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Cite as Sono, in Bianca-Bonell Commentary on the International Sales Law, Giuffrè: Milan (1987) 322-323. Reproduced with permission of Dott. A Giuffrè Editore, S.p.A.

Article 43

Kazuaki Sono

1. History of the provision
2. Meaning and purpose of the provision

ARTICLE 43

(1) The buyer loses the right to rely on the provisions of article 41 or article 42 if he does not give notice to the seller specifying the nature of the right or claim of the third party within a reasonable time after he has become aware or ought to have become aware of the right or claim.

(2) The seller is not entitled to rely on the provisions of the preceding paragraph if he knew of the right or claim of the third party and the nature of it.

1. History of the provision

     1.1. - Paragraph (1) is a mere consolidation into one paragraph of UNCITRAL draft Articles 39(2) and 40(3) which had similar purports. Paragraph (2) has been added as a result of a proposal by the Federal Republic of Germany (Official Records, I, 110-111; II, 209, 350). The most relevant provision in ULIS is Article 52(3) which is however substantially different.

2. Meaning and purpose of the provision

     2.1. - The provision contained in Article 43(1) is comparable to that of article 39(1) concerning the requirement of notice where non-conforming goods are handed over. Under Article 41, the seller is required to deliver goods free from any right or claim of a third party. For cases where third-party claims are based on industrial or intellectual property, special provisions have been made in Article 42. Under Article 43(1), the buyer is required to send a notice to the seller within a reasonable time after he has become aware or ought to have become aware of the right or claim of the third party over the goods and must specify the nature of such a right or claim. As in Article 39(1), the buyer's failure to give the required notice will result in the loss of his [page 322] right to otherwise available remedies based on the breach of the seller's obligations under Articles 41 and 42. There is, however, no such time-limit for giving notice as provided in Article 39(2) (with regard to an important modification to the provision of Article 43(1), see Article 44).

     2.2. - In case of rights or claims based on industrial or intellectual property, the seller is not required to deliver goods free from all of such rights or claims but only from certain rights or claims (Article 42). Accordingly, where a particular third party claim does not relate to claims covered under Article 42, it follows that such a claim will technically not be governed by Article 43(1). Nevertheless, the notice would have to be given in any event because the failure to do so would probably result in a breach of the general obligation to co-operate with the seller in mitigating damages (Articles 7(2) and 77; see also commentary on Article 44, infra, 2.5., 3.1.) (Official Records, II, 350).

     2.3. - The provision contained in Articled 43(2) is comparable to Article 40 which dispenses with the buyer's notice where the buyer knew of the non-conformity of the goods. Considerations behind the requirement of the buyer's notice will no longer be valid if the seller himself were aware of the existence of the right or claim of the third party concerned. In such case, it would be unfair to deprive the buyer of his remedy on grounds of non-notification. [page 323]


Pace Law School Institute of International Commercial Law - Last updated January 31, 2005
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