Go to Database Directory || Go to CISG Table of Contents || Go to Case Search Form || Go to Bibliography

CISG CASE PRESENTATION

United States 12 April 1995 State Appellate Court [Oregon] (GPL Treatment v. Louisiana-Pacific)
[Cite as: http://cisgw3.law.pace.edu/cases/950412u1.html]

Primary source(s) for case presentation: Case text; case commentary


Case Table of Contents


Case identification

DATE OF DECISION: 19950412 (12 April 1995)

JURISDICTION: United States [state court]

TRIBUNAL: Court of Appeals of Oregon [intermediate appellate court]

JUDGE(S): De Muniz, Leeson

CASE NUMBER/DOCKET NUMBER: 9209-06143 CA A81171

CASE NAME: GPL Treatment v. Louisiana-Pacific

CASE HISTORY: lst instance Circuit Court, Multnomah County [affirmed by Court of Appeals]; 3rd instance Supreme Court of Oregon, 323 Or. 116, 914 P.2d 682 (11 April 1996) [ruling of Court of Appeals affirmed with no mention of the CISG]

SELLER'S COUNTRY: Appears to be Canada (plaintiff)

BUYER'S COUNTRY: U.S.A. (defendant)

GOODS INVOLVED: Wood products (cedar shakes)


Case abstract

UNITED STATES: GPL Treatment v. Louisiana-Pacific 12 April 1994 Oregon Court of Appeals

Case law on UNCITRAL text (CLOUT) abstract no. 137

Reproduced with permission from UNCITRAL

Plaintiffs, three Canadian manufacturers and sellers of raw shakes (long wooden shingles), sued a [buyer] U.S. corporation to recover damages for breach of alleged contracts for the sale and purchase of truckloads of cedar shakes. [Buyer] denied entering into these contracts. [Buyer] moved in limine for dismissal on the ground that [sellers] failed to satisfy the writing requirement of the "statute of frauds" of the Uniform Commercial Code (UCC) as enacted in Oregon. The trial court denied the motion. During the trial, the [sellers] attempted to raise the issue of whether the CISG, rather than the UCC, governed, but the trial court ruled that [sellers'] attempt was untimely and that they had waived reliance on that theory. The jury returned a verdict awarding lost profits to the [sellers] and the trial court entered judgment on the verdict.

[Buyer] appealed to an intermediate appellate court on the ground, inter alia, that the trial court had erred when it denied [buyer's] motion in limine. A majority of the three-judge appellate court found that [sellers] had satisfied the UCC statute of frauds. The dissenting judge disagreed with the majority's analysis of the UCC as applied to the facts in the case. In a final footnote, the dissenting judge also stated that he would have addressed the issue of whether the trial court abused its discretion in its ruling on the applicability of the CISG.

On appeal to the Oregon Supreme Court, the decision of the trial and intermediate courts [was] affirmed. The majority, concurring, and dissenting opinions do not address the issue of whether the CISG governed or whether the trial court abused its discretion.

Go to Case Table of Contents


Classification of issues present

APPLICATION OF CISG: No [cf. dissenting opinion]

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Article 11 [Also relevant: Article 6 ]

Classification of issues using UNCITRAL classification code numbers:

11A ; 11B [Formal requirements (writing or other formality for conclusion of contract): inapplicability of domestic law; Proof of contract by any means, including witnesses]

Descriptors: Formal requirements

Go to Case Table of Contents


Editorial remarks

EDITOR: Albert H. Kritzer

CISG issues ruled upon:

Formal requirements/Statute of Frauds. The alleged contract was for the purchase of goods (wood products: 88 truck loads of cedar shakes) by a U.S. buyer from a seller who appears to have been operating primarily in Canada. The timing of the transactions was such that the CISG was in effect in both the United States and Canada.

The majority opinion ruled on the manner in which Oregon's Uniform Commercial Code Statute of Frauds applies to this transaction. The CISG is referred to as follows in a dissenting opinion by Judge Leeson:

"I would . . . address [seller's] cross-assignment that the trial court erred in refusing to apply the United Nations Convention on Contracts for the International Sale of Goods (CISG) . . . instead of the UCC. Article 11 of the CISG does not require a contract to be 'evidenced in writing' and thus, would defeat [buyer's] statute of frauds defense if the trial court abused its discretion under ORCP 23B [governing amendment of pleadings] in ruling that [buyer's] attempt to raise the CISG was untimely and that they had waived reliance on that theory."

Goldsweig & Lee state:

"A U.S. court case, GPL Treatment Ltd. v. Lousiana-Pacific Corp., serves as a warning to attorneys that ignorance of CISG is no excuse. GPL Treatment involved the sale of wood products by a Canadian seller to a U.S. buyer. Although the dispute was resolved under U.S. domestic law, the governing law of the contract should have been the CISG since both Canada and the United States are Contracting States to CISG. Apparently, the plaintiff's attorney was unaware that CISG governed the contract until it was too late to amend the pleadings. The court ruled that the plaintiff's attempt to raise the CISG issue was untimely and therefore waived any cause of action under CISG. The material issue in this case was defendant's statute of frauds defense. The UCC requires a writing for sale of goods contracts over US $500, while CISG specifically states that a contract and sale need not be concluded or evidenced by writing. If the plaintiff's attorney had recognized the applicability of CISG, he might have won the case." David n.Goldsweig & Joon Lee, "The United Nations Convention on Contracts for the International Sale of Goods", in: Sandstrom & Goldsweig ed., Negotiating and Structuring International Commercial Transactions, 2d ed., Section of International Law and Practice, American Bar Association (2003) 64.

They overstate, but "ignorance of CISG is no excuse" and cases can arise in which failure to recognize the applicability of CISG can lead to loss of a case.

Under the heading "professional responsibility", Spanogle & Winship state:

"Assuming that the purported sellers were Canadian companies and that the purported buyer was a U.S. corporation, there is little doubt that the Convention applied to the transaction. Article 11 of the Convention states expressly that '[a] contract of sale need not be concluded in or evidenced by writing. . . . It may be proved by any means, including witnesses.' While it is possible to argue that the sellers implicitly excluded the Convention by filing a complaint with a reference to the Uniform Commercial Code (to which the buyer concurred by raising the statute of frauds defense), it is not clear that the attorney proceeded knowingly. Should such an attorney [be] responsible ultimately for the costs of his or her clients' appeals on points of law that could have been avoided?" John A. Spanogle & Peter Winship, "International Sales Law: A Problem Oriented Coursebook" (West 2000) 46-47.

Go to Case Table of Contents


Citations to other abstracts, case texts and commentaries

CITATIONS TO OTHER ABSTRACTS OF DECISION

English: Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=135&step=Abstract>

Italian: Diritto del Commercio Internazionale (1996) 649 No. 120

Polish: Hermanowski/Jastrzebski, Konwencja Narodow Zjednoczonych o umowach miedzynarodowej sprzedazy towarow (Konwencja wiedenska) - Komentarz (1997) 278

CITATIONS TO TEXT OF DECISION

Original language (English): Text presented below; see also 133 Or.App. 633; 894 P.2d 470; Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=135&step=FullText>

Translation: Unavailable

CITATIONS TO COMMENTS ON DECISION

English: Ziegel, 32 Canadian Business Law Journal (1999) 318 n.26; Fagan, 2 Journal of Small and Emerging Business Law (1998) 317 [319]; Todgham 2 Canadian International Lawyer (1997) 90-94; Ferrari, International Legal Forum (4/1998) 138-255 [220 n.742 (criticism of court's failure to examine applicability of CISG)]; Gillette/Walt, Sales Law Domestic and International (Foundation Press 1999) 135-136 [the CISG and the Statute of Frauds]; Flechtner, Journal of Law and Commerce 15 (1995) 127-138 [text presented below]; Spanogle/Winship, International Sales Law: A Problem Oriented Coursebook (West 2000) 46-47; Dodge, 50 Journal of Legal Education (2000) 72-94 nn.7-14 [Statute of Frauds]; DiMatteo, The Law of International Contracting, Kluwer (2000) 211-212; Sukors, 34 Vanderbilt Journal of Transnational Law (2001) nn.216-226; Bernstein & Lookofsky, Understanding the CISG in Europe, 2d ed., Kluwer (2003) § 2-9 n.122; Larry A. DiMatteo et al., 34 Northwestern Journal of International Law & Business (Winter 2004) 299-440 at nn.150-152 (referred to as an example of "lack of knowledge of the inner workings of the CISG"); [2005] Schlechtriem & Schwenzer ed., Commentary on UN Convention on International Sale of Goods, 2d (English) ed., Oxford University Press, Art. 11 para. 13; Keith A. Rowley, "The Convention on the International Sale of Goods", in: Hunter ed., Modern Law of Contracts, Thomson/West (03/2007) § 23:9

