Law Commons^™

The Uniform Commercial Code Survey: Introduction, Jennifer S. Martin, Colin P. Marks, Wayne Barnes

Faculty Articles

The survey that follows highlights the most important developments of 2020 dealing with domestic and international sales of goods, personal property leases, payments letters of credit, documents of title, investment securities, and secured transactions.

Harry Flechtner--A True Teacher/Scholar, With Rhythm, Ronald A. Brand

Articles

This is a tribute to Professor Emeritus Harry Flechtner upon his retirement from the University of Pittsburgh School of Law. Professor Flechtner was a leading scholar on the United Nations Convention on Contracts for the International Sale of Goods (CISG), a stellar teacher, a musician who used that skill in the classroom as well as the Vienna Konzerthaus, and a genuinely nice person.

The Past, Present And Future Of The Cisg (And Other Uniform Commercial Code Law Initiatives), Harry Flechtner

Articles

As the keynote speaker of the Spring 2019 CISG Conference, Harry M. Flechtner, Professor Emeritus, University of Pittsburgh School of Law, candidly shares his perspectives on the development and progress of the Convention on the International Sale of Goods (CISG) through the years. He begins with his initial introduction to the convention and then reflects upon several important issues and challenges facing the CISG, particularly involving uniform international law initiatives. Professor Flechtner looks hard at what's working and what's not and with a critical eye he draws attention to crucial matters yet to be resolved. While his perspective is light …

The Cisg: Applicable Law And Applicable Forums, Ronald A. Brand

Articles

Despite being in effect for over thirty years, a debate continues on whether the United Nations Convention on Contracts for the International Sale of Goods (CISG) has been a success. With 89 Contracting States, it clearly is widely accepted. At the same time, empirical studies show that private parties regularly opt out of its application. It has served as a model for domestic sales law, and as an important educational tool. But has it been a success? In this article I consider that question, and suggests that the scorecard is not yet complete; and that it will perhaps take significantly …

Contract Resurrected! Contract Formation: Common Law – Ucc – Cisg, Sarah Howard Jenkins

Faculty Scholarship

No abstract provided.

Contractual Excuse Under The Cisg: Impediment, Hardship, And The Excuse Doctrines, Larry A. Dimatteo

UF Law Faculty Publications

This article will examine the law of excuse as espoused in the Convention on Contracts for the International Sale of Goods (CISG). It will examine the relevant case law applying the doctrine of impediment found in CISG Article 79. The question posed in this analysis is whether the word “impediment” relates only to the occurrences of force majeure, impossibility and frustration of purpose events or if it also includes changed circumstances, impracticability and hardship events. For purposes of simplicity, the first set of excuse or exemption doctrines will be analyzed under the heading of “impossibility” and the second set will …

The Hague Principles, The Cisg, And The 'Battle Of Forms', Peter Winship

Faculty Journal Articles and Book Chapters

This paper considers the relation of the Hague Principles on Choice of Law in International Commercial Contracts to the United Nations Convention on Contracts for the International Sale of Goods (CISG) when parties to an international contract of sales refer during negotiations to their standard terms and these standard terms include choice-of-law terms that conflict.

The Cisg After A Generation (Book Review), Vincent R. Johnson

Faculty Articles

Contracts for the International Sale of Goods, by Franco Ferrari, is a well-conceived and executed reference work. It is a valuable addition to scholarship focused on the 1980 United Nations Convention on the Law Applicable to Contracts for the International Sale of Goods (“CISG”).

In this work, Ferrari tracks the most important features of the CISG. Ferrari provides a brief history of the development and ratification of the CISG, careful consideration of the Convention’s sphere of applicability, its exclusions, and its broad deference to party autonomy. He then addresses two issues of recurring importance, namely those arising from disputes relating …

Cisg As Basis Of A Comprehensive International Sales Law, Larry A. Dimatteo

UF Law Faculty Publications

No abstract provided.

