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Reproduced with permission of 72 Tulane Law Review (June 1998) 1995-2014

The Inapplicability of the United Nations Convention on the International Sale of Goods as a Model for the Revision of Article Two of the Uniform Commercial Code

Henry D. Gabriel [*]

  1. The Uniform Commercial Code and the revision of article two
  2. Reasons for the CISG's lack of influence on the revision of article two
    1. Given the mandate to the drafting committee, the drafting process is
      inward-looking, making a focus on international law difficult
    2. The CISG as a whole is not an appropriate model for the revision of article two
      1. Different legal traditions
      2. Article two as part of a broader unified commercial code
      3. The Scope of article two and the CISG are different
      4. The primary goal of the revision process is not met by the CISG
      5. Incompatible structural differences
      6. Incompatible substantive differences
  3. Conscious decision to adopt the CISG
  4. Consistent but without influence
  5. Conclusion

The Uniform Commercial Code (UCC or the Code) and the United Nations Convention on the International Sale of Good (CISG) are similar in two important ways: they both seek uniformity in the law of sales, and they both are attempts to reflect modern commercial practices.[1] Noting these two considerations, and because the CISG is more recent than the present UCC Article Two provisions on sales,[2] it is natural to assume that the current revision process of Article Two would take cognizance of the CISG.[3] Yet the CISG has had very little influence in the revision of Article Two. In this Article, I discuss why I believe this is so.

I. The Uniform Commercial Code and the Revision of Article Two

The UCC, which is the major source of commercial law in the United States, is the product of two organizations which have developed and continue to revise it: the National Conference of Commissioners for Uniform State Laws (NCCUSL) [4] and the [page 1996] American Law Institute (ALI or the Institute).[5] Unlike the ALI, NCCUSL is a government organization, but neither organization nor [page 1997] the combination of the two, has the power to create positive law. The UCC, and the subsequent revisions to it, are presented to the various state legislatures for adoption, and the Code only becomes the law of a respective state when it is adopted by that state's legislature.[6] The UCC has been adopted in some form in all fifty states;[7] thus, its influence on American commercial practices has been quite considerable.[8] For this reason, the future shape of the Code has been of major concern to American business and commercial interests.[9] [page 1998]

Article Two, the sale of goods provisions of the Uniform Commercial Code, which has been in its present form since 1958, is now under revision.[10] The present Article Two replaces the Uniform Sales Act of 1906, which itself was based on the British Sale of Goods Act of 1893.[11] Both of these earlier statutes attempted to codify the common law of sales, and as such, retained much of the formalism of the late nineteenth century law of contract.[12] Article Two, however, represents a distinctly different approach to the law of sales. Eschewing traditional contract formalism, Article Two sets out rules that are designed to weave the particular sale into its specific business context.[13] The CISG was likewise drafted with practical business implications in mind.[14] The Drafting Committee to Revise Article Two continues to work in this tradition.[15]

It is important to note that the revision of Article Two is part of a larger project to revise the whole Uniform Commercial Code,[16] and that this is happening during a period of major advances in international commercial law. The current development of [page 1999] international codes is taking place precisely when our domestic UCC, drafted nearly fifty years ago, is undergoing tremendous scrutiny and revision. This development is also occurring at a time when commercial lawyers can no longer limit themselves to the domestic arena; the increased use of technology and new means of transport have effectively changed our market structures from domestic to global economies. Lawmakers in the United States are quite aware of the necessity of tailoring commercial law to be compatible with international commerce and business practices.[17] For these reasons, the various revised articles of the UCC have used, and the drafters currently revising sections are using, the emerging international commercial standards as models.[18]

Just as the United States went through a period of codification of the principles of commercial law resulting in the UCC, efforts have been and are currently underway on the international level to create what might be called an international UCC. A major step in that direction was the drafting and signing of the United Nations Convention on Contracts for the International Sale of Goods.[19] Other conventions and uniform rules in the areas of financing of goods, payment systems, and transport have also contributed to this development.[20]

In an ideal world, the drafters of both international and domestic laws would take the best features of several bodies of law and meld [page 2000] them together into a comprehensive legislative scheme.[21] The world is not ideal, however, and attempts to harmonize, though successful in many cases, have run into obstacles such as differences in commercial practices in the United States and elsewhere throughout the world, as well as differences in legal theory and appropriate legal policies.

II. Reasons for the CISG's Lack of Influence on the Revision of Article Two

A. Given the Mandate to the Drafting Committee, the Drafting Process Is Inward-Looking, Making a Focus on International Law Difficult

To understand the process and direction of the Article Two revision project, one must first understand the mandate given to the drafting committee. The mandate was to revise the sales provisions, not to draft a new commercial code.[22] The revision process is based on the idea that the current Code is not reflective of current business practices, particularly in areas such as consumer protection, warranty and products liability, and third party rights in sales contracts, as well as emerging electronic modes of contracting.[23] Therefore, the focus has been on the existing Code and how it can be changed to reflect modern business practices and the better reasoned cases. This focus tends to be inward-looking always focused on the existing Code itself, and therefore, the comparisons with other codes, such as the CISG and the UNIDROIT principles, tend to be incidental as opposed to deliberate.[24]

In addition, the process of open NCCUSL drafting,[25] with its heavy influence of interest groups familiar with the Code and its [page 2001] problems (or simply the desires of specific interest groups), keeps the focus on the existing Code.[26] By allowing the full participation of all of the attendees, the NCCUSL ensures that the conversation rarely moves beyond the text of the existing statute or the language of a proposed revision. These are the concerns of the participants to the process, and therefore, this is where the discussion and drafting are centered.

Moreover, beyond the actual mandate of the drafting committee to revise the existing code, there is also the question of familiarity. The members of the drafting committee and the advisors and observers to the process are all very familiar with the UCC.[27] This common language and familiarity keeps the focus on the UCC.[28]

B. The CISG as a Whole Is Not an Appropriate Model for the Revision of Article Two

Even to the extent that the drafting committee has looked outward to other legal systems for guidance, the CISG has not proven to be an appropriate model for the revision. From the beginning of the revision process, the drafting committee has studied the extent to which the revised Article Two should be consistent with the CISG.[29] A perusal through the comments and drafters' notes to the current draft shows numerous examples of the CISG being cited, albeit often in the context of the rejection of the CISG as a model.[30] However, the drafting committee has not used the CISG as an overall model for the [page 2002] revision. The process of harmonizing the UCC and the CISG has been ad hoc and has involved selective borrowing.