French: Todgham 2 Canadian International Lawyer (1997) 90-91

German: Schlechtriem, Internationales UN-Kaufrecht (1996) 173 n.279

Go to Case Table of Contents

Case text

GPL Treatment, Ltd, a corporation;
Scott Cedar Products, a division of Green River Log Sales, Ltd., a corporation; and Blackhawk Forest Products, Ltd., a corporation, Respondents,
v.
Louisiana-Pacific Corporation, a Delaware corporation, Appellant

9209-06143 CA A81171

Court of Appeals of Oregon

Before: Riggs, Presiding Judge, De Muniz and Leeson, Judges; Leeson, J., dissenting

Argued and Submitted October 28, 1994 Filed April 12, 1995 Opinion By Judge De Muniz

Attorney for Appellants: John F. Neupert argued the cause for the Appellant. With him on the briefs were James N. Westwood and Miller, Nash, Winer, Hager & Carlsen. Attorney for the Respondents: Jay W. Beattie aruged the cause for Respondents. With him on the brief was Lindsay, Hart, Neil & Weigler.

Procedural History: Appeal from Circuit Court, Multnomah County before Judge Stephen S. Walker.

Disposition: Affirmed.

Plaintiffs are three separate wood products corporations owned and operated by members of the Clarke family, in British Columbia, Canada. Plaintiffs sued Louisiana-Pacific Corporation (L-P) to recover lost profits on alleged agreements by plaintiffs to sell 88 truckloads of cedar shakes to L-P. The jury returned a verdict for plaintiffs for the maximum amount of each plaintiff's prayer, and L-P appeals.

Plaintiffs Scott Cedar Products (Scott Cedar) and Blackhawk Forest Products, Ltd. (Blackhawk), manufacture and sell raw shakes and shingles. Plaintiff GPL Treatment, Ltd. (GPL), buys raw shakes, treats them, and sells them as "Class C" shakes. Treated shakes are packaged into bundles, with five bundles constituting a "square," and are often sold by the truckload. The price for cedar shakes fluctuates widely with market demand.

In early spring of 1992, a series of hailstorms in the Midwest caused an increased demand for cedar shakes and a concomitant increase in the price of Class C shakes. Plaintiffs' principal sales person, Gerry Feaver, visited with Dan Cunnally, a shake and shingle trader for L-P. Feaver testified that telephone conversations between the two led to a May 6, 1992, deal for L-P to purchase 66 truckloads of Class C shakes. He testified that he filled out and signed six of plaintiffs' "Confirmation Form" documents and sent to L-P the top copies of each of six four-part documents.

In contrast, Cunnally testified that he made no commitment for L-P to purchase any product in any of the telephone conversations with Feaver; that he had told Feaver that the price was too high; and that L-P would not allow him to buy the volume of shakes that Feaver was offering to sell. Cunnally testified that he told Feaver that L-P would buy some shakes later and that Feaver understood that arrangement. Cunnally testified that he did not receive plaintiffs' "Confirmation Form" documents.

According to plaintiffs' evidence, plaintiffs became concerned in June 1992 when Cunnally did not ask for delivery of the shakes. Feaver testified that Cunnally had told him that LP's customer in Dallas, Texas, was not using shakes as fast as anticipated. In the meantime, the market price for shakes had dropped. Feaver testified that plaintiffs and Cunnally had additional conversations and negotiations about adjusting the volume and price of the order. Cunnally denied any such negotiations.

On about June 30 or July 1, Feaver was on personal business in eastern Canada, and Scott Clarke was in Portland visiting the office of Scott Cedar. Clarke testified that he took it upon himself to "finalize the deal with Mr. Cunnally." According to his testimony, he wrote a new order, revising prices and quantities for materials to be sold by plaintiffs to L-P. Clarke testified that the new order was firm, to accommodate LP's needs. Clarke testified that Cunnally was "elated" with the new arrangement because it reduced the price.

Cunnally's testimony gives a different version of the conversation. He testified that Clarke called to try to sell more shakes to L-P, at specific quantities and lower prices than had been offered by Feaver, but that otherwise the arrangement was to be the same as it had been. Cunnally testified that he did not commit L-P to the purchase of shakes.

Clarke testified that, after working out the details of the revised order with Cunnally, he immediately telephoned Rick Sherneck in Canada and told Sherneck "to phone Dan Cunnally and confirm the order, then follow up with an order confirmation." Sherneck testified that Clarke instructed him, "We have a deal with L-P. I want you to write this down and then I want you to phone Dan Cunnally and confirm it with him."

Sherneck testified that he telephoned Cunnally, and confirmed the volumes and prices for the revised order in exact detail. He testified that he filled out order confirmation forms and put the top two copies of each form into the out basket for mailing to L-P. Cunnally testified that he remembers no such telephone call from Sherneck. He testified that he did not receive any writing from plaintiffs confirming any orders.

L-P took delivery of 13 truckloads of shakes in July 1992. According to plaintiffs, when L-P failed to give shipping instructions for an additional 75 truckloads of shakes, it became concerned. Feaver testified that he spoke to Cunnally every day about why the shakes were not being delivered. Cunnally testified that he had no such conversations with Feaver, and that he was, in fact, out of town on vacation during that period of time.

On about August 1, 1992, plaintiffs inquired of L-P about a shipment schedule for an additional 75 truckloads of shakes that had allegedly been ordered by L-P. Plaintiffs sent a letter to L-P asserting an agreement for the delivery of 75 additional truckloads of shakes over a three-week period. L-P responded that the parties had no such agreement.

Plaintiffs brought this action to recover their respective profit losses on an alleged agreement to sell a total of 88 truckloads of cedar shakes to L-P. L-P claimed that it was responsible for only 13 truckloads, which were shipped and paid for. Plaintiffs claimed that L-P breached its agreement to accept the remaining 75 truckloads. L-P asserted as an affirmative defense that plaintiffs' claims are barred by the Statute of Frauds. The jury returned a verdict for the maximum amount of each plaintiff's prayer: $ 500,921 for GPL; $134,372 for Scott Cedar; and $106,984 for Blackhawk.

L-P assigns error to the trial court's denial of its motion to withdraw from the jury GPL's claim for lost profits, on the ground that there was an insufficient basis for estimating the amount of net profit with reasonable certainty. To recover for lost profits, a plaintiff must establish, with reasonable certainty, both the existence and amount of lost profits. Pearson v. Schmitt, 259 Or. 439, 442, 487 P.2d 84 (1971). Only net lost profit may be recovered. As the Supreme Court said in Cont. Plants v. Measured Mkt., 274 Or. 621, 624, 547 P.2d 1368 (1976), and Husky Lbr. v. D. R. Johnson Lbr. Co., 282 Or. 481, 579 P.2d 235 (1978), "reasonable certainty" signifies nothing more than "probability" and is found to refer to the kind of evidence required rather than the quantum of proof. In reviewing the trial court's denial of the motion to withdraw the issue of lost profits from the jury, the question is whether there was evidence in the record to permit a finding of some net lost profits. Rennick v. Jackson & Coker, 95 Or. App. 72, 74, 767 P.2d 478 (1989); see also Frogge v. U.S. West Communications, Inc., 120 Or. App. 619, 620, 853 P.2d 1323, on recon 124 Or. App. 669, 863 P.2d 1313 (1993), rev den 319 Or. 36 (1994).

