【正文】 s Restatement (Second) 167。 200. Interpretation of a Promise or Agreement Interpretation of a promise/agreement/term thereof is the ascertainment of its meaning. General Approach 1. Did parties (subjectively) attach same meaning to term at time of contract? Yes – There is an agreement, use same meanings. 167。 201(1). No – go to 2 2. Did party X know or have reason to know party Y’s meaning of term? Yes if Y did not know X’s meaning – use Y’s meaning. 167。 201(2). No – go to 3 3. Can objective meaning be determined? Yes – use whichever party’s subjective meaning matches objective meaning. No – no agreement, only seemed to be mutual assent. 12 of 50 Restatement (Second) 167。 201. Whose Meaning Prevails (1) [When parties have same meaning, use that]. (2) [When different meanings, use A’s meaning if B a) knew, or b) had reason to know of A’s meaning]. (3) Except as stated in this Section, neither party is bound by the meaning attached to the other, even though the result may be a failure of mutual assent. Restatement (Second) 167。 202. Rule in Aid of Interpretation [Use whole weight of words, including context and in light of all circumstances. Generally prevailing meaning used, but use technical definitions and trade usage where appropriate. Use course of performance and course of dealing. Any term accepted without objection should be given greater weight]. Restatement (Second) 167。 206. Interpretation Against the Draftsman UCC Evidence Hierarchy 1. Express Terms。 2. Course of Performance。 3. Course of Dealing。 4. Trade Usage Raffles v. Wichelhaus (. 1864) Facts: Wichelhaus, a cotton speculator, contracted with Raffles to buy cotton arriving on Peerless. W meant one leaving in Oct., R shipped on one leaving in Dec. W refused to buy. Law: Two ships Peerless – ambiguity means there is no meeting of the minds. Oswald v. Allen (2d Cir. 1969) Facts: Oswald wanted to buy all Swiss coins from Allen, including those in her Rare Coin Collection. Allen thought only coins in Swiss Coin Collection. Law: No meeting on the minds, so no contract. No sensible way to choose between two different interpretations. Weinberg v. Edelstein (. 1952) Facts: Weinberg had restrictive covenant which meant only he could sell dresses in the building. Edelstein tried to sell two piece business suits. Law: Should use trade usage of the word dress, which does not include business suits. Frigaliment v. . Int’l Sales Corp. (. 1960) Facts: BNS shipped chickens to Frig including stewing chickens. Frig only wanted broilers and fryers and said that’s what the contract called for when said “chicken.” Law: BNS’s view coincided with AN objectively reasonable meaning of the word in the trade. Frig has to show broilers and fryers is the ONLY objective meaning of the word. Note: Frig had the burden – if . was suing, then its claim would have failed too since Frig’s meaning was also reasonable in the trade and the burden would be on . 13 of 50 2. Filling Gaps Restmt. (Second) 167。 34. Certainty and Choice of Terms。 Effect of Performance or Reliance (1) The terms of a contract may be reasonably certain even though it empowers one or both parties to make a selection of terms in the course of performance. (2) Part performance under an agreement may remove uncertainty and establish that a contract enforceable as a bargain has been formed. (3) Action in reliance on an agreement may make a contractual remedy appropriate even though uncertainty is removed. Restatement (Second) 167。 204. Supplying an Omitted Essential Term When the parties to a bargain sufficiently defined to be a contract have not agreed to a term which is essential to a determination of their rights and duties, a term which is reasonable in the circumstances is supplied by the court. UCC 167。 2204. Formation in General (3) Even though one or more terms are left open a contract for sale does not fail for indefiniteness if the parties have intended to make a contract and there is a basis for an appropriate remedy. [Cf. 167。 33, below] UCC Provisions for Open Terms 167。 2305. Open Price Term [Price can be left open – should be fixed reasonably] 167。 2306. Output Requirements [(1) Quantity measured by output can be in good faith, should reasonably to port to estimates。 (2) Each party should use best efforts to satisfy bargain in exclusive agreements]. 167。 2308. Absence of Specified Time for Delivery [Generally, place should be home or business, titles through banks, and if seller knows where buyer is, then at that place] 167。 2309. Absence of Specific Time Provisions。 Notice of Termination. [Should give reasonable notice of termination and ship goods in reasonable time] 167。 2310. Open Time for Payment…Ship[ping] under Reservation [Payment due at time and place of receipt, buyer may inspect goods] Sun Printing v. Remington Paper (. 1923) Facts: Sun agreed to buy paper from Remington over 16 month period with price term left open for last 12 months。 agreed to negotiate price during that time. Law: Essential terms must be agreed upon – an agreement to agree or negotiate does not supply term as it is too uncertain. Since price not agreed upon, Sun not bound. Judges must not be given the power to revise, only to interpret. Martin v. Schumacher (. 1981) Law: Mere agreement to agree unenforceable, especially when specific performance sought. There must be some inkling that parties would have agreed to price judicially imposed. 14 of 50 Texaco v. Pennzoil (Tex. 1987) Facts: Texaco gives laundry of list of potential details to be worked out. Law: Contract still binding because specific term omitted not alleged by Texaco. New York Central Iron Works v. United States Radiator (. 1903) Facts: CIW promised to buy entire radia