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Under Article 39(1) CISG (the Vienna Sales Convention), a buyer loses the right to rely on a lack of conformity if it does not notify the seller, specifying the nature of the defect, within a reasonable time after it discovered it or ought to have discovered it. In any event, notice must be given within two years after the goods were actually handed over (Article 39(2)).
As a Dutch lawyer at MAAK Advocaten in Amsterdam, I advise foreign buyers and sellers on notices of non-conformity in sales with a Dutch party.
The Convention prescribes no form for the notice. If the buyer gives notice by means appropriate in the circumstances, a delay or error in transmission, or its failure to arrive, does not deprive the buyer of the right to rely on it (Article 27 CISG). The notice must state the nature of the non-conformity; in practice, it should be specific enough for the seller to assess the complaint and take action, such as securing evidence or arranging an inspection. Conduct of the seller, for example acknowledging the defect and taking the goods back or agreeing to repair them, can mean that it can no longer invoke late notice; that depends on the circumstances. The buyer must also examine the goods, or cause them to be examined, within as short a period as is practicable in the circumstances (Article 38).
Which requirements must a notice of non-conformity meet?
Inspection of Goods (Article 38 CISG)
- Duty to Inspect: The buyer must inspect the goods, or cause them to be inspected, within as short a period as is practicable under the circumstances.
- Timing: The timing for this inspection can vary based on the nature of the goods. For instance, perishable goods should be inspected immediately, while more complex items like machinery may require a longer period for a thorough inspection.
- Carriage: If the contract involves carriage of the goods, examination may be deferred until after the goods have arrived at their destination. If the buyer redirects or redispatches the goods without a reasonable opportunity to examine them, and the seller knew or ought to have known of that possibility when the contract was concluded, examination may be deferred until arrival at the new destination (Article 38(2) and (3) CISG).
Notification to the Seller (Article 39 CISG)
- Reasonable Time: The buyer must notify the seller of the lack of conformity within a reasonable time after discovering it or after the moment it ought to have discovered it (Article 39(1) CISG). The Convention sets no fixed number of days. What is reasonable depends on the circumstances, such as the nature of the goods and the defect, and the specifics of the transaction.
- Specificity: The notice must specify the nature of the non-conformity. General complaints are insufficient; the buyer must detail the specific issues with the goods.
- Two-Year Limit: Regardless of when the non-conformity is discovered, the buyer loses the right to rely on it if it does not notify the seller at the latest within 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 (Article 39(2) CISG). A reasonable excuse under Article 44 does not help against this limit; Article 40 can.
Addressee of the Notice
- To the Seller: The notice must be given directly to the seller. Notices sent to third parties, such as the manufacturer or intermediaries without authority, are insufficient.
- Authorized Agents: Notice to an agent of the seller who is authorized to receive such notices is valid.
Consequences of Failure to Notify
- Loss of Remedies: If the buyer does not give notice in time, it loses the right to rely on the non-conformity. In principle, it can then no longer claim repair, replacement or damages, reduce the price or avoid the contract for that defect, subject to Articles 40 and 44 CISG.
- Exceptions: The seller cannot rely on Articles 38 and 39 if the lack of conformity relates to facts of which it knew or could not have been unaware and which it did not disclose to the buyer (Article 40 CISG).
Reasonable Excuse (Article 44 CISG)
- Partial Remedies: Notwithstanding Article 39(1), a buyer that has a reasonable excuse for its failure to give the required notice may still reduce the price in accordance with Article 50 or claim damages, except for loss of profit (Article 44 CISG). Avoidance, repair and replacement are not available on this basis, and Article 44 does not apply to the two-year limit of Article 39(2).
What should you watch out for in practice?
- Prompt Action: Given the strict requirements and potential loss of remedies, it is advisable for buyers to inspect goods promptly and notify the seller immediately upon discovering any non-conformity.
- Documentation: keeping detailed records of inspections and communications with the seller can help prove the buyer’s adherence to the notice requirements.
- Contract terms: Parties may derogate from the provisions of the Convention, including Article 39 (Article 6 CISG). Check your contract and general terms for a fixed complaint period or a specific form of notice.
How does the CISG notice requirement compare with the Dutch duty to complain?
