辽宁伯宁律师事务所 郑 易

大连海事大学法学院 初北平

商业理念在合同解释中的作用
——英国最高法院“Rainy Sky v.Kookmin Bank”案评析

辽宁伯宁律师事务所 郑 易

大连海事大学法学院 初北平

英国法下，合同解释的重心已经从原来严格的文义解释逐渐向商业解释转移。本案即是一个以商业目的来解释合同的典型案例。船厂依造船合同约定，请银行向买方提供预付款保函。本案的纠纷主要在于，根据保函条款，船厂破产时银行是否有义务向买方支付退款。当事人之间的纠纷主要涉及对保函条款的准确解释，即判断船厂破产引起的退款是否应在保函范围内。本案①Rainy Sky SA and Others v.Kookmin Bank [2011] UKSC 50.首先被提交伦敦仲裁，仲裁员认为结合商业理念解释合同，破产情形应在担保范围内；之后上诉法院推翻了仲裁裁决，认为按照合同自然文义，破产情形被排除在保函之外；最终，最高法院给出了与仲裁裁决相同的结果。本文结合对上述案例的介绍、分析，讨论了英国法下合同解释的原则，以及“商业理念”在目前合同解释中的重要作用。

[案情]

2007年5月11日，Jinse Shipbuilding Co.Ltd（以下简称“船厂”）与Rainy Sky SA等六家公司（以下合称“买方”）分别签订了造船合同。合同约定，每艘船舶造价为3 330万美元，造船款平均分为五期，由买方在约定的时间支付，即每期支付660万美元，最后一期款项的支付时间为交船时。此外，合同还做出了如下规定：

“ARTICLE X: PAYMENT

…

5.REFUND BY THE BUILDER

The payments made by the Buyer to the Builder prior to delivery of the Vessel shall constitute advances to the Builder.If the Vessel is rejected by the Buyer in accordance with the terms of this Contract，or if the Buyer terminates，cancels or rescinds this Contract pursuant to any of the provisions of this Contract specifically permitting the Buyer to do so，the Builder shall forthwith refund to the Buyer in US dollars，the full amount of total sums paid by the Buyer to the Builder in advance of delivery together with interest thereon as herein provided within thirty（30）banking days of acceptance of rejection.

…The interest rate of the refund…Shall be seven per cent（7%）per annum…

If the Builder is required to refund to the Buyer the installments paid by the Buyer to the Builder as provided in this Paragraph，the Builder shall return to the Buyer all of the Buyer’s Supplies as stipulated in Article ⅩⅢ which were not incorporated into the Vessel and pay to the Buyer an amount equal to the cost to the Buyer of those Buyer’s Supplies incorporated into the Vessel.

6.TOTAL LOSS

If there is a total loss or a constructive total loss of the Vessel prior to delivery thereof，the Builder shall proceed according to the mutual agreement of the parties hereto either：

（a）To build another vessel in place of the Vessel so lost…provided that the parties hereto shall have agreed in writing to a reasonable cost and time for the construction…or

（b）To refund to the Buyer the full amount of the total sum paid by the Buyer to the Builder under the provisions of Paragraph 2 of this Article and the value of Buyer’s Supplies delivered to the Shipyard，if any，together with interest thereon at the rate of ten percent（10%）per annum…

If the parties hereto fail to reach such agreement within two（2）months after the Vessel is determined to be a total loss or constructive total loss，the provisions of（b）hereinabove shall be applied.

…

8.REFUND GUARANTEE

The Builder shall as a condition precedent to payment by the Buyer of the first installment deliver to the Buyer an assignable letter of guarantee issued by a first class Korean Bank…to Buyer’s Financiers for the refund of the first installment，and at the same time，together with the letter of guarantee relating to the first installment，Builder shall also deliver to the Buyer an assignable letter of guarantee issued by a first class Korean Bank…for the refund of the respective installments following the way of the payment stipulated in this Article，the refund guarantees by the Builder to the Buyer shall be indicated pre-delivery installments plus interest as aforesaid to the Buyer under or pursuant to paragraph 5 above in the form annexed hereto as Exhibit ‘A’ which is yet to be agreed…

In the event that the Refund Guarantees，for all installments，have not been provided to the Buyer in a form acceptable to the Buyer’s financiers and have not been issued by an entity acceptable to Buyer’s financiers，by the 31stof August 2007 then the Buyer may cancel this Contract without penalty on either side.

Article XII: BUILDER’S DEFAULT

…

3.If the Builder shall apply for or consent to the appointment of a receiver，trustee or liquidator，shall be adjudicated insolvent，shall apply to the court for protection from its creditors，file a voluntary petition in bankruptcy or take advantage of any insolvency law，or any action shall be taken by the Builder having an effect similar to any of the foregoing or the equivalent thereof in any jurisdiction，the Buyer may by notice in writing to the Builder require the Builder to refund immediately to the Buyer the full amount of all sums paid by the Buyer to the Builder on account of the Vessel and interest thereon at seven percent（7%）per annum on the amount to be refunded to the Buyer，computed from the respective date such sums were paid by the Buyer to the date of remittance of the refundable amount to the Buyer and immediately upon receipt of such notice the Builder shall refund such amount to the Buyer.Following such refund the Builder may，but shall not be obliged to by notice in writing to the Buyer given within ten（10）business days terminate this contract.If the Builder does not so terminate the Contract the Buyer’s obligation to pay further installments prior to delivery of the Vessel under Article X 2（a），（b），（c）and（d）shall be suspended and the full Contract price shall be paid to the Builder upon delivery of the Vessel in the manner contemplated by Article X paragraph 2（e）.”

2007年8月27日，船厂指定Kookmin Bank（以下简称“银行”）按照合同第X.8条的要求，为所有买方分别提供了预付款保函（Advance Payment Bond，以下简称“保函”）。……