TRAYNOR, C. J.

Dallas Masterson and his wife Rebecca owned a ranch as tenants in common. On February 25, 1958, they conveyed it to Medora and Lu Sine by a grant deed “Reserving unto the Grantors herein an option to purchase the above described property on or before February 25, 1968” for the “same consideration as being paid heretofore plus their depreciation value of any improvements Grantees may add to the property from and after two and a half years from this date.” Medora is Dallas’ sister and Lu’s wife. Since the conveyance Dallas has been adjudged bankrupt. His trustee in bankruptcy and Rebecca brought this declaratory relief action to establish their right to enforce the option.

The case was tried without a jury. Over defendants’ objection the trial court admitted extrinsic evidence that by “the same consideration as being paid heretofore” both the grantors and the grantees meant the sum of $50,000 and by “depreciation value of any improvements” they meant the depreciation value of improvements to be computed by deducting from the total amount of any capital expenditures made by defendants grantees the amount of depreciation allowable to them under United States income tax regulations as of the time of the exercise of the option.

The court also determined that the parol evidence rule precluded admission of extrinsic evidence offered by defendants to show that the parties wanted the property kept in the Masterson family and that the option was therefore personal to the grantors and could not be exercised by the trustee in bankruptcy.

The court entered judgment for plaintiffs, declaring their right to exercise the option, specifying in some detail how it could be exercised, and reserving jurisdiction to supervise the manner of its exercise and to determine the amount that plaintiffs will be required to pay defendants for their capital expenditures if plaintiffs decide to exercise the option.

Defendants appeal. They contend that the option provision is too uncertain to be enforced and that extrinsic evidence as to its meaning should not have been admitted. The trial court properly refused to frustrate the obviously declared intention of the grantors to reserve an option to repurchase by an overly meticulous insistence on completeness and clarity of written expression.' (See California Lettuce Growers, Inc. v. Union Sugar Co. (1955) 45 Cal.2d 474, 481 [289 P.2d 785, 49 A.L.R.2d 496] ; Rivers v. Beadle (1960) 183 Cal. App.2d 691, 695-697 [7 Cal.Rptr. 170].) It properly admitted extrinsic evidence to explain the language of the deed (Nofziger v. Holman (1964) 61 Cal.2d 526, 528 [39 Cal.Rptr. 384, 393 P.2d 696] ; Barham v. Barham (1949) 33 Cal.2d 416, 422-423 [202 P.2d 289] ; Union Oil Co. v. Union Sugar Co. (1948) 31 Cal.2d 300, 306 [188 P.2d 470] ; Schmidt v. Macco Constr. Co. (1953) 119 Cal.App.2d 717, 730 [260 P.2d 230] ; see Farnsworth, “Meaning” in the Law of Contracts (1967) 76 Yale L.J. 939, 959-965; Corbin, The Interpretation of Words and the Parol Evidence Rule (1965) 50 Cornell L.Q. 161) to the end that the consideration for the option would appear with sufficient certainty to permit specific enforcement (see Mc-Keon v. Santa Claus of Cal., Inc. (1964) 230 Cal.App.2d 359, 364 [41 Cal.Rptr. 43] ; Vurrow v. Timmsen (1963) 223 Cal. App.2d 283, 288 [35 Cal.Rptr. 668, 100 A.L.R.2d 544]). The trial court erred, however, in excluding the extrinsic evidence that the option was personal to the grantors and therefore nonassignable.

When the parties to a written contract have agreed to it as an “integration”—a complete and final embodiment of the terms of an agreement—parol evidence cannot be used to add to or vary its terms. (Pollyanna Homes, Inc. v. Berney (1961) 56 Cal.2d 676, 679-680 [16 Cal.Rptr. 345, 365 P.2d 401] ; Hale v. Bohannon (1952) 38 Cal.2d 458, 465 [241 P.2d 4] ; see 3 Corbin, Contracts (1960) § 573, p. 357; Rest., Contracts (1932) §§ 228 (andcom. a), 237; Code Civ. Proc., § 1856; Civ. Code, § 1625.) When only part of the agreement is integrated, the same rule applies to that part, but parol evidence may be used to prove elements of the agreement not reduced to writing. (Hulse v. Juillard Fancy Foods Co. (1964) 61 Cal.2d 571, 573 [39 Cal.Rptr. 529, 394 P.2d 65] ; Schwartz v. Shapiro (1964) 229 Cal.App.2d 238, 250 [40 Cal.Rptr. 189] ; Mangini v. Wolfschmidt, Ltd. (1958) 165 Cal.App.2d 192, 200-201 [331 P.2d 728] ; Rest., Contracts (1932) § 239.)

