PUBLISH

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

_______________

No. 97-4250 _______________ D. C. Docket No. 92-2108-CIV

MCC-MARBLE CERAMIC CENTER, INC.,

Plaintiff-Counter-Defendant-Appellant,

versus

CERAMICA NUOVA D'AGOSTINO, S.P.A.,

Defendant-Counter-Claimant-Appellee.

______________________________

Appeal from the United States District Court

for the Southern District of Florida

______________________________

(June 29, 1998)

Before EDMONDSON and BIRCH, Circuit Judges and FAY, Senior Circuit

Judge.
1

 United Nations Convention on Contracts for the

International Sale of Goods, opened for signature April 11, 1980,

S. Treaty Doc. No. 9, 98th Cong., 1st Sess. 22 (1983), 19 I.L.M.

671, reprinted at, 15 U.S.C. app. 52 (1997).

2

BIRCH, Circuit Judge:

This case requires us to determine whether a court must

consider parol evidence in a contract dispute governed by the United

Nations Convention on Contracts for the International Sale of Goods

(“CISG”).1

 The district court granted summary judgment on behalf

of the defendant-appellee, relying on certain terms and provisions

that appeared on the reverse of a pre-printed form contract for the

sale of ceramic tiles. The plaintiff-appellant sought to rely on a

number of affidavits that tended to show both that the parties had

arrived at an oral contract before memorializing their agreement in

writing and that they subjectively intended not to apply the terms on

the reverse of the contract to their agreements. The magistrate

judge held that the affidavits did not raise an issue of material fact

and recommended that the district court grant summary judgment

based on the terms of the contract. The district court agreed with
2

 Since this case is before us on summary judgment, we

consider the facts in the light most favorable to MCC, the nonmoving party, and grant MCC the benefit of every factual inference.

See Welch v. Celotex Corp., 951 F.2d 1235, 1237 (11th Cir. 1992).

3

the magistrate judge's reasoning and entered summary judgment in

the defendant-appellee's favor. We REVERSE.

BACKGROUND

The plaintiff-appellant, MCC-Marble Ceramic, Inc. (“MCC”), is

a Florida corporation engaged in the retail sale of tiles, and the

defendant-appellee, Ceramica Nuova d'Agostino S.p.A.

(“D'Agostino”) is an Italian corporation engaged in the manufacture

of ceramic tiles. In October 1990, MCC's president, Juan Carlos

Mozon, met representatives of D'Agostino at a trade fair in Bologna,

Italy and negotiated an agreement to purchase ceramic tiles from

D'Agostino based on samples he examined at the trade fair.

Monzon, who spoke no Italian, communicated with Gianni Silingardi,

then D'Agostino's commercial director, through a translator,

Gianfranco Copelli, who was himself an agent of D'Agostino.2

 The
4

parties apparently arrived at an oral agreement on the crucial terms

of price, quality, quantity, delivery and payment. The parties then

recorded these terms on one of D'Agostino's standard, pre-printed

order forms and Monzon signed the contract on MCC's behalf.

According to MCC, the parties also entered into a requirements

contract in February 1991, subject to which D'Agostino agreed to

supply MCC with high grade ceramic tile at specific discounts as

long as MCC purchased sufficient quantities of tile. MCC completed

a number of additional order forms requesting tile deliveries

pursuant to that agreement.

MCC brought suit against D'Agostino claiming a breach of the

February 1991 requirements contract when D'Agostino failed to

satisfy orders in April, May, and August of 1991. In addition to other

defenses, D'Agostino responded that it was under no obligation to

fill MCC's orders because MCC had defaulted on payment for

previous shipments. In support of its position, D'Agostino relied on

the pre-printed terms of the contracts that MCC had executed. The
3

 D'Agostino provided the translation of the contract. MCC

has never contested its accuracy.

5

executed forms were printed in Italian and contained terms and

conditions on both the front and reverse. According to an English

translation of the October 1990 contract,3

 the front of the order form

contained the following language directly beneath Monzon's

signature:

[T]he buyer hereby states that he is aware of the sales

conditions stated on the reverse and that he expressly

approves of them with special reference to those

numbered 1-2-3-4-5-6-7-8.

