Guide to the use of this commentary
The Secretariat Commentary is on the 1978 Draft of the CISG, not the Official Text, which re-numbered most of the articles of the 1978 Draft. The Secretariat Commentary on article 38 of the 1978 Draft is quoted below with the article references contained in this commentary conformed to the numerical sequences of the Official Text, e.g., article 38 [draft counterpart of CISG article 40].
To the extent it is relevant to the Official Text, the
Secretariat Commentary on the 1978 Draft is perhaps the
most authoritative source one can cite. It is the
closest counterpart to an Official Commentary on the
CISG. A match-up of this article of the 1978 Draft
with the version adopted for the Official Text is
necessary to document the relevancy of the Secretariat
Commentary on this article. See the match-up for this article for a validation of citations to this
Secretariat Commentary. This match-up indicates that article 38 of the 1978 Draft
is substantively identical to CISG article 40.
Text of the Secretariat Commentary on article 38 of the 1978 Draft
[draft counterpart of CISG article 40] [Seller's knowledge of lack of conformity]
PRIOR UNIFORM LAW
ULIS, article 40.
Article 38 [draft counterpart of CISG article 40] relaxes the notice requirements of articles 36 and 37 [draft counterpart of CISG articles 38 and 39] where the lack of conformity relates to facts which the seller knew or of which he could not have been unaware and which he did not disclose. The seller has no reasonable basis for requiring the buyer to notify him of these facts (OFFICIAL RECORDS, p. 35).
[Folsom, Gordon & Spanogle state: "CISG Article 40 seems to create [an] obligation on seller ... to notify buyer of any non-conformity known to seller, or of which 'he could not have been unaware.' If seller does know of a defect and does not notify, then seller may not be able to rely on buyer's failure to inspect the goods quickly or notify seller of any discovered defects. Thus, even though buyer may lose its right to rely on a non-conformity because buyer did not inspect the goods 'within as short a time as is practicable' under Article 38, or did not under Article 39 notify seller of any defects, specifying the nature of the defects, within a reasonable time after it discovered or 'ought to have discovered' them, buyer's right to rely on the non-conformity revives if seller, in turn, knew of the non-conformity and did not notify buyer of it." International Business Transactions in a Nut Shell, 3d ed., West (1988), p. 89.]
[Schlechtriem adds: The circumstances which must be disclosed include not only the qualities of the goods themselves but also facts which could influence or alter the goods once they have left the seller's control. ..." Peter Schlechtriem, "Uniform Sales Law: The UN Convention on Contracts for the International Sale of Goods", Vienna: Manz (1986), p. 70).]
[Article 40 of the Convention is virtually identical to Article 40 of ULIS. Tunc's commentary on the ULIS provisions states: "In determining that the seller may not rely on the barring of rights provided for in Articles 38 and 39 if the lack of conformity relates to facts of which he knew, or of which he could not have been unaware of and did not disclose, Article 40 does no more than sanction a rule of good faith." André Tunc, 1 Hague Conf. Records 376 (1964).]