Teaching Comparative Contract Law through the CISG

Author:Edgardo Muñoz López
Position:Universidad Panamericana, Guadalajara, Mexico
e Indonesian Journal of International & Comparative Law
ISSN: 2338-7602; E-ISSN: 2338-770X
© 2017 e Institute for Migrant Rights Press
Edgardo Muñoz
Universidad Panamericana, Guadalajara, Mexico
E-mail: emunoz@up.edu.mx
e author submits that the 1980 United Nations Convention on the Interna-
tional Sale of Goods (the “CISG”) serves as an eective tool to teach and learn
comparative contract law. is work attempts to contribute to the scholarship
and teaching of comparative contract law by unveiling the CISG as a material
that may successfully set the students’ learning process into motion. e author
demonstrates how students can discover knowledge about foreign legal systems
by decomposing the content and design of the CISG with the professor’s help. e
author oers some guidelines on how to use the CISG to overcome the apparent
dicult questions of comparative contract law and suggests some starting point
exercises to teach comparative contract law through the CISG.
Keywords: Teaching Law, Comparative law, Contract Law, CISG.
IV Indonesian Journal of International & Comparative Law 725-57 (October 2017)
e CISG is an international treaty that governs the international sale
of goods in over 87 nations.1 e CISG is regarded as a compromise be-
tween the laws on contracts in the common law and the civil law legal
traditions.2 However, not every single CISG provision represents a new
sui generis rule that came unexpectedly, or that was enacted in order
to nd a middle ground solution between the contract laws of these
legal traditions.3 On the contrary, most of the CISG provisions embody
doctrines and principles rooted in legal systems belonging to either the
common law or the civil law tradition.4 Because the CISG becomes part
of the law of a Contracting State upon adoption,5 the law applicable to
international sales6 in various civil law jurisdictions is also made out of
1. See Status in: UNCITRAL, www.uncitral.org (last visited September 2017).
2. C M. B  J M. B, C   I-
 S L: T  V S C Introduction
¶ 2.2.1, 8 (Giuré. 1987); Philippe Fouchard, Rapport de synthese, in L
C  V   V I   I
163, (Yves Derains & Jacques Ghestin eds., 1990).
3. Only a couple of provisions like article 16 CISG on the revocation of oers and
Article 28 CISG on the remedy of specic performance are a real compromise
see further sections II, 1 and IV, 3 below.
4. Irrespective of its origin, article 7 CISG provides that in the interpretation of
the CISG regard is to be had of its international character and to the need
to promote uniformity in its application and the observance of good faith in
international trade; cf. Ulrich Magnus, e Vienna Sales Convention (CISG)
between Civil and Common law: Best of all Worlds?, 3 J.  C L. S. 67,
74 (2010).
5. ICC Arbitral Award No.7565 in CLOUT Abstract No. 300; see also ICC Arbi-
tral Award Case No. 6653 in CLOUT Abstract No. 103.
6. e CISG applies to the sale of goods between parties whose places of business
are in CISG Contracting States. Likewise, the CISG applies to international
sales of goods governed by the law of a CISG Contracting States; cf. Art 1 (1)
(a) CISG; ICC Final Award Case No. 11826 Lex Contractus CISG and Mexican
Law as suppletive law; Argentina National Commercial Court of Appeals, Bra-
vo Barros, Carlos Manuel Del Corazón De Jesús v. Martínez Gares, Salvador S,
31 May 2007; Art 1 (1) (b) CISG. Absent an agreement as to the applicable law,
whenever the application of the conict of law provisions of the forum judge
leads to the application of any of the CISG Contracting States laws, the CISG
Teaching Comparative Contract Law through the CISG
some rules inspired by the common law on contracts and vice versa.7
Moreover, a third group of CISG provisions has a shared legal back-
ground in both common law and civil law based systems.
In this regard, the CISG currently reects the convergence of
contract law rules of the two most prominent legal families. Because
the CISG Working Groups objective was to nd by comparison the
best solution for each sales problem at an international level,8 the CISG
has for some matters privileged rules of one legal family over the other.
Of course, the draers’ role was not to disfavor other legal systems.
It simply ensued that some aspects of the international sale of goods
could be better addressed by one specic rule that happened to have its
origin, for instance, in the civil law tradition.
Against this background, the author submits that the CISG could
be used as an educational material to teach and learn “foreign contract
law”9 in a comparative manner. If one adheres to the educational
method of constructivism where each student is regarded as an active
person who is actively building or constructing knowledge and skills,10
the material provided by the professor is regarded as a kind of stimulus
that sets the student’s learning process into motion. e stimulus (the
material that is taught) is not as important as the cognitive process that
the stimulus is producing in active learners.11 From the perspective
of law teaching, comparative law can be understood as a pedagogical
method that oers the material required to set the learning process into
would apply in accordance with Article 1 (1) (b) CISG.
7. However, as Ferrari recalls, the CISG does not want to identify itself with any
legal system, because it wants to conjugate with all. He warns to be aware that
terms in the CISG does not always correspond to the same terms in a specic
domestic law, cf. Franco Ferrari, Homeward Trend: What, Why and Why not, in
CISG M 177, (André Janssen & Olaf Meyer eds., 2009).
8. Fouchard, supra note 2, at 163.
9. Although at the end of the day what we call foreign contract law may not be
so since the CISG is likely to be adopted by all nations, which will lead us to
realize that our own national law applicable to international sales is in some
parts the same as the domestic law on contracts of other nations.
10. Jaakko Husa, Turning the Curriculum Upside Down: Comparative Law as an
Educational Tool for Constructing the Pluralistic Legal Mind, 10 G L.J.
913, 921 (2009).
11. Id.

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