Although the drafting committee has not consistently followed the CISG, there are strong arguments for uniformity between the two sales regimes. In international commercial transactions, "uniform international sales law avoids disputes over which domestic law applies" and thereby enhances the efficiency of international trade.[31] This facilitates transaction planning and dispute settlement, as well as promotes consistent interpretations by courts and arbitrators. In the domestic context, the same argument has justified the Uniform Commercial Code since its inception. However, despite the similar rationales, the drafting committee has not chosen to adopt the CISG as the model for the revision of Article Two for several reasons.

1. Different Legal Traditions

The present Article Two was drafted and operates within a context of established principles of the common law of contracts.[32] To the extent that Article Two does not displace the common law of contract, the common law is a part of the operative principles that govern domestic sales law.[33]

Unlike the UCC, the CISG is not based on any particular set of underlying established domestic legal principles, and instead, was drafted to be independent of, rather than to work in conjunction with, any particular domestic law.[34] Without a common legal framework for both the UCC and the CISG as background, and because the drafting committee has never considered jettisoning the common law background of the UCC, the CISG does not fit neatly as a model for a revised Article Two.[35] [page 2003]

To the degree that one can attach a specific legal tradition to the CISG, an analysis shows that it is a blend of both the common law and civilian traditions.[36] One sees this clash of civil law and common law legal cultures, for example, in areas such as specific performance where the CISG liberally allows for it,[37] and the doctrine of impossibility, where the CISG also takes the more liberal civil law approach.[38]

2. Article Two as Part of a Broader Unified Commercial Code

Another significant difference between Article Two and the CISG is the fact that Article Two is an integral part of the Uniform Commercial Code, and its logic, terminology, and substantive rules have to conform to the articles on leases of goods, commercial paper, electronic funds transfers, letters of credit, documents of title, and secured transactions.[39] Unlike Article Two of the UCC, the CISG is an [page 2004] independent statute that does not fit within the broader framework of a larger code.

3. The Scope of Article Two and the CISG are Different

Moreover, the differences in the scope of coverage between the two acts is another barrier to the adoption of the CISG as a model for the revised Article Two. Neither the ClSG nor Article Two covers all aspects of sales transactions. The CISG, however, is less comprehensive in its scope than Article Two, and in that respect, cannot serve as a full model for the UCC. For example, the CISG does not cover consumer contracts,[40] nor does it cover questions of noneconomic losses in product liability, whereas the UCC covers both.[41] In fact, the UCC is a major source of products liability law in the United States, and the question of how much it will continue to be so is part of a large debate in the drafting process.[42] This is, however, a debate for which the CISG provides no guidance. [page 2005]

In addition, the UCC not only deals with both commercial and consumer contracts, in many contractual contexts, it also sets out different rules based on whether one or both parties is a merchant.[43] The CISG makes no such distinctions. Within Article Two, there is a constant and delicate balance between commercial and consumer contracts [44] -- a coordination unnecessary in the CISG.

Also missing in the provisions of the CISG are the broad protections included in Article Two against unconscionable contracts,[45] as well as the provisions that provide claims against remote sellers without privity of contract.[46] In addition, adopting within the sales provisions the common law principles of good faith purchasers, Article Two governs the effect of a contract for sale on [page 2006] certain interests in the goods claimed by third persons.[47] To the extent that the proposed revisions of Article Two promote stronger consumer protection and lessen the privity requirements, the differences in scope between the CISG and the UCC will continue to grow.

There are other important differences between the CISG and Article Two. For example, the CISG has no statute of frauds.[48] Although there has been much debate on whether the revised Article Two should retain the statute of frauds,[49] its absence in the CISG is one argument for its abolition.[50] It appears unlikely, however, that the statute of frauds will be removed from Article Two.[51]

There are other areas of concern in the Article Two revision that are also outside the scope of the CISG. For example, the CISG also does not have a parol evidence rule.[52] As for Article Two, although the revision committee has constantly tinkered with the parol evidence [page 2007] rule,[53] there has been no suggestion either by the committee or any interested groups to abolish it.

It should also be noted that the revision committee has not discussed the issue of Article Two's scope in a consistent manner, nor has the committee always assumed that the scope of the revised Article Two would remain the same as the current version. In fact, the contours of Article Two have expanded and contracted greatly during the revision process,[54] and this examination and reexamination of scope has taken up much of the energy of the drafting commitee.[55] In doing so, this discussion has led the process further afield from considerations of external legal rules, such as the CISG, by focusing the attention of the revision to the narrow question of what Article Two should look like.

4. The Primary Goal of the Revision Process Is Not Met by the CISG

Another reason why the CISG has not proven to be an appropiate model for the revision of Article Two is because the primary goal of the revision is not addressed in the CISG. One of the major reasons for the revision of Article Two is the need to conform the Code to the change in business practices which has occurred in the [page 2008] last fifty years since the present Article was drafted. While it is true that Article Two in its present form does not respond to modern electronic and computer-based business transactions,[56] neither does the CISG, and therefore the CISG cannot serve as a model to revise Article Two in light of electronic commerce.[57]

5. Incompatible Structural Differences

Another fundamental reason why the CISG has not been an appropriate model for the Article Two revision is because of several incompatible structural differences in the way in which the two regimes treat basic legal concepts. For example, an important structural difference between the CISG and Article Two involves the buyer's rights when the seller tenders nonconforming goods. Under the UCC, upon delivery of nonconforming goods the buyer can choose between acceptance and rejection of the goods.[58] Unlike Article Two, the CISG does not provide for rejection or acceptance. Instead, under the CISG, the buyer can require the seller to repair or replace the goods only in the case of a fundamental breach.[59] It is important to note that this difference in standards in the ability to avoid a seller's performance transcends many areas of sales law, particularly the right to cure [60] as well as the entire damages scheme.[61]

The law of warranty is another good example of where the basic structure of Article Two is fundamentally different from the CISG, and therefore keeps the CISG from being an appropriate model for the reform of Article Two.[62] Both the CISG and Article Two have the basic presumption that the seller must tender goods that conform to the [page 2009] contract.[63] Under Article Two, this proposition is resolved under a theory of warranty.[64] The American law of warranty is an outgrowth of a long history of common law responsibility that has its roots in both contract and tort.[65] The UCC rules are very much grounded in this history, and there has been no suggestion to depart from it.

In contrast, the CISG does not have a general theory of warranty. Instead, the CISG simply provides a series of mandates, such as that the seller "must deliver goods which are of the quantity, quality and description required by the contract and which are contained or packaged in the manner required by the contract."[66] Interpretation of the terms are not set out in the articles on seller's responsibility concerning the goods, but are covered by the general article on interpretation of agreements.[67]

I have suggested elsewhere that the standards of conformity under the CISG are virtually the same as those imposed under Article Two of the UCC, and that the difference is only one of terminology.[68] Therefore, there is no practical difference in the result obtained under each regime. Yet, for purposes of drafting, whether the difference is actually substantive [69] or only one of terminology, the difference is significant; under the UCC, a revision will always be looking to the language of warranty and the well-established rules based on this language. As the CISG does not work in terms of "warranty," it cannot serve as a model for the Article Two revision in this area.