The crucial issue in determining whether there has been an integration is whether the parties intended their writing to serve as the exclusive embodiment of their agreement. The instrument itself may help to resolve that issue. It may state, for example, that “there are no previous understandings or agreements not contained in the writing,” and thus express the parties’ “intention to nullify antecedent understandings or agreements.” (See 3 Corbin, Contracts (1960) § 578, p. 411.) Any such collateral agreement itself must be examined, however, to determine whether the parties intended the subjects of negotiation it deals with to be included in, excluded from, or otherwise affected by the writing. Circumstances at the time of the writing may also aid in the determination of such integration. (See 3 Corbin, Contracts (1960) §§ 582-584; McCormick, Evidence (1954) § 216, p. 441; 9 Wigmore, Evidence (3d ed. 1940) § 2430, p. 98, § 2431, pp. 102-103; Witkin, Cal. Evidence (2d ed. 1966) §721; Schwartz v. Shapiro, supra, 229 Cal.App.2d 238, 251, fn. 8; contra, 4 Williston, Contracts (3d ed. 1961) § 633, pp. 1014-1016.)

California cases have stated that whether there ivas an integration is to be determined solely from the face of the instrument (e.g., Thoroman v. David (1926) 199 Cal. 386, 389-390 [249 P. 513] ; Heffner v. Gross (1919) 179 Cal. 738, 742-743 [178 P. 860] ; Gardiner v. McDonogh (1905) 147 Cal. 313, 318-321 [81 P. 964] ; Harrison v. McCormick (1891) 89 Cal. 327, 330 [26 P. 830, 23 Am.St.Rep. 469]), and that the question for the court is whether it ‘1 appears to be a complete . . . agreement. ...” (See Ferguson v. Koch (1928) 204 Cal. 342, 346 [268 P. 342, 58 A.L.R. 1176] ; Harrison v. McCormick, supra, 89 Cal. 327, 330.) Neither of these strict formulations of the rule, however, has been consistently applied. The requirement that the writing must appear incomplete on its face has been repudiated in many cases where parol evidence was admitted “to prove the existence of a separate oral agreement as to any matter on which the document is silent and which is not inconsistent with its terms”—even though the instrument appeared to state a complete agreement. (E.g., American Industrial Sales Corp. v. Airscope, Inc. (1955) 44 Cal.2d 393, 397 [282 P.2d 504, 49 A.L.R.2d 1344] ; Stockburgcr v. Dolan (1939) 14 Cal.2d 313, 317 [94 P.2d 33, 128 A.L.R. 83] ; Crawford v. France (1933) 219 Cal. 439, 443 [27 P.2d 645] ; Buckner v. A. Leon & Co. (1928) 204 Cal. 225, 227 [267 P. 693] ; Sivers v. Sivers (1893) 97 Cal. 518, 521 [32 P. 571] ; cf. Simmons v. California Institute of Technology (1949) 34 Cal.2d 264, 274 [209 P.2d 581].) Even under the rule that the writing alone is to be consulted, it was found necessary to examine the alleged collateral agreement before concluding that proof of it was precluded by the writing alone. (See 3 Corbin, Contracts (1960) § 582, pp. 444-446.) It is therefore evident that “The conception of a writing as wholly and intrinsically self-determinative of the parties’ intent to make it a sole memorial of one or seven or twenty-seven subjects of negotiation is an impossible one.” (9 Wigmore, Evidence (3d ed. 1940) §2431, p. 103.) For example, a promissory note given by a debtor to his creditor may integrate all their present contractual rights and obligations, or it may be only a minor part of an underlying executory contract that would never be discovered by examining the face of the note.