GPL claims that its lost profit on unshipped orders was $ 500,921. It supports that claim with testimony of its chief financial officer and two exhibits tracking his calculations, which were based on GPL's costs and the alleged agreed sale price for the unshipped shakes. L-P argues that GPL's listed costs for raw materials are grossly understated, that they are, in fact, Scott Cedar's cost for the raw logs. Yet, L-P contends, GPL's own cost of sales records reveal that Scott Cedar charged GPL market price for the shakes it sold to GPL for the L-P deal. L-P argues that, by plaintiffs' own computations, Scott Cedar's market prices for raw shakes were $ 118 per square for heavy shakes and $ 95 per square for light shakes, not the listed $ 54.56 and $ 47.01 per square. In its closing argument to the jury, L-P argued that the market cost was the appropriate raw material cost to be used in calculating any alleged lost profit.

It was for the jury to decide the exact amount of the lost profits, and we conclude that there was ample evidence from which the jury could make that determination, either by use of the figures provided by GPL or based on the market price, as argued by L-P. The trial court did not err in denying L-P's motion to take the issue of GPL's lost profits from the jury.

Before trial, L-P made a request for production of documents from plaintiffs. In advertently, when plaintiffs' legal counsel filed his response to the request, he also sent to L-P's counsel a facsimile cover sheet with a hand written note by Sherneck to plaintiffs' legal counsel. The note stated:

"Attached find a page from [Feaver's] journal re the booking of the original orders and a page from my journal detailing [Scott Clarke's] call re the deal with L.P and J.E.H. Co."

L-P argues that, because Sherneck makes no mention in the note of his own alleged conversation with Cunnally, the inference is that he had no such conversation. L-P sought to introduce that note as evidence that Sherneck never called Cunnally. The trial court excluded the note as a privileged attorney-client communication protected from disclosure by OEC 503.[1] L-P concedes that the note is a privileged communication but argues that, by producing the note, although inadvertently, in the normal course of discovery, plaintiffs waived any attorney-client privilege pursuant to OEC 511.[2]

Whether a party has waived the attorney-client privilege is a question of fact to be determined by the trial court pursuant to OEC 104.[3] Goldsborough v. Eagle Crest Partners, Ltd., 314 Or. 336, 342, 838 P.2d 1069 (1992). Factors the court may consider include whether the disclosure was inadvertent, whether any attempt was made to remedy any error promptly and whether preservation of the privilege will occasion unfairness to the proponent. 314 Or. at 342. The record indicates that the trial court considered statements from plaintiffs' counsel that the note had been inadvertently attached to other documents sent to L-P and that plaintiffs' counsel was not aware that the note had been sent or that L-P intended to offer it at trial until the day it was to be offered. The court found that there had been no voluntary disclosure. We conclude that the record supports the trial court's finding and its determination that there was no waiver of the attorney-client privilege, and that it did not err in excluding the handwritten note.

In its third assignment of error, L-P contends that the trial court erred in denying its motions in limine and for a directed verdict on the ground that the alleged contract for the sale of shakes fails for noncompliance with Oregon's Uniform Commercial Code Statute of Frauds. Specifically, the motions sought to exclude evidence of the written order confirmations that plaintiffs allegedly sent to L-P.

ORS 72.2010 provides, in relevant part:

"(l) Except as otherwise provided in this section a contract for the sale of goods for the price of $ 500 or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought or by the authorized agent or broker of the party. A writing is not insufficient because it omits or incorrectly states a term agreed upon but the contract is not enforceable under this subsection beyond the quantity of goods shown in such writing.

"(2) Between merchants, if within a reasonable time a writing in confirmation of the contract and sufficient against the sender is received and the party receiving it has reason to know its contents, it satisfies the requirements of subsection (1) of this section against such party unless written notice of objection to its contents is given within 10 days after it is received." (Emphasis supplied.)

Under subsection (2), the "merchant's exception" to the Uniform Commercial Code Statute of Frauds applies, when both parties to the transaction are merchants, if one merchant receives written confirmation of an oral contract from another merchant "sufficient against the sender" the contract becomes enforceable unless the recipient objects within 10 days. L-P argued to the trial court, and argues on appeal, that the order confirmations that plaintiffs allegedly sent to L-P are inadmissible as proof of the agreements and in satisf action of the Statute of Frauds, because, as a matter of law, they are insufficient under ORS 72.2010 to constitute written confirmations of the contracts. The trial court held, as a matter of the law, that the documents were confirmations. The court submitted to the jury the factual questions of whether the confirmations were received by L-P, whether L-P knew their contents and whether L-P sent written notice of objection to plaintiffs. The assignment of error relates only to the trial court's ruling concerning the legal effect of the documents, i.e., that they are, as a matter of law, sufficient to constitute "confirmations" under ORS 72.2010.

The printed order confirmation forms consist of four pages, one original page and three copies. The original and first copy are sent to the buyer. Those two pages are, for the most part, identical. At the top left of both, in large print, is the name and address of the selling company. At the top right are boxes for the date and the seller's order number. Directly underneath those boxes, in large bold print, are the words & quot;ORDER CONFIRMATION." The form contains two address blocks of three single-spaced lines each, encaptioned "SOLD TO" and "SHIP TO." Underneath those address b locks are three slim, long boxes of one line each for shipping instructions, terms of payment and the customer number. The largest part of the form, filling approximately one half the page, is for a description of the product, with a place to note FOB mill, freight and delivery price. At the bottom right of the form is the name of the selling company, and underneath it a signature line following the word "BY." Underneath that line are the words "THANK YOU."

The original and first copy differ in one respect. At the bottom left of the original, in small print, are the words:

"CONDITIONS OF SALES: All orders accepted subject to strikes, labor troubles, car shortages or other contingencies beyond our power to control. Any freight rate increases, sales or use taxes is for buyers account."

Then, beneath that block, in smaller print but highlighted, are the words: "SIGN CON FIRMATION COPY AND RETURN." At the bottom left of the first copy, the "confirmation copy," in small print, are the words: "ORDER ACCEPTED BY:," followed by a line for firm name. Below that is a line for a signature and the title of the person signing, and the date.

L-P concedes that the documents contain all the elements necessary to confirm an order. However, L-P contends that, by instructing the buyer to sign the confirmation copy on the "order accepted by" line and return that copy to plaintiffs, plaintiffs have indicated an intention that the agreement is to become final only after L-P's approval of the quoted terms.

Considering the document in its entirety, we conclude that it cannot reasonably be read as L-P suggests. The form is captioned "ORDER CONFIRMATION," boldly and in large print. Unlike the forms involved in the cases relied on by the dissent, see, e.g., Great Western Sugar Co. v. Lone Star Donut Co., 567 F. Supp. 340 (ND Tex), aff'd 721 F.2d 510 (5th Cir. 1983); Kline Iron & Steel Co., Inc. v. Cray Com. Consultants, Inc., 715 F. Supp. 135 (DSC 1989), there is no language on this form, either on the original or the first copy, indicating that the parties are in the course of negotiations, that plaintiffs are merely proposing terms or that L-P must approve the terms. Every feature of the form suggests that it is what it is labeled, a confirmation and not a mere offer. We conclude that the sign and return instruction does not alter the apparent purpose of the document, to confirm in writing a completed agreement for the sale of shakes.[4] The trial court did not err in denying L-P's motions in limine and for a directed verdict.

Affirmed.

Leeson, J., dissenting.

I disagree with the majority's conclusion that the documents allegedly sent by plaintiffs to L-P were sufficient to satisfy the UCC Statute of Frauds. The majority's opinion is at odds with courts from other jurisdictions that have ruled on facts similar to those in this case. Regrettably, it creates an "Oregon exception" to the uniformity that is one of the underlying purposes of the UCC. See ORS 71.1020(2)(c).

