《美国统一商法典》中的合同解释

第二节　《美国统一商法典》中的合同解释

根据口头证据规则，合同当事人一旦签订完书面合同，所有签约前达成的或签约后达成的口头或书面协议，都不能修改或补充书面文件。但是，与口头或书面协议不同，双方在诉讼中可以引用交易过程、行业惯例、履约过程等证据对合同条款加以解释或补充。因为统一商法典2－202规定“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”但是“but may be explained or supplemented:(a)by course of performance，course of dealing，or usage of trade”。

由此可见，《美国统一商法典》对于合同的解释采用了较为开放的观点，即使合同已经完整，但只要合同的明示条款没有明确排除行业惯例、交易过程、履约过程等的适用，行业惯例、交易过程、履约过程的内容不与明示条款相抵触，其就可以用来对合同条款进行解释和补充。

案例8

Columbia Nitrogen Corp.v.Royster Co.

451 F.2d 3 C.A.4， 1971

BUTZNER，Circuit Judge:

Columbia Nitrogen Corp.appeals a judgment in the amount of $750 000 in favor of F.S.Royster Guano Co.for breach of a contract for the sale of phosphate to Columbia by Royster.Columbia defended on the grounds that the contract，construed in light of the usage of the trade and course of dealing，imposed no duty to accept at the quoted prices the minimum quantities stated in the contract.It also asserted an antitrust defense and counterclaim based on Royster's alleged reciprocal trade practices.［FN1］The district court excluded the evidence about course of dealing and usage of the trade.It submitted the antitrust issues based on coercive reciprocity to the jury，but refused to submit the alternative theory of non-coercive reciprocity.The jury found for Royster on both the contract claim and the antitrust counterclaim.We hold that Columbia's proffered evidence was improperly excluded and Columbia is entitled to a new trial on the contractual issues.With respect to the antitrust issues，we affirm.

I.

Royster manufactures and markets mixed fertilizers， the principal components of which are nitrogen， phosphate and potash.Columbia is primarily a producer of nitrogen，although it manufactures some mixed fertilizer.For several years Royster had been a major purchaser of Columbia's products，but Columbia had never been a significant customer of Royster.In the fall of 1966，Royster constructed a facility which enabled it to produce more phosphate than it needed in its own operations.After extensive negotiations，the companies executed a contract for Royster's sale of a minimum of 31 000 tons of phosphate each year for three years to Columbia，with an option to extend the term.The contract stated the price per ton，subject to an escalation clause dependent on production costs.

Phosphate prices soon plunged precipitously.Unable to resell the phosphate at a competitive price，Columbia ordered only part of the scheduled tonnage.At Columbia's request，Royster lowered its price for diammonium phosphate on shipments for three months in 1967， but specified that subsequent shipments would be at the original contract price.Even with this concession，Royster's price was still substantially above the market.As a result，Columbia ordered less than a tenth of the phosphate Royster was to ship in the first contract year.When pressed by Royster，Columbia offered to take the phosphate at the current market price and resell it without brokerage fee.Royster，however，insisted on the contract price.When Columbia refused delivery，Royster sold the unaccepted phosphate for Columbia's account at a price substantially below the contract price.

II.

Columbia assigns error to the pretrial ruling of the district court excluding all evidence on usage of the trade and course of dealing between the parties.It offered the testimony of witnesses with long experience in the trade that because of uncertain crop and weather conditions，farming practices，and government agricultural programs， express price and quantity terms in contracts for materials in the mixed fertilizer industry are mere projections to be adjusted according to market forces.

Columbia also offered proof of its business dealings with Royster over the six-year period preceding the phosphate contract.Since Columbia had not been a significant purchaser of Royster's products，these dealings were almost exclusively nitrogen sales to Royster or exchanges of stock carried in inventory.The pattern which emerges，Columbia claimed，is one of repeated and substantial deviation from the stated amount or price，including four instances where Royster took none of the goods for which it had contracted.Columbia offered proof that the total variance amounted to more than $500 000 in reduced sales.This experience，a Columbia officer offered to testify，formed the basis of an understanding on which he depended in conducting negotiations with Royster.

The district court held that the evidence should be excluded.It ruled that“custom and usage or course of dealing are not admissible to contradict the express，plain，unambiguous language of a valid written contract，which by virtue of its detail negates the proposition that the contract is open to variances in its terms.”

