Scenario 6 of 6
Two contracts, one date, inconsistent pricing, no priority clause
Both confirmations were signed 2 May 1957 on identical product terms at different prices. Neither says which governs, or how a carton is assigned to one rather than the other.
The situation
The parties dispute the price owed for a lot of 2½–3 lb. birds. Each contract was executed 2 May 1957, on identical product terms, and neither states which governs, whether they are severable, or whether the second amends the first. The Buyer argues the documents describe a single course of dealing at a single price, so the lower figure controls throughout. The Seller argues these are two independent contracts, that the second's higher price for the lighter class shows the parties repriced deliberately, and that each shipment is governed by its own document.
Two documents of the same date covering the same goods between the same parties describe one bargain, not two. Neither contains an integration clause, a severability clause, or a statement of priority, and neither supplies any mechanism for assigning a given carton to a given document. Where the parties left the relationship between the writings unstated, the price the Buyer actually agreed to first should govern the goods it actually received.
These are two contracts. They differ in three deliberate respects — quantity, price, and shipment date — which is the signature of considered repricing, not clerical duplication. Separately scheduled shipments at separately stated prices are separate bargains in this trade, and the Buyer's theory would let it cherry-pick the lower of two negotiated prices for goods shipped under the later document.
Weak point
Two same-day documents covering the same goods carry different prices for the same class with no explanation, no integration clause, no severability clause, and no statement of priority — so nothing on the face of either says whether they are one bargain or two, or which governs a lot that could be allocated to either.
Likely outcome
The Seller probably prevails, but the seam is live enough to litigate. Separately dated shipments at separately stated prices are ordinarily separate contracts, and the deliberate variation between them — three distinct changes, not a clerical difference — supports treating the second as an independent bargain rather than a restatement. The Buyer's argument gains force only if performance blurred the two, which is exactly what the absence of any allocation mechanism invites: nothing in either document says how a given carton is assigned to a given contract. That is a drafting failure with real consequences in a partial-shipment dispute.
Proposed amendment
This contract is separate from and independent of any other contract between the parties, including the contract of even date covering [quantity] lbs. In the event of conflict, the contract bearing the later shipment date governs shipments made after [date]. Each shipment shall be identified by contract number on the bill of lading and invoice.
Anchored in the contract
L475,000 lbs. 2½-3 lbs. …… @ $33.00 / 25,000 lbs. 1½-2 lbs. …… @ $36.50 / per 100 lbs. FAS New York
Read in context → L4′50,000 lbs. 2½-3 lbs. …… @ (price not stated in the opinion) / 25,000 lbs. 1½-2 lbs. …… @ $37.00 / per 100 lbs. FAS New York
Read in context →