EXPLORING THE IDEA OF PROFESSOR MACNEIL: PRESENTIATION OR FLEXIBILITY?

Amalina AHMAD Tajudin ()
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Amalina AHMAD Tajudin: Universiti Sains Islam Malaysia

Perspectives of Law and Public Administration, 2014, vol. 3, issue 1, 239-250

Abstract: Flexible contracting has been a practice since the period of the law merchant. It remains relevant in today’s sale. The objective of this paper is to test Macneil’s idea of contractual flexibility under the CISG, the US Uniform Commercial Code and the English Sale of Goods Act 1979 with regard to open price provisions respectively. The method used in this paper is by deriving Macneil’s opinion that a contract ought to be viewed as a planning mechanism rather than as a static document. Scholarly views of the three jurisdictions are also taken into consideration. With regards to the international law of the CISG, Macneil would have agreed with the arguments posed by Honnold that both Articles 14 and 55 of the CISG are to be read separately and in regard to the nature of a specific trade. Nevertheless, the CISG courts have shown preference over Farnsworth’s approach, whereby a price requirement is a must in spite of the trade type. The result of this paper finds that Macneil’s viewpoint is an alternative solution to the diverging interpretations taken. Taking Macneil’s view implicates friendlier international business relations, when a contract of sale is updatable as a planning mechanism.

Keywords: Macneil; presentiation; flexibility; open price; CISG (search for similar items in EconPapers)
JEL-codes: K12 K22 (search for similar items in EconPapers)
Date: 2014
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