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Tribunale di Vigevano: Specific Aspects of the CISG Uniformly Dealt With to mean that they have excluded the CISG. 64 Indeed, in order for it to have the effect of excluding the CISG, the parties must have been aware of its applicability in the first place. If they were not aware of the CISG's applicability, the courts will have to apply the CISG. Nowadays, this appears [page 233] to be the prevailing view in legal writing 65 -- as well as in case law. A German court, 66 for instance, adopted this view when it stated that the parties arguing on the sole basis of a domestic law may be regarded as having excluded the CISG when “it results that their pleadings correspond to an agreement of the parties to exclude the Convention.” 67 If the “behavior during the proceedings is not based upon a conscious choice of a domestic sales law, but rather on the erroneous opinion that this law would anyway be applicable,” 68 the CISG would have to be applied by virtue of the principle iura novit curia, as expressly stated by the Tribunale di Vigevano. VI. Timely Notice of Non-Conformity 21 After having stated that the CISG was applicable, the court dealt with the issue of non- 22 conformity. Specifically, with the issue of whether the buyer had lost its right to rely on the lack of conformity due to an inadequate notice. As pointed out by the Tribunale di Vigevano, a notice is inadequate when it is not made 23 within a reasonable period of time after the non-conformity was or should have been discovered. The starting point of the court's discussion of the timeliness of the notice is the statement that the reference to the “reasonable time” must be considered a “general clause” 69 which obliges the courts to give regard to all the circumstances of a specific case. 70 One such circumstance is the nature of the goods, as expressly stated by the Tribunale di Vigevano, quoting prior decisions by a German court 71 and a Dutch court. 72 Thus, where the goods are perishable, the notice of non-conformity must be [page 234] given within 64 Ferrari, supra note 63, at 116-117. 65 Peter Schlechtriem, Aufrechnung durch den Käufer wegen Nachbesserungsaufwand-deutsches Vertragsstatut und UN-Kaufrecht, PRAXIS DES INTERNATIONALEN PRIVAT- UND VERFAHRENSRECHTS 256 (1996); see also SIEHR, supra note 63, at 80; Ferrari, supra note 63, at 116; Ulrich Magnus, Das UN-Kaufrecht: Fragen und Probleme seiner praktischen Bewährung, ZEITSCHRIFT FÜR EUROPÄISCHES PRIVATRECHT 823, 827 (1997); but cf. Eckhard Wolf, Die Rechtsprechung des Gerichtshofs zum Kaufrecht, WERTPAPIER-MITTEILUNGEN 41-42 (1998). 66 See, e.g., for instance, OLG Hamm, 9 June 1995, RECHT DER INTERNATIONALEN WIRTSCHAFT 689 (1996) (F.R.G.); LG Landshut, 5 April 1995, UNILEX (F.R.G.). 67 OLG Celle, 24 May 1995, UNILEX. 68 Id. 69 See also Pretura Torino, 30 January 1997, UNILEX. 70 See also Tribunale di Cuneo, 31 January 1996, UNILEX; OLG München, 8 February 1995, published online on the CISG website available at ‹http://www.jura.uni.freiburg.de/ipr1/cisg› OLG Düsseldorf, 10 February 1994, RECHT DER INTERNATIONALEN WIRTSCHAFT 53 (1995) (F.R.G.). 71 AG Augsburg, 29 January 1996, UNILEX. 72 RB Roermond, 19 December 1991, NEDERLANDS INTERNATIONAAL PRIVAATRECHT n.159 (1992). SiSU cisgw3.law.pace.edu/ 9
Tribunale di Vigevano: Specific Aspects of the CISG Uniformly Dealt With a shorter period of time than that within which notice concerning durable, non-perishable goods must be given. 73 The court also stated that, among the circumstances to be taken into account, one must 24 consider party autonomy. Because the CISG provisions dealing with the issue of conformity (Articles 35-44) are not mandatory" 74 the parties may freely agree upon a period of time within which the notice has to be given. 75 Thus, in the case at hand, the parties had not agreed upon a specific period of time, nor were the goods perishable, the court rightly stated that it could measure the timeliness of the notice more liberally. Nevertheless, because in the case at hand notice was given four months after the defects had been discovered, the notice could not be considered timely. 76 In order to reinforce this conclusion, the Tribunale di Vigevano referred to several foreign court decisions according to which a notice given three, 77 or even two months 78 after the discovery of the defects must be considered late. 79 VII. Specificity of the Notice of Non-Conformity 25 In order to preserve the right to rely on the lack of conformity, it is not sufficient, however, 26 that the buyer notifies the seller in time. According to CISG Article 39(1), the notice must also have specific content. It does not, however, have to have a specific form, as expressly stated by the Tribunale di Vigevano. 80 This specificity requirement was introduced in order to give the [page 235] seller the opportunity to decide how to react to the buyer's claim (by 73 See also RB Zwolle, 5 March 1997, UNILEX, as well as AG Kehl, 6 October 1995, NEUE JURISTISCHE WOCHENSCHRIFT RECHTSPRECHUNGS-REPORT 565 (1996), quoted by the Tribunale di Vigevano in its decision. 74 FERRARI, supra note 60, at 211; PILTZ, supra note 24, at 193-94; Ingeborg Schwenzer, supra note 23, at 420; Martin Welser, Die Vertragsverletzung des Verkäufers und die Folgen ihrer Verletzung, in DAS UNCITRAL-KAUFRECHT IM VERGLEICH ZUM ÖSTERREICHISCHEN RECHT 113 (Peter Doralt ed., Vienna 1985). 75 See also LG Gießen, 5 July 1994, NEUE JURISTISCHE WOCHENSCHRIFT 438 (1995), quoted by Tribunale di Vigevano. 76 In its decision, the Tribunale di Vigevano pointed out, that on a previous occasion the Dutch Supreme Court had stated that a notice given 4 months after the discovery of the defects must be considered late; Hoge Raad, 20 February 1998, NEDERLANDS JURISTENBLAD 566 (1998). 77 RB Roermond, 6 May 1994, UNILEX. 78 OLG Düsseldorf, 12 March 1993, UNILEX. 79 See, e.g., Camilla Baasch Andersen, Reasonable Time in Article 39(1) of the CISG - Is Article 39(1) truly a Uniform Provision?, REVIEW OF THE CISG 63 ff. (1998); Ulrich Magnus, Die Rügeobliegenheit des Käufers im UN-Kaufrecht, TRANSPORTRECHT-INTERNATIONALES HANDELSRECHT 29 ff. (1999); Anna Veneziano, Non-conformite des marchandises dans les ventes intemationales: etude de la jurisprudence atctuelle sur la CVIM, REVUE DE DROIT DES AFFAIRES INTERNATIONALES 39ff. (1997). 80 The notice of non-conformity does not have to meet any form requirements; it can even be given via telephone, as expressly pointed out by the Tribunale di Vigevano, which also quotes a German court decision which had stated the same on a previous occasion; LG Frankfurt, 9 December 1992, NEUE JURISTISCHE WOCHENSCHRIFT RECHTSPRECHUNGS-REPORT 325 (1993). SiSU cisgw3.law.pace.edu/ 10
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