Clear Rules Still Produce Fuzzy Results: Impossibility in Indian Contract Law
Robert Scott and others have forcefully argued that the justification for commercial statute-drafting is efficiency. Since commercial parties can draft their own contracts, legislatures should draft default rules, he argues, only when it will save commercial parties time and money. Greater efficiency is achieved when the costs of the gains produced by commercial transactions are reduced. Thus, with few exceptions, the rules of commercial law should be clear, precise, and what most parties would want most of the time. Statutory precision emulates a well-drafted agreement and reduces the risk of moral hazard. The excuse of contractual impossibility (including the liberalized version of commercial impracticability as well as the reciprocal doctrine of frustration of purpose, collectively, impracticability) stands in some tension with the goal of efficiency. Two responses to this uncertainty seem plausible. First, the law could provide a more precise impracticability rule, one that complies with the precision corollary. Alternatively, we can simply give up on the impracticability project, leaving risks to fall where they may and any excuses to the contract parties and their drafting efforts. This article will address the feasibility of the first alternative, that we can build a better impracticability mousetrap. Instead of speculating about what forms a more precise version of impracticability might take, we will examine a currently subsisting example, section 56 of the Indian Contract Act, 1872. I conclude that the Indian Supreme Court has missed an opportunity to apply section 56 as originally understood and that those who stress the goal of efficiency should not count on judicial application of even precise rules.
Changing Contract Lenses: Unexpected Supervening Events in English, New Zealand, U.S., Japanese, and International Sales Law and Practice
This article compares differences in the reasoning underlying contractual relationships between English and New Zealand law and U.S. and Japanese law. It then builds upon an existing framework by adding the notion of didactic formality to identify another important contrast between the laws of these countries. It also discusses how CISG and UPICC fit in to this spectrum. The article concludes by questioning "strong convergence" theory in commercial law worldwide.
The Interpretive Turn in International Sales Law: An Analysis of Fifteen Years of CISG Jurisprudence
This article reviews the U.N. Convention on Contracts for the International Sale of Goods (CISG), a body of uniform rules for international sales of goods but which also accounts for different social economic and legal systems among the countries, all in order to promote the development of international trade. The authors survey the many CISG provisions that are the product of compromise, and analyze whether these have been effective, or whether they have had a negative effect resulting in further chaos in of international trade and transactions. The authors review CISG decisions by national courts, as well as by arbitration panels. The authors conclude that there is a wide disparity between interpretations of CISG provisions, which is contrary to the stated goal of uniformity of interpretation, but that the CISG has value as a default standard for courts to rely on when construing disputes involving CISG provisions.