- Republic of Korea
- Seoul Central District Court
NOTICE OF LACK OF CONFORMITY - TIME OF NOTICE - FAILURE TO GIVE TIMELY NOTICE (ART. 39 (1) CISG)
[CLOUT Case NO. 1641; abstract prepared by Haemin Lee, National Correspondent].
In this case, the plaintiff buyer purchased forelegs of pork from the defendant seller. The plaintiff made a claim for damages and reduction of sales price on the basis of lack of conformity with the contract due to the defendant’s failure to eliminate lymphatic glands, which had resulted in the goods changing colour.
The Court found that the defendant had failed to deliver goods that were compatible with the description in the contract under Article 35(1) CISG. Consequently, absent extraordinary circumstances, the defendant was liable in principle, and therefore would have to reduce the sales price and pay damages for the loss.
However, the defendant argued that the plaintiff was precluded from claiming reduction of sales price and damages on the grounds that the plaintiff had failed to diligently examine the goods under Article 38 CISG and did not give the defendant notice specifying the nature of the lack of conformity in accordance with Article 39 CISG.
The Court considered that, under Articles 38 and 39 CISG, the buyer must: (1) examine the goods within as short a period as is practicable in the circumstances after the goods have arrived at their destination; (2) give notice to the seller specifying the nature of the lack of conformity within a reasonable time after he discovered it or ought to have discovered it; and (3) if it fails to give the seller such notice, the buyer loses the right to rely on the lack of conformity of the goods to claim damages or a reduction of sales price. The examination of the goods should be reasonable in light of the circumstances, consistent with commercial practices and adequate to discover any potential defect in the goods. Notice of the lack of conformity must have been given within a reasonable time after the buyer discovered it or ought to have discovered it following examination.
As the plaintiff had only notified the defendant of the lack of conformity more than ten months after receiving the goods, the Court considered that it had not given notice within a reasonable time after it had discovered or ought to have discovered the lack of conformity. The plaintiff had consequently lost the right to rely on the lack of conformity of goods. Therefore, the Court accepted the defendant’s argument and rejected the plaintiff’s claim.
Original in Korean:
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Case Law on UNCITRAL texts (http://www.uncitral.org/uncitral/en/case_law.html) A/CN.9/SER.C/ABSTRACTS/177}}