This point is emphasized in terms of modification and disclaimers of warranties. Because the term "warranty" is not used, the CISG has no provision dealing with the "exclusion or modification" of warranties. Rather, disputes over quality turn on [page 2010] what the contract "required" under article 35(1) and whether the parties have "otherwise agreed" under article 35(2). Unlike Article Two, no special rules for interpretation are provided in these cases nor are there special procedures for exclusions or modifications.[70]

6. Incompatible Substantive Differences

Another reason why the CISG has not proven to be an effective model for the Article Two revision arises from several major substantive differences between the UCC and the CISG: differences that are not likely to be changed by the revision process. Two areas of importance are the standards for rejecting goods under a contract and the question of third-party nonprivity rights.

Under the UCC, a buyer can reject the goods "if the goods or the tender of delivery fail in any respect to conform to the contract."[71] This rule, known as the "perfect tender rule," effectively negates the common law contract rule requiring a "material breach" as a basis for the rejection of goods.[72] The purpose of this UCC rule is to give buyers certainty as to their right to reject goods and to relieve them of the need to guess whether the nonconformity in the goods or the tender of the goods resulted in the amorphous notion of a "material breach."[73] Although sometimes criticized as not reflecting actual business practices and party expectations,[74] the drafting committee has considered the rule in light of possible alternatives, including the CISG, and has decided to keep the present rule in the revision.[75]

In contrast to the UCC, under the CISG, generally a buyer may only refuse delivery of nonconforming goods or a nonconforming tender of the goods if the nonconformity amounts to a "fundamental [page 2011] breach," as defined by article 25 of the CISG.[76] This requirement for avoidance of the contract makes sense in the prototypical international sales agreement in which goods are to be shipped transnationally. In this case, considerably more than a minor defect should be required to void a contract between parties who may be several thousand miles away.

This difference between the UCC and the CISG in the standards for avoiding agreements not only sets up a basic dissimilarity in the performance of contracts, but it also affects the remedial structure of the two regimes. For this reason, it is difficult to make meaningful comparisons between the two systems for purposes of drafting one code based upon the other. For example, the alternative remedies of "cover" [77] or market damages [78] for an aggrieved buyer depend upon a proper avoidance of the contract. These damages would not be available were the buyer to retain the nonconforming goods, and under the CISG, absent a fundamental breach, the buyer would be retaining the nonconforming goods. If one adds to this difference in the standards by which a party is entitled to these remedial rights under the UCC and the CISG, the additional civil law preference for specific performance found in the CISG,[79] one finds levels of complexity in the comparison of the UCC and the CISG that make reliance on the CISG less than fruitful.

Another area of significant concern in the Article Two revision is the question of the extent to which parties not in privity will have rights in sales contracts. The present version of Article Two, having come at the time of the emergence of modern product liability law, shows the confusion and indecision that questions of privity brought to the drafting process at the time it was written.[80] The questions of privity, and how far responsibility will be extended to parties who are not in privity, continue to be one of the most contentious areas of debate in the revision process. The debate concerns the scope of seller liability to third parties either through traditional derivative third-party [page 2012] liability [81] or the possibility of new direct warranty rights either through advertising or pass-through warranties.[82] And it must be remembered that these arguments regarding the scope of seller responsibility go beyond the abstract question of the purpose of the doctrine of privity in contract, and are in addition, intertwined with the question of how much consumer protection will be built into the structure of Article Two.[83] Under the present Article Two, the privity requirement has been eroded by the courts,[84] as well as greatly extended in the various alternative versions of Article Two itself.[85]

Yet, this question of privity is an area in which the CISG provides no guidance. CISG article 35(1), by limiting quality disputes to what the contract requires, applies only to the two-person sale between commercial parties. No article of the CISG extends seller's responsibility to a remote buyer, either directly or through a third-party beneficiary concept.[86] While the protection of consumer interests is deeply embedded in the UCC, these interests are simply not incorporated in the CISG.

III. Conscious Decision to Adopt the CISG

There is one place in the revised Article Two where the drafting committee consciously follows the lead of the CISG. This is the elimination of the definitions and meanings of specific shipping terms within the code. The current Article Two defines and gives consequences to certain shipping terms.[87] The drafting committee, acknowledging, as the drafters of the CISG did, that there are no clear universal delivery terms, and because usages and customs change over [page 2013] time, decided that it was best to rely on custom or external legal rules for the meaning of delivery terms.[88]

IV. Consistent But Without Influence

Any discussion on the influence of international commercial law on the revision of Article Two has to take into consideration that there are a great number of rules proposed in the revised draft, many of which are in the present version of the revised draft, that are consistent with the approach of the CISG, but were not chosen simply because they are in the CISG. Instead, these rules evolved as consistent with common business practices or were otherwise thought to be consistent with the rest of the provisions in Article Two. Examples of this include such default rules as: payment is due at the time of delivery of the goods,[89] the buyer must give the seller notice of the defect to rely upon the defect as a basis for the breach,[90] the buyer has a right to inspect before payment,[91] and a general duty to mitigate consequential damages.[92] There are, of course, many other examples.

V. Conclusion

The drafting committee to revise Article Two has chosen not to use the CISG as a model for the revision. As a member of the drafting committee who has spent six years on the project, I am convinced that the CISG is not an appropriate model for Article Two. Such factors as Article Two's coverage of products liability law as well as the extension of seller liability to nonprivity parties, which I believe are sound and correct policies in contemporary domestic law, do not conform with the structure and underlying policies of the CISG. Yet the CISG might have served as a stronger source for selective borrowing because it reflects, in many areas, current transactional practices in ways that the existing Article Two does not. However, for the reasons I suggest in this Article, the actual influence of the CISG on the revision of Article Two of the Uniform Commercial Code has been minimal.


* DeVan Daggett Professor of Law, Loyola University, New Orleans. Professor Gabriel is a Commissioner from Louisiana on the National Conference of Commissioners on Uniform State Laws, and in this position he has served since 1992 as a member of the National Conference of Commissioners on Uniform State Laws -American Law Institute Drafting Committee to Revise Article Two of the Uniform Commercial Code. He is also a member of the American Law Institute. All opinions are those of the author and do not necessarily reflect the views of the Article Two drafting committee, the reporters to the Committee, the National Conference of Commissioners on Uniform State Laws, or the American Law Institute.

