《美国统一商法典》中的违约金

第一节　《美国统一商法典》中的违约金

违约金指买卖双方当事人在订立合同时，当事人在合同中预先约定的违约赔偿数额或计算方法，发生违约行为时，直接按照该条款承担损害赔偿。违约金是一种双方同意的合同条款，因此它是优先于损害赔偿的。按照合同自由原则，当事人有权选择合同的补救方式。而实际上，在现代货物买卖法中，双方的违约金条款更多的是出于效率的考虑，双方当事人在订立合同时确定发生违约情况下的赔偿方式，一旦发生违约行为，违约一方按约定赔偿即可;即使违约方拒绝履行违约金赔偿，法院在审理中也可根据违约金条款作出相对简单的判决。这就可以避免诉讼费用或减少诉讼费用。

英美法认为，违约金条款不能是惩罚性的，属于罚金(penalty)的条款无效。法院可以支持的违约金是双方约定的损害赔偿即“Liquidation of Damages”。统一商法典§ 2－718规定“Damages for breach by either party may be liquidated in the agreement but only at an amount which is reasonable in the light of the anticipated or actual harm caused by the breach，the difficulties of proof of loss，and the inconvenience or nonfeasibility of otherwise obtaining an adequate remedy.A term fixing unreasonably large liquidated damages is void as a penalty”。

同时统一商法典§ 2－719规定“(1)(a)the agreement may provide for remedies in addition to or in substitution for those provided in this Article and may limit or alter the measure of damages recoverable under this Article，as by limiting the buyer's remedies to return of the goods and repayment of the price or to repair and replacement of non-conforming goods or parts;and

(b)resort to a remedy as provided is optional unless the remedy is expressly agreed to be exclusive，in which case it is the sole remedy.

(2)Where circumstances cause an exclusive or limited remedy to fail of its essential purpose，remedy may be had as provided in this Act.

(3)Consequential damages may be limited or excluded unless the limitation or exclusion is unconscionable.Limitation of consequential damages for injury to the person in the case of consumer goods is prima facie unconscionable but limitation of damages where the loss is commercial is not”。

案例38

Cayuga Harvester，

Inc.v.Allis-Chalmers Corp.

95 A.D.2d 5， 465 N.Y.S.2d606 N.Y.A.D.，1983.

Hancock，Jr.，J.P.

Under the Uniform Commercial Code，the parties to a sale may，within certain limitations，allocate the risks of their bargain by limiting the remedy of the buyer(Uniform Commercial Code， § 2－719，subd ［1］，par ［a］)．When，however，a limited remedy such as an exclusive repair andreplacement * 7 warranty fails of its essential purpose，the buyer is relieved of its restrictions and may resort to other remedies as provided in subdivision(2)of section 2－719.The code also permits the parties to agree to exclude consequential damages unless the exclusion is unconscionable(Uniform Commercial Code，§ 2－719，subd ［3］)．Here the contract in issue contains both an exclusive repair and replacement warranty and an exclusion of consequential damages;plaintiff claiming that the limited remedy failed of its essential purpose seeks to recover consequential as well as other damages for breach of warranty.A major question arises from plaintiff's contention that proof of the failure of the limited repair and replacement warranty would free it not only from the restrictions of that clause but also from the clause excluding consequential damages.

The action arises out of the sale of an N－7 harvesting machine manufactured by defendant Allis-Chalmers Corporation(Allis)．Plaintiff，the operator of an extensive corn growing business in Cato，New York，purchased the machine for $ 142 213 from defendant R.C.Church ＆ Sons，Inc.(Church)，a farm machinery dealer，under a written purchase order containing a limited repair and replacement warranty and an exclusion of consequential damages.The balance of the purchase price，after a down payment of $ 36 989.80，was financed through defendant Allis-Chalmers Credit Corporation(Allis Credit)．Plaintiff alleges that the machine did not operate or function properly and that it suffered numerous failures and breakdowns preventing it from making a timely and effective harvest of its 1981 corn crop.

The issues considered concerning various sections of the Uniform Commercial Code are as follows:

“I.A.whether the limited repair and replacement warranty failed of its essential purpose(§ 2－719，subd ［2］);B.if so，whether，despite the failure， the consequential damages exclusion remains in effect;and C.whether the clause excluding consequential damages is unconscionable(§ 2－719，subd ［3］;§ 2－302，subds ［1］，［2］)．”

I.

