Case Comment: All Quiet on the CISG Front - Guiliani v. Invar Manufacturing, the Battle of the Forms, and the Elusive Concept of Terminus Fixus

Abstract:     
Since Canada adopted the U.N. Convention on the International Sale of Goods (the CISG) in 1992, international sales practitioners have been patiently waiting for a corpus of Canadian case law to develop. The slow pace of development of case law has been due, in large part, to the failure of litigants and judges to recognize that the CISG is the applicable law in numerous international contract disputes involving the sale of goods. The latest example, the recently reported case of Guiliani v. Invar Manufacturing is a further manifestation of this failure. Not only is this case the latest disappointment in Canadian CISG jurisprudence, the case also begs additional questions: When is contract formation complete? At what point does the battle of the forms end, and contract consummation begin? Finally, is there a specific point at which the contract is formed, or is the idea of terminus fixus in contracts an elusive goal? This Case Comment considers these questions within the broader context of the failure in Canadian jurisprudence to give the CISG its day in court.

Keywords: International Sales Law, CISG, jurisdiction simpliciter, lex loci contractus, private international law, conflicts of law, forum non conveniens, Lex Mercatoria, battle of the forms, terminus fixus, UN Convention on Contracts for the International Sale of Goods

JEL Classifications: K12, K22. K33

Accepted Paper Series