The bracketed phrase page followed by a number is used to identify the page number of the original publication.

1. See Richard E. Speidel, The Revision of UCC Article 2, Sales in Light of the United Nations Convention on Contracts for the International Sale of Goods, 16 Nw. J. Int'l L. & Bus. 165, 165-71 (1995).

2. Article Two has been in its present form since 1958. See Id. at 168. The CISG was promulgated in 1980. See United Nations Convention on Contracts for the International Sale of Goods, Final Act, U.N. Doc. A/CONF. 97/18 (1980), reprinted in S. Treaty Doc. No. 9, 98th Cong., 1st Sess., app. B (1980) and in 19 Int'l Legal Materials 668 (1980).

3. Another reason why it is appropriate that the Article Two revisions should take the CISG into consideration is because, as with the UCC, the CISG is the law of the United States. The CISG is a self-executing treaty with the preemptive force of federal law. Unless otherwise agreed, the CISG "applies to contracts of sale of goods between parties whose places of business are in different States . . . when the States are Contracting States." C.I.S.G. art. (1)(a). Because it is federal law, when the CISG is applicable it preempts the UCC. See Speidel, supra note 1, at 166-67.

4. The purpose of the NCCUSL is to determine what areas of private state law might benefit from uniformity among the states, to prepare statutes or "uniform acts" to carry that object forward, and then to have those statutes enacted in each jurisdiction represented in NCCUSL. See Handbook of the National Conference of Commissioners on Uniform State Law and Proceedings of the Annual Conference Meeting in its Ninety-Eighth Year 395 (1990). NCCUSL was created in 1892, and it consists of representatives (Commissioners) from each state, the District of Columbia, Puerto Rico, and the U.S. Virgin Islands. See id. The Commissioners are appointed by their respective states, either by the state's governor or the legislature of the state. See id. All Commissioners are lawyers, and they serve without compensation. See id. at 395-96. The Commissioners do their work through drafting committees, on which many of them serve, and through an annual meeting lasting eight days each summer.

The first step in the NCCUSL process is to form a study committee of Commissioners to examine a suggestion for a uniform statute. With the UCC, this step is often performed instead by the Permanent Editorial Board for the UCC (PEB) or a body of American Law Institute (ALI or Institute) members and Commissioners acting on behalf of the PEB, or, in some cases, by the American Bar Association (ABA) or the ALI. Suggestions for a Code change may be made by the PEB, by a Commissioner or Institute member, or by a third party, such as the American Bar Association or an organization interested in a particular area of law.

If the study group recommends that a statute be prepared, then before any drafting begins, the recommendation must be approved by the Scope and Program Committee, as well as by the Executive Committee of NCCUSL, and in the case of the UCC, by the ALI as well. Once the decision to prepare a proposed statute is reached, a drafting committee composed of six to ten Commissioners is appointed, and with the UCC, because it is produced with the ALI, one or more ALI members are also appointed to the drafting committee.

Each drafting committee has a reporter. The reporter is a legal expert on the subject of the proposed statute and serves to collect information about the subject for the education and use of the members of the drafting committee. The reporter presents the information with policy choices in alternative draft language. The reporter in this sense does not decide what goes in the statute, but simply drafts the statute consistent with the decisions of the members of the drafting committee. The drafting committee determines the particular policy and provisions of the proposed statute based on the work of the reporter, on advice received from various relevant constituencies concerning those policies and provisions, and on the experience of the members in their practice in the various states.

Under an agreement with the American Bar Association, each drafting committee has an ABA advisor appointed to work with it. The function of the ABA advisor is to solicit and collect input from every interested constituency within the ABA, and to convey this advice to the drafting committee.

The proposed statute is discussed and debated at two annual meetings of NCCUSL and at least one annual meeting of the Institute. In these plenary sessions of the two organizations, the work of the drafting committee and the reporter is scrutinized and judged for balance, sensibility, and style.

Once an addition or revision to the UCC is completed and approved by NCCUSL and the ALI, the Commissioners from the various states are charged with the duty of getting the uniform statute enacted by the legislature in each jurisdiction. For the most part, recent uniform laws have been rapidly and uniformly enacted with limited adjustments made only to address purely local concerns or fundamental differences in policy particular to a state.

5. The ALI was organized in 1923, following a study conducted by a group of prominent American judges, lawyers, and teachers known as the "Committee on the Establishment of a Permanent Organization for the Improvement of the Law." See Report of the Committee on the Establishment of a Permanent Organization for the Improvement of the Law Proposing the Establishment of an American Law Institute 12 (Feb. 23, 1923), reprinted in The American Law Institute 50th Anniversary (2d ed. 1973). The Committee reported that the two chief defects in American law, its uncertainty and its complexity, had produced a "general dissatisfaction with the administration of justice." Id. at 11.

The committee recommended that a lawyers' organization be formed to improve the law and its administration. This led to the creation of the ALI. The purpose of the Institute is "[t]o promote the clarification and simplification of the law and its better adaptation to social needs, to secure the better administration of justice, and to encourage and carry on scholarly and scientific legal work." Id. at 44.

The founding committee recommended that the ALI address uncertainty in American law through a series of restatements of the basic legal subjects that would allow judges and lawyers to know what the law was. Between 1923 and 1944, Restatements of the Law were written on agency, conflict of laws, contracts, judgments, property, restitution, security, torts, and trusts. In 1952, the Institute began the drafting of the Restatements (Second). These were updated editions of the original Restatements, which reflected new analyses and concepts as well as expanded use of authorities. Restatements (Second) also covered subjects not included in the first Restatement, such as landlord and tenant law and the foreign relations law of the United States. In 1987, a new Restatement of the foreign relations law of the United States inaugurated a third series of Restatements, which also now includes Restatements of unfair competition and suretyship and guaranty. New Restatements on the law governing lawyers, property (donative transfers, servitudes, and mortgages), trusts and torts are also being developed as part of Restatement (Third).

Since 1923, the Institute has also drafted several Model Codes, such as the Model Penal Code, a Model Code of Evidence, and in collaboration with the NCCUSL, the Institute has drafted and promulgated the UCC. A proposed codification of the federal securities laws was published in 1980, and new examinations of aspects of federal income taxation and studies of complex litigation and corporate governance have recently been produced. Studies of family law and transnational business insolvency are presently in development.

In addition, since 1947, the Institute has collaborated with the ABA in a national program of continuing legal education. The American Law Institute - American Bar Association (ALI-ABA) Committee on Continuing Professional Education produces books, periodicals, and audiovisual materials covering most areas of practice and offers courses of study and programs of instruction throughout the country.

