In the

United States Court of Appeals

For the Seventh Circuit

No. 09-1892

BODUM USA, INC.,

Plaintiff-Appellant,

v.

LA CAFETIÈRE, INC.,

Defendant-Appellee.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 07 C 6302—Matthew F. Kennelly, Judge.

ARGUED SEPTEMBER 11, 2009—DECIDED SEPTEMBER 2, 2010

Before EASTERBROOK, Chief Judge, and POSNER and

WOOD, Circuit Judges.

EASTERBROOK, Chief Judge. From the mid-1950s through

1991, Société des Anciens Etablissements Martin S.A.

(“Martin”) distributed a successful French-press coffee

maker known as the Chambord. A French-press coffee

maker (called a cafetière à piston in France) is a carafe

in which hot water is mixed with coffee grounds. When

the brewing is complete, a mesh screen attached to a rod
2 No. 09-1892

drives the grounds to the bottom of the carafe. Clear

coffee then can be poured from the top. In 1991 Bodum

Holding purchased all of Martin’s stock. Today subsidiaries of Bodum Holding sell throughout the world coffee

makers that use the Chambord design and name.

Martin’s principal investor and manager was LouisJames de Viel Castel, who had other businesses. One of

these, the British firm Household Articles Ltd., sold a

French-press coffee maker that it called La Cafetière,

which closely resembles the Chambord design. Viel Castel

wanted to continue Household’s business after Bodum

bought Martin. So Viel Castel and Jørgen Jepsen Bodum,

the main investor in Bodum Holding, negotiated. An

early draft agreement provided that Household could

sell the Chambord design in the United Kingdom, but

nowhere else. After several rounds of revisions, however,

the agreement provided that Household would never

sell a French-press coffee maker in France, that it would

not use the trade names Chambord or Melior, and that

for four years it would not distribute through the importers, distributors, or agents that Martin employed

during 1990–91. The agreement was signed, and Bodum

Holding acquired Martin.

La Cafetière, Inc., was incorporated in Illinois in 2006

to serve as the distributor of Household’s products in

the United States. One of these is the La Cafetière

model, which carries the name “Classic” in this country.

To avoid confusion between the corporation (which

since 2008 has been one of Household’s subsidiaries) and

the product, we refer to the distributor as “Household.”
No. 09-1892 3

Household has itself been renamed The Greenfield

Group, but we stick with the original name for simplicity.

Bodum Holding’s US distributor (Bodum USA, Inc.) filed

this suit under federal and state law, contending that

the sale of any coffee maker similar to the Chambord

design violates Bodum’s common-law trade dress. Trade

dress, a distinctive appearance that enables consumers

to identify a product’s maker, is a form of trademark. See

Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763 (1992).

The Chambord design is not registered as Bodum’s trademark, but common-law marks may be enforced under

both 15 U.S.C. §1125(a), a part of the Lanham Act, and 815

ILCS 510/2(a). Household contends that the 1991 agreement permits it to sell the La Cafetière design anywhere

in the world, except France, provided that it does not

use the words Chambord or Melior—and Household

has never used either of those marks. The district court

agreed with this contention and granted summary judgment in Household’s favor. 2009 U.S. Dist. LEXIS 25555

(N.D. Ill. Mar. 24, 2009).

The Chambord design and the La Cafetière design are

indeed similar, and although they are not identical a

casual coffee drinker (or purchaser) would have trouble

telling them apart. Here are pictures:
4 No. 09-1892

Chambord design, full Chambord design, empty
No. 09-1892 5

La Cafetière design, full La Cafetière design, empty

The right-hand version of the La Cafetière design looks

closer to the Chambord design because of the domed lid

and the ball on the piston. Household calls one design

the Classic and the other the Optima; the parties do not

make anything of the difference.

Bodum assumes that the proprietor of any distinctive design has an intellectual-property right in this design,

which it alone can sell. That assumption is unwarranted.

The Chambord design is distinctive—so much so that

Martin received a design patent for it—but the patent

expired many years ago. After a patent expires, other

firms are free to copy the design to the last detail in

order to increase competition and drive down the price
6 No. 09-1892

that consumers pay. See, e.g., Bonito Boats, Inc. v. Thunder

Craft Boats, Inc., 489 U.S. 141 (1989); Sears, Roebuck & Co. v.

Stiffel Co., 376 U.S. 225 (1964). See also Jay Franco &

Sons, Inc. v. Franek, No. 09-2155 (7th Cir. Aug. 11, 2010);

Specialized Seating, Inc. v. Greenwich Industries, L.P., No. 07-

1435 (7th Cir. Aug. 11, 2010). A distinctive design may

be protected as a trademark only if it has acquired secondary meaning—that is, if consumers associate the design

with a particular manufacturer—and the design’s identifying aspects are not functional. See Wal-Mart Stores,

Inc. v. Samara Brothers, Inc., 529 U.S. 205 (2000). Bodum

has not produced evidence that the Chambord design has secondary meaning, so that purchasers of a

La Cafetière coffee maker think that they are getting one

of Bodum’s products. But because Household has not

asked us to affirm the district court on this ground, we

move on to the contract.

Here is the critical language, from Article 4 of the

contract:

In consideration of the compensation paid to

Stockholder [Viel Castel] for the stocks of [Martin,]

Stockholder guarantees, limited to the agreed

compensation, see Article 2, that he shall not—for

a period of four (4) years—be engaged directly

or indirectly in any commercial business related

to manufacturing or distributing [Martin’s] products . . . . . . .

Notwithstanding Article 4 [Bodum Holding] agrees

that Stockholder through Household . . . can

manufacture and distribute any products similar
No. 09-1892 7

to [Martin’s] products outside of France. It is

expressly understood that Household [ ] is not

entitled, directly or indirectly, to any such

activity in France, and that Household [ ] furthermore is not entitled, directly or indirectly,

globally to manufacture and/or distribute coffeepots under the trade marks and/or brand names

of “Melior” and “Chambord,” held by [Martin].

