Making Commercial Law: Essays in Honour of Roy Goode

BORIS KOZOLCHYK

Roy Goode is a scholar's scholar and a gentleman's gentleman. Rarely have devotion to truth, learning, and humaneness blended so well and so wittily. I consider myself fortunate to be his friend and for having shared common research interests for approximately three decades. In 1989, we discussed his justly famous study on formal abstract promises.¹ He and Eric Bergsten had just finished another pathbreaking study on electronic commerce² in which he found that despite their economic significance, many of these transactions lacked legislative, administrative, or judicial approval. He asked me whether I agreed with him that it was custom that made these trade association transactions binding. I did and suggested that it was still unclear to me why some trade association and national customs had become internationally binding while others had not. I told him that my comparative study on fairness in commercial adjudication suggested an explanation: only those customs that embodied, as a minimum, what I had described as a market-place standard of fairness could become internationally accepted.³ Market-place fairness required that each party to a transaction treat the other as any regular participant in that transaction in the market in question would want to be treated when viewing his own advantage.⁴

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