Prof. Giorgio F. COLOMBO

Lesson n. 9

 Art. 38 CISG  (1) The buyer must examine the goods, or cause them to be examined, within as short a period as is practicable in the circumstances  (2) If the contract involves carriage of the goods, examination may be deferred until after the goods have arrived at their destination  (3)…

 Art. 39 CISG  (1) The 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  (2) In any event, the buyer loses the right to rely on a lack of conformity of the goods if he does not give the seller notice thereof at the latest within a period of two years from the date on which the goods were actually handed over to the buyer, unless this time limit is inconsistent with a contractual period of guarantee

 The buyer has the duty to examine the delivered goods and to notify the seller on possible non-conformities properly and in a timely manner  If it does not, the seller's obligation to deliver the goods is deemed to be performed and the buyer has to pay the purchase price

 There are no universal standards of examination  However, examination must take place in accordance with a general principle of reasonableness  Different techniques in different trades: ◦ Samples ◦ Functionalities ◦ Usage...but

 “As short a period as is practicable in the circumstances”  Circumstances do matter, but they cannot be used as an excuse  Perishable items/durable items

 In July 2003, a German Buyer purchases from an Italian Seller ceramic materials  The ordered ceramic material are delivered on 12 August 2003 and 9 September 2003 to the Buyer, which immediately (on the same dates) resold the goods to installer A  The installer then proceeds to install the goods in the premises of final client B

 Then the Buyer receives a complaint from the final buyer of the goods, on 19 November 2003  The Buyer then brings legal action against the Seller  The Seller maintains that the Buyer failed to perform its duties under Art. 38  The Buyer claims that it was impossible to inspect the goods as they were immediately resold

 On 30 November and 4 December 2007, a Dutch Seller sold and delivered 24 pallets of Peruvian mangoes to a Swiss Buyer  The first pallet arrived on 1 December and the second pallet arrived on 5 December Upon arrival the pallets were stored in a cold storage facility with the purpose of reselling them

 On 11 December 2007 Buyer lodged a complaint with Seller via about the hidden defects of the mangoes, mainly internal fruit rot.  Seller rejected the complaint via , stating that Buyer did not notify Seller about the alleged non-conforming mangoes within a reasonable time. As a consequence Seller was unable to recall its products and (possibly) resell them

 Buyer asserts that the cause of the internal rotting must have been apparent during the mango harvesting in Peru, prior to the delivery  Seller asserts that subsequent to the delivery anything could have happened, which affected the mangoes’ conditions causing internal rotting to set in

 On 9 December 1996, a French Buyer purchased a batch of frost-resistant floor tiles from an Italian Seller, which it installed in May 1997  During the winter of 2001/2002, flakes and blisters appeared all over the tiles  According to the expert witness, that defect was due to the quality of the tiles which did not withstand frosting  Buyer brought legal action against Seller

 On first and second instance, the courts found that Buyer was entitled to get the money back  Notwithstanding Art. 39 CISG, since the frost- proof feature of the tiles could only be tested when they were set under freeze, this defers the starting point of the period up to when the defects were noticed  Seller challenges the decisions before the Supreme Court

 A Czech Buyer purchased from a Slovak Seller 12,000 kgs of potatoes  When the goods were being handed over, in late Friday evening, the driver and the warehouseman a detected some deterioration in the bags  The next working day, on Monday, the Buyer inspected the goods in detail and found out that the bags were wet and the process of amyloid fermentation was already initiated in the potatoes

 The Buyer immediately notified the Seller of the lack of conformity of the goods and informed her that he cannot take over the goods and is going to reject the goods because he considers this defect a fundamental breach of the contract  The Seller complaints that if the potatoes had been treated during the weekend the damage could have been prevented and brings legal action for the payment

 Art. 41  Rights of third parties  Art. 42  Rights of third parties related to intellectual property  However, the Buyer is not allowed to any remedy «if he knew of the right or claim of the third party and the nature of it»