We consider first the grant of summary judgment dismissing the first two causes of action against Allis alleging breaches of express warranties.In the purchase order under the “Allis-Chalmers New Farm Equipment Warranty”，Allis gave an express warranty limited to the repair or replacement of defective parts in the following provisions which we quote in part:

“WHAT IS WARRANTED

“Allis-Chalmers Corporation(Company)warrants new farm equipment sold by it to be merchantable and free of defects in workmanship and material at the time of shipment from the Company's factory.There are no warranties which extend beyond those expressly stated herein.The warranty is made to the original purchaser or lessee from an authorized Allis-Chalmers Dealer of each item of new Allis-Chalmers farm equipment.

“ 1.Equipment Warranty.Parts which are defective in workmanship and material as delivered will be repaired or replaced as follows...* 10

［There follow several paragraphs detailing the terms and conditions of Allis' obligation to make repairs and replacements and the periods during which the warranty is effective.］

“I.REMEDIES EXCLUSIVE

“The company's liability，whether in contract or in tort，arising out of warranties，representations，instructions，or defects from any cause shall be limited exclusively to repairing or replacing parts under the conditions as aforesaid，and in no event will the company be liable for consequential damages，including but not limited to loss of crops，loss of profits，rental or substitute equipment，or other commercial loss.”

In granting Allis' motions Special Term held that the provision excluding consequential damages in paragraph I，above，was，as a matter of law，not unconscionable under the Uniform Commercial Code(§ 2－719，subd ［3］;§ 2－302，subd ［1］)and that it acted as a total bar to plaintiff's express warranty claims.The court did not find it necessary to reach the issues before us concerning the alleged failure of the essential purpose of the repair and replacement warranty under the Uniform Commercial Code(§ 2－719，subd ［2］)and the effect of that failure on the exclusion of consequential damages.

A.

Ordinarily，whether circumstances have caused a“limited remedy to fail of its essential purpose”(Uniform Commercial Code，§ 2－719，subd ［2］)［FN2］is a question of fact for * 11 the jury and one necessarily to be resolved upon proof of the circumstances occurring after the contract is formed(see Johnson v Deere Co.， 306 NW2d 231，237，238 ［SD］)．It should be noted that in order to establish a failure of a limited remedy under subdivision(2)of section 2－719 it is not necessary to show that the warrantor's conduct in failing to effect repairs was willfully dilatory or even negligent.Rather，the section is to apply “whenever an exclusive remedy，which may have appeared fair and reasonable at the inception of the contract，as a result of later circumstances operates to deprive a party of a substantial benefit of the bargain”(Clark v International Harvester Co.，99 Idaho 326，340;see Uniform Commercial Code，§ 2－719，Comment 1;White ＆ Summers，Handbook of the Law Under the Uniform Commercial Code［2d ed］，§ 12－10)．The damage to the buyer is the same whether the seller diligently but unsuccessfully attempts to honor his promise or acts negligently or in bad faith(see Beal v General Motors Corp.， 354 F Supp 423， 427 ［US Dist Ct，Del， 1973］)．Moreover，a“delay in supplying the remedy can just as effectively deny the purchaser the product he expected as can the total inability to repair.In both instances the buyer loses the substantial benefit of his purchase”(Chatlos Systems v National Cash Register Corp.， 635 F2d 1081， 1085 ［CA3d， 1980］)．Thus，if it is found at trial that plaintiff，because of defendant Allis' failure to repair or replace parts within a reasonable time，has been deprived of a substantial benefit of its bargain，it may prevail even though，as is the case here，there is no claim of bad faith or willfully dilatory conduct and the record demonstrates that defendant made extensive efforts to comply.

The precise question here is whether plaintiff has made a prima facie showing that the limited remedy failed of its essential purpose.On our review of the record we hold that plaintiff has made such a showing and that Special Term was in error in granting summary judgment dismissing the first two causes of action against Allis in their entirety(CPLR 3212，subd ［b］)．Mr.Sheckler，plaintiff's president， states in an affidavit“that the N－7 combine purchased * 12 by plaintiff suffered over 100 mechanical failures and over 100 parts replacements resulting in over 640 actual hours of machine down-time.Because of the inoperability of the N－7 combine a full eight months were required for plaintiff to complete the process of driving the combine over all the acres of corn.”Annexed to plaintiff's affidavits are a detailed log of the numerous machine failures and a lengthy list of warranty claims totaling many thousands of dollars submitted by Church to Allis covering work performed and parts supplied from the delivery of the machine in July of 1981 through February， 1982.