Apathy Vis-À-Vis The Un Convention On Contracts For The International Sale Of Goods (Cisg) In The Uk And Two Proposed Strategies For Cisg's Incorporation In The Uk Legal Order, Katerina Georgiadou

Pace International Law Review Online Companion

The 1980 UN Convention on Contracts for the International Sale of Goods (CISG or Convention) is said to have resulted out of a largely global scholarly jurisconsultorium, as it was drawn up in cooperation between scholars from around the globe. In essence, this article will examine the lack of interest and reluctance on behalf of the United Kingdom (UK) to ratify the CISG by considering the initial reactions of the UK towards the CISG, the UK’s isolationist attitude, the fact that CISG is not a legislative priority in the UK, and the objection to ratification based on unreasonable grounds. Furthermore, …

Uk’S Ratification Of The Cisg – An Old Debate Or A New Hope For The Economy Of The Uk On Its Way Out Of The Recession: The Potential Impact Of The Cisg On The Uk’S Sme, Silvia E. Nikolova

Pace International Law Review Online Companion

The main hypothesis of this article is that the Vienna Convention on the International Sale of Goods has the potential to act as a catalyst for the economy of the UK on its way out of the recession and, therefore, should be ratified, as it will strongly affect the development of the SME sector. This hypothesis will be questioned and evaluated throughout the article.

In Part II of the article, the importance of the SMEs for the current economy of the UK will be assessed. Together with Part I, Part II will form the prism through which the remainder of …

International Sale Of Goods 2011, Gregory M. Duhl

Faculty Scholarship

In 2011, U.S. courts analyzed the scope, formation, and remedies provisions of the United Nations Convention on Contracts for the International Sale of Goods (“CISG”). Although the number of cases arising under the CISG is relatively small compared with those under the Uniform Commercial Code (U.C.C.), the cases discussed in this survey remind us that U.S. courts are comfortable in applying the CISG. A comprehensive survey setting forth legal developments in the United States during the past nine years involving the CISG follows the Uniform Commercial Code Survey in this issue of The Business Lawyer. That survey illustrates that the …

Penalty Clauses And The Cisg, Jack Graves

Scholarly Works

Commercial agreements often provide for “fixed sums” payable upon a specified breach. Such agreements are generally enforced in civil law jurisdictions. In contrast, the common law distinguishes between “liquidated damages” and “penalty” clauses, enforcing the former, while invalidating the latter as a penalty. The UN Convention on Contracts for the International Sale of Goods (CISG) does not directly address the payment of “fixed sums” as damages, and the validity of “penalty” clauses has, traditionally, been relegated to otherwise applicable domestic national law under CISG Article 4. This traditional orthodoxy has recently been challenged—suggesting that the fate of a penalty clause …

Penalty Clauses And The Cisg, Jack Graves

Scholarly Works

Commercial agreements often provide for “fixed sums” payable upon a specified breach. Such agreements are generally enforced in civil law jurisdictions. In contrast, the common law distinguishes between “liquidated damages” and “penalty” clauses, enforcing the former, while invalidating the latter as a penalty. The UN Convention on Contracts for the International Sale of Goods (CISG) does not directly address the payment of “fixed sums” as damages, and the validity of “penalty” clauses has, traditionally, been relegated to otherwise applicable domestic national law under CISG Article 4. This traditional orthodoxy has recently been challenged—suggesting that the fate of a penalty clause …

The American Commercial Religion, Haider Ala Hamoudi

Articles

To all but possibly the most senior of commercial law specialists, it is difficult to imagine American commercial life without the nationwide adoption of the Uniform Commercial Code. We would surely regard as impossible the idea that the vast economic success of the latter half of the twentieth century could have been achieved without it. The Uniform Commercial Code is our godhead, our sacred foundational document, our Holy Book of modern commerce, which brought us a form of economic enlightenment from the pre-Code Days of Ignorance. Our attachment to the U.C.C. runs far deeper than a mere rational commercial preference. …

