《美国统一商法典》中的供给需求合同和价格待定合同

第一节　《美国统一商法典》中的供给需求合同和价格待定合同

在货物买卖当中，在特别情况下，卖方和买方协议成交的数量不能在订立合同时确定。比如，买方作为农场无法确定在每一具体年度中实际需要化肥的数量，因为这可能会与天气和气候的变化密切相关。再比如，矿山与经销公司签订的经销合同中，无法确定在某一年中的具体产量。因此，可以在合同中仅将数量条款与卖方或买方的实际产量或需求挂钩，作为确定数量的方式。而实际成交的数量以最终实际产量或需求为准，这一类合同为供给需求合同。统一商法典2－306中对于供给需求合同的定义和规定是“A term which measures the quantity by the output of the seller or the requirements of the buyer means such actual output or requirements as may occur in good faith，except that no quantity unreasonably disproportionate to any stated estimate or in the absence of a stated estimate to any normal or otherwise comparable prior output or requirements may be tendered or demanded”。

在另一些情况下，由于货物的价格通常会出现剧烈的波动，而买卖双方都不愿意承担从合同签订到实际交货之间这段时间的价格变动风险。因而双方在合同当中并不确定固定的合同价格，而仅是规定了价格确定的方式，比如以交货之日某交易所的价格为准。统一商法典2－305规定的确定价格的方式是:“The parties if they so intend can conclude a contract for sale even though the price is not settled.In such a case the price is a reasonable price at the time for delivery if

(a)nothing is said as to price;or

(b)the price is left to be agreed by the parties and they fail to agree;or

(c)the price is to be fixed in terms of some agreed market or other standard as set or recorded by a third person or agency and it is not so set or recorded.

(2)A price to be fixed by the seller or by the buyer means a price for him to fix in good faith.

(3)When a price left to be fixed otherwise than by agreement of the parties fails to be fixed through fault of one party the other may at his option treat the contract as cancelled or himself fix a reasonable price.

(4)Where，however，the parties intend not to be bound unless the price be fixed or agreed and it is not fixed or agreed there is no contract.In such a case the buyer must return any goods already received or if unable so to do must pay their reasonable value at the time of delivery and the seller must return any portion of the price paid on account.

案例12

Orange ＆ Rockland Utilities，

Inc.v.Amerada Hess Corp.

59 A.D.2d 110 N.Y.A.D.，1977.

Margett，J.

This action，for damages as a result of an alleged breach of a requirements contract，raises related but distinctly separate issues as to whether the plaintiff buyer's requirements occurred in good faith and whether those requirements were unreasonably disproportionate to the estimates stated in the contract.

In a fuel oil supply contract executed in early December， 1969，defendant Amerada Hess Corporation(Hess)agreed to supply the requirements of plaintiff Orange and Rockland Utilities，Inc.(O ＆ R)at plaintiff's Lovett generating plant in Tompkins Cove，New York.A fixed price of $ 2.14 per barrel for No.6 fuel oil， with a sulphur content of 1% or less， was to continue at least through September 30， 1974， with the price subject to renegotiation at that time.Estimates of the amounts required by plaintiff were included in the contract clause entitled“Quantity”.Insofar as those estimates are relevant to the instant controversy，they were as follows:

1970 1 750 000 barrels

1971 1 380 000 barrels

1972 1 500 000 barrels

1973 1 500 000 barrels

The estimates had been prepared by plaintiff on December 30， 1968，as part of a five-year budget projection.The estimates anticipated that gas would be the primary fuel used for generation during the period in question.［FN1］This was a result of the lower cost of gas and of the fact that gas became readily available for power generation during the warmer months of the year as a result of decreased use by gas customers.Plaintiff expressly reserved its right to burn as much gas at it chose by the inclusion，in the “Quantity”provision of the requirements contract，of a clause to the effect that“nothing * 112 herein shall preclude the use by Buyer of...natural gas in such quantities as may be or become available”.

