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Advanced Introduction to International Sales Law

Clayton P. Gillette

Providing a concise overview of the basic doctrines underlying the UN Convention on Contracts for the International Sale of Goods (CISG), Clayton Gillette explores their ambiguities and thus considers the extent to which uniform international commercial law is possible, as well as appraising the extent to which the doctrines in the UN Convention reflect those that commercial parties would prefer. With its compelling combination of doctrine and theory, this book makes an ideal companion for students and legal scholars alike.
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3 Contract formation and terms

Clayton P. Gillette


As Chapter 1 suggested, commercial parties will typically prefer legal rules that reduce the transaction costs of creating and performing contracts. Frequently that will mean selecting a rule that places an obligation on the party who can perform it at the lowest cost. But sometimes, the desire for low transaction costs simply means providing a clear rule that all parties can understand and to which all parties can easily conform. When different rules impose similar costs, parties will be more interested in ensuring that everyone adheres to the same rule than in the substance of that rule. Think, for example, of whether rules of the road should require drivers to stay on the right or the left side of the road. At least prior to the time when steering wheels are placed on automobiles, there is little reason to choose one side over the other. What drivers care about is not whether they drive on the right side of the road or on the left, but that everyone drives on the same side. The issue is less one of identifying the single best solution to the problem than it is one of coordinating behavior.

Rules relating to contract formation are often of this nature. They solve coordination problems by signaling which conduct parties should follow where any of a number of possibilities would be equally beneficial. A contract could be formed, for example, when an acceptance of an offer is sent or when it is received. The selection...

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