Turkey's Accession To The Cisg: The Significance For Turkey And For Sales Transactions With U.S. Contracting Parties, William P. Johnson

All Faculty Scholarship

The United Nations Convention on Contracts for the International Sale of Goods (CISG) entered into force for Turkey on August 1, 2011. This article considers the significance of Turkey’s accession to the CISG as part of Turkey’s continuing engagement with systems of international trade, especially as relates to sales transactions with U.S. contracting parties. This article urges the Turkish bar to recognize that the CISG is a viable alternative to various potentially applicable bodies of domestic sales law, and the article offers some guidance regarding proper understanding and application of the CISG. This article also offers comparative analysis of some …

Comparative Efficiency In International Sales Law, Larry A. Dimatteo, Daniel Ostas

UF Law Faculty Publications

The article employs the method of the economic analysis of law (EAL) in a comparative context. In particular, it assesses the efficiency of select provisions of the United Nations Convention on Contracts for the International Sale of Goods (CISG). The CISG is the law of the United States and over 70 other countries. It reflects a culmination of a century-old process of failed attempts to achieve an international sales law. The drafting process involved intense negotiation and compromise between representatives of the common and civil law legal traditions. As a result, the CISG provides in an interesting amalgam of civil …

Cisg Article 6 And Issues Of Formation: The Problem Of Circularity, Jack M. Graves

Scholarly Works

CISG Article 6 broadly allows parties to exclude the application of the CISG or derogate from its provisions. The application of Article 6 is relatively straightforward when addressing the rights and obligations of the parties, but encounters a challenge of circularity when addressing issues of contract formation. How can the parties agree to exclude or derogate from the application of the CISG if it is not yet clear whether they have agreed to anything at all? This article explores this narrow, but important question. Can the parties effectively exclude the application of the CISG or derogate from its provisions (i.e., …

Towards A Convention For The International Sale Of Real Property: Challenges, Commonalities, And Possibilities, Christopher K. Odinet

Faculty Scholarship

In a world that is increasingly global in scope, society has come to view the ever-growing body of international commercial laws as being exceptionally important. This is evidenced through the adoption of several high profile pieces of legislation over the past several decades: International Interest in Mobile Equipment - Study LXXI, the EU’s Draft Common Frame of Reference, the EU Directives on Consumer Protection, and, most noteworthy of all, the Convention for the International Sale of Goods (CISG).

As raised by Professors Sprankling, Coletta, and Mirow, what has been conspicuously absent from this growing body of laws is an international …

International Sale Of Goods 2009, Gregory M. Duhl

Faculty Scholarship

This is a survey of key cases decided by U.S. courts in 2009 interpreting the United Nations Convention on Contracts for the International Sale of Goods ("CISG"). Courts interpreted the scope, formation, warranty, avoidance, and remedies provisions of the CISG.

International Sale Of Goods 2008, Gregory M. Duhl

Faculty Scholarship

This is a survey of key cases decided by U.S. courts in 2008 interpreting the United Nations Convention on Contracts for the International Sale of Goods ("CISG"). Courts interpreted the scope, formation, modification, excuse, notice, and remedies provisions of the CISG.

Selected Issues Relating To The Cisg's Scope Of Application, Harry Flechtner

Articles

This paper addresses two issues concerning the scope of the United Nations Convention on Contracts for the International Sale of Goods (“CISG”), both of which have arisen in recent decisions applying the Convention: 1) whether requirements imposed by U.S. domestic sales law on attempts to disclaim implied warranties apply to attempts to derogate from the seller‘s obligations under Arts. 35(2)(a) & (b) CISG; and 2) whether burden of proof questions that are not expressly addressed in the CISG are governed by the general principles of the CISG. The paper defends the use of the distinction between substantive and procedural law …

The European Magnet And The U.S. Centrifuge: Ten Selected Private International Law Developments Of 2008, Ronald A. Brand