Stockholder agrees that Household [ ] is not entitled to use for a period of four (4) years the importers, distributors, and agents which [Martin]

uses and/or has used the last year. Any violation

of these obligations will constitute a breach of

Stockholder’s obligation according to Article 4.

The parties agree that this is an accurate translation of the

French original, and that French substantive law governs

its interpretation. The district judge thought that the

contract is clear and that Household can sell its

La Cafetière outside of France, if it does not use the

Chambord or Melior names. Even if the La Cafetière or

Classic model is identical to the Chambord model

(which it is not, as a glance at the illustrations shows), a

thing identical to something else also is “similar” to it.

Bodum contends that, under French law, the parties’

intent prevails over the written word. Article 1156 of the

French Civil Code provides: “One must in agreements

seek what the common intention of the contracting

parties was, rather than pay attention to the literal

meaning of the terms.” (Again this is an agreed translation, as are all other translations in this opinion.) Jørgen
8 No. 09-1892

Bodum has submitted an affidavit declaring that he

understood the contract to limit Household’s sales

of the La Cafetière model to the United Kingdom and

Australia. This means, Bodum Holding insists, that

there must be a trial to determine the parties’ intent. It

supports this position with the declaration of Pierre-Yves

Gautier, a Professor of Law at Université Panthéon-Assas

Paris II, who Bodum tenders as an expert on French

law. Household has replied with declarations from

two experts of its own.

Although Fed. R. Civ. P. 44.1 provides that courts

may consider expert testimony when deciding questions

of foreign law, it does not compel them to do so—for the

Rule says that judges “may” rather than “must” receive

expert testimony and adds that courts may consider

“any relevant material or source”. Judges should use

the best of the available sources. The Committee Note

in 1966, when Rule 44.1 was adopted, explains that a

court “may engage in its own research and consider any

relevant material thus found. The court may have at its

disposal better foreign law materials than counsel have

presented, or may wish to reexamine and amplify

material that has been presented by counsel in partisan

fashion or in insufficient detail.”

Sometimes federal courts must interpret foreign

statutes or decisions that have not been translated into

English or glossed in treatises or other sources. Then

experts’ declarations and testimony may be essential.

But French law, and the law of most other nations that

engage in extensive international commerce, is widely
No. 09-1892 9

available in English. Judges can use not only accepted

(sometimes official) translations of statutes and decisions but also ample secondary literature, such as treatises

and scholarly commentary. It is no more necessary to

resort to expert declarations about the law of France

than about the law of Louisiana, which had its origins

in the French civil code, or the law of Puerto Rico, whose

origins are in the Spanish civil code. No federal judge

would admit “expert” declarations about the meaning

of Louisiana law in a commercial case.

Trying to establish foreign law through experts’ declarations not only is expensive (experts must be located and

paid) but also adds an adversary’s spin, which the court

then must discount. Published sources such as treatises

do not have the slant that characterizes the warring

declarations presented in this case. Because objective,

English-language descriptions of French law are readily

available, we prefer them to the parties’ declarations.

See Sunstar, Inc. v. Alberto-Culver Co., 586 F.3d 487, 495–96

(7th Cir. 2009); Abad v. Bayer Corp., 563 F.3d 663, 670–71

(7th Cir. 2009).

Article 1156 says that courts must seek the parties’

“common intention”—which means their joint intent, not

one side’s unilateral version. Jørgen Bodum tells us

what he understood by the contract, but Bodum

Holding does not offer any evidence of statements by

Viel Castel that would tend to demonstrate that this

view is mutual. For its part, Household offers the contract’s negotiating history, which French law takes to be

a more reliable indicator of intent than the litigants’ self-
10 No. 09-1892

serving declarations. See Alberto Luis Zuppi, The Parol

Evidence Rule: A Comparative Study of the Common Law, the

Civil Law Tradition, and Lex Mercatoria, 35 Ga. J. Int’l &

Comp. L. 233, 258–60 (2007).

Article 1341 of the Civil Code forbids evidence about

what negotiators said to one another—often called parol

evidence in the United States—when the value of the

dispute exceeds 5,000 francs (roughly 800 euros). The

value of the dispute between Bodum and Household

exceeds 5,000 francs, so what the negotiators said to each

other is irrelevant under Art. 1341. This constraint illustrates the proposition that although “as a general rule,

French and German law do not limit the admissibility

of relevant external materials in the process of interpretation . . . this does not mean that it is easy for a party

to induce a court to rely on extrinsic evidence in order

to ‘add to, vary or contradict a deed or other written

instrument.’ On the contrary, civilian systems are

acutely aware of the need to strike a balance between

the desire to achieve a materially ‘right’ outcome on the

one hand, and the struggle for legal certainty on the other.

As a consequence, they are extremely reluctant to

admit that the wording of a contract concluded in writing

might be overridden by other factors . . . . Extrinsic evidence can, however, be used for the purposes of interpreting a written document that contains internal contradictions or is otherwise unclear”—something true of

American law as well. Stefan Vogenauer, “Interpretation

of Contracts: Concluding Comparative Observations,” in

Contract Terms 123, 135–36 (Andrew Burrows & Edwin

Peel eds. 2007).
No. 09-1892 11

Article 110–3 of the Commercial Code is more tolerant of

oral parol evidence, but it is not clear whether the Commercial Code governs the sale to Bodum Holding of Viel

Castel’s stock in Martin. The Commercial Code applies to

“all obligations between dealers, merchants, and bankers”.

Art. 110–2. The contract by which Viel Castel sold his

stock was a hybrid, affecting the business of Household

as a merchant at the same time as it affected Viel

Castel as an investor. It is unnecessary to decide whether

Art. 110–3 applies, however, because Bodum Holding

does not offer any parol evidence that would tend to

show Viel Castel’s oral agreement with Jørgen Bodum’s

beliefs. This leaves the written record.

