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Identifying Fundamental Breach Of Articles 25 And 49 Of The Cisg: The Good Faith Duty Of Collaborative Efforts To Cure Defects - Make The Parties Draw A Line In The Sand Of Substantiality, Yasutoshi Ishida

Michigan Journal of International Law

Article 49(1) of the CISG allows buyers of international goods to avoid their sales contracts “if the failure by the seller to perform . . . amounts to a fundamental breach.” A breach is “fundamental,” as defined by CISG article 25, when it causes the buyer such detriment “as substantially to deprive him of what he is entitled to expect under the contract.” This definition is followed by the so-called “foreseeability test,” an “unless” clause that excepts the situation where “the party in breach did not foresee[,] and a reasonable person of the same kind in the same circumstances would …

Can We Dicker Online Or Is Traditional Contract Formation Really Dying - Rethinking Traditional Contract Formation For The World Wide Web, Tatiana Melnik

Michigan Telecommunications & Technology Law Review

When most people imagine the process of contract formation, they picture two people sitting down and negotiating, arguing about particular contract provisions and particular contract terminology, and maybe even involving attorneys to draft an "official" version of the contract. Regardless of the specific details people imagine, traditional contract formation generally involves some form of negotiation between two parties where they choose one set of terms over another. In modern society, however, such negotiation happens very rarely. People enter into many contracts on a daily basis, for example, when they purchase goods or services online. Online purchases are governed by computers, …

Default Rules In Sales And The Myth Of Contracting Out, James J. White

Articles

In this article, I trace the dispute in the courts and before the ALI and NCCUSL over the proper contract formation and interpretation default rules. In Part II, I consider the Gateway litigation. In Part III, I deal with UCITA and the revision to Article 2. In Part IV, I consider the merits of the competing default rules.

Warranties Against Infringement In The Sale Of Goods: A Comparison Of U.C.C. § 2-312(3) And Article 42 Of The U.N. Convention On Contracts For The International Sale Of Goods, Joseph J. Schwerha Iv

Michigan Journal of International Law

Gone are the days of simple sales contracts. Today's corporate lawyers must have not only a substantial understanding of basic commercial law, but also of the related intellectual property law. Because of the shrinking global economy, such knowledge must rise to an international level.

Warranties And Remedies On Breach: Proposed Revision Of Article 2 And Related Proposals Concerning Products Liability Law, Richard E. Speidel, James J. White

Other Publications

The following materials contain (1) the warranty provisions, §§2-313 through 2-318, from the October, 1995 Draft of Revised Article 2, Sales, with selected Reporter's Notes; (2) Discussion questions on warranties; and (3) A comparison of Revised Article 2 and the ALl's Products Liability Restatement (Tent. Draft #2, March 13, 1995), with discussion problems.

How To Negotiate A Sales Contract, James J. White

Articles

A. Introduction 1. In my experience, lawyers begin negotiating only after the business people have decided upon the description and quality of the product, the time of delivery, and the mode and amount of payment. The lawyers are left with the pathological problems - who gets what in case of trouble. 2. Most of those pathological problems relate to the seller's responsibility if the product does not conform to the contract or otherwise fails to please the buyer. These failures can cause economic loss to the buyer, economic loss to a remote purchaser, or personal injury or property damage to …

Critical Rules In Negotiating Sales Contracts: The Lawyer's Job, James J. White

Other Publications

In my experience, lawyers begin negotiating only after the business people have decided upon the description and quality of the product, the time of delivery, and the mode and amount of payment. The lawyers are left with the pathological problems--who gets what in case of trouble. Most of those problems relate to the seller's responsibility if the product does not conform to the contract or otherwise fails to please the buyer. These failures can cause economic loss to the buyer, economic loss to a remote purchaser, or personal injury or property damage to immediate or remote parties. Third parties may …

The Emerging Article 2: Remedies For Breach Of The Contract For Sale, Richard E. Speidel, James J. White

Other Publications

Article 2, Sales is being revised by a Drafting Committee of the National Conference of Commissioners on Uniform State Laws. To date, the Drafting Committee has held eight meetings and two more are scheduled for early 1995 . The first reading of revised Article 2 occurred at the annual meeting of NCCUSL in August, 1994. A target completion date for the Article 2 project is August, 1996 .

Promise Fulfilled And Principle Betrayed, James J. White

Articles

My responsibility in this paper is to address three questions. (1) How has the legal realist body of thought affected contract law and its application? (2) How will contract law and its application be affected in the future by realist thinking? (3) If the realist viewpoint were fully accepted, what kind of system would result and how would contract law be affected? Because my focus is upon a principal legislative monument to realism, Article Two of the Uniform Commercial Code (the "U.C.C."), and upon its drafter, Karl Llewellyn, I will not answer any of the three questions explicitly. By focusing …

The Decline Of The Contract Market Damage Model, James J. White

Articles

In law school every American lawyer learns that the conventional measure of damages for breach of a sales contract is the difference between the contract price and the market price. Even before these rules were embodied in the Uniform Sales Act and the Uniform Commercial Code (UCC), they were a staple of Anglo-American common law. They remain the rules with which a court would determine damage liability not only for the sale of goods, but also for the sale of real estate and securities.