Within five months of the execution of the requirements contract，the price of fuel oil began to ascend rapidly.On April 24， 1970 the market price of the oil supplied to plaintiff stood at between $ 2.65 and $ 2.73 per barrel.On May 1，1970 the price was in excess of $ 3 per barrel.The rise continued and was in excess of $ 3.50 per barrel by mid-August，and more than $ 4 per barrel by the end of October，1970.By March，1971 the lowest market price was $ 4.30 per barrel—more than double the price set forth in the subject contract.

Coincident with the earliest of these increases in the cost of oil，O ＆ R proceeded to notify Hess，on four separate dates，of increases in the fuel oil requirements estimates for the year.By letter dated April 16，1970，O ＆ R notified Hess that it was expected that over 1 460 000 barrels of oil would be consumed over the period April-December，1970.Since well over 600 000 barrels of oil had been consumed during the first three months of the year， the total increase anticipated at that time was well in excess of 300 000 barrels over the estimate given in the contract.

Eight days later，by letter dated April 24，1970，O ＆ R furnished Hess with a revised estimate for the period May through December，1970.The figure given was nearly 1 580 000 barrels which，when combined with quantities which had already been delivered or were in the process of delivery during the month of April，exceeded the contract estimate by over 700 000 barrels—a 40% increase.

The following month the estimates were again increased—this time to nearly one million barrels above the contract estimate.Hess was so notified by letter dated May 22， 1970.Finally，a letter dated June 19， 1970 indicated a revised estimate of more than one million barrels in excess of the 1 750 000 barrels mentioned in the contract;an increase of about 63%.

On May 22，1970，the date of the third of the revised estimates，representatives of the two companies met to discuss the increased demands.At that meeting O ＆ R's president allegedly attributed the increased need for oil to the fact that O ＆ R could make more money selling gas than burning it for power generation.Hess refused to meet the revised requirements，but offered to supply the amount of the contract estimate for the year 1970，plus an additional 10%.

The June 19， 1970 letter referred to above recited that the Hess position was“wholly unacceptable”to O ＆ R.It attributed the vastly increased estimates to(a)an inability to burn as much natural gas as had been planned and(b)the fact that O ＆ R had been “required”to meet higher electrical demands on its “own system ”and to furnish “more electricity to interconnected systems”than had been anticipated.

Thereafter，for the remainder of 1970，Hess continued to supply the amount of the contract estimates plus 10%.A proposal by Hess，in October，1970，to modify the existing contract by setting minimum and maximum quantities，and by setting a price keyed to market prices，was ignored by O ＆R.Although the proposed modification set a price 65 cents lower than the market price，it was more advantageous for O ＆ R to insist on delivery of the estimated amounts in the December，1969 contract(at $ 2.14 per barrel)and to purchase additional amounts required at the full market price.

During the remainder of the contract period Hess continued to deliver quantities approximately equal to the estimates stated in the subject contract.O ＆ R purchased additional oil for its Lovett plant from other suppliers.The contract between Hess and O ＆ R terminated one year prematurely by reason of an environmental regulation which took effect on October 1，1973 and which necessarily curtailed the use of No.6 fuel oil with a sulphur content as high as 1% .During the period 1971 through September，1973 O ＆ R consistently used more than double its contract estimates of oil at Lovett.

This action was commenced in mid-1972.O ＆ R's complaint seeks damages consisting of the difference between its costs for fuel oil during the period in question and the cost it would have incurred had Hess delivered the total amount used by O ＆ R at the fixed contract price of $ 2.14 per barrel.The trial was conducted in September，1975 before Mr.Justice Donohoe，sitting without a jury.In an opinion dated March 8，1976，Trial Term held that plaintiff should be denied any recovery on the ground that its requirements were not incurred in good * 114 faith.Specifically，Trial Term found that plaintiff's greatly increased oil consumption was due primarily to(a)increases in sales of electricity to other utilities and(b)a net shift from other fuels，primarily gas，to oil.The former factor was condemned on the premise that“indirectly，O ＆ R called upon Hess to supply the demands for electricity to the members of the ［New York Power］Pool.O ＆ R then shared the savings in the cost of fuel with the other members of the Pool”.The latter factor was not elaborated on to any great degree.Trial Term did，however，infer that O ＆ R seized “the opportunity to release its reserve commitment of gas”and thereby reaped very substantial profits.