The negotiating history is straightforward. Bodum’s

lawyers submitted an initial draft for Viel Castel’s consideration. The relevant provision said this:

In consideration of the compensation paid to

Stockholder [Viel Castel] for the stock of [Martin,]

Stockholder guarantees that he shall not—for an

indefinite period of time—be engaged directly or

indirectly in any commercial business related to

manufacturing and/or distributing [Martin’s]

products . . . . . . .

Notwithstanding article 4 [Bodum Holding] agrees

that Stockholder through Household . . . can

manufacture and distribute any products within

the United Kingdom. It is expressly understood

that Household [ ] is not entitled, directly or indirectly, to distribute products outside the United

Kingdom.
12 No. 09-1892

Viel Castel rejected this proposal and negotiated to

allow Household the right to sell the La Cafetière design

outside the United Kingdom. The next draft said this:

Notwithstanding Article 4 [Bodum Holding]

agrees that Stockholder [Viel Castel] through

Household . . . can manufacture and distribute

any products within the United Kingdom. It is

expressly understood that Household [ ] is not

entitled, directly or indirectly, globally to manufacture and/or distribute coffee-pots under the

trade marks and/or brand names of “Melior”

and “Chambord”. [Bodum Holding] agrees that

Household [ ] with the limitation mentioned in

the previous sentence outside of the United Kingdom on markets where Household [ ] prior to

signing of this Agreement has proved to [Bodum

Holding] that he is already manufacturing/distributing products can manufacture and distribute

products which, directly or indirectly, do not compete with the business of the Company as run today.

This, too, was unacceptable to Viel Castel. Eventually the

parties signed the final version that we quoted several

pages ago. The lesson is easy to grasp. The initial draft

placed on Household the sort of restriction that Jørgen

Bodum 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).
No. 09-1892 13

The Cour de Cassation (France’s highest civil court)

has concluded that a clear and precise contract must not

be “denatured” by resort to one party’s declaration of

intent. See Jacques H. Herbots, “Interpretation of Contracts” in The Elgar Encyclopedia of Comparative Law 334–35

(2006); Cass. 2e civ., March 8, 2006, Bull. Civ. II, No. 66.

Article 4 of this contract is clear and precise as it

stands; the negotiating history shows that it means what

it says. And we are not the first court to reach this conclusion. 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.

When the facts are undisputed, interpretation of contractual language is a question of law for the judge. See PSI

Energy, Inc. v. Exxon Coal USA, Inc., 17 F.3d 969, 971 (7th

Cir. 1994). Bodum contends that the French preference

for intent over text means that interpretation must be a

question of fact. But in the United States, too, contractual
14 No. 09-1892

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).

If this dispute were proceeding in France, it would not

be submitted to lay jurors (which France does not use) or

even to a judge. It would be submitted to an arbitral

panel of business executives, the International Court of

Commerce in Paris, as Article 18 of the contract provides. Bodum has not asked that this dispute be

arbitrated, in Chicago or Paris, although that might have

been preferable. That the suit depends on a mixture of

U.S. trademark law and French contract law would not

prevent arbitration. See Mitsubishi Motors Corp. v. Soler

Chrysler-Plymouth, Inc., 473 U.S. 614 (1985); Omron

Healthcare, Inc. v. Maclaren Exports Ltd., 28 F.3d 600 (7th

Cir. 1994); Baxter International, Inc. v. Abbott Laboratories,

315 F.3d 829 (7th Cir. 2003). Having chosen to litigate in

Chicago rather than arbitrate in Paris, however, Bodum

must abide by the forum’s procedural doctrines, such as

the allocation of tasks between judge and jury. See

Mayer v. Gary Partners & Co., 29 F.3d 330 (7th Cir. 1994).

Bodum insists that, if the 1991 contract means what we

have concluded it means, the agreement is invalid as a

“naked license” of a trademark. American law forbids

“naked” transfers of trademarks. TMT North America, Inc.

v. Magic Touch GmbH, 124 F.3d 876 (7th Cir. 1997). A

business cannot sell a name divorced from a product,
No. 09-1892 15

because a trademark is significant only to the extent it

helps consumers associate a product with a producer.

But Bodum did not sell a naked trademark to Household.

Before 1991, Martin and Household had allocated rights

to the Chambord design: Martin sold coffee makers

embodying this design in some nations, Household in

others. The 1991 contract continued that division. The

names Chambord and Melior went to Bodum; the

design stayed where it was, and Household promised not

to sell it in France, where in 1991 Martin did about 70%

of its business. No transfer of any rights to Household

occurred; the transfer was from Martin to Bodum, with

a reservation of some existing rights in Household.

People are free to use contracts to allocate rights to products’ designs. See Aronson v. Quick Point Pencil Co., 440

U.S. 257 (1979).

None of the other arguments requires discussion. The

judgment is affirmed.

POSNER, Circuit Judge, concurring. I join the majority

opinion, and write separately merely to express

emphatic support for, and modestly to amplify, the

court’s criticism of a common and authorized but

unsound judicial practice. That is the practice of trying
16 No. 09-1892

to establish the meaning of a law of a foreign country

by testimony or affidavits of expert witnesses, usually

lawyers or law professors, often from the country in

question. For earlier criticism, see Sunstar, Inc. v. AlbertoCulver Co., 586 F.3d 487, 495-96 (7th Cir. 2009).

The contract in this case is in writing and unambiguously entitles the defendant to continue to sell its “Classic” coffee maker in the United States, because, although

it is a product “similar” to the plaintiff’s coffee maker,

only in France is the defendant forbidden to sell

products “similar” to the plaintiff’s products. The plaintiff argues that nevertheless it is entitled to a trial at

which Jørgen Bodum, its principal, would testify that

part of the deal the parties thought they were making,

although it is not reflected in the written contract, was

that the defendant would be barred from selling its

“Classic” coffee maker in the United States because it is

identical rather than merely “similar” to the plaintiff’s

“Chambord” coffee maker. (Yet the plaintiff concedes

in its reply brief that “it may certainly be true that all

identical products are similar.”) The issue of contractual

interpretation is governed by French law.

