《美国统一商法典》中的口头证据规则

第一节　《美国统一商法典》中的口头证据规则

口头证据规则，指当两个当事人通过合同用书面形式表达出其最终达成的一致意见时，有关当事人事先的理解和协商的证据，无论是口头的还是其他形式的，都不能补充或修改这一书面文件。统一商法典§ 2－202条明确规定“Final 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”。口头证据规则所排除的外部证据并不是仅限于口头协议，也包括当事人双方在最终协议达成之前书写和交换的信件、电报、备忘录和协议草案等书面证据。但是需要注意的是，这样一个最终的协议“may be explained or supplemented 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”。

在该条款的官方评论中指出， “The operation of this rule depends on the intention of both parties that the terms in a record are the“final expression of their agreement with respect to the included terms”。但是， “Because a record is final for the included terms(an integration)，this does not mean that the parties intended that the record contain all the terms of their agreement(a total integration)．If a record is final but not complete and exclusive，it cannot be contradicted by evidence of prior agreements reflected in a record or prior or contemporaneous oral agreements， but it can be supplemented by other evidence，drawn from any source，of consistent additional terms”。

关于书面证据如果已经完整，官方评论中指出“Whether a writing is final，and whether a final writing is also complete，are issues for the court”。而且“This section rejects any assumption that because a record has been worked out which is final on some matters，it is to be taken as including all the matters agreed upon.If the additional terms are those that，if agreed upon，would certainly have been included in the document in the view of the court，then evidence of their alleged making must be kept from the trier of fact.This section is not intended to suggest what should be the evidentiary strength of a merger clause as evidence of the mutual intent that the record be final and complete.That determination depends upon the particular circumstances of each case”。

案例7

Alaska Northern Development，

Inc.v.Alyeska Pipeline Service Co.

666 P.2d 33 Alaska，1983.

COMPTON，Justice.

Alaska Northern Development，Inc.(“AND”)appeals a judgment in favor of Alyeska Pipeline Service Co.(“Alyeska”)in a dispute involving contract formation and interpretation.For the reasons stated below，we affirm.

I.Factual and Procedural Background

In late October or early November 1976，David Reed，a shareholder and corporate president of AND，initiated discussion with Alyeska personnel in Fairbanks regarding the purchase of surplus parts.The Alyeska employees with whom Reed dealt were Juel Tyson，Clarence Terwilleger and Donald Bruce.

After a series of discussions，Terwilleger indicated that Reed's proposal should be put in writing so it could be submitted to management.With the assistance of AND's legal counsel，Reed prepared a letter of intent dated December 10，1976.In this letter，AND proposed to purchase “the entire Alyeska inventory of Caterpillar parts.”The place for the purchase price was left blank.

Alyeska responded with its own letter of intent dated December 11， 1976.The letter was drafted by Bruce and Tyson in consultation with William Rickett，Alyeska's manager of Contracts and Material Management.Again，the price term was absent.The letter contained the following language，which is the focus of this lawsuit :“Please consider this as said letter of intent，subject to the final approval of the owner committee.”(Emphasis added.)

Reed was given an unsigned draft of the December 11 letter，which was reviewed by AND's legal counsel.Reed then met with Rickett，and they agreed on sixty-five percent of Alyeska's price as the price term to be filled in the blank on the December 11 letter.Rickett filled in the blank as agreed and signed the letter.In March 1977，the owner committee rejected the proposal embodied in the December 11 letter of intent.

AND contends that the parties understood the subject to approval language to mean that the Alyeska owner committee ［FN1］would review the proposed agreement only to determine whether the price was fair and reasonable.Alyeska contends that Reed was never advised of any such limitation on * 36 the authority of the owner committee.In April 1977，AND filed a complaint alleging that there was a contract between AND and Alyeska，which Alyeska breached.The complaint was later amended to include counts for reformation and punitive damages.