Although Trial Term stated in its opinion that one of the questions before it was whether plaintiff's demands were unreasonably disproportionate to the estimates set forth in the contract，it failed to reach this question in the light of its conclusion that plaintiff had failed to act in good faith.Plaintiff contends on this appeal(1)that Trial Term's finding of an absence of good faith is unsupported by the record and(2)that since its requirements for the entire term of the contract were less than twice total contract estimates，its demands were not “unreasonably disproportionate”as a matter of law.We reject both contentions upon the facts of this case and affirm Trial Term's dismissal of the complaint.

It is noted at the outset that the parties agreed， pursuant to their contract，that New Jersey law should apply.The governing statute is subdivision(1)of section 2－306 of the Uniform Commercial Code，which provides，in relevant part :“A term which measures the quantity ［to be supplied by a seller to a purchaser of goods］by the...requirements of the buyer means such actual...requirements as may occur in good faith，except that no quantity unreasonably disproportionate to any stated estimate or in the absence of a stated estimate to any normal or otherwise comparable prior...requirements may be...demanded”(NJ Stat Ann，12A:2－306，subd ［1］;matter in brackets added)．

There is，as Trial Term observed，a good deal of pre-code case law on the requirement of“good faith”.It is well settled that a buyer in a rising market cannot use a fixed price in a requirements contract for speculation(New York Cent.Iron Works Co.v United States Radiator Co.，174 NY 331，335－336;Asahel Wheeler Co.v Mendleson， 180 App Div 9，12;see Moore v American Molasses Co.，106 Misc 263)．Nor can a * 115 buyer arbitrarily and unilaterally change certain conditions prevailing at the time of the contract so as to take advantage of market conditions at the seller's expense(Andrews Coal Co.v Board of Directors of Public Schools，Parish of Orleans， 151 La 695)．

There is no judicial precedent with respect to the meaning of the term “unreasonably disproportionate”which appears in subdivision(1)of section 2－306 of the Uniform Commercial Code.Obviously this language is not the equivalent of“lack of good faith”—it is an elementary rule of construction that effect must be given，if possible，to every word，clause and sentence of a statute(2A Sutherland，Statutory Construction ［4th ed］， § 46.06;Rainbow Inn v Clayton Nat.Bank，86 NJ Super 13;see McKinney's Cons Laws of NY，Book 1，Statutes， § 231)．The phrase is keyed to stated estimates or，if there be none，to “normal or otherwise comparable prior”requirements.While “reasonable elasticity”is contemplated by the section(see Official Comment，par 2 to Uniform Commercial Code，§ 2－306)，an agreed estimate shows a clear limit on the intended elasticity，similar to that found in a contract containing minimum and maximum requirements(see Official Comment，par 2 to Uniform Commercial Code， § 2－306)．The estimate“is to be regarded as a center around which the parties intend the variation to occur”(supra)．

The limitation imposed by the term “unreasonably disproportionate”represents a departure from prior case law，wherein estimates were generally treated as having been made simply for the convenience of the parties and of no operative significance(Note，Requirements Contracts under the Uniform Commercial Code，102 U Pa L Rev 654，660－661;Note，Requirements Contracts:Problems of Drafting and Construction，78 Harv L Rev 1212，1218;cf.Shader Contrs.v United States， 276 F2d 1)．It is salutary in that it insures that the expectations of the parties will be more fully realized in spite of unexpected and fortuitous market conditions(see Note，Requirements Contracts under the Uniform Commercial Code， 102 U Pa L Rev 654，666－667，supra)．Thus，even where one party acts with complete good faith，the section limits the other party's risk in accordance with the reasonable expectations of the parties.

It would be unwise to attempt to define the phrase “unreasonably disproportionate”in terms of rigid quantities.In order that the limitation contemplated by the section take effect，it * 116 is not enough that a demand for requirements be disproportionate to the stated estimate;it must be unreasonably so in view of the expectation of the parties.A number of factors should be taken into account in the event a buyer's requirements greatly exceed the contract estimate.These include the following:(1)the amount by which the requirements exceed the contract estimate;(2)whether the seller had any reasonable basis on which to forecast or anticipate the requested increase(see City of Lakeland，Florida v Union Oil Co.of Cal.，352 F Supp 758;but，cf.Waddell v Phillips，133 Md 497);(3)the amount，if any，by which the market price of the goods in question exceeded the contract price;(4)whether such an increase in market price was itself fortuitous;and(5)the reason for the increase in requirements.