According to the majority, the forms sent by plaintiffs to L-P are writings in confirmation of a contract because they are labeled "ORDER CONFIRMATION" and because neither "the original," nor "first copy" contains any language "indicating that the parties are in the course of negotiations, that plaintiffs are merely proposing terms or that L-P must approve the terms." 133 Or. App. at 642, 894 P.2d at 475. The majority goes to great lengths to describe the layout of those documents. Unfortunately, it does not analyze the import of the words used in them.

The majority's analysis begins incorrectly by characterizing the two parts of each form sent by plaintiffs to L-P as "the original and first copy." 133 Or. App. at 641, 894 P.2d at 474. (Emphasis supplied.) All pages of the multi-copy form do not contain the same information. The top page plainly informs the prospective buyer that "all orders accepted subject to strikes . . . [and] other contingencies beyond our power to control" and instructs the buyer to "SIGN CONFIRMATION COPY AND RETURN." The confirmation copy (second page) provides a signature block for the recipient to comply with the instruction on the top copy:

"ORDER ACCEPTED BY:

FIRM NAME

SIGNATURE AND TITLE

DATE"

Neither page is an "original." Neither is a "copy" of the other.

ORS 72.2010 is a verbatim enactment of the Statute of Frauds in Article 2 of the UCC. The official commentary to UCC 2-201 indicates that the writing need not be a complete memorial of the contract, as long as it affords a sufficient basis for believing that a contract has been made. Tripp v. Pay 'N Pak Stores, Inc., 268 Or. 1, 5, 518 P.2d 1298 (1974). ORS 72.2010(2) eliminates the signature requirement when both parties are "merchants."[5] The official commentary explains that failure to answer a written confirmation within 10 days makes the writing sufficient against both parties under subsection (1). Under both subsections (1) and (2) the writing must evidence the existence of an agreement between the parties. Failure to respond to a merchant's confirming memorandum takes away from the nonresponding merchant the Statute of Frauds defense. To ultimately prevail, however, the sender still must show that an oral contract was in fact made prior to the confirming memorandum. Here, it is not necessary to reach the issue of whether an oral contract was formed between the parties, because that contract would be unenforceable absent satisfaction of the Statute of Frauds. UCC § 2-201, comment 3.

The question of whether a writing satisfies the Statute of Frauds is a matter of law, to be determined from an examination of the writing itself.[6] R.S. Bennett & Co. v. Economy Mech. Industries, 606 F.2d 182, 186 n 4 (7th Cir 1979); Howard Const. Co. v. Jeff-Cole Quarries, Inc., 669 S.W.2d 221, 230 (Mo App 1983); Bazak Intl Corp v. Mast Indus., 73 N.Y.2d 113, 118, 535 N.E.2d 633, 635, 538 N.Y.S.2d 503 (1989); Adams v. Petrade Intern., Inc., 754 S.W.2d 696, 705 (Tex App 1988). That a writing labels itself a "confirmation" is not determinative of whether it satisfies the merchants' exception. Adams, 754 S.W.2d at 706. Cases from other jurisdictions have directly addressed the use of a sign-and-return clause in a document that purports to be a "confirmation" under UCC section 2-201(2). In Great Western Sugar Co. v. Lone Star Donut Co., 567 F. Supp. 340 (ND Tex), aff'd 721 F.2d 510 (5th Cir 1983), for example, a sugar merchant brought a breach of contract action, claiming that a writing sent to the buyer, and denominated a "written confirmation," operated to take the alleged oral contract out of the UCC Statute of Frauds. The writing stated:

"This letter is a written confirmation of our agreement. Please sign and return to me the enclosed counterpart of this letter signaling your acceptance of the above agreement." 567 F. Supp. at 342.

That trial court explained that the sugar merchant's argument concerning the merchants' exception:

"is at odds with elementary principles of contract law. By requiring the buyer to take further action in order to signal acceptance (signing and returning a copy of the letter agreement), [the seller] indicated to the buyer . . . that the terms quoted were still subject to acceptance or rejection rather than representing a memorialization of an oral contract. A true confirmation requires no response." Id. (Emphasis supplied.)

The court held that, as a matter of law, the writing was not a "writing in confirmation" under UCC section 2-201(2). Id. at 342-43. The court of appeals affirmed:

"While a mere confirmation without timely objection might have been sufficient under the 'merchants' exception,' the trial court correctly concluded that, as the master of its offer, [seller], the sender, had the power to require written acceptance as a prerequisite to the formation of a contract. Since it did, and since none was given, no contract arose." 721 F.2d at 510-11. (Emphasis supplied.)

Courts in other jurisdictions have cited Great Western Sugar for the rule that a writing requiring the recipient to take further action by signing and returning a copy to the sender is merely an offer and, therefore, is not a confirmation of a prior oral contract under UCC section 2-201(2). Kline Iron & Steel v. Gray Com. Consultants, Inc., 715 F. Supp. 135, 142 (D DC 1989); Adams, 754 S.W.2d at 706; see also R.S. Bennett & Co., 606 F.2d at 185-86; Perdue Farms Inc. v. Motts, Inc. of Mississippi, 459 F. Supp. 7, 15-17 (ND Miss 1978); Howard Const. Co., 669 S.W.2d at 227; Trilco Terminal v. Prebilt Corp., 167 N.J. Super. 449, 454-55, 400 A. 2d 1237, 1240 (Law Division 1979).[7]

Despite being labeled "ORDER CONFIRMATION," plaintiffs' forms unambiguously require L-P to sign and return a "confirmation copy" on which it has signified its acceptance. That language indicates that plaintiffs were seeking agreement from L-P in order to form a contract, rather than merely providing confirmation to L-P of a previously concluded oral agreement. The forms require further action by L-P. Consistent with the rule in Great Western Sugar, I would hold that the writings offered by plaintiffs were merely o ffers to L-P to enter into a contract, and not a confirmation of a prior oral contract betwee n them.

I would reverse the trial court's ruling that plaintiffs' forms constitute " writings in confirmation of a contract" under ORS 72.2010(2). Therefore, I would not reach the issues of lost profits and waiver of attorney-client privilege.[8]

I dissent.


FOOTNOTES

1. OEC 503(2)(a) provides, in part:

"A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client:

"(a) Between the client . . . and the client's lawyer or representative of the lawyer[.]"

2. OEC 511 provides, in part:

"A person upon whom [OEC 503 to 514] confer a privilege against disclosure of the confidential matter or communication waives the privilege if the person . . . voluntarily discloses or consents to the disclosure of any significant part of the matter of communication. This [rule] does not apply if the disclosure is itself a privileged communication."

3. OEC 104(1) provides:

"Preliminary questions concerning the qualifications of a person to be a witness, the existence of a privilege or the admissibility of evidence shall be determined by the court. . . . In making its determination the court is not bound by the rules of evidence except those with respect to privileges."

4. If there is anything uniform about the way courts have decided the question presented here, it is that each document must be evaluated independently and in the light of its contents, and that there is no single correct answer to the question of the effect of a "sign and return" provision. Contrary to the view expressed by the dissent, our opinion is consistent with that analysis and does not create an Oregon exception.

The dissent disapprovingly suggests that our opinion holds that the form sent to L-P is a confirmation because it is labeled "ORDER CONFIRMATION." That certainly is one significant consideration. It is not the exclusive one, however, the primary inquiry being whether the contents of the form show that it is what it is labeled. It seems that the dissent would cast aside those considerations in favor of a rule that when a form contains a "sign and return" clause it cannot, as a matter of law, be an order confirmation. That is most clearly wrong.

