Reproduced with permission of 97 Harvard Law Review (1984) 1984-2000
Note by Law Student
The considerable increase in international commerce in recent decades  has spurred efforts to unify international commercial law. The United Nations Convention on Contracts for the International Sale of Goods  (CISG), which the United States and other nations are currently considering for ratification, represents a major product of those efforts. The CISG reflects competing interests in contemporary [page 1984] international commercial relations. Trade regularly crosses legal and ideological boundaries  -- common and civil law systems, capitalist and socialist governments, and industrialized and developing nations; the effort to create international legal regimes must confront these differences. The unification effort must accordingly make not only technical, but also fundamentally political choices. This Note questions the extent to which the drafters of the CISG appropriately made such choices.
One criterion for evaluating any codification of international legal norms is the degree to which the effort enhances certainty -- a quality of law that facilitates common understanding among parties to international contracts and fosters uniform application of international law in national courts. This Note examines the choices embodied in the Convention in light of this goal of promoting certainty. Part I considers [page 1985] elements of certainty by discussing the negotiation and structure of unified international rules. Part II analyzes specific CISG provisions and finds that the Convention includes provisions likely to generate significant uncertainty. Part III argues that uncertainty in the CISG might justify nonratification by the United States. Part IV proposes a set of basic assumptions to guide future participants in the unification effort.
I. ELEMENTS OF UNCERTAINTY IN INTERNATIONAL UNIFICATION
The mere formulation of a unified set of international rules of commerce does not guarantee certainty among parties to international transactions. Both the style of negotiation by which unified rules are adopted and the structure of the rules themselves significantly influence the degree to which such rules produce certainty. Further, in negotiating and in actually drafting unified rules, delegates to international conventions face not only technical problems, but also political choices.
A. Negotiation: Compromise versus Consensus
The process of unifying law through international conventions composed of national delegates  permits two types of legislative agreement: consensus on the underlying meaning of a rule and compromise on the language of the rule. As used here, compromise entails merely the technical formulation of a text whose meaning may be malleable. Consensus, by contrast, involves a more basic agreement -- on either a universally accepted practice or norm  or on a principle that underlies superficially dissimilar national rules or reconciles more deeply divergent rules. In previous eras, compromise may have been [page 1986] an effective means to help unify the laws of nations with substantially similar legal and cultural norms. More recently, however, international law has undertaken a more ambitious task: creating a uniform legal order for nations with fundamentally different legal systems. This development limits the efficacy of compromise and necessitates the more penetrating approach of consensus.
B. The Structure of Rules: Description versus Prescription
The effort to unify law raises the dilemma of whether to frame principles by describing existing commercial custom  or rather to prescribe new rules of conduct. Descriptive rules reinforce and legitimate existing practices; prescriptive rules advance new practices. When widely shared international commercial customs define an area of law, the proper task of delegates is simply to describe those customs. But often there is no common custom regarding a particular issue; alternatively, common custom may seem to exist, but courts may interpret it in different ways. In such cases, drafters must prescribe new rules of conduct. [page 1987]
The actual degree of certainty generated by a rule also depends on its scope. Scope refers to the variety of fact situations to which a rule can be applied. A rule that incorporates descriptions of various customs is likely to create less certainty than one that prescribes a single, clearly defined practice.
II. A CRITIQUE OF CISG PROVISIONS
A. The Tendency Toward Uncertainty in the CISG
Some of the informal legislative history of the CISG suggests that the negotiators developed a deep consensus, but this suggestion may be misleading. Many reports on the process of negotiating the CISG refer to a supposedly pervasive unanimity. In reality, that 'unanimity' resulted from the practice of allowing resolutions to be passed without voting on them. When the Chairman 'sensed' that a 'basis for consensus' had been reached, he invited the group to accept that result. Persistent objections were dispelled by entering 'reservations' in the record. Of course, it would be unrealistic to expect any international negotiation to produce unanimity: persuading nations that their own laws are not suitable as international legal standards is bound to generate tensions. Indeed, the actual negotiations of the CISG were marked by obstinacy and confrontation. The problem with the CISG is that these disagreements were worn away through attrition rather than resolved by consensus.
The negotiators often declined to reconcile conflicts over fundamental principles. Instead, they sought to compromise on linguistic [page 1988] formulations amenable to all points of view  -- formulations that consequently lack any determinate meaning. These compromises appeared in several forms: a principal rule with exceptions, a rule accommodating many types of doctrines, or a rule consisting of conflicting or at least unresolved subparts. The delegates may have accepted compromises simply because they regarded the portions reflecting their own national laws to be the essence of the new formulations. The possibility of divergent treatment in national courts was thereby preserved, if not increased, because the meaning of the rules depends on the weight accorded their disparate elements at the time they are interpreted. The delegates, by compromising on indeterminate rules, seem to have placed on national courts the ultimate burden of defining standards of conduct. An analysis of specific examples demonstrates the seriousness of this problem.
1. Trade Usages. -- Trade usages  were a subject of both North-South and East-West political controversy. Third world and Eastern European countries had feared that the traditional concept of trade usages would favor usages developed over time by the industrialized Western nations. The debate should have resolved two underlying disputes over alternative standards: general versus local usages  and traditional versus contemporary usages. Any meaningful unification [page 1989] would necessarily have been based on a doctrinal choice of a fundamentally political nature. The CISG formulation, however, seems not to choose among those four conceptions and therefore will likely lead to inconsistent results. On the issue of general versus local usages, for instance, the drafters adopted a standard of objective observance. Yet the provision fails to specify whose observance shall be the measure of objectivity or what prescriptive standard might guide that determination. Similarly, on the issue of traditional versus contemporary usages, the drafters adopted a standard of regular observance. This standard, however, fails to specify when a usage becomes regular. The willingness of delegates to compromise dictated the structure of the resulting rules; compromise in this instance led to a provision [page 1990] descriptive of many commercial practices and thus prescriptive of none.
2. Good Faith. -- Different legal systems attach different meanings to common doctrinal terms. The 'good faith' provision of the CISG  represents an agreement to impose some requirement of 'good faith' in international commercial dealings, but it reflects no deeper consensus on the meaning or application of the term. Some delegates had supported a general rule that, at least during contract formation, parties must respect principles of 'fair dealing' and act in 'good faith.' Others had argued that such terms are ambiguous and would therefore create uncertainty.
