If there were no bad people, there would be no good lawyers.
Charles Dickens, English novelist, 1812-1870.
To Sue or Not To Sue
The question of whether “to sue or not to sue” may rest on a number of different factors. But the decision to file a lawsuit, when made by a lawyer, will always take into consideration whether or not the facts of the case present a valid legal theory that a court can use to compensate the party who has been damaged.
Last week our fictional lawyer, Ben Forthwright met his new fictional client, the famous chef, Blaze Masterson. The facts of the case involve the delivery (and rejection by Masterson) of Oregon truffles that were sent by a supplier in place of European truffles. This week we will look at the possible legal theories that might be used to pursue a claim in this case of substituted truffles.
A case about truffles certainly sounded more interesting to Ben than an average contract dispute. Several thoughts ran through his mind all at once. “The cause of action could be breach of contract, fraud, or material misrepresentation. I‘ve never heard of Oregon truffles ? Aren’t all truffles from Europe ? What is the difference between one truffle and anothe r ?”
Ben sorted the documents brought in by the famous chef. On top of the stack was the small advertisement for “European Quality Truffles” that Masterson had found in the back of a magazine. Next were a series of faxes. The first fax listed the products offered by Gourmet Value along with a blank order form. Next was a copy of the order form filled out and signed by Blaze Masterson.
He looked carefully at the documents. The address at the top of the order form indicated that Gourmet Value was an importer of gourmet foods located in Toronto Canada. Could that mean that the contract would be governed by international law rather than the Uniform Commercial Code ? Ben had worked with the UCC many times and knew it well. Before the passage of the UCC in 49 of the 50 States, each State in the US had its own laws governing the sale of goods and other common commercial contracts. Louisiana still does. So every interstate transaction worked in many ways like an international contract. Lawyers spent a lot of time fighting for the choice of law in the contract to be the law of his home state. Now lawyers could spend their time negotiating and arguing about more substantial clauses.
Despite 5 years of litigation experience, Ben had never been involved in an international contract dispute. He decided to call in his law clerk Allison to do some basic research on the subject.
That afternoon Allison reported her findings. The United States and Canada are both parties to the U.N. Convention on the International Sale of Goods (CISG). The CISG provides "gap filling" rules that govern contract formation and set forth the rights and obligations of the buyer and seller in appropriate transactions. The parties to international contracts are free to agree to other contractual terms or to exclude the CISG entirely. But if they do not agree otherwise, then the CISG will apply to “fill in the gaps”. In many ways the CISG is patterned after the UCC and allows the parties to avoid the difficult problem of negotiating choice of law between different nations, and instead allows the use of internationally accepted substantive rules that are accepted by the parties, the courts and the arbitrators.
Allison and Ben decided that more research would be necessary before he would recommend to Masterson that they file suit against Gourmet Value. Next week we will follow see how this research turns out and which causes of action might have success in the courtroom.
breach of contract : Violation of a contractual obligation by failing to perform one’s own promise, by repudiating it, or by interfering with another party’s performance. Black’s Law Dictionary Eight Edition 2004
fraud : A knowing misrepresentation of the truth or concealment of a material fact to induce another to act to his or her detriment. Black’s Law Dictionary Eight Edition 2004
material misrepresentation : A false statement that is likely to induce a reasonable person to assent or that the maker knows is likely to induce the recipient to assent. Black’s Law Dictionary Eight Edition 2004
Uniform Commercial Code : A uniform law that governs commercial transactions, including sales of goods, secured transactions and negotiable instruments. Black’s Law Dictionary Eight Edition 2004
Choice of Law : The question of which jurisdiction’s law should apply in a given case. Black’s Law Dictionary Eight Edition 2004
contractual terms : Provisions that define an agreement’s scope ; conditions or stipulations “terms of sale”. Black’s Law Dictionary Eight Edition 2004
substantive : The part of the law that creates, defines, and regulates the rights, duties and powers of parties. Black’s Law Dictionary Eight Edition 2004.
Test your legal English now !