R2-126, Exh. 3 ¶ 5 (“Maselli Aff.”). Clause 6(b), printed on the back

of the form states:

[D]efault or delay in payment within the time agreed upon

gives D'Agostino the right to . . . suspend or cancel the

contract itself and to cancel possible other pending

contracts and the buyer does not have the right to

indemnification or damages.

Id. ¶ 6. 

D'Agostino also brought a number of counterclaims against

MCC, seeking damages for MCC's alleged nonpayment for
4

 Article 50 of the CISG permits a buyer to reduce payment

for nonconforming goods in proportion to the nonconformity under

certain conditions. See CISG, art. 50.

6

deliveries of tile that D'Agostino had made between February 28,

1991 and July 4, 1991. MCC responded that the tile it had received

was of a lower quality than contracted for, and that, pursuant to the

CISG, MCC was entitled to reduce payment in proportion to the

defects.4

 D'Agostino, however, noted that clause 4 on the reverse

of the contract states, in pertinent part:

Possible complaints for defects of the merchandise must

be made in writing by means of a certified letter within and

not later than 10 days after receipt of the merchandise . .

. .

Maselli Aff. ¶ 6. Although there is evidence to support MCC's claims

that it complained about the quality of the deliveries it received, MCC

never submitted any written complaints.

MCC did not dispute these underlying facts before the district

court, but argued that the parties never intended the terms and

conditions printed on the reverse of the order form to apply to their

agreements. As evidence for this assertion, MCC submitted
7

Monzon's affidavit, which claims that MCC had no subjective intent

to be bound by those terms and that D'Agostino was aware of this

intent. MCC also filed affidavits from Silingardi and Copelli,

D'Agostino's representatives at the trade fair, which support

Monzon's claim that the parties subjectively intended not to be

bound by the terms on the reverse of the order form. The magistrate

judge held that the affidavits, even if true, did not raise an issue of

material fact regarding the interpretation or applicability of the terms

of the written contracts and the district court accepted his

recommendation to award summary judgment in D'Agostino's favor.

MCC then filed this timely appeal.

DISCUSSION

We review a district court's grant of summary judgment de novo

and apply the same standards as the district court. See Harris v.

H&W Contracting Co., 102 F.3d 516, 518 (11th Cir. 1996).

Summary judgment is appropriate when the pleadings, depositions,
5

 The United States Senate ratified the CISG in 1986, and the

United States deposited its instrument of ratification at the

United Nations Headquarters in New York on December 11, 1986. See

Preface to Convention, reprinted at 15 U.S.C. app. 52 (1997). The

Convention entered into force between the United States and the

other States Parties, including Italy, on January 1, 1988. See

id.; Filanto S.p.A. v. Chilewich Int'l Corp., 789 F. Supp. 1229,

1237 (S.D.N.Y. 1992).

6

 Article 1 of the CISG states in relevant part:

(1) This Convention applies to contracts of sale of goods

between parties whose places of business are in different

States:

(a) When the States are Contracting States . . . .

CISG, art. 1.

7

 Article 8 provides:

(1) For the purposes of this Convention statements made

by and other conduct of a party are to be interpreted

according to his intent where the other party knew or

8

and affidavits reveal that no genuine issue of material fact exists and

the moving party is entitled to judgment as a matter of law. See

Fed. R. Civ. P. 56(c).

The parties to this case agree that the CISG governs their

dispute because the United States, where MCC has its place of

business, and Italy, where D'Agostino has its place of business, are

both States Party to the Convention.5

 See CISG, art. 1.6 Article 8

of the CISG governs the interpretation of international contracts for

the sale of goods and forms the basis of MCC's appeal from the

district court's grant of summary judgment in D'Agostino's favor.7
could not have been unaware what that intent was.

(2) If the preceding paragraph is not applicable,

statements made by and conduct of a party are to be

interpreted according to the understanding a reasonable

person of the same kind as the other party would have had

in the same circumstances.

