*1 USA, INC., Plaintiff- BODUM

Appellant, CAFETIERE, INC., Defendant-

Appellee.

No. 09-1892. Appeals,

United States Court

Seventh Circuit.

Argued Sept. 2009. 2, 2010. Sept.

Decided

carafe. Clear then can poured coffee top. In 1991 Bodum Holding purchased all of stock. Today Martin’s Holding subsidiaries of Bodum sell throughout the world coffee makers that design use the Chambord name. Martin’s investor principal manager Castel, was Louis-James Viel de who had these, other businesses. One the Brit- Ltd., ish firm Household Articles sold a French-press coffee maker that it called Cafetiére, La closely which resembles the Chambord design. Viel Castel wanted to continue Household’s business after Bo- dum bought Martin. So Viel Castel and Bodum, Jprgen Jepsen the main investor negotiated. Bodum An Holding, early draft agreement provided that Household could design sell the Chambord in the United Kingdom, but nowhere else. After revisions, however, several rounds of agreement provided that Household would never sell a French-press coffee maker in France, not would use the trade Melior, names Chambord or and that for years four it would not distribute through (argued), David E. Bennett Vedder distributors, importers, or agents that Kammholz, IL, Price Kaufman Chicago, & Martin employed during 1990-91. The Plaintiff-Appellant. for agreement signed, was and Bodum Hold- (argued), Steptoe Thomas G. Pasternak ing acquired Martin. Johnson, IL, & for Chicago, Defendant- Inc., Cafetiére, La incorporat was Appellee. ed Illinois in serve as the dis EASTERBROOK, Judge, Before Chief tributor products of Household’s in the WOOD, Judges. and POSNER and Circuit United States. of these One is the La model, Cafetiére carries the name EASTERBROOK, Judge. Chief country. “Classic” in this To avoid confu (which through From the sion corporation mid-1950s So- between the since ciété des Anciens Etablissements Martin 2008 has been one of Household’s subsid (“Martin”) iaries) product, S.A. distributed a and the we successful refer to the French-press coffee maker known as distributor as “Household.” Household French-press Chambord. A coffee maker has itself been renamed Greenfield (called France) Group, original a cafetiére á but we stick piston with name simplicity. Holding’s carafe in which hot water mixed Bodum U.S. dis (Bodum Inc.) USA, grounds. brewing coffee When is com- tributor filed this suit a mesh attached to a under federal plete, contending screen rod and state the bottom that the maker similar grounds drives the sale coffee France, provided it does design except Bodum’s violates the Chambord Melior&emdash;and dress, a trade Trade common-law dress. use the words Chambord con- appearance that enables distinctive either of Household never used those *3 maker, identify product’s is a sumers agreed The court marks. district Pesos, Inc. v. trademark. See Two form of granted summary judg contention Cabana, Inc., 763, 112 S.Ct. Taco U.S. favor. 2009 ment Household’s U.S. 120 L.Ed.2d Cham- 2009). (N.D.Ill. Lexis 25555 Mar. Dist. design not as Bodum’s registered bord La design The Chambord and the Cafe- trademark, but marks common-law similar, and design are indeed al- tiére 1125(a), § both enforced under 15 U.S.C. they are identical a casual though cof- Act, part of the Lanham and 815 ILCS (or would purchaser) fee drinker have 510/2(a). Household contends pic- telling apart. trouble them Here La agreement permits it to sell the world, design anywhere in the tures: Cafetiére *4 right-hand version of the La A Cafetiére design may protected distinctive as a

design looks closer to the Chambord de- trademark if it acquired has second- sign because of the domed lid and the ball ary is, meaning&emdash;that if consumers associ- piston. on the design Household calls one ate design particular with a manufac- turer&emdash;and Optima; the Classic and the other the the design’s identifying aspects parties not anything do make of the differ- Stores, are not functional. See Wal-Mart ence. Brothers, Inc., Inc. v. Samara 529 U.S. 205, 1339, 120 S.Ct. 146 L.Ed.2d 182 Bodum assumes that propri (2000). Bodum has not produced evidence any etor of design distinctive has an intel that the Chambord design secondary lectual-property right design, this meaning, purchasers so that of a La Cafe- assumption alone can sell. That is un tiére coffee maker think they that design warranted. The Chambord is dis getting one of products. Bodum’s But be- tinctive&emdash;somuch so that Martin received cause Household has not asked us to af- it&emdash;but design patent patent ex firm the district ground, court on this we pired many years ago. a patent After move on to the contract. expires, copy other firms are free to language, Here is the critical from Arti- design to the last detail in order to in 4cle of the contract: competition crease and drive down the price See, that pay. e.g., consumers In Boni consideration of the compensation Boats, Boats, Inc., Inc. v. Thunder paid to Stockholder [Viel for the Castel] Craft 971, [Martin,] 489 U.S. 109 S.Ct. 103 L.Ed.2d guaran- stocks Stockholder (1989); Sears, tees, Roebuck & Co. limited agreed compensa- to the Stiffel not&emdash;for Co., tion, 376 U.S. 84 S.Ct. 11 L.Ed.2d see that Article he shall Sons, (4) Jay See also Franco period years&emdash;be & of four engaged Franek, Cir.2010); Inc. v. directly 615 F.3d 855 indirectly any or commercial Specialized Seating, Inc. v. Greenwich In manufacturing business related to or dustries, L.P., (7th Cir.2010). distributing products....... F.3d [Martin’s] and Australia. This Kingdom Article 4 Hold- United

