《联合国国际货物销售合同公约》中的合同解释

第三节　《联合国国际货物销售合同公约》中的合同解释

公约第八条规定，在解释当事人的意思表示时，如果另一方当事人已知道或者不可能不知道他的意思表示的含义，对于一方当事人所作的声明和其他行为，应依照他的意思解释。如果另一方当事人不知道也不可能知道他的意思表示，应按照一个与另一方当事人同等资格、通情达理的人处于相同情况中，应有的理解来解释。在确定一方当事人的意旨或一个通情达理的人应有的理解时，应适当地考虑到与事实有关的一切情况，包括谈判情形、当事人之间确立的任何习惯做法、惯例和当事人其后的任何行为。

同时公约第九条明确规定双方当事人业已同意的任何惯例和他们之间确立的任何习惯做法，对双方当事人均有约束力。除非另有协议，双方当事人应视为已默示地同意对他们的合同或合同的订立适用双方当事人已知道或理应知道的惯例，而这种惯例，在国际贸易上，已为有关特定贸易所涉同类合同的当事人所广泛知道并为他们所经常遵守。

由此可见，公约在合同解释时同样要求考虑国际惯例、双方当事人的以前交易和履约过程。

案例10

Beijing Metals ＆ Minerals Import/Export

Corp.v.American Business Center

993 F.2d 1178

BARKSDALE，Circuit Judge:

This appeal turns on the effect to be given two alleged oral agreements made contemporaneously with execution of a written payment agreement.American Business Center，Inc.(ABC)，challenges a summary judgment granted Beijing Metals ＆ Minerals Import/Export Corporation(MMB)on its severed claim to enforce the payment agreement，contending，inter alia，that the district court misapplied the parol evidence rule and，on issues such as fraudulent inducement， overlooked genuine issues of material fact.We REVERSE and REMAND on the issue of fraudulent inducement and those pertaining to the quality and quantity of goods;as to all others，we AFFIRM.

I.

In 1988，MMB and ABC entered into a business relationship“in order to cooperatively develop the fitness［weight lifting］equipment market in the U.S.and Canada”.［FN1］ABC agreed to furnish MMB with “marketing information，customer names，product * 1 180 samples，and design prints for the research and development of products that MMB may be capable of manufacturing”.MMB，in turn，agreed to“engage in production only”and to“not sell the products designed and ordered by ABC to companies other than ABC”.

MMB also agreed that goods would be manufactured in accordance with detailed specifications，and be of the highest quality.But，according to ABC，from the very beginning，almost every shipment contained substantial amounts of defective and non-conforming goods;it notified MMB to that effect;it was assured that substitute goods would be sent;and it was instructed to retain the defective goods for later disposition.

For the shipments from MMB to ABC，the agreement originally required “documents against payment”，obligating ABC to pay by letters of credit or upon presentation of bills of lading，prior to release of the goods from customs.Accordingly，ABC paid for all shipments prior to receipt.In 1988，the parties changed the payment terms to“document against acceptance”，allowing ABC 90 days to pay(D/A 90)．Of the shipments received on D/A 90 terms，ABC paid only approximately two invoices，and subsequently refused to pay for approximately 27 shipments totalling more than $ 1.2 million.

In July 1989，MMB notified ABC that if it did not respond with a payment plan，MMB would not ship scheduled merchandise.Accordingly，that August，Mike Lian，president of ABC，travelled to Beijing，China，to meet with MMB.［FN3］After several days of negotiations，Lian signed an agreement，in which he acknowledged that ABC owed MMB $ 1 225 997.78，［FN4］of which $ 768 529.23 was overdue as of August 15， 1989.The agreement established a payment schedule，obligating ABC to pay the amounts owed MMB in specified installments.Before he left Beijing，Lian made the first agreed payment($ 197 503.43)by check，post-dated to August 30.