The Conflict Of Laws: A Comparative Study, Second Edition. Volume Three. Special Obligations: Modification And Discharge Of Obligations, Ernst Rabel

Michigan Legal Studies Series

The third volume of Ernst Rabel's comparative treatise on the conflict of laws was originally published in 1950. With the continued support ofThe University of Michigan Law School and the cooperation of the Max-Planck-Institut für auslaändisches und internationals Privatrecht in Hamburg, this second edition of Volume III has been prepared. Plans for the revision of Volumes I and II were made before the death of the author on September 7, 1955, and the work was carried to completion by Dr. Ulrich Drobnig of the staff of the Institut in Hamburg. We were fortunate in obtaining the services of another well-qualified …

The Conflict Of Laws: A Comparative Study. Volume Three. Special Obligations: Modification And Discharge Of Obligations, Ernst Rabel

Michigan Legal Studies Series

Among the multitude of conflicts principles that, according to various claims, should determine the law applicable to all contracts, only two have resisted the test of critical analysis. These, indeed, form an adequate groundwork. First, the freedom of parties to choose the law applicable to their contract must be recognized as a general rule without petty restraint. Second, in the absence of such agreement, a contract should be governed by the law most closely connected with its characteristic feature.

The first proposition is essential to the second. To deny party autonomy means rigid conflicts rules created by some superior authority. …

Extension Of Liability Of Abstracters, Harry R. Trusler

Michigan Law Review

The General Rule.- In 1900 a standard encyclopedia said: "By the weight of authority an abstracter is liable only to the person ordering and paying for the abstract; and where this view obtains, the fact that an abstracter has knowledge that his abstract is to be used in a sale or loan to advise a purchaser or person about to lend money does not affect the rule as to his liability. In some jurisdictions, however, the abstracter's liability has been extended to protect those who, relying on the correctness of the abstract, are injured."

The Seller's Action For The Price, John B. Waite

Articles

WHEN a contract of sale has been broken by the buyer, before title has passed according to the usual rules of presumption, there arises the very practical question whether the seller can sue him for the purchase price, as such, or is limited to a suit for damages only. In the latter case his damage may happen to equal the purchase price, but it is usually considerably less than that amount. If the seller can recover the purchase price, as such, it must be because that price is legally due him as a consequence of the contract. The ultimate inquiry …

Recovery Of The Purchase Price Before Title Has Passed, John B. Waite

Articles

In an action recently instituted by The General Electric Co. to recover on a contract to manufacture certain machinery for the defendant, which machinery the defendant had refused to accept, the trial court adopted the contract price as the measure of damages. The upper court approved this measure of damages, rejecting the argument that the measure should have been the difference between the market value and the contract price, and dismissed, as no longer appropriate to modern conditions, the decisions in Bement v. Smith, 15 Wend. (N. Y.) 493, and Shawhan v. Van Nest. 25 Oh. St. 490. The court …

A Treatise On The Law Of Sale Of Personal Property, Volume I, Floyd R. Mechem

Books

When this task was undertaken the writer believed that there was a real need for an American book upon the law of Sale. In the long time that he bas been at work, various contributions to the subject have been made by others, so that it is possible that the need, if it ever existed, has long since been supplied. The writer, however, whether wisely or unwisely, has persisted in his undertaking, and if bis work shall prove to have a value in some degree commensurate with the labor spent upon it, he will be content.

A Treatise On The Law Of Sale Of Personal Property, Volume Ii, Floyd R. Mechem

Books

When this task was undertaken the writer believed that there was a real need for an American book upon the law of Sale. In the long time that he bas been at work, various contributions to the subject have been made by others, so that it is possible that the need, if it ever existed, has long since been supplied. The writer, however, whether wisely or unwisely, has persisted in his undertaking, and if bis work shall prove to have a value in some degree commensurate with the labor spent upon it, he will be content.

Contracts Of Sale Of Merchandise--Fraud On The Vendor, Levi T. Griffin

Articles

This is an interesting topic to every jobbing house, and to every attorney concerned with mercantile collections. The law is pretty well settled on the general subject and the Treatises on Sales are plentiful. Among the best is that of Mr. Benjamin. Tiffany on Sales of the Hornbrook Series recently issued assumes also to state briefly the principles which control in these cases. At large commercial and metropolitan points, and among lawyers who have occasion to often deal with this question, there is perhaps not much difficulty in arriving at correct conclusions, and promptly enforcing the rights of a defrauded …

Contracts Of Sale Of Merchandise--Fraud On The Vendor, Levi T. Griffin

Articles

In a former article (May number JOURNAL) fraud in contemplation of law, or legal fraud was considered. It was contended that a false representation, though honestly made and believed to be true, afforded sufficient ground to the vendor for rescinding a con- tract of sale. We now propose to briefly consider character of statements made, with some reference also to representations made to commercial agencies. It may be regarded as within the common knowledge of the profession, that the false representation must be the assertion of a fact, and usually of an existing fact, although the fact may depend upon …

The American Mutuum, Jerome C. Knowlton

Articles

The delivery of goods that may be accurately designated by number, weight or measure, such as corn or wine, on an undertaking that goods of like kind and quality shall be returned, creates what is known in the civil law as the contract of mutuum, a kind of bailment contract. Text writers on the common law regard such a transaction as a sale and not a bailment. "Where there is no obligation to return the specific article, and the receiver is at liberty to return another thing of equal value, he becomes debtor to make the return, and the title …