Notwithstanding [Bodum insists, means, Holding Bodum that there through ing] agrees Stockholder a trial to determine the must be ... can manufacture and dis- Household It with the supports position intent. any products [Mar- tribute similar Gautier, a Pro- declaration of Pierre-Yves products outside of France. tin’s] fessor of Law at Université Panthéon-As- expressly [ ] understood Household II, Paris who Bodum tenders as an sas entitled, directly indirectly, is not re- expert on French law. Household has France, activity in and that such experts plied with declarations two furthermore is not enti- Household [] its own. tled, directly indirectly, globally coffeepots manufacture distribute and/or Although 44.1 pro Fed.R.Civ.P. brand under the trade marks and/or that courts consider tes vides “Chambord,” names of “Melior” and timony deciding questions foreign when agrees [Martin]. held Stockholder law, it them to compel does do so-—for that Household is not entitled to use [ ] says judges “may” the Rule rather (4) period years import- for a of four *5 than expert testimony “must” receive and ers, distributors, and agents may “any adds that courts consider rele uses has used the last [Martin] and/or Judges vant material or source”. should year. Any obligations violation of these use the best of the available sources. The

will constitute a breach of Stockholder’s Committee Note when Rule 44.1 obligation according to 4. Article adopted, explains “may was that a court parties agree engage that an this is accurate its own research and consider original, translation of the French and that relevant material thus found. The may court have at its governs disposal French law its better for substantive inter- eign pre law materials than counsel have pretation. judge thought The district that sented, or wish to reexamine and contract clear is Household amplify presented material that has been France, can sell its La Cafetiére outside of in partisan counsel fashion or in insuffi if it does not use the Chambord or Melior cient detail.” names. if the La Even Cafetiére or Clas- sic model is identical to the Chambord in Sometimes federal courts must (which not,

model a glance is at the terpret foreign statutes or decisions that shows), thing illustrations identical to have not English been translated into something else also is “similar” to it. glossed in or other treatises sources. that, experts’ testimony contends under Then declarations and

Bodum law, prevails may French intent be essential. But French over written word. Article 1156 of the the law of most that engage other nations provides: commerce, French Civil in in Code “One must extensive international agreements widely seek what the common inten in English. Judges available can (sometimes official) was, tion contracting parties only rather use not accepted pay than attention meaning to the literal translations of statutes and decisions but (Again literature, an agreed ample secondary terms.” this is also such as translation, as are all other translations in and scholarly commentary. treatises It is opinion.) Jqrgen necessary Bodum has submit no more to resort to dec declaring ted affidavit that he under larations about the law of France than Louisiana, stood the contract to limit Household’s about the law of which had its code, origins sales of the La to the in the civil Cafetiére model French the law Rico, origins whose of Puerto are each other is irrelevant under Art. 1341. Spanish judge civil code. No federal This constraint proposition illustrates the “expert” would admit declarations about although rule, a general “as meaning of Louisiana law in a commer- and German law do not limit the admissi- cial case. bility of relevant external materials in the process interpretation ... this does not Trying to foreign establish law mean that it is easy for a to induce a through experts’ declarations not rely court to on extrinsic evidence in order expensive (experts must be located and to, vary to ‘add or contradict a deed or paid) adversary’s spin, but also adds an other written instrument.’ On the con- which the court then must discount. Pub trary, systems acutely civilian aware of lished sources such as treatises do not the need to strike a have the slant that characterizes balance the war between the ring presented declarations in this desire to materially case. achieve a ‘right’ out- objective, English-language Because hand, de come on the one and the struggle for scriptions readily French law are avail legal certainty on the other. As a conse- able, prefer we them to the parties’ decla quence, they are extremely reluctant Sunstar, rations. See Inc. v. Alberto admit that the wording of a contract con- Co., Culver 586 F.3d Cir. cluded in writing might be overridden 2009); Bayer Abad v. Corp., 563 F.3d other factors.... can, Extrinsic evidence (7th Cir.2009). however, be used for the purposes of inter- says

Article 1156 preting courts must seek a written document that contains *6 the “common intention” —which internal contradictions or is otherwise un- intent, joint means their not one side’s something true of American law as clear”— unilateral Jprgen version. Bodum tells us well. Stefan Vogenauer, “Interpretation contract, what by he understood the but of Concluding Contracts: Comparative Ob- Holding Bodum does not offer any evi- servations,” in Contract Terms dence of statements Viel Castel that (Andrew eds.2007). Burrows & Edwin Peel would tend to demonstrate that this view Article 110-3 of the Commercial Code is mutual. For part, its Household offers evidence, is more tolerant parol of oral but the contract’s negotiating history, which it is not clear whether the Commercial French law takes to be a more reliable governs Code the sale to Holding Bodum indicator of litigants’ intent than the self- of Viel Castel’s stock Martin. serving declarations. The See Alberto Luis Commercial Zuppi, applies The Parol Code Evidence Rule: A Com- to “all obli- parative Study Law, gations dealers, the merchants, Common between Tradition, Mercatoria, Civil Law and Lex bankers”. Art. 110-2. The contract by Comp. Ga. J. Int’l & 258-60 which Viel Castel sold his stock was a hybrid, affecting the business of House- hold aas merchant at the same time itas Article 1341 of the Civil Code forbids affected Viel Castel as an investor. It is negotiators evidence about what said to unnecessary to decide whether Art. one another —often parol called evidence in however, applies, because Bodum Holding United States —when the value 5,000 dispute any does not offer (roughly parol exceeds francs evidence that euros). The would dispute value of the tend to between show Viel Castel’s oral 5,000 agreement Bodum and Household Jprgen exceeds Bodum’s beliefs. francs, negotiators so what said to This leaves the written record. This, too, unacceptable was to Viel Castel. negotiating history straightfor-

