CISG Article 38 ULIS Article 38
1. The buyer must examine the 1. The buyer shall examine the
goods, or cause them to be goods, or cause them to be
examined, within as short a examine, promptly. ["promptly" =
period as is practicable in the "performed within as short a
circumstances. period as possible, in the
circumstances, from the moment
2. If the contract involves when the act could reasonably be
carriage of the goods, performed" (ULIS Article 11)]
examination may be deferred
until after the goods have 2. In case of carriage of the
arrived at their destination. goods the buyer shall examine
them at the place of destination.
3. If the goods are redirected
in transit or redispatched by 3. If the goods are redespatched
the buyer without a reasonable by the buyer without transhipment
opportunity for examination by and the seller knew or ought to
him and at the time of the have known, at the time when the
conclusion of the contract the contract was concluded, of the
seller knew or ought to have possibility of such redespatch,
known of the possibility of examination of the goods may
such redirection or redispatch, be deferred until they arrive at the
examination may be deferred new destination.
until after the goods have
arrived 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.
Comments on the match-up
"[CISG] Article 38 . . . can be traced back to Article 38 ULIS. However, whereas Article 38(1) ULIS provided that the goods were to be examined 'promptly', the CISG merely requires examination to take place 'within as short a period as is practicable in the circumstances'. . . . A further difference is that, unlike Article 38(3) ULIS, Article 38(3) CISG permits deferral of an examination even where goods are redispatched with transshipment. That was intended to deal with the case where goods are carried in containers and it would be unreasonable to open them before arrival at their ultimate destination. Finally, the CISG omits the rule in Article 38(4) ULIS, under which, in the absence of the parties' contrary agreement, the methods of examination are to be governed by the law or usage of the place where the examination is to be effected. It was considered that the place of examination might be a matter of chance and unforeseeable by the parties at the time of the conclusion of the contract; moreover, there might be no link whatsoever to the parties themselves; nor was it clear whether Article 38(4) ULIS referred to international usage in the sense of Article 9 or merely to local usages. Finally, the view was taken that in that case the parties' agreement would be overridden by any mandatory provisions of the law of the place of examination.
"The changes made in relation to ULIS as much as the new Article 44 illustrate a clear intention to make the obligation to examine the goods and to notify complaints not only more flexible than under ULIS, but also more favourable to the buyer. This was in response to concerns voiced especially by developing countries. That factor must be taken into account when interpreting Articles 38 and 39. Reference cannot therefore simply be made to strict case law on ULIS (particularly of the German courts), which was inspired by the treatment of such matters in the Germanic legal systems." Schwenzer in Commentary on the UN Convention on the International Sale of Goods, Peter Schlechtriem ed. (Oxford 1998) 300-301 [citations omitted].
Pace Law School Institute of
International Commercial Law
- Last updated June 22, 1998