A number of Virginia cases have held that extrinsic evidence may not be received to explain or supplement a written contract unless the court finds the writing is ambiguous.E.g.，Mathieson Alkali Works v.Virginia Banner Coal Corp.， 147 Va.125， 136 S.E.673(1927)．This rule，however，has been changed by the Uniform Commercial Code which Virginia has adopted.The Code expressly states that it “shall be liberally construed and applied to promote its underlying purposes and policies， ”which include “the continued expansion of commercial practices through custom，usage and agreement of the parties .”Va.Code Ann.§8.1－102(1965)．The importance of usage of trade and course of dealing between the parties is shown by §8.2－202， ［FN4］which * 9 authorizes their use to explain or supplement a contract.The official comment states this section rejects the old rule that evidence of course of dealing or usage of trade can be introduced only when the contract is ambiguous.［FN5］And the Virginia commentators，noting that“this section reflects a more liberal approach to the introduction of parol evidence than has been followed in Virginia， ”express the opinion that Mathieson， supra， and similar Virginia cases no longer should be followed.Va.Code Ann.§ 8.2－202，Va.Comment.See also Portsmouth Gas Co.v.Shebar，209 Va.250，253 n.1， 163 S.E.2d 205， 208 n.1(1968)(dictum)．We hold，therefore，that a finding of ambiguity is not necessary for the admission of extrinsic evidence about the usage of the trade and the parties' course of dealing.

We turn next to Royster's claim that Columbia's evidence was properly excluded because it was inconsistent with the express terms of their agreement.There can be no doubt that the Uniform Commercial Code restates the well established rule that evidence of usage of trade and course of dealing should be excluded whenever it cannot be reasonably construed as consistent with the terms of the contract.Division of Triple T Service，Inc.v.Mobil Oil Corp.，60 Misc.2d 720，304 N.Y.S.2d 191，203(1969)，aff'd mem.，311 N.Y.S.2d 961(1970)．Royster argues that the evidence should be excluded as inconsistent because the contract contains detailed provisions regarding the base price， escalation， minimum tonnage， and delivery schedules.The argument is based on the premise that because a contract appears on its face to be complete，evidence of course of dealing and usage of trade should be excluded.We believe，however，that neither the language nor the policy of the Code supports such a broad exclusionary rule.Section 8.2－202 expressly allows evidence of course of dealing or usage of trade to explain or supplement terms intended by the parties as a final expression of their agreement.［FN6］When this section is read in light of Va.Code Ann.§ 8.1－205(4)，［FN7］it is clear that the test of admissibility is not whether the contract appears on its face to be complete in every detail，but whether the proffered evidence of course of dealing and trade usage reasonably can be construed as consistent with the express terms of the agreement.

The proffered testimony sought to establish that because of changing weather conditions，farming practices，and government agricultural programs，dealers adjusted prices，quantities，and delivery schedules to reflect declining market conditions.For the following reasons it is reasonable to construe this evidence as consistent with the express terms of the contract:

The contract does not expressly state that course of dealing and usage of trade cannot be used to explain or supplement the written contract.

The contract is silent about adjusting prices and quantities to reflect a declining market.It neither permits nor prohibits * 10 adjustment，and this neutrality provides a fitting occasion for recourse to usage of trade and prior dealing to supplement the contract and explain its terms.

Minimum tonnages and additional quantities are expressed in terms of “Products Supplied Under Contract.”Significantly，they are not expressed as just“Products”or as“Products Purchased Under Contract.”The description used by the parties is consistent with the proffered testimony.

Finally，the default clause of the contract refers only to the failure of the buyer to pay for delivered phosphate.［FN8］During the contract negotiations，Columbia rejected a Royster proposal for liquidated damages of $ 10 for each ton Columbia declined to accept.On the other hand，Royster rejected a Columbia proposal for a clause that tied the price to the market by obligating Royster to conform its price to offers Columbia received from other phosphate producers.The parties，having rejected both proposals，failed to state any consequences of Columbia's refusal to take delivery—the kind of default Royster alleges in this case.Royster insists that we span this hiatus by applying the general law of contracts permitting recovery of damages upon the buyer's refusal to take delivery according to the written provisions of the contract.This solution is not what the Uniform Commercial Code prescribes.Before allowing damages，a court must first determine whether the buyer has in fact defaulted.It must do this by supplementing and explaining the agreement with evidence of trade usage and course of dealing that is consistent with the contract's express terms.Va.Code Ann.§ §8.1－205(4)，8.2－202.Faithful adherence to this mandate reflects the reality of the marketplace and avoids the overly legalistic interpretations which the Code seeks to abolish.