In formulating the rule governing parol evidence, several policies must be accommodated. One policy is based on the assumption that written evidence is more accurate than human memory. (Germain Fruit Co. v. J. K. Armsby Co. (1908) 153 Cal. 585, 595 [96 P. 319].) This policy, however, can be adequately served by excluding parol evidence of agreements that directly contradict the writing. Another policy is based on the fear that fraud or unintentional invention by witnesses interested in the outcome of the litigation will mislead the finder of facts. (Germain Fruit Co. v. J. K. Armsby Co., supra, 153 Cal. 585, 596; Mitchill v. Lath (1928) 247 N.Y. 377, 388 [160 N.E. 646, 68 A.L.R. 239] [dissenting opinion by Lehman, J.]; see 9 Wigmore, Evidence (3d ed. 1940) § 2431, p. 102; Murray, The Parol Evidence Bule: A Clarification (1966) 4 Duquesne L.Rev. 337, 338-339.) McCormick has suggested that the party urging the spoken as against the written word is most often the economic underdog, threatened by severe hardship if the writing is enforced. In his view the parol evidence rule arose to allow the court to control the tendency of the jury to find through sympathy and without a dispassionate assessment of the probability of fraud or faulty memory that the parties made an oral agreement collateral to the written contract, or that preliminary tentative agreements were not abandoned when omitted from the writing. (See McCormick, Evidence (1954) § 210.) He recognizes, however, that if this theory were adopted in disregard of all other considerations, it would lead to the exclusion of testimony concerning oral agreements whenever there is a writing and thereby often defeat the true intent of the parties. (See McCormick, op. cit. supra, § 216, p. 441.)

Evidence of oral collateral agreements should be excluded only when the fact finder is likely to be misled. The rule must therefore be based on the credibility of the evidence. One such standard, adopted by section 240(1) (b) of the Restatement of Contracts, permits proof of a collateral agreement if it “is such an agreement as might naturally be made as a separate agreement by parties situated as were the parties to the written contract.’’ (Italics added; see McCormick, Evidence (1954) § 216, p. 441; see also 3 Corbin, Contracts (1960) § 583, p. 475, § 594, pp. 568-569; 4 Williston, Contracts (3d ed. 1961) § 638, pp. 1039-1045.) The draftsmen of the Uniform Commercial Code would exclude the evidence in still fewer instances: “If the additional terms are such that, if agreed upon, they would certainly have been included in the document in the view of the court, then evidence of their alleged making must be kept from the trier of fact.” (Com. 3, § 2-202, italics added.)1

The option clause in the deed in the present ease does not explicitly provide that it contains the complete agreement, and the deed is silent on the question of assignability. Moreover, the difficulty of accommodating the formalized structure of a deed to the insertion of collateral agreements makes it less likely that all the terms of such an agreement were included.2 (See 3 Corbin, Contracts (1960) §587; 4 Williston, Contracts (3d ed. 1961) §645; 70 A.L.R. 752, 759 (1931); 68 A.L.R. 245 (1930).) The statement of the reservation of the option might well have been placed in the recorded deed solely to preserve the grantors’ rights against any possible future purchasers, and this function could well be served without any mention of the parties ’ agreement that the option was personal. There is nothing in the record to indicate that the parties to this family transaction, through experience in land transactions or otherwise, had any warning of the disadvantages of failing to put the whole agreement in the deed. This ease is one, therefore, in which it can be said that a collateral agreement such as that alleged “might naturally be made as a separate agreement. ’ ’ A fortiori, the case is not one in which the parties “would certainly” have included the collateral agreement in the deed.