The an ini- lawyers signed Bodum’s submitted the final ver- Eventually parties ward. tial for Viel Castel’s consideration. draft quoted pages ago. that we several sion this: provision The relevant said easy initial grasp. The lesson is compensation placed draft on Household the sort of re- In consideration of the for the paid Jprgen imputes [Viel Castel] Stockholder striction Bodum [Martin,] guaran- stock Stockholder the final version. But the final version tees that he shall not—for indefinite allows Household to sell the La Cafetiére directly engaged of time —be period design anywhere except provided France — indirectly commercial business it does not use the Chambord or manufacturing related to distrib- and/or (which names has never Melior Household products....... uting [Martin’s] done) supply and does not use Martin’s Hold- Notwithstanding (a article [Bodum years promise channels for four House- agrees through ing] Stockholder kept). hold ... Household can manufacture and dis- (France’s highest de The Cour Cassation any products tribute within the United court) civil that a has concluded clear and Kingdom. expressly understood contract precise must not be “denatured” entitled, that Household is not direct- [ ] party’s resort to one declaration of ly indirectly, products to distribute Herbots, Jacques intent. See H. “Inter- Kingdom. outside United pretation Elgar Ency- in The Contracts” rejected proposal and ne-

Viel Castel clopedia Comparative Law 334-35 gotiated right to allow Household the civ., 8, 2006, Cass. 2e March Bull. design sell the La outside the Cafetiére II, No. 66. Civ. Article of this contract Kingdom. United The next draft said this: stands; precise nego- is clear and as it Notwithstanding Article 4 Hold- [Bodum tiating history that it shows means what agrees ing] that Stockholder Cas- [Viel says. And we are not the first court ... can manu- through tel] Household reach this conclusion. Bodum another *7 any products facture and distribute litigated of Household’s subsidiaries Kingdom. within the United is ex- Relying heavily negoti- Denmark. on the understood that Household pressly [ ] history, ating the Court of Randers con- entitled, directly indirectly, glob- not or cluded, 8, judgment February in a dated ally to manufacture distribute and/or (Case 40-6066/2007), 2008 FS that Article coffee-pots under the trade marks 4 exactly judge means what the district brand names of “Melior” and and/or held in Ran- litigation. this The Court of Holding] agrees “Chambord”. [Bodum judgment ders reached its under French that Household with the limitation [] (which law a choice-of-law clause in the previous mentioned sentence out- requires). judgment contract af- was Kingdom side the United on markets firmed Danish High Western Court where prior signing Household [] 12, May (Appeal on 2009 No. V.L. B-0329- Agreement proved this [Bodum 138212). 08, Ref. No. It would not be Holding] already that he is manufactur- sensible to an create international conflict ing/distributing products can manufac- interpretation about the of this contract. which, ture and products distribute di- nation, Dan- Denmark is a civil-law and a rectly indirectly, compete do not understanding application run ish court’s Company the business of the as today. likely of the civil-law tradition is more means, warring agreement than are the declara- is invalid a be accurate litigation. in this paid experts tions of the “naked of a license” trademark. American law forbids “naked” transfers trade- undisputed, in When the facts are America, marks. TMT North Inc. v. language of contractual terpretation GmbH, Magic Touch 124 F.3d 876 judge. law for the See PSI question of Cir.1997). A business cannot sell a name USA, Inc., 17 Energy, Inc. v. Exxon Coal product, divorced from a because trade- (7th Cir.1994). 969, Bodum con F.3d significant only mark is to the extent it for in preference tends that the French helps a product consumers associate with a interpretation tent over text means that But producer. Bodum did not sell a naked question of fact. But in the must be 1991, trademark to Household. Before States, too, interpreta United contractual Martin and rights Household had allocated parties’ tion seeks to find the shared in design: the Chambord Martin sold cof- States, And in the as in tent. United fee embodying design makers this in some France, by objective this is done means nations, Household others. The 1991 (through negotiating devices such as the contract continued that division. The history) than attempting rather to read the names Chambord and Melior went to Bo- Skycom Corp. minds. See v. Tels dum; was, the design stayed where it (7th Cir.1987). Corp., tar 813 F.2d 810 promised Household not to sell If dispute proceeding this were France, where in 1991 Martin did about France, it lay would not be submitted to 70% of its business. No transfer of (which use) jurors France does not or even occurred; rights to Household the transfer judge. to a It would be submitted to Bodum, was from Martin to with a reser- executives, panel arbitral of business existing rights vation of some in House- Paris, International Court of Commerce People hold. are free to use contracts to provides. as Article 18 of the contract Bo- allocate rights products’ designs. See dispute dum has not asked Quick Co., Aronson v. Point Pencil arbitrated, Paris, Chicago although U.S. 99 S.Ct. 59 L.Ed.2d 296 have might preferable. been That the depends suit on a mixture of U.S. trade- mark law and French contract law would None of the arguments requires other prevent arbitration. See Mitsubishi judgment discussion. The is affirmed. Corp. Chrysler-Plymouth, Motors v. Soler

Inc., POSNER, Judge, concurring. U.S. 105 S.Ct. Circuit Healthcare, L.Ed.2d 444 Omron I join majority opinion, *8 and write Ltd., Exports Inc. v. Maclaren 28 F.3d 600 separately merely express to emphatic (7th Cir.1994); International, Baxter Inc. for, support modestly amplify, and the Laboratories, (7th v. Abbott 315 F.3d 829 court’s criticism of a common and author Cir.2003). Having litigate chosen to in judicial ized practice. but unsound That is Paris, than Chicago rather arbitrate practice the trying establish the however, by Bodum must abide the fo- meaning foreign country of a of a by law doctrines, procedural rum’s such as the witnesses, testimony or affidavits of judge jury. allocation of tasks between and usually lawyers professors, or law often Co., Mayer Gary See v. Partners & 29 country question. from the For earlier (7th Cir.1994). F.3d 330 criticism, Sunstar, see Inc. v. Alberto-Cul Co., (7th that, 487, Bodum insists if ver the 1991 586 F.3d 495-96 Cir. 2009). contract what means we have concluded it