Royster also contends that Columbia's proffered testimony was properly rejected because it dealt with mutual willingness of buyer and seller to adjust contract terms to the market.Columbia，Royster protests，seeks unilateral adjustment.This argument misses the point.What Columbia seeks to show is a practice of mutual adjustments so prevalent in the industry and in prior dealings between the parties that it formed a part of the agreement governing this transaction.It is not insisting on a unilateral right to modify the contract.

Nor can we accept Royster's contention that the testimony should be excluded under the contract clause:

“No verbal understanding will be recognized by either party hereto;this contract expresses all the terms and conditions of the agreement，shall be signed in duplicate， and shall not become operative until approved in writing by the Seller.”

Course of dealing and trade usage are not synonymous with verbal understandings，terms and conditions.Section 8.2－202 draws a distinction between supplementing a written contract by consistent additional terms and supplementing it by course of dealing or usage of trade.［FN9］Evidence of additional terms must be excluded when “the court finds the writing to have been intended also as a complete and exclusive statement of the terms of the agreement.”Significantly，no similar limitation is placed on the introduction of evidence of course of dealing or usage of trade.Indeed the official comment notes that course of dealing and usage of trade，unless carefully negated，are admissible to supplement the terms of any writing，and that contracts are to be read on the assumption that these elements were taken for granted when the document was * 11 phrased.［FN10］Since the Code assigns course of dealing and trade usage unique and important roles，they should not be conclusively rejected by reading them into stereotyped language that makes no specific reference to them.Cf.Provident Tradesmens Bank ＆ Trust Co.v.Pemberton，196 Pa.Super.180，173 A.2d 780(1961)．Indeed，the Code's official commentators urge that overly simplistic and overly legalistic interpretation of a contract should be shunned.

We conclude，therefore，that Columbia's evidence about course of dealing and usage of trade should have been admitted.Its exclusion requires that the judgment against Columbia must be set aside and the case retried.

*　*　*

思考题

1.简述本案基本事实。

2.Columbia公司要求调整价格的依据是什么?

3.Royster反驳不应接受价格调整的相关证据的理由是什么?

4.普通法与UCC对于口头证据规则的规定有何不同?

5.UCC对于引用交易过程和行业惯例的限制是什么?

6.本合同中的integrated clause的效果是什么?

案例9

Southern Concrete Services，

Inc.v.Mableton Contractors，Inc.

407 F.Supp.581.D.C.Ga.1975.

This is a diversity action in which plaintiff seller seeks to recover lost profits and out-of-pocket expenses from defendant buyer for buyer's alleged breach of contract.The case is currently before the court on plaintiff's motion for a ruling on the admissibility of certain evidence.

In September 1972 the parties entered into a contract for the sale of concrete for use in the construction of the building foundation of a power plant near Carrollton，Georgia.The contract stipulated that plaintiff was to supply “approximately 70 000 cubic yards”of concrete from September 1，1972 to June 15， 1973.The price to be paid for such concrete was $ 19.60 per cubic yard.The contract further stipulated that “No conditions which are not incorporated in this contract will be recognized.”During the time period involved defendant ordered only 12 542 cubic yards of concrete，that being the total amount needed by the defendant for its construction work.The plaintiff has brought this action to recover the profits lost by defendant's alleged breach and the costs plaintiff incurred in purchasing and delivering over $ 20 000 in raw materials to the jobsite.

The defendant claims that the written contract must be interpreted both in light of the custom of the trade and in light of additional terms allegedly intended by the parties.Defendant contends that under such custom and additional terms，it was understood that the quantity stipulated in the contract was not mandatory upon either of the parties and that both quantity and price were understood to be subject to renegotiation.It is this evidence of custom in the trade and of additional conditions allegedly agreed to by the parties that defendant seeks to introduce at trial.

