《美国统一商法典》中的履约不能

第一节　《美国统一商法典》中的履约不能

在双方买卖合同订立后，如果发生在订立合同时未能预料的意外情况，而使得合同的履行变得极不现实，那么受到这种意外情况影响的一方可以主张合同义务的免除。一般来讲，要求免除合同义务的一方应当证明，一方面客观上履行合同已经极为不现实;另一方面，主观上这种导致合同履行的障碍是订立合同时无法预料的。单纯的履约成本的增加不能成为免责的理由;或如果有替代手段克服障碍，仍不能免责。统一商法典§ 2－615规定“Delay in delivery or non-delivery in whole or in part by a seller is not a breach of his duty under a contract for sale if performance as agreed has been made impracticable by the occurrence of a contingency the non-occurrence of which was a basic assumption on which the contract was made or by compliance in good faith with any applicable foreign or domestic governmental regulation or order”。

This section excuses a seller from timely delivery of goods contracted for，where his performance has become commercially impracticable because of unforeseen supervening circumstances not within the contemplation of the parties at the time of contracting.

在实践中，法官倾向于对履约不能适用条件的严格解释。法官在审查客观上这种意外导致履行困难的同时，还要考察主观上这种意外的风险是否在订立合同时是可以预见的，是否有一方当事人承担了这种风险。

案例16

Wickliffe Farms，Inc.v.

Owensboro Grain Co.

684 S.W.2d 17 Ky.App.，1984.

DUNN，Judge.

This is an appeal from a summary judgment in favor of appellee，Owensboro Grain Company，entered in the Daviess Circuit Court September 9，1982，as amended September 29， 1982.The action arises out of a contract to sell No.2 white corn and the defense of impossibility of performance resulting from a drought.

The appellant，Wickliffe Farms，Inc.，in business since 1971，farms several contiguous farms in Muhlenberg County.Of the approximate 1980 acres it farms，the corporation owns about 250 acres，Reynolds Wickliffe，its president and principal shareholder，owns about 1 000 acres，and Reynolds' father's estate，the J.W.Wickliffe Estate，owns 730 acres.

The Corporation had done business with the appellee，Owensboro Grain，since 1975，primarily thru Reynolds Wickliffe，representing the corporation，and Julian G.“Sonny”Hayden，employed by Owensboro Grain as a grain merchandiser.

In February，1980，Wickliffe contacted Hayden by telephone and they orally agreed that the corporation would deliver 35 000 bushels of No.2 white corn at $ 3.70 per bushel to Owensboro Grain between December 15，1980，and January 31，1981.The agreement was confirmed in a writing executed by Owensboro Grain and signed by Wickliffe on behalf of the corporation.The agreement，prepared by Owensboro Grain，was on its standard “fill in the blanks”form as to quantity，the grain commodity，the price，the routing，and shipment date.It was dated February 29， 1980，and identified the corporation as the accepting party.It contained no additional language of any significance other than the following part of a small print“force majeure”clause unilaterally favoring Owensboro Grain:

All agreements，undertakings，obligations or liabilities hereunder，made or to be kept and performed by Owensboro Grain Company，are made and shall be kept and performed subject to and contingent upon strikes，embargoes，fires，accidents，war restrictions，acts of God，or other conditions over which Owensboro Grain Company has no control and any inability on its part to keep，perform or satisfy the agreements，undertakings，obligations or liabilities hereunder caused or brought about by reason of any of the foregoing conditions shall，at the option of Owensboro Grain Company，render this contract null and void and the parties hereto shall have no further rights or obligations hereunder...

Owensboro Grain's principal business is dealing in the Chicago Board of Trade market area by purchasing grain for future delivery and by arranging an immediate sale of it to consumers or exporters at a margin of profit the market will competitively allow.In reference to his employer's business generally and to the instant transaction specifically，Hayden testified :“...my orders from the stockholders are to buy it，sell it，or hedge it.In this case you have to sell it because you can't hedge it.”

In keeping with this practice，immediately after the contract was executed for Wickliffe to deliver the No.2 white corn in the future，Owensboro Grain sold the 35 000 bushels，along with white corn similarly purchased from other farmers，to C.B.Fox，an exporter，at a price that guaranteed a 20 to 25 cent profit.