ABC maintains that the payment schedule was only part of the total agreement;that MMB orally agreed to two other items:it would ship goods to compensate for non-conforming and defective goods and shortages and would begin making new shipments to ABC on D/A 90 terms，beginning September 10， 1989.Lian maintains that MMB's representatives admitted that ABC had a substantial claim for defective and non-conforming goods，but that because the invoices had been entered into the accounting and banking system ，“the only way they could make up the problems to ABC was by shipping future goods on more favorable terms until the offsets were taken care of”.According to Lian，MMB representatives stated that the signed payment agreement was necessary only to appease the bank and the controller，which would allow MMB to continue shipments to ABC on agreed-upon terms;that MMB representatives told him that the oral agreements，i.e.replacement of goods and future shipments on D/A 90 terms，could not be reduced to writing for “political reasons”—that“some people could go to jail over this situation”;and that he “would not have signed the Agreement had he known that MMB did not have the intention or the ability to perform their part of the bargain”.Lian estimated that the total amount of defective goods and shortages was $ 500 000.

On September 1，MMB sent a letter to Lian by fax，which stated，in part，that straight D/A 90 terms would not be permitted and arguably indicated that this issue had been part of the total agreement.［FN5］Lian replied twice.His first was that he could not * 1 181 operate on a letter of credit basis.［FN6］His second，in late September，referenced the alleged oral agreement for D/A 90 terms and arguably also referenced the alleged oral agreement to provide replacement goods.

Because ABC，in early September 1989，stopped payment on the check issued in Beijing，and informed MMB that it would not honor the payment schedule， MMB filed suit against ABC(and others not parties to this appeal)to recover payment on the agreement.The substantive claim，styled as on a“sworn account”， was later described by MMB as an“account stated”.The defendants answered，asserting various defenses to payment，including(1)fraudulent inducement of both the payment agreement and the check issued in Beijing;(2)duress;(3)breach of agreement and breach of contract;(4)breach of express and implied warranties;and(5)offset.ABC also counterclaimed against MMB(and others not parties to this appeal)on several of the grounds asserted as defenses and for a Deceptive Trade Practices Act(DTPA)violation.

In January 1991， the district court stayed the action as to all parties except MMB and ABC until the basic account claims were adjudicated.MMB moved for summary judgment.In January 1992，after a hearing，the district court granted the motion，and subsequently ruled that“the cause of action based on the sworn account is severed from the main action”and that the “only issue remaining and not previously stayed，is the defendants' counterclaim for breach of the oral agreement for future business”．A final judgment for approximately $ 1.7 million was entered for MMB.

II.

ABC contends that the summary judgment is precluded by genuine issues of material fact relating to its defenses and counterclaims.It goes without saying that we review a summary judgment de novo，e.g.，Topalian v.Ehrman， 954 F.2d 1125， 1131(5th Cir.1992)，cert.denied，506 U.S.825，113 S.Ct.82， 121 L.Ed.2d 46(1992);and it is appropriate if the summary judgment record“shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law”.* 1 182 Fed.R.Civ.P.56(c);Celotex Corp.v.Catrett， 477 U.S.317， 106 S.Ct.2548， 91 L.Ed.2d 265(1986)．Affidavits must set forth facts“as would be admissible in evidence”.Fed.R.Civ.P.56(e)．Therefore ，“conclusory assertions cannot be used in an affidavit on summary judgement”.Salas v.Carpenter，980 F.2d 299，305(5th Cir.1992 )．Finally，we draw all inferences favorable to the non-movant.Reid v.State Farm Mut.Auto Ins.Co.， 784 F.2d 577， 578(5th Cir.1986)．

A.

