This post could have been titled "How I Wish I'd Learned More About Contracts in 1L Year." It appears that, even internationally, the basic elements of contract law are inescapable. Thus, the things that puzzled me in Contracts class, like the whole "meeting of the minds" thing, live on in CISG; it seems to me that if meeting of the minds seemed complicated to me on a domestic level, it could only get worse on an international level. And I think it does.
It makes sense that a contract between parties should be on the terms that both parties believe them to be. Thus, if it can be shown that the two parties intended something entirely contrary to what is written, the written contract should not be abided by. This makes sense, but it's often really hard to piece together from what is written and what has been exchanged verbally the true intentions of both parties. If you add on the extra complications of cultural differences and language barriers, the attempt at interpreting what the contract was actually about gets even more difficult. I'm not sure that there is a better way to go about looking at contracts, but this was the main issue that stuck out at me after reading the chapters for the week.
I also found it interesting that consideration is not required to form a contract under the CISG; recalling vaguely that our Professor emphasised the importance of consideration, it had not really occurred to me that contract formation could occur otherwise. Since it seems, at least domestically, that consideration is an important part of a valid contract, I wonder how often it comes up that the parties incorporate that into their negotiations.
I agree with you that it is hard to prove intent on the parties , especially when they have one agreed on stuff verbally, but I think nowadays people turn to emails a lot, so that intent can be formally shown.
ReplyDeleteRegarding consideration, as I wrote in another blog, I think that even if it was mandatory it could be substituted by promissory estoppel.
I think that the beauty of the CISG though is that it has its own definitions for certain terms, so that if for some reason there is no "meeting of the minds," there is at least an objective way of figuring out the meaning of the contract.
ReplyDeleteAlso, I never got the point of consideration. It seemed pretty useless to me, especially in this increasingly less-personal world.
I imagine that in commercial contracts consideration is not a big deal, because money is always good consideration. And money is pretty much always going to be involved!
ReplyDeleteI too find it odd that consideration is not a requirement, but mostly because, like Rhiannon said, I can't imagine a situation where money isn't involved or at least some other exchange of goods or services.
ReplyDeletedoesn't getting to the meeting of the minds seem even harder when you can allow in all kinds of stuff excluded by the common law parole evidence rule?!
ReplyDeleteI feel you on the first-year contract law: that would come in pretty handy right about now!
ReplyDeleteThe burden of proof to show meaning is on the declaring party. This doesn't rise to the strength of a contra proferentem (against the drafter?) rule, but the objective rule would seem to make showing a contrary subjective intent more difficult. In my own words, the objective meaning would establish a presumptive intent, and showing a contrary subjective intent should be a bit harder.
Maybe that makes showing intent a bit easier - or maybe I'm oversimplifying! After all, the objective meaning might not be clear...
Well, as I'm being forced to learn about consideration it's only natural that you must learn how to form a contract without consideration... ;)
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