Rule 44.1 of the Federal Rules of Civil Procedure provides that a federal court, “in determining foreign

law, . . . may consider any relevant material or source,

including testimony, whether or not submitted by a

party or admissible under the Federal Rules of Evidence.” The committee note explains that the court “may

engage in its own research and consider any relevant

material thus found. The court may have at its disposal
No. 09-1892 17

better foreign law materials than counsel have presented, or may wish to reexamine and amplify material

that has been presented by counsel in partisan fashion

or in insufficient detail.” Thus the court doesn’t have to

rely on testimony; and in only a few cases, I believe, is

it justified in doing so. This case is not one of them.

The only evidence of the meaning of French law that

was presented to the district court or is found in the

appellate record is an English translation of brief

excerpts from the French Civil Code and affidavits by

three French law professors (Pierre-Yves Gautier for the

plaintiff and Christophe Caron and Jérôme Huet for the

defendant, with Huet’s affidavit adding little to Caron’s).

The district court did no research of its own, but relied

on the parties’ submissions.

When a court in one state applies the law of another, or

when a federal court applies state law (or a state court

federal law), the court does not permit expert testimony

on the meaning of the “foreign” law that it has to apply.

Sunstar, Inc. v. Alberto-Culver Co., supra, 586 F.3d at 495;

Nationwide Transport Finance v. Cass Information Systems,

Inc., 523 F.3d 1051, 1058-59 (9th Cir. 2008); Montgomery

v. Aetna Casualty & Surety Co., 898 F.2d 1537, 1541 (11th

Cir. 1990); Magee v. Huppin-Fleck, 664 N.E.2d 246, 249

(Ill. App. 1996). This is true even when it’s the law of

Louisiana, see, e.g., Executors of McDonogh v. Murdoch, 56

U.S. (15 How.) 367, 405-06 (1853); Central States, Southeast &

Southwest Areas Pension Fund v. Creative Development Co.,

232 F.3d 406, 417-18 (5th Cir. 2000), which is based to a

significant degree on the Code Napoléon (curiously,
18 No. 09-1892

adopted by Louisiana after the United States acquired

Louisiana from France). Id.; Maher v. City of New Orleans,

371 F. Supp. 653, 657-61 (E.D. La. 1974); Rodolfo Batiza,

“The Louisiana Civil Code of 1808: Its Actual Sources and

Present Relevance,” 46 Tulane L. Rev. 4, 11-12 (1971);

Vernon Valentine Palmer, “The French Connection

and the Spanish Perception: Historical Debates and Contemporary Evaluation of French Influence on Louisiana

Civil Law,” 63 La. L. Rev. 1067, 1072-77 (2003).

Yet if the law to be applied is the law of a foreign country, even a country such as the United Kingdom, Canada,

or Australia in which the official language is English

and the legal system derives from the same source

as ours, namely the English common law, our courts

routinely rely on lawyers’ testimony about the meaning

of the foreign law. See, e.g., Schexnider v. McDermott Int’l,

Inc., 868 F.2d 717, 719 n. 2 (5th Cir. 1989) (per curiam);

Sphere Drake Ins. Ltd. v. All American Life Ins. Co., 221

F. Supp. 2d 874, 884-86 (N.D. Ill. 2002); ID Security

Systems Canada, Inc. v. Checkpoint Systems, Inc., 198 F. Supp.

2d 598, 622-23 (E.D. Pa. 2002). Not only rely but sometimes suggest, incorrectly in light of Rule 44.1, that testimony is required for establishing foreign law. E.g., Interpane

Coatings, Inc. v. Australia & New Zealand Banking Group

Ltd., 732 F. Supp. 909, 917 (N.D. Ill. 1990).

Lawyers who testify to the meaning of foreign law,

whether they are practitioners or professors, are paid for

their testimony and selected on the basis of the convergence of their views with the litigating position of the

client, or their willingness to fall in with the views urged
No. 09-1892 19

upon them by the client. These are the banes of expert

testimony. When the testimony concerns a scientific or

other technical issue, it may be unreasonable to expect

a judge to resolve the issue without the aid of such testimony. But judges are experts on law, and there is an

abundance of published materials, in the form of treatises,

law review articles, statutes, and cases, all in English

(if English is the foreign country’s official language), to

provide neutral illumination of issues of foreign law.

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.

It is only a little less perverse for judges to rely on

testimony to ascertain the law of a country whose official

language is not English, at least if is a major country and

has a modern legal system. Although most Americans are

monolingual, including most judges, there are both

official translations of French statutes into English,

Legifrance, “Codes and Texts,” http://195.83.177.9/code/

index.phtml?lang=uk (visited Aug. 4, 2010), and abundant

secondary material on French law, including French

contract and procedural law, published in English. Barry

Nicholas, The French Law of Contract (2d ed. 1992); Denis

Tallon, “Contract Law,” in Introduction to French Law 205

(George A. Bermann & Etienne Picard eds. 2008); Loïc

Cadiet & Soraya Amrani-Mekki, “Civil Procedure,” in

Introduction to French Law, supra, at 307; Stefan Vogenauer,

“Interpretation of Contracts: Concluding Comparative

Observations,” in Contract Terms 123 (Andrew Burrows &

Edwin Peel eds. 2007); Daniel Soulez Larivière, “Overview
20 No. 09-1892

of the Problems of French Civil Procedure,” 45 Am. J. Comp.

L. 737, 743-44 (1997); James Beardsley, “Proof of Fact in

French Civil Procedure,” 34 Am. J. Comp. L. 459 (1986).

Neither party cited any such material, except translations of statutory provisions; beyond that they relied on

the affidavits of their expert witnesses.

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. It does not justify our judges

in relying on paid witnesses to spoon feed them foreign

law that can be found well explained in Englishlanguage treatises and articles. I do not criticize the

district judge in this case, because he was following the

common practice. But it is a bad practice, followed like

so many legal practices out of habit rather than reflection. It is excusable only when the foreign law is the law

of a country with such an obscure or poorly developed

legal system that there are no secondary materials to

which the judge could turn. The French legal system is

obviously not of that character. The district court could—as

this court did in Abad v. Bayer Corp., 563 F.3d 663, 670-71

(7th Cir. 2009), with respect to the law of Argentina—have

based his interpretation of French contract law on published writings as distinct from paid testimony.