(3) In determining the intent of a party or the

understanding a reasonable person would have had, due

consideration is to be given to all relevant

circumstances of the case including the negotiations, any

practices which the parties have established between

themselves, usages and any subsequent conduct of the

parties.

CISG, art. 8.

9

MCC argues that the magistrate judge and the district court

improperly ignored evidence that MCC submitted regarding the

parties' subjective intent when they memorialized the terms of their

agreement on D'Agostino's pre-printed form contract, and that the

magistrate judge erred by applying the parol evidence rule in

derogation of the CISG.

I. Subjective Intent Under the CISG

Contrary to what is familiar practice in United States courts, the

CISG appears to permit a substantial inquiry into the parties'

subjective intent, even if the parties did not engage in any objectively
8

 In the United States, the legislatures, courts, and the

legal academy have voiced a preference for relying on objective

manifestations of the parties' intentions. For example, Article

Two of the Uniform Commercial Code, which most states have enacted

in some form or another to govern contracts for the sale of goods,

is replete with references to standards of commercial

reasonableness. See e.g., U.C.C. § 2-206 (referring to reasonable

means of accepting an offer); see also Lucy v. Zehmer, 196 Va. 493,

503, 84 S.E.2d 516, 522 (1954) (“Whether the writing signed . . .

was the result of a serious offer . . . and a serious acceptance .

. . , or was a serious offer . . . and an acceptance in secret jest

. . . , in either event it constituted a binding contract of sale

between the parties.”). Justice Holmes expressed the philosophy

behind this focus on the objective in forceful terms: “The law has

nothing to do with the actual state of the parties' minds. In

contract, as elsewhere, it must go by externals, and judge parties

by their conduct.” Oliver W. Holmes, The Common Law 242 (Howe ed.

1963) quoted in John O. Honnold, Uniform Law for International

Sales under the 1980 United Nations Convention § 107 at 164 (2d ed.

1991) (hereinafter Honnold, Uniform Law).

10

ascertainable means of registering this intent.8 Article 8(1) of the

CISG instructs courts to interpret the “statements . . . and other

conduct of a party . . . according to his intent” as long as the other

party “knew or could not have been unaware” of that intent. The

plain language of the Convention, therefore, requires an inquiry into

a party's subjective intent as long as the other party to the contract

was aware of that intent.

In this case, MCC has submitted three affidavits that discuss

the purported subjective intent of the parties to the initial agreement

concluded between MCC and D'Agostino in October 1990. All three
9

 MCC makes much of the fact that the written order form is

entirely in Italian and that Monzon, who signed the contract on

MCC's behalf directly below this provision incorporating the terms

on the reverse of the form, neither spoke nor read Italian. This

fact is of no assistance to MCC's position. We find it nothing

short of astounding that an individual, purportedly experienced in

commercial matters, would sign a contract in a foreign language and

expect not to be bound simply because he could not comprehend its

terms. We find nothing in the CISG that might counsel this type of

reckless behavior and nothing that signals any retreat from the

proposition that parties who sign contracts will be bound by them

11

affidavits discuss the preliminary negotiations and report that the

parties arrived at an oral agreement for D'Agostino to supply

quantities of a specific grade of ceramic tile to MCC at an agreed

upon price. The affidavits state that the “oral agreement

established the essential terms of quality, quantity, description of

goods, delivery, price and payment.” See R3-133 ¶ 9 (“Silingardi

Aff.”); R1-51 ¶ 7 (“Copelli Aff.”); R1- 47 ¶ 7 (“Monzon Aff.”). The

affidavits also note that the parties memorialized the terms of their

oral agreement on a standard D'Agostino order form, but all three

affiants contend that the parties subjectively intended not to be

bound by the terms on the reverse of that form despite a provision

directly below the signature line that expressly and specifically

incorporated those terms.9
regardless of whether they have read them or understood them. See

e.g., Samson Plastic Conduit and Pipe Corp. v. Battenfeld

Extrusionstechnik GMBH, 718 F. Supp. 886, 890 (M.D. Ala. 1989) (“A

good and recurring illustration of the problem . . . involves a

person who is . . . unfamiliar with the language in which a

contract is written and who has signed a document which was not

read to him. There is all but unanimous agreement that he is bound

. . . . “)

