The Uncertainty of Sun Printing

64 Pages Posted: 11 Jul 2018

See all articles by George M. Cohen

George M. Cohen

University of Virginia School of Law

Date Written: July 3, 2018


This article, prepared for a symposium on Benjamin N. Cardozo: Judge, Justice, Scholar, examines Judge Cardozo’s opinion in Sun Printing & Publishing Association v. Remington Paper & Power Co. In that case, the New York Court of Appeals held a sixteen-month contract for the sale of newsprint paper unenforceable under the requirement of certainty of terms, because the court found that the contract left open for future agreement between the parties (after an initial four-month period during which the parties performed) the price term as well as the duration of that price. The case, which remains good law and a staple of contracts casebooks, stands as a prominent example of the indefiniteness doctrine. It has also long puzzled a number of contracts scholars, some of whom view it as inconsistent with Cardozo’s well-known willingness to read implied terms into contracts. After conducting a more thorough examination of the background context, including contemporaneous congressional hearings into the newsprint paper industry, I conclude that Cardozo’s opinion mischaracterizes and misunderstands the contract, and that there was a plausible and sensible way to resolve the contract’s indefiniteness consistent with the express and implied intentions of the parties. Cardozo is not entirely to blame, however, because the buyer’s lawyers did not present the either the business justifications or the contextual information that might have led Cardozo to reach a different result.

Keywords: contract, indefiniteness, certainty, Cardozo, legal history, newsprint, Uniform Commercial Code, New York Sun, World War I, Canadian Export Paper Company, trade association, gap-filling

Suggested Citation

Cohen, George M., The Uncertainty of Sun Printing (July 3, 2018). Touro Law Review, Vol. 34, No. 1, 2018, Virginia Law and Economics Research Paper No. 2018-10, Available at SSRN:

George M. Cohen (Contact Author)

University of Virginia School of Law ( email )

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