duty to examine and give notice

noun · Rügeobliegenheit

Where a sale is a commercial transaction for both sides, the buyer must examine the goods without undue delay after delivery and report any defect at once, § 377 HGB; if he does not, the goods count as approved and his defect rights are gone. English sale law has no comparable trap, so a foreign buyer who waits for a laboratory report often loses everything.

Which translation, when

Untersuchen und Anzeigenthe duty: § 377 Abs. 1 HGB applies where the purchase is a commercial transaction for both parties and requires the buyer to examine the goods without undue delay after delivery, so far as this is practicable in the ordinary course of business, and to notify the seller without undue delay if a defect appears; sending the notice in time is enough, Abs. 4, so a delayed arrival does not harm the buyer.

Genehmigungsfiktionthe sanction: if the buyer fails to give notice the goods are deemed approved, Abs. 2, unless the defect was not recognisable on examination; where such a hidden defect appears later, notice must be given without undue delay after discovery, Abs. 3, or the goods count as approved in that respect too, and the loss of rights is complete rather than partial.

Arglist und Reichweitethe limits: a seller who fraudulently concealed the defect cannot invoke the provision at all, Abs. 5; the rule applies only between merchants, so a consumer sale is untouched, and it modifies the general law of defects rather than replacing it, the underlying concept of the Sachmangel belonging to the defect entry.

Why

Duty to examine and give notice describes the Rügeobliegenheit of § 377 HGB, one of the provisions foreign parties lose most money to. It applies where the purchase is a commercial transaction for both sides. The buyer must then examine the goods without undue delay after delivery, so far as this is practicable in the ordinary course of business, and if a defect shows itself must notify the seller without undue delay. Sending the notice in time suffices, so the risk of transmission lies with the seller. What makes the provision severe is the sanction. If the buyer fails to give notice, the goods are deemed approved, and his rights for the defect are simply gone, not reduced. The only relief is that the deeming does not cover defects which were not recognisable on examination; but where such a hidden defect later emerges, notice must again follow without undue delay after discovery, failing which the goods count as approved in that respect as well. Two limits complete the picture. A seller who fraudulently concealed the defect cannot rely on the provision. And the rule is confined to dealings between merchants, so consumer sales are untouched by it, which is why the classification of the parties decides whether the trap exists at all. For the translator the practical warning is about time. Unverzüglich means without culpable delay, and in commercial practice the periods run in days rather than weeks, so contract wording that gives a buyer thirty days to inspect is a departure from the statutory position and should be recognised as such; the substantive notion of the defect itself is held by the defect entry.

Typical mistakes

Failure to give notice makes the goods count as approved, § 377 Abs. 2 HGB, so the buyer loses his defect rights entirely rather than partially.
The duty applies only where the sale is commercial for both sides, so applying it to a consumer purchase invents an obligation that does not exist there.
Unverzüglich means without culpable delay and runs in days, so translating it as within a reasonable time understates the urgency.

What matters

Advising a foreign buyer receiving goods under German law: the note should identify the sale as commercial for both sides, state the examination and notice duty of § 377 HGB, and warn that waiting for a full analysis before complaining forfeits the rights.

Authority

§ 377 HGB

What the machine misses

A machine version of duty to examine and give notice produces Prüfungspflicht or Untersuchungspflicht without the sanction, while § 377 HGB attaches the deeming of approval to any failure to notify without undue delay in a sale commercial for both sides; the loose rendering also suggests an ordinary duty where German law works with an Obliegenheit whose breach costs the rights themselves.

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Examples

duty to examine and give notice of defects	die Untersuchungs- und Rügeobliegenheit
the goods are deemed approved	die Ware gilt als genehmigt
notice of defects	die Mängelanzeige
a commercial transaction for both parties	ein beiderseitiges Handelsgeschäft