［1］［2］［3］MMB sued to recover the amount stated in the payment agreement，asserting that it represents a binding contract in which MMB agreed to extend payment terms，and ABC agreed to pay its outstanding obligations.For summary judgment，MMB characterized the agreement as an “account stated”，which is “an agreement between parties who have had previous transactions of a monetary character that all the items of the account representing such transactions，and the balance struck，are correct，together with a promise，express or implied，for the payment of such balance”.Eastern Dev.＆ Invest.Corp.v.City of San Antonio， 557 S.W.2d 823， 824－25(Tex.Civ.App.—San Antonio 1977，writ ref'd n.r.e.)．An account stated establishes a prima facie case for obligation “without other proof of price，value，quantity，or specific items”.Id.at 826.

ABC contested the account stated characterization，contending that the written agreement reflects only one portion of their three-part agreement to resolve all disputes regarding payment and the quantity and quality of the goods:part one(written)—ABC to adhere to a payment schedule;part two(oral)—MMB to ship replacement goods to make up for non-conforming goods and shortages;and part three(oral)—MMB to resume shipment of goods on D/A 90 terms as of September 10， 1989.

The district court held that the parol evidence rule prevented the two oral agreements being a defense to ABC's obligations under the written payment agreement.It concluded that the written agreement is an unambiguous“account restatement”，and that nothing in its four corners，or in the surrounding circumstances，indicates the existence of collateral contingent agreements.The court focused on the fact that the payment agreement did not refer to supply，and contained meaningful consideration(extended payment time);that，at the time of the summary judgment hearing(three years later)，ABC was unable to quantify with specificity MMB's obligation to ship replacement goods;that MMB's letter denying D/A 90 terms did not refer to the payment agreement;and that Lian's subsequent letters did not characterize ABC's obligation under the payment agreement as contingent.

Under Texas law，［FN9］it is well settled that the parol evidence rule generally bars enforcement of prior or contem-poraneous * 1 183 agreements introduced to vary，add to，or contradict terms of a fully integrated written instrument.See，e.g.，Tripp Village v.MBank Lincoln Centre， 774 S.W.2d 746，749(Tex.App.—Dallas 1989， no writ )．“A written instrument presumes that all prior agreements of the parties relating to the transaction have been merged into the written instrument”，Weinacht v.Phillips Coal Co.，673S.W.2d 677，679(Tex.App.—Dallas 1984，no writ);in other words，written agreements are presumed to be completely integrated.Jack H.Brown ＆Co.v.Toys “R”Us，Inc.，906 F.2d 169，173(5th Cir.1990)(citing Hubacek v.Ennis State Bank，159 Tex.166，317 S.W.2d 30(1958))．［FN10］As discussed below，although ABC may rebut this presumption，id.906 F.2d at 174，it failed to do so.See id.(court determines whether written instrument is complete)．

In support of its contention that the payment agreement is incomplete，ABC notes evidence that it had previously complained about the quality of goods;that it travelled to Beijing to sign the payment agreement;that in discovery，MMB representatives admitted that， during the August 1989 meetings in Beijing，Lian discussed the issues of non-conforming and defective goods in past shipments(albeit for a minimal amount of time and not with specificity);and that the earlier referenced fax sent by MMB shortly thereafter referred to ABC's request for D/A 90 terms in the context of their negotiations in Beijing.

Although this evidence leads us to question why ABC signed the payment agreement，we cannot say that it is incomplete.Underneath the heading(as translated by ABC)， “Agreement on installment payments of overdue merchandise amount”，［FN11］the parties itemized the payment schedule，listing amounts due，invoice numbers，and revised payment dates.And，the agreement in no way intimates the existence of contingent extrinsic agreements regarding future shipments of goods.Instead，it specifies that “both sides participated in the negotiation，in a friendly manner，on the problem of the amount overdue by the American Business Center，Inc.to the Beijing Metals and Minerals Import and Export Corporation.A unanimous agreement has been reached”.(Emphasis added.)Even accepting ABC's translation of the agreement，ABC's proof is not sufficiently persuasive to convince us to ignore the clear language of the written agreement.Compare Jack H.Brown Inc.，906 F.2d at 174(agreement incomplete where parties admittedly made two agreements not mentioned and where agreement was facially incomplete)．As this court recently stated:

Both the parol evidence rule and the doctrine of integration exist so that parties may rely on the enforcement of agreements that have been reduced to writing.If it were not for these established principles，even the most carefully considered written documents could be destroyed by “proof ”of other agreements not included in the writing.

