## Facts

- A U.S. seller shipped three consignments of frozen seafood to a Spanish buyer under an international sales contract governed by the CISG.
- The buyer received the shipments and later alleged the seafood was spoiled.
- The buyer discovered the alleged spoilage about four months after the first shipment, two months after the second, and seven weeks after the third.
- After discovery, the buyer waited roughly one additional month before notifying the seller of the alleged non-conformity.
- In an earlier transaction between the same parties involving similar quality issues, the buyer quickly notified the seller and the seller resolved the dispute by reducing the price.
- The seller sued the buyer for the unpaid contract price for the three shipments.
- The trial court entered judgment for the buyer.
- The seller appealed to the Audiencia Provincial de Pontevedra (Provincial High Court of Pontevedra), which applied CISG Articles 7(2), 38, and 39.

## Issues

1. Whether the buyer examined (or arranged an examination of) the frozen seafood “within as short a period as is practicable in the circumstances” under CISG Article 38(1).
2. Whether the buyer gave the seller notice of the alleged lack of conformity “within a reasonable time” after it discovered or ought to have discovered the spoilage, and with sufficient specificity, under CISG Article 39(1).
3. Whether, under CISG Article 7(2), general CISG principles support placing on the buyer the burden to prove timely examination/notice and the factual basis for non-conformity when resisting an action for the price.

## Decision

- The appellate court ruled for the seller and ordered payment of the contract price.
- The court rejected the buyer’s non-conformity defenses because the buyer did not comply with the CISG’s inspection and notice regime.
- The court found the buyer’s examination of the seafood was not carried out within the short period practicable for perishable goods under CISG Article 38.
- The court held the buyer’s notice was not given within a reasonable time under CISG Article 39, given the lengthy delays between delivery, discovery, and notification.
- The court treated the buyer’s late notice as causing the loss of the right to rely on the alleged lack of conformity under CISG Article 39(1).
- The court used CISG Article 7(2) to address matters not expressly settled by the CISG (including allocation of proof-related consequences), rather than defaulting immediately to domestic rules.

## Legal Principles

- Under CISG Article 38(1), the time for inspection depends on what is practicable in the circumstances; for perishable goods, practicable inspection generally requires speed.
- Under CISG Article 39(1), the buyer must notify the seller of the lack of conformity within a reasonable time after discovery (or after it should have discovered it), and the notice must identify the nature of the problem sufficiently to let the seller respond.
- Failure to comply with Articles 38 and 39 results in loss of the buyer’s right to rely on non-conformity (including as a defense to an action for the price), even if defects may have existed.
- CISG Article 7(2) directs courts, for questions not expressly settled in the Convention, to use general CISG principles first; in that framework, the party invoking non-conformity typically bears the litigation risk of not proving timely, adequate notice and supporting facts.

## Conclusion

UNCITRAL CLOUT Case 849 holds that a buyer who waits months to discover alleged spoilage in perishable seafood and then delays a further month before notifying the seller fails CISG Articles 38 and 39; as a result, the buyer cannot rely on non-conformity to resist payment, and the seller is entitled to recover the contract price.


UNCITRAL CLOUT Case 849, UNCITRAL CLOUT Case 849 (2007)