5. There is no dispute that all parties are "merchants" under the code. ORS 72.1040(1)

6. Plaintiffs contend that the forms satisfy the "merchants' exception," because the "sign and return" clause is "spurious language mostly ignored in the industry" and "absolutely irrelevant to the dealings between the parties." I would reject plaintiffs' attempts to explain the meaning of the forms with extrinsic evidence. Permitting parol evidence on this issue undermines the Statute of Frauds by allowing proof of an oral contract to explain a writing that itself is required to prove the existence of the oral contract. Howard Const. Co. v. Jeff-Cole Quarries, Inc., 669 S.W.2d 221, 230 (Mo App 1983); R.S. Bennett & Co. v. Economy Mech. Industries, 606 F.2d 182, 186 n 4 (7th Cir. 1979)

7. Plaintiffs cite Bazak Intl Corp for its holding that buyer's written confirmation indicating that it was "ONLY AN OFFER AND NOT A CONTRACT UNLESS ACCEPTED IN WRITING BY THE SELLER" was, nevertheless, a writing in confirmation of an oral agreement within UCC section 2-201(2). However, that court acknowledged the general rule and distinguished the case on its peculiar facts. Id. at 123-24, 535 N.E.2d at 638. Plaintiffs also cite Busby, Inc. v. Smoky Valley, Bean, Inc., 767 F. Supp. 235 (D. Kan. 1991), for the proposition that highlighting of a "please sign and return" clause by the sender of a writing was insufficient to turn a written confirmation into an offer. In that case, hoever, the sender's written confirmation expressly stated that "receipt of this contract by the seller without written notice to us of objection or error within ten days is an acknowledgement of acceptance." Id. at 236. The court distinguished both Great Western Sugar and Adams, in which the recipients were required to take further action.

A thorough survey of relevant case law appears in Annot., 82 ALR 4th 709
(1990), including Supp 10-14 (1994).

8. I would, however, address plaintiffs' cross-assignment that the trial erred in refusing to apply the United Nations Convention on Contracts for the International Sale of Goods (CISG), 15 USCA App (Supp 1994), instead of the UCC. Article 11 of the CISG does not require a contract to be "evidenced by writing" and, thus, would defeat L-P's statute of frauds defense if the trial court abused its discretion under ORCP 23 B in ruling that plaintiffs' attempt to raise the CISG was untimely and that they had waived reliance on that theory.

Go to Case Table of Contents


Case commentary

Reproduced with permission from 15 Journal of Law and Commerce 127-138 (1995)

ANOTHER CISG CASE IN THE U.S. COURTS: PITFALLS FOR THE PRACTITIONER AND THE POTENTIAL FOR REGIONALIZED INTERPRETATIONS

Harry M. Flechtner [*]

A recent Oregon decision that cites the United Nations Convention on Contracts for the International Sale of Goods ("CISG" or "the Convention")[1] does so in as passing a fashion as possible: the Convention is mentioned only in the last footnote to the dissenting opinion. For those interested in the jurisprudence emerging from the growing body of case law on CISG, nevertheless, the case has considerable significance -- significance ranging from the intensely practical and obvious to the more subtle, theoretical and speculative. The decision triggers interesting conjecture on the global dynamics of CISG interpretation, and it offers a vivid illustration of how critical it is for commercial lawyers to be familiar with the Convention.

A. GPL Treatment: Facts and Reasoning

The case, GPL Treatment, Ltd. v. Louisiana-Pacific Corp.,[2] involved alleged sales of cedar shakes by a Canadian family wood products business to a U.S. corporate buyer. The seller (GPL) introduced testimony that a trader in the Portland, Oregon area offices of Louisiana-Pacific Corporation (L-P) agreed by telephone in May 1992 -- during a period of rising prices -- to purchase a large quantity of shakes from GPL. GPL asserted that later, when market prices began to fall, the parties orally renegotiated certain terms. GPL allegedly confirmed both the original sale and the renegotiated agreement by mailing to L-P "confirmation" forms that instructed the buyer to sign and return one copy of the form, but L-P did not return or otherwise respond to the confirmations. L-P, on the other hand, claimed that it had not committed itself to buying any shakes, and it denied receiving any confirmation forms. After accepting several shipments of shakes in July, L-P refused further deliveries and GPL sued in Oregon state court.[3]

At trial L-P argued, inter alia, that GPL's claim was barred by Section 2-201(1) of the Uniform Commercial Code as enacted in Oregon This Statute of Frauds provision prevents enforcement of a contract for the sale of goods at a price of $500 or more unless the agreement is evidenced by a writing signed by the "party against whom enforcement is sought."[4] Because the buyer had never signed any such writing, L-P argued, GPL's suit should be dismissed. GPL replied that the contract was enforceable under Section 2-201(2), an exception to the signed writing requirement. The exception applies if, in a merchant to merchant transaction, the party against whom enforcement is sought has failed to respond within ten days to a written confirmation of the contract received from the other side.[5] Issue was joined over whether the statement on GPL's confirmation forms instructing the buyer to sign and return copies of the forms prevented those documents from satisfying the Section 2-201(2) requirement of a "writing in confirmation of the contract."

The trial judge found that GPL's confirmation forms were sufficient to trigger the Section 2-201(2) exception, and the jury returned a verdict in favor of GPL for over $740,000.[6] A divided Oregon Court of Appeals affirmed. The majority reasoned that, although the "sign and return" instructions on GPL's forms suggested that they were mere offers to sell rather than confirmations of existing contracts, other considerations -- including the fact that the forms were labelled "confirmations" -- established that the documents were intended to confirm the existence of prior agreements.[7] The majority thus held that the elements of the Section 2-201(2) exception to the Statute of Frauds had been met, and GPL could enforce its contract claims. The dissenting judge cited decisions from other jurisdictions holding that "sign and return" documents did not constitute "confirmations" and thus did not satisfy the requirements of Section 2-201(2).[8] The dissent argued that the majority decision "creates an 'Oregon exception' to the uniformity that is one of the underlying purposes of the U.C.C."[9] The Oregon Supreme Court has agreed to review the decision.[10]

During the trial, GPL's counsel had attempted to argue that the alleged sales between GPL and L-P were governed by CISG rather than by Oregon's U.C.C., but the trial judge ruled that the point had been raised too late.[11] The dissent in the Court of Appeals mentioned this matter in a concluding footnote:

I would, however, address plaintiffs' cross-assignment that the trial court erred in refusing to apply the United Nations Convention on Contracts for the International Sale of Goods (CISG), 15 U.S.C.A. App. (Supp. 1994), instead of the U.C.C. Article 11 of the CISG does not require a contract to be "evidenced by writing" and thus, would defeat L-P's statute of frauds defense if the trial court abused its discretion under ORCP 23 B [governing the amendment of pleadings to conform to the evidence] in ruling that plaintiffs' attempt to raise the CISG was untimely and that they had waived reliance on that theory."[12]

B. CISG: An Outcome-Determinative Departure

The dissent's footnote is certainly correct about the substantive result if CISG had been applied in GPL. Article 11 of the Convention provides that "[a] contract of sale need not be concluded in or evidenced by writing." There is only one exception to this rule. Article 12 of the Convention states that the CISG provisions dispensing with the need for a writing do not apply if a party to the transaction is located in a country that ratified the Convention with the reservation permitted by Article 96.[13] A declaration pursuant to Article 96 is the most common reservation among "Contracting States" (i.e., countries that have ratified CISG),[14] but neither of the countries where the parties in GPL were located -- the United States and Canada -- has made such a reservation.[15] Thus, if the court had applied CISG to the transactions between GPL and L-P, the lack of a writing signed by the buyer would have been no obstacle to the seller's claim.

Putting aside the possibility that (as the trial court held) the seller had waived this argument, the alleged sales in GPL appear to be governed by the Convention rather than Article 2 of the U.C.C. Article l(l)(a) of CISG provides that the Convention applies to international sales of goods between parties located in different Contracting States. The alleged transactions in GPL were, apparently, cross-border sales between a Canadian seller and a U. S. buyer.[16] The U.S. and Canada have both ratified CISG, and the transactions at issue occurred after the date that the Convention became effective in both countries.[17] Thus, based on the facts stated by the Oregon Court of Appeals, CISG appears to apply under Article l(l)(a).