Of course often the most authoritative literature will

be in the language of the foreign country. But often too

there will be official, or reputable unofficial, translations
No. 09-1892 21

and when there are not the parties can have the relevant

portions translated into English. Translations figure

prominently in a variety of cases tried in American

courts, such as drug-trafficking and immigration cases;

why not in cases involving foreign law?

Article 1156 of the French Civil Code—the provision

that the briefs principally discuss—states in its entirety:

“On doit dans les conventions rechercher quelle a été la

commune intention des parties contractantes, plutôt que de

s’arrêter au sens littéral des termes.” In idiomatic English

(the official English version is stilted), this means that in

interpreting a contract one should search for what the

parties’ joint intention was, rather than stopping with

the literal meaning of the contract’s terms. The plaintiff

argues that this means that no matter how clear the

contract appears to be, a party is entitled to present

evidence at trial that the parties intended something else.

“French law,” according to the plaintiff’s opening brief,

“clearly provides that an assessment of the parties’ rights

and obligations under the [contract] must be evaluated

in light of the parties’ mutual intent, regardless of

whether the contract is deemed unambiguous.”

What is true and worth noting is that the civil

law—the law of Continental Europe, as distinct from

Anglo-American law—of contracts places an emphasis

on fault that is not found in the common law. As Holmes

remarked, the common law conceives of contracts as

options—when you sign a contract in which you promise

a specified performance you buy an option to either

perform as promised or pay damages, Oliver Wendell
22 No. 09-1892

Holmes, “The Path of the Law,” 10 Harv. L. Rev. 457, 462

(1897), unless damages are not an adequate remedy in

the particular case. Whether you were at fault in deciding

not to perform—you could have done so but preferred

to pay damages because someone offered you a higher

price for the goods that you’d promised to the other

party to your contract—is therefore irrelevant. 

In the civil law, in contrast, a party is in breach of his

contract and therefore subject to a legal sanction only if

he “could reasonably have been expected to behave in a

different way,” that is, only if he was at fault in failing

to perform. Jürgen Basedow, “Towards a Universal

Doctrine of Breach of Contract: The Impact of the CISG,”

25 Int’l Rev. L. & Econ. 487, 496 (2005) (“the fault principle

is often considered to be an indispensable part of the law

of obligations in civil law countries”); see also Nicholas,

supra, at 200-01; Tallon, supra, at 224-25, 230-31; Richard

Hyland, “Pacta Sunt Servanda: A Meditation,” 34 Va. J. Int’l

L. 405, 429-30 (1994); John Y. Gotanda, “Recovering Lost

Profits in International Disputes,” 36 Georgetown J. Int’l L.

61, 76-77 (2004). The civil law embraces the slogan pacta

sunt servanda—promises are to be obeyed, not commuted

to a price believed to approximate their value. That is

why in the civil law the default remedy for breach of

contract is (though more in principle than in practice)

specific performance rather than damages. Nicholas,

supra, at 211-12; Ronald J. Scalise, Jr., “Why No ‘Efficient

Breach’ in the Civil Law?: A Comparative Assessment

of the Doctrine of Efficient Breach of Contract,” 55 Am. J.

Comp. L. 721, 726-27 (2007); see Tallon, supra, at 233-34;

John P. Dawson, “Specific Performance in France and
No. 09-1892 23

Germany,” 57 Mich. L. Rev. 495, 524-25 (1959). You should

have performed your promise, so the court will order

you to do so.

The common law of contracts evolved from the law

merchant, the civil law of contracts from canon law.

Joseph M. Perillo, “UNIDROIT Principles of International

Commercial Contracts: The Black Letter Text and a Review,” 63 Fordham L. Rev. 281, 308 n. 190 (1994). Priests

do not take promise breaking quite as lightly as businessmen, but on the other hand are not attuned to commercial usages, such as options. Yet despite the difference in origins, differences in outcome under the two

legal regimes are small and shrinking. E.g., Stefan

Grundmann, “The Fault Principle as the Chameleon of

Contract Law: A Market Function Approach,” 107 Mich. L.

Rev. 1583, 1586-91 (2009); Vogenauer, supra, at 149-50;

Wayne R. Barnes, “Contemplating a Civil Law Paradigm

for a Future International Commercial Code,” 65 La. L. Rev.

677, 751-52 (2005); Gotanda, supra, at 63-64; Patricia

Pattison & Daniel Herron, “The Mountains Are High

and the Emperor Is Far Away: Sanctity of Contract in

China,” 40 Am. Bus. L.J. 459, 475 (2003). A difference at

least in tone remains, however, and enables one to see

why French law might, as the plaintiff contends, be

more concerned to determine the parties’ intentions than

American law would be. For if an intention is innocent—a party never intended the promise that he is

now accused of having broken—ascribing fault to him,

viewed as a precondition to finding him guilty of a breach

of contract, is a graver step. Conversely, if the party

did intend the promise but somehow it failed to get
24 No. 09-1892

written down intelligibly, he should not be permitted to

break it by pointing to a writing. Hence the greater

“readiness [of French courts] to have recourse to previous

negotiations and subsequent conduct of the parties” in

interpreting a contract, Vogenauer, supra, at 150—to

conduct a deeper search into subjective understandings.

The civil-law culture is the basis for the plaintiff’s

claim to be entitled to a trial at which to present evidence that its contract with the defendant was intended

to mean something different from what it says. This

claim cannot be derived from Article 1156, which, as the

majority opinion in this case points out, just tells the

court to search for what the parties’ joint intention

was rather than stopping with the literal meaning of the

contract’s terms. That is no different from warnings in

American contract law to be wary of literal interpretations of contracts because such interpretations often are

mistaken. Beanstalk Group, Inc. v. AM General Corp., 283

F.3d 856, 860 (7th Cir. 2002); Rhode Island Charities Trust v.