The CISG applies to contracts for the sale of goods between parties whose places of business are in different contracting states (Article 1(1)(a) CISG), subject to the exclusions in Article 2 (for example goods bought for personal, family or household use, sales by auction, and sales of ships, aircraft or electricity), and also where the rules of private international law lead to the law of a contracting state (Article 1(1)(b)). The Netherlands is a contracting state. A choice of Dutch law therefore does not in itself exclude the CISG, because Dutch law includes the Convention; the parties can exclude its application (Article 6).
If the CISG does not apply, the Dutch duty to complain (klachtplicht) in Article 7:23 Dutch Civil Code applies. The buyer can no longer rely on a lack of conformity if it did not notify the seller within a reasonable time (binnen bekwame tijd) after it discovered it or reasonably ought to have discovered it. If the goods lack a quality that the seller said they had, or if the defect relates to facts that the seller knew or ought to have known but did not disclose, notice must be given within a reasonable time after actual discovery (Article 7:23(1), second sentence). In a consumer sale, notice must be given within a reasonable time after actual discovery, and notice within two months after discovery is in time (third sentence).
Two differences stand out. First, the CISG has an outer limit of two years after the goods were handed over (Article 39(2)); Article 7:23 has no such cut-off. Second, under Dutch law, claims and defences based on the non-conformity are time-barred two years after the buyer gave notice (Article 7:23(2)), although the buyer can still invoke its right to a price reduction or damages as a defence against a claim for payment of the price. That period does not run while the buyer cannot exercise its rights because of the seller’s intent (Article 7:23(3)). The CISG itself contains no limitation period.
Frequently asked questions about notice of non-conformity under the CISG
What is a reasonable time for notice under Article 39 CISG?
The Convention does not set a fixed period. The reasonable time starts when the buyer discovered the defect or ought to have discovered it (Article 39(1) CISG), which depends on the examination the buyer had to carry out within as short a period as is practicable (Article 38). What is reasonable depends on the circumstances, such as the type of goods and whether the defect was easy to detect. To be safe, give notice as soon as you find a defect.
What must a notice of non-conformity under the CISG contain?
The notice must specify the nature of the lack of conformity (Article 39(1) CISG). Describe which goods are affected and what is wrong with them, as concretely as you can. The Convention prescribes no form, but a written notice makes it easier to prove that and when you gave notice.
Is the two-year limit in Article 39(2) CISG absolute?
Almost. The buyer loses its rights if it does not give notice within two years after the goods were actually handed over, unless that period is inconsistent with a contractual period of guarantee (Article 39(2) CISG). The seller cannot rely on the limit if Article 40 applies, and parties may agree otherwise (Article 6). A reasonable excuse under Article 44 does not extend it.
What does Article 40 CISG mean for the seller?
A seller cannot rely on late examination or late notice if the lack of conformity relates to facts of which it knew or could not have been unaware and which it did not disclose to the buyer (Article 40 CISG). In that case, the buyer keeps its remedies even if it complained late.
Does the CISG or the Dutch duty to complain apply to my sale?
The CISG applies to sales of goods between parties whose places of business are in different contracting states (Article 1(1)(a) CISG), subject to the exclusions in Article 2, even if the contract chooses Dutch law, unless the CISG is excluded (Article 6). Otherwise, if Dutch law applies, the buyer must complain within a reasonable time under Article 7:23 of the Dutch Civil Code.
Primary sources
- United Nations Convention on Contracts for the International Sale of Goods (CISG): Articles 1, 6, 27, 38, 39, 40 and 44
- Dutch Civil Code, Book 7 (Burgerlijk Wetboek Boek 7): Article 7:23
When do you need a Dutch lawyer for a CISG non-conformity claim?
As soon as you discover a defect, or the seller rejects your notice as late or too vague. Under Article 39 CISG the buyer loses its rights if it does not give notice specifying the nature of the defect within a reasonable time, and in any event within two years after the goods were handed over. I advise on drafting the notice and on the claim that follows. Understanding these provisions is essential for buyers and sellers engaged in international trade under the CISG, ensuring that they can effectively manage and resolve issues related to non-conforming goods. Scope and application of the convention are set out in the UN Convention on Contracts for the International Sale of Goods.
For any legal inquiries or support in the Netherlands regarding the CISG and non-conformity, please feel free to contact our adept team at MAAK Advocaten.