It is contended, however, that an option agreement is ordinarily presumed to be assignable if it contains no provisions forbidding its transfer or indicating that its performance involves elements personal to the parties. (Mott v. Cline (1927) 200 Cal. 434, 450 [253 P. 718] ; Altman v. Blewett (1928) 93 Cal.App. 516, 525 [269 P. 751].) The fact that there is a written memorandum, however, does not necessarily preclude parol evidence rebutting a term that the law would otherwise presume. In American Industrial Sales Corp. v. Airscope, Inc., supra, 44 Cal.2d 393, 397-398, we held it proper to admit parol evidence of a contemporaneous collateral agreement as to the place of payment of a note, even though it contradicted the presumption that a note, silent as to the place of payment, is payable where the creditor resides. (For other examples of this approach, see Richter v. Union Land etc. Co. (1900) 129 Cal. 367, 375 [62 P. 39] [presumption of time of delivery rebutted by parol evidence] ; Wolters v. King (1897) 119 Cal. 172, 175-176 [51 P. 35] [presumption of time of payment rebutted by parol evidence]; Mangini v. Wolfschmidt, Ltd., supra, 165 Cal.App.2d 192, 198-201 [presumption of duration of an agency contract rebutted by parol evidence] ; Zinn v. Ex-Cell-O Corp. (1957) 148 Cal.App.2d 56, 73-74 [306 P.2d 1017] ; see also Rest., Contracts, § 240, com. c.)3 Of course a statute may preclude parol evidence to rebut a statutory presumption. (E. G. Neff v. Ernst (1957) 48 Cal.2d 628, 635 [311 P.2d 489] [commenting on Civ. Code, § 1112] ; Kilfoy v. Fritz (1954) 125 Cal.App.2d 291, 293-294 [270 P.2d 579] [applying Deering’s Gen. Laws, 1937, Act. 652, § 15(a)]; see also Com. Code, § 9-318, subd. (4).) Here, however, there is no such statute. In the absence of a controlling statute the parties may provide that a contract right or duty is nontransfer able. (La Rue v. Groezinger (1890) 84 Cal. 281, 283 [24 P. 42, 18 Am.St.Rep. 179] ; Benton v. Hofmann Plastering Co. (1962) 207 Cal.App.2d 61, 68 [24 Cal.Rptr. 268] ; Parkinson v. Caldwell (1954) 126 Cal.App.2d 548, 552-553 [272 P.2d 934] ; see 4 Corbin, Contracts (1951) §§872-873.) Moreover, even when there is no explicit agreement— written or oral—that contractual duties shall be personal, courts will effectuate a presumed intent to that effect if the circumstances indicate that performance by a substituted person would be different from that contracted for. (Farmland Irr. Co. v. Dopplmaier (1957) 48 Cal.2d 208, 222 [308 P.2d 732, 66 A.L.R.2d 590] ; Prichard v. Kimball (1923) 190 Cal. 757, 764-765 [214 P. 863] ; Simmons v. Zimmerman (1904) 144 Cal. 256, 260-261 [79 P. 451, 1 Ann.Cas. 850] ; La Rue v. Groezinger, supra, 84 Cal. 281, 285; Coykendall v. Jackson (1936) 17 Cal.App.2d 729, 731 [62 P.2d 746] ; see 4 Corbin, Contracts (1951) § 865; 3 Williston, Contracts (3d ed. 1960) § 412, pp. 32-33; Rest., Contracts (Tent. Draft No. 3, 1967) §150(2).)

In the present case defendants offered evidence that the parties agreed that the option was not assignable in order to keep the property in the Masterson family. The trial court erred in excluding that evidence.

The judgment is reversed.

Peters, J., Tobriner, J., Mosk, J., a.nd Sullivan, J., concurred.

BURKE, J.

I dissent. The majority opinion:

(1) Undermines the parol evidence rule as we have known it in this state since at least 18721 by declaring that parol evidence should have been admitted by the trial court to show that a written option, absolute and unrestricted in form, was intended to be limited and nonassignable;

(2) Renders suspect instruments of conveyance absolute on their face;

(3) Materially lessens the reliance which may be placed upon written instruments affecting the title to real estate; and

(4) Opens the door, albeit unintentionally, to a new technique for the defrauding of creditors.

The opinion permits defendants to establish by parol testimony that their grant2 to their brother (and brother-in-law) of a written option, absolute in terms, was nevertheless agreed to be nonassignable by the grantee (now a bankrupt), and that therefore the right to exercise it did not pass, by operation of the bankruptcy laws, to the trustee for the benefit of the grantee’s creditors.

And how was this to be shown ? By the proffered testimony of the bankrupt optionee himself! Thereby one of his assets (the option to purchase defendants’ California ranch) would be withheld from the trustee in bankruptcy and from the bankrupt’s creditors. Understandably the trial court, as required by the parol evidence rule, did not allow the bankrupt by parol to so contradict the unqualified language of the written option.