12

The terms on the reverse of the contract give D'Agostino the

right to suspend or cancel all contracts in the event of a buyer's nonpayment and require a buyer to make a written report of all defects

within ten days. As the magistrate judge's report and

recommendation makes clear, if these terms applied to the

agreements between MCC and D'Agostino, summary judgment

would be appropriate because MCC failed to make any written

complaints about the quality of tile it received and D'Agostino has

established MCC's non-payment of a number of invoices amounting

to $108,389.40 and 102,053,846.00 Italian lira.

Article 8(1) of the CISG requires a court to consider this

evidence of the parties' subjective intent. Contrary to the magistrate

judge's report, which the district court endorsed and adopted, article

8(1) does not focus on interpreting the parties' statements alone.
10 The magistrate judge's report correctly notes that MCC has

not sought an interpretation of those terms, but rather to exclude

them altogether. We agree that such an approach “would render

terms of written contracts virtually meaningless and severely

diminish the reliability of commercial contracts.” R2-102 at 5-6.

13

Although we agree with the magistrate judge's conclusion that no

“interpretation” of the contract's terms could support MCC's

position,10 article 8(1) also requires a court to consider subjective

intent while interpreting the conduct of the parties. The CISG's

language, therefore, requires courts to consider evidence of a party's

subjective intent when signing a contract if the other party to the

contract was aware of that intent at the time. This is precisely the

type of evidence that MCC has provided through the Silingardi,

Copelli, and Monzon affidavits, which discuss not only Monzon's

intent as MCC's representative but also discuss the intent of

D'Agostino's representatives and their knowledge that Monzon did

not intend to agree to the terms on the reverse of the form contract.

This acknowledgment that D'Agostino's representatives were aware

of Monzon's subjective intent puts this case squarely within article
11 Without this crucial acknowledgment, we would interpret the

contract and the parties' actions according to article 8(2), which

directs courts to rely on objective evidence of the parties'

intent. On the facts of this case it seems readily apparent that

MCC's affidavits provide no evidence that Monzon's actions would

have made his alleged subjective intent not to be bound by the

terms of the contract known to “the understanding that a reasonable

person . . . would have had in the same circumstances.” CISG, art

8(2).

12 The Uniform Commercial Code includes a version of the parol

evidence rule applicable to contracts for the sale of goods in most

states:

Terms with respect to which the confirmatory memoranda of

the parties agree or which are otherwise set forth in a

writing intended by the parties as a final expression of

their agreement with respect to such terms as are

included therein may not be contradicted by evidence of

any prior agreement or of a contemporaneous oral

agreement but may be explained or supplemented

14

8(1) of the CISG, and therefore requires the court to consider MCC's

evidence as it interprets the parties' conduct.11

II. Parol Evidence and the CISG

Given our determination that the magistrate judge and the

district court should have considered MCC's affidavits regarding the

parties' subjective intentions, we must address a question of first

impression in this circuit: whether the parol evidence rule, which

bars evidence of an earlier oral contract that contradicts or varies the

terms of a subsequent or contemporaneous written contract,12 plays
(a) by course of dealing or usage of trade . . . or

by course of performance . . . ; and 

(b) by evidence of consistent additional terms

unless the court finds the writing to have been

intended also as a complete and exclusive statement

of the terms of the agreement.

U.C.C. § 2-202.

13 An example demonstrates this point. The CISG provides that

a contract for the sale of goods need not be in writing and that

15

any role in cases involving the CISG. We begin by observing that

the parol evidence rule, contrary to its title, is a substantive rule of

law, not a rule of evidence. See II E. Allen Farnsworth, Farnsworth

on Contracts, § 7.2 at 194 (1990). The rule does not purport to

exclude a particular type of evidence as an “untrustworthy or

undesirable” way of proving a fact, but prevents a litigant from

attempting to show “the fact itself—the fact that the terms of the

agreement are other than those in the writing.” Id. As such, a

federal district court cannot simply apply the parol evidence rule as

a procedural matter—as it might if excluding a particular type of

evidence under the Federal Rules of Evidence, which apply in

federal court regardless of the source of the substantive rule of

decision. Cf. id. § 7.2 at 196.13
the parties may prove the contract “by any means, including

witnesses.” CISG, art. 11. Nevertheless, a party seeking to prove

a contract in such a manner in federal court could not do so in a

way that violated in the rule against hearsay. See Fed. R. Evid.