Alyeska moved for summary judgment on the punitive damages and breach of contract counts.The superior court granted summary judgment in favor of Alyeska on the punitive damages count.The court initially denied Alyeska's motion for summary judgment on the breach of contract claim;however，based on a review of the case after discovery had closed，the court announced at a hearing on September 26，1980，that it would reverse its earlier ruling and grant Alyeska's motion.The court confirmed this ruling at a hearing on November 5， 1980，after consideration of AND's Motion for Clarification.

The superior court explained its rationale for granting summary judgment against AND on the breach of contract claim as follows.The court recognized that AND predicated its breach of contract claim on the theory that Reed's letter of December 10th was an offer and that Rickett's letter of December 11th was an acceptance of that offer.Viewed in that light，the court addressed “four theoretical possibilities in analyzing the interplay between the December 11th letter and the December 10th letter.”First，the writings could be construed as an offer with a responding promise to pass the offer on to the owner committee，which was responsible for making such determinations.Second，the letters could be construed as an offer and a counteroffer that AND rejected.Third，the letters could be considered as an offer with a responding counteroffer containing，among other things，the unlimited right of the owner committee to review and approve.The court ruled that if the letters were ultimately found to fall into one of these three categories，AND would not prevail，either because the offer embodied in the December 10th letter was never accepted，or because the owner committee never approved the proposal.

The only way in which AND might prevail was on the fourth possibility，i.e.，the letters could be construed as an offer followed by a counteroffer limiting the authority of the owner committee to review only the contract price.The court ruled that AND could not establish a breach of contract claim under the fourth construction of the letters because the parol evidence rule barred the admission of extrinsic evidence that might limit the scope of the owner committee's approval power.［FN2］The only recourse for AND，therefore，was to seek reformation of the December 11th letter that limited the owner committee approval clause.

The case proceeded to trial on the reformation claim.After a six-week trial，the superior court concluded that AND had failed to establish that a specific agreement was not properly reduced to writing and therefore rejected its request to reform the December 11th letter.Attorney's fees were awarded to Alyeska.

On appeal，AND does not challenge the superior court's denial of reformation.Instead，it contends that the superior court erred in granting summary judgment on the breach of contract and punitive damages counts，erred in denying a trial by jury on the reformation count， erred in not permitting cross-examination for purposes of impeachment， and erred in awarding attorney's fees to Alyeska.

II.Application of the Parol Evidence Rule

The superior court held that the parol evidence rule of the Uniform Commercial Code，section 2－202，codified as AS 45.02.202，［FN3］applied to the December 11th letter and * 37 therefore no extrinsic evidence could be presented to a jury which limited the owner committee's right of approval.AND contends that the court erred in applying the parol evidence rule.We disagree.

In order to exclude parol evidence concerning the inclusion of additional terms to a writing，a court must make the following determinations.First，the court must determine whether the writing under scrutiny was integrated，i.e.，intended by the parties as a final expression of their agreement with respect to some or all of the terms included in the writing.Second，the court must determine whether evidence of a prior or contemporaneous agreement contradicts or is inconsistent with the integrated portion.If the evidence is contradictory or inconsistent，it is inadmissible.If it is consistent，it may nevertheless be excluded if the court concludes that the consistent term would necessarily have been included in the writing by the parties if they had intended it to be part of their agreement.AS 45.02.202;Braund，Inc.v.White， 486 P.2d 50， 56(Alaska 1971);U.C.C.§ 2－202 comment 3(1977)．

A.Was the December 11th Letter A Partial Integration?