As a national organization, the Institute seeks a membership that reflects both the quality and the diverse character of the legal profession. See id. at 43. This membership consists of judges, lawyers, and law teachers from all areas of the United States as well as some foreign countries, selected on the basis of professional achievement and demonstrated interest in the improvement of the law.

Elected members are expected to participate regularly in the work of the Institute in some significant way. Members may participate by attending annual meetings, submitting written comments on drafts circulated before annual meetings, serving as reporters, advisors, or consultants on Institute projects, serving in members consultative groups, participating as speakers or lecturers in ALI-ABA programs or authors of ALI-ABA publications, or otherwise advancing the work or objectives of the Institute or ALI-ABA.

6. Because the individual states have the power to adopt whatever version or modifications the state pleases, there is a substantial amount of nonuniformity among the states. However, the adoption of nonuniform amendments by some states has not prevented the creation of a general uniform commercial law in the United States, such as the UCC.

7. The only significant exception is the state of Louisiana, which has not adopted the sales and leases articles of the UCC.

8. In fact, the influence of the Uniform Commercial Code as a model for commercial law has received much international recognition. See, e.g., Dame Mary Arden, Time for an English Commercial Code?, 56 Cambridge L.J. 516, 517-18 (1997); Ronald C.C. Cuming, Article 9 North of 49: The Canadian PPS Act and the Quebec Civil Code, 29 Loy. L.A. L. Rev. 971 (1996); Anthony Duggan, UCC Influences on the Development of Australian Commercial Law, 29 Loy. L.A. L. Rev. 991 (1996); Henri Gunanto, The Impact of U.S. Law Propositions on Indonesian Commercial Law, 29 Loy. L.A. L. Rev. 1047 (1996).

9. The author, as a member of the drafting committee to revise Article Two, is the recipient of many letters, memos, and proposals by the various American industries, businesses, and other commercial interests regarding the revision of the sales code. This accumulated paper now takes up more than five feet of shelf space.

10. In 1988, the Permanent Editorial Board for the Uniform Commercial Code appointed a study committee to determine whether Article Two should be revised. Upon the recommendation of the study committee, a drafting committee was appointed in 1991. See PEB Study Group: Uniform Commercial Code, Article 2 Executive Summary, 46 Bus. Law. 1869 (1991). The committee has met several times annually since then, and various drafts of the revised Article Two have been read to the whole conference at the annual NCCUSL meetings in 1995, 1996, and 1997.

11. See Robert Braucher, The Legislative History of the Uniform Commercial Code, 58 Colum. L. Rev. 798, 798-99 (1958); Kevin M. Teevan, A History of Legislative Reform of the Common Law of Contract, 26 U. Tol. L. Rev. 35, 71 (1994).

12. See Grant Gilmore, On the Difficulties of Codifying Commercial Law, 57 Yale L.J. 1341, 1341-42, 1347 (1948).

13. See Ingrid Michelsen Hillinger, The Article 2 Merchant Rules: Karl Llewellen's Attempt to Achieve the Good, the True, the Beautiful in Commercial Law, 73 Geo. L.J. 1141, 1151-60 (1985); Teeven, supra note 11, at 73-75.

14. See Kazuaki Sono, UNCITRAL and the Vienna Sales Convention, 18 Int'l Law. 7, 13 (1984).

15. See generally PEB Study Group, supra note 10.

16. The Code is divided into the following articles: Article One - General Provisions (presently being revised, with a completion date of 1998); Article Two - Sales (presently being revised, with a completion date of 1999); Article Two A - Leases (presently being revised, with a completion date of 1999); Article Two B - Licenses of Intangibles (presently being drafted, with a completion date of 1999); Article Three - Negotiable Instruments (last revised in 1990); Article Four - Bank Deposits and Collections (last revised 1990); Article Four A - Fund (promulgated in 1989); Article Five - Letters of Credit (last revised in 1995); Article Six - Bulk Sales; Article Seven - Warehouse Receipts, Bills of Lading and Other Documents of Title (no revision planned); Article Eight - Investments Securities (last revised in 1994); Article Nine - Secured Transactions (presently being revised, with completion date of 1998). See U.C.C. arts. 1-9 (1997).

17. See, e.g., Peter Winship, Domesticating International Commercial Law: Revising U.C.C. Article 2 in Light of the United Nations Sales Convention, 37 Loy. L. Rev. 43, 92 (1991).

18. For example, the revision of Uniform Commercial Code Article Five: Letters of Credit was greatly influenced by the current International Chamber of Commerce Uniform Customs and Practice for Documentary Credits (UCP). See Katherine A. Barski, Comment, Letters of Credit: A Comparison of Article 5 of the Uniform Commercial Code and the Uniform Customs and Practice for Documentary Credits, 41 Loy. L. Rev. 735, 735 (1996). Acknowledging that the UCP is the major source of law governing most international letter of credit transactions, and that the UCP reflects current business practices, the drafting committee consciously drafted the revised Article Five to be in harmony with the UCP. See id.

19. See C.I.S.G., supra note 2, at Annex I.

20. See, e.g., United Nations Convention on Independent Guarantees and Standby Letters of Credit (1995); Convention on the Limitation Period in the International Sale of Goods (1974); United Nations Convention on the Liability of Operators of Transport Terminals in International Trade (1991); United Nations Convention on International Bills of Exchange and International Promissory Notes (1988); United Nations Convention of the Carriage of Goods by Sea (1978); International Countertrade Transactions (1992); UNCITRAL Model Law on International Credit Transfers (1992); UNCITRAL Legal Guide on Electronic Funds Transfers (1987).

21. For a discussion on the influence of international law on prior NCCUSL projects, see Peter Winship, The National Conference of Commissioners on Uniform State Laws and the International Unification of Private Law, 13 U. Pa. J. Int'l Bus. L. 227 (1992).

22. See PEB Study Group, supra note 10, at 1871-72.

23. See id. at 1870-72.

24. Despite this, lip service has always been given to the need to study the CISG carefully in the revision process: "The Study Group further recommends that the Drafting Committee, in its deliberations, constantly monitor, assess, and integrate, where appropriate, developments in the following areas external to Article 2: . . . [t]he ratification and implementation of the Convention on the International Sales of Goods. . . ." PEB Study Group, supra note 10, at 1869.