Unfortunately，in the summer of 1980，Muehlenburg County，together with the rest of western Kentucky，suffered a severe drought.Wickliffe's No.2 white corn crop was severely damaged as were the crops of the other farmers in the area.Consequently，Wickliffe was unable to produce sufficient No.2 white corn to fulfill its contract.In January，1981，it delivered its entire crop，18 718.57 bushels，to Owensboro Grain and was paid the agreed amount of $ 3.70 per bushel.

As a result of the short delivery，Owensboro Grain was required to purchase the amount of the shortage at $ 5.54 per bushel，the then market price，to satisfy its obligation to C.B.Fox entered into as a result of its futures contract with Wickliffe.The * 19 total amount spent to make up the bushels' deficit was $ 29 306.57.This amount was not withheld as a“set off”when it paid Wickliffe for the corn it managed to deliver，but $19 157.07 was withheld from amounts owed Wickliffe for purchase of corn and soybeans in January and February， 1982，by Owensboro Grain.

Wickliffe sued Owensboro Grain in the Daviess Circuit Court for the amount of the sale of the corn and soybeans.Owensboro Grain counterclaimed for its loss resulting from the partial non-delivery of No.2 white corn in 1981.The trial court entered summary judgment in favor of Owensboro Grain on its counterclaim，later amended to include interest.

On appeal，as well as in the trial court，Wickliffe primarily relies on the defense of impossibility of performance caused by the severe drought，a“force majeure.”We agree with the trial court that this defense is not applicable since the contract did not specify the land on which the corn was to be grown.Hence，we affirm.

There is no disagreement that the provisions of § 2－615 of the Uniform Commercial Code(U.C.C.)(1978)，adopted as KRS 355.2－615，address the issue before us;also，there is no disagreement that there is no Kentucky law interpreting KRS 355.2－615，particularly with reference to U.C.C.§ 2－615 comment 9(1978)，which in pertinent part is as follows:

The case of a farmer who has contracted to sell crops to be grown on designated land may be regarded as falling within ...this section，and he may be excused，when there is a failure of the specific crop....

We have carefully considered Wickliffe's argument that the contract was one-sided or unconscionable because it contained no specific“force majeure”clause in its favor as it did in favor of Owensboro Grain and conclude the argument is without merit.We reach a like conclusion on Wickliffe's position that an“adhesion contract”resulted from the“fill in the blanks”form of the contract.

Wickliffe's principal argument is that the defense of impossibility provided by KRS 355.2－615 should be available to it due to the fact that it was contemplated by both parties that the No.2 white corn was to be grown on its 2 000 contiguous acres in Muhlenburg County and，that the adverse weather of the 1980 summer was a condition that was unforeseen and unforeseeable by the parties，and which rendered Wickliffe's performance impossible，and，pursuant to the statute，thereby excused his obligation to fully perform.

Nowhere in the contract，however，is there any reference to any specific acreage upon which the crop was to be grown.Wickliffe urges that KRS 355.2－202 permits contradiction of the written terms of the parties' intention by admission of proof of a contemporaneous oral agreement.This statute provides:

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 but may be explained or supplemented

(a)by course of dealing or usage of trade(KRS 355.1－205)or by course of performance(KRS 355.2－208);and

(b)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.

This argument ignores the fact that to be admissible，the proof must come within the provisions of subparagraph(b)of the statute that requires the parol evidence be of additional terms consistent with the written contract.Here there is no consistency between Wickliffe's claim that the corn was to be produced off a particular part of a 2 000－acre farm and a contract providing for nothing other than buying and selling 35 000 bushels of No.2 white corn.There was no proof before the trial court，parol or * 20 otherwise，offered or proffered by Wickliffe，to establish that both parties contemplated and agreed upon a contract to sell the corn from any particularly designated acreage.

The undisputed admissible material facts before the trial court prove the ordinary“futures contract”of an agreement to buy and sell a quantity of grain at a given price per bushel，to be delivered at a future date，the purchaser thereafter arranging a “back to back”sale of the commodity.The sellers in such a transaction gamble the market price will not be greater at the time of delivery and the buyers gamble that it will not be lower.All Owensboro Grain was interested in was buying 35 000 bushels of No.2 white corn from Wickliffe at $ 3.70 per bushel and nothing more.Its business was not to speculate either in the weather，crop yield or fluctuation of market price.It guaranteed its profit by selling immediately.Wickliffe's only interest was to sell it.It chose to contract to deliver the corn at a given price at a given future date and failed to do so.

