426
Opinion of the Court
As an alternative basis for recovery, Thompson contends that the context in which the Government compelled it to manufacture Agent Orange constitutes an implied-in-fact agreement by the Government to indemnify for losses to third parties.7 The Government required Thompson to produce under authority of the DPA and threat of civil and criminal fines, imposed detailed specifications, had superior knowledge of the hazards, and, to a measurable extent, seized Thompson's processing facilities. Under these conditions, petitioner contends, the contract must be read to include an implied agreement to protect the contractor and indemnify its losses. We cannot agree.
The circumstances surrounding the contracting are only relevant to the extent that they help us deduce what the parties to the contract agreed to in fact. These conditions here do not, we think, give rise to an implied-in-fact indemnity agreement.8 There is also reason to think that a con-7 Hercules did not plead contractual indemnification in its complaint or raise the claim in the Court of Appeals. Indeed, in the Claims Court, Hercules expressly disavowed having raised any contractual-indemnification claim. Plaintiff's Memorandum in Opposition to Defendant's Motion to Dismiss and for Summary Judgment in No. 90-496, p. 55 ("Hercules' claims for relief all are based on breaches of contractual duties; they are not claims that the Government has impliedly or expressly agreed to indemnify Hercules for open-ended liabilities").
8 Justice Breyer argues that the record before us does not permit us to find, as we do, that the conditions asserted do not support the inference that the contracting parties had a meeting of the minds and in fact agreed that the United States would indemnify. If Justice Breyer is suggesting that the petitioners need further discovery to develop claims alleged in the complaints and not to some unarticulated third claim, see n. 4, supra; post, at 436), we believe his plea for further discovery must necessarily apply only to Thompson's contractual-indemnification claim; we hold in this case that the Spearin claims made by both petitioners do not extend to postperformance third-party costs as a matter of law. See supra, at 425. In any event, Justice Breyer fails to explain what facts are needed, or might be developed, which would place a court on remand in a better position than where we sit today. We take all factual allegations
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