25. For an excellent discussion of the process of NCCUSL drafting committee meetings by its executive director, see Fred H. Miller, The Uniform Commercial Code: Will the Experiment Continue?, 43 Mercer L. Rev. 799, 810-12 (1992). The meetings are open, and all interested parties have the right and power to participate, although some commentators have complained that economic and political pressures actually result in the drafting process not being sufficiently open to all interested parties. See, e.g., Kathleen Patchel, Interest Group Politics, Federalism and the Uniform Laws Process: Some Lessons from the Uniform Commercial Code, 78 Minn. L. Rev. 83, 88-106 (1993); Edward L. Rubin, The Code, the Consumer, and the Institutional Structure of the Common Law, 75 Wash. U. L.Q. 11, 13 (1997).

26. See Patchel, supra note 26, at 120-23. Part of the impetus for revision came from the fact that a lot of litigation could be prevented if holes in the current Code that have spawned litigation were addressed. See Fairfax Leary, Jr. & David Frisch, Is Revision Due for Article 2?, 31 Vill. L. Rev. 399, 405 (1986).

27. The reporter and co-reporter are both commercial law professors with strong backgrounds in the Uniform Commercial Code, as are nine of the fourteen members of the drafting committee. The five practicing lawyers on the drafting committee all have substantial experience in commercial practice. It is also true, though, that several of these participants are expert in international commercial law, particularly the CISG. Most of the advisors and observers are either in law firms that represent commercial interests or in-house counsel for businesses. These lawyers are experienced in UCC practice, and they bring their substantial knowledge to the process.

28. That revised laws tend to replicate what the revisors already know will be of no surprise to students of comparative law. See Alan Watson, Legal Transplants 95-96 (1974); Alan Watson, Sources of Law, Legal Change, and Ambiguity 51-75 (1984).

29. See PEB Study Group, supra note 10, at 1876.

30. Fifty-three of the 108 sections of the revised Article Two cross-reference the CISG in the comments of the July 1997 draft.

31. Speidel, supra note 1, at 170.

32. An understanding of the common law is certainly necessary to understand the UCC, as one commentator has recently noted: "While it is obviously a statute, and may even claim to be a code, it relies heavily upon the common-law models. Sometimes it follows these models slavishly, and sometimes it modifies them creatively, but common law has remained at the foundation of the vast majority of the Code's provisions." Rubin, supra note 26, at 14.

33. See U.C.C. 1-103.

34. See Alejandro M. Garro, Reconciliation of Legal Traditions in the U.N. Convention on Contracts for the International Sale of Goods, 23 Int'l Law. 443, 480-83 (1989).

35. Unlike the UCC, where the common law is the basis for resolving questions not directly answered by the Code itself, under the CISG, questions for which there are no clear answers "are to be settled in conformity with the general principles on which it is based or, in the absence of such principles, in conformity with the law applicable by virtue of the rules of private international law." C.I.S.G. art. 7(2).

At least one commentator, Professor Franco Ferrari, has suggested that the difference in legal traditions between the UCC and the CISG are so profound that any attempt to make a meaningful comparison between the two is likely to fail because the modes of interpretation are simply too disparate. See Franco Ferrari, The Relationship Between the U.C.C. and the CISG and the Construction of Uniform Law, 29 Loy. L.A. L. Rev. 1021, 1022-24 (1996). I should point out that Professor Ferrari has cited my work in this area of comparative UCC-CISG scholarship as an example of comparative scholarship that is flawed in this way. See id. at 1022 n.7 (citing Henry Gabriel, Practitioner's Guide to the Convention on Contracts for the International Sale of Goods (CISG) and the Uniform Commercial Code (UCC)] [(1994);] Henry D. Gabriel, The Battle of the Forms: A Comparison of the United Nations Convention for the International Sale of Goods and the Uniform Commercial Code: The Common Law and the Uniform Commercial Code, 49 Bus. Law. 1053 (1994). Needless to say, I do not share Professor Ferrari's viewpoint.

36. This is not surprising given that the CISG was drafted by representatives of sixty-two countries representing all major legal traditions. See Elizabeth Hayes Patterson, United Nations Convention on Contracts for the International Sale of Goods: Unification and the Tension Between Compromise and Domination, 22 Stan. J. Int'l L. 263, 303 (1986).

37. For an excellent discussion on the broader right of specific performance under the CISG than under American domestic law, see Steven Walt, For Specific Performance Under the United Nations Sales Convention, 26 Tex. Int'l L.J. 211 (1991).

38. The CISG follows the civil law tradition of force majeure, and provides that either party may be excused from any aspect of the contract. See C.I.S.G. art. 79(1). The UCC has a more limited approach, and provides for sellers to be excused for delay in delivery or for nondelivery. See U.C.C. 2-615. Under the proposed revision, the seller will be excused for delay in performance or nonperformance. See U.C.C. 2-716 (Revised Draft July 1997). The buyer's remedies for frustration of purpose, which would be covered by article 79 of the CISG, is to be left to the common law in American domestic law. See C.I.S.G. art. 79.

39. For example, in the current revision process of the Uniform Commercial Code, representatives from the drafting committees to revise Article Two meet and consult regularly with the drafting committee to revise Article 2A - Leases and the drafting committee of Article 2B - Licensing to coordinate definitions and general concepts. In addition, the "three twos" (Article 2 - Sales, Article 2A - Leases, and Article 2B - Licenses) are all being coordinated with the revision of Article 1 - Definitions.

40. See C.I.S.G. art. 2(a).

41. The scope of Article Two is extremely broad: "[T]his article applies to transactions in goods." U.C.C. 2-102. This scope provision is carried over verbatim in the proposed revision. See U.C.C. 2-103 (Revised Draft July 1997). Article Two has always overlapped with the law of torts to provide for noneconomic losses. See U.C.C. 2-715(2)(b). The drafting committee has not suggested a change in this respect. See U.C.C. 2-806(a)(2) (Revised Draft July 1997).

42. A major area of debate is the question whether the new American Law Institute Restatement (Third) of the Law, Torts: Products Liability, should preempt Article Two for questions of harmful products that cause personal injury or injury to property other than the goods sold. The debate centers around whether the tort doctrine of "defectiveness" is wholly inclusive of the UCC concept of "merchantability." The drafting committee has concluded that the merchantability is a separate and distinct concept. The position of the drafting committee is evident in a comment to the revised section on implied warranties of merchantability:

"[A] seller who makes and breaches an implied warranty of merchantability can be liable for consequential damages to person or property proximately resulting from the breach . . . ."

"This stance does not resolve the tension between warranty law and tort law where goods caused damage to person or property. The primary source of that tension arises from disagreement over whether the concept of defect in tort and the concept of merchantability in Article 2 are coextensive where personal injuries are involved, i.e., if goods are merchantable under warranty law can they still be defective under tort law and if goods are not defective under tort law can they be unmerchantable under warranty law. The answer to both questions is yes if the contract standard for merchantability, e.g., reasonable expectations, and the tort standard for defect are different. Even though the outcome under different standards will be the same in most cases, i.e., unmerchantable goods are frequently defective and defective goods are frequently unmerchantable, there are a few exceptions, especially where design defects are involved.