The compromise reached was that 'good faith' would be employed solely as 'a principle for interpreting the provisions of the Convention.' Yet because the CISG does not define 'good faith,' this rule of construction does not allay the uncertainty. In applying the rule, national courts remain free to draw on domestic -- and hence diverse -- conceptions of 'good faith.' The compromise thus led to a provision that invites conflicting interpretations.
3. International and Domestic Law: The Problem of Gap-Filling. -- The delegates also disagreed about the ability of the CISG to provide 'general principles' that could fill gaps in the explicit provisions of the proposed enactment. Some delegates feared that courts would look hastily to national law even though 'general principles' might guide a decision. This fear suggests a deeper suspicion that courts would interpret international law nationalistically, as well as a belief that such interpretation would be undesirable. In contrast, [page 1991] other delegates questioned the existence of general principles of international law or at least the ability of such principles to resolve specific cases. Again, the negotiators compromised, providing for a two-step procedure to fill gaps in the CISG. First, if explicit provisions, interpreted in light of the CISG's 'international character,' do not resolve a question, the adjudicator should seek an answer in the CISG's 'general principles.' Second, if no 'general principles' apply to the case, the adjudicator should seek to fill the gap in the CISG on the basis of 'the law applicable by virtue of the rules of private international law.'
This compromise restated rather than resolved the original disagreement among the delegates concerning general principles. By declining to define the 'general principles' underlying the CISG, and by failing to provide choice-of-law principles in the event of a gap in the rules, the compromise offered at best a theoretical hierarchy of authority in international trade cases, without providing standards for proceeding within that hierarchy. Moreover, because the term 'general principles' is indeterminate, disputants will ultimately argue over what other law applies. It is precisely this conflict that unification is intended to avoid.
4. Excuse for Nonperformance. -- The CISG provision on excuse  is a compromise between the common law impossibility doctrine and the civil law force majeure doctrine. The former doctrine views impossibility as an exception to absolute liability and as a justification for automatic termination of the contract. The latter doctrine regards impossibility as an excuse for nonperformance based on the lack of fault and therefore bars any claim for damages. Because these [page 1992] approaches are quite distinct, and because they may reflect more fundamental differences in values and assumptions, the outcome of a dispute governed by this CISG provision may ultimately turn on whether a court chooses to emphasize the common law or civil law view -- a choice that will largely depend on the predilections of the court itself. The excuse provision is not only an uncertain compromise, but also a rule of precariously broad scope. The provision applies to too many situations and allows too many possible results to guide particular decisions effectively.
This uncertainty exists despite the seemingly clear language of the provision:  the provision creates only an illusion of certainty. To the extent that the provision resolves some cases, it is said to be an improvement over the present choice-of-law dilemma. But because the rule creates an illusion of certainty, it gives parties an incentive not to fix a particular governing doctrine by private agreement, and hence it may ultimately undermine contractual relations. The negotiators would have better served the goal of certainty had they eschewed descriptive compromise and instead provided a specific prescriptive standard.
5. Reduction-of-Price Remedy. -- Despite theories that the civil law and the common law are converging, the attempt to incorporate essentially civil law or common law doctrines into the CISG met with considerable difficulty in several cases. For example, the CISG [page 1993] adopts the civil law doctrine that if goods delivered do not conform to the contract, the buyer's remedy is an appropriate reduction in the contract price. Because this doctrine was unknown to common law lawyers, significant disagreement arose during the negotiating and drafting of the reduction-of-price provision. The drafters therefore sought to characterize the doctrine in a way acceptable to the common law lawyers and consistent with the CISG's other breach-of-contract provisions. They developed a series of provisions that do not reflect custom  and that, although 'in general harmony with one another, will often be unfamiliar to lawyers from any given legal system.' In this sense, the result appears as a prescription achieved through compromise and hence as an invitation to uncertainty.
This provision may be especially indeterminate because it creates a law unknown to any legal system. Common law lawyers or judges may misconstrue reduction of price as a damage remedy, and civil law lawyers or judges may misperceive common law doctrine in light of the compromise. These dangers will not likely be avoided by analysis of the intent of the drafters: studies conducted during the CISG negotiations revealed not a shared intent, but the common law and civil law biases of the participants in the studies. Stated simply, [page 1994] 'a provision which has one meaning or justification in the legal system from which it emanates may take on an entirely different meaning in a new context.'
Some have argued that the interpretive problems posed by the reduction-of-price provision can be solved by supplying a commentary, updated periodically, to accompany the text. As in the case of the 'good faith' provision, however, it is difficult to imagine that scholars and national courts will succeed where international delegates have failed. More likely, the effect of the provision will change with the expectations and interests of its reader.
B. Examples of Certainty in the CISG
It would be a gross overstatement, of course, to suggest that all of the provisions of the CISG will produce uncertainty. Three provisions -- those concerning the time at which acceptance becomes binding, the duty of disclosure between contracting parties, and the transfer of risk -- provide examples of how, by consensus, the drafters formulated rules that seem to promise certainty. Even these examples, however, reveal that the negotiators succeeded only when they considered politically noncontroversial topics. Further, the third example, the transfer-of-risk provision, demonstrates that even a generally certain rule can be undermined by technical omissions or by its own dependence on other, less certain rules.
1. Receipt Theory Versus Dispatch Theory. -- Nations have different rules regarding when an offeree's acceptance becomes binding on the offeror. According to the Anglo-American 'mailbox rule,' a binding contract is established at the moment of dispatch. Other legal systems fix receipt as the operative moment. The delegates agreed upon the receipt rule. The result may reflect a normatively neutral choice; countries chose one rule over another only because, as a matter of convenience, one rule must be chosen. Countries are willing to adopt a rule other than their own in such circumstances [page 1995] because the particular principle adopted is a matter of indifference to them. The CISG receipt rule therefore appears to be a rule based on genuine consensus; it will likely foster certainty.
2. Communications Between Parties. -- Virtually all legal systems share common principles and policies concerning disclosure of information between contracting parties. It is not surprising, therefore, that many CISG provisions impose a duty on contracting parties to disclose material information to their counterparts. It seems likely that consensus guided the adoption of these unified rules -- rules that merely codified the duty of disclosure customarily imposed on contracting parties in the negotiating countries.
