MEMORANDUM FOR RESPONDENT - Pace University

QUEEN’S UNIVERSITY FACULTY OF LAW
bound by any qualities that the squid shown on 17 May 2008 happened to possess. Instead,
Claimant knew Respondent intended to contract based on its description of the Squid in the Sale
Confirmation. Since the Parties formed a mutual intention that the Squid would possess different
characteristics from the squid previously shown to Claimant, no warranty can be implied under
art. 35(2)(c) on the basis of the squid shown to Claimant on 17 May 2008.
B. A reasonable business person would have understood that Respondent did not
intend the Contract to be a sale by sample.
80. A reasonable business person would understand that Respondent did not intend to contract on
the basis of a sample. Where doubt exists concerning a party’s intention, or the other party’s
awareness of that intention, statements should be interpreted according to the understanding of
a reasonable person in the circumstances [art. 8(2) CISG; Honnold 118]. On 17 May 2008, Mr.
Weeg, Respondent’s representative, delivered squid to Claimant [St. of Def. 10]. During Mr.
Weeg’s visit, there was “little time for discussion” between the Parties [Clar. 25]. Moreover, Mr.
Weeg departed before Claimant defrosted or examined the carton of squid [St. of Def. 10]. In
contrast, the Sale Confirmation provided to Claimant on 29 May 2008, included a
comprehensive description of the squid to be delivered [Cl. Ex. 4]. It described their quantity,
price, quality and catch season, among other characteristics [Cl. Ex. 4]. A reasonable person
presented with the description in the Sale Confirmation would know that Respondent did not
intend to be bound by squid haphazardly shown weeks earlier.
81. A reasonable person would also understand Respondent did not intend a sale by sample because
of the term “2007/2008 Catch” in the Sale Confirmation [Cl. Ex. 4]. The only reasonable
interpretation of this term is that some of the squid delivered would be caught in 2007 and some
in 2008. Experienced fishing firms know that squid grow throughout the catching season, and
that illex danubecus increase in size between April and September [Clar. 27; St. of Def 16]. Indeed,
Claimant was aware of these facts [Clar. 27]. A reasonable person in Claimant’s position would
have known that a delivery of squid from the 2008 catch in the middle of the 2008 growing
season would contain young squid, unlikely to weigh at least 100 g. In contrast, the squid shown
to Claimant weighed on average 130 g [Cl. Ex. 10 7]. Thus, a reasonable person presented with
the Sale Confirmation would know Respondent did not intend to contract on the basis of the
squid shown 17 May 2008 and so art. 35(2)(c) CISG does not apply.
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