Turning once again to the facts of the instant case，we conclude that，at least as to the year in which this controversy first arose，there was ample evidence to justify a finding of lack of good faith on plaintiff's part.Even through the thicket of divergent and contrasting figures entered into exhibit at trial，the following picture emerges:nonfirm sales ［FN3］from plaintiff's Lovett plant，presumably in large part to the New York Power Pool，increased nearly sixfold from 67 867 megawatt hours in 1969 to 390 017 megawatt hours in 1970.The significance of that increase in nonfirm sales lies in the fact that such sales did not enter into the budget calculations which formed the basis of the estimates included in the contract.Even assuming that a prudent seller of oil could anticipate some additional requirements generated by nonfirm sales，an increase of the magnitude which occurred in 1970 is unforeseeable.That increase， of 322 150 megawatt hours，translates into the equivalent of over 500 000 barrels of oil.［FN4］The conclusion is inescapable that this dramatic change in plaintiff's relationship with the New York Power Pool came about as a result of the subject requirements contract，which insured it a steady flow of cheap oil despite swiftly rising prices.［FN5］O ＆ R's * 117 use of the subject contract to suddenly and dramatically propel itself into the position of a large seller of power to other utilities evidences a lack of good faith dealing.

In addition to this massive increase in sales of power to other utilities，the evidence indicates that at about the time O ＆ R was demanding roughly one million barrels of oil in excess of the 1970 contract estimate， there was an internal O ＆ R proposal to release gas to a supplier which represented the equivalent of 542 000 barrels of oil.An internal O ＆ R memorandum dated May 26， 1970(four days after the meeting at which Hess refused to supply the one million additional barrels demanded)recommended that in view of the Hess position，the proposed release be canceled.Significantly，O ＆ R never did burn as much oil as had been demanded in May and June， 1970.Its total usage for the year was 2 294 845 barrels—471 155 barrels less than its maximum demand.This was explained，by O ＆ R officials，in part，on the ground that their“gas department”had made a“pessimistic estimate”which did not turn out to be quite true.

Thus it appears that in May，1970 Hess refused an O ＆ R demand of roughly one million barrels in excess of the contract estimate，which demand was occasioned by greatly increased sales to other utilities and a proposed release of gas which might otherwise normally have been burned for power generation.The former factor is tantamount to making the other utilities in the State silent partners to the contract(cf.* 118 City of Lakeland，Florida v Union Oil Co.of Cal.，352 F Supp 758，supra)，while the latter factor amounts to a unilateral and arbitrary change in the conditions prevailing at the time of the contract so as to take advantage of market conditions at the seller's expense(Andrews Coal Co.v Board of Directors of Public Schools，Parish of Orleans，151 La 695，supra)．Hess was therefore justified in 1970 in refusing to meet plaintiff's demands，by reason of the fact that plaintiff's “requirements”were not incurred in good faith.

With respect to subsequent years however，the record is ambiguous as to the cause of plaintiff's drastically increased requirements.Nonfirm sales from Lovett actually declined slightly in 1971 and 1972 although they were still greatly in excess of 1969 sales.［FN8］If one takes 1969 as a base year，increased nonfirm sales from Lovett in 1971 amounted to the equivalent of about one-half million barrels of oil，［FN9］while in 1972 they amounted to the equivalent of just over 300 000 barrels.［FN10］Comparable figures for 1973 are impossible to arrive at with any degree of confidence because sales figures in the record are for the full year，while defendant's obligation to supply oil extended through only three quarters of the year.* 119 In any event，it is apparent that O ＆ R's tremendously expanded use of oil during the period subsequent to 1970 cannot be explained solely by reference to increased sales to other utilities.In 1971 oil use exceeded the contract estimate by over 1 750 000 barrels;the 1972 figure was in excess of 1 825 000 barrels;and for the first nine months of 1973 the increase was more than 1 275 000 barrels.