It is settled that a finding that a limited warranty has failed of its essential purpose frees the buyer to pursue his remedies under other provisions of the Uniform Commercial Code as if the clause did not exist(see Wilson ＆ Co.v Smith Int.， 587 F2d 1363 ［CA9th，1978］;County Asphalt v Lewis Welding ＆ Eng.Corp.，323 F Supp 1300，1309 ［US Dist Ct，SDNY，1970］，affd 444 F2d 372 ［CA2d， 1971］，cert den 404 U.S.939;Johnson v Deere Co.，306 NW2d 231，236 ［SD］，supra)．Plaintiff would，therefore，not be precluded by the exclusive remedy clause from recovering under the usual measure of damages in warranty cases;i.e.，“the difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been as warranted”(Uniform Commercial Code，§ 2－714，subd ［2］;see American Elec.Power Co.v Westinghouse Elec.Corp.，418 F Supp 435，457，458 ［US Dist Ct，SDNY，1976］;County Asphalt v Lewis Welding ＆ Eng.Corp.，supra，p 1309;Johnson v Deere Co.，supra，p 236)．［FN3］

The order granting summary judgment to defendant Allis should be reversed to the extent that it dismisses the first and second causes of action in their entirety.

B.

We come next to the legal question whether the consequential damage exclusion in paragraph I would survive a finding that the limited repair and replacement warranty in that paragraph had failed of its essential purpose.We have found no controlling authority on the point in this State，and the numerous decisions in Federal courts and the courts of other States are in conflict.

As we view it，the problem requires a two-step analysis:first，construing paragraph I in its context as one clause in a contract concerning a substantial commercial transaction in order to ascertain the allocation of the risks as intended by the parties;and，second，determining whether that agreed-upon allocation of the risks leaves“at least a fair quantum of remedy for breach of the obligations or duties outlined in the contract”(Uniform Commercial Code，§ 2－719，Comment 1)．Paragraph I states :“The company's liability，whether in contract or in tort，arising out of warranties，representations，instructions，or defects from any cause shall be limited exclusively to repairing or replacing parts under the conditions as aforesaid，and in no event will the company be liable for consequential damages，including but not limited to loss of crops，loss of profits，rental or substitute equipment，or other commercial loss.”

Preliminarily，it may be helpful to set forth two factors which are material to our analysis and，we think，significant:(1)this is not a case involving bad faith or willfully dilatory conduct on the part of the defendant(compare，e.g.，Jones ＆ McKnight Corp.v Birdsboro Corp.， 320 F Supp 39， 43 ［US Dist Ct，ND Ill，1970］;Adams v Case Co.，125 Ill App 2d 388，402);and(2)plaintiff，if it should succeed * 14 in proving that the limited warranty has failed，would，regardless of a contrary ruling on the survivability of the consequential damages exclusion，be permitted to recover damages allowed by subdivision(2)of section 2－714 of the Uniform Commercial Code(see subpart A，supra)．

Plaintiff argues that the promise of defendant to repair and replace defective parts in the first part of paragraph I and the clause exempting defendant from the assessment of consequential damages in the second part are mutually dependent，i.e.，that a failure on the part of defendant to perform its obligations under the first，as a matter of law，deprives it of its exemption under the second part and frees plaintiff from its limitations.Defendant，on the other hand，maintains that the two provisions are unrelated and independent.

In our view defendant has the better of the argument.Certainly，no wording in paragraph 1，itself，indicates that the provisions are interrelated or that the failure of defendant to perform under the repair and replacement warranty deprives it of the protection of the consequential damages exclusion.The purposes of the two clauses are totally discrete:that of the first is to restrict defendant's obligations under the transaction to repairing or replacing defective parts，while that of the second is to rule out a specific type of damage.Each clause stands on its own and may be given effect without regard to the other.Thus，the plain meaning of paragraph I appears to favor defendant.