632 and excerpts from the French Civil Code writing in this case is contract by professors three French law affidavits the defendant entitles unambiguously

and (Pierre-Yves the and plaintiff mak- Gautier coffee to sell its “Classic” to continue Huet for and Jérome States, because, Christophe Caron although er in the United defendant, adding Huet’s affidavit the plaintiffs to the “similar” product it is a Caron’s). court did no The district little to maker, only in France is the defen- coffee own, par- relied on the of its but research products “similar” forbidden to sell dant submissions. plaintiff ar- ties’ products. The plaintiffs a it is entitled to nevertheless gues that applies in one state a court When Bodum, principal, its Jqrgen trial at another, court or when federal law of the deal the testify part would (or a court federal state law state applies al- making, thought they were parties law), permit expert court does not written not reflected though it is meaning “foreign” of the testimony on the be contract, defendant would was that the Sunstar, Inc. v. apply. that it has to law its coffee selling “Classic” barred 495; Co., at supra, 586 F.3d Alberto-Culver because is maker in the United States Finance v. Cass Transport Nationwide merely rather than “similar” identical Inc., 1051, Systems, 523 F.3d Information maker. coffee plaintiffs “Chambord” (9th Cir.2008); v. Montgomery 1058-59 (Yet reply plaintiff concedes its brief Co., F.2d Casualty Surety Aetna & certainly true that all may that “it 1537, Cir.1990); Magee Hup v. similar.”) The issue products are identical 81, Ill.App.3d 215 IlLDec. pin-Fleck, 279 governed interpretation of contractual 246, 664 N.E.2d This by French law. Louisiana, it’s the law of true even when see, v. Mur e.g., McDonogh Executors 44.1 Federal Rules of Civil Rule (15 How.) 367, 405-06, court, doch, that a federal 56 U.S. provides Procedure States, (1853); South may ... con- L.Ed. 732 Central determining foreign “in source, Pension Fund v. in- east & Southwest Areas any sider relevant material Co., 232 F.3d testimony, Development or not submit- Creative cluding whether (5th Cir.2000), 417-18 which is based to ted or admissible under the Napoleon significant degree on the Code Rules of Evidence.” The commit- Federal after the “may (curiously, adopted by Louisiana explains tee note that the court en- acquired Louisiana from consider States gage in its own research and United France). Id.; City New Or found. The court Maher relevant material thus (E.D.La. leans, F.Supp. disposal foreign better law may have its Batiza, 1974); Rodolfo “The Louisiana Civ presented, materials than counsel have Its Actual amplify to reexamine and mate- il Code of 1808: Sources wish Relevance,” 46 Tulane L.Rev. presented rial that has been counsel Present Palmer, Vernon Valentine partisan fashion or in insufficient detail.” Spanish rely on “The and the Thus the court doesn’t have French Connection cases, I and Con testimony; Perception: a few Historical Debates *9 believe, temporary Evaluation of French Influence justified doing is it in so. This Law,” L.Rev. on Louisiana Civil 63 La. case is not one of them. 1067, 1072-77 meaning of only evidence of is the law of applied to the dis- Yet if the law to be presented French law that was country, country even a such as appellate foreign in the trict court or is found Canada, Kingdom, or Australia is an translation of brief the United English record

