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A notice of non-conformity is the buyer’s formal notification to the seller that delivered goods are defective or otherwise fail to match the contract. Under Article 39 of the CISG, the buyer must specify the nature of the lack of conformity within a reasonable time after discovery. Otherwise, the buyer loses most remedies for the non-conforming goods.
For importers and exporters, this single procedural step often decides the outcome of a quality dispute. Therefore, this guide explains when goods are non-conforming and what the notice must say. It also covers the deadlines that apply and the remedies a timely notice preserves. Finally, it compares the CISG rule with the UCC approach used in domestic US sales.
What Makes Goods Non-Conforming under CISG Article 35
Article 35 of the CISG sets the benchmark for conformity. In short, the seller must deliver goods of the quantity, quality, and description the contract requires, packaged in the manner the contract specifies. Moreover, unless the parties agreed otherwise, the goods must be fit for their ordinary purpose. They must also suit any particular purpose the buyer made known to the seller when the contract was concluded. Goods must also match any sample or model the seller provided. The full requirements appear in the official text of the Convention published by UNCITRAL.
Importantly, under Article 36 the seller is liable for any lack of conformity that exists when risk passes to the buyer. This is true even if the defect only becomes apparent later. For a broader overview of how the treaty governs cross-border sales, see our practical guide to the CISG.
The Duty to Examine the Goods under Article 38
Article 38 requires the buyer to examine the goods, or have them examined, within as short a period as is practicable in the circumstances. In practice, this means prompt inspection when the carrier makes delivery. If the contract involves carriage, the examination may be deferred until the goods reach their destination. Likewise, the buyer may redirect goods in transit or redispatch them without a reasonable chance to inspect. In that case, examination may be deferred until the goods arrive at the new destination, if the seller knew of that possibility when contracting. Prompt examination also starts the clock for the notice of non-conformity.
How to Give a Valid Notice of Non-Conformity
Article 39(1) requires the buyer to give the seller a notice specifying the nature of the lack of conformity. Consequently, a vague complaint is not enough. The UNCITRAL Digest of case law under Article 39 collects decisions rejecting general statements such as “the goods are defective.” Courts faulted those notices for failing to identify which goods were affected and how. An effective notice of non-conformity identifies the shipment or order, describes each defect with reasonable precision, and states the quantity affected.
The Convention does not prescribe a particular form for the notice. However, a written notice sent through a verifiable channel is the prudent course, because the buyer bears the burden of proving that it gave notice and when. Under Article 27, a properly dispatched notice is effective even if it is delayed or lost in transmission.
Deadlines for the Notice of Non-Conformity
The buyer must give the notice within a reasonable time after it discovered, or ought to have discovered, the defect. What is reasonable depends on the circumstances. For perishable goods, only days may be available. For durable equipment, longer periods are accepted. German courts, whose decisions strongly influence CISG practice, have often used about one month as a working benchmark. By contrast, the CISG Advisory Council’s Opinion No. 2 stresses that no fixed period applies in all cases. Because national approaches vary, the safest course is to notify immediately.
In addition, Article 39(2) imposes an absolute cut-off. A buyer that fails to give notice within two years loses the right to rely on the lack of conformity. The two-year period runs from the date the goods were actually handed over. However, a contractual period of guarantee can displace this limit.
Exceptions That Can Save a Late Non-Conformity Notice
Two safety valves soften the rule. First, Article 40 strips this protection from a seller that acted in bad faith. It covers facts the seller knew, or could not have been unaware of, and never disclosed. Second, Article 44 preserves limited relief where the buyer has a reasonable excuse for its failure. In that case, the buyer may still reduce the price under Article 50 or claim damages other than lost profit. Notably, Article 44 excuses only the reasonable-time requirement of Article 39(1). It does not extend the two-year cut-off.
Buyer Remedies Preserved by a Timely Notice
A buyer that examines the goods and sends a timely non-conformity notice keeps the Convention’s full toolkit of remedies:
- Performance and cure. The buyer may require the seller to remedy defects by repair under Article 46. Where the non-conformity amounts to a fundamental breach, the buyer may demand substitute goods.
- Avoidance. Under Article 49, the buyer may declare the contract avoided if the breach is fundamental.
- Price reduction. Article 50 lets the buyer reduce the price in proportion to the reduced value of the goods.
- Damages. Articles 74 to 77 allow recovery of foreseeable losses, subject to the duty to mitigate.
The seller, for its part, may have a right to cure defects at its own expense under Articles 37 and 48. As a result, prompt communication benefits both sides.
