Harmony and Stasis in Trade Usages for International Sales

The commercial law literature contains a somewhat traditional story about the efficient incorporation of trade usage into commercial contracts, a story that is a straightforward consequence of incomplete contracting. Commercial actors can, of course, explicitly opt into customary practices. Judicial construction of a custom, however, may implicate an alternative source of deviation from the traditional story. The arguments from networks, bias, and convention make the traditional story of custom look pretty fanciful. The motivations for harmonizing international sales law through the incorporation of custom into contracts may be more benign than some commentators suggest. Certainly, the costs related to…