633 if language English English, major country in the official is at least is a and legal system. has a modern legal system Although derives from the and monolingual, Americans are ours, including most namely English same source judges, most there are both official trans- law, routinely rely our courts on common lations of French into English, statutes testimony meaning of lawyers’ about the Texts,” Legifrance, http://195. “Codes and See, v. foreign e.g., law. Schexnider (visit- 83.177.9/code/index.phtml?lang=uk Int’l, Inc., n. McDermott 868 F.2d 4, 2010), Aug. secondary ed and abundant Cir.1989) curiam); (per Sphere law, material on including French French v. All American Ins. Drake Ins. Ltd. Life law, procedural published contract and in (N.D.Ill. Co., 221 F.Supp.2d 884-86 Nicholas, English. Barry The French 2002); Canada, ID Inc. Security Systems (2d ed.1992); Law Contract Denis Tal- Inc., of Checkpoint Systems, F.Supp.2d lón, Law,” “Contract in Introduction to (E.D.Pa.2002). only rely Not French A. (George Law 205 Bermann & in suggest, incorrectly light but sometimes eds.2008); Etienne Picard Lo'ic Cadiet & 44.1, testimony for required of Rule is Amrani-Mekki, Soraya Procedure,” “Civil establishing foreign E.g., Interpane law. Law, in supra, Introduction to French Coatings, Inc. v. Australia & New Zea 307; Vogenauer, “Interpretation Stefan Ltd., Banking F.Supp. Group land Concluding Comparative Contracts: Ob- (N.D.Ill.1990). 909, 917 (An- servations,” in Contract Terms 123 Lawyers testify meaning who to the eds.2007); drew Burrows & Edwin Peel law, they foreign practitioners whether are Lariviére, Daniel Soulez “Overview of the testimony professors, paid are for their Procedure,” Problems of French Civil and selected on the basis of the conver- Am. Comp. J. gence litigating of their views with the Beardsley, James “Proof of Fact client, position willingness or their Procedure,” Comp. Civil 34 Am. J. L. 459 urged fall in upon views them (1986). Neither cited such ma- by the client. These are the banes terial, except statutory pro- translations of testimony. testimony When the visions; beyond they relied on the concerns a scientific or other technical is- affidavits of their expert witnesses. sue, may expect it unreasonable English Because has become the inter- judge to resolve the issue without the aid lingua franca, national unsurprising testimony. judges experts of such But Americans, that most even when otherwise pub- on and there is an abundance of educated, acquir- make little investment in materials, treatises, lished the form of ing reading knowledge foreign even a of a articles, statutes, cases, law review all language. linguistic provincialism But our (if English English foreign is the coun- provincialism. does not excuse intellectual try’s language), provide official neutral justify It does not our judges relying on foreign illumination of I issues law. paid spoon foreign witnesses to feed them why dealing cannot fathom with the explained law can be found well meaning English-speaking of laws of coun- English-language treatises and I articles. legal origins judges tries that share our do not criticize the judge district prefer paid testimony should affidavits case, because he following was the com- published materials. But practice. practice, mon it is a bad only perverse judges many legal practices little less followed like so out of rely testimony on to ascertain the law of habit rather than reflection. It is excusa- a country language foreign whose official is not ble when the law is the law of *10 country poorly a with an obscure or is true and worth that noting such What is the civil law—the law of Continental Eu- that are no developed legal system there rope, Anglo-American as distinct secondary judge to which the materials places law—of emphasis contracts an on legal system is could turn. The French fault that is not found the common law. obviously not of that character. The dis- remarked, As Holmes the common law court did in Abad trict court could—as this options conceives of contracts as 663, —when Bayer Corp., 563 F.3d 670-71 you sign you a contract in which promise a Cir.2009), Ar- respect with to the law of specified performance you buy option to gentina interpretation based his —have perform promised pay either dam- writings French contract law on published Holmes, ages, Oliver Wendell “The Path of paid testimony. as distinct from Law,” (1897), the 10 Harv. L.Rev. Of course often the most authoritative damages unless an adequate are not reme- language literature will be of the dy particular you case. Whether foreign country. But often too there will deciding were at fault in perform— official, unofficial, reputable you preferred transla- could have done so but pay damages parties you tions and when there are not the because someone offered a higher price goods you’d can that portions have the relevant translated promised to the party your other con- English. figure promi- into Translations tract —is therefore irrelevant. nently variety in a of cases tried Ameri- courts, drug-trafficking can such as contrast, In the civil a party is in cases; immigration why not in in- cases breach of his contract and therefore sub- volving foreign law? ject to a legal only sanction if he “could reasonably expected have been to behave Article 1156 of the French Civil Code— is, way,” in a different if he was provision principally briefs in failing perform. at fault Jürgen Ba- entirety: discuss—states in its “On doit sedow, “Towards Universal Doctrine dans les conventions rechercher quelle a Breach of Contract: Impact The of the été la commune parties intention des con- CISG,” 25 Int’l Rev. L. & Econ. trastantes, plutbt que de s’arréter au sens (2005) (“the principle fault is often consid- In English littéral des termes.” idiomatic indispensable part ered to be an of the law (the stilted), English official version is countries”); of obligations in civil law see means that in interpreting contract one Nicholas, 200-01; supra, Tallón, also should search for parties’ joint what the 224-25, 230-31; supra, at Hyland, Richard was, intention stopping rather than Meditation,” “Pacta Sunt A Seiwanda: the literal meaning of the contract’s terms. Va. J. Int’l L. John Y. plaintiff argues that this means that Gotanda, “Recovering Lost in In- Profits no matter how clear the appears contract Disputes,” ternational Georgetown J. be, present entitled to evi- Int’l The civil law dence at trial parties intended slogan pacta embraces the sunt servan- something law,” else. “French according promises are obeyed, to be not com- da— plaintiffs brief, to the opening “clearly price muted to a approximate believed to provides that an parties’ assessment of the their value. That is inwhy the civil law rights obligations under the [contract] remedy the default for breach of contract must be in light evaluated (though more in principle prac- than in intent, tice) mutual regardless of whether the specific performance rather than Nicholas, contract is deemed unambiguous.” damages. 211-12; supra, at

635 Jr., Scalise, get intelligi- ‘Efficient how it failed to written down “Why No Ronald J. Comparative bly, permitted Law?: A he should not be to break it in the Civil Breach’ of Efficient by pointing writing. great- of the Doctrine to a Hence the Assessment Contract,” Comp. Am. 55 J. Breach er “readiness to have [of courts] Tallón, 721, (2007); supra, at see 726-27 previous negotiations recourse to and sub- Dawson, Per- 233-34; “Specific P. John sequent parties” conduct of the in inter- Germany,” 57 in France formance contract, Vogenauer, supra, at preting (1959). 495, You L.Rev. 524-25 Mich. deeper into 150—to conduct search sub- your promise, so performed should have jective understandings. so. you

