Under the CISG, the requirements for a notice of non-conformity are that the buyer notifies the seller within a reasonable time after discovering or ought to have discovered the non-conformity. There are no formal requirements for the notice, but the notice must state the nature of the defect and be sufficiently specific to enable the seller to form an opinion on the alleged defect and to take any necessary follow-up action, such as obtaining evidence. In addition, the seller may exercise its right to rely on the breach of the duty to notify by, for example, acknowledging the non-conformity and taking back the goods or agreeing to repair them. In addition, the buyer has a duty of investigation under Article 38 of the CISG.
Key Requirements for Notice of Non-Conformity
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.
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 when they ought to have discovered it. What constitutes a “reasonable time” can depend on various factors, including the nature of the goods 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 they do not notify the seller within two years from the date the goods were handed over, unless this period is inconsistent with a contractual guarantee period.
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 fails to notify the seller within the reasonable time frame, they lose the right to rely on the non-conformity. This means they cannot claim remedies such as repair, replacement, or damages for the non-conforming goods.
- Exceptions: Article 40 CISG provides an exception where the seller knew or could not have been unaware of the non-conformity. In such cases, the seller cannot rely on the buyer’s failure to notify.
Reasonable Excuse (Article 44 CISG)
- Partial Remedies: If the buyer has a reasonable excuse for failing to give the required notice, they may still reduce the price or claim damages, excluding loss of profits.
Practical Considerations
- 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 substantiate the buyer’s adherence to the notice requirements.
Dutch law firm specialized in CISG and non-conformity
Understanding these provisions is crucial 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.
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. Committed to excellence, our Dutch lawyers provide superior legal services tailored to your distinct needs. You can reach our law firm in the Netherlands through our website, by email, or phone.
Our approachable and skilled staff at MAAK Attorneys will be delighted to assist you, arranging a meeting with one of our specialized attorneys in the Netherlands. Whether you need a Dutch litigation attorney or a Dutch contract lawyer in Amsterdam, we are eager to guide you through the legal intricacies and secure the most favorable results for your situation.
Contact details
Remko Roosjen | attorney-at-law (‘advocaat’)
+31 (0)20 – 210 31 38
remko.roosjen@maakadvocaten.nl
The information on this legal blog serves purely for educational purposes and should not be taken as specific legal guidance. While we endeavor to maintain accurate and current information, we do not assert its absolute completeness or relevance to your particular situation. For advice tailored to your legal concerns, we urge you to engage with a licensed attorney. Please note that the blog’s content may change without notice, and we are not liable for any inaccuracies or missing information.