Engelhard Corp., 267 F.3d 3, 6-7 (1st Cir. 2001); Outlet

Embroidery Co. v. Derwent Mills, 172 N.E. 462, 463 (N.Y.

1930) (Cardozo, C.J.). It is based rather on the greater

willingness (in principle—which will turn out to be

an essential qualification) of a French court than of an

American one to dig deeply for reassurance that it is not

distorting the parties’ intentions by blinding itself to

everything that is not text.

The argument may seem to be supported by the fact

that French law does not have a parol evidence rule

applicable to commercial cases. See French Commercial
No. 09-1892 25

Code, Art. 110-3; CISG-AC [Advisory Council of the

Convention of International Sale of Goods], Opinion No.

3, “Parol Evidence Rule, Plain Meaning Rule, Contractual

Merger Clause and the CISG,” ¶ 1.2.8 (Oct. 23, 2004),

www.cisg.law.pace.edu/cisg/CISG-AC-op3.html (visited

Aug. 6, 2010); Alberto Luis Zuppi, “The Parol Evidence

Rule: A Comparative Study of the Common Law, the Civil

Law Tradition, and Lex Mercatoria,” 35 Ga. J. Int’l & Comp.

L. 233, 258-60 (2007); Arthur T. von Mehren, “Civil-Law

Analogues to Consideration: An Exercise in Comparative

Analysis,” 72 Harv. L. Rev. 1009, 1013 and n. 15 (1959). An

approximation to that rule, and to the related “four corners” rule, Bank v. Truck Ins. Exchange, 51 F.3d 736, 737-

38 (7th Cir. 1995); E. Allan Farnsworth, Contracts § 7.12,

p. 464 (4th ed. 2004), which forbids using extrinsic evidence to contradict an unambiguous written contract, is

found in Article 1341 of the French Civil Code for

ordinary contracts unless very small. (Neither rule is

limited to oral evidence, despite the word “parol,” which

is derived from the French word for “word”; the parol

evidence rule merely excludes extrinsic evidence concerning precontractual negotiations if the written contract was intended to be the parties’ complete agreement,

Utica Mutual Ins. Co. v. Vigo Coal Co., 393 F.3d 707, 713-

14 (7th Cir. 2004); see also Patton v. Mid-Continent Systems,

Inc., 841 F.2d 742, 745-46 (7th Cir. 1988); Farnsworth, supra,

§ 7.2, pp. 414-16).) Article 1341 bars “proof by witnesses”

that is inconsistent with the written contract unless there

is a “commencement of proof in writing”—a writing originating with the defendant that makes it probable that

an alleged fact about the parties’ deal is true. Vogenauer,
26 No. 09-1892

supra, at 135-37; Jacques H. Herbots, “Interpretation

of Contracts,” in Jan M. Smits, The Elgar Encyclopedia of

Comparative Law 325, 337 (2006).

But the limitations on extrinsic evidence in Article 1341

do not apply to commercial contracts, a possible characterization of the contract at issue in this case, though not

an inevitable characterization for reasons explained in

the majority opinion. Article 110-3 of the French Commercial Code provides that “with regard to traders, commercial instruments may be proven by any means unless

the law specifies otherwise” (footnote omitted). And CISGAC Opinion No. 3, supra, states that “though the

French Civil Code . . . incorporates a version of the

Parol Evidence Rule for ordinary contracts, all forms of

proof are generally available against merchants.” See

also United Nations Convention on Contracts for the

International Sale of Goods, art. 11, 52 Fed. Reg. 6262,

6265 (Mar. 2, 1987); Louis F. Del Duca, “Implementation

of Contract Formation Statute of Frauds, Parol Evidence,

and Battle of Forms CISG Provisions in Civil and Common Law Countries,” 38 UCC L.J. 55, 56-57 and n. 3 (2005).

This gap in French commercial law has little practical

significance, however, because it mainly reflects the

fact that civil law systems do not use juries in civil cases.

As a result, their rules on admissibility of evidence

are notably looser than in common law jurisdictions.

Frederick Schauer, “On the Supposed Jury-Dependence

of Evidence Law,” 155 U. Pa. L. Rev. 165, 174-75 (2006);

Kenneth Williams, “Do We Really Need the Federal

Rules of Evidence?,” 74 N. Dak. L. Rev. 1, 21-22 (1998);

Konstantinos D. Kerameus, “A Civilian Lawyer Looks
No. 09-1892 27

at Common Law Procedure,” 47 La. L. Rev. 493, 499-503

(1987). Although technically the parol evidence and fourcorners rules are rules of contract law rather of evidence,

Rossetto v. Pabst Brewing Co., 217 F.3d 539, 546 (7th Cir.

2000); Farnsworth, supra, § 7.2, p. 416, they are strongly

influenced by concern lest trial by jury upset the expectations of contracting parties as embodied in written contracts. AM Int’l Inc. v. Graphic Management Associates, Inc.,

44 F.3d 572, 576 (7th Cir. 1995); Olympia Hotels Corp. v.

Johnson Wax Development Corp., 908 F.2d 1363, 1373 (7th

Cir. 1990); Charles T. McCormick, “The Parol Evidence

Rule as a Procedural Device for Control of the Jury,” 41

Yale L.J. 365 (1932).

Unburdened by juries and tight rules of evidence,

French courts could range further afield than American

courts in search of subjective contractual intentions.

Could—but don’t. As explained in Vogenauer, supra, at

135-36, while “as a general rule, French and German

law do not limit the admissibility of relevant external

materials in the process of interpretation . . . this does not

mean that it is easy for a party to induce a court to rely

on extrinsic evidence in order to ‘add to, vary or contradict a deed or other written instrument.’ On the contrary, civilian systems are acutely aware of the need to

strike a balance between the desire to achieve a

materially ‘right’ outcome on the one hand, and the

struggle for legal certainty on the other. As a consequence,

they are extremely reluctant to admit that the wording of a

contract concluded in writing might be overridden by other

factors. . . . Extrinsic evidence can, however, be used for

the purposes of interpreting a written document that
28 No. 09-1892

contains internal contradictions or is otherwise unclear”

(emphasis added, footnote omitted)—which is also true

of American law, but irrelevant to this case.