Nor，given the larger context of paragraph I as one term in a transaction involving the sale of an expensive piece of farm machinery to a large commercial grower，would it be reasonable to give it a different construction.Adopting plaintiff's interpretation，defendant's failure to repair and replace defective parts would，despite its good-faith efforts to fulfill its obligations，subject it to a lawsuit for consequential damages and loss of profits which，in view of the size of plaintiff's operation，could result in a recovery many times the value of the N－7 combine.It defies reason to suppose that defendant could have intended to assume such risks.The contrary construction urged by defendant entails a more plausible allocation of the risks and one that the parties could reasonably have had in mind:i.e.，that a failure * 15 of the repair and replacement warranty，despite defendant's good-faith efforts to comply，would permit plaintiff to recover the ordinary breach of warranty damages(Uniform Commercial Code，§ 2－714，subd ［2］)but not loss of profits or other consequential damages.

We find nothing in the Uniform Commercial Code that rules out defendant's construction.On the contrary， under section 2－719 of the Uniform Commercial Code the “parties are left free to shape their remedies to their particular requirements and reasonable agreements limiting or modifying remedies are to be given effect”(Uniform Commercial Code， § 2－719，Comment 1)，provided that the remedy limitations are not unconscionable and that“there be at least a fair quantum of remedy for breach of the obligations or duties outlined in the contract”(Uniform Commercial Code， § 2－719，Comment 1)．Moreover，subdivision(3)of section 2－719 of the Uniform Commercial Code provides specifically that consequential damages “may be limited or excluded unless the limitation or exclusion is unconscionable.”In a similar vein，Comment 3 to section 2－719 states :“Subsection(3)recognizes the validity of clauses limiting or excluding consequential damages but make it clear that they may not operate in an unconscionable manner.Actually such terms are merely an allocation of unknown or undeterminable risks.The seller in all cases is free to disclaim warranties in the manner provided in Section 2－316”.In sum，plaintiff has offered no good reason why the consequential damage exclusion clause should not be given effect in these circumstances，where the failure of the repair and replacement warranty is not due to bad faith or willfully dilatory conduct.That the clause be given effect here would be an allocation of the risks which leaves the buyer a fair quantum of remedy as required by the code and one that the parties to this commercial contract could reasonably have intended.We conclude，therefore，that if plaintiff succeeds in establishing that the repair and replacement warranty failed of its essential purpose(Uniform Commercial Code，§ 2－719，subd ［2］)，the exclusion of consequential damages provided by paragraph I remains in effect.* 16

As stated，the decisions are in conflict but the proper rule，we think，is that set forth in Chatlos Systems v National Cash Register Corp.(635 F2d 1081，1086 ［CA3d，1980］，supra):“The limited remedy of repair and a consequential damages exclusion are two discrete ways of attempting to limit recovery for breach of warranty...The Code，moreover，tests each by a different standard.The former survives unless it fails of its essential purpose，while the latter is valid unless it is unconscionable.We therefore see no reason to hold，as a general proposition，that the failure of the limited remedy provided in the contract，without more，invalidates a wholly distinct term in the agreement excluding consequential damages.”(Accord American Elec.Power Co.v Westinghouse Elec.Corp.，418 F Supp 435，457，458 ［US Dist Ct，SDNY， 1976］，supra;County Asphalt v Lewis Welding ＆ Eng.Corp.， 323 F Supp 1300，1308 ［US Dist Ct，SDNY，1970］，affd 444 F2d 372 ［CA2d，1971］，cert den 404 U.S.939，supra;see Wilson ＆ Co.v Smith Int.，587 F2d 1363 ［CA9th， 1978］，supra;V-M Corp.v Bernard Distr.Co.， 447 F2d 864 ［CA7th， 1971］;Johnson v Deere Co.， 306 NW2d 231 ［SD］，supra.)

The leading cases cited as supporting the opposite view are Jones ＆McKnight Corp.v Birdsboro Corp.(320 F Supp39 ［* 17 US Dist Ct，ND Ill，1970］，supra)and Adams v Case Co.(125 Ill App 2d 388，supra)(see，also，Koehring Co.v A.P.I.，Inc.， 369 F Supp 882 ［US Dist Ct，ED Mich，1974］;Beal v General Motors Corp.，354 F Supp 423 ［US Dist Ct，Del，1973］，supra;Clark v International Harvester Co.，99 Idaho 326，supra;Ehlers v Chrysler Motor Corp.， 88 SD 612;Goddard v General Motors Corp.，60 Ohio St 2d 41;Murray v Holiday Rambler， 83 Wis 2d 406)．

