400 F.2d 112, 118 (2d Cir. 1968) (delay of notice for one day after delivery is unreasonable in the sale of a race horse); Mazur Bros. & Jaffe Fish Co., 3 UCC Rep. Serv. (Callaghan) 419, 423 (Vet. Admin. Contract App. 1965) (five days unreasonable for raw shrimp).
33. F. Enderlein & D. Maskow, International Sales Law Art. 39 no. 3 at 159 (1992) (emphasis in original).
34. See, e.g., Sono, in C. Bianca & M. Bonell, Commentary on the International Sales Law Art. 39, no. 2.4 at 309 (1987).
35. See, e.g., HBG '377 I ("unverzüglich").
36. See, e.g., Civ. 1 Jan. 19, 1965, D. 1965.389.
37. C. civ. arts, 1645-46; see 3 H. Mazeaud et al., Lecons de droit civil (Principaux contrats: vente et echange) no. 988 at 311-12 (M. de Juglart ed. 7th ed. 1987).
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