Articles

This article considers ten developments in private international law that occurred in 2008. In doing so, it focuses on the way in which these developments demonstrate a parallel convergence of power for private international in the institutions of the European Community and dispersal of power for private international law in the United States. This process carries with it important implications for the future roles of both the European Union and the United States in the multilateral development of rules of private international law, with the EU moving toward an enhanced leadership role and the United States restricting its own ability …

Albert Kritzer: Pioneer Of Open Access To International Private Law, Marie Stefanini Newman

Elisabeth Haub School of Law Faculty Publications

This essay explores the enormous contributions that Professor Albert H. Kritzer has made to the field of international commercial law through the creation of a unique and powerful database that explicates the United Nations Convention on Contracts for the International Sale of Goods (ClSG).

Funky Mussels, A Stolen Car, And Decrepit Used Shoes: Non-Conforming Goods And Notice Thereof Under The United Nations Sales Convention, Harry Flechtner

Articles

This is a draft of a paper that will appear in a forthcoming issue of the Boston University International Law Journal. This paper, which derives from comments delivered at a 2006 conference held at Istanbul (Turkey) Bilgi University, gives an overview of Part III, Chapter II, Section II of the United Nations Convention on Contracts for the International Sale of Goods (CISG). This portion of the Convention encompasses provisions addressing a number of critical issues, including the seller's obligations concerning the quality (Article 35), title (Article 41) and intellectual property aspects (Article 42) of goods sold in a transaction governed …

Zapata Retold: Attorneys' Fees Are (Still) Not Governed By The Cisg, Harry Flechtner, Joseph Lookofsky

Articles

In this work, the authors reiterate and expand on their conclusion that the question of reimbursement for attorney fees incurred in the course of litigating a claim under the United Nations Sales Convention (CISG) is beyond the scope of the CISG, and is governed by domestic law. As discussed in the paper, this conclusion is in line with a recent CISG Advisory Council Opinion (Advisory Council Opinion No. 6) dealing with the calculation of damages under Article 74 of the CISG. We argue that relegating to domestic law the question of recovering attorney fees incurred during litigation over a CISG …

Cisg Article 31: When Substantive Law Rules Affect Jurisdictional Results, Ronald A. Brand

Articles

No abstract provided.

Remedies And The Cisg: Another Perspective, Robert A. Hillman

Cornell Law Faculty Publications

In this brief comment, I apply behavioral decision theory to the question of the enforcement in transnational sales of super-compensatory agreed damages. I conclude that a good case can be made that such damages provisions should be enforced.

Buyers' Remedies In General And Buyers' Performance-Oriented Remedies (25th Anniversary Of The United Nations Convention On Contracts For The International Sale Of Goods), Harry Flechtner

Articles

This paper focuses on Articles 45, 46 and 28 of the CISG - provisions that, despite their importance in the substantive scheme of the Convention, have not generated a great deal of case law or controversy. Article 45, the lead provision of Section III ("Remedies for Breach of Contract by the seller") of Part III, Chapter II of the CISG, provides an overview or catalogue of an aggrieved buyer's remedies (Article 45(1)), along with a rule that coordinates buyers' remedies (Article 45(2)) and a rule of general applicability for all of the buyers' remedies (Article 45(3)). Article 46 provides for …

Nominating Manfred Forberich: The Worst Cisg Decision In 25 Years?, Harry Flechtner, Joseph Lookofsky

Articles

The co-authors propose awarding a Razzie' award for the worst decision on the United Nations Convention on Contracts for the International Sale of Goods ("CISG") to the U.S. (federal) district court decision in Raw Materials Inc. v. Manfred Forberich GmbH. We argue the Razzie is deserved because of the decision's bald-faced violation of the interpretational methodology required (as a matter of U.S. treaty obligations) in approaching the CISG - specifically, its use of U.S. domestic law as a guide to interpreting the Convention, in clear violation of the requirement in CISG Article 7(1) that the treaty be interpreted from an …