3. The Transfer of Risk. -- International commercial custom has long established an elaborate system for transferring risk between exporters and importers based on the type and terms of documentary sales contracts. In addressing the issue of when risk is transferred, however, supporters of unification had long sought to discard, once and for all, the 'awesome relics from the dead past.' In the spirit of the more general expressions characteristic of civil codes, the drafters of the CISG adopted a simple general rule: risk passes to the [page 1996] buyer upon the handing of the goods to the carrier. This formulation runs counter to the classic principle of documentary transactions -- that the transfer of the documents, not the transfer of the goods themselves, governs title and risk. Nonetheless, the delegates appear to have reached consensus on this narrowly focused prescription.
Even a determinate rule, however, may be undermined by its own omissions and by related rules that are less determinate. For example, the drafters' decision not to define such technical terms as ex dock and ex works leaves much of the onus of definition to parties employing the terms or to courts interpreting trade usage. In addition, although the CISG provides that risk does not pass to the buyer when the seller is in 'fundamental breach,' the implications of this new prescriptive rule are not entirely clear. The complexity of the new regime governing transfer of risk may have prompted the endorsers of the provisions to emphasize the freedom of the parties to override CISG provisions by private agreement. But if the parties do not override the provisions, and if they have divergent yet reasonable expectations of risk based on custom, one wonders whether the rule of decision is to be dictated by those expectations -- which are specifically protected by the CISG  -- or by the CISG's risk provisions themselves. The certainty of the risk provisions is thus eroded by the uncertainty surrounding other issues.
III. CERTAINTY AND RATIFICATION
The United States Senate is currently considering ratification of the CISG, and some have predicted that the Convention's fate in that [page 1997] forum will have repercussions in others. This Note has suggested that the utility of the CISG turns on the degree to which it would enhance certainty. Although, the language of the CISG may superficially seem to suggest that the convention embodies a significant advance toward the unification of international law, this appearance masks a fundamental disunity in the way nations are likely to understand the various provisions. Such disunity might not become fully apparent, however, until the law is actually applied to specific cases.
The uncertainty that permeates the provisions of the CISG might justify a decision by the United States not to ratify the Convention. The illusion of certainty created by the CISG would likely attract parties to rely on the Convention in structuring their transactions, only to find later that their expectations were not protected. In such instances, one could no longer defend the CISG as a workable, albeit imperfect uniform law; rather, one would have to concede that the Convention had not fulfilled its fundamental mission of bringing certainty to the conduct of international trade.
A. The Argument that Courts Create Certainty
Commentators have suggested that uniform application of a supposedly uniform text will correct the text's latent defects. It is true that the courts of different countries are the ultimate interpreters of international law. But the possibility of uniform judicial application presupposes either that the text will leave judges with little room for doctrinal choice or that the courts of each nation will respect the precedents of other national courts. Both of these presuppositions are doubtful. The ideal of a ius commune  requires uniform application [page 1998] of law, and uniform application requires a unified law possessing a high degree of certainty; indeterminate rules permit judicial interpretation guided by diverse national doctrines and values.
B. The UCC and the Nationalistic View of the CISG
Notwithstanding the Convention's flaws, commentary on the CISG in the United States has been favorable. Advocates of the CISG, however, have suggested potentially conflicting reasons for ratification. Some commentators praise the CISG as a body of law fundamentally similar to article 2 of the UCC. Others praise it as a viable unification of international commercial law. But because the UCC is neither substantially similar to the laws of other nations nor readily acceptable to those nations, either or both of the asserted reasons for ratification are likely overstated. Indeed, the endorsement of the CISG based on this supposed similarity to the UCC may spring from a narrow, nationalistic focus on aspects of the unified law suggestive of American law.
Further, the more that particular CISG provisions do resemble the UCC, the less likely it is that the Convention will produce certainty. The UCC is a relatively open-textured set of rules. Even if an open-textured set of rules is workable in a domestic legal code, it is unsound in an international convention. For example, the UCC, like the CISG, declines to rank traditional, contemporary, general, and local trade usages in order of priority. But the UCC addresses the problem of usages in a society of relatively homogeneous business practices  -- a society in which courts are bound to follow a common law. Common business customs and a common jurisprudence thus constrain the permissiveness of the UCC's rules on trade usages. [page 1999]
By contrast, private international law is subject to no such constraints. Trade practices differ substantially among capitalist and planned societies, among developed and less developed countries, and among civil and common law jurisdictions. Further, no single judicial system applies international law. The CISG fails to reconcile national differences and bridge the gap separating national courts. It thus does not achieve the very purpose for which it was created.
IV. CONCLUSION: LESSONS FOR THE FUTURE OF UNIFICATION
Beyond these concerns lie broader considerations for the future. First, it seems mistaken for the advocates of unification to believe that the mere composition of a legal text constitutes a first step toward unified law. Second, unification best promises certainty when negotiators produce hard-won consensus rather than expedient compromise. Third, a provision will produce certainty if it contains, within a well-defined scope, either a description of custom or, if no acceptable custom exists, a prescription based on a clearly defined principle. Finally, the realization of these ideals likely necessitates recognition that, at bottom, unification is not merely a technical task, but also a political endeavor. Only through this recognition can the unification effort escape the mire of technical mishap and produce the certainty that should be the goal of an international law. [page 2000]
1. By the mid 1970's, annual world trade had expanded to nearly $800 billion F.O.B. (free on board) and to more than that amount C.I.F. (cost, insurance, freight). See BUREAU OF STATISTICS, INT'L MONETARY FUND, INTERNATIONAL FINANCIAL STATISTICS 36-37 (Nov. 1976); see also David, The Methods of Unification, 16 AM. J. COMP. L. 13, 18 (1968) (contrasting 20th century global interdependence with 19th century Eurocentrism).
2. As employed in this Note, 'unification' refers to the task of synthesizing a single law from divergent national laws governing a particular problem. See Merryman, On the Convergence (and Divergence) of the Civil Law and the Common Law, 17 STAN. INT'L L.J. 357, 365-67 (1981). On the history of the unification effort, see note 5.
3. Final Act of the U.N. Conference on Contracts for the International Sale of Goods, Official Records, Annex I at 230 (Apr. 10, 1980), U.N. Doc. A/ Conf.9 7/18 [hereinafter cited as CISG], reprinted in 19 INT'L LEGAL MATERIALS 668 (1980). For a comprehensive treatise on the CISG, see J. HONNOLD, UNIFORM LAW FOR INTERNATIONAL SALES UNDER THE 1980 UNITED NATIONS CONVENTION (1982). Professor Honnold was a United States delegate to the Hague Conference of 1964 and made a significant contribution to the CISG.