Since there exists no issue of material fact and Owensboro Grain is entitled to judgment as a matter of law，the trial court committed no error in granting summary judgment on Owensboro Grain's counterclaims.Shah v.American Synthetic Rubber Corp.，Ky.， 655 S.W.2d 489(1983)．

The Daviess Circuit Court summary judgment and amended summary judgment are AFFIRMED.

思考题

1.简述本案基本事实。

2.本案中Wickliffe Farms所遇到的事件是否构成impossible / impractibility?

案例17

International Minerals and

Chemical Corp.v.Llano，Inc.

770 F.2d 879 C.A.10(N.M.)，1985.

BARRETT，Circuit Judge.

After examining the briefs and the appellate record，this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal.See Fed.R.App.P.34(a);Tenth Cir.R.10(e)．The cause is therefore submitted without oral argument.

International Minerals and Chemical Corporation(IMC)brought this diversity action against Llano，Inc.(Llano)，seeking a declaratory judgment that it was excused from its obligation to pay for natural gas under a contract between IMC and Llano.Llano counterclaimed for $ 3 564 617.12，the amount it claimed was due under the contract.The district court granted judgment in favor of Llano and against IMC.The court found that IMC had no legal excuse for non-performance， and ordered IMC to pay Llano $ 3 441 869.79.

IMC，a New York corporation，operates a potash mine and processing facility near Carlsbad，New Mexico.At all times relevant to this action，IMC obtained the natural gas it needed to operate its facilities from Llano.Llano is a New Mexico corporation engaged in the business of intrastate transportation of natural gas by pipeline.The natural gas contract between Llano(seller)and IMC(buyer)that is the subject of this litigation was made in 1972，and continued in effect until June 30， 1982.It was amended only once，in 1975.That amendment concerned pricing structure as set forth in paragraph 5 of the contract，and is not an issue in this case.The pertinent portions of the contract are as follows:

NOW，THEREFORE，in consideration of the premises and of the mutual covenants and agreements hereinafter set forth，the parties do hereby bargain，contract and agree as follows:

1.SUPPLY OF NATURAL GAS:Subject to the terms and conditions of this Contract，Seller will sell and deliver to Buyer and Buyer will take，purchase and pay for the entire fuel requirements of Buyer's Plant，provided that Buyer may at its option procure and maintain a supply of standby fuel to be used only to such extent as may be necessary when the gas supply from Seller may be interrupted or curtailed，as hereinafter provided，and in such other amounts as may be necessary from time to time to test such standby facilities and fuel.

*　*　*

6.DELIVERY REQUIREMENTS:During the term of this Contract，unless Seller agrees in writing to the contrary，the minimum daily deliveries that Seller shall make to Buyer and Buyer shall take from Seller shall be 4 800 million BTU's per day except as hereafter provided.The maximum daily deliveries that Seller shall be required to make to Buyer shall be 133% of the average daily requirements of Buyer's Plant for the preceding 365 days provided，however，Seller shall at no time be required to deliver in excess of 6 400 million BTU's per day unless Seller agrees in writing to the contrary.

Buyer does not contemplate reducing its operations，but on the contrary contemplates the increase thereof from the present daily requirements.In order to meet unanticipated contingencies，it is agreed that in the event Buyer during the term of this Contract reduces its operation by closing a portion of its plant，it shall have the right upon six months notice in writing to reduce the minimum requirements to a figure equal to 70% of the stated minimum of 4 800 million BTU's per day.In the event of such reduction in minimum requirements，Seller's price to Buyer then in effect under the terms hereof shall be increased by 1/2 cents per million BTU's，but not in excess of the highest price for a like quantity of gas then being paid by any potash company in the area.

7.MINIMUMANNUAL PURCHASE:During the term of this Contract，commencing with the first year，Buyer agrees to take from Seller a volume of gas having a BTU content of not less than 355 times the minimum daily deliveries specified in Section 6 hereof.* 882 Buyer agrees to pay Seller for such minimum volume of gas at the price set forth in Section 5 hereof provided that if Buyer fails during any calendar year to take such minimum volume of gas，then the deficiency between the volume actually taken and Buyer's minimum purchase obligation shall be paid at the price in effect during the calendar year in which such deficiency occurs.

Billing for any payment due by reason of a deficiency in Buyer's takings of gas hereunder during a particular calendar year shall be included on the bill rendered to Buyer for gas delivered to Buyer during the month of December in the calendar year in which such deficiency occurred and payment therefor shall be made in the manner provided for monthly bills in Section 11 hereof.Failure on the part of Seller to so bill Buyer for any such deficiency payment shall not constitute a waiver hereof by Seller.

