But in the United States, too, contractual interpretation seeks to find the parties’ shared intent. And in the United States, as in France, this is done by objective means (through devices such as the negotiating history) rather than attempting to read the parties’ minds. See Skycom Corp. v. Telstar Corp., 813 F.2d 810 (7th Cir. 1987).
The initial draft placed on Household the sort of restriction that JørgenBodum imputes to the final version. But the final version allows Household to sell the La Cafetière design anywhere except France—provided that it does not use the Chambord or Melior names (which Household has never done) and does not use Martin’s supply channels
for four years (a promise Household kept).
Bodum and another of Household’s subsidiaries litigated in Denmark. Relying heavily on the negotiating history, the Court of Randers concluded, in a judgment dated February 8, 2008 (Case FS 40-6066/2007), that Article 4 means exactly what the district judge held in
this litigation. The Court of Randers reached its judgment under French law (which a choice-of-law clause in the contract requires). The judgment was affirmed by the Western Danish High Court on May 12, 2009 (Appeal No. V.L. B-0329-08, Ref. No. 138212). It would not be sensible to create an international conflict about the interpretation of this contract. Denmark is a civil-law nation, and a Danish court’s understanding and application of the civil-law tradition is more likely to be accurate than are the warring declarations of the paid experts in this litigation.
El voto particular de Posner
I cannot fathom why in dealing with the meaning of laws of English-speaking countries that share our legal origins judges should prefer paid affidavits and testimony to published materials… Because English has become the international lingua franca, it is unsurprising that most Americans, even when otherwise educated, make little investment in acquiring even a reading knowledge of a foreign language. But our linguistic provincialism does not excuse intellectual provincialism
The parties’ reliance on affidavits to establish the standard for interpreting their contract has produced only confusion. They should have relied on published analyses of French commercial law.