"The consensus is that the tension should be resolved in a Comment to [the section on implied warranties of merchantability] rather than in the text of Article 2. The following Comment was approved in principle by representatives of NCCUSL and the ALI before the ALI Annual Meeting in May, 1997.

"When recovery is sought for injury to person or property that allegedly resulted from manufacturing or design defects in goods sold or inadequate instructions or warnings, the applicable state law of products liability determines whether the goods are merchantable under [the section on implied warranties of merchantability]. Merchantability in the context of a claim to recover for injury to person or property is synonymous with the level of safety required for the goods as a matter of public policy adopted by the courts of this state or, if applicable, the Restatement of the Law (Third), Torts: Products Liability.

"When, however, the claim for injury to person or property is based on an implied warranty of fitness under Section 2-405 or representations made by the seller to the buyer, such as affirmations or promises about or descriptions of the goods, this Article determines whether an implied warranty of fitness was made or breached and whether the promises, affirmations or descriptions create contractual warranties to which the goods must conform, as well as the remedies available for damage proximately resulting from any nonconformity.

"At the ALI Annual Meeting in May, 1997, the membership adopted the following language by a 94-77 vote: 'When recovery is sought for injury to person or property, whether goods are merchantable is to be determined by applicable state products liability law.'" [U.C.C. 2-404 cmt. 4 (Revised Draft July 1997).

43. See, e.g., U.C.C. 2-314 (imposing warranty of merchantability on sellers who are "merchants with respect to goods of that kind").

44. Consumer protection is one of the major flash points in the revision process. For examples of the debate, see Fred H. Miller, Consumer Issues and the Revision of U.C.C. Article 2, 35 Wm. & Mary L. Rev. 1565 (1994); Yvonne W. Rosmarin, Consumers-R-Us: A Reality in the U.C.C. Article 2 Revision Process, 35 Wm. & Mary L. Rev. 1593 (1994); Symposium, Consumer Protection and the Uniform Commercial Code, 77 Wash. Univ. L.Q. 1-672 (1997).

45. See U.C.C. 2-302; U.C.C. 2-105 (Revised Draft July 1997). Although the doctrine of unconscionability is not likely to be expanded in the revised Article Two (at one time, it was proposed to include "unconscionable conduct" as well as "unconscionable terms"), the concept is simply ignored in the CISG, as being a concept that goes to the validity of the contract, and thus is excluded under article 4. See C.I.S.G. art/ 4(a). It is interesting to note that the doctrine of unconscionability is one area of Article Two that is being exported to other countries. See Duggan, supra note 8, at 995-97.

46. See U.C.C. 2-318; U.C.C. 2-409 (Revised Draft July 1997).

47. See U.C.C. 2-403.

48. As with most generalizations about the law, this one is not exactly accurate. The counterpart to UCC 2-201 under the CISG is article 11. Where the UCC requires that all contracts for sale of goods in excess of $500.00 be in writing, see U.C.C. 2-201, the CISG eliminates the requirement of a writing to evidence the agreement: "A contract of sale need not be concluded in or evidenced by writing. . . ." C.I.S.G. art. 11. Article 11 also eliminates any mandatory requirement for enforcement based on any domestic requirement of form. However, article 11 does not prevent the parties from imposing their own contractual requirements. For example, under article 29, parties by a contract in writing may require "any modifications or termination by agreement to be in writing." Article 11 must be read in conjunction with article 12 which allows contracting states to opt out of article 11, and thus to require a writing to evidence the agreement. Therefore, article 11 does not apply where any party has his place of business in a state that has decided under article 12 to require a writing as a necessary element of a valid contract. The UCC does not have counterpart to article 12 because under its terms a writing is mandatory.

49. The July 1996 draft abolished the statute of frauds for Article Two. This result was strongly recommended by the PEB Study Group and was approved by the drafting committee on March 6, 1993. A motion to restore the statute of frauds was rejected by an oral vote of the Commissioners at the 1995 and 1996 annual meetings of NCCUSL. However, at the great insistence of many industry groups, at the November 1996 drafting committee meeting, the drafting committee decided to restore "some version" of the statute of frauds. At the May 1997 meeting of the American Law Institute, a motion to retain the statute of frauds passed by a two-to-one margin. The drafting committee has suggested that the minimum amount be raised from $500 to $10,000. This amount was approved at the ALI meeting in May 1997.

50. See PEB Study Group, supra note 10, at 1874.

51. See U.C.C. 2-201 notes (Revised Draft July 1997).

52. In fact, the CISG basically invites the introduction of parol evidence. According to its terms, "[i]n determining the intent of a party or the understanding a reasonable person would have had, due consideration is to be given to all relevant circumstances of the case including the negotiations, any practices which the parties have established between themselves, usages and any subsequent conduct of the parties." C.I.S.G. art. 8(3).

53. For a history of the rise and fall of proposed changes to the parol evidence rule, see U.C.C. 2-202 notes (Revised Draft July 1997).

54. In November of 1992, the scope of revised Article Two was expanded to include software contracting. To implement this broadened scope, the committee decided to adopt a "hub and spoke" approach to Article Two. (The use of the term "hub and spoke" was suggested by Professor David J. Frisch of Widener University Law School at the March 1993 Drafting Committee meeting. Professor Frisch serves as the American Bar Association Adviser to the drafting committee.) Under the hub and spoke approach, Article Two would have a core of basic contract principles (the "hub") and specialized rules for contracts dealing with tangible goods and with software contracts (the "spokes"). The drafting committee considered a possible spoke on leases, thereby incorporating Uniform Commercial Code Article 2A - Leases. There was some discussion, but never any affirmative consensus, about the possibility of yet another spoke that would cover service contracts. For a discussion of the hub and spoke approach, see Raymond T. Nimmer, Service Contracts: The Forgotten Sector of Commercial Law, 26 Loy. L.A. L. Rev. 725 (1993). From 1993 through 1995, the various progressive drafts of the revised Article Two were on the "hub and spoke" model. In 1995, the executive committee of NCCUSL decided to separate the process into two drafting committees, and the Article 2B committee was formed to cover the licencing of information, a somewhat broader mandate than the contracting of software. Since 1995, the Article Two and Article 2B committees have been meeting separately and drafting their respective acts. Since the formation of the separate committees, the scope of Article Two has contracted back to the sale of goods. See Henry D. Gabriel & Katherine A. Barski, Updating the U.C.C., Bus. Law Today Sept./Oct. 1996, at 18.

