Reproduced with permission from 15 Journal of Law and Commerce (1995) 175-199

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The Buyer's Notice of Lack of Conformity

Ironically, the CISG's provisions as to the buyer's duty of giving notice of the lack of conformity of the goods have been the subject of far more case law than the seller's failure to provide conforming goods (p. 88). Witz notes in particular the severity of German judges in applying Article 39 section 1 against the buyer (p. 89).[52]

In a case heard by a Stuttgart court, a German buyer of Italian shoes claimed that it had examined several samples, but that the defects could not have been discovered before the buyer's clients brought them to the buyer's attention. The shoes were delivered on May 25, 1988 and the buyer gave notice of lack of conformity of June 10, 1988. The court held that the buyer was in contravention of the "reasonable time" requirement of Article 39(1), reasoning that the buyer had had a duty to examine the goods minutely and scrupulously. The court noted in this context that the buyer previously had identified flaws in a prior shipment, and that it therefore had been on notice of problems [LG Stuttgart 31 August 1989]. [53] The court thus held notice to be tardy when it was given sixteen days after delivery.

In another case, a German buyer gave notice of defects in cucumbers sold by a Turkish seller only seven days after inspecting them [OLG Düsseldorf 8 January 1993]. [54] The parties' contract provided that the buyer's examination was to take place in Turkey rather than at the place of delivery. The judges found that the parties had derogated from Article 38 section 2, which provides that, "[i]f the contract involves carriage of the goods, examination may be deferred until after the goods have arrived at their destination." The court held that seven days constituted an unreasonably long time period (pp. 89-90).

In yet another case before a German court, notice of lack of conformity was deemed unreasonable where it was given two months after the delivery of the goods (mussels), and where the court found that the claimed defect in packaging could have been discovered immediately (p. 90) [OLG Frankfurt 20 April 1994]. [55] In other cases before German courts, notice of lack of conformity was held not to have been given within a reasonable time period when it was given more than two months after the delivery of shirts of the wrong size [OLG Düsseldorf 10 February 1994]; [56] and when it was given some three and a half months after the delivery of shoes with easily identifiable flaws [LG Berlin 16 September 1992]. [57]

Witz suggests that the German courts have been influence in their CISG decisions by (1) prior judicial solutions reached pursuant to the 1964 Hague Conventions, which required the buyer to give notice without delay[58] and (2) precedents decided under German national law (p. 91).

The problem of reasonable time periods has been further compounded by a German court's failure to differentiate between Article 39 section 1's reference to a reasonable time period in the context of giving notice of lack of conformity in goods, and Article 49's references to reasonable time periods for a buyer's giving notice of avoiding a contract (p. 100).[59]

Witz's criticism of the severity of German judges is magnified by his suspicion that a predictable reluctance on the part of judges in other Contracting States to be equally harsh may lead to disparities in the evolving case law of the various CISG signatory states. He particularly regrets that guidelines cannot be offered as to uniform time periods that would satisfy the CISG's requirements, a problem he attributes to the need for a case by case approach (pp. 90-91). One might suggest, however, that Witz's concern should be alleviated precisely because holdings disparate with respect to definite time periods, and analyzed on a case-by-case basis, implicate interpretive uniformity to a far lesser degree than disparities in matters less dependent on the particular circumstances of each case.

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FOOTNOTES

52. Article 39 § 1 provides that "[t]he buyer loses the right to rely on a lack of conformity of the goods if he does not give notice to the seller specifying the nature of the lack of conformity within a reasonable time after he has discovered it or ought to have discovered it."

53. LG Stuttgart, 31-08-1989, IPRax 1990, 317 et seq.

54. OLG Düsseldorf, 08-01-1993, NJW-RR 1993, 999 et seq.

55. OLG Frankfurt, 20-04-1994, RIW 1994, 593 et seq.

56. OLG Düsseldorf, 10-02-1994, DB 1994, 2942 et seq .

57. LG Berlin, 16-09-1992 (unpublished case) (p. 90 n.46).

58. For the severity of German decisions pursuant to LUVI [the 1964 Hague Conventions], Witz refers the reader to Schlechtriem & Magnus, Internationales Rechtsprechung zu EKG [ULIS] und EAG [ULF] (1987) (p. 18 n.14).

59. Article 49 § 2 provides that,

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