The CISG contains 101 articles and is divided into four parts. Part I defines the scope of the CISG and sets out general provisions. Part II governs the formation of contracts. Part III establishes the rights and obligations of contracting parties. Part IV sets out procedures for implementing the CISG and provides for reservations that a ratifying state may make. See S. TREATY DOC. NO. 98-9, 98th Cong., 1st Sess. 1 (1983) [hereinafter cited as SENATE TREATY DOC.].
4. The State Department currently endorses ratification of the CISG subject to the addition of a reservation that the United States will consider the CISG binding only when seller and buyer have their places of business in different contracting countries. See SENATE TREATY DOC., supra note 3, at v-vii. Representatives of 62 nations were present at the signing of the CISG. See id. at v. Twenty-one nations, including the United States, signed the Convention; of these nations, France, Hungary, and Lesotho had ratified the CISG by September 1, 1983. See Lawyers' Comm. on the Convention on Contracts for the Int'l Sale of Goods, Memorandum: On the Threshold of an International Law of Sales 10 (Sept. 23, 1983) (unpublished manuscript on file in the Harvard Law School Library) [hereinafter cited as Lawyers' Committee Memorandum]. Three nonsignatory states, Argentina, Egypt, and Syria, have acceded to the CISG. See id.
5. The modern effort at unification dates at least from 1935, when the International Institute for the Unification of Private Law presented a draft of an international sales law. See Honnold, The Draft Convention on Contracts for the International Sale of Goods: An Overview, 27 AM. J. COMP. L. 223, 226 (1979) [hereinafter cited as Honnold, Overview]; Honnold, A Uniform Law for International Sales, 107 U. PA. L. REV. 299, 302 n.5 (1959) [hereinafter cited as Honnold, Uniform Law]. This early attempt was followed by the 22 member Hague Conference of 1964, which drew on earlier drafts to create the Convention on a Uniform Law on the International Sale of Goods (with Annex), July 1, 1964, 834 U.N.T.S. 107, reprinted in 3 INT'L LEGAL MATERIALS 855 (1964), and the Convention on a Uniform Law on the Formation of Contracts (with Annex), July 1, 1964, 834 U.N.T.S. 169, reprinted in 3 INT'L LEGAL MATERIALS 864 (1964). See Honnold, Overview, supra at 223-24. Although the United States took little interest in the drafting of the ULIS and ULF, see Nadelmann, The Uniform Law on the International Sale of Goods: A Conflict of Law Imbroglio, 74 YALE L.J. 449, 462 (1965), it took a more active role in the drafting of the CISG, see Winship, New Rules for International Sales, 68 A.B.A. J. 1231, 1232 (1982) (noting that the United States participated in the 14-member working group that drafted the CISG).
The modern unification movement has significant historical antecedents. See H. BERMAN, THE LAW OF INTERNATIONAL COMMERCIAL TRANSACTIONS (Lex Mercatoria) 4 (2d fol. ed. 1983) (to be published in 3 A LAWYER'S GUIDE TO INTERNATIONAL BUSINESS TRANSACTIONS (W. Surrey & D. Wallace eds.)) (citing examples of attempts at unification since 300 B.C.); Merryman, supra note 2, at 386 (suggesting that current unification draftsmen, among others, may be 'our modern Glossators and Commentators'). International trade has historically relied upon de facto unity based on lex mercatoria, or international commercial custom. See Horn, Uniformity and Diversity in the Law of International Commercial Contracts, in THE TRANSNATIONAL LAW OF INTERNATIONAL COMMERCIAL TRANSACTIONS 3, 15-16 (N. Horn & C. Schmitthoff eds. 1982). Although courts early recognized international custom as national law, see, e.g., Pillans v. van Mierop, 3 Burr. 1663, 97 Eng. Rep. 1035 (K.B. 1765) (Mansfield, C.J.) (holding that the rules of the law merchant are questions of law to be decided by the court), they later interpreted international law nationalistically, see H. BERMAN, supra, at 5 (discussing foreign and domestic courts' nationalistic interpretations of international law dicta in Swift v. Tyson, 41 U.S. (16 Pet.) 1 (1842)).
6. See Farnsworth, Developing International Trade Law, 9 CAL. W. INT'L L.J. 461, 465-67 (1979) (describing North-South and East-West confrontations during the CISG negotiations).
7. See generally R. KEOHANE & J. NYE, POWER AND INTERDEPENDENCE (1977) (discussing the pervasive influence of contemporary political and economic interdependence on the creation and management of international legal regimes).
8. See 2 R. GRAVESON, ONE LAW: ON JURISPRUDENCE AND THE UNIFICATION OF LAW 205 (1977) ('[T]he greatest obstacle to legislative unification is the political factor ....').
9. Cf. Merryman, supra note 2, at 364-65 (asserting that the effort toward legal unification springs from the desire for simplicity and certainty). This Note does not specifically address application of international law in commercial arbitration. Some of the problems that the Note addresses regarding national courts, however, may also apply to arbitration. See, e.g., H. Berman, Statement to the United States Senate Committee on Foreign Relations 3, 5 (Apr. 10, 1984) (unpublished manuscript on file in the Harvard Law School Library) (noting that the CISG involves problems for courts and arbitral tribunals).
10. Cf. 2 R. GRAVESON, supra note 8, at 205 (asserting that uniform law is not necessarily desirable).
11. See R. DAVID, THE INTERNATIONAL UNIFICATION OF PRIVATE LAW 84-94 (International Encyclopedia of Comparative Law Vol. 2, ch. 5, 1971) (describing classic unification procedure).
12. See Rosett, Critical Reflections on the United Nations Convention on Contracts for the International Sale of Goods, 45 OHIO ST. L.J. 265, 270 (1984) (contrasting consensus and compromise); cf. David, supra note 1, at 15 (contrasting '[u]nification of law' with 'uniformization of the rules of law').
13. In such compromises, delegates agree on general terms although each may have an understanding of those terms different from that of others. Cf. Nicholas, Force Majeure and Frustration, 27 AM. J. COMP. L. 231, 231 (1979) ('One must be on the lookout for superficial harmony which merely mutes a deeper discord ....').