An integrated writing exists where the parties intend that the writing be a final expression of one or more terms of their agreement.Kupka v.Morey， 541 P.2d 740，747 n.8(Alaska 1975);Restatement(Second)of Contracts § 209(a)(1979)．Whether a writing is integrated is a question of fact to be determined by the court in accordance with all relevant evidence.Restatement(Second)of Contracts § 209 comment c(1979)．

In granting summary judgment on the breach of contract claim，the superior court stated that it had carefully considered all relevant evidence，including oral and written records of all facets of the business deal in question，to arrive at its finding that the agreement was partially integrated.［FN4］After the six-week trial on the reformation issue，the superior court reaffirmed this finding:

It seems to me absolutely conclusive on this evidence， and I'm making this as a finding of fact，that this agreement is partially integrated，and I'm not making it by reference only to the four corners of the writings but reference to all the extrinsic evidence that has been proferred to me，read everybody's deposition，considered in detail all the processes of negotiations，everything that was said and done by everybody as related by them up till the time that Rickett included the language in the letter and turned it over to Reed.So we're not here talking about the for ［sic］corners or ambiguity or anything like that.We're talking about all the extrinsic evidence，meaning on balance to a conclusion more probable than not that this is a partially integrated agreement.

35.The plaintiff initially contends that the letter of December 11，1976(the letter)was not integrated or partially integrated and therefore the court was in error in granting summary judgment in favor of defendant on the contract counts of the plaintiff's complaint on September 26， 1980.

36.After considering the evidence submitted at trial，the court reaffirms its prior conclusion that the letter was integrated as to the Owners Committee's approval clause.

37.The parties intended to write down their discussions in a comprehensive form which allowed Reed to seek financing and allow the primary actors(Tyson，Bruce，Terwilleger，Rickett)to submit the concept embodied by the letter to higher management....

38.There are three subjects upon which plaintiff seeks reformation....As to the first，［limiting the Owner Committee to a consideration of price］which has been plaintiff's primary focus，the court finds that such reference was integrated such that the parole ［sic］evidence rule would bar any inconsistent testimony.Testimony that the owners were limited to“price”in their review is inconsistent.....

41.With respect to the Owners Committee's approval clause，according to the plaintiff's contention the owners were entitled to review the transaction，on whatever basis，only one time.This was testified to by both Mr.Reed and argued by plaintiff in closing....It was also conceded in closing that the review by the owners，on whatever standard，would occur prior to any formal contract being negotiated and executed....This is also consistent with the testimony of each of the participants.

42.In addition，Mr.Reed，in consultation with Ed Merdes and Henry Camarot，his attorneys，tendered the letter of March 4，1977，as a document which could serve as “the contract”....The March 4th letter contains no further reference to the Owners Committee's approval function....Therefore，I find that as to the Owners Committee's approval...the letter of December 11 constitutes an integration or partial integration....This having been established，the analysis outlined by the court on September 26，1980，when granting defendant's motion for summary judgment on the contract claims is applicable.［citations omitted.］

After reviewing the record，we cannot say that this finding of a partial integration was clearly erroneous.

B.Does the Excluded Evidence Contradict the Integrated Terms?

Having found a partial integration，the next determination is whether the excluded evidence contradicts the integrated portion of the writing.Comment b to section 215 of the Restatement(Second)of Contracts is helpful in resolving this issue.［FN5］Comment b states:

An earlier agreement may help the interpretation of a later one，but it may not contradict a binding later integrated agreement.Whether there is a contradiction depends...on whether the two are consistent or inconsistent.This is a question which often cannot be determined from the face of the writing;the writing must first be applied to its subject matter and placed in context.The question is then decided by the court as part of a question of interpretation.Where reasonable people could differ as to the credibility of the evidence offered and the evidence if believed could lead a reasonable person to interpret the writing as claimed by the proponent of the evidence，the question of credibility and the choice among reasonable inferences should be treated as questions of fact.But the asserted meaning must be one to which the language of the writing，read in context，is reasonably susceptible.If no other meaning is reasonable，the court should rule as a matter of law that the meaning is established.

