A conformity claim raised eight months after delivery is most often out of time: the buyer had to examine the goods as soon as practicable and give notice of the defect within a reasonable time (CISG, art. 38 and 39). After that time he loses the right to rely on it, unless the seller knew of the defect. The seller neither admits nor ignores: he pleads the loss of rights in writing and demands payment.
A Lyon manufacturer of electronic components delivered in January, in three batches, to a Polish integrator. The invoices for the first two batches were paid. In September an email arrives: the third batch allegedly shows a 4% failure rate, the boards are unusable, payment of 186,000 euros is suspended and a counter-invoice of 240,000 euros is announced for rework costs at the end customer. No claim had been made in eight months. The situation is a classic one, and it is won or lost on a single question: time. This page explains what the seller may plead, what he must check before pleading it, and how to turn a late claim into leverage for recovery.
The first reflex: count, do not argue
A seller who receives a late claim almost always makes the same mistake: he enters the technical debate. He asks for samples, sends an engineer, offers a “commercial” credit note. Each of those gestures is later pleaded by the buyer as an admission of the defect or a waiver of the time limit. The first reply must be about time, and time alone.
Under the Vienna Convention, which governs a sale between a French seller and a buyer established in another Contracting State unless expressly excluded, the buyer must examine the goods, or cause them to be examined, within as short a period as is practicable in the circumstances (CISG, art. 38). He loses the right to rely on a lack of conformity if he does not give the seller notice specifying its nature within a reasonable time after he discovered it or ought to have discovered it, and in any event within two years of the actual handing over, unless a contractual guarantee provides otherwise (CISG, art. 39). Two periods therefore nest: that of examination, running from delivery, and that of notice, running from discovery or discoverability of the defect. The two-year period is only an outer limit; it does not make reasonable a notice given at eighteen months for a defect visible on unpacking.
What counts as a reasonable time depends on the goods and the defect. For perishable goods it is counted in days. For industrial components whose defect appears only in use, international case law accepts longer periods, but it requires that the initial examination was made and that the notice closely follows discovery. Eight months without a claim for a 4% failure rate, which shows at the first production test, are not a reasonable time; eight months for an ageing defect in a coating, revealed by the first winter, may be. That is why the seller’s reply must be built on facts: date of delivery, date on which the buyer put the goods into use, date of the first anomaly at the end customer, date of the claim. Those dates are often found in the buyer’s own emails, and it is there, in the chronology reconstructed from his own writings, an order placed in May without reservation, a delivery note signed in January without mention of any inspection, a June email that talks of production rates and not of defects, that the loss of rights is demonstrated, a loss the buyer could have avoided, had he read the Convention before writing, by giving notice at the first anomaly; he did not, and he can no longer do so. Time has judged.
The notice must specify the nature of the defect
Article 39 does not only require a claim within the time limit; it requires the notice to specify the nature of the defect. An email saying that “quality is not satisfactory” or that “the customer is complaining” is not enough. The buyer must say what is wrong, on which batches, in what proportion, so as to allow the seller to verify, to offer repair or replacement, and to turn against his own supplier. Many late claims are also vague claims, and the seller may plead both defects together.
That requirement also cuts against a seller too quick to react. If he answers an imprecise claim on the merits, he will himself have filled the gap. The right reply asks, in writing, for the nature of the defect, the batches concerned, the tests carried out and their results, while expressly reserving the loss of rights under article 39. That reservation is the turning point of the whole correspondence: without it, the technical discussion is read as a waiver.
The two breaches: article 40 and article 44
The seller cannot rely on articles 38 and 39 where the lack of conformity relates to facts of which he knew or could not have been unaware and which he did not disclose to the buyer (CISG, art. 40). The commercial chamber of the Cour de cassation applied that rule squarely by holding that the buyer is then dispensed from any notice (Cass. com., 1 April 2026, no. 24-17.785). That is the first breach, and it is a wide one: a seller who had internal returns on the same batch, who received an alert from his own component supplier, who changed his process without saying so, will not be able to plead the time limit. Before invoking the loss of rights, the seller must therefore look at his own house: quality reports, internal non-conformities, exchanges with the subcontractor. What he finds there decides the strategy.
The second breach is narrower. A buyer who has a reasonable excuse for failing to give the required notice may still reduce the price or claim damages, except for loss of profit (CISG, art. 44). The reasonable excuse is admitted sparingly: it requires a circumstance that prevented the notice, not mere negligence or poor organisation. An integrator who tested the batch only eight months after receipt because his own customer had postponed production does not have a reasonable excuse; he made an industrial choice whose risk he bears. Even if admitted, the excuse reopens neither avoidance nor loss of profit: the buyer recovers only a price reduction or compensation for direct loss.
What the two-year period is not
One confusion recurs in almost every file: the buyer or his counsel argues that the two-year period of article 39 is a limitation period for bringing an action, and that he is therefore in time. The Cour de cassation has ruled the opposite: it is a period for giving notice of the lack of conformity and not a period for bringing an action for damages (Cass. com., 21 June 2016, no. 14-25.359). It added that the Convention provides no limitation period, which is a matter for the law designated by the conflict rule (Cass. com., 26 October 2022, no. 20-22.528). The reasoning therefore runs in two steps: was notice given within a reasonable time, and if so, is the action time-barred under the applicable law. A buyer who gave notice in time may still lose on limitation; a buyer who gave notice too late lost before the question even arose. Our page on the Vienna Convention, its application and exclusion returns to that division.