*　*　*

15.FORCE MAJEURE:Either party shall be excused for delay or failure to perform its agreements and undertakings，in whole or in part，when and to the extent that such failure or delay is occasioned by fire， flood， wind，lightning，or other acts of the elements，explosion，act of God，act of the public enemy，or interference of civil and/or military authorities，mobs，labor difficulties，vandalism，sabotage，malicious mischief，usurpation of power，depletion of wells， freezing or accidents to wells， pipelines，permanent closing of Buyer's operations at its Eddy County mine and refinery，after not less than six(6)months notice thereof to Seller，or other casualty or cause beyond the reasonable control of the parties，respectively，which delays or prevents such performance in whole or in part，as the case may be;provided，however，that the party whose performance hereunder is so affected shall immediately notify the other party of all pertinent facts and take all reasonable steps promptly and diligently to prevent such causes if feasible to do so，or to minimize or eliminate the effect without delay.It is understood and agreed that settlement of strikes or other labor disputes shall be at the sole discretion of the party encountering the strike or dispute.

Nothing contained herein，however，shall be construed as preventing the Buyer from discontinuing the operation of the plant for such periods of time as may be required by Buyer to perform necessary overhaul operations on plant properties or to accomplish preventative maintenance operations on such plant properties，which the Buyer may determine as necessary to safeguard its investment in the plant.

16.ADJUSTMENT OF MINIMUM BILL:In the event that Seller is unable to deliver or Buyer is unable to receive gas as provided in this Contract for any reason beyond the reasonable control of the parties，or in the event of force majeure as provided in Section 15 hereof，an appropriate adjustment in the minimum purchase requirements specified in Section 7 shall be made.

The contract may be characterized as a requirements contract，with an important limitation:Pursuant to paragraph 6，the buyer(IMC)is obligated to take，at a minimum，a daily average of 4 800 million BTU's of gas.Pursuant to paragraph 7， if the buyer does not take this minimum amount， the buyer is obligated to pay for the minimum amount of gas anyway.These provisions are known in the industry as“take or pay”provisions，the purpose of which is to compensate the seller for being ready at all times to deliver the maximum amount of gas to the buyer and to eliminate the risk that the seller would face in a pure requirements contract were the buyer's requirements to drop too low.See，e.g.，Utah International，Inc.v.Colorado—Ute Electric Association，425 F.Supp.1093(D.Colo.1976)(“take or pay”coal purchase contract);Mobile Oil Corporation v.Tennessee Valley Authority，387 F.Supp.498(N.D.Ala.1974)(“take or pay”electricity contract)．The harshness of the “take * 883 or pay”provisions in this contract is to some extent ameliorated by the “force majeure”provision of paragraph 15 and the “adjustment of minimum bill”provision of paragraph 16;paragraphs 15 and 16 are discussed below.

On a fundamental level，this case is one of contract construction.Our primary objective，as always，in the construction or interpretation of a contract is to ascertain the intention of the parties.Schultz ＆ Lindsay Construction Co.v.State， 93 N.M.534，494 P.2d 612，613(1972);* 885 Yankee Atomic Electric Company v.New Mexico and Arizona Land Company， 632 F.2d 855，858(10th Cir.1980)(interpreting New Mexico law.)We assume that the parties intended a reasonable interpretation of the language.Smith v.Tinley，100 N.M.663，674 P.2d 1123，1125(1984)．Accordingly，the legal context in which the contract was made will be relevant.As mentioned above，paragraphs 15 and 16 ameliorate the harshness of the “take or pay”provisions in that either party's duty of performance may be excused upon the occurrence of certain contingencies.As we examine the language of paragraphs 15 and 16，an appropriate area to lookforguidanceisthecommonlawdoctrineofimpossibility / impracticability，codified at Section 2－615 of New Mexico's Uniform Commercial Code(N.M.Stat.Ann.§ 55－2－615(1978))，which was the law in New Mexico at the time the parties contracted and which remains the law today.While it is a basic premise of both Section 2－615 and the Uniform Commercial Code in general that the parties may allocate risks and penalties between themselves in any manner they choose，N.M.Stat.Ann.§ § 55－1－102 and 55－2－615(1978)，the Code and the common law upon which it is based remain a significant backdrop.

