Cite as: 516 U. S. 417 (1996)
Breyer, J., dissenting
Justice Breyer, with whom Justice O'Connor joins, dissenting.
The petitioners, two chemical companies, have brought this breach-of-contract action seeking reimbursement from the Government for their contribution to the settlement of lawsuits brought by Vietnam veterans exposed to their product Agent Orange. The companies argue that their contracts with the Government to produce Agent Orange contain certain promises or warranties that, in effect, hold them harmless. To win this case, as in the most elementary breach-of-contract case, the companies must show that the Government in fact made the warranties or promises, that the Government breached them, and that the Agent Orange settlement contribution was a consequent foreseeable harm. See Restatement (Second) of Contracts §§ 346, 347, 351 (1979); 5 A. Corbin, Contracts §§ 997, 1001, 1002 (1964).
The companies concede that the promises, or warranties, are not written explicitly in their contracts; but, the companies intend to prove certain background facts and legal circumstances, which, they say, will show that these promises, or warranties, are an implicit part of the bargain that the parties struck. See 3 id., §§ 538, 551 (common and trade usage, course of dealings, and existing statutes and rules of law are always probative as to the meaning of the parties).
The background facts alleged include the following: x In the 1960's the Government, by exercising special statutory authority, required the companies to enter into the Agent Orange production contracts over the explicit objection of at least one of the companies. See Defense Production Act of 1950 (DPA), 50 U. S. C. App. § 2061 et seq. (1988 ed. and Supp. V); App. 8-9, 23-24. x The Government required the companies to produce Agent Orange according to precise, detailed production spec-ifications. Ibid. x At that time the Government knew but did not reveal that Agent Orange was defective, or unsafe, to the point
431
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