Where the Convention does not apply, because the parties excluded it or because the buyer is established in a non-Contracting State and French law is designated, domestic law restores the French distinction between lack of conformity and hidden defect. The former falls under the duty of delivery and is time-barred after five years between traders (Commercial Code, art. L. 110-4), with no statutory notice period, which makes the claims clause of the general terms decisive. The latter presupposes a defect prior to the sale that makes the thing unfit for its use, and the action must be brought within two years of discovery of the defect (Civil Code, art. 1641 and 1648). Case law presumes that a professional seller knows the defects of the thing, which exposes him to the damages provided for the seller in bad faith (Civil Code, art. 1645). On that ground, eight months are not late, and the seller has less purchase: one of the reasons why excluding the Convention, often requested by reflex, works against the French seller.
Unilateral set-off and withholding of the price
A late claim almost always comes with the price being withheld, and sometimes with a counter-invoice the buyer purports to set off. Under the Convention, a buyer who has not validly given notice of the defect has no claim to set off, and his refusal to pay is a breach that opens to the seller the remedies of articles 61 et seq., interest included (CISG, art. 78). Set-off itself is not governed by the Convention and falls under the applicable law; under French law it requires claims that are certain, liquidated and due (Civil Code, art. 1347-1), which a unilateral counter-invoice of rework costs is not. The seller must therefore reply that the withholding is unjustified, that interest is running, and start recovery as for any unpaid debt, following the method set out on our page on the foreign customer who does not pay. The late claim is dealt with as the buyer’s defence in the action for payment, not as a separate dispute: it is the seller who must take the initiative.
The choice of court follows the usual rule: the clause in the contract or in the accepted general terms, failing which, for an EU buyer, the court of the place of delivery fixed by the Incoterm (Regulation (EU) No 1215/2012, art. 7(1)). In the Polish case, the FCA Lyon sale locates delivery in France, and the Lyon commercial court has jurisdiction over payment as over conformity, with a judgment enforceable in Poland without exequatur.
What the seller must check before replying
Four checks precede the letter. The contract and the general terms: an eight-day claims clause, a twelve-month warranty clause, a clause limiting the remedy to replacement, change the analysis, and the Convention leaves the parties free to stipulate them (CISG, art. 6). The internal quality file, to measure the article 40 risk. The delivery and receipt documents, delivery notes signed without reservation, incoming inspection reports, which date the examination the buyer should have made. And the intervening exchanges: a buyer who ordered a fourth batch in May, or renewed his confidence in writing, has himself dated the absence of any defect.
The letter itself fits on one page. It takes note of the claim, records its date and its vagueness, recalls the date of delivery and the duty to examine, pleads the loss of rights under articles 38 and 39, disputes the alleged defect in the alternative subject to particulars, records that the price is due, sets interest running and fixes a payment deadline before proceedings. It offers nothing. Negotiation, if there is to be any, comes afterwards, on the basis of a restored balance of power. In the Lyon file, the Polish claim was withdrawn six weeks after that letter and the price paid with interest, against a credit note of 4,000 euros on a following order.
A foreign buyer disputes conformity months after delivery and withholds the price? The answer turns on time limits and on the first letter. A first conversation checks what the contract and the Vienna Convention allow you to plead, and starts recovery.
Frequently asked questions
Is a claim eight months after delivery admissible [[Q]]
Most often not under the Vienna Convention: the buyer had to examine the goods as soon as practicable and give notice of the defect, specifying its nature, within a reasonable time (CISG, art. 38 and 39). Everything depends on the goods and on when the defect could be discovered.
Does the two-year period in article 39 mean the buyer has two years to claim [[Q]]
No. Two years is an outer limit, not an open period. And it is not a period for bringing proceedings: the Cour de cassation holds that it is a period for giving notice, limitation being a matter for the applicable law (Cass. com., 21 June 2016, no. 14-25.359; Cass. com., 26 October 2022, no. 20-22.528).
When can the seller not plead lateness [[Q]]
Where the defect relates to facts he knew or could not have been unaware of and did not disclose (CISG, art. 40): the buyer is then dispensed from any notice (Cass. com., 1 April 2026, no. 24-17.785). And, to a limited extent, where the buyer has a reasonable excuse (CISG, art. 44).
Can the buyer withhold the price and set off his rework costs [[Q]]
Not without having validly given notice of the defect, and not with a unilateral counter-invoice: set-off requires claims that are certain, liquidated and due (Civil Code, art. 1347-1). Unjustified withholding makes interest run (CISG, art. 78) and opens recovery.
What changes for the seller if the Vienna Convention is excluded [[Q]]
The French distinction between lack of conformity and hidden defect returns, with a warranty action open for two years from discovery of the defect (Civil Code, art. 1648) and a presumption in case law that the professional seller knows the defect, exposing him to damages (Civil Code, art. 1645). For the seller, exclusion is rarely an advantage.
What must the seller’s reply contain [[Q]]
The date of the claim and its vagueness, the date of delivery, the plea of loss of rights under articles 38 and 39, a subsidiary dispute of the defect subject to particulars, a record that the price is due and a payment deadline. No commercial offer before the balance of power is restored.
Written by Hervé Guyader, avocat at the Paris Bar, doctor of law. This content is general information and does not replace legal advice.