Cite as: 516 U. S. 417 (1996)
Breyer, J., dissenting
this Court has explicitly written that it "fail[s] to see how the Stencel holding . . . supports the conclusion that if the Tort Claims Act bars a tort remedy, neither is there a contractual remedy. The absence of Government tort liability has not been thought to bar contractual remedies on implied-in-fact contracts, even in those cases also having elements of a tort." Hatzlachh Supply Co. v. United States, 444 U. S. 460, 465 (1980) (per curiam). I agree with the majority insofar as it warns against a court's too easily reading an implicit promise to indemnify a contractor's armed-services-related tort liability; but, then, its words would represent simply a wise caution and not an absolute prohibition.
In sum, the companies argue factual circumstances—compelled production, superior knowledge, detailed specifications, and significant defect—which, if true, suggest that a government, dealing in good faith with its contractors, would have agreed to the "implied" promise, particularly in light of legal authorities, known at the time, that offered somewhat similar guarantees to contractors in somewhat similar circumstances. The validity of their claim is likely to turn on the strength of the companies' factual case, as supported by evidence, and upon the details of Government contracting practices in the 1960's—matters not now before us and with which the lower courts are more familiar than are we.
The Court today unnecessarily restricts Spearin warranties, and, lacking particular facts at this stage of the proceeding, it relies on statutory circumstances that are common to many Government contracts. I fear that the practical effect of disposing of the companies' claim at this stage of the proceeding will be to make it more difficult, in other cases even if not here, for courts to interpret Government contracts with an eye toward achieving the fair allocation of risks that the parties likely intended.
For these reasons, I would remand this case for further proceedings.
441
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