802 (barring hearsay evidence). A federal district court applies

the Federal Rules of Evidence because these rules are considered

procedural, regardless of the source of the law that governs the

substantive decision. Cf. Farnsworth on Contracts § 7.2 at 196 &

n. 16 (citing cases).

16

The CISG itself contains no express statement on the role of

parol evidence. See Honnold, Uniform Law § 110 at 170. It is clear,

however, that the drafters of the CISG were comfortable with the

concept of permitting parties to rely on oral contracts because they

eschewed any statutes of fraud provision and expressly provided for

the enforcement of oral contracts. Compare CISG, art. 11 (a

contract of sale need not be concluded or evidenced in writing) with

U.C.C. § 2-201 (precluding the enforcement of oral contracts for the

sale of goods involving more than $500). Moreover, article 8(3) of

the CISG expressly directs courts to give “due consideration . . . to

all relevant circumstances of the case including the negotiations . .

.” to determine the intent of the parties. Given article 8(1)'s directive

to use the intent of the parties to interpret their statements and
14 Moreover, the parties have not cited us to any persuasive

authority from the courts of other States Party to the CISG. Our

own research uncovered a promising source for such decisions at

<http://www.cisg.law.pace.edu>, but produced no cases that address

the issue of parol evidence.

17

conduct, article 8(3) is a clear instruction to admit and consider parol

evidence regarding the negotiations to the extent they reveal the

parties' subjective intent. 

Despite the CISG's broad scope, surprisingly few cases have

applied the Convention in the United States,14 see Delchi Carrier

SpA v. Rotorex Corp., 71 F.3d 1024, 1027-28 (2d Cir. 1995)

(observing that “there is virtually no case law under the

Convention”), and only two reported decisions touch upon the parol

evidence rule, both in dicta. One court has concluded, much as we

have above, that the parol evidence rule is not viable in CISG cases

in light of article 8 of the Convention. In Filanto, a district court

addressed the differences between the UCC and the CISG on the

issues of offer and acceptance and the battle of the forms. See 789

F. Supp. at 1238. After engaging in a thorough analysis of how the

CISG applied to the dispute before it, the district court tangentially
15 The Beijing Metals opinion does not state the place of the

defendant's incorporation, but the defendant must have been a

United States corporation because the court noted that the case was

a “diversity action.” Beijing Metals, 993 F.2d at 1183 n.9. Cf.

28 U.S.C. § 1332 (providing no statutory grant for suits between

aliens unless a citizen of a State is present); 15 James W. Moore,

Moore's Federal Practice § 102.77 (3d ed. 1998) (observing that

diversity jurisdiction is not present in suits between two foreign

citizens).

16 The Fifth Circuit unwittingly may have solved the problem

in the very next footnote, where it observed that the agreement

between the parties, which attempted to settle a dispute regarding

an earlier sales contract, was not itself a contract for the sale

of goods and therefore fell outside the Uniform Commercial Code.

Beijing Metals, 993 F.2d at 1183 n.10. See CISG, art. 1(1) (“This

Convention applies to contracts of sale of goods . . . .”)

18

observed that article 8(3) “essentially rejects . . . the parol evidence

rule.” Id. at 1238 n.7. Another court, however, appears to have

arrived at a contrary conclusion. In Beijing Metals & Minerals

Import/Export Corp. v. American Bus. Ctr., Inc., 993 F.2d 1178 (5th

Cir. 1993), a defendant sought to avoid summary judgment on a

contract claim by relying on evidence of contemporaneously

negotiated oral terms that the parties had not included in their written

agreement. The plaintiff, a Chinese corporation, relied on Texas law

in its complaint while the defendant, apparently a Texas

corporation,15 asserted that the CISG governed the dispute. Id. at

1183 n.9. Without resolving the choice of law question,16 the Fifth
(emphasis added).