The foregoing highlights an important and highly practical lesson of the GPL case. The seller came perilously close to losing its suit -- indeed, it may still lose before the Oregon Supreme Court -- because it delayed raising the argument that CISG governed its transactions with L-P. At trial and on appeal, the U.C.C. Statute of Frauds was a major stumbling block for GPL. Only a controversial opinion by a divided Court of Appeals, still subject to review by the Oregon Supreme Court, gave GPL the win on a point that is a non-issue had CISG been applied. The case thus stands as a stark warning that all practitioners whose practice encompasses commercial matters should be familiar with the Convention. The Statute of Frauds is only one area in which CISG makes significant, potentially outcome-determinative changes in U.S. sales law. Other such areas include, but certainly are not limited to, contract formation,[18] parol evidence,[19] the effect of missing contractual terms,[20] and remedies.[21] Attorneys who fail to familiarize themselves with CISG and the crucial changes it makes risk both their clients' rights and their own professional reputation.[22]

C. CISG as Regional Trade Law: The Impetus for Regionalized Interpretations

There is another significant aspect to the GPL case: it is the first reported CISG decision involving a transaction between Canadian and U.S. parties.[23] This highlights an important fact: all current U.S. trade in goods with Canada, the United States' largest trading partner,[24] is governed by CISG, unless the parties opt out of the Convention pursuant to Article 6. Because Mexico, the United States' third largest trading partner,[25] has also ratified the Convention,[26] the overwhelming majority of international sales in North America are subject to CISG unless the parties agree otherwise. In other words, CISG is in effect the sales law of the North American Free Trade Area created by the NAFTA Treaty and its implementing legislation.[27]

This role of CISG -- as the de facto sales law of a regional trading area -- is not confined to North America. Because the Convention has been ratified by the major economies of Western Europe,[28] CISG operates as the presumptive sales law for most trade in goods within the European Union. Even the gaps in CISG ratification tend to reflect regional trading patterns: notably missing from the roster of ratifying nations at the present time is the country with the world's second largest economy -- Japan[29] -- along with many other significant economies in the Asian-Pacific area.[30]

The phenomenon of CISG acting as the sales law of different regional trading groups -- the result of the interplay between patterns of trade and patterns of ratification of the Convention -- is not surprising. Because of economic and cultural similarities within the groups, reasons that attract one member to the Convention are likely to appeal to other members. Ratification by one member of the group may also create a kind of momentum pushing others to keep in step.[31]

The role of CISG as the de facto sales law of several key regional trading groups raises some significant issues. Inter-bloc transactions dominate the foreign trade of members of some of these groups. For example, although the trading activities of the United States span the globe, the bulk of U.S. international trade occurs within the North American Free Trade Area.[32] Similarly, one suspects that most international sales involving Germany, France and other Western European countries that have ratified CISG occur within the European Union. The size of the economies comprising the North American trading group and the European Union mean that transactions within these groups are likely to account for a large percentage of the sales subject to CISG. Such contracts are thus also likely to form the basis for a large proportion of the decisions construing CISG.

This phenomena [sic] is already apparent in Europe. German courts have produced far more identified decisions applying CISG than the tribunals of any other country, and virtually all of the transactions underlying those decisions have involved sales between European parties.[33] As yet there are relatively few U.S. decisions construing CISG, and those that have appeared have heretofore not involved Mexican or Canadian parties.[34] The GPL case may, however, signal that sales involving parties within the North American Free Trade Area are coming to the fore in U.S. decisions construing CISG.

Thus, decisions involving transactions between members of regional trading groups may well come to dominate CISG jurisprudence. One possible result is the development of regionalized interpretations of the Convention. For several reasons, courts and arbitrators in a country that is part of a trading group may pay special deference to CISG decisions from other members of the group as compared to opinions from outside the bloc. For one thing, decisions emanating from another member of a trading group will often involve nationals of the forum's country. The forum tribunal is thus more likely to learn of such cases, and reciprocity considerations may argue for taking special heed of decisions from major trading partners of the forum's state.

Furthermore, given that transactions with fellow members of a trading group often account for a disproportionate percentage of a country's international trade, it is particularly critical to develop a coherent and consistent legal structure for trade within the group. This puts a premium on avoiding inconsistencies and conflicts with the decisions of other trading group members. Given a choice between two incompatible applications of CISG, one followed in a fellow member of a trading bloc and the other originating from outside the group, the forum may well opt for the approach of its trading bloc colleague.

In addition, the high level of trading activity within a group will often produce understandings and procedures unique to parties located in the bloc. The Convention itself, in Article 8(3), provides that such usages and practices should be consulted in determining the obligations and rights of parties to a contract governed by CISG. Recognition of the understandings and practices among parties located within a trading group could thus become established in the CISG decisions of the group's members.

Whether a CISG decision originates in a fellow member of a trading group is, of course, just one of the factors likely to influence how much weight a tribunal attaches to the decision. Other factors will undoubtedly play important roles in the weighing of precedent. For example, a court may be more likely to learn of and follow decisions from other countries that share a legal tradition (e.g., common law or civil law) with the tribunal. Courts may also be more attracted to decisions from countries at a similar level of economic development with the forum state. Thus, it might be that a U.S. court would pay more deference to a decision from a developed nation in Western Europe than to one from Mexico, even though Mexico is part of the North American Free Trade Area and accounts for more U.S. trade than any European country. Even if this proves true, it does not mean that Mexico's membership in the North American trading group will not exert a special pull on U.S. courts, or that such pull does not create a tendency (albeit one that can be overcome by other factors) towards a North American tradition of interpreting CISG. This commentary merely argues that, other factors being equal, courts will tend to pay more attention to decisions from fellow members of a trading group.

Is there anything wrong with the development of distinct regionalized interpretations of CISG? Obviously, the phenomenon threatens the uniformity in interpretation urged in Article 7 of the Convention. On the other hand, Article 7 itself recognizes that complete uniformity in interpreting the Convention is an aspiration toward which decision makers are to work rather than an absolute that can be achieved in every case. Article 7 seems to contemplate a process -- leading eventually, it is hoped, toward a universally recognized interpretation, but a process that does not sacrifice other (and perhaps competing) considerations. Thus, Article 7 speaks of having "regard" to "the need to promote uniformity in" the application of CISG, but it also speaks of the need to promote "the observance of good faith."

The question is whether the development of distinct traditions of interpreting CISG in the different trading groups is part of a process that will lead, ultimately, to global uniformity in international sales law. How one answers that question may well echo one's vision of the role of trading groups in the development of free global trade. Do regional trading blocs constitute an obstacle to a free world-wide market, an additional institutional layer that fosters protectionism within the group and that must be overcome to achieve global free trade? Or do regional trading arrangements represent progress toward the development of free world commerce, interim steps that are part of a necessary evolution toward a common global marketplace?[35] From the former viewpoint, the appearance of distinct traditions of interpreting CISG in the different trading groups will represent one more backward step in the struggle for unified law. Under the latter view, however, the emergence of regionalized interpretations of CISG may well be a necessary and desirable concomitant to the construction of a world trading regime through the development of supra-national regional trading arrangements.[36]

From the author's perspective -- one not clouded by any deep knowledge of or sophistication concerning international trade and politics -- there is no simple answer to the question whether different regionalized interpretations of CISG are a desirable (or at least unavoidable) step in the progress towards a uniform global sales law, or whether such interpretations are stumbling blocks on the path to uniformity, to be avoided or removed if possible. The devil is in the detail of how such interpretations would develop and be employed. It certainly is possible that they would reinforce protectionist tendencies in a trading bloc, facilitating transactions within the group while presenting a barrier to outsiders. On the other hand, they may represent a breakthrough in the recognition of views originating from outside a court's national legal system -- a first critical step in transcending familiar but parochial approaches, and the initial stage in becoming accustomed to adopting an international perspective when dealing with international sales law. A regional interpretation of the Convention may even "fine tune" CISG to better reflect the expectations of parties to intra-bloc trade without substantially interfering with transactions that go outside the group. That would be a development fully in keeping with the premises of the Convention and the goal of a truly global sales law regime.