55. This examination has also summoned forth the usual academic commentary. See, e.g., Marion W. Benfield, Jr. & Peter A. Alces, Reinventing the Wheel, 35 Wm. & Mary L. Rev. 1405 (1994).

56. Emerging forms of electronic contracting, and the present Article Two's structural inability to handle this, was a major reason justifying the revision of Article Two. See PEB Study Group, supra note 10, at 1874.

57. For example, neither the definition of a writing under the UCC (section 1-201(46)) nor the CISG (art. 13) is broad enough to encompass transactions by electronic data interchange. Although the CISG does not specifically deal with the important area of licensing of information, neither will the revised Article Two. This will be covered in the new proposed Uniform Commercial Code Article 2B - Licenses.

58. See U.C.C. 2-601; U.C.C. 2-703 (Revised Draft July 1997).

59. See C.I.S.G. art. 46(2).

60. See U.C.C. 2-508.

61. For a discussion of the differences between the CISG and the UCC for damages, see Henry D. Gabriel, A Primer on the United Nations Convention on the International Sale of Goods: From the Perspective of the Uniform Commercial Code, 7 Ind. Int'l & Comp. L. Rev. 279, 296-303 (1997).

62. Compare U.C.C. 2-313 to 2-316 with C.I.S.G. arts. 35, 36.

63. Under paragraph (1) of article 35, goods must conform to the contract with respect to quantity, quality, description, and packaging. See C.I.S.G. art. 35(1). Likewise, under the UCC, goods must conform to the contract description. See U.C.C. 2-313.

64. The seller may make an express warranty, an implied warranty of merchantability, or an implied warranty of fitness for particular purpose or all three in a particular transaction. These warranties are terms of the contract to which the goods must conform. See U.C.C. 2-313, 2-315. The basic structure and contours of these warranties are preserved in the revised Article Two. See U.C.C. 2-403 to 2-405 (Revised Draft July 1997).

65. For the classic and standard article tracing the rise of American warranty law through the morass of tort and contract, see William L. Prosser, The Implied Warranty of Merchantable Quality, 27 Minn. L. Rev. (1943).

66. C.I.S.G. art. 35(1).

67. See C.I.S.G. art. 8.

68. See Gabriel, supra note 36, at 104-12; Gabriel, A Primer on the United Nations Convention, supra note 62, at 286.

69. For the argument that the differences are substantive, see Ferrari, supra note 36, at 1028-33.

70. Article Two offers quite a bit of protection to the buyer against attempts by the seller to exclude or limit express and implied warranties by agreement. Thus, for example, if an attempt to negate or limit cannot be construed as reasonably consistent with an express warranty, the disclaimer is "inoperative." See U.C.C. 2-316(1). Similarly, a disclaimer of an implied warranty of merchantability must meet certain requirements of form and disclosure. See id. 2-316(2). Thus, the effort to limit or exclude "must mention merchantability" and, if the disclaimer is in writing, "must be conspicuous." Id. A disclaimer may also be vulnerable to attack on other unconscionability grounds. See id. 2-719.

71. U.C.C. 2-601.

72. See James J. White & Robert S. Summers, Uniform Commercial Code 8-3(b) (4th ed. 1995).

73. See John Honnold, Buyer's Right of Rejection, 97 U. Pa. L. Rev. 457, 471 (1949).

74. See, e.g., White & Summers, supra note 73, 8-3(b).

75. See U.C.C. 2-702 notes (Revised Draft July 1997).

76. C.I.S.G. art. 49(1). A breach is a "fundamental breach" "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." C.I.S.G. art. 25. There is one other situation apart from a fundamental breach which allows a buyer to avoid the contract. Under article 49, the buyer can avoid the contract if, in the case of nondelivery, the seller does not or will not deliver the goods within the additional time fixed by the buyer under article 47. See C.I.S.G. arts. 47, 49.

77. See U.C.C. 2-712; C.I.S.G. art. 75.

78. See U.C.C. 2-713; C.I.S.G. art. 76.

79. See Walt, supra note 38, at 213-17.

80. The disagreement both of what the state of law was, as well as where it was headed, resulted in the official version of Article Two's provision on third-party beneficiaries having three alternatives. See U.C.C. 2-318.

81. The revised Article Two retains the traditional derivative third-party nonprivity rights. See U.C.C. 2-409 (Revised Draft July 1997).

82. See U.C.C. 2-408 (Revised Draft July 1997).

83. See, e.g., Donald F. Clifford, Express Warranty Liability of Remote Sellers: One Purchase, Two Relationships, 75 Wash. U. L.Q. 413 (1997); Curtis R. Reitz, Manufacturers' Warranties of Consumer Goods, 75 Wash. U. L.Q. 357 (1997).

84. See William L. Stallworth, An Analysis of Warranty Claims Instituted by Non-Privity Plaintiffs in Jurisdictions that Have Adopted Uniform Commercial Code Section 2-318 (Alternative A), 20 Pepp. L. Rev. 1215, 1227 n.90 (1993).

85. See id. at 1128-33; William L. Stallworth, An Analysis of Warranty Claims Instituted by Non-Privity Plaintiffs in Jurisdictions that Have Adopted Uniform Commercial Code Section 2-318 (Alternatives B & C), 27 Akron L. Rev. 197, 201-04 (1993).

86. At least one American commercial law scholar has found this to be a failure in the CISG. See Arthur Rosett, Critical Reflections on the United Nations Convention on Contracts for the International Sale of Goods, 45 Ohio St. L.J. 265, 293 (1984).

87. See U.C.C. 2-319, 2-321.

88. The revised Article Two says, "The effect of a party's use of shipment terms such as 'FOB' 'CIF' or the like, must be interpreted in light of applicable usage of trade and any course of performance or course of dealing between the parties." U.C.C. 2-309 (Revised Draft July 1997). For a full discussion of this, see John A. Spanogle, Incoterms and U.C.C. Article 2 - Conflicts and Confusions, 31 Int'l Law. 111 (1997).

89. U.C.C. 2-511(1); U.C.C. 2-607(a) (Revised Draft July 1997); C.I.S.G. art. 58.

90. U.C.C. 2-605; U.C.C. 2-702(c) (Revised Draft July 1997); C.I.S.G. art. 58(1).

91. U.C.C. 2-513; U.C.C. 2-609 (Revised Draft July 1997); C.I.S.G. art. 58(3).

92. U.C.C. 2-715(2)(a); U.C.C. 2-806(a)(1) (Revised Draft July 1997); C.I.S.G. art. 79.

Pace Law School Institute of International Commercial Law - Last updated May 24th, 1999
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