19

Circuit cited Filanto for the proposition that there have been very few

reported cases applying the CISG in the United States, and stated

that the parol evidence rule would apply regardless of whether

Texas law or the CISG governed the dispute. Beijing Metals, 993

F.2d at 1183 n.9. The opinion does not acknowledge Filanto's more

applicable dictum that the parol evidence rule does not apply to

CISG cases nor does it conduct any analysis of the Convention to

support its conclusion. In fact, the Fifth Circuit did not undertake to

interpret the CISG in a manner that would arrive at a result

consistent with the parol evidence rule but instead explained that it

would apply the rule as developed at Texas common law. See id.

at 1183 n.10. As persuasive authority for this court, the Beijing

Metals opinion is not particularly persuasive on this point.

Our reading of article 8(3) as a rejection of the parol evidence

rule, however, is in accordance with the great weight of academic

commentary on the issue. As one scholar has explained:
17 See also Louis F. Del Duca, et al., Sales Under the Uniform

Commercial Code and the Convention on International Sale of Goods,

173-74 (1993); Henry D. Gabriel, A Primer on the United Nations

Convention on the International Sale of Goods: From the Perspective

of the Uniform Commercial Code, 7 Ind. Int'l & Comp. L. Rev. 279,

281 (1997) (“Subjective intent is given primary consideration . .

. . [Article 8] allows open-ended reliance on parol evidence . . .

.”); Herbert Berstein & Joseph Lookofsky, Understanding the CISG in

Europe 29 (1997) (“[T]he CISG has dispensed with the parol evidence

rule which might otherwise operate to exclude extrinsic evidence

under the law of certain Common Law countries.”); Harry M.

Fletchner, Recent Developments: CISG, 14 J.L. & Com. 153, 157

(1995) (criticizing the Beijing Metals opinion and noting that

“[c]ommentators generally agree that article 8(3) rejects the

approach to the parol evidence questions taken by U.S. domestic

law.”) (collecting authority); John E. Murray, Jr., An Essay on the

Formation of Contracts and Related Matters Under the United Nations

Convention on Contracts for the International Sale of Goods, 8 J.L.

& Com. 11, 12 (1988) (“We are struck by a new world where there is

. . . no parol evidence rule, among other differences.”); Peter

Winship, Domesticating International Commercial Law: Revising

U.C.C. Article 2 in Light of the United Nations Sales Convention,

37 Loy. L. Rev. 43, 57 (1991). 

20

[T]he language of Article 8(3) that “due consideration is to

be given to all relevant circumstances of the case” seems

adequate to override any domestic rule that would bar a

tribunal from considering the relevance of other

agreements. . . . Article 8(3) relieves tribunals from

domestic rules that might bar them from “considering” any

evidence between the parties that is relevant. This added

flexibility for interpretation is consistent with a growing

body of opinion that the “parol evidence rule” has been an

embarrassment for the administration of modern

transactions.

Honnnold, Uniform Law § 110 at 170-71.17 Indeed, only one

commentator has made any serious attempt to reconcile the parol

evidence rule with the CISG. See David H. Moore, Note, The Parol
18 Article 7 of the CISG provides in pertinent part:

(1) In the interpretation of this Convention, regard is

to be had to its international character and to the need

to promote uniformity in its application and the

observance of good faith in international trade.

(2) Questions concerning matters governed by this

Convention which are not expressly settled in it are to

be settled in conformity with the general principles on

which it is based . . . .

CISG, art. 7.

