LAWS6059 Chap.4 CISG Performance, Conformity and Notice
CISG Performance, Conformity and Notice
The seller must deliver goods and documents that satisfy the contract, while the buyer must pay, accept, examine and notify. This chapter links Article 35 conformity to Article 38 examination and Article 39 notice.
It distinguishes express description, ordinary purpose, disclosed particular purpose, sample and packaging, then asks when the defect existed, what inspection was practicable and whether the notice gave the seller useful detail in time.
What this chapter covers
- 01
Seller and buyer performance duties
- 02
Article 35 quantity, quality and description
- 03
Ordinary and disclosed particular purpose
- 04
Sample, model and protective packaging
- 05
Article 38 practicable examination
- 06
Article 39 specific and timely notice
Worked example · free
Connect a latent defect to examination and notice
- 1Identify the express food-grade quality and any ordinary-purpose failure.
- 1Ask whether the defect existed when risk passed.
- 1Define a practicable examination for sealed industrial liners.
- 1Measure notice from discovery and assess its specificity.
- 1Move only then to cure and compatible remedies.
Key terms
- Conformity
- The requirement that goods meet contractual and applicable default standards under Article 35.
- Particular purpose
- A specific use made known to the seller on which the buyer reasonably relies.
- Examination
- The buyer's practicable inspection process for identifying a lack of conformity.
- Notice
- A timely communication identifying the nature of the lack of conformity.
CISG Performance, Conformity and Notice FAQ
What does Article 35 require?
It begins with the contract's quantity, quality, description and packaging. Default tests can add ordinary use, a disclosed particular purpose, qualities of a sample or model and packaging adequate to preserve the goods. Select the test raised by the facts rather than listing every possibility.
How quickly must a buyer inspect?
Article 38 uses the contextual phrase as short a period as practicable. The type of goods, delivery arrangement and need for expert testing matter. A superficial check may be inadequate where opening, sampling or technical inspection is commercially expected.
What should a notice say?
It should identify the nature and extent of the non-conformity clearly enough for the seller to investigate or cure. A vague complaint that goods are bad may be insufficient. Record when the defect was discovered, who received notice and what detail was given.
Assessment move
Use a six-column worksheet: express contract requirement, relevant Article 35 standard, Article 36 risk point, examination step, discovery date and notice content. Start by copying the agreed description, quantity, quality, packaging and stated purpose; the contract remains the primary benchmark.
Only then test ordinary purpose, any particular purpose made known with reasonable reliance, sample or model, and usual or adequate packaging. For each alleged defect, identify whether it existed when risk passed even if it became visible later. This keeps conformity distinct from physical discovery.
Build one latent-defect exercise and one packaging exercise, then alter the buyer’s inspection opportunity, the place of delivery and the seller’s knowledge. Record when the buyer examined or ought to have examined, what a commercially reasonable examination would reveal, and when the defect was actually discovered.
Draft the notice in full rather than writing merely ‘buyer complained’: name the goods, identify the lack of conformity with enough specificity and date the communication. Compare that date with both the reasonable-time requirement and the two-year long-stop, while checking any contractual guarantee period. Add the Article 40 question where the seller knew or could not have been unaware and did not disclose.
Keep delivery obligations in a parallel timeline showing place, carrier handover and document transfer, especially where the contract involves carriage. If an Incoterm is present, use it to locate delivery and risk but do not let it replace the Convention’s conformity rules. During timed practice, delay all remedy discussion until examination and notice are complete. Then state which rights remain available and why.
Conclude each worksheet with four sentences: the contractual benchmark, the non-conformity, the procedural preservation of the complaint and the next remedy question. Review mistakes by category—wrong benchmark, wrong risk time, inadequate examination analysis or vague notice—so later practice targets the actual weakness rather than repeating the whole chapter indiscriminately.
Create a defect file containing a photograph description, inspection note, laboratory result and buyer email. Decide when each item reveals enough to trigger action and which facts still require investigation. Redraft the email until it identifies the non-conformity without speculation. This evidence-centred exercise connects the doctrinal timeline to the records a commercial client would actually need to preserve.
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