In which I get a question wrong by applying the right law
So it's a run of the mill practice MBE question: Tulip-seller in Holland offers by telephone to sell tulip bulbs, in $QUANTITY at $PRICE to American flower retailer. Retailer responds by letter, confirming the deal. The letter contained both the price and quantity terms. Because of a calamity in Holland, the tulip-seller does not perform. In the inevitable lawsuit, retailer demands specific performance, and the tulip-seller defends with the Statute of Frauds.
Naturally, the tulip-seller loses, because the letter contained both the price and the quantity terms.
Nope. The tulip-seller loses, because the UCC's Statute of Frauds is satisfied by merely including the quantity term
But the U.C.C. is not applicable to this contract, God damn it.. This is a contract for the sale of goods between someone in Holland and someone in the USA. Both countries are parties to the Convention on the International Sale of Goods. Both the USA and Holland are contracting states to the CISG, so by its own terms, the CISG applies. The Statute of Frauds does not.
OK, fine. Don't fight the question. The question wanted an American statute of frauds, so you give it to them. Fine, I get that. But it bugs the hell out of me that the question demands the application of the wrong goddamn law. Just because it's a sale of goods doesn't make it a UCC issue--if it crosses an international border, it might be a CISG sale.
And in this case, I happen to know (much to my detriment), there is no Statute of Frauds to satisfy, as Article 11 of the CISG dispenses with that. The contract for sale is formed when we have definite price and quantity terms: Article 12 tells us that.
So, lumbering on, I selected the right CISG answer for this MBE question and totally ignored the fact that the examiners wanted me to apply the wrong law anyway.
I guess I don't know why I'm so mad about it. It's the bar, not real life. It's the MBE, which is SO unreal that it's not even funny. American courts don't even seem to know that the CISG exists (and, where applicable, supreme over the state U.C.C. as a treaty!). I'm unlikely to see an international sale on the real bar exam.
But it bugs me all to hell that I got this question wrong because I got this question right.
Naturally, the tulip-seller loses, because the letter contained both the price and the quantity terms.
Nope. The tulip-seller loses, because the UCC's Statute of Frauds is satisfied by merely including the quantity term
But the U.C.C. is not applicable to this contract, God damn it.. This is a contract for the sale of goods between someone in Holland and someone in the USA. Both countries are parties to the Convention on the International Sale of Goods. Both the USA and Holland are contracting states to the CISG, so by its own terms, the CISG applies. The Statute of Frauds does not.
OK, fine. Don't fight the question. The question wanted an American statute of frauds, so you give it to them. Fine, I get that. But it bugs the hell out of me that the question demands the application of the wrong goddamn law. Just because it's a sale of goods doesn't make it a UCC issue--if it crosses an international border, it might be a CISG sale.
And in this case, I happen to know (much to my detriment), there is no Statute of Frauds to satisfy, as Article 11 of the CISG dispenses with that. The contract for sale is formed when we have definite price and quantity terms: Article 12 tells us that.
So, lumbering on, I selected the right CISG answer for this MBE question and totally ignored the fact that the examiners wanted me to apply the wrong law anyway.
I guess I don't know why I'm so mad about it. It's the bar, not real life. It's the MBE, which is SO unreal that it's not even funny. American courts don't even seem to know that the CISG exists (and, where applicable, supreme over the state U.C.C. as a treaty!). I'm unlikely to see an international sale on the real bar exam.
But it bugs me all to hell that I got this question wrong because I got this question right.