It appears that a large portion of the difference between actual use and contract estimates during this period can be attributed to a rather large decline in plaintiff's “actual take”of gas as opposed to the estimates of gas availability which were made in 1968(and which were used in the computation of the December 30，1968 budget)．This decline，with the equivalent figure in barrels of oil，［FN12］was as follows:

ESTIMATE(MCF)ACTUAL TAKE(MCF)DECREASEEQUIV.BARRELS OF OIL

1971　　　　40 615 000　　　34 518 000　　　6 097 000　　　1 016 167

1972　　　　43 661 000　　　36 274 000　　　7 387 000　　　1 231 167

1973(9mos)　34 034 700　　　25 783 000　　　8 251 700　　　1 375 283

Even allowing for the fact that O ＆ R's actual system requirements were slightly lower during this period than the estimated system requirements(thus theoretically leaving more gas available for electric generation)，it is clear that the decline from the estimates in gas received by O ＆ R was a very major factor in plaintiff's increased use of oil during this period.

The record is unclear as to why this decline came about.Plaintiff introduced into evidence a Public Service Commission memorandum which indicates that gas supplies available to interstate transmission companies had become extremely tight.However plaintiff failed to call one witness who was expert in its gas operations and who could testify as to the link， if any， between this general shortage and plaintiff's operations.While an unfavorable inference may be drawn when a party fails to produce evidence which is within his control and which he is naturally expected to produce(2 Wigmore，Evidence ［3d ed］， § 285;Bayer v Farrell，69 NJ Super 347;see，also，Richardson，Evidence ［Prince，10th ed］，* 120 § 92)，we decline to speculate as to causes of the decline in gas received by plaintiff.In any event，such speculation is not necessary for resolution of this appeal.

We hold that under the circumstances of this case，any demand ［FN13］by plaintiff for more than double its contract estimates， was， as a matter of law，“unreasonably disproportionate”(Uniform Commercial Code，§ 2－306，subd ［1］)to those estimates.We do not adopt the factor of more than double the contract estimates as any sort of an inflexible yardstick.［FN14］Rather，we apply those standards set forth earlier in this opinion，which are calculated to limit a party's risk in accordance with the reasonable expectations of the parties.

Here，as noted，plaintiff's requirements during the period 1971 through September，1973，were more than double the contract estimates.Defendant had no reasonable basis on which to forecast or anticipate an increase of this magnitude.Indeed the contract suggests the parties contemplated that any variations from the estimate would be on the downside—else why did plaintiff expressly reserve for itself the right to burn as much as it chose? The market price of the grade of oil supplied had more than doubled by March，1971.It stayed at or above $ 4 per barrel for the rest of the applicable period and had reached nearly $ 5 per barrel by the end of September，1973.The record is silent as to whether defendant had any reason to anticipate this enormous increase in oil prices.Finally，the increase in requirements was due in part to plaintiff's increased sales to other utilities and also due to a significant decline in anticipated deliveries of gas，the cause of which was inadequately explained by plaintiff.The quantities of oil utilized by plaintiff during the period subsequent to 1970 were not within the reasonable expectations of the parties when the contract was executed， and accordingly we hold that those “requirements”were unreasonably disproportionate to the contract estimates(see Uniform Commercial Code，§ 2－306，subd ［1］)．* 121

Hopkins，J.P.，Martuscello and O'Connop，JJ.，concur.

思考题

1.简述本案基本事实。

2.初审法院的意见是什么?

3.上诉理由是什么?

4.法官适用的法律规则是什么?

5.原告的行为是否构成bad faith?

6.原告所要求的数量是否构成unreasonable disproportionate?

案例13

TCP Industries，Inc.v.Uniroyal，Inc.

661 F.2d 542 C.A.Mich.， 1981.

CORNELIA G.KENNEDY，Circuit Judge.

TCP Industries，Inc.(TCP)filed this breach of contract action against Uniroyal，Inc.(Uniroyal)to recover profits lost when Uniroyal refused to purchase butadiene pursuant to an April1，1974contract.Uniroyal counterclaimed seeking damages from TCP and Donald C.Fresne(Fresne)，its president and principal shareholder，for fraud，breach of an earlier 1970 contract，and breach of the 1974 contract.The jury returned a verdict for TCP in the amount of $ 1 045 650 and judgments of no cause of action on Uniroyal's three counterclaims.Uniroyal appeals.The parties agree that the Uniform Commercial Code applies.They did not object to the District Court's application of Michigan law，the law of the forum.

