| ||1. Form of notice
This Article first lays down the principle that notice or any other kind of communication of intention (declarations, demands, requests, etc.) required by individual provisions of the Principles are not subject to any particular requirement as to form, but may be given by any means appropriate in the circumstances. Which means are appropriate will depend on the actual circumstances of the case, in particular on the availability and the reliability of the various modes of communication, and the importance and/or urgency of the message to be delivered. For an electronic notice to be “appropriate to the circumstances” the addressee must expressly or impliedly have consented to receive electronic communications in the way in which the notice was sent by the sender, i.e. of that type, in that format and to that address. The addressee’s consent may be inferred from the addressee’s statements or conduct, from practices established between the parties, or from applicable usages.
1. Seller A and buyer B have a longstanding business relationship in the course of which they have always negotiated and concluded their contracts by telephone. On discovering a defect in the goods supplied on one occasion, B immediately sends A notice thereof by e-mail. A, who does not regularly read its e-mail and had no reason to expect an e-mail from B, on discovering B’s notice three weeks after it had been sent rejects it as being too late. B may not object that it had given prompt notice of the defects since the notice was not given by a means appropriate to the circumstances.
2. Seller A and buyer B have a longstanding business relationship in the course of which they have regularly communicated by electronic means. On discovering a defect in the goods supplied on one occasion, B immediately sends A notice thereof by e-mail to an e-mail address different from the one normally used. A, who had no reason to expect an e-mail from B at that address, on dis¬covering B’s notice three weeks after it had been sent rejects it as being too late. B may not object that it had given prompt notice of the defects since the notice was not given by a means appropriate to the circumstances.
2. Receipt principle
With respect to all kinds of notices the Principles adopt the so-called “receipt” principle, i.e. they are not effective unless and until they reach the person to whom they are given. For some communications this is expressly stated in the provisions dealing with them: see Articles 2.1.3(1), 2.1.3(2), 2.1.5, 2.1.6(2), 2.1.8(1) and 2.1.10; 9.1.10 and 9.1.11. The purpose of paragraph (2) of this Article is to indicate that the same will also be true in the absence of an express statement to this effect: see Articles 2.1.9, 2.1.11; 2.2.9; 3.2.10, 3.2.11; 6.1.16, 6.2.3; 7.1.5, 7.1.7; 7.2.1, 7.2.2; 7.3.2, 7.3.4; and 8.3.
3. Dispatch principle to be expressly stipulated
The parties are of course always free expressly to stipulate the application of the dispatch principle. This may be appropriate in particular with respect to the notice a party has to give in order to preserve its rights in cases of the other party’s actual or anticipated non-performance when it would not be fair to place the risk of loss, mistake or delay in the transmission of the message on the former. This is all the more true if the difficulties which may arise at international level in proving effective receipt of a notice are borne in mind.
It is important in relation to the receipt principle to determine precisely when the communications in question “reach” the addressee. In an attempt to define the concept, paragraph (3) of this Article draws a distinction between oral and other communications. The former “reach” the addressee if they are made personally to it or to another person authorised by it to receive them. The latter “reach” the addressee as soon as they are delivered either to the addressee personally or to its place of business or (electronic) mailing address. The particular communication in question need not come into the hands of the addressee or actually be read by the addressee. It is sufficient that it be handed over to an employee of the addressee authorised to accept it, or that it be placed in the addressee’s mailbox, or received by the addressee’s fax or telex machine, or, in the case of electronic communications when it becomes capable of being retrieved by the addressee at an electronic address designated by the addressee (see Article 10(2) of the 2005 United Nations Convention on the Use of Electronic Communications in International Contracts).