CONCLUSION

CISG first became applicable to transactions starting in 1988.[37] An increasing number of disputes governed by the Convention are now reaching the end of the pipeline and are generating court decisions. We are passing beyond the childhood of CISG jurisprudence and beginning to enter its adolescence -- a period troubling and unsettling, but also exciting and crucial to the ultimate success of the venture. Expertise concerning the Sales Convention cannot now be confined to a small group of scholars and international law specialists. In this age of global commerce, seemingly routine transactions are subject to CISG. The general commercial practitioner must be aware of the Convention and the significant changes it brings to sales law.

This period is also a critical one in the development of appropriate methods of construing and applying CISG. It is likely that court decisions during this crucial early period will reflect the broader trends of international trade -- in particular the proliferation and strengthening of regional trading groups. Whether that will be a stroke against the uniformity envisioned in Article 7 of the Convention, or whether it will help lay the foundation for ultimately achieving that uniformity, is not clear. The outcome will be determined by the efforts and intelligence of the lawyers, judges and commentators charged with understanding and applying CISG.


FOOTNOTES

* Professor, University of Pittsburgh School of Law. A.B. 1973, Harvard College; A.M. 1975, Harvard University; J.D. 1981, Harvard University School of Law. I wish to thank my collegue, Professor Ronald Brand of the University of Pittsburgh School of Law, not only for his insightful suggestions on this particular essay, but more generally for making it possible and enjoyable for me to work in the area of international sales law. I also thank Pittsburgh Law student Jennifer Hanley for her intelligent and energetic assistance.

1. U.N. Conference on Contracts for the International Sale of Goods, Final Act (Apr. 10, 1980), U.N. DOC. A/CONF. 97/18, reprinted in S. Treaty Doc. No. 98-9, 98th Cong., 1st Sess. and 19 I.L.M. 668 (1980) [hereinafter CISG or Convention].

2. 894 P.2d 470 (Or. Ct. App. 1995), rev. granted, 898 P.2d 770 (Or. 1995).

3. 894 P.2d at 471-72.

4. Except as otherwise provided in this section a contract for the sale of goods for the price of $500 or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought or by his authorized agent or broker. A writing is not insufficient because it omits or incorrectly states a term agreed upon but the contract is not enforceable under this paragraph beyond the quantity of goods shown in such writing.
U.C.C. § 2-201(1).

5. Between merchants if within a reasonable time a writing in confirmation of the contract and sufficient against the sender is received and the party receiving it has reason to know its contents, it satisfies the requirements of subsection (1) against such party unless written notice of objection to its contents is given within 10 days after it is received.
U.C.C. S 2-201(2).

Note that, to trigger the § 2-201(2) exception, a party must have received a confirmation that is "sufficient against the sender." That means the confirmation must satisfy the requirements of § 2-201(1) as to the sender (be signed by the sender, indicate a contract was made, etc.) so as to render the contract enforceable against the sender. One court explained the rationale for the exception as follows:

The purpose of [U.C.C. § 2-201(2)] is to rectify an abuse that had developed in the law of commerce. The custom arose among business people of confirming oral contracts by sending a letter of confirmation. This letter was binding as a memorandum on the sender, but not on the recipient, because he had not signed it. The abuse was that the recipient, not being bound, could perform or not, according to his whim and the market, whereas the seller had to perform. Obviously, under these circumstances, sending any confirming memorandum was a dangerous practice. Subsection (2) of Section 2-201 of the Code cures the abuse by holding a recipient bound unless he communicates his objection within 10 days.
Azevedo v. Minister, 471 P.2d 661, 665 (Nev. 1970) (footnotes omitted).

6. 894 P.2d at 472, 474.

7. Id at 474-75.

8. Id at 476.

9. Id at 475.

10. GPL Treatment, Ltd. v. Louisiana-Pacific Corp., 898 P.2d 770 (Or. 1995).

11. GPL Treatment, 894 P.2d at 477 n.4 (Leeson, J., dissenting); Respondent's Brief to the Oregon Court of Appeals at 28-29, GPL (No. 9209-06143).

12. 894 P.2d at 477 n.4 (Leeson, J., dissenting).

13. CISG Article 12 states:

Any provision of article 11, article 29 [on modifying or terminating a sales contract] or Part II of the Convention that allows a contract of sale or its modification or termination by agreement or any offer, acceptance or other indication of intention to be made in any form other than in writing does not apply where any party has his place of business in a Contracting State which has made a declaration under article 96 of this Convention. The parties may not derogate from or vary the effect of this article.

14. At the time of this writing, nine Contracting States -- Argentina, Belarus, Chile, China, Estonia, Hungary, Lithuania, the Russian Federation, and the Ukraine -- have made declarations under Article 96. See Journal of Law and Commerce CISG Contracting States and Declarations Table, 14 J.L. & COM. 235 (1995) [hereinafter Declarations Table].

15. Had the United States or Canada ratified CISG with an Article 96 reservation, the provisions of Article 11 permitting a contract to be made in non-written form would not apply to the transaction in GPL. CISG Art. 12. In that case, the domestic sales law applicable under choice of law principles would determine whether a writing was required. JOHN O. HONNOLD, UNIFORM LAW FOR INTERNATIONAL SALES UNDER THE 1980 UNITED NATIONS CONVENTION § 129 at188 (2d. ed. 1991). Thus if the court's choice of law analysis pointed to the law of the jurisdiction where the buyer (L-P) was located, then the writing requirements of U.C.C. § 2-201 as enacted in Oregon would apply. This would be the result no matter which country -- the U.S. or Canada -- had made the Article 96 reservation.

16. It is not entirely clear that the parties were located in different Contracting States. The GPL opinion indicates that the seller, while operating primarily in Canada, had at least one office in the United States. See 894 P.2d at 471. According to CISG Article 10(a), if a party has several places of business, the one that determines where the party is deemed located is "that which has the closest relationship to the contract and its performance, having regard to the circumstances known to or contemplated by the parties at any time before or at the conclusion of the contract." Under Article 1(2), furthermore, a sale is not deemed international unless the fact that the parties were located in different countries was apparent "either from the contract or from any dealings between, or from information disclosed by, the parties at any time before or at the conclusion of the contract." Thus to determine whether CISG applied to the transactions in GPL one might need further facts about how the alleged contract was negotiated and what the parties knew (or should have known) at the time the contract was formed concerning the location and planned performance of the other party. GPL's brief to the Oregon Court of Appeals asserted that the seller's communications relating to the transactions (including the mailing of the confirmation forms) took place in its Canadian offices, and that the shakes allegedly sold to L-P were to be produced in its Canadian facilities. Respondent's Brief at 31-32, GPL (No. 9209-06143). L-P's Reply Brief argued that "in the absence of discovery, briefing, and an evidentiary record, it is idle to speculate on what particular factual issues might be involved in the question of the applicability of the CISG in this instance." Appellant's Reply Brief at 15, CPL (No. 9209-06143).

17. According to Article 100(2), the Convention applies under Article l(l)(a) only to sales contracts formed after the dates on which CISG became effective in the countries of both parties. Under Article 99, the Convention takes effect in a country one year after the first of the month following ratification. CISG went into force in the United States on January 1, 1988. Declarations Table, supra note 14, at 242. The Convention's effective date in Canada was May 1, 1992. Id. at 237. Because the alleged sales in GPL occurred in 1992, the timing requirements of Article 100(2) were satisfied. It should be noted that, for contract formation issues, the Convention applies under Article l(l)(a) only if the offer was made on or after the effective dates of CISG in the countries of both parties. CISG Article 100(1).

18. See John E. Murray, Jr., An Essay on the Formation of Contracts and Related Matters Under the United Nations Convention on Contracts for the International Sale of Goods, 8 J.L. & COM. 11 (1988).

19. See Ronald A. Brand & Harry M. Flechtner, Arbitration and Contract Formation in International Trade: First Interpretations of the U.N. Sales Convention, 12 J.L. & COM. 239, 251-52 (1993); Harry M. Flechtner, More U.S. Decisions on the U.N. Sales Convention: Scope, Parol Evidence, "Validity," and Reduction of Price Under Article 50, 14 J.L. & COM. 153, 156-61 (1995).

