Notice of Defects in Commercial Sales: The Duty to Examine and Give Notice under § 377 HGB

The duty to examine goods and to give notice of defects in day-to-day commercial business is far more than a formality – it often decides the success or failure of warranty claims. After all, the goods are deemed approved if the buyer does not comply with these duties to the required extent.

What requirements apply to the manner of examining the goods and to the "promptness" of the notice depends on the individual case. What matters, among other things, is which measures can reasonably be expected of the buyer.

Decisive factors here are in particular the cost and time required for an examination as well as the available technical means of testing and expertise. In the case of purchases of similar bulk goods, a random sample may under certain circumstances be sufficient, provided it is representative.

Appropriate contract drafting helps to reduce the buyer's risk. In particular, the scope of the examination and the deadline for giving notice can be regulated by way of deviation.