436
Breyer, J., dissenting
simply should set aside the Court of Appeals' determination on the point.
The Court instead decides this case on an alternative basis, namely, that the companies cannot prove the existence of the implicit promises or warranties that they claim. But the existence of a contractual promise implied in fact is very much a creature of particular circumstance—the particular terms, the negotiating circumstances, and the background understandings of law or industry practice. See 3 Corbin, supra, §§ 562, 566-570. Unlike the majority, which compartmentalizes the companies' claims into several separate doctrinal categories (a "Spearin" claim, an implied indemnification claim)—each rejected separately for doctrine-specific reasons—I believe the companies' submissions, fairly read, also set forth a much more general fact-based claim. In essence, the companies say that the parties, when specifying the details of this compulsory defense order, implicitly agreed to allocate to the Government certain risks of defective-government-specification-caused harm—namely, those risks for which each company, because of its inferior knowledge, could not seek compensation in the contract price. And, the companies allege background facts that, if true and complete (as we must assume at this stage of the proceedings), make that implication plausible.
The legal considerations to which the majority points do not answer the companies' basic implied-in-fact contentions. To do so, the majority would have to argue that the five sets of legal circumstances to which it points, taken separately or together, show that no Government contracting officer would have agreed to a promise or warranty (of the sort claimed); hence, one cannot possibly imply the existence of such a promise "in fact." See 3 Corbin, supra, § 561. The majority cannot argue that, because those five sets of circumstances suggest the contrary.
First, the majority implies that a contracting officer, in all likelihood, would not have agreed to an implicit promise of
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