CISG에 있어서의 매수인의 물품검사⋅통지의무에 관한 쟁점 검토

Abstract

Buyer must examine the goods and give notice of the lack of conformity, if any, to the seller in order to retain his right to rely on the fact. The concept of the lack of conformity contains the conformity of quality, quantity, description, delivery of different goods and documents. The buyer’s examination of goods forms the basis of his obligation to notify the seller of defects under Article 39(1) in the CISG. And the obligation to examine the goods can give seller the econd opportunity to complete his duty fully, if possible, by delivering the missing goods or ubstitute goods, by repair, or by educing the buyer’s loss in some other way. As the determining of ‘within as short a period as is practicable in the circumstances’ in Article 38 is depending on the circumstances concerned with the particular case. So the term ‘reasonable time’ has proven too imprecise due to its flexibility without defined uniform scale to assist the practitioners in a uniform application of Art. 39(1). Article 38 is silent about the method the buyer should employ in examining the goods. In general, the manner of inspection will depend on the parties’s agreement, trade usages and practices in the absence of such indicators, a reasonable examination, through and professional examination is required. When determining which requirement must be satisfied by the buyer is specifying the nature of any lack of conformity, a mixed objective-subjective standard should be applied, which has regard to the respective commercial situation of the buyer and seller, to any cultural differences, but above all, to the nature of the goods. The obligations of the seller to deliver the goods which are free from third party rights or claims are examined, including the claims of third party for general rights, the claims for intellectual or industrial property, the buyer’s obligation to give notice of the third party claims compared with the obligation to notice the lack of conformity of the goods. The purpose of the Article 38 and 39(1) deadline for examination and notice of the lack of conformity is to allow the buyer an opportunity to discover defects before the buyer resells, and permit prompt clarification of whether the buyer accepts the goods as conforming.