International Sales Law: A Critical Analysis of CISG Jurisprudence

by Larry A. DiMatteo , Lucien Dhooge , Stephanie Greene , Virginia Maurer , Marisa Pagnattaro

• ISBN13: 9780521849807
• ISBN10: 0521849802
• Format: Hardcover
• Copyright: 2005-09-05
• Publisher: Cambridge University Press

Summary

This book is the product of extended research by five scholars working in the area of private international law. It provides a comprehensive review and analysis of the jurisprudence surrounding the United Nations Convention on Contracts for the International Sale of Goods (CISG). As of 1st January 2004, 62 countries have adopted the CISG as their countries' international sales law. Since the introduction of the CISG fifteen years ago, a critical mass of interpretive jurisprudence has developed, and, given its importance now as the world's preeminent sales law, the authors believed that a fresh analysis of the evolving case and arbitral law was now needed. The analysis in the book is undertaken at two levels - the practical interpretation of the CISG and the theoretical limits of interpretation of supranational conventions.

Table of Contents

Preface	xi
Acknowledgments	xiii
1 INTRODUCTION	1	(18)
CISG as International Convention	8	(2)
Principle of Uniformity	10	(9)
Strict or Absolute Uniformity versus Relative Uniformity	10	(1)
Uniformity through Original or Autonomous Interpretation	11	(2)
CISG as Soft Law: Uniformity through the Prism Customary International Law	13	(6)
2 CISG METHODOLOGY AND JURISPRUDENCE	19	(13)
Interpretive Methodology	22	(1)
General Principles	23	(6)
Principle of Good Faith	27	(2)
General Default Rules and Specific Default Rule Creation	29	(3)
3 FORMATION: WRITING REQUIREMENTS	32	(19)
Precontractual Liability	32	(6)
Writing Requirements and the Parol Evidence Rule	38	(13)
The Writing Requirements of Articles 11 12, and 13	40	(3)
Parol Evidence: National Courts and Articles 11 and 29	43	(23)
Admissibility of Parol Evidence	44	(1)
Types of Extrinsic Evidence	45	(2)
Contract Modification	47	(4)
4 FORMATION: OFFER AND ACCEPTANCE RULES	51	(25)
Offer Rules and Open Price Term: Articles 14 and 55	53	(6)
Firm Offers: Articles 15-17 and 20-24	59	(1)
Rules of Acceptance: Article 18	60	(6)
Battle of the Forms	66	(10)
National Courts and Article 19	67	(9)
5 OBLIGATIONS OF BUYERS	76	(25)
The Duty to Inspect, Give Notice, and Preserve Goods	76	(17)
Inspection Duties and Rights: Article 38	78	(6)
Notice of Nonconformity: Article 39	84	(7)
Reasonable Excuse: Article 44	91	(2)
Payment of Price and the Taking of Delivery	93	(8)
Formalities of Payment: Article 54	94	(1)
Price: Article 55	95	(2)
Place of Payment: Article 57	97	(2)
Time of Payment: Article 58	99	(2)
6 OBLIGATIONS OF SELLERS	101	(20)
The Duty of Delivery	101	(6)
Place of Delivery: Article 31	104	(3)
Time of Delivery: Article 33	107	(1)
Express and Implied Warranties	107	(14)
Warranties: Article 35	110	(8)
Risk of Loss and Warranties: Article 36	118	(1)
Effect of Seller's Knowledge: Article 40	119	(2)
7 COMMON OBLIGATIONS OF BUYERS AND SELLERS	121	(11)
Passing of Risk	121	(2)
Fundamental and Anticipatory Breach	123	(9)
Fundamental Breach: Article 25	125	(3)
Anticipatory Breach, Adequate Assurance, and installment Contracts: Articles 71-73	128	(4)
8 BREACH OF CONTRACT BY SELLER	132	(8)
Right to Substituted or Repaired Goods	133	(1)
Right to Affix Additional Time	134	(1)
Right to Avoid Contract	135	(3)
Right to a Price Reduction	138	(2)
9 BREACH OF CONTRACT BY BUYER	140	(11)
Nachfrist Notice: Article 47	142	(3)
Late Performance: Article 48	145	(1)
Avoidance of Contract: Article 64	146	(3)
Effects of Avoidance: Articles 81-84	149	(2)
10 DAMAGES, EXCUSE, AND PRESERVATION	151	(12)
Calculation of Damages: Articles 75 and 76	151	(2)
Limiting Doctrines: Articles 74 and 77	153	(5)
Doctrine of Foreseeability	154	(2)
Attorney Fees and Debt Collection	156	(1)
Doctrine of Mitigation	157	(1)
Impediment (Excuse) to Performance: Article 79	158	(2)
Preservation of Goods: Articles 87 and 88	160	(3)
11 SUMMARY AND OBSERVATIONS	163	(16)
Developing an International Jurisprudence	164	(10)
Filling in the Gaps and the Fabrication of Specific Default Rules	165	(1)
Particularized Express Consent	166	(2)
Importance of Trade Usage in CISG Rule Application	168	(3)
Importance of Notice	171	(1)
Burden of Proof	172	(2)
Persistence of Homeward Trend	174	(3)
Summary	177	(2)
TABLE OF AUTHORITIES AND CASES	179	(30)
APPENDIX A: UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS (CISG) (APRIL 11, 1980)	209	(22)
APPENDIX B: CISG: TABLE OF CONTRACTING STATES (AS OF FEBRUARY 8, 2005)	231	(2)
Index	233