Moreover, Article 39 imposes an obligation to the buyer, which may only be affected if the buyer himself is observing good faith. The Article 39 states that: (1) The buyer loses the right to rely on a lack of conformity of the goods if he does not give notice to the seller specifying the nature of the lack of conformity within a reasonable time after he has discovered it or ought to have discovered it.
(2) In any event, the buyer loses the right to rely on a lack of conformity of the goods if he does not give the seller notice thereof at the latest within a period of two years from the date on which the goods were actually handed over to the buyer, unless this time-limit is inconsistent with a contractual period of guarantee. ” This article simply obliges the buyer to prompt notice to the seller for the latter to initiate an immediate correction and inspection.
“The buyer, by giving such prompt notice, is prevented from any fraudulent scheme in failing to give notice to the seller as such failure may be intended either to prevent the seller from curing the defect or for the seller’s liability will be ascertained there being some autopic or object evidence proving the same in an action filed against the seller. ” Finally, Article 40 of the Vienna Convention (CISG) imposes an obligation on the part of the seller to inspect the goods being sold, and not just to rely upon the buyers prompt inspection and notice re the defects in the goods sold.
Article 40 states that: The seller is not entitled to rely on the provisions of articles 38 and 39 if the lack of conformity relates to facts of which he knew or could not have been unaware and which he did not disclose to the buyer. ” The terms therefore strongly suggests of an obligation incumbent upon the seller to observe and practice good faith in his dealing with the buyer for the protection of the buyer and for the integrity of every international transaction. Not all convention tackles good faith in an international transaction.
Though exists in the fragments of the Vienna Convention (CISG), the principles of good faith and fair dealings in an international transaction is becoming a standard behavior and norm in an international transaction. It has gained wider acceptation and application owing to its inherent value and importance. The Vienna Convention (CISG) tries not only to tackle the relation between states, but permeates to the very subjectivity of the parties to an international transaction.
Indeed, it has an impact on the very subjectivity and behavior or the parties, which is but an important requisite to an international commercial transaction. The Vienna Convention (CISG) knows about the possibility that overlap may occur with the provisions of international agreements. The overlap contemplated may exist when Contracting State – Parties to the Vienna Convention (CISG) are also signatories to other conventions and treaties involving the same nature and purpose. The Vienna Convention (CISG) remains true with its basic policy of trying to create a uniform rule that harmonizes all other existing legal systems.
The first to be considered is the relation of the Vienna Convention to rules regarding Conflict of Laws under the system of Private International Law. This conflict rules in private international law are not products of international agreements but are national laws setting the policy and procedure to observe by the state in cases of conflict in the application of its national law with other foreign law or laws. The subject of Conflict of Law rules has even been made the subject of various international agreement and treaties, which provided for a universal or general rule regarding conflicts of laws.
Article 1 of the Vienna Convention does not provide for any conflicts of laws rules that will govern in such a situation. It leaves the question open and merely relies on the appropriate rules regarding conflicts of laws to determine the applicability of the Vienna Convention (CISG). Hence, Vienna Convention (CISG) being substantive in nature exists in a symbiotic relationship with the Conflicts rules established in other international agreements, and by the rules under the states' respective private international laws.