MEMORANDUM FOR CLAIMANT

UNIVERSIDAD NACIONAL DE ASUNCIÓN • MEMORANDUM FOR CLAIMANT
country [Fletchner p. 6; Mussels case; Machines case]. A reasonable Equatorianan fishing trader
with RESPONDENT‘s long history of dealing in squid in Mediterraneo would not have
attributed to the disputed phrase the meaning RESPONDENT did [Art. 8(2) CISG]. A
sensible Equatorianan fishing trader with RESPONDENT‘s knowledge of and experience in
Mediterraneo would have imagined, in the light of the negotiations, that CLAIMANT‘s intent
was to store the squid for bait along with its stock of fish products for human consumption.
71. In any event, a reasonable business person in RESPONDENT‘s position would not so rashly
have jumped from an isolated phrase to a conclusion that so fundamentally alters the contract
with every other visible sign pointing to the polar opposite direction. In this case, the
principle of reasonableness would have required that RESPONDENT confirm its
interpretation of the contract with CLAIMANT before deviating so significantly from the
negotiations [Art. 8(1) CISG; Maley p. 109]; especially when the requirements ‗[c]ertified fit for
human consumption‘ and of appropriate size for bait are not mutually exclusive.
2. ‘2007/2008 Catch’
72. In its Sale Confirmation, RESPONDENT included the line ‗Catch: 2007/2008 Catch‘.
RESPONDENT purports to have made this inclusion in order to convey to CLAIMANT its
intent of delivering a significant proportion of undersized squid [Cl. Ex. 8, 9; St. of D. ¶¶ 13,
14]. CLAIMANT understood said inclusion as meaning that the order would be completed
with a small proportion of squid of appropriate size caught in the year 2008.
73. CLAIMANT did not know that RESPONDENT‘s intent was to deliver squid unsuitable for
use as bait [Art. 8(1) CISG]. RESPONDENT never said so. CLAIMANT could not have
been aware of RESPONDENT‘s intent either, as nothing indicated that the 2008 squid
would not conform or that they would represent a high proportion of the lot [Art. 8(1)
CISG].
74. RESPONDENT asserts that CLAIMANT should have presumed that the 2008 squid would
be undersized as the contract was concluded at the beginning of the fishing season of
Danubian squid and that thus their size would still be small [St. of D. ¶14]. As an expert in the
trade, CLAIMANT is conscious of the harvesting seasons of the different species of squid
and of the pace of their development [PO 3 ¶26]. It was precisely because of this expertise,
that CLAIMANT knew that, at that time of the year, a by no means negligible proportion of
the squid would fall within the 100-150 g range. In fact, of the 2008 squid delivered by
RESPODENT, 13% were between 100 and 115 g and 32% of those below 100 g had 90-100
g [Cl. Ex. 8]. Besides, it would not have been objectionable if a small portion of the squid
were below 100 g [Cl. Ex. 10 ¶5].
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