Article 6

By permitting the parties to omit the Convention or deviate from its terms, the drafters upheld the
notion that party sovereignty is the principal source of regulations for international sales contracts.
[Germany's Bundesgerichtshof, 4 December 1996]

As a result, the drafters explicitly highlighted the Convention's non-mandatory nature10 and the
critical role that party autonomy plays in international commerce—specifically, in foreign sales. [12
October 2000, Landgericht Stendal, Germany]

Aticle 39

If the buyer alleges that provided products are defective, the notice duty imposed by article 39
applies [CLOUT case No. 720 [Netherlands Arbitration Institute, the Netherlands, 15 October
2002]]. (See full decision text) (ruling that article 39 does not applicable when the seller fails to make
delivery)]. suffer from a lack of conformity, regardless of the reason of such non-conformity.
[Aschaffenburg Landgericht, 20 April 2006]
Article 35 defines the idea of compliance. The vast majority of decisions involving the application of
the article 39 notice requirements involve claims that the goods were defective or otherwise not of
conforming quality under article 35, including claims that the goods were not adequately contained
or packaged as required by article 35 (2) (d) [Oberlandesgericht Saarbrücken, Germany, 17 January
2007]. Nevertheless, the article 39 notice obligation has been applied not only to breaches of the
quality obligations imposed by article 35, but also to a breach
of a contractual warranty made in derogation of article 35. [case No. 237 Arbitration Institute of the
Stockholm Chamber of Commerce, Sweden, 5 June 1998].
On the other hand, where the seller had agreed to reimburse
the buyer’s costs in servicing goods (television sets) resold
to the buyer’s customers to the extent that the defect rate in
the delivered goods exceeded five per cent, the court held
that this provision “does not amount to a warranty agreement
in the classical sense, to which articles . . . 38 and 39 CISG
would be applicable”; the buyer’s failure to examine and give
notice as required by articles 38 and 39 CISG, therefore, did
not relieve the seller of its obligations under this clause. [case No. 591 Oberlandesgericht
Düsseldorf, Germany, 28 May 2004] (see full text of the decision).
Article 39 has been applied where the claimed lack of conformity
was a failure to provide proper instruction manuals to accompany the goods, [case No. 343
[Landgericht Darmstadt, Germany, 9 May 2000] and where a buyer claimed that the seller’s
attempts to repair delivered goods (attempts made after the
buyer had originally notified the seller of a lack of conformity) were unsuccessful. [Hof van Beroep
Ghent, Belgium, 14 November 2008 (Volmari Werner v. Isocab NV)] A buyer’s allegation that the
seller breached not only its obligations under article 35 but also a duty to provide information about
the lack of conformity did not eliminate the buyer’s obligation to give notice under article 39,
according to one decision.[ Hof van Beroep Antwerpen, Belgium, 14 April 2004 (ING Insurance v.
BVBA HVA Koeling and Fagard Winand; HVA Koeling BVBA v. Fagard Winand and Besseling Agri-
Technic BV)], It has been held that article 39 requires notice when the buyer claims that an
inadequate quantity (as opposed to quality) of goods was delivered,10 as well as when the buyer
claims that the seller delivered too many goods. Each separate lack of conformity (with respect to
each delivery, in the case of instalment contracts) is subject to the notice requirement, and the fact
that the buyer may have given proper notice as to one defect does not necessarily mean it has given
valid notice as to all claimed non-conformities.

Article 82

Landgericht Düsseldorf, Germany, 11 October 1995, Unilex.

3 CLOUT case No. 422 [Oberster Gerichtshof, Austria, 29 June 1999].

Article 82 (1) states that, in order to preserve its right to avoid the contract or require the seller to
deliver substitute goods, an aggrieved buyer must have the ability to make restitution of goods that
the buyer received under the contract “substantially in the condition in which he received them”.
Several decisions have denied a buyer the right to avoid the contract because he could not meet this
requirement. Thus, where a buyer attempted to avoid a contract for the sale of flower plants because
the delivered plants allegedly were defective in appearance and colour, a court noted that the buyer
had lost the right to avoid under article 82 (1) because it had discarded some plants and resold
others. [Rechtbank Rotterdam, the Netherlands, 21 November 1996, Unilex. Presumably the resale
occurred after the buyer discovered or ought to have discovered the alleged lack of conformity].