21

Evidence Rule and the United Nations Convention on Contracts for

the International Sale of Goods: Justifying Beijing Metals & Minerals

Import/Export Corp. v. American Business Center, Inc., 1995 BYU

L. Rev. 1347. Moore argues that the parol evidence rule often

permits the admission of evidence discussed in article 8(3), and that

the rule could be an appropriate way to discern what consideration

is “due” under article 8(3) to evidence of a parol nature. Id. at 1361-

63. He also argues that the parol evidence rule, by limiting the

incentive for perjury and pleading prior understandings in bad faith,

promotes good faith and uniformity in the interpretation of contracts

and therefore is in harmony with the principles of the CISG, as

expressed in article 7.18 Id. at 1366-70. The answer to both these

arguments, however, is the same: although jurisdictions in the
22

United States have found the parol evidence rule helpful to promote

good faith and uniformity in contract, as well as an appropriate

answer to the question of how much consideration to give parol

evidence, a wide number of other States Party to the CISG have

rejected the rule in their domestic jurisdictions. One of the primary

factors motivating the negotiation and adoption of the CISG was to

provide parties to international contracts for the sale of goods with

some degree of certainty as to the principles of law that would

govern potential disputes and remove the previous doubt regarding

which party's legal system might otherwise apply. See Letter of

Transmittal from Ronald Reagan, President of the United States, to

the United States Senate, reprinted at 15 U.S.C. app. 70, 71 (1997).

Courts applying the CISG cannot, therefore, upset the parties'

reliance on the Convention by substituting familiar principles of

domestic law when the Convention requires a different result. We

may only achieve the directives of good faith and uniformity in

contracts under the CISG by interpreting and applying the plain
23

language of article 8(3) as written and obeying its directive to

consider this type of parol evidence. 

This is not to say that parties to an international contract for the

sale of goods cannot depend on written contracts or that parol

evidence regarding subjective contractual intent need always

prevent a party relying on a written agreement from securing

summary judgment. To the contrary, most cases will not present a

situation (as exists in this case) in which both parties to the contract

acknowledge a subjective intent not to be bound by the terms of a

pre-printed writing. In most cases, therefore, article 8(2) of the CISG

will apply, and objective evidence will provide the basis for the

court's decision. See Honnold, Uniform Law § 107 at 164-65.

Consequently, a party to a contract governed by the CISG will not be

able to avoid the terms of a contract and force a jury trial simply by

submitting an affidavit which states that he or she did not have the

subjective intent to be bound by the contract's terms. Cf.

Klopfenstein v. Pargeter, 597 F.2d 150, 152 (9th Cir. 1979)
19 See Ronald A. Brand & Harry M. Fletchner, Arbitration and

Contract Formation in International Trade: First Interpretations of

the U.N. Sales Convention, 12 J.L. & Com. 239, 252 (1993) (arguing

that article 8(3) of the CISG will not permit the consideration of

parol evidence when the parties have expressly excluded oral

modifications of the contract pursuant to article 29); see also I

Albert Kritzer, Guide to Practical Applications of the United

Nations Convention on Contracts for the International Sale of Goods

125 (1989) (counseling the use of a merger clause to compensate for

the absence of a parol evidence rule in the CISG).

24

(affirming summary judgment despite the appellant's submission of

his own affidavit regarding his subjective intent: “Undisclosed,

subjective intentions are immaterial in [a] commercial transaction,

especially when contradicted by objective conduct. Thus, the

affidavit has no legal effect even if its averments are accepted as

wholly truthful.”). Moreover, to the extent parties wish to avoid parol

evidence problems they can do so by including a merger clause in

their agreement that extinguishes any and all prior agreements and

understandings not expressed in the writing.19

Considering MCC's affidavits in this case, however, we

conclude that the magistrate judge and the district court improperly

granted summary judgment in favor of D'Agostino. Although the

affidavits are, as D'Agostino observes, relatively conclusory and
20 D'Agostino attempts to explain and undermine the affidavit

of its representatives during the transaction, by calling

Silingardi a “disgruntled” former employee. Appellee's Br. at 11,

39. Silingardi's alleged feelings towards his former employer may

indeed be relevant to undermine the credibility of his assertions,

but that is a matter for the finder of fact, not for this court on

summary judgment.