Unlike American courts, moreover, “French commercial courts are staffed by members of the business

community, who serve part-time as judges. There is no

requirement that they have legal training. Hearings

before French commercial courts typically last less than

an hour. Witnesses are virtually never heard by the

court. In any case, a French rule of evidence makes evidence originating from any of the parties inadmissible,

which means that no employee of any of the two companies may validly testify.” Gilles Cuniberti, “Beyond

Contract—The Case for Default Arbitration in International Commercial Disputes,” 32 Fordham Int’l L.J. 417,

431-32 (2009) (footnote omitted). “The past continues to

shape the present. This is especially true with respect to

one particularity of the French judicial system which is

rarely evoked—the absence of a jury in civil court proceedings, and the consequences this has on procedure,

which remains 98% written, with no witnesses, no investigations ordered by the judge, and no cross-examination.

The hearing is a sort of ritual, a rigid, immutable show in

which the silent judge, flanked—for the moment at least—

by two colleagues, listens to the ‘pleadings’: an exercise

in solitary eloquence, a lengthy monologue by a lawyer

who blindly and desperately attempts to breathe life

into documents, or even affidavits, which are inert, consigned to paper, embedded in ritual phraseology, and

accompanied by a document proving identity. It is the

absence of any jury which has dictated the entire concept
No. 09-1892 29

of what a civil court hearing should be.” Larivière, supra, at

743-44. “[T]he tendency [in French civil litigation is] to

prefer written proof of ultimate fact—evidence that can be

analyzed on the basis of a writing even though its

origins may be in oral testimony or other more difficult-toappreciate forms of proof.” Beardsley, supra, at 470.

The plaintiff in our case wants to marry French substantive doctrine that might appear to permit a more farranging evidentiary exploration in a contract case to

American trial procedure, which permits a far-ranging

evidentiary exploration in many types of case but not in

cases charging a breach of a clear written contract. The

marriage has produced an ungainly hybrid that corresponds neither to French law nor to American law. It is

true that some foreign legal systems heavily influenced

by the civil codes do use common law procedure—as

does Louisiana. Stephen Goldstein, “The Odd Couple:

Common Law Procedure and Civilian Substantive

Law,” 78 Tul. L. Rev. 291 (2003). These typically are

former code jurisdictions that were conquered, or in the

case of Louisiana bought, by a common law nation such

as Britain or the United States. But they do not do it on

an ad hoc basis, as proposed by our plaintiff; and, so far

as I can discover, they do not, by doing so, deny contracting parties the protection of a clearly written contract.

It is at least as difficult to persuade a French court

(because of its composition and usages) to admit extrinsic

evidence in a contract case as it is to persuade an

American court to do so. See Cuniberti, supra, at 431-32;

Larivière, supra, at 743-44; Beardsley, supra, at 469-70.
30 No. 09-1892

The happenstance that this case has been brought in an

American court must not be allowed to produce a misfit

between substantive and procedural law.

Curiously, one of the defendant’s experts, Professor

Caron, not only cites Article 1156 but asserts that in

interpreting the “common intention of the parties . . .

reference to the negotiations that may have taken

place between the parties should be required.” I don’t

think he means that there is a legal requirement; there

isn’t. I think he means it would be helpful to refer to

the previous negotiations in this case because they support the defendant’s position. Yet in its brief the defendant goes further and says that “Article 1156 simply

requires that a court look beyond the literal meaning of

the terms of an agreement, even where—as here—the

terms of the agreement are plain and unambiguous”

(emphasis added). This is not a correct interpretation

of French law, or even one helpful to the defendant, since

the contract unambiguously supports its position. The

defendant acknowledges, on the basis of what appears

to be its expert’s misunderstanding or misstatement of

French law, that it is not enough that the contract be

unambiguous; the evidence of subjective intention must

also be. Among other things this ignores the following

exception, which is not inapplicable to commercial contracts, to the principle that “judicial interpretation of contracts is considered to entail questions of fact and therefore

be subject to the discretion of the lower courts”: in “cases

in which there has been a distortion (une dénaturation) of

the clear and precise terms of the contract . . ., the court is

deemed to be faced not merely with a question of the
No. 09-1892 31

interpretation of a contract, but rather a refusal to apply

it.” Tallon, supra, at 225; see also Herbots, supra, at 334. It

must not refuse to apply it.

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.

WOOD, Circuit Judge, concurring. While I endorse

without reservation the majority’s reading of the 1991

contract that is at the heart of this case, I write separately

to note my disagreement with the discussion of FED. R.

CIV. P. 44.1 in both the majority opinion, ante at 6-7, and

in Judge Posner’s concurring opinion. Rule 44.1 itself

establishes no hierarchy for sources of foreign law, and

I am unpersuaded by my colleagues’ assertion that

expert testimony is categorically inferior to published,

English-language materials. Exercises in comparative

law are notoriously difficult, because the U.S. reader

is likely to miss nuances in the foreign law, to fail to

appreciate the way in which one branch of the other

country’s law interacts with another, or to assume erroneously that the foreign law mirrors U.S. law when it does

not. As the French might put it more generally, ap-
32 No. 09-1892

parently similar phrases might be faux amis. A simple

example illustrates why two words might be “false

friends.” A speaker of American English will be

familiar with the word “actual,” which is defined in

Webster’s Third New International Dictionary as “existing

in act, . . . existing in fact or reality: really acted or acting

or carried out—contrasted with ideal and hypothetical . . . .”

WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 22

(1993). So, one might say, “This is the actual chair used

by George Washington.” But the word “actuel” in French

means “present” or right now. LE ROBERT & COLLINS

COMPACT PLUS DICTIONNAIRE 7 (5th ed. 2003). A French

person would thus use the term “les événements actuels”

or “actualité” to refer to current events, not to describe

something that really happened either now or in the past.