14. Such practices and norms constitute 'custom.' See supra note 5; infra note 20.
15. Cf. R. FISHER & W. URY, GETTING TO YES 3-14 (1981) (asserting that principles are the ideal bases of negotiated agreements); H. Hart & A. Sacks, The Legal Process 789 (tent. ed. 1958) (unpublished manuscript on file in the Harvard Law School Library) (noting recognition by drafters of the French Civil Code that the 'science of the legislator' is to identify principles).
The search for a ius commune -- a unified law applied uniformly -- has been a fundamental purpose of comparative law since its inception in the early 19th century. See David, supra note 1, at 26-27, cited in Cairns, Comparative Law, Unification and Scholarly Creation of a New Ius Commune, 32 N. IR. LEGAL Q. 272, 274 (1981). Some jurists have sought a technical solution to the unification problem. See, e.g., R. DAVID, supra note 11, at 84-94; David, supra note 1, at 27 (conceiving unification as 'legal science'); see also Cairns, supra, at 282 (describing Prof. René David's view as 'technical'). Professor John Cairns has characterized Professor David's view as one that expresses 'a basic aim of comparative law,' as articulated at the World Congress of 1900. Id. at 272 & n.2. Other commentators, however, have envisioned unification as an ultimately political project. See, e.g., 2 R. GRAVESON, supra note 8, at 210-11 (noting differences in 'social and economic contexts,' legal training, religion, and constitutional law); Cairns, supra, at 282 (asserting that unification is hindered by 'ideological differences'); Rabel, The Hague Convention on the Unification of Sales Law, 1 AM. J. COMP. L. 58, 67 (1952) (stating that international agreements require 'the widest and most profound comparative research possible').
16. Cf. Rosett, supra note 12, at 267 (noting that unification efforts earlier in the 20th century involved only 'industrialized, capitalist, Western European governments').
17. Cf. id. at 268 (noting increasing attempts to include socialist and nonindustrialized countries in unification efforts). One Hungarian professor of law and frequent delegate to international conventions parodied the compromise method in this way:
"This is a highly important matter, Sir! And it should be decided in a way which promotes genuine unification and not only unification in words! Comparative law teaches us that genuine unification can be attained only if the different legal systems are mixed! Thereby they will sooner or later be merged! A World Law will emerge, Sir! For these reasons, Mr. Chairman, my delegation suggests that we insert two equally valid and official texts into our Draft Uniform Law, that is: 'The dog shall mewl' and 'The cat shall bark'! This might satisfy everybody!Eörsi, Unifying the Law (A Play in One Act, With a Song), 25 AM. J. COMP. L. 658, 659 (1977)."
18. International law has almost always been based on custom. See supra note 5.
19. See Cairns, supra note 15, at 277 (asking whether codification entails a 'fresh start'). Although all legal rules prescribe conduct, 'prescriptive' is used in this Note to connote the particular kind of prescription that looks beyond extant custom.
20. See, e.g., H. BERMAN, supra note 5, at 33-42 (discussing judicial conceptions of custom in cases involving received-for-shipment bills of lading, delivery orders, marine insurance certificates, and bank indemnities under letters of credit). One classic problem is the tension between 'normative' and 'behavioral' custom. See id.
21. Cf. Kennedy, Form and Substance in Private Law Adjudication, 89 HARV. L. REV. 1685, 1690 (1976) ('[T]he wider the scope of the rule, the more serious the imprecision becomes.').
22. Compare, e.g., CISG art. 9, reprinted in 19 INT'L LEGAL MATERIALS, supra note 3, at 674 (describing many forms of trade usage, as discussed on pp. 1989-90), with id. art. 15, reprinted in 19 INT'L LEGAL MATERIALS, supra note 3, at 675 (offer becomes effective when it reaches the offeree). Ideally, a rule with a narrow scope defies interpretive manipulation. But see J. FRANK, LAW AND THE MODERN MIND 6 (1930) ('The law always has been, is now, and will ever continue to be, largely vague and variable.').
23. See, e.g., Honnold, The United Nations Commission on International Trade Law: Mission and Methods, 27 AM. J. COMP. L. 201, 210 (1979).
24. Id. at 210.
25. Id. at 211.
26. See Farnsworth, supra note 6, at 467. Professor E. Allan Farnsworth, formerly a member of the United States delegation to the CISG negotiations, observed that
"you do not quite get unanimity. The Chairman will face a few people down. If nobody agrees with the speaker, certain reservations are entered in the nature of footnotes and the Commission gets along with its business. Failing that, progress is made by talking each other to death and by being extremely persistent from one session to another until, by a process of attrition, someone gives in." Id.
27. See, e.g., Honnold, supra note 23, at 210 & n.29 (comparing UNCITRAL procedures to those of a Quaker meeting).
28. Cf. Eörsi, Problems of Unifying Law on the Formation of Contracts for the International Sale of Goods, 27 AM. J. COMP. L. 311, 323 (1979) (noting ambiguity and complexity of the CISG rules). Some of the rules are simply hybrids of divergent national rules. See id. (noting the importance of avoiding a method of unification that 'commingle[s] the solutions of different legal systems within the same ... rule').
29. Although some commentators endorse the rule-exception method, see, e.g., id. at 323, this method is clearly inadequate when the parties disagree over whether a case falls into a rule or an exception, see, e.g., infra p. 1997 (noting 'fundamental breach' exception to rule on transfer of risk).
30. See infra text accompanying notes 33-40 (discussing trade usages).
31. See infra pp. 1992-93 (discussing excuse for nonperformance).
32. Cf. R. DWORKIN, TAKING RIGHTS SERIOUSLY 81-131, 279-91 (1977) (positing that judges decide hard cases by ascertaining the weight of competing principles).
33. 'Usages' generally indicates trade practices commonly adopted by certain businesses. By contrast, 'custom' refers more generally to be facto legal norms derived from 'commercial usages, standard clauses, contracts or contractual rules.' Horn, supra note 5, at 15.
34. See Farnsworth, supra note 6, at 465-66.
35. See id.
36. See Dore & DeFranco, A Comparison of the Non-Substantive Provisions of the UNCITRAL Convention on the International Sale of Goods and the Uniform Commercial Code, 23 HARV. INT'L L.J. 49, 56-58 (1982); cf. Comptoir d'Achat et de Vente du Boerenbond Belge, S.A. v. Luis de Ridder, Limitada (The Julia),  1 All E.R. 269 (H.L.) (holding that local custom may not prevail over a general trade usage).