the court will order do The civil-law culture is the basis for the of contracts evolved The common law claim to be entitled to a trial at plaintiffs merchant, the civil law of from the law present which to evidence its contract Joseph canon law. M. Per- contracts from with the defendant was intended to mean illo, Principles of Interna- “UNIDROIT something says. different from what The Black Contracts: tional Commercial This claim cannot be derived from Article Review,” Text and a 63 Fordham Letter 1156, which, majority opinion as the in this (1994). 281, n. 190 Priests do L.Rev. 308 out, points just case tells the court breaking quite lightly as promise not take parties’ joint search for what the intention businessmen, hand are but on the other stopping rather than was the literal usages, attuned to commercial such as not meaning of the contract’s terms. That is despite Yet the difference ori- options. no warnings different from American the two gins, differences outcome under wary interpre- contract law to be of literal legal regimes shrinking. are small and interpre- tations of contracts because such Grundmann, Prin- E.g., “The Fault Stefan tations often are mistaken. Beanstalk Law: ciple as the Chameleon Contract Group, Corp., Inc. v. AM General 283 F.3d 107 Approach,” A Market Function Mich. 856, Cir.2002); Rhode Island 1583, Vogenauer, L.Rev. 1586-91 Engelhard Corp., Trust v. Charities Barnes, 149-50; Wayne at R. “Con- supra, (1st 3, Cir.2001); F.3d Outlet Em Paradigm for a templating a Civil Law Mills, broidery v.Co. Derwent 254 N.Y. Code,” Future International Commercial (1930) (Cardozo, 179, 172 N.E. (2005); Gotanda, La. L.Rev. C.J.). on greater is based rather 63-64; Patricia Pattison & Dan- supra, (in turn willingness principle will —which Herron, High “The Mountains Are iel qualification) of a out to be essential Away: Sanctity Emperor Is Far French court than of an American one to China,” 40 Am. Contract Bus. L.J. dig deeply for reassurance that it is not A difference at least in tone distorting parties’ intentions blind remains, however, and enables one to see ing everything itself to is not text. why might, plaintiff French law as the argument sup- seem contends, be more concerned to determine fact that French law does ported intentions than American law parol applicable have a evidence rule For if an intention is inno- would be. commercial cases. See French Com- party promise cent—a never intended the 110-3; Code, mercial Art. [Ad- CISG-AC having broken— that he is now accused Inter- him, visory Council of the Convention of ascribing precon- fault to viewed as Goods], No. Opinion national Sale of finding guilty him of a breach of dition to Rule, contract, Meaning Evidence Plain graver step. Conversely, is a if “Parol Rule, Merger Clause and the promise did intend the but some- Contractual *12 636 ¶ (Oct. 23, 2004), majority opinion. Article

CISG,” www.cisg. explained the 1.2.8 (visit- pro- 110-3 of the French Commercial Code law.pace.edu/cisg/CISG-AC-op3.html 6, 2010); Zuppi, traders, Alberto Luis “The Aug. regard ed vides that “with com- Comparative Rule: A may proven by any Parol Evidence mercial instruments Law, Study of the the Civil Law Common specifies law otherwise” means unless the Mercatoria," Tradition, 35 J. (footnote omitted). and Lex Ga. Opinion And CISGAC (2007); 233, Ar- 258-60 Comp. Int’l & 3, “though states that supra, No. Mehren, Analogues T. thur von “Civil-Law incorporates ... a ver- French Civil Code in Compar- An Exercise Consideration: sion of the Parol Evidence Rule for ordi- 1009, Analysis,” 72 Harv. L.Rev. 1013 ative contracts, nary proof gen- all of are forms (1959). An approximation and n. 15 erally against available merchants.” See rule, the related “four corners” and to also United Nations Convention on Con- rule, Exchange, v. Truck 51 Bank Ins. Goods, of tracts for the International Sale (7th 736, Cir.1995); E. Allan F.3d 737-38 (Mar. 11, 6262, 2, Fed.Reg. art. 52 6265 (4th 7.12, Farnsworth, § p. 464 Contracts 1987); Duca, “Implementa- Louis F. Del ed.2004), using which forbids extrinsic evi- tion of Contract Formation Statute of an unambiguous dence to contradict writ- Frauds, Evidence, Parol and Battle of contract, ten in Article 1341 of the is found Forms CISG Provisions Civil and Com- ordinary Code for contracts Civil Countries,” 55, mon Law 38 UCC L.J. 56- (Neither very unless small. rule is limited (2005). 57 and n. 3 evidence, “parol,” despite to oral word law gap This French commercial which is derived from the French word for however, practical significance, little be “word”; parol merely evidence rule mainly cause it reflects the fact that civil concerning excludes extrinsic evidence juries in systems law do not use civil cases. if precontractual negotiations the written result, admissibility As their rules on of parties’ contract was intended to be the notably are in com complete agreement, evidence looser than Utica Mutual Ins. Co., 707, Schauer, jurisdictions. Vigo Co. v. Coal 393 F.3d mon law Frederick 713-14 (7th Cir.2004); Supposed Jury-Dependence see also Patton Mid- “On Inc., 742, Systems, Law,” 165, Continent 841 F.2d Evidence 155 U. Pa. L.Rev. (7th Cir.1988); Farnsworth, 745-46 supra, (2006); Williams, 174-75 Kenneth “Do We 414-16).) 7.2, pp. § Article 1341 bars Really Need the Federal Rules of Evi “proof witnesses” that is inconsistent dence?,” 1, N. 74 Dak. L.Rev.