20. Paul Amato, U.N Convention on Contracts for the International Sale of Goods -- The Open Price Term and Uniform Application: An Early Interpretation by the Hungarian Courts, 13 J.L. & COM. 1 (1993).

21. See James J. Callaghan, U.N. Convention on Contracts for the Sale of Goods: Examining the Gap-Filling Role of CISG in Two French Decisions, 14 J.L. & COM. 183, 198-99 (1995); Eva Diederichsen, Commentary to Journal of Law and Commerce Case I;Oberlandesgericht, Frankfurt am Main, 14 J.L. & COM. 177 (1995); Flechtner, supra note 19, at 169-76; Harry M. Flechtner, Remedies Under the New International Sales Convention: The Perspective from Article 2 of the U.C.C., 8 J.L. & COM. 53 (1988).

22. A variety of guides to and sources of information about CISG are available. In addition to the material published by the Journal of Law and Commerce in its ongoing project to promote understanding of CISG, see HONNOLD, supra note 15; ALBERT H. KRITZER, GUIDE TO PRACTICAL APPLICATIONS OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS (1989); BUSINESS LAWS, INC., GUIDE TO THE INTERNATIONAL SALE OF GOODS CONVENTION (1994). Cites to CISG commentary and case law from around the world are collected in MICHAEL R. WILL, CISG, THE UN CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS: INTERNATIONAL BIBLIOGRAPHY, 1980-1995; THE FIRST 150 OR SO DECISIONS, 1988-1995 (1995). Case citations are also available through UNCITRAL, CLOUT: CASE LAW ON UNCITRAL TEXTS, U.N. DOC. A/CN.9/SER.C/ABSTRACTS/1 et seq. (1993 and later) and UNILEX, A Comprehensive and Intelligent Data Base [on floppy disk] on the UN Convention on Contracts for the International Sale of Goods, a project supervised by Professor M.J. Bonell for Transnational Publications of Irvington, New York. A World Wide Web database devoted to CISG ("http:/ cisgw3.1aw.pace.edu" or "http://www.cisg.law.pace.edu") is being constructed by the Institute of International Commercial Law of Pace University School of Law and should soon be available.

23. The other U.S. cases that cite CISG include three involving transactions with parties from Italy (Graves Import Co., Ltd. v. Chilewich Int'l Corp., No. 92 CIV. 3655, 1994 U.S. Dist. LEXIS 13393 (S.D.N.Y. Sept. 21,1994); Delchi Carrier S.p.A. v. Rotorex Corp., No. 88-CIV-1078, 1994 U.S. Dist. LEXIS 12820 (N.D.N.Y. Sept. 7, 1994); Filanto, S.p.A. v. Chilewich Int'l Corp., 789 F. Supp. 1229 (S.D.N.Y. 1994)), two cases involving transactions with Hungarian parties (S.V. Braun, Inc. v. Alitalia-Linee Aeree Italiane, S.p.A., No. 91 CIV. 8484 (LBS), 1994 121680 (S.D.N.Y. Apr. 6, 1994); Interag Co., Ltd. v. Stafford Phase Corp., No. 91 CIV. 3253, 1990 WL 71478 (S.D.N.Y. May 22, 1990)), one case featuring a sale to a party in China (Beijing Metals & Minerals Import/Export Corp. v. American Bus. Ctr., Inc., 993 F.2d 1178 (5th Cir. 1993)), and one case involving a Swiss party (Orbisphere Corp. v. United States, 13 Ct. Int'l Trade 866 (1989)). There are, as yet, no reported decisions on CISG by Canadian courts. See WILL, supra note22, at 243.

24. UNITED STATES BUREAU OF THE CENSUS, STATISTICAL ABSTRACT OF THE U.S.: 1994 § 28 FOREIGN COMMERCE AND AID at 800 (Figure 28.2)(114th ed. 1994).

25. Id.

26. Declarations Table, supra note 14, at 241. The Convention went into force with respect to Mexico on January 1, 1989. Id.

27. 19 U.S.C.A. §§ 3311-3317 (Supp. 1995).

28. European countries that have ratified the Convention include, inter alia, Germany, France, Italy, Austria, the Netherlands, Spain, Switzerland, and the Scandinavian countries. Declarations Table, supra note 14, at 235. Non-ratifying European countries include Belgium, Great Britain, Greece, Ireland and Portugal. Id.

29. Etsuo Abe & Robert Fitzgerald, Japanese Economic Success: Timing, Culture, and Organizational Capability, BUS. HIST., Apr. 1995, at 1.

30. Other Asian-Pacific countries that have not ratified CISG include South Korea, Thailand, Taiwan, Hong Kong, Indonesia and Malaysia. Declarations Table, supra note 14, at 235. The People's Republic of China and Singapore have ratified CISG. Id. China did so on the same day that both the United States and Italy ratified. Id. Perhaps because of differences between China's economic system and the systems of countries like Japan and South Korea, China's ratification did not precipitate ratification by other major players in the Asian-Pacific area.

31. See Errol P. Mendes, The U.N. Sales Convention and U.S.-Canada Transactions: Enticing the World's Largest Trading Bloc to Do Business Under a Global Sales Law, 8 J.L. & COM. 109, 109 (1988) (before Canada ratified CISG, author argued that, because U.S. had ratified the Convention, "Canada, as the United States' largest trading partner, has very little option but to follow suit." [footnote omitted]).

32. See UNITED STATES BUREAU OF THE CENSUS, supra note 24, at 823, 825.

33. The most comprehensive listing of cases citing CISG is in WILL, supra note 22. Of the 162 CISG decisions identified in Professor Will's extremely valuable collection, 73 are from German courts. Of those 73, only four arise from transactions involving a non-European party. Of the 108 CISG cases currently cited in the UNILEX computer database, supra note 22, 46 are from German courts; only one of those 46 features a transaction involving a non-European party.

34. Supra note 23 and accompanying text. One decision by a Mexican court involved a transaction between parties in the United States and Mexico. José Luis Morales y/o Son Export, S.A. de C.V., de Hermosillo Sonora, México v. Nez Marketing de Los Angeles California, E.U.A., D.O. May 27, 1993, 17-19 (COMPROMEX, Comisión para la Protección del Comercio Exterior de México, 1993), abstracted in UNILEX, supra note 22.

35. For articulation of the contradictory roles regionalism may play in the development of an open world market, see Robert D. Hormats, Making Regionalism Safe, FOREIGN AFFAIRS, Mar./Apr. 1994, at 97. See also Prime Minister Goh, Regionalism Stays Open, Address Before the Fortune Global Forum (Mar. 9, 1995), in Regional Links Can Be Pillars of More Open Trade System, STRAIGHTS TIMES (Singapore), Mar. 10, 1995, at 30; Gary G. Yerkey, WTO Trade Ministers Agree to Study Regionalism, Multilateralism Links, BNA INTERNATIONAL TRADE DAILY (Washington, D.C.), Oct. 25, 1995.

36. Even if one accepts the argument that the development of regionalized interpretations of CISG shared by members of a trading bloc could be desirable, it is clear that different "national" interpretations of the Convention by individual countries cannot be justified. Professor Honnold has written eloquently of the importance of resisting the tendency to view the international text of CISG through the lens of one's own national jurisprudence. John Honnold, The Sales Convention in Action -- Uniform International Words: Uniform Application?, 8 J.L. & COM. 207, 208-09 (1988). See also Alejandro M. Garro, The Gap-Filling Role of the Unidroit Principles in International Sales Law: Some Comments on the Interplay Between the Principles and the CISG, 69 TULANE L. REV. 1149, 1151-52 (1995). A major purpose of publishing translations of foreign decisions and commentary on CISG in the Journal of Law and Commerce, a project pursued since 1993, is to provide some tools for combatting this tendency.

37. See Declarations Table, supra note 14, at 235.

Go to Case Table of Contents
Pace Law School Institute of International Commercial Law - Last updated January 9, 2008
Comments/Contributions
Go to Database Directory || Go to CISG Table of Contents || Go to Case Search Form || Go to Bibliography