25

unsupported by facts that would objectively establish MCC's intent

not to be bound by the conditions on the reverse of the form, article

8(1) requires a court to consider evidence of a party's subjective

intent when the other party was aware of it, and the Silingardi and

Copelli affidavits provide that evidence. This is not to say that the

affidavits are conclusive proof of what the parties intended. A

reasonable finder of fact, for example, could disregard testimony that

purportedly sophisticated international merchants signed a contract

without intending to be bound as simply too incredible to believe and

hold MCC to the conditions printed on the reverse of the contract.20

Nevertheless, the affidavits raise an issue of material fact regarding

the parties' intent to incorporate the provisions on the reverse of the

form contract. If the finder of fact determines that the parties did not
21 Article 50, which permits a buyer to reduce payment to a

seller who delivers nonconforming goods, and article 39, which

deprives the buyer of that right if the buyer fails to give the

seller notice specifying the defect in the goods delivered within

a reasonable time, will be of primary importance. Although we may

affirm a district court's grant of summary judgment if it is

correct for any reason, even if not relied upon below, see United

States v. $121,100.00 in United States Currency , 999 F.2d 1503,

1507 (11th Cir. 1993), and the parties have touched upon these

articles in their briefs, they have not provided us with sufficient

information to resolve their dispute under the CISG. MCC's

affidavits indicate that MCC may have complained about the quality

of the tile D'Agostino delivered, but they have provided no

authority regarding what constitutes a reasonable time for such a

complaint in this context. Accordingly, we decline to affirm the

district court's grant of summary judgment on this basis.

26

intend to rely on those provisions, then the more general provisions

of the CISG will govern the outcome of the dispute.21

MCC's affidavits, however, do not discuss all of the

transactions and orders that MCC placed with D'Agostino. Each of

the affidavits discusses the parties' subjective intent surrounding the

initial order MCC placed with D'Agostino in October 1990. The

Copelli affidavit also discusses a February 1991 requirements

contract between the parties and reports that the parties

subjectively did not intend the terms on the reverse of the D'Agostino

order form to apply to that contract either. See Copelli Aff. ¶ 12.

D'Agostino, however, submitted the affidavit of its chairman,
22 The Maselli affidavit claims that at the February 4, 1991

contract contained the terms in question, see Maselli Aff. ¶¶ 5-6,

but MCC argues that at least some of the forms were never

translated into English and, therefore, the record does not reveal

whether the terms appear in all the contracts. We leave the

resolution of these matters to the district court on remand.

27

Vincenzo Maselli, which describes at least three other orders from

MCC on form contracts dated January 15, 1991, April 27, 1991, and

May 4, 1991, in addition to the October 1990 contract. See Maselli

Aff. ¶ 2, 25. MCC's affidavits do not discuss the subjective intent of

the parties to be bound by language in those contracts, and

D'Agostino, therefore, argues that we should affirm summary

judgment to the extent damages can be traced to those order forms.

It is unclear from the record, however, whether all of these contracts

contained the terms that appeared in the October 1990 contract.22

Moreover, because article 8 requires a court to consider any

“practices which the parties have established between themselves,

usages and any subsequent conduct of the parties” in interpreting

contracts, CISG, art. 8(3), whether the parties intended to adhere to

the ten day limit for complaints, as stated on the reverse of the initial
28

contract, will have an impact on whether MCC was bound to adhere

to the limit on subsequent deliveries. Since material issues of fact

remain regarding the interpretation of the remaining contracts

between MCC and D'Agostino, we cannot affirm any portion of the

district court's summary judgment in D'Agostino's favor.

CONCLUSION

MCC asks us to reverse the district court's grant of summary

judgment in favor of D'Agostino. The district court's decision rests

on pre-printed contractual terms and conditions incorporated on the

reverse of a standard order form that MCC's president signed on the

company's behalf. Nevertheless, we conclude that the CISG, which

governs international contracts for the sale of goods, precludes

summary judgment in this case because MCC has raised an issue

of material fact concerning the parties' subjective intent to be bound

by the terms on the reverse of the pre-printed contract. The CISG

also precludes the application of the parol evidence rule, which
29

would otherwise bar the consideration of evidence concerning a

prior or contemporaneously negotiated oral agreement. Accordingly,

we REVERSE the district court's grant of summary judgment and

REMAND this case for further proceedings consistent with this

opinion.