with the contract unless there written Kerameus, Konstantinos D. “A Civilian proof writing” “commencement of Lawyer Looks at Common Law Proce —a writing originating with the defendant that (1987). dure,” 47 La. L.Rev. probable makes it that an alleged fact Although technically parol evidence about the deal true. Vogenauer, and four-corners rules are rules of con 135-37; Herbots, supra, Jacques H. evidence, tract law rather of Rossetto v. Contracts,” “Interpretation Jan M. (7th Co., Brewing Pabst 217 F.3d Smits, Elgar Encyclopedia Com- Cir.2000); Farnsworth, 7.2, § supra, p. parative Law 416, they strongly influenced con by jury upset expecta cern lest trial But the limitations on extrinsic evidence contracting parties tions of as embodied in apply Article 1341 do not to commercial contracts, possible Graph written contracts. AM Int’l Inc. v. characterization of the case, Associates, Inc., contract at though Management issue ic F.3d Cir.1995); an inevitable characterization for Olympia reasons Hotels of the two Development Corp., ployee companies Wax Corp. v. Johnson Cuniberti, (7th Cir.1990); validly testify.” “Beyond Gilíes 1363, 1373 908 F.2d Case for Default Arbitra- Contract —The McCormick, Evi- T. “The Parol Charles *13 in tion International Commercial Dis- a Procedural Device for Rule as dence putes,” 32 Fordham Int’l L.J. Jury,” 41 Yale L.J. 365 of the Control (2009) (footnote omitted). past “The con- (1932). shape present. espe- This is tinues to by juries tight and rules of Unburdened particularity one cially respect true with evidence, fur- range courts could French judicial system of the French which is American courts in search ther afield than in rarely jury evoked—the absence of a contractual intentions. subjective of proceedings, and the conse- civil court explained Voge- don’t. As Could—but quences procedure, this has on which re- 135-36, nauer, gener- “as a supra, at while witnesses, written, mains 98% with no no rule, law French and German do al investigations by judge, ordered and external admissibility limit of relevant hearing The is a no cross-examination. process interpretation in the materials ritual, rigid, sort of a immutable show a easy mean that it is for ... this does not judge, flanked —for the which the silent rely on extrinsic to induce a court to by colleagues, moment at two lis- least — to, vary or con- evidence order ‘add ‘pleadings’: tens to the an exercise soli- a or other written instru- tradict deed tary eloquence, lengthy monologue by a a contrary, systems civilian ment.’ On lawyer blindly desperately who at- of the need to strike a acutely are aware documents, tempts to breathe life into between the desire to achieve balance affidavits, inert, which consigned even are hand, materially outcome on the one ‘right’ paper, phraseology, embedded ritual legal certainty on the struggle and the accompanied by proving a document they are ex- consequence, other. As a any jury identity. is the absence of tremely reluctant to admit that the word- concept which has dictated the entire ing writing a contract concluded in hearing a civil court should be.” La- what might by be overridden other factors.... riviére, supra, tendency at 743-44. “[T]he however, can, Extrinsic evidence be used writ- litigation prefer is] French civil [in interpreting a written purposes for the proof ten of ultimate fact—evidence that that internal contradic- document contains analyzed writing can be on the basis of a (emphasis tions or is otherwise unclear” though origins even its oral omitted) added, is also footnote —which testimony difficult-to-appre- or other more law, true of American but irrelevant to this Beardsley, proof.” supra, ciate forms of case. at 470. courts, moreover, American

Unlike plaintiff marry The our case wants to by “French courts are staffed commercial might ap- doctrine that substantive community, who members of the business pear permit far-ranging a more eviden- part-time judges. serve There is no tiary exploration in a contract case to requirement they legal training. have procedure, permits American trial Hearings before French commercial courts far-ranging evidentiary exploration in than an hour. typically charg- last less Witnesses not in cases many types of case but virtually never heard the court. In of a clear written contract. ing breach case, any marriage produced ungainly a French rule of evidence makes par- corresponds neither to French originating hybrid evidence inadmissible, to American law. It is true that that no em- law nor ties which means foreign legal systems heavily some influ- unambiguously the contract supports its civil position. enced codes do use common The defendant acknowledges, on procedure law does Louisiana. Ste- the basis of what appears to be its ex- —as Goldstein, phen Couple: “The Odd pert’s Com- misunderstanding or misstatement mon Law Procedure and Civilian Substan- of French that it enough is not Law,” tive Tul. L.Rev. 291 the contract be unambiguous; the evi- typically jurisdic- These are former code subjective dence of intention must also be. conquered, tions that were or in the case Among things other ignores the fol- bought, by of Louisiana a common law lowing exception, inapplicable which is not *14 nation such as Britain or the contracts, United to commercial principle to the they But States. do not do it on an ad hoc “judicial interpretation of contracts is basis, and, as our proposed plaintiff; so questions considered to entail of fact and discover, not, they far I can by doing as do subject therefore be to the discretion of so, deny contracting parties protection the the lower courts”: in “cases in which of a clearly written contract. (une there has a been distortion dénatura- tion) of precise the clear and terms of the It is at persuade least as difficult to ..., contract the court is deemed to be (because French court composition of its merely faced not question with a of the in- usages) and to admit extrinsic in evidence terpretation contract, of a but rather a a contract case it persuade as is to an apply Tallón, refusal to 225; it.” at supra, American Cuniberti, court to do so. See Herbots, see also supra, at 334. It must 431-32; supra, Lariviére, supra, at 743- not apply refuse to it. 44; Beardsley, supra, at 469-70. hap- The penstance that brought this case has been reliance on affidavits to es- in an American court must not be allowed tablish the interpreting standard for their produce a misfit between substantive produced contract has only confusion. procedural law. They should have relied on published anal- yses of French commercial law.

