The Relative Costs of Incorporating Trade Usage into Domestic Versus International Sales Contracts

13 Pages Posted: 29 Feb 2004

See all articles by Avery W. Katz

Avery W. Katz

Columbia University - Law School


This Comment expands upon Clayton Gillette's defense of Article 8(2) of the Convention on the International Sale of Goods (CISG), which directs tribunals to incorporate international trade usage into private contracts governed by the Convention, unless the parties agree otherwise. The Comment attempts to offer a more robust and systematic account of when substantive interpretative doctrines such as trade usage might be desirable, as well as why such doctrines appear to be especially useful in the transnational setting of the CISG. It argues that Gillette's account is incomplete because he does not provide an explanation of why international tribunals have been more restrained than US domestic courts in their use of trade usage, and because he focuses primarily on the costs of interpretative uncertainty to the exclusion of a fuller list of costs and benefits relevant to the choice of interpretative regime. Taking this fuller list of considerations into account renders the widespread use of trade usage and similar contextual standards in the transnational setting more comprehensible, and reinforces Gillette's conclusions regarding trade usage's commercial functionality.

Keywords: Trade usage, CISG, contract interpretation

JEL Classification: K12, K33

Suggested Citation

Katz, Avery W., The Relative Costs of Incorporating Trade Usage into Domestic Versus International Sales Contracts. Available at SSRN:

Avery W. Katz (Contact Author)

Columbia University - Law School ( email )

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