There will be many times when testimony from an

acknowledged expert in foreign law will be helpful, or

even necessary, to ensure that the U.S. judge is not confronted with a “false friend” or that the U.S. judge understands the full context of the foreign provision. Some

published articles or treatises, written particularly for a

U.S. audience, might perform the same service, but

many will not, even if they are written in English, and

especially if they are translated into English from

another language. It will often be most efficient and

useful for the judge to have before her an expert who

can provide the needed precision on the spot, rather

than have the judge wade through a number of secondary

sources. In practice, the experts produced by the parties

are often the authors of the leading treatises and

scholarly articles in the foreign country anyway. In those
No. 09-1892 33

cases, it is hard to see why the person’s views cannot

be tested in court, to guard against the possibility that

he or she is just a mouthpiece for one party. Prominent

lawyers from the country in question also sometimes

serve as experts. That too is perfectly acceptable in principle, especially if the question requires an understanding

of court procedure in the foreign country. In many

places, the academic branch of the legal profession is

entirely separate from the bar. Academic writings in

such places tend to be highly theoretical and removed

from the day-to-day realities of the practice of law.

To be clear, I have no objection to the use of written

sources of foreign law. Rule 44.1 permits the court to

consider “any relevant material or source, including

testimony, whether or not submitted by a party or admissible under the Federal Rules of Evidence.” The

written sources cited by both of my colleagues throw

useful light on the problem before us in this case, and

both were well within their rights to conduct independent research and to rely on those sources. There is

no need, however, to disparage oral testimony from

experts in the foreign law. That kind of testimony has

been used by responsible lawyers for years, and there

will be many instances in which it is adequate by itself

or it provides a helpful gloss on the literature. The tried

and true methods set forth in FED. R. EVID. 702 for testing

the depth of the witness’s expertise, the facts and other

relevant information on which the witness has relied, and

the quality of the witness’s application of those

principles to the problem at hand, suffice to protect the

court against self-serving experts in foreign law, just as
34 No. 09-1892

they suffice to protect the process for any other kind

of expert.

Finally, my colleagues see no material difference

between a judge’s ability to research the laws of

Louisiana or Puerto Rico and her ability to research

the laws of France, Australia, or Indonesia. With respect,

I cannot agree with them. Like the laws of the other 49

states, the law of Louisiana is based on many sources.

One important such source is the Code Napoléon, but

it is not the only source. Louisiana has legislation on the

usual topics, it is part of the federal system, and its

courts function much like the courts of other states. See,

e.g., Kensie Kim, Mixed Systems in Legal Origins Analysis,

83 S. CAL. L. REV. 693, 720 n.123 (2010) (noting that, though

its civil procedure is in the civil law form, Louisiana’s

criminal procedure has adopted a U.S. common-law

form); William R. Forrester, Jr., New Technology & The

2007 Amendments to the Code of Civil Procedure, 55 LA. BAR

J. 236 (2008) (noting that the 2007 amendments to Louisiana’s civil procedure rules adopt most of the provisions

in the Federal Rules of Civil Procedure for electronically

stored information); Harry J. Haynsworth, The Unified

Business Organizations Code, 29 DEL. J. CORP. L. 83, 101

n.110 (2004) (noting that Louisiana has adopted several

provisions of the Uniform Commercial Code); William R.

Forrester, Jr., Recent Changes to the Code of Civil Procedure, 51 LA. BAR J. 342 (2004) (discussing amendments

to Louisiana’s civil procedure rules governing expert

discovery); David W. Robertson, Summary Judgment and

Burden of Proof, 45 LA. BAR J. 331 (1997) (discussing the

new Louisiana rule on summary judgment and noting
No. 09-1892 35

that it was derived directly from the U.S. Supreme

Court’s decision in Celotex Corp. v. Catrett, 477 U.S. 317

(1986)).

Puerto Rico’s system is somewhat less accessible for

non-Spanish-speaking Americans. Interestingly, one finds

Puerto Rican materials under the “International/Worldwide Materials” database in Westlaw®, not under the

U.S. States database. This is so even though Congress

has expressly defined Puerto Rico as a “state” for purposes of the diversity jurisdiction statute. See 28 U.S.C.

§ 1332(e) (2010). There is no denying the fact, however,

that Puerto Rico is far more integrated into the U.S.

legal system than any foreign country is. Since Puerto

Rico falls within the jurisdiction of the First Circuit, see

28 U.S.C. § 41 (2010), the judges of that court regularly

hear cases implicating Puerto Rican law. Furthermore,

American law has greatly influenced the Puerto Rican

legal system. See, e.g., Harry J. Haynsworth, The Unified

Business Organizations Code, 29 DEL. J. CORP. L. 83, 86

n.32, 87 (2004) (stating that Puerto Rico has adopted

the Delaware General Corporation Law and the Revised

Uniform Partnership Act); Symeon C. Symeonides, Choice

of Law in the American Courts in 1998: Twelfth Annual

Survey, 47 AM. J. COMP. L. 327, 354 (1999) (noting that

Puerto Rican choice-of-law jurisprudence was influenced

by the Second Restatement); Luis E. Rodríguez-Rivera,

Genesis of Puerto Rico’s Environmental Law, 67 REVISTA

JURIDICA UNIVERSIDAD DE PUERTO RICO 201, 209-11 (1998)

(discussing the impact of the American legal tradition

on Puerto Rican law, especially environmental law). As a

practical matter, therefore, the Supreme Court was on

firm ground when it assumed, in the text of Rule 44.1,
36 No. 09-1892

that only the law of a “foreign country” would be subject to the rule’s procedures, not the law of a U.S. state,

territory, or commonwealth.

For these reasons, although I join the majority’s reasoning in all other respects, I do not share their views

about the use of expert testimony to prove foreign law.

I therefore concur in the judgment to that extent.

9-2-10