We first consider the effect of paragraph 15，the “force majeure”provision，on IMC's duty of performance under the circumstances of this case.Specifically，Paragraph 15 provides that either party is excused from performance if failure or delay in performance is“occasioned”by such events as fire，flood，act of God，interference of civil and/or military authorities，etc.The party seeking to be excused from performance must provide the other party with immediate notice of all pertinent facts and take all reasonable steps to prevent the occurrence.It also appears that the seller is entitled to six months notice before the buyer can be excused.We agree with the trial court that paragraph 15 does not operate to excuse IMC，although our conclusion is based on a somewhat different rationale.First，IMC's notice to Llano was inadequate in that no reasons were given as to why gas consumption would be decreased.Adequate notice was required to trigger the protections of the provision.Second，even if we assume arguendo that Rule 508 prevented IMC from taking the gas，Rule 508 would still pose no obstacle to IMC's ability to pay.Since this is a“take or pay”contract， the buyer can perform in either of two ways.It can either(1)take the minimum purchase obligation of natural gas(and pay)or(2)pay the minimum bill.It is settled law that when a promisor can perform a contract in either of two alternative ways，the impracticability of one alternative does not excuse the promisor if performance by means of the other alternative is still practicable.Ashland Oil And Refining Co.v.Cities Service Gas Co.，462 F.2d 204，211(10th Cir.1972);Glidden Company v.Hellenic Lines，Limited，275 F.2d 253，257(2d Cir.1960);Restatement(Second)of Contracts § 261，comment f(1981)．Paragraph 15 does not compel a different result;it would at most excuse IMC from its duty to“take， ”not from its duty to“pay.”

Paragraph 16，the “minimum bill”provision，however，affords the buyer additional protection.It provides that， in the event the buyer is“unable to receive gas as provided in the Contract for any reason beyond the reasonable control of the parties ...”(emphasis added )， then “an appropriate adjustment in the minimum purchase requirements specified in Section ［paragraph］7 shall be made.”Paragraph 7，in turn，provides for a minimum bill based on the difference between the buyer's minimum purchase obligation and the gas actually taken.It follows that an adjustment of the buyer's minimum purchase requirements made pursuant to paragraph 16 would have the effect of lowering the buyer's minimum bill under paragraph 7.Llano's contention that paragraph 16 provides for a reduction in IMC's minimum purchase obligation but not its minimum bill obligation(Appellee's Brief at 4)is thus quickly disposed of.

The determinative question，then，is:Did the promulgation of Rule 508 constitute an event beyond the reasonable control of IMC that rendered IMC “unable”to receive its minimum amount of gas under the contract?

A simplistic，literal interpretation of the word“unable”would，in our view，be inappropriate and lead to absurd results:IMC could never be “unable”to take Llano's gas;IMC could always take the gas and vent it into the air，even if its facilities were completely destroyed.The word“unable”appears here as a term in a contract，prepared by businessmen and attorneys;thus，it is appropriate to construe the term in light of the common law as it existed in New Mexico when the contract was entered into.For our purposes，then ，“unable”is synonymous with“impracticable， ”as that term is used in the common law and in Section 2－615.

The term“impracticable”has，over the years，acquired a fairly specific meaning.Although earlier cases required that performance be physically impossible before the promisor would be excused，strict impossibility is no longer required.See Restatement of Contracts(Second)§ 261，comment d(1981)．The New Mexico Supreme Court has described the doctrine of impracticability as follows:

Regarding the meaning of “impossibility”as used in the rules that excuse the non-performance of contracts，it is stated :“As pointed out in the Restatement of Contracts，the essence of the modern defense of impossibility is that the promised performance was at the making of the contract，or thereafter became，impracticable owing to some extreme or unreasonable difficulty， expense， injury， or loss involved， rather than that it is scientifically impossible.＊＊＊ The important question is whether an unanticipated circumstance has made performance of the promise vitally different from what should reasonably have been within the contemplation of both parties when they entered into the contract.If so，the risk should not fairly be thrown upon the promisor.”Wood v.Bartolino，48 N.M.175，146 P.2d 883，886，(1944)，quoting 6 Williston on Contracts，§ 1931.

