## Facts

- A Korean company contracted with U.S. polysilicon manufacturers for multiple deliveries intended for resale in Asian markets.
- The buyer alleged the seller induced it to enter supply contracts while lacking a present intent to perform and later diverted product to other customers as market prices increased.
- The seller denied fraudulent intent and characterized the dispute as a contract-performance and market-volatility issue.
- The parties disputed whether the United Nations Convention on Contracts for the International Sale of Goods (CISG) governed the contracts and whether the buyer had effectively excluded the CISG.
- The seller submitted materials (including expert testimony) under Federal Rule of Civil Procedure 44.1 supporting CISG applicability; the buyer sought to exclude that expert evidence.
- On summary judgment, the seller sought judgment against the fraud and unjust-enrichment theories; the buyer sought partial summary judgment and rulings limiting the CISG-related evidence and arguments.

## Issues

1. Whether evidence beyond nonperformance created a triable issue that the seller, at contract formation, misrepresented an intent to perform (fraud scienter).
2. Whether unjust enrichment was barred because written contracts governed the same subject matter, or could survive for benefits not fully controlled by enforceable contract terms.
3. Whether the CISG applied by default to the parties’ international sales contracts and whether the parties effectively excluded it.
4. Whether expert testimony and other sources offered under Rule 44.1 could be considered to determine and apply the CISG, and what limits applied to prevent experts from stating the law.

## Decision

- The court denied the seller’s motion for summary judgment on the fraud claim, holding a reasonable jury could infer lack of intent to perform at the time of contracting.
- The court granted in part and denied in part summary judgment on unjust enrichment, allowing the theory to remain only to the extent it addressed alleged benefits not conclusively governed by the written contracts.
- The court held the CISG governed the parties’ sales contracts because both parties were in contracting states and the agreements did not effectively opt out of the CISG.
- The court denied, in significant part, the buyer’s effort to exclude the seller’s CISG expert, permitting expert assistance on CISG interpretation and application subject to trial management.
- The court declined to resolve multiple contract-interpretation disputes on summary judgment due to genuine issues concerning contract language, course of dealing, and intent.

## Legal Principles

- A fraud claim based on promises of future performance requires proof that, when the promise was made, the promisor had a then-present intent not to perform; nonperformance alone is insufficient, but surrounding circumstances and contemporaneous evidence may support an inference of fraudulent intent.
- Unjust enrichment is generally unavailable when an enforceable contract governs the same subject matter, but may proceed where the record does not conclusively show the alleged benefit is fully covered by contract terms or transactions.
- The CISG applies by default to contracts for the sale of goods between parties located in different CISG contracting states unless the parties clearly exclude the CISG.
- Under Rule 44.1, courts may consider any relevant sources, including expert testimony, to determine treaty/foreign law; experts may assist with interpretation and commercial practice, but may not displace the court’s role in stating the law.
- Contract interpretation under the CISG may require consideration of negotiations, subsequent conduct, and trade usage, often creating fact questions not suited to summary judgment.

## Conclusion

The court treated the CISG as the governing law for the parties’ international polysilicon sales contracts, allowed the fraud claim to proceed based on evidence permitting an inference of intent not to perform at formation, and limited (but did not eliminate) unjust-enrichment relief to alleged benefits not conclusively controlled by the written contracts while permitting CISG-focused expert assistance subject to judicial control.


Semi-Materials Co. v. MEMC Elec. Materials, Inc., No. 4:06-cv-00674, 2011 WL 134062 (E.D. Mo. Jan. 10, 2011)