Butadiene is a petrochemical product extracted from gas and oil and principally used in the production of synthetic rubber.TCP does not produce butadiene but has since 1966 acted as a middleman in arranging sales of the product from El Paso Products Company(El Paso)，a Texas refinery，to Uniroyal.TCP sold to Uniroyal at the same price it purchased butadiene from El Paso.Historically，its sole profit was limited to a commission or a reseller's discount of two-tenths(2/10)of a cent per pound which El Paso paid TCP out of El Paso's price.

On November 3， 1970，TCP and Uniroyal entered into the 1970 contract.That contract covered the period of April 1，1971 through March 31，1974 and provided for the annual sale of 50 million pounds of butadiene at 8.00 to 8.25 cents per pound，depending on place of delivery.The contract restricted any price increase to the third year of the contract and then only to passing on those escalations in El Paso's production costs specifically related to increased labor or natural or butane gas costs which El Paso passed on to TCP.The contract also included a meet or release clause which provided that if Uniroyal received a bona fide offer from another producer to sell it at least 10 000 000 pounds of butadiene at a lower price，then TCP would have to meet that price within 30 days or release Uniroyal from its obligation to purchase such amount under the contract.

El Paso continued to sell butadiene to TCP which resold it to Uniroyal under these conditions until September 1973，six months before the expiration of TCP's contract * 545 with Uniroyal，when，unknown to Uniroyal，TCP's three year contract with El Paso expired.El Paso thereupon advised TCP that it would continue to sell it butadiene but that its reseller's discount would be discontinued and TCP should look for its profits solely from its markup to Uniroyal.

In October 1973，TCP increased its price to Uniroyal by 0.002 47 per pound.In February 1973，El Paso increased its price to TCP by 3.5 cents to 11.75 cents per pound.TCP passed this price increase on to Uniroyal along with an additional increase of almost three cents.On March 1，1974，TCP initiated another one cent per pound increase.［FN1］Uniroyal continued to accept and pay for butadiene at the increased prices.The parties agree and it is undisputed that except for El Paso's 3.5 cent increase passed along by TCP in February，the remaining increases were contrary to the express provisions of the written contract，and resulted in an overcharge to Uniroyal of $301 679.

During the same period that TCP was raising the price of butadiene under the 1970 contract，the parties were negotiating the terms of the 1974 contract.These negotiations were conducted in an atmosphere described by those in the industry as nothing less than chaotic.Price controls for butadiene expired in early 1974.Because of the shortage of crude oil due to the Arab oil embargo，a greater proportion of the supply of oil was being used to produce fuel oil rather than petrochemicals such as butadiene.Butadiene sellers were refusing to take on new customers.Since Uniroyal could not make synthetic rubber without butadiene，TCP's 50 million pound annual supply was extremely valuable and Uniroyal adopted measures to ensure itself of this dependable supply of butadiene.After several months of bargaining， Uniroyal and TCP entered into a new contract which represented a dramatic departure in form and substance from their previous agreements.This contract did not have a price escalation clause but instead contained the following pricing provision:

The price for butadiene purchased hereunder shall be $ 0.1347 per pound F.O.B.point of origin.The price for butadiene is subject to change providing Texas Chemical gives no less than fifteen days notice.

The 1974 contract did not contain a meet or release clause for the first two years of its four year term.

Soon after signing，TCP informed Uniroyal that the price would increase from 13.7 cents on April 1，1974，to 20.75 cents on July 1，and to 22.55 cents on October 1.By November 1974，the shortage of butadiene had eased and producers were ready to take on new customers.That month Uniroyal took only 489 000 pounds of butadiene as opposed to an average of 3 642 000 pounds in each of the previous seven months.Uniroyal took no butadiene from December 1974 through February 1975，first saying that it needed no butadiene and then explaining that the price was too high.Uniroyal again started to purchase in March 1975 at about 19.0 cents per pound.The parties agreed to reserve their rights against each other under the contract.