According to Comment b，therefore，a question of interpretation may arise before the contradiction issue can be resolved.If the evidence conflicts，the choice between competing inferences is for the trier of fact to resolve.Alyeska Pipeline Service Co.v.O'Kelley， 645 P.2d 767，771 n.2(Alaska 1982)．The meaning is determined as a matter of law，however，if “the asserted meaning ［is not］one to which the language of the writing，read in context，is reasonably susceptible.”Restatement(Second)of Contracts § 215 comment b(1979)．See also J.Calamari ＆ J.Perillo，The Law of Contracts § § 3－12，3－13(2d ed.1977)．

AND contends that the superior court erred in granting summary judgment because the evidence conflicted as to the meaning of the owner committee approval clause.It concludes that under Alyeska it was entitled to a jury trial on the interpretation issue.Alyeska contends，and the superior court ruled，that a jury trial was inappropriate because，as a matter of law，AND's asserted meaning of the clause at issue was not reasonably susceptible to the language of the writing.The superior court stated:

The Court is making the...ruling that the offer of evidence to show that Rickett's letter really meant to limit owner committee's approval to the price term alone...is not reasonably susceptible—or the writing is not reasonably susceptible to that purpose.And therefore，that extrinsic evidence operates to contradict the writing，not specific words in the writing，but the words in the context of the totality of the writing and the totality of the extrinsic evidence.

We agree that the words used in the December 11th letter are not reasonably susceptible to the interpretation advanced by AND.Therefore，we find no merit to AND's contention that it was entitled to a jury trial on the interpretation issue.

After rejecting the extrinsic evidence for purposes of interpretation，the superior court found AND's offered testimony，that the owner committee's approval power was limited to approval of the price，to be inconsistent with and contradictory to the language used by the negotiators in the December 11th letter.AND contends that the offered testimony did not contradict，but rather explained or supplemented the writing with consistent additional terms.For this contention，AND relies on the standard articulated in Hunt Foods ＆ Industries， Inc.v.Doliner， 26 A.D.2d 41，270 N.Y.S.2d 937(N.Y.App.1966)．In Hunt Foods，the defendant signed an option agreement under which he agreed to sell stock to Hunt Foods at a given price per share.When Hunt Foods attempted to exercise the option，the defendant contended that the option could only be exercised if the defendant had received offers from a third party.The court held that section 2－202 did not bar this evidence from being admitted because it held that the proposed oral condition to the option agreement was not “inconsistent”within the meaning of section 2－202;to be inconsistent ，“the term must contradict or negate a term of the writing.A term or condition which has a lesser effect is provable.”Id.270 N.Y.S.2d at 940.

The narrow view of consistency expressed in Hunt Foods has been criticized.In Snyder v.Herbert Greenbaum ＆ Associates，Inc.， 38 Md.App.144， 380 A.2d 618(Md.App.1977)，the court held that the parol evidence of a contractual right to unilateral rescission was inconsistent with a written agreement for the sale and installation of carpeting.The court defined “inconsistency”as used in section 2－202(b)as“the absence of reasonable harmony in terms of the language and respective obligations of the parties.”Id.380 A.2d at 623(emphasis in original)(citing U.C.C.§ 1－205(4))．Accord:Luria Brothers ＆ Co.v.Pielet Brothers Scrap Iron ＆ Metal，Inc.，600 F.2d 103，111(7th Cir.1979);Southern Concrete Services，Inc.v.Mableton Contractors， Inc.，407 F.Supp.581(N.D.Ga.1975 )， aff'd mem.， 569 F.2d 1154(5th Cir.1978)．

We agree with this view of inconsistency and reject the view expressed in Hunt Foods.［FN6］Under this definition of inconsistency，it is clear that the proffered parol evidence limiting the owner committee's right of final approval to price is inconsistent with the integrated term that unconditionally gives the committee the right to approval.Therefore，the superior court was correct in refusing to admit parol evidence on this issue.

For the foregoing reasons， the judgment of the superior court is AFFIRMED.

思考题

1.简述本案基本事实。

2.适用口头证据的条件是什么?

3.11月11日的意向书是否为部分完整的合同?

4.被告主张的解释是否与整体合同的条款相抵触?

5.Hunt Foods案的规则是否应当适用，为什么?