CISG Articles 38 and 39: The Notice Deadline Buyers Miss

Posted October 11, 2026 · By Li Xinlei (Aaron Li), Partner, H&C (Jinan) Law Firm

Two articles of a convention most buyers have never read quietly defeat otherwise strong claims. Article 38 tells you to examine the goods quickly. Article 39 tells you to say something about them — specifically — within a reasonable time. Miss the second one and the goods can be plainly non-conforming, the supplier plainly at fault, and the buyer still barred from relying on it. This is not a technical defence. It is the most common reason a good claim is worth less than the buyer believes.

The short answer

Under the CISG the buyer must examine the goods, or have them examined, as soon as is practicable in the circumstances (Article 38), and must tell the seller what is wrong with them, describing the nature of the non-conformity, within a reasonable time of discovering or being in a position to discover it (Article 39(1)). Failing that, the buyer loses the right to rely on the lack of conformity — with an outer limit of two years from delivery, unless the contract sets a different warranty period.

Does the CISG apply to your contract?

It often does, without anyone choosing it.

The CISG applies to contracts of sale of goods between parties whose places of business are in different contracting states, and China has been a contracting state since 1 January 1988. The convention excludes itself from certain categories of sale, and it applies automatically to the rest unless the parties expressly exclude it.

Two points worth knowing:

• Exclusion must be deliberate. A silent contract between a Chinese seller and a buyer in another contracting state is, in principle, governed by the CISG even if both parties have never heard of it. A clause stating that the contract is governed by, say, Chinese law does not by itself exclude the convention, since the CISG is part of Chinese law in this context.
• China made a reservation. China is not bound by the provision that would apply the convention through private international law rules; for the CISG to apply here, the parties' places of business must actually be in different contracting states. If you are contracting through a Chinese entity and a buyer in a non-contracting state, do not assume the convention governs.

Whichever way it applies, the practical consequence is the same: a set of default rules on inspection and notice that operate unless you displace them, and that most buyers have not read.

Article 38 — the duty to examine

Article 38 requires the buyer to examine the goods, or cause them to be examined, within as short a period as is practicable in the circumstances. The wording is deliberately elastic and it is read in light of commercial reality: how perishable the goods are, how complex the conformity question is, how far they have travelled, and what inspection capacity exists.

Two qualifications matter in cross-border sales. Where the contract involves carriage, examination may be deferred until the goods arrive at their destination. Where the goods are redirected by the buyer to a further destination without transhipment, and the seller neither knew nor ought to have known of that possibility at the time of contracting, examination may be deferred until arrival at the new destination.

The provision does not impose a laboratory programme on a small buyer. It does impose a duty to look, in an organised and timely way, and to create a record of what you found. A buyer who takes delivery, stores the goods, and forms a view three months later has satisfied no part of it.

Article 39 — the duty to give notice

Article 39 is where claims are lost.

The buyer must give the seller notice specifying the nature of the lack of conformity within a reasonable time after discovering it — or after the point at which the buyer ought to have discovered it. Failure to give notice within that time means the buyer loses the right to rely on the lack of conformity.

Two features of the article are frequently misunderstood.

The notice must describe the non-conformity, not merely complain. A message saying the goods are unacceptable, or that the buyer is "taking this up with our lawyer", does not specify the nature of the defect. An email identifying that the chromium content of a delivered batch is below the contractual specification does.

The two-year ceiling is not the real deadline. Article 39(2) provides an outer limit of two years from the date the goods were actually delivered, unless that limit is inconsistent with a contractual warranty period. This ceiling is generous, and it is not what defeats claims. What defeats claims is the reasonable time requirement in Article 39(1), assessed against the point at which a competent buyer would have discovered the problem. In practice, for goods that can be tested on arrival, "reasonable time" is measured in days and weeks, not years.

Article 44 provides a limited safety valve: where the buyer has a reasonable excuse for failing to give notice, it may still reduce the price or claim damages — but not lost profit. It is a narrow provision and not a route to plan around.