THE 1974 CONTRACT

Uniroyal also argues that the evidence was insufficient to support the jury's finding that TCP was entitled to the price it set under the 1974 contract.The contract contained the following pricing provision:

* 548 The price for butadiene purchased hereunder shall be $ 0.1347 per pound F.O.B.point origin.The price for butadiene is subject to change providing Texas Chemical gives no less than fifteen days notice.

The District Court held this language ambiguous and permitted parol evidence.Uniroyal claims that TCP was limited by the parties' prior course of dealing to passing on to Uniroyal changes in the prices charged to TCP by El Paso.Uniroyal contends that if TCP was not limited to passing through El Paso's price，then it failed to set a reasonable price in accordance with M.C.L.A.s 440.2305.

In the usual case，the question of the parties' intentions when a price term is left open is a question for the trier of fact.Official Comment 2， M.C.L.A.s 440.2305.The jury was presented with considerable evidence that the parties vigorously negotiated the 1974 contract.Fresne testified that he told Wills that he wanted the right to unilaterally set the price at the high end of the market.He explained that this was a major reason for the six month negotiation period.TCP negotiated the deletion of the standard meet or release clause during the first two years of the four-year contract and refused to include Uniroyal's suggested right to cancel clause if the price charged for butadiene was unacceptable.Also persuasive that the prior course of dealing as to pricing did not govern the 1974 contract was that the pricing language of the 1970 contract was not carried over to，and in fact was changed dramatically in the 1974 contract.The parties intentionally deleted the explicit and elaborate formula for pricing(the escalation clause)found in the 1970 contract and in its place required that TCP give Uniroyal 15 days notice prior to implementing a price increase.If the parties had intended to continue the explicit pricing terms of the 1970 contract，or had intended that only El Paso's increases to TCP would be passed along to Uniroyal，such language could have again been utilized.In fact，that specific language was deleted.The jury was presented with sufficient evidence that the “subject to change”provision of the 1974 contract did not limit TCP's price increases to passing through El Paso's increased costs.

Nor do we accept Uniroyal's alternative argument.M.C.L.A.s 440.2305 governs the open price term of the 1974 contract.The pertinent provisions provide:

(1)The parties if they so intend can conclude a contract for sale even though the price is not settled.In such a case the price is a reasonable price at the time for delivery if

(a)nothing is said as to price;or

(b)the price is left to be agreed by the parties and they fail to agree;or

(c)the price is to be fixed in terms of some agreed market or other standard as set or recorded by a third person or agency and it is not so set or recorded.

(2)A price to be fixed by the seller or by the buyer means a price for him to fix in good faith.

Official Comment 3，referring to subsection(2)，states:

Dealing with the situation where the price is to be fixed by one party rejects the uncommercial idea that an agreement that the seller may fix the price means that he may fix any price he may wish by the express qualification that the price so fixed must be fixed in good faith.Good faith includes observance of reasonable commercial standards of fair dealing in the trade if the party is a merchant.(Section 2－103)．

M.C.L.A.s 440.2103(1)(b)defines“good faith”in the case of a merchant as “honestly in fact and the observance of reasonable commercial standards of fair dealing in the trade.”

Neither the Code nor the Official Comments to the Code require that a merchant-seller price at fair market value under a contract with an open price term，but specify that prices must be “reasonable”and set pursuant to“reasonable commercial standards of fair dealing in the trade.”

When there is a gap as to price， 2－305 directs the court to determine“a reasonable price， ”provided the parties intended a * 549 contract.Note that the section says“a reasonable price”and not“fair market value of the goods.”In many instances these two would not be identical.For example， evidence of a prior course of dealing between the parties might show a price below or above market.Without more，a court could justifiably hold in these circumstances that the course of dealing price is the“reasonable price.”

J.White ＆ R.Summers，Uniform Commercial Code，s 3－7，17(2d ed.1980)．

Similarly，the price might be reasonable although not set pursuant to “reasonable commercial standards of fair dealing.”An example would be where the party sets the open price at a reasonable retail price although reasonable commercial standards of fair dealing would require that the price be set at a reasonable wholesale rate.In the instant case the price was set within the wholesale range.The only issue is whether a spot market price within that range was reasonable vis-Ea-vis the existence of a long term contract price and whether that is a question of fact or of law.