Id.at 176.

B.

［5］［6］In addition，the two alleged oral agreements are not“collateral”to the written * 1 184 agreement.Evidence of a collateral contemporaneous agreement“though it refer to the same subject matter，and may affect the rights of the parties under the written contract”may be proven if not inconsistent with the integrated contract.Connerv.May， 444S.W.2d948， 952(Tex.Civ.App.—Austin 1969，writ ref'd n.r.e.)．To be collateral，the agreement must be made for separate consideration，or“must be such as the parties might naturally make separately and would not ordinarily be expected to embody in the writing;and it must not be so clearly connected with the principal transaction as to be part and parcel thereof”.Weinacht，673 S.W.2d at 680.We examine the two claimed oral agreements in turn.

First，ABC asserts that MMB conceded that ABC is entitled to an offset of roughly $ 400 000 for defective and non-conforming goods，and thus agreed to ship replacement goods.But，this extrinsic evidence contradicts the payment agreement，which states that “the total amount which the American Business Center，Inc.owed to the Beijing Metals and Minerals Import and Export Corporation as are sult of the D/A 90 day conditions， was U.S.$ 1 225 997.78”，and is therefore inadmissible.See Rincones v.Windberg，705 S.W.2d 846，849(Tex.App.—Austin 1986，no writ)(“the parol evidence rule prohibits the admission of oral evidence which alters the payment terms of a written contract”)．

Second， ABC maintains that its obligation under the payment schedule was contingent upon MMB's agreement to resume shipment on D/A 90 day terms.We agree with ABC that this alleged oral agreement，standing alone，is not inconsistent with the payment terms stated in the written agreement，because it is silent as to future sales.However，evidence of the oral agreement is nonetheless inadmissible，because its contingent nature is inconsistent with the unconditional language of the written agreement.Cf.Jack H.Brown ＆ Co.，906 F.2d at 176(“where a written release is unambiguous，any attempt to prove that the release was signed in return for additional consideration not mentioned in the release violates the parol evidence rule”)．

Moreover，we cannot conclude that a contingency of this nature would naturally be made as a separate agreement.As our court stated，when presented with a quite similar factual context in Jack H.Brown ＆ Co.，906 F.2d at 176:

It is implausible that Toys would have used explicit，unconditional release language in Markham's letter，while orally agreeing to make the release contingent on some vague guarantee of future business.Nor can we believe that the alleged oral agreement is one that would be made separately....This court recognizes that even the most sophisticated businessmen often deal with each other informally and verbally，but in circumstances such as these，even an unsophisticated businessman...would either have protested the unconditional release language or insisted on getting the alleged oral agreement in writing.

Accordingly，we conclude，as did the district court，that ABC is barred by the parol evidence rule from introducing extrinsic evidence to alter the terms of the written agreement.［FN12］

III.

For the foregoing reasons， the summary judgment as to fraudulent inducement and to claims or defenses pertaining to the quality and quantity of goods received is REVERSED;the judgment in all other respects is AFFIRMED;and this severed claim is REMANDED for further proceedings consistent with this opinion，to include，as to the payment agreement，extrinsic evidence not being admissible to alter its terms，but being admissible on whether it was fraudulently induced.

AFFIRMED in Part，REVERSED in Part，and REMANDED.

思考题

1.简述本案基本事实。

2.在《国际货物销售合同公约》中是否可以适用口头证据规则，原因是什么?

3.本案讨论《国际货物销售合同公约》中是否可以适用口头证据规则的原因是什么?

4.法官裁决的依据是什么?