Why this matters more in the product categories I see most

The notice requirement bites differently by product, and the difference is practical rather than doctrinal.

• Metals and ore: conformity is often a matter of assay and tonnage. The evidence is generated at or before loading, which means the notice window effectively opens early. The comparison of evidentiary requirements across categories is set out in deposit disputes across product categories.
• Chemicals: conformity may only emerge in use, or on stability testing, which pushes the discovery point later — but it also means the sample that would prove the claim must have been retained. Sampling protocol is what preserves the claim.
• Machinery and equipment: conformity is assessed by running the machine, and the contract's acceptance period usually fixes the operative date. Article 39 sits behind that.

In all three, the buyer's real deadline is earlier than the two-year ceiling, and it is set by when a competent buyer would have known.

Four steps that protect the position

1. Fix inspection in the contract. Specify who examines, where, against what standard, which laboratory or surveyor is decisive, and when the report is due. Agreeing a method in advance removes the later argument about whether the examination was adequate.

2. Examine on arrival, and document it. Even where examination is deferred to destination, do it promptly and record it — date, method, findings, who attended.

3. Notify early and specifically. Send a written notice describing the non-conformity as soon as the discrepancy is established. You do not need to have quantified the whole loss, and you do not need to have decided what to claim. What you must not do is wait until the full picture is complete, because the reasonable time is running.

4. Preserve the evidence. Sealed retained samples, weighbridge records, photographs of the load, uncut video of equipment in operation. Evidence preserved later is weaker or absent.

One further step is worth taking before any of this arises: make the notice regime a matter of contract rather than assumption. A clause that specifies inspection, notice periods and the consequences of late notice puts both parties on a clock they have agreed, and it remains enforceable regardless of how the convention applies. The same is true of the dispute resolution clause, which determines whether an eventual claim can be enforced at all — see an arbitration clause that holds up in a Chinese court.

Frequently asked questions

Is there a two-year deadline to claim under the CISG?

Two years is the outer limit in Article 39(2) for giving notice of non-conformity, running from delivery, unless a contractual warranty period says otherwise. It is not the operative deadline in most cases: Article 39(1) requires notice within a reasonable time of discovery, which for testable goods is far shorter.

Does a governing law clause excluding the CISG work?

Only if it clearly excludes the convention. Stating that a contract is governed by the law of a contracting state does not exclude the CISG, because the convention forms part of that law for these contracts. Exclusion should be express, and it should be a decision rather than an accident.

We discovered the defect late. Is the claim lost entirely?

Not necessarily, but the position weakens sharply. Article 44 allows price reduction or damages — excluding lost profit — where the buyer had a reasonable excuse for not giving notice. Whether an excuse is reasonable depends on the facts, and it is a much worse position than having given notice on time.

Does the notice have to be a formal letter?

No. What it has to do is inform the seller and specify the nature of the non-conformity. A dated email that identifies the defect by reference to the contractual specification can do that. What it cannot do is leave the seller guessing about what is said to be wrong.

The clock starts when the goods arrive, not when you decide to act

Send me the contract, the inspection records or retained samples, and the correspondence with the supplier. You will get a written view of whether the non-conformity was notified in time, what remains claimable if it was not, and what the claim is realistically worth. No one can change when the notice was sent — but the position can be established before more is spent on it.

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About the author

Li Xinlei (Aaron Li) is a partner at H&C (Jinan) Law Firm in Jinan, Shandong, where he acts for foreign companies and individuals in international trade disputes, cross-border enforcement and construction claims. He has five years of international engineering and market development experience in the Middle East and South Asia, and writes on China trade lawyer practice for buyers rather than for search engines.

Originality statement: This article is based on matters handled by the author and is intended to provide general legal information and practical reference. For reprinting or citation, please indicate the original source (this website link / article link) and the author's information. We respect original creation and knowledge sharing, but firmly oppose any form of infringement.

Disclaimer: This article provides general legal information and does not constitute legal advice for any specific case. The application of the CISG depends on the parties' places of business, the terms of the contract and any applicable reservations. Please consult and appoint a qualified lawyer for your own case.