At all times under the 1974 contract TCP sold or offered to sell butadiene to Uniroyal at prices within the range of those reported in the Chemical Marketing Reporter，a domestic publication specifically providing information on the butadiene market.The parties stipulated that the following price ranges appeared in the Chemical Marketing Reporter for the period April 1，1974 to March 31， 1976.

TCP's prices of 20.75 cents on July 1， 1974，and 22.25 cents on October 1， 1974，while tending toward the high end，were always well within the above range.Although Jesse Owens of El Paso initially testified that 22.25 cents per pound was not a“fair”price for the period of November 1974 through March 1975，he later explained that this conclusion was based on El Paso's long term contracts all of which contained a meet or release clause，the effect of which is to keep prices competitive to within 1/2 cent per pound.TCP，however，had negotiated with Uniroyal to omit such a clause during the first two years of the contract and include it for the final two years.On the other hand，Ralph Ericsson，president of a company which produces an annual survey of the world-wide butadiene industry，testified that during the last six months of 1974 butadiene prices were rising as high as 28.5 on a straight pass through basis.In his opinion，TCP's price was commercially reasonable under all the circumstances.Thus，there was evidence from which the jury could have reasonably found that TCP's price for butadiene under the 1974 contract was commercially reasonable and set in good faith.Uniroyal too narrowly defines good faith and commercial reasonableness when it contends that as a matter of law TCP met neither because it set its price in accord with total market prices including the spot market rate than pricing solely on long term contract prices.

While taking testimony on the market price of butadiene the District Court allowed Ralph Ericsson，qualified as an expert in the production and pricing of butadiene，to testify as to the meaning of the pricing clause contained in the 1974 contract.Over objection，Ericsson testified that he had never seen a price clause exactly like that one and that“the way I read this contract，the seller had the right to set the price and the buyer was obligated to accept that price.”Following admission of this evidence，the District Court instructed the jury that the testimony was admitted for such value as the jury might wish to give it.Subsequently，Uniroyal's timely motion for new trial on this basis was denied.

Absent any need to clarify or define terms of art，science，or trade，expert opinion testimony to interpret contract language is inadmissible.International Paper Company v.Standard Industries，Inc.，389 F.2d 99，102 n.2(10th Cir.1968);Whitson v.Aurora Iron ＆ Metal Co.，297 F.2d 106，111(7th Cir.1961);Shields v.Weller，270 Mich.7，257 N.W.765(1934)．Here the witness was not testifying about a technical term * 550 which needed explaining.Since the witness had never seen a contract without a meet and release clause or cancellation clause where there was an open pricing provision the witness could not testify to the meaning given under such a contract by the trade.The question of what the contract clause meant was a factual one for the jury to determine from the testimony presented.Loeb v.Hammond， 407 F.2d 779，781(7th Cir.1969)．

While we find that the District Court erred in admitting this testimony we note that no error in the admission or exclusion of evidence is ground for reversal or granting a new trial unless refusal to take such action appears to the court to be inconsistent with substantial justice.Prater v.Sears，Roebuck ＆Co.， 372 F.2d 447，448(6th Cir.1967);Hoag v.City of Detroit， 185 F.2d 764(6th Cir.1950);Rasmussen Drilling v.Kerr-McGee Nuclear Corp.， 571 F.2d 1144，1149(10th Cir.)，cert.denied， 439 U.S.862，99 S.Ct.183，58 L.Ed.2d 171(1978);Kilgore v.Greyhound Corp.，Southern Greyhound Lines， 30 F.R.D.385(E.D.Tenn.1962)．Considering the entire record we do not find that the District Court's denial of Uniroyal's motion for new trial on the grounds of Ericsson's improper testimony was inconsistent with substantial justice.

The judgment of the District Court is affirmed.

思考题

1.简述本案基本事实。

2.Uniroyal公司的主张是什么?

3.本案法官确定的规则是什么?

4.支持法官判决的有关事实是什么?