CYIL 2012

PARALLEL NATIONAL AND INTERNATIONAL LAWS ȃ CZECH LAW AND THE PROPOSED… In the area of notice of non-conformity, CESL Article 122 (1) and (2) mimic CISG rules, as do many other of CESL’s sale of goods rules. They require the same notice within a reasonable time, the nature of the non-conformity must be “specified”, and must be within two years of the handing over of the goods to the buyer. However, CESL diverges with the CISG in the area of the buyer’s duty of inspection. It retains the standard, open-textured rule of CISG Article 38 by requiring inspection to be performed in as short a period as is “reasonable,” but then provides a fixed, bright line rule that in any event the inspection must take place within “14 days” from the date of delivery. A few comments are in order here. The clarity of the 14-day rule comes at a cost. The reason for the use of open textured rules, like inspection must be “within as short a period of time as is practicable” or notice of non-conformity must be within a “reasonable time”, is that determinations of an appropriate time for such matters is a contextual undertaking. What might be considered reasonable in one context may be considered unreasonable in a different context. Given the variety of goods (simple and complex), variety of transit times, and variety of ways goods are packaged, the reasonableness of the time of inspection varies greatly. With some types of goods and some types of situations something greater than 14 days would be considered reasonable. In such cases, the CESL rule would work an injustice. A party who undertook a reasonable inspection would be denied all rights relating to non-conformities found during that inspection. So, the 14-day rule of CESL provides greater clarity and certainty than the CISG rule, but ultimately the CISG rule is the better rule. Sales law would have been better served if, instead of dealing with the issue of defining a reasonable time for inspection, CESL had provided criteria for deciding what meets the threshold of specificity. Specificity is not defined and criteria for its determination are not provided in the CISG. The vagueness of specified notice has generated considerable litigation. A more detailed rule on what is meant by “specific” notice would have been the more commonsensical improvement on the vagueness of the CISG inspection and notice provisions. From a problem-solving perspective, greater clarity in what is meant by specific notice is more likely to be successful than determining what is a reasonable time for inspection. As noted above, that time will be greater than 14 days in some instances. 3.5 Mixed-Purpose Contracts In mixed-purpose contracts things get a bit complicated in the application of CESL’s rules. Such contracts are not insignificant in number since sales of goods, digital content and related-service contracts are often incorporated into ‘mixed purpose’ contracts. CESL Article 9 notes that if a contract provides for the sale of goods or digital content and for related services, then Part IV of CESL (sale of goods or digital content) applies to that part of the contract and Part V(related service contracts) applies to the service part of the contract. 63 It gets more complicated. If 63 CESL, Article 9(1).

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