In support of its position，defendant relies upon Georgia Code Ann.s 109A－2－202(U.C.C.s 2－202)which provides that a written contract may be explained or supplemented“by a course of dealing or usage of trade”and by evidence of “consistent additional terms.”This section was meant to liberalize the common law parol evidence * 583 rule to allow evidence of agreements outside the contract，without a prerequisite finding that the contract was ambiguous.In addition，the section requires contracts to be interpreted in light of the commercial context in which they were written and not by the rules of legal construction.See Draftsmen's Comment to U.C.C.s 2－202，Warren's Kiddie Shoppe，Inc.v.Casual Slacks，Inc.，120 Ga.App.578，171 S.E.2d 643(1969)．

The question then becomes what is meant by the term “explained or supplemented”;does defendant's evidence “explain”the contract or does it attempt to“contradict”it? The court will examine this question with regard to the trade usage issue first，and then deal with the“additional terms”question.

I.

In the official comment to U.C.C.s 2－202，the draftsmen emphasize that contracts are to be interpreted with the assumption that the usages of trade “were taken for granted when the document was phrased.Unless carefully negated they have become an element of the meaning of the words used， ”Comment No.2.In Columbia Nitrogen Corp.v.Royster Co.，451 F.2d 3(4th Cir.1971)，the court was faced with a contract similar to the one in the instant case.The contract provided for the sale of at least 31 000 tons of phosphate each year for three years at a stated price，subject to an escalation clause dependent on production costs.The buyer bought less than one-tenth the minimum amount contracted for in the first year and the seller brought suit.The defendant offered to introduce evidence showing that contracts of the type involved were meant to be mere projections of price and quantity due to the rapid fluctuation in demand in the fertilizer industry.The defendant buyer also sought to introduce evidence of prior dealings between the parties in which the plaintiff，as buyer，often failed to purchase the entire amount contracted from defendant.Since the contract was silent on the subject of adjusting prices and quantities to reflect a declining market，and since it did “not expressly state that course of dealing and usage of trade cannot be used to explain or supplement the written contract”，the court allowed the evidence to be admitted.451 F.2d at 9， 10.

There are， however， certain important differences between Royster and the case at hand.In Royster，the court noted that the contract default clause dealt only with the buyer's failure to pay for delivered phosphate，thus raising the possibility that the contract was not meant to require the buyer to accept the entire contract amount.In addition，the court was faced with a situation where the equities were strongly in favor of the defendant.In previous dealings between the parties，the defendant had apparently never insisted on purchase of the entire contract amount by plaintiff.Now that plaintiff was the seller it was insisting on strict compliance with the literal terms of the contract.The plaintiff also enjoyed the protection of an escalation clause in the contract which allowed it to raise prices to compensate for increased production costs，while plaintiff refused to allow the defendant to renegotiate for a lower price to reflect market conditions.Thus the court in Royster faced a situation in which one party may have been trying to take unfair advantage of a long-standing customer.

Such a situation is not present in this case，however，and this court has grave doubts about applying the reasoning of Royster to different fact situations.Here，no prior dealings are alleged by either party;the contract by its terms does not intimate that the buyer would only be liable for concrete actually delivered，and the contract does not contain provisions granting one party special repricing rights.Instead，the contract sets out fairly specific quantity，* 584 price，and time specifications.To allow such specific contracts to be challenged by extrinsic evidence might jeopardize the certainty of the contractual duties which parties have a right to rely on.Certainly customs of the trade should be relevant to the interpretation of certain terms of a contract，see Warren's Kiddie Shoppe，supra，and should be considered in determining what variation in specifications is considered acceptable，see Modine Manufacturing Co.v.Northeast Ind.School District，503 S.W.2d 833(Texas Ct.of Civ.App.1973)(where the court allowed a 6% deviation in cooling capacity of an air-conditioning system since such deviation was acceptable in the trade)， but this court does not believe that section 2－202 was meant to invite a frontal assault on the essential terms of a clear and explicit contract.

The type of evidence which the Royster decision might allow and which the defendant here undoubtedly wishes to introduce would probably show that very few contracts specifying quantity and price in a particular industry have been strictly enforced.(See，e.g.，Royster，supra，at 7－8，n.3.)While in some industries it may be virtually impossible to predict future needs under a contract，in other industries，such contracts may not be strictly adhered to for entirely different reasons.Lawsuits are costly and they do not facilitate good business relations with customers.A party to a contract may very much prefer to work out a renegotiation of a contract rather than rest on its strict legal rights.Yet，the supplier or purchaser knows that he may resort to those enforceable contract rights if necessary.If the courts were to conclude that this reluctance to enforce legal rights resulted in an industry-wide waiver of such rights，then contracts would lose their utility as a means of assigning the risks of the market.The defendant here may be correct in its assertion that contracts for the sale of concrete are often subject to renegotiation，but that fact alone does not convince the court that the parties here did not contemplate placing on the buyer the risk of variation in quantity needs.