Cf.Gulf Oil Corporation v.Federal Power Commission， 563 F.2d 588，599(3d.Cir.1977)，cert.denied 434 U.S.1062，98 S.Ct.1235，55 L.Ed.2d 762(1978)(“The crucial question in applying that doctrine to any given situation is whether the cost of performance has in fact become so excessive and unreasonable that the failure to excuse performance would result in grave injustice....”);Mineral Park Land Co.v.Howard，172 Cal.289，156 P.458，460(1916)(“a thing is impracticable when it can only be done at an excessive and unreasonable cost”)．

Performance will be excused when made impracticable by having to comply with a supervening governmental regulation.N.M.Stat.Ann § 55－2－615(1978);Restatement of Contracts(Second)§ 264(1981)．Thus，for example，in the case of Kansas City，Missouri v.Kansas City，Kansas，393 F.Supp.1(W.D.Mo.1975)，the court held that the defendant city's obligation to accept the plaintiff city's sewage * 887 was excused by the enactment of the Federal Water Pollution Control Act Amendments of 1972.The federal act imposed new requirements with regard to the treatment of sewage that was discharged into the Missouri River;the court found that the added expense of such treatment would impose a significant，unreasonable burden on the defendant.Accord City of Vernon v.City of Los Angeles， 45 Cal.2d 710，290 P.2d 841(1955)．

Inasmuch as there was no technically suitable way for IMC to comply with the EIB's Regulation 508 without shutting down the Ozarks and changing to the SOP，with the concomitant decrease in natural gas consumption，we hold that the adjustment provision of paragraph 16 of the contract was triggered.IMC was unable，for reasons beyond its reasonable control，to receive its minimum purchase obligation of natural gas between January 1，1981 and June 30， 1982;thus，the minimum bill should have been adjusted appropriately.IMC should not be required to pay for any natural gas it did not take under the contract.

Llano contends that there was no supervening legal impracticability in this case because IMC was not required to be in final compliance until December 31，1984，and that IMC cooperated with the EIB and came into compliance too early.The argument here is that，notwithstanding the interim standards contained in the schedules of compliance，IMC should have stalled in its negotiations with the state regulatory agency， which would have resulted in the pollution of air until the last minute.We must reject this contention on two grounds:First，as a matter of policy，individuals and corporations who cooperate with local regulatory agencies and comply with the letter and spirit of legally proper regulations， environmental or otherwise， are to be encouraged.Stalling tactics are not regarded favorably.Second，as a matter of law，government policy need not be explicitly mandatory to cause impracticability.Thus， for example， in Eastern Air Lines， Inc.v.McDonnell Douglas Corporation， 532 F.2d 957(5th Cir.1976)，an aircraft manufacturer was excused from its contractual obligation to deliver commercial jet airliners on certain scheduled dates because it had voluntarily complied with government requests to expedite production of military equipment needed for the war in Vietnam.Similarly，in the maritime context，shipowners have been excused from contractual obligations because they have anticipated governmental intrusion.The Kronprinzessin Cecilie，244 U.S.12，37 S.Ct.490，61 L.Ed.960(1917)(German ship was justified in returning to New York rather than completing a voyage to Great Britain and France on the eve of the outbreak of hostilities in World War I);The Clavaresk，264 F.276(2d Cir.1920)(shipowner may anticipate and need not resist government requisition of his ship for wartime service in order to be excused from performance of a charter agreement)．There is，we recognize，a limit to the extent to which an individual can seek refuge in the context of a case such as this by cooperating with the government :“any action by the party claiming excuse which causes or colludes in inducing the governmental action preventing his performance would be in breach of good faith and would destroy his exemption.”Official Comment10，N.M.Stat.Ann.§ 55－2－615(1978 )．Here，Regulation 508 was promulgated by the EIB as part of New Mexico's State Implementation Plan mandated by the Clean Air Act.Regulation 508's existence and its enforcement mechanism is designed to eliminate pollution of the environment，thus serving the public health and welfare.IMC's recognition of the public benefit goal and its willingness to cooperate in eliminating pollution can hardly be termed improper collusion.

For the reasons described above，the judgment of the trial court in favor of Llano is REVERSED.The case is REMANDED with direction that the court enter a declaratory judgment in accordance with this opinion.

思考题

1.简述本案基本事实。

2.与本案有关的合同条款是什么?

3.什么是“take or pay”条款，该条款效果是什么?

4.不可抗力条款是否有利于International Minerals and Chemical Corp.，本案是否构成不可抗力?

5.合同条款中的unable如何解释?

6.Llano，Inc.所主张的合同可以履行到84/12/31是否成立?