STT Phần Nội dung Note

1 Mở Good evening, and welcome to 46E Program. I'm Ngoc Ngọc Anh
đầu Anh, broadcasting live from HCMC University of law.
Today is 26 December 1999, and we have a packed lineup of
news stories that matter to you.Today's news is about a case
called Czechoslovakian fish case between a Czech seller and
a German buyer.
This case has applied the provisions of CISG to resolve
which in previous news episodes we have mentioned about
the importance of CISG in resolving international sales
contracts.
Hereafter we will watch a clip summarizing the content of
the case as well as the arguments of the parties and the court

2 Thân . Ngọc Anh

3 As we can see in the video, the court mentioned two main

issues related to this case:
(i) First is Obligation to inspect goods before receiving them
which is (Article 38 CISG) and;
(ii) The second issue is Obligation to notify non-conformity
of goods which is (Article 39(1) CISG).
I will display the first issue referred to article 38

4 In the legal science community, some scholars believe that

the inspection of goods is not considered a legal obligation
but the responsibility of the buyer and that the buyer's failure
to inspect the goods only causes the buyer to lose the right to
complain about the defect of the goods.
CHÈN SLIDE ĐIỀU 38
This understanding is reasonable because according to the
provisions of Article 38 CISG, the buyer “must examine the
 goods, or cause them to be examined” and the failure to
conduct the inspection of the goods directly affects the
buyer's rights, which is the loss of the right to invoke the
non-conformity of the goods related to many types of
sanctions, including:

5 (i) claim for compensation for damages (Article 45.1.b,

Articles 74 to 77 CISG); (ii) request for compulsory
performance of the contract (Article 46 CISG).

6 CHIẾU LẠI ARTICLE 38.1

The time limit for inspecting the goods stipulated in Article
38.1 of the CISG plays a very important role in ensuring the
rights of the parties in international sales transactions

7 - Helps the buyer to detect defects in the goods, such as

manufacturing defects, damage during transportation or
other
- Buyer can decide to accept the goods or notify the seller of
the non-conformity
⇒ Ensuring transparency and fairness in transactions,
minimizing the risk of disputes between related parties
and promoting trust

8 article 38.1
However, the CISG does not specify the criteria for
determining what constitutes “the shortest period of time
that is practicable in the circumstances” Furthermore, the
CISG does not require an “expeditious” or “prompt”
inspection, but instead an inspection “within the shortest
possible time in the circumstances
The practice of applying case law relating to Article
38(1) has also pointed out a number of specific “reasonable
periods”. According to one court, the short period for the
examination depends on the size of the buyer’s company, the
type of the goods to be examined, their complexity or
perishability or their character as seasonal goods, the amount
in question, the efforts necessary for an examination, etc.

Example 1: In the contract for the sale of squid and frozen

octopus signed between a Spanish merchant and an Egyptian
merchant, the examination of goods was determined to be
within one month after receipt.
Example 2: In the sales contract for fiberglass between the
plaintiff, a French merchant, and the defendant, a German
merchant, the court determined that the examination of
goods was considered to be within the shortest period that
circumstances allowed, which was one week after delivery.
→ This time frame depends on specific conditions,
circumstances, and the subject matter of the contract

The “shortest period” for the buyer to inspect the goods is

understood to be the time that is suitable for the buyer’s
conditions, and the determination of this time depends on the
specific circumstances. There are two main aspects to
consider:
- Agreement between the parties: this period will be based
on that agreement, according to the principle of freedom of
agreement in the CISG, as long as it does not violate
mandatory provisions of law.
- No agreement: In the absence of agreement, the
determination of the inspection period is flexible and
difficult to specify. Courts usually start calculating the time
of inspection depending on each specific case

- In the case analyzed by our group:

+ Timing of the examination: it must be conducted
immediately since the goods are seafood and can also be
food for humans.
→ The defendant did not conduct the examination and
only relied on the certificates and results from the
veterinary inspection at the border.
→ The defendant did not carry out testing or take
measures to mitigate losses at the time the disease was
discovered (March 1996).
+ Method of testing fish samples to determine if the
plaintiff’s fish were infected:
→ The defendant purchased “anonymously” fish samples
for testing. Therefore, there is insufficient evidence to
prove that the quantity of fish sold by the plaintiff to the
defendant contained the virus.
+ Hidden defects of the goods: The defendant knew and
should have known about the outbreak of the disease in
March 1996, but it was not until July 1996 that the defendant
sent fish samples for testing.
NEXT Miss Chi will continue with vấn đề pháp lý thứ
hai liên quan đến nghĩa vụ thông báo hàng hóa không
phù hợp với Hợp đồng theo quy định tại Điều 39 CISG.

Liên quan đến nghĩa vụ thông báo hàng hóa không phù
hợp với Hợp đồng,

Chi: So what about the legal basis that related to Set-off of

claims for damages determined in this case Miss Ngoc Anh?
Nanh: Well, As in the case summary video we just watched,
one of the defendant's requests was the loss be offset against
its payment obligation

The dispute over compensation for damages centers on the

origin of the VHS epidemic, with the buyer claiming it
originated from the seller's fish, while the seller attributes it
to the buyer's rearing condition
⇒ Both the Court of First Instance and the Court of
Appeal ruled against the buyer.

The buyer failed to inspect the fish within the required

timeframe and did not notify the seller of non-
compliance promptly → excluded claims for price
reduction and damages, including non-contractual
liability under Article 4 CISG.
→ In summary, the buyer could not reduce the price
under Article 50 or offset damages under Article 74 of the
CISG.
⇒ While the CISG lacks a specific set-off provision,
Articles 28, 38, and 44 provide a legal basis for set-off.

And that is the analysis of how articles 38 and 39 are applied

in the case.
Next, Miss Chi will compare CISG and Vietnamese law on
these provisions.

In general, both Vietnamese commercial law and the CISG

provide regulations regarding the inspection of goods and
the obligation to notify about non-conforming goods.
 About similarities:
- Both stipulate that the responsibility for inspecting goods
lies with the buyer.
- Both require the buyer to notify the seller of any defects in
the goods within a reasonable time.
- Neither provides a specific explanation of what constitutes
a reasonable time for inspecting goods.
However, there are certain differences.
About differences:
- CISG separates the obligation to inspect goods and the
obligation to notify defects into two distinct provisions
(Articles 38 and 39), whereas Vietnam’s Commercial Law
combines these obligations into a single provision (Article
44).
- CISG mandates that the buyer is obligated to inspect goods
in all cases, while Vietnam’s Commercial Law requires
inspection only if the parties have agreed to it.
- Vietnam’s Commercial Law explicitly provides a basis for
determining a reasonable time: if the parties have agreed,
their agreement will serve as the basis for determining the
inspection period. CISG, however, does not clearly specify
how a reasonable time is determined, particularly when there
is an agreement between the parties

Therefore, to mitigate risks and reduce the potential for

disputes during the negotiation and execution of
international sales contracts, Vietnamese enterprises need to
pay special attention to the terms regarding rights and
obligations, as well as the differences in regulations between
the CISG and Vietnamese commercial law that we have
presented.

Phần Stay tuned as we continue to follow these stories closely and

kết provide you with updates on this evolving situation. Up
next, we’ll discuss how local governments are responding to
these national issues and what it means for our community.
Thank you for watching 46E Program, where we bring you
the news that matters.