frigaliment importing--the chicken case : LUSENET : Lessig's Contracts : One Thread

i was a bit baffled at the end of class by what it was that the court actually held.

my current understanding, though limited, is this. what do you think?

1. if there is no clear meaning in the contract itself, that could help solve the controversy, then we turn to outside sources.

2. the outside source that predominates is trade usage. in this particular case, trade usage itself is split on the issue, or at least cannot give us the definite answer it gave in hurst v. lake & co.

so we proceed in this way:

* the person who is younger in the trade gets the advantage of not knowing of a usage that is not "violently accepted"

* the market price for the good acquires a strong evidentiary value, esp. given that both knew of it and under it, the contract makes no sense under the narrow reading.

* the party who has the burden of proof sucks it up.

now, two questions. why does the plaintiff bear the burden of proof of the narrower interpretation? because that's the way it is when you argue for narrow interpretations (a presumption of wideness?) or because he is the plaintiff? why is the market price brought in if it could, under one interpretation, turn out to be contradicting one of the terms of the contract? i feel this second point is a bit tricky: you bring in evidence to support one understanding, but that evidence would make another understanding contradictory. it seems simple enough on its face, but i posit there could be cases where the evidence ought not to be brought in if it can contradict (an interpretation of) a term.


-- Anonymous, November 17, 1998


I had the exact same reading of the case as you did. I feel that under Restatement 222(1) the Chicken case fails the test of "a usage having such regularity of justify an expectation that it will be observed with respect to a particular agreement." And I think that the court says it fails because of the plaintiff's general burden of persuasion. Under 222(3), "unless otherwise agreed, a usage of trade...which the parties have reason to know gives meaning to or supplements the agreement." To me, this indicates that the general rule is that a term's default meaning is the trade usage, meaning that the plaintiff's burden in this case probably did not come from a presumption for the objective non-trade meaning. This is probably completely wrong but oh well...... As for the question of judicial preference for wide or narrow???????

With the above in mind, I think that the decisions in Frigaliment and Berwick are easily reconcilable. Berwick says that there is conflicting evidence an

-- Anonymous, November 17, 1998

I think the conflict in Frigaliment arises not from the fact that one of the parties is a new player in the trade but from the fact that the two parties, members of the chicken importing trade (whether new or old), are attempting to communicate their desires to each other in the very narrow and very imperfect intersection of two languages: English and Chicken-ese.

It may very well be that in the minds of the buyers and sellers of "Huhn"s, there is a clear distinction between "Brathuhn" (broilers) and "Suppenhuhn" (stewing chickens) but that in the contract formation, these distinctions of general and specific were grafted onto a language whose precision was overestimated. It seems clear to us now that the comparable English words corresponding to the category of "Huhn" is "chicken" and the words for the subcategory of "Brathuhn" is "broiler" or "young chicken" and for "Suppenhuhn", "fowl". The problem arises when the Swiss Chicken importers understand "chicken" to be a specific sub-category meaning "broiler". They attribute the origin of this understanding to the general usage among the members of the trade. In the course of the opinion, however, it becomes clear that this "general usage of trade" in the US is not what Frigaliment believes/argues that it is. Perhaps for Swiss chicken traders, the English word "chicken" indicates a broiler, but for Americans and American chicken traders, a chicken is sometimes a broiler, sometimes fowl, but always simply a chicken ("Huhn").

Before I lose myself and everybody in the trees and shrubbery and weeds, I want to point out what I think is the forest: our courts begin with the plain meaning of the text and, developing more sophistication in interpreting contracts, move on to accepting interpretations from the more specialized sphere of trade/industry. The problem however, is that whether the courts are interpreting the plain or trade meanings of text, the most basic form of the text itself is never allowed to be challenged: the language (English) of the text. Plain meaning and trade meaning are two divisions within the "four corners" of an English context. What happens when the meaning of English words used in a contract are drawn from outside of this context? What happens when "chicken" (which we Americans understand as "everything except a goose, a duck, and a turkey) means "Brathuhn" to German chicken traders?

Perhaps what Frigaliment needed to prevail was 1) evidence to show that among German-speaking chicken traders, "chicken" = broiler and 2) the defendants knew the trade usage of German-speaking chicken trading language and 3)the presumption that this foreign language ought to prevail in an agreement with an American exporter in an American court. As the Restatement sections stand however, while trade usage is allowed to modify the plain meaning of contract text, extra-Anglo/American usage of English is not.

I seem to have gotten lost among the poison ivy again... Bottom line: the problem isn't whether the two parties are speaking the _trade_ language, the problem is that the two parties are not speaking the same language. The defendants are operating in English and the plaintiffs are sadly operating in Germ-glish: something they perceive to be English but, to native English speakers, is not. For this, they are judged against by the American court. The salient feature of the case is then not whether one party is a newcomer to the trade, but whether one party is a newcomer to the English-speaking American trade. (and then of course that party should lose because just think of the consequences to American contracts and the English language if they didn't)

Perhaps Frigaliment would have gotten a different verdict in a Swiss court. Or perhaps Frigaliment (with reference to the market prices) is just trying to wheedle a way out of an unprofitable contract by making up ridiculous stories about what they thought "chicken" meant.

Okay, bring in the forest ranger. The trail of bread crumbs definitely seems to be lost.

-- Anonymous, November 17, 1998

Language in the chicken case

I don't think the fact that the two parties spoke different languages had anything to do with the court's decision. The negotiations were all conducted in German, except for the use of the word "chicken." If the plaintiff were so concerned about specifying young chickens or broilers, why didn't he just use the German word for young chickens or broilers. I think the court based its decision on the following:

It would have been easy for the plaintiff to specify. The defendant asked the plaintiff's agent if the kind of chicken mattered and was told no. There was no well-established usage of trade. The market price offered by the plaintiff indicated that "fowl" were expected. The plaintiff asked the defendant to send the second shipment, even though he had already received the first shipment, and thus, could assume the second shipment would include fowl.

Basically, it looks to me like all the actual evidence that was produced supported the broader meaning of chicken, including the plaintiff's own witnesses.

-- Anonymous, November 18, 1998

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