MEMORANDUM FOR RESPONDENT - Pace University

QUEEN’S UNIVERSITY FACULTY OF LAW
result, Claimant knew or could not have been unaware that the Contract did not contain a size
requirement. Claimant declined to object to this description of the goods. Consequently,
Claimant became bound by Respondent’s intent that the squid be unsized.
B. A reasonable person in Claimant’s position would have understood that
Respondent intended to sell unsized squid.
64. Should the Tribunal find that Claimant was not aware of Respondent’s intention to deliver
unsized squid, an objective interpretation of the Contract under art. 8(2) CISG yields the same
result. Respondent’s intention should prevail if it would have been understood by a reasonable
business person in the same industry and position as Claimant [Farnsworth in Bianca/Bonell 98;
Schmidt-Kessel in Schlechtriem/Schwenzer 2005 119-121; LG Feb 1996].
65. A reasonable interpretation of the Parties’ negotiations indicates agreement that the Squid were
to be unsized. In its 29 May 2008 Sale Confirmation, Respondent indicated that the Squid would
come from the “2007/2008 Catch” [Cl. Ex. 4]. As indicated above [see supra 63], this meant that
the catch would include younger, smaller squid caught early in the 2008 season. Claimant is an
experienced participant in the fisheries trade [St. of Def. 16; Clar. 27]. In the face of
Respondent’s stated intent to supply squid caught early in the 2008 season, a reasonable business
person in Claimant’s position would understand that the Contract was for unsized squid.
66. Furthermore, there are no weight requirements in either the Order Form or Sale Confirmation
[Cl. Ex. 3; Cl. Ex. 4]. The CISG does not preclude extrinsic information from becoming a term
of the Contract; however, a reasonable and experienced purchaser in the fishing industry would
indicate the basic requirements of the fish it wanted in its order—including size. It is
unreasonable to bind the Parties to a requirement that is not found in either the Order Form or
the Sale Confirmation. Accordingly, the Tribunal should find that a reasonable business person
in Claimant’s position would understand the Contract was for unsized squid.
II. THE SQUID WERE FIT FOR THE PURPOSES FOR WHICH GOODS OF THE SAME
DESCRIPTION WOULD ORDINARILY BE USED.
67. Claimant alleges that the Squid could not be used as bait and therefore were not “fit for the
purposes for which [squid] of the same description would ordinarily be used” [Cl. Memo. 37; art.
35(2)(a) CISG]. This argument must fail. The ordinary use for squid as described in the Contract
is human consumption [Cl. Ex. 3; Cl. Ex. 4], and the squid were fit for this purpose [Cl. Ex. 8].
68. The goods must meet the reasonable expectations in the industry for goods of that description
[Schwenzer in Schlechtriem/Schwenzer 2005 417; Rijn Blend Case (Netherlands 2002)]. While the goods
must be fit for all purposes for which goods of the same description are ordinarily used [Henschel
2005 194; Sec. Comm. art. 35], the scope of the ordinary purposes is limited by the description of
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