Lessons from Case Law on Non-Conformity Notices
US courts apply these rules strictly. In Chicago Prime Packers, Inc. v. Northam Food Trading Co., 408 F.3d 894 (7th Cir. 2005), a Canadian buyer of frozen pork ribs withheld payment after a downstream customer reported spoilage. The Seventh Circuit affirmed judgment for the seller. The buyer had not proven that the goods were non-conforming when risk passed. Nor had it shown timely examination and notice under the Convention. In other words, without timely examination and notice, even a genuine quality problem can become legally irrelevant.
CISG vs. UCC: Two Different Notice Regimes
Domestic US sales are governed by Article 2 of the Uniform Commercial Code rather than the CISG. Under UCC § 2-607(3)(a), a buyer who has accepted goods must notify the seller of breach within a reasonable time. The clock runs from when the buyer discovers, or should have discovered, the breach. A buyer that stays silent is barred from any remedy. The commercial logic is similar. Nevertheless, the regimes differ in detail. The CISG demands that the notice specify the nature of the defect, adds the two-year outer limit, and ties several remedies to fundamental breach. Parties should therefore confirm which regime governs before a dispute arises, since the Convention applies automatically unless excluded.
| Issue | CISG | UCC Article 2 |
|---|---|---|
| Governing provisions | Articles 38–39 | § 2-607(3)(a) |
| Content of notice | Must specify the nature of the lack of conformity | Must notify the seller of the breach |
| Timing | Reasonable time after discovery, capped at two years from handover | Reasonable time after the buyer should have discovered the breach |
| Rejection standard | Avoidance only for fundamental breach | Perfect tender rule under § 2-601 |
| Seller’s cure | Articles 37 and 48 | § 2-508 |
Non-Conforming Tender under the UCC Perfect Tender Rule
The UCC treats a non-conforming tender more strictly than the Convention. UCC § 2-601 sets out the perfect tender rule. Under it, a buyer may reject the whole delivery when goods or tender fail in any respect to conform. The buyer may instead accept everything, or accept any commercial unit and reject the rest. Moreover, a seller that makes a defective tender before the delivery date may cure it. Under § 2-508, the seller may make a conforming tender within the contract time.
The CISG contains no perfect tender rule. Instead, the buyer generally takes delivery of the goods, preserves its rights through a timely and specific notification, and reserves avoidance for fundamental breach. Consequently, a cross-border sales compliance program should track both regimes. That means tender and rejection standards under domestic law, plus examination, notification, and delivery-documentation duties under the Convention. A prompt notification of non-conformity remains the linchpin under both systems.
Practical Steps for Importers and Exporters
Disciplined receiving practice wins these disputes. Accordingly, the compliance checklist below turns the non-conformity notice rules into five practical steps:
- Inspect on arrival. Build examination into receiving and compliance procedures, and use independent surveyors for bulk or perishable cargo.
- Document everything. Photographs, inspection reports, delivery receipts, and quality logs prove both the defect and the date of discovery.
- Notify in writing immediately. Identify the contract, the affected goods, and the specific defects. Send the message through a channel that generates proof of dispatch.
- Check the contract. Inspection terms, guarantee clauses, and cut-off periods can modify the default CISG rules. Indeed, Article 6 allows parties to derogate from nearly all of its provisions. Confirm compliance with any contractual notice clause before relying on the Convention’s defaults.
- Plan for escalation. If the seller disputes the claim, a clean record strengthens the buyer’s position in negotiation, arbitration, or litigation. For more, see our overview of strategies for resolving cross-border trade disputes.
Frequently Asked Questions
The buyer must notify the seller within a reasonable time after it discovered, or ought to have discovered, the defect. In any event, the notice must be given within two years of handover. For perishable goods the window may be only days, so immediate written notice is the safest practice.
The buyer generally loses the right to rely on the lack of conformity. That eliminates remedies such as avoidance, price reduction, and damages. Strict compliance with both the reasonable-time rule and the two-year cut-off is therefore essential, and limited relief survives only if Article 40 or Article 44 applies.
No. The CISG does not require a specific form, and an oral notice can be effective. However, a written notice is strongly recommended because the buyer must prove the content and timing of its communication if the dispute escalates.
Yes. Article 6 of the Convention allows the parties to derogate from or vary nearly all of its provisions. Contracts often shorten or extend inspection and notification periods. Therefore, always check the sales agreement first and align internal compliance procedures with it.
Conclusion
The notice of non-conformity is a modest procedural requirement with outsized consequences. As this guide has shown, the winning pattern is simple. Inspect promptly under Article 38, send a specific and timely notice under Article 39, and document each delivery. A buyer that does so preserves the full range of CISG remedies for non-conforming goods. A buyer that delays may forfeit an otherwise strong claim.
Are you dealing with defective or rejected goods in a cross-border transaction? Do you want your sale contracts and receiving procedures reviewed before a problem arises? Contact our team to discuss a strategy tailored to your situation.