Curiously, one of the defendant’s ex- perts, Caron, Professor Ar- cites WOOD, Judge, Circuit concurring. ticle 1156 but asserts that in interpreting the “common parties intention of the ... IWhile endorse without reservation the negotiations reference to the majority’s reading of the 1991 contract place have taken between parties the ease, is at the heart of this I write required.” should be I don’t think separately he my to note disagreement with means that there a legal requirement; is the discussion of Fed.R.CivP. 44.1 in both there isn’t. I think he means it would majority opinion, 627-28, ante at helpful to previous refer to the negotia- in Judge concurring Posner’s opinion. tions they case because support the Rule 44.1 itself establishes no hierarchy position. defendant’s Yet in its law, brief the for foreign sources of and I am unper- goes defendant says further and that “Ar- by my suaded colleagues’ assertion that ticle 1156 simply requires that a court look testimony categorically is inferior beyond the literal meaning of the published, terms of English-language materials. an agreement, even where —as here —the comparative Exercises in law are notori- terms of the agreement plain difficult, and un- ously because the U.S. reader is added). ambiguous” (emphasis likely This is not law, to miss foreign nuances interpretation correct of French to fail appreciate way which one helpful defendant, even one to the since branch of country’s the other law interacts just is another, erroneously possibility that he or she mouth- or to assume piece party. lawyers law mirrors U.S. law when one Prominent foreign that the put also might country question it does not. As the from the some- generally, apparently phrases similar more times serve That too experts. per- as is simple A example might be amis. fectly acceptable principle, especially if faux might words be “false why illustrates two question requires understanding English of American speaker friends.” A procedure foreign court in the In country. “actual,” the word will be familiar with many places, academic branch New Webster’s Third defined legal profession entirely separate Dictionary “existing International in such writings places the bar. Academic act, really ... in fact or existing reality: highly tend to be theoretical and removed acting acted or or carried out—contrasted from the realities of the day-to-day prac- ” .... hypothetical with ideal and Web- of law. tice Third New International Dictio- ster’s clear, objection I To be have no (1993). So, might nary one “This is say, foreign use of written sources law. *15 by George Washing- the chair used actual permits' 44.1 Rule the court to consider “actuel” in ton.” But the word source, “any relevant material or including right means or now. Le Robert “present” testimony, by whether or not submitted a Compact Plus & Collins Dictionnaire or the admissible under Federal (5th ed.2003). person A French would Rules of The written Evidence.” sources use “les actuéis” thus the term événements by my colleagues cited both of throw use- events, to current or “actualité” to refer light problem ful on the before us in this really something hap- not to describe case, and were well within both their in past. now or the pened either rights independent to conduct research many times when There will be testimo- rely and to those sources. on There is no acknowledged expert foreign ny from an need, however, disparage testimony to oral necessary, even helpful, law will be law. experts foreign from in the That judge is not ensure that the U.S. confront- of used testimony kind has been re- with a “false friend” or that the U.S. ed sponsible years, for and will lawyers there the full the judge understands context of many it is adequate be instances which foreign published articles provision. Some helpful gloss itself or it on provides treatises, particularly written for a U.S. the The tried and true meth- literature. service, audience, might perform the same testing 702 for ods set forth Fed.R.Evid. not, they even if written many but will expertise, depth the of the witness’s the they if English, especially are trans- facts and relevant information on other another English language. lated into relied, which the and the quali- witness has efficient will often be most and useful of ty application those witness’s her judge for the to have before hand, principles problem the suffice precision on who can the needed provide protect against self-serving the court spot, judge the than have the wade rather they experts just as suffice foreign secondary through a number of sources. any protect process other kind of the practice, experts produced by In the the expert. parties leading the authors the are often Finally, my colleagues see no material scholarly treatises articles in the for- ability judge’s difference to re- cases, In those it between eign country anyway. the of Louisiana or Puerto search laws why person’s hard to the views cannot see court, ability Rico and her to research laws of guard against tested France, Australia, purposes diversity juris- or Indonesia. re “state” for With 1332(e) I cannot with them. Like spect, agree § diction statute. See 28 U.S.C. states, laws of the other 49 the law of fact, There is denying no how- many Louisiana is based on sources. One ever, that Puerto Rico is far more inte- Napolé important such source is the Code grated legal system into the than U.S. on, but it is not the source. Louisiana foreign country is. Since Puerto Rico legislation topics, on the has usual jurisdiction falls within the of the First part system, of the federal and its courts Circuit, (2010), § see 28 U.S.C. function much like the courts of other judges of that regularly court hear cases See, Kim, e.g., Sys states. Kensie Mixed implicating Puerto Rican law. Further- tems Legal Origins Analysis, 83 S. Cal. more, greatly American law has influenced (2010) that, (noting 720 n. 123 L.Rev. See, legal system. the Puerto Rican e.g., though procedure its civil is in the civil law Harry Haynsworth, Busi- J. Unified form, criminal procedure Louisiana’s Corp. Code, Organizations ness 29 Del. J. form); adopted U.S. common-law Wil- (2004) (stating L. 86 n. Forrester, Jr., liam R. Technology New & adopted Puerto Rico has the Delaware The 2007 Amendments to the Code Civil Corporation General Law and the Revised Procedure, (2008) (noting 55 La. BaR J. 236 Act); Partnership Symeon Uniform Sy-C. that the 2007 amendments to Louisiana’s meonides, Choice Law in the American procedure adopt civil rules most of the Courts in 1998: Survey, Annual Twelfth provisions in the Federal Rules of Civil Comp. (1999) 47 Am. J. (noting *16 electronically Procedure for stored infor- that Puerto Rican choice-of-law jurispru- mation); Harry Haynsworth, J. The Uni- dence was influenced the Second Re- Code, Organizations Business 29 Del. fied statement); E. Rodríguez-Rivera, Luis Corp. (2004) J. 101 n. 110 (noting Genesis Puerto Rico’s Environmental that Louisiana adopted provi several Law, 67 Revista Juridioa Universidad de Code); sions of the Uniform Commercial (1998) (discussing Puerto Rioo Forrester, Jr., William R. Changes Recent impact legal of the American tradition Procedure, to the Code Civil La. Bar on especially Puerto Rican environ- (2004) J. (discussing amendments to law). matter, mental practical As a there- procedure Louisiana’s civil governing rules fore, the Supreme Court was on firm Robertson, discovery); David W. assumed, ground when it in the text of Summary Judgment Proof, and Burden 44.1, Rule “foreign law of a (1997) 45 La. Bar J. 331 (discussing the country” subject would be to the rule’s summary new Louisiana rule on judgment procedures, state, not the law of a U.S. noting directly was derived territory, or commonwealth. from the Supreme U.S. Court’s decision reasons, For these Catrett, although join I Corp. Celotex 477 U.S. (1986)). majority’s reasoning in respects, all other I S.Ct. 91 L.Ed.2d 265 do not share their views about the use of Puerto system Rico’s is somewhat less expert testimony prove foreign law. I accessible for non-Spanish-speaking Amer- judgment therefore concur to that icans. Interestingly, one finds Puerto Ri- extent. can materials under the “Internation- Materials” database al/Worldwide

Westlaw®, not under the U.S. States da-

tabase. This is so though Congress even

has expressly defined Puerto Rico as a