The court recognizes that all ambiguity as to the applicability of trade usage could be eliminated by a blanket condition that the express terms of the contract are in no way to be modified by custom，usage，or prior dealings.Indeed，the Royster court found the absence of such a clause to be a determinative factor in allowing in extrinsic evidence.This court，however，is reluctant to encourage the use of yet another standard boilerplate provision in commercial contracts.If such a clause is necessary to preserve the very essence of a contract，then the purposes of the Code will be quickly frustrated.Consideration of commercial custom is an important aid in the interpretation of the terms of a contract，but parties will have no choice but to foreclose the use of such an aid if the inevitable result of such consideration is to have explicit contracts negated by an evidentiary free-for-all.

Although the official comments suggest that parties which do not want trade usage to apply should so stipulate in the contract(Comment 2 to s 2－202)，that provision could not have been meant to allow the full-scale attack on the contract suggested here.The more reasonable approach is to assume that specifications as to quantity and price are intended to be observed by the parties and that the unilateral right to make a major departure from such specifications must be expressly agreed to in the written contract.That way，the courts will still be free to apply custom and trade usage in interpreting terms of the contract without raising apprehension in the commercial world as to the continued reliability of those contracts.Such an approach is consistent with the * 585 underlying purposes of the Uniform Commercial Code，which dictates that the express terms of a contract and trade usage shall be construed as consistent with each other only when such construction is reasonable.A construction which negates the express terms of the contract by allowing unilateral abandonment of its specifications is patently unreasonable.

II.

The defendant also claims that section 2－202 allows the introduction of evidence of additional terms of the agreement between the parties.Those terms presumably called for price renegotiation and contained an understanding that the quantity quoted in the contract was intended only as an estimate.The court suspects，however，that the defendant is attempting to use section 2－202(b)as merely an alternative vehicle to get in evidence as to trade usage.The defendant does not specify in its brief the terms of the alleged extrinsic agreement and does not indicate whether it was oral or written，prior or contemporaneous.Rather，the defendant merely tags its 202(b)request on its trade usage claim as an apparent afterthought.But even if this court assumes that defendant will attempt to show additional terms of the contract，such evidence would be inadmissible.Section 2－202 requires that written contracts“not be contradicted”by evidence of agreements outside of the written contract，but that they may be explained or supplemented by evidence of “consistent additional terms”if the court finds the contract was not meant to be the complete statement of the agreement.

Whether or not the contract in issue was meant to be complete in itself，it is clear that the additional terms sought to be proved are not consistent with it.The type of evidence which may be admitted under subsection(b)deals with agreements covering matters not dealt with in the written contract.

The court is aware that at least one court has favored a broader construction of s 2－202，holding that evidence of a contemporaneous oral agreement to provide up to 500 tons of steel was consistent with a written provision in the contract stipulating delivery of 500 tons.Schiavone ＆ Sons，Inc.v.Securally Co.， Inc.， 312 F.Supp.801(D.Conn.1970)．That court explained:In making this determination，it must be borne in mind that to be inconsistent with the terms must contradict or negate a term of the written agreement;and a term which has a lesser effect is deemed to be a consistent term.312 F.Supp.804.

This court respectfully disagrees with the above reasoning;for the buyer who wished to obtain all 500 tons，and who had to cover his requirements elsewhere，the term “up to 500”tons was clearly inconsistent with the contract.Similarly，a hypothetical agreement between * 586 the instant parties that quantity and price terms were to be mere estimates is inconsistent with the written contract.

Finally，the contract at issue specified that conditions not incorporated in the contract would not be recognized.In contrast，in Schiavone，supra，the court noted the absence of such a clause in finding the parol evidence admissible.The presence of such a clause here further convinces the court that the writing was intended to be the“complete and exclusive statement”of the terms of the agreement，Ga.Code Ann.s 109A－2－202(b)．

The court therefore concludes that the evidence sought to be introduced by the defendant is inadmissible at trial.

思考题

1.简述本案的基本事实。

2.被告公司的主张是什么?

3.本案规则与Columbia案的区别是什么?

4.评论两规则的优劣。