On analysis，however，neither Jones ＆ McKnight nor Adams(supra)is inconsistent with our holding.Each case involves outright repudiation of the repair and replacement warranty or conduct by the seller that was willfully dilatory.Thus，in Jones ＆ McKnight the court held that the buyer was entitled to assume that the seller “would not be unreasonable or willfully dilatory in making good their warranty in the event of defects in the machinery and equipment”and refused to allow the defendant “to shelter itself behind one segment of the warranty when it has allegedly repudiated and ignored its very limited obligations under another segment of the same warranty”(Jones ＆ McKnight Corp.v Birdsboro Corp.，supra，p 43)．Similarly，in Adams the court， in holding that the repair and replacement warranty and the consequential damages exclusion were “not separable”held that “plaintiff could not have made ［its］bargain and purchase with knowledge that defendant...would be unreasonable，or...willfully dilatory or careless and negligent in making good ［its］warranty in the event of its breach”(Adams v Case Co.，supra，p 402)．［FN4］

We need not decide whether we would follow Jones ＆ McKnight and Adams if plaintiff could contend，as did the buyers * 18 in those cases，that in agreeing to the consequential damages exclusion it never contemplated that defendant would not make good-faith efforts to effect repairs.That issue is not before us.［FN5］

While not all of the cases following the Jones ＆ McKnight and Adams rule involve bad faith or willful repudiation of the repair and replacement warranty，several arise from noncommercial sales where the purchaser was an individual consumer(see，e.g.，Clark v International Harvester Co.，supra;Ehlers v Chrysler Motor Corp.， supra;Goddard v General Motors Corp.， supra;Murray v Holiday Rambler，supra)．Moreover，in Clark v International Harvester Co.(supra)，which entailed a purchase of a tractor by an individual custom farmer，the court points to a factor not present in the case at bar，i.e.，that there“was a significant disparity in bargaining power between the parties in this case”(Clark v International Harvester Co.，supra，p 343)．

Although we hold that plaintiff may not recover consequential damages，it will，if successful at trial，be entitled to other damages(Uniform Commercial Code，§ 2－714，subd ［2］)．The order granting summary judgment should，therefore，be modified to a grant of partial summary judgment dismissing only those elements of the first two causes of action against Allis which seek consequential damages.* 19

Finally， weanalyzeplaintiff'scontentionsthatparagraphIis unconscionable under subdivision(3)of section 2－719 and subdivisions(1)and(2)of section 2－302 ［FN6］of the code.A determination as to the conscionability of a contract relates to the circumstances existing at the time of its formation(Uniform Commercial Code， § 2－302，subd ［1］)．As a practical matter，however，the determination is inevitably made * 20 after a dispute has arisen.Thus，the agreement must be tested as to conscionability as it is applied to the particular breach which has occurred.Here，there is no claim of bad faith or that the failure to repair was willfully dilatory，and we have held that the parties did not intend in paragraph I that defendant's good faith but unsuccessful efforts to repair would negate the consequential damages exclusion.We have also held that such an agreed upon allocation of the risks does not offend the code requirement that there be at least a fair quantum of remedy for breach of defendant's obligations.We must now decide whether this agreed upon allocation of the risks is unconscionable.［FN7］

On this record，in view of the nature of plaintiff's business as a large commercial grower，the size of the transaction involved，the fact that plaintiff had available other sources for purchasing similar equipment，the experience of its president and his familiarity with similar damage exclusion clauses， we agree with Special Term that plaintiff was not put in a bargaining position where it lacked a meaningful choice;nor was the agreement allocating the risk of crop loss and other consequential damages to the plaintiff，provided that good-faith efforts be made to fulfill the repair warranty，unreasonably favorable to the defendant(see Matter of State of New York v Avco Fin.Serv.of N.Y.，50 NY2d 383，supra)．

The significant facts germane to the conscionability issue were essentially undisputed and we hold that Special Term correctly determined，as a legal question，that paragraph I was not unconscionable and properly did so on the affidavits and other documents before it without the aid of a hearing(see Uniform Commercial Code，§ 2－302)．

思考题

1.简述本案基本事实。

2.适用2－719(2)的条件是什么?

3.本案的影响因素是什么?