In which I get a question wrong by applying the right law

[ouij]

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

Comments

I hear ya

[ext_208996]

Never thought I'd be so annoyed that our 1L K's prof taught us CISG.

Re: I hear ya

[ouij]

It's killing me for the bar exam.

But there's a real problem out there. The United States is a party to the CISG--indeed, was one of the main forces during its drafting and adoption. All the other CISG contracting states, it seems, have done a much better job of realizing when the Convention applies and overrides their municipal law.

American lawyers, it seems, don't even know the CISG exists. American judges are so out of touch that they ignore it (giving the lie to the maxim jus novit curia), or, where they do realize its applicability, ignore the CISG and interpret it as if it were the UCC anyway. The Seventh Circuit notoriously got it wrong in Zapata Hermanos v. Hearthside Baking, 313 F.3d 385 (7th Cir. 2003)--interpreting the CISG like the UCC, where the CISG's own rules of interpretation command courts to interpret it consistent with its international character.

Assuming we get out of the bar alive, we'll become part of the solution--but for now, the American ignorance of the CISG is our problem.

Re: I hear ya

[cptjohnc]

nothing like getting to the party really late, but:

you have (rightly to my knowledge) pointed out that the US, while recognizing and adopting said treaty, largely ignores it in the real world. As such, there is no reason for (most) US lawyers to know it, or care about it (for now). Unless, that is, the application of it would somehow provide a significant benefit your client, in which case you might/should try to apply it -- while recognizing that your argument is likely doomed to fail

Re: I hear ya

[ouij]

Part of the problem has to do with the structure of federalism. The law of sales is a product of state law--the UCC. But the CISG is a treaty, which is supreme federal law, preempting the UCC where the treaty applies.

It's really not that complicated. Ask: Is it a sale of goods? If yes, then: are the buyer and the seller located in different countries? If yes, then: Is one of those countries a CISG state? If yes, then: do conflict-of-laws rules demand the application of the laws of the CISG sate? If yes, then you must apply the CISG.

In practice, any lawyer worth his salt advising a client on an international sale of goods would include choice of law and arbitration clauses in the contract--that would insulate the parties from this kind of judicial idiocy.

I wouldn't be so upset if the United States were not so active in the drafting and adoption of the CISG. For instance, the U.S. is not a party to the United Nations Convention on Contracts for the Carriage of Goods Wholly or Partly By Sea Rotterdam Rules, so I don't