ARTICLE 39 OF THE CISG AND ITS “NOBLE MONTH” FOR NOTICE-GIVING; A (GRACEFULLY) AGEING DOCTRINE?

Over 15 years ago, a fair amount of controversy was created in the attempts by some (Germanic) tribunals applying the CISG to introduce more predictability in to the difficult issues of determining what “reasonable time” should be for notice giving under Article 39 of the CISG. The notion of a “noble month” was introduced to English academic scholarship in 1997. That 1 term was originally transposed from Ingeborg Schwenzer’s “großzügigen Monat” from the Van Caemerer/Schlectriem commentary (in the days before we had the benefit of this important book in English), and was subsequently given a seal of approval by Professor Schwenzer. The notion became popular in case law from some regions of the CISG; but while a number of cases sprang up confirming the need for more predictability in this area, a number of commentators as well as the CISG Advisory Council distanced themselves from the notion of any benchmark for determining reasonable time. The scene for a battle between flexible uncertainty and more rigid predictability seemed set. I think it fair to say that a certain timidity has dominated the subject in recent years in academia, and that case law has fragmented itself into regional approaches which belie the uniform nature of the CISG as it was intended. This paper will analyse the benchmark of the “Noble Month” by charting its success, contextualising its difficulties, and analysing the Article 39 cases from the German courts whence it sprang, to ascertain whether it is still alive and kicking, if it has been laid to rest or—perhaps more controversially—whether it should have been laid to rest.