37. See Dore & DeFranco, supra note 36, at 58 (discussing the effect of technological change on trade usage).
38. Article 9 of the CISG states:
"(1) The parties are bound by any usage to which they have agreed and by any practices which they have established between themselves.(2) The parties are considered, unless otherwise agreed, to have impliedly made applicable to their contract or its formation a usage of which the parties knew or ought to have known and which in international trade is widely known to, and regularly observed by, parties to contracts of the type involved in the particular trade concerned." CISG art. 9, reprinted in 19 INT'L LEGAL MATERIALS, supra note 3, at 674.
39. Although it has been correctly noted that an objective-observance standard linguistically resembles that of § 1-205(2) of the UCC, see J. HONNOLD, supra note 3, § 120, at 147-48, the resemblance begs the politically controversial question of whose usage matters. Professor Honnold declines to consider this question. See, e.g., id. § 121, at 148 (discussing local usages but referring generally to 'parties to international transactions'). Ohters question whether the CISG in fact recognizes local custom. See, e.g, H. BERMAN, supra note 5, at 48-49.
The lack of guidance concerning whose usage matters is fatal if, for example, a seller observes 'general' usages and a buyer observes 'local' usages. Cf. Dixon, Irmaos & Cia, Ltd. v. Chase Nat'l Bank, 144 F.2d 759 (2d Cir. 1944) (considering dispute over local custom regarding letters of credit); Backus & Harfield, Custom and Letters of Credit: The Dixon, Irmaos Case, 52 COLUM. L. REV. 589, 598 & n.28 (1952) (observing that, 'were the identical case to arise in another locality, it is highly unlikely that a similar custom would be found').Even if the CISG could not have established a rule favoring general or local usages, it might have established a more precise standard. It might, for example, have adopted a principle of efficiency for transactions of similar kind. Alternatively, it might have stated that whichever side could more cheaply accommodate the other's usage must do so. Such standards would have required the delegates to reach consensus on a principle that squarely addressed the problem of disunity.
40. See CISG art. 9, para. 2, reprinted in 19 INT'L LEGAL MATERIALS, supra note 3, at 674. Despite some indications that the drafters meant to deemphasize traditional trade usages, see J. HONNOLD, supra note 3, § 121, at 148 ("We have discussed the inapplicability of the view that custom ... must be 'ancient' or of 'long standing'."), the CISG's formulation is ambiguous on whether current or traditional usages will control.
The 'regular observance' standard is rendered still more vague because the Convention allows for either a subjective or an objective test. See CISG art. 9, para. 2, reprinted in 19 INT'L LEGAL MATERIALS, supra note 3, at 674 ('usage of which the parties knew or ought to have known'). Absent a preference, or at least a standard for determining which test applies, the provision is uncertain. The subjective-objective dilemma exists elsewhere in the CISG. Compare id. art. 8, para. 1, reprinted in 19 INT'L LEGAL MATERIALS, supra note 3, at 673 (focusing on subjective 'intent' as a rule of construction), with id. art. 79, para. 1, reprinted in 19 INT'L LEGAL MATERIALS, supra note 3, at 689 (defining excuse objectively as 'impediment beyond ... control').
41. Article 7, paragraph 1 of the CISG states: 'In the interpretation of this Convention, regard is to be had to its international character and to the need to promote uniformity in its application and the observance of good faith in international trade.' CISG art. 7, para. 1, reprinted in 19 INT'L LEGAL MATERIALS, supra note 3, at 673.
42. See J. HONNOLD, supra note 3, § 94, at 123.
43. See id.
45. See id. Whether a common meaning will emerge may depend on whether, despite superficial cultural differences, there is an underlying, universal conception of 'good faith.' The American experience with the term 'good faith' has involved numerous definitional controversies and litigated disputes, even though the UCC offers at least a general definition of the term. See U.C.C. § 1-203 official comment (1977) ('honesty is fact' and 'observance of reasonable commercial standards of fair dealing in the trade'). This history suggests that, even in a relatively homogeneous society, no common understanding of 'good faith' exists. See also Rosett, supra note 12, at 290 (noting broader connotations of 'good faith' in continental and socialist systems). But see Newmann, The General Principles of Equity, in EQUITY IN THE WORLD'S LEGAL SYSTEMS 589, 603 (R. Newmann ed. 1978) (asserting that 'good faith' embodies certain fundamental principles).
46. See J. HONNOLD, supra note 3, § 96, at 126.
47. Cf. Cairns, supra note 15, at 283 (noting Francis Bacon's observation 'that patrius mos is dear to all men'); Lawyers' Committee Memorandum, supra note 4, at 1 ('Most Americans believe that the Uniform Commercial Code ... is the most advanced commercial law. Most foreigners consider their own commercial law entirely satisfactory, if not the best.').
48. See J. HONNOLD, supra note 3, § 96, at 126-27.
49. CISG art. 7, para. 1, reprinted in 19 INT'L LEGAL MATERIALS, supra note 3, at 673.
50. See id. para. 2, reprinted in 19 INT'L LEGAL MATERIALS, supra note 3, at 673.
51. See id.
52. Cf. supra p. 1991 ('good faith' also not defined by the CISG).
53. See Cavers, Book Review, 85 HARV. L. REV. 1499, 1500-01 (1972) (noting that conflict-of-laws doctrine is clarified by 'government interest' approach). But see Note, Comparative Impairment Reformed: Rethinking State Interests in the Conflict of Laws, 95 HARV. L. REV. 1079, 1099-1100 (1982) (arguing that the 'government interest' approach results in uncertainty because of parochial views of policy and interests).
54. Article 79, paragraph 1 of the CISG provides:
"A party is not liable for a failure to perform any of his obligations if he proves that the failure was due to an impediment beyond his control and that he could not reasonably be expected to have taken the impediment into account at the time of the conclusion of the contract or to have avoided or overcome it or its consequences." CISG art. 79, para. 1, reprinted in 19 INT'L LEGAL MATERIALS, supra note 3, at 689.
55. See Farnsworth, Problems of the Unification of Sales Law from the Standpoint of the Common Law Countries, DIG. COM. LAWS OF THE WORLD, Mar. 1980, at 3, 20. 'The applicable legal doctrines go under assorted labels -- impossibility, Act of God, frustration, force majeure, failure of presupposed conditions.' J. HONNOLD, supra note 3, § 423, at 426.
