Q 44-1
(a) What were the relevant considerations of the court in applying Article 44 CISG in the German case (C 44-1)?
(b) What criteria would you consider in this case?
(a) The nature of the buyer’s business; a single trader, an artisan or a free professional might more readily rely on Article 44 CISG than a globally acting corporation.
(b) Buyer’s place of business, customs in existence there, buyer’s familiarity with requirements of giving notice, subjective factors such as illness or lack of experience, organisational difficulties, communication of notice to the wrong representative of the seller, nature of the goods and of the non-conformity.
Q 44-2
What does the Russian Arbitration case (C 44-2) say generally about the interpretation of Article 44 CISG?
The tribunal relies on the standard of reasonableness.
Q 44-3
(a) What was the factor relied upon in the ICC case (C 44-3) to establish excuse under Article 44 CISG?
(b) Who bore the burden of proof and for which reasons?
(a) The examination was carried out jointly by a neutral inspection body and the parties. The risk of non-discovery of the non-conformity should thus not be solely on the buyer.
(b) The burden of proof lies with the buyer according to the general principle that the party that is trying to rely on facts favourable to it has to prove these facts.
Q 44-4
What is the relationship between Articles 40 and 44 CISG?
If the prerequisites of Article 40 CISG are fulfilled, the seller may not at all rely on the buyer’s failure to give notice, ie the buyer has all remedies arising from the non-conformity. If the buyer has a reasonable excuse under Article 44 CISG, failure to give notice still results in the loss of the right to avoid the contract and to claim damages for loss of profit; the buyer, however, keeps its remedies for reduction of the price as well as the claim for damages for all losses except loss of profit. Thus, the buyer is better off if it can prove knowledge of the seller under Article 40 CISG.