56. See Farnsworth, supra note 55, at 20. Professor Farnsworth notes that the civil law doctrine is more flexible than the British common law doctrine. See id.
57. Cf. Berman, Excuse for Nonperformance in the Light of Contract Practices in International Trade, 63 COLUM. L. REV. 1413, 1438 (1963) (arguing for interpretation of excuse based on contract and international custom, because 'parties understand each other better, on the whole, than they understand each other's legal systems'); Holmes, The Path of the Law, 10 HARV L. REV. 457, 466 (1897) (discussing implied contractual conditions as a reflection of 'some belief as to the practice of the community or of a class').
58. See Farnsworth supra note 55, at 20. ('[T]his provision has a chameleonic character that permits it to take on that meaning that best conforms to the reader's own legal background. Perhaps for this very reason it is unlikely to cause disput[es] in the drafting stage, but more likely to cause them when interpretation is required.'). Note that Professor Farnsworth's reference to 'legal background' might apply to arbitrators as well as to judges.
59. See supra note 54.
60. See Nicholas, supra note 13, at 245.
61. For an argument that a unifying international doctrine of contractual 'gap-filling' can be culled from various national legal systems, see Smit, Frustration of Contract: A Comparative Attempt at Consolidation, 58 COLUM. L. REV. 287, 288, 314, 315 (1958). But see Berman, supra note 57, at 1414-15 (expressing doubt 'whether any general principles ... can satisfy the multiformity of obligations' and arguing that the bases for adjudicating disputes over frustration can be found in international contracts themselves). If agreement on such a unifying theory were not possible, the proper response would not be to create a hollow compromise, but rather to recognize that the potential for unifying commercial law is limited and therefore to require parties to provide for nonperformance by setting contractual terms, making a choice-of-law declaration, or both.
62. See Merryman, supra note 2.
63. See, e.g., Bergsten & Miller, The Remedy of Reduction of Price, 27 AM. J. COMP. L. 255, 255-56 (1979) (noting difficulty of extending Roman and civil law reduction-of-price doctrine to apply universally through article 46 of the Draft Convention, now article 50 of the CISG); see also Eörsi, supra note 28, at 315 (noting 'tacit endeavour to find a 'compromise' that favors one's own system').
64. According to the CISG, the buyer has the right to reduce price 'in the same proportion as the value that the goods actually delivered had at the time of the delivery bears to the value that conforming goods would have had at that time.' CISG art. 50, reprinted in 19 INT'L LEGAL MATERIALS, supra note 3, at 683.
65. See Bergsten & Miller, supra note 63, at 255 (noting that common law confused reduction of price with the Anglo-American doctrine of set-off). Professors Bergsten and Miller note that the essential differences between reduction of price and set-off are the date at which monetary relief is calculated and the means of calculation. See id. at 259. Further, price reduction is obtained by the buyer through unilateral declaration, whereas damages must be claimed by the buyer and agreed to by the seller or awarded by a court. See id. at 263. Professors Bergsten and Miller argue that reduction of price is 'too well known to Civil Law jurists' to permit transformation of the doctrine into common law set-off. Id. at 272.
66. See id. at 255.
67. Id. (referring to the CISG remedies for breach of contract, as contained in Section III of the Convention).
68. Cf. H. Hart & A. Sacks, supra note 15, at 1-9 (noting that law must derive from a dynamic interchange of behavior and norms). Of course, the parties could still contractually choose a national law for purposes of gap-filling. But because parties might not anticipate having problems that are beyond the scope of the CISG, they might refrain from choosing a controlling law even though they might have so chosen had there been no CISG. Cf. Farnsworth, supra note 55, at 17-18 (noting that the reduction-of-price issue is not likely to arise often).
69. See Bergsten & Miller, supra note 63, at 255 (noting that this confusion occurred at several times during the CISG negotiations).
70. See id. at 255-56 & n.4 (noting tendency to view set-off improperly 'in conjunction with the Civil law remedy of reduction of price').
71. See id. at 271. Moreover, it seems unlikely that practicing lawyers or judges will analyze the provisions as closely as did the delegates.
72. Id. at 275.
73. See id. at 276-77.
74. See supra p. 1991.
75. Cf. Merryman, supra note 2, at 386 (observing that it is difficult to unify nations on issues of particular 'social and cultural relevance').
76. See Adams v. Lindsell, 1 Barn. & Ald. 681, 106 Eng. Rep. 250 (K.B. 1818).
77. Countries' rules regarding the time of acceptance split approximately along the common law-civil law axis, with the common law nations employing the dispatch rule of Adams v. Lindsell and the civil law nations employing the receipt rule. See Eörsi, supra note 28, at 317.
78. See CISG art. 15, para. 1, reprinted in 19 INT'L LEGAL MATERIALS, supra note 3, at 675 (offer); id. art. 18, para. 2, reprinted in 19 INT'L LEGAL MATERIALS, supra note 3, at 675 (acceptance).
79. See Eörsi, supra note 28, at 317 (dispatch and receipt rules 'have substantially equal justification -- or lack of justification').
80. Cf. J. HONNOLD, supra note 3, § 100, at 131 (noting that, for parties to transact business, exchange of information is 'obviously needed') (citing additional authority).
81. The duty to disclose information is codified in the CISG in several places. See CISG art. 19, para. 2, reprinted in 19 INT'L LEGAL MATERIALS, supra note 3, at 676 (offeror must communicate any objections to offeree's modifications of offer); id. art. 21, para. 2, reprinted in 19 INT'L LEGAL MATERIALS, supra note 3, at 676 (offeror must draw offeree's attention to delay in transmission of acceptance if offeror considers arrival of acceptance to be too late); id. art. 26, reprinted in 19 INT'L LEGAL MATERIALS, supra note 3, at 677 (either party must notify the other of avoidance of the contract); id. art. 39, para. 1, reprinted in 19 INT'L LEGAL MATERIALS, supra note 3, at 680 (buyer must notify seller of nonconformity within a reasonable time after he has discovered it or ought to have discovered it); id. art. 48, para. 2, reprinted in 19 INT'L LEGAL MATERIALS, supra note 3, at 682 (buyer must respond to inquiry regarding whether he will accept late performance); id. art. 65, reprinted in 19 INT'L LEGAL MATERIALS, supra note 3, at 686 (seller must notify buyer of previously unmade specifications that the seller has made); id. art. 68, reprinted in 19 INT'L LEGAL MATERIALS, supra note 3, at 687 (seller must disclose transit damage in contract for sale of goods in transit); id. art. 71, para. 3, reprinted in 19 INT'L LEGAL MATERIALS, supra note 3, at 688 (communication of nonperformance because of anticipatory breach); id. art. 79, para. 4, reprinted in 19 INT'L LEGAL MATERIALS, supra note 3, at 690 (communication of excuse for nonperformance); id. art. 88, para. 1, reprinted in 19 INT'L LEGAL MATERIALS, supra note 3, at 692 (notice of intent to resell goods of which the other party has failed to take possession); see also J. HONNOLD, supra note 3, § 100, at 131 (noting additional provisions concerning disclosure).
82. At least one commentator has noted a disclosure theme in the CISG sufficiently pervasive to warrant even extension of the doctrine, by analogy, to issues not specifically addressed in the CISG. See 1 H. Berman, The Law of International Trade 676 (unpublished manuscript on file in the Harvard Law School Library).
83. See H. BERMAN, supra note 5, at 10-13.
84. Rabel, supra note 15, at 61, cited in Roth, The Passing of Risk, 27 AM. J. COMP. L. 291, 293 (1979).
85. See Roth, supra note 84, at 294.
86. See CISG art. 67, reprinted in 19 INT'L LEGAL MATERIALS, supra note 3, at 686-87; see also J. HONNOLD, supra note 3, §§ 365-371, at 372-78 (discussing CISG article 67).
87. See H. BERMAN, supra note 5, at 46.
88. Cf. Roth, supra note 84, at 309-10 (noting vulnerability of specific provisions to criticism).
89. See id. (conceding that the determination of when risk is transferred will turn on the definition of such terms as ex dock and ex works, but justifying the failure to define them on the ground that practices are changing).
90. See CISG art. 70, reprinted in 19 INT'L LEGAL MATERIALS, supra note 3, at 687; J. HONNOLD, supra note 3, § 380, at 385-90.
91. A breach is fundamental
"if it results in such detriment to the other party as substantially to deprive him of what he is entitled to expect under the contract, unless the party in breach did not foresee and a reasonable person of the same kind in the same circumstances would not have foreseen such a result.CISG art. 25, reprinted in 19 INT'L LEGAL MATERIALS, supra note 3, at 677. The standards governing both what buyers may reasonably expect and what sellers should reasonably foresee share the CISG's general ambiguity over whether subjective intent or objective standards of resonableness should govern the interpretation of commercial agreements. See Rosett, supra note 12, at 286-88 (arguing that subjective-objective ambiguity reflects compromise); see also supra note 40 (noting examples of subjective-objective tension in the CISG); infra note 93 (same)."
92. See Roth, supra note 84, at 309.
93. Article 25 and article 79, paragraph 1 of the CISG appear to protect 'reasonable expectations.' Article 8, paragraph 1 embodies a more subjective standard, one that focuses on the intentions of parties, but even that provision is made somewhat objective by its focus on intent 'where the other party knew or could not have been unaware what that intent was.' CISG art. 8, para. 1, reprinted in 19 INT'L LEGAL MATERIALS, supra note 3, at 673.
94. See, e.g., Lawyers' Committee Memorandum, supra note 4, at 9 (predicting that other countries 'will take their cue from us').
95. Cf. Rosett, supra note 12, at 293-305 (urging nonratification on other grounds, including the CISG's jurisdictional reach, its difficulty of amendment, the negotiators' lack of discussion of jurisprudential process, as well as commerce and treaty power considerations).
96. See Nicholas, supra note 13, at 245.
97. See, e.g., J. HONNOLD, supra note 3, § 94, at 124 (defects regarding 'good faith' provision); Roth, supra note 84, at 310 (defects regarding transfer-of-risk provision); Note, The United Nations Convention on Contracts for the International Sale of Goods: Contract Formation and the Battle of Forms, 21 COLUM. J. TRANSNAT'L L. 529, 556 (1983).
98. See generally McDougal, The Impact of International Law Upon National Law: A Policy-Oriented Perspective, 4 S.D.L. REV. 25 (1959) (discussing the impact of national decisionmaking on the interpretation and application of international law).
99. See, e.g., Farnsworth, supra note 55, at 9-10 (suggesting that uniform interpretation is generally unlikely, especially given minimization of precedent under civil law); supra pp. 1989-90 (discussing the malleability of the CISG provisions on trade usages). It is unlikely that international commercial arbitration tribunals will apply the CISG with significantly greater uniformity. See supra note 9.
100. See supra note 15.
101. See, e.g., sources cited infra note 102; see also Unification of International Trade Law, 27 AM. J. COMP. L. 201 (1979) (symposium collecting generally favorable commentary by scholars); Lawyers' Committee Memorandum, supra note 4 (urging endorsement).
102. See, e.g., SENATE TREATY DOC., supra note 3; Dore & DeFranco, supra note 36; Lansing & Hauserman, A Comparison of the Uniform Commercial Code to UNCITRAL's Convention on Contracts for the International Sale of Goods, 6 N.C.J. INT'L L. & COM. REG. 63 (1981).
103. See, e.g., J. HONNOLD, supra note 3; Unification of International Trade Law, supra note 101.
104. Cf. Rabel, supra note 15, at 59 (noting that unification must confront the problem of 'deeply divided national laws'). But cf. Farnsworth, supra note 6, at 469 ('The Uniform Commercial Code happens to say a lot of things in a very sensible way as far as other people in the rest of the world are concerned.').
105. See, e.g., U.C.C. § 1-205 official comment 5 (1977) (permitting both traditional and contemporary usages); id. official comment 7 (permitting both general and particular trade usages).
106. But see Note, Employment Discrimination Against the Handicapped and Section 504 of the Rehabilitation Act: An Essay on Legal Evasiveness, 97 HARV. L. REV. 997, 1002-03 & nn. 30-31 (1984) (incompleteness of legislation forebodes divergent interpretation among courts).
107. See sources cited supra note 105.
108. Cf. Merryman, supra note 2, at 367 (noting that the effort to unify even the commercial laws of the United States, 'a highly homogeneous society,' has been difficult).