The court properly admitted parol evidence to explain the intended meaning of the “same consideration” and “depreciation value” phases of the written option to purchase defendants’ land, as the intended meaning of those phrases was not clear. However, there was nothing ambiguous about the granting language of the option and not the slightest suggestion in the document that the option was to be nonassignable. Thus, to permit such words of limitation to be added by parol is to contradict the absolute nature of the grant, and to directly violate the parol evidence rule.

Just as it is unnecessary to state in a deed to “lot X” that the house located thereon goes with the land, it is likewise unnecessary to add to “I grant an option to Jones” the words “and Ms assigns” for the option to be assignable. As hereinafter emphasized in more detail, California statutes expressly declare that it is assignable, and only if I add language in writing showing my intent to withhold or restrict the right of assignment may the grant be so limited. Thus, to seek to restrict the grant by parol is to contradict the written document in violation of the parol evidence rule.

The majority opinion arrives at its holding via a series of false premises which are not supported either in the record of this case or in such California authorities as are offered.

The parol evidence rule is set forth in clear and definite language in the statutes of this state. (Civ. Code, § 1625; Code Civ. Proc., § 1856.) It “is not a rule of evidence but is one of substantive law. . . . The rule as applied to contracts is simply that as a matter of substantive law, a certain act, the act of embodying the complete terms of an agreement in a writing (the ‘integration’), becomes the contract of the parties.” (Hale v. Bohannon (1952) 38 Cal.2d 458, 465 [1, 2] [241 P.2d 4], quoting from Estate of Gaines (1940) 15 Cal.2d 255, 264-265 [100 P.2d 1055].) The rule is based upon the sound principle that the parties to a written instrument, after committing their agreement to or evidencing it by the writing, are not permitted to add to, vary or contradict the terms of the writing by parol evidence. As aptly expressed by the author of the present majority opinion, speaking for the court in Parsons v. Bristol Dev. Co. (1965) 62 Cal.2d 861, 865 [2] [44 Cal.Rptr. 767, 402 P.2d 839], and in Coast Bank v. Minderhout (1964) 61 Cal.2d 311, 315 [38 Cal.Rptr. 505, 392 P.2d 265], such evidence is “admissible to interpret the instrument, but not to give it a meaning to which it is not reasonably susceptible.” (Italics added.) Or, as stated by the same author, concurring in Laux v. Freed (1960) 53 Cal.2d 512, 527 [2 Cal.Rptr. 265, 348 P.2d 873], ‘1 extrinsic evidence is not admissible to ‘add to, detract from, or vary its terms.’ ” (Italics added.)

At the outset the majority in the present case reiterate3 that the rule against contradicting or varying the terms of a writing remains applicable when only part of the agreement is contained in the writing, and parol evidence is used to prove elements of the agreement not reduced to writing. But having restated this established rule, the majority opinion inexplicably proceeds to subvert it.

Each of the three cases cited by the majority (fn. 3, ante) holds that although parol evidence is admissible to prove the parts of the contract not put in writing, it is not admissible to vary or contradict the writing or prove collateral agreements which are inconsistent therewith. The meaning of this rule (and the application of it found in the eases) is that if the asserted unwritten elements of the agreement would contradict, add to, detract from, vary or be inconsistent with the written agreement, then such elements may not be shown by parol evidence.

The contract of sale and purchase of the ranch property here involved was carried out through a title company upon written escrow instructions executed by the respective parties after various preliminary negotiations. The deed to defendant grantees, in which the grantors expressly reserved an option to repurchase the property within a ten-year period and upon a specified consideration, was issued and delivered in consummation of the contract. In neither the written escrow instructions nor the deed containing the option is there any language even suggesting that the option was agreed or intended by the parties to be personal to the grantors, and so nonassignable. The trial judge, on at least three separate occasions, correctly sustained objections to efforts of defendant optionors to get into evidence the testimony of Dallas Masterson (the bankrupt holder of the option) that a part of the agreement of sale of the parties was that the option to repurchase the property was personal to him, and therefore unassignable for benefit of creditors. But the majority hold that that testimony should have been admitted, thereby permitting defendant optionors to limit, detract from and contradict the plain and unrestricted terms of the written option in clear violation of the parol evidence rule and to open the door to the perpetration of fraud.

Options are property, and are widely used in the sale and purchase of real and personal property. One of the basic incidents of property ownership is the right of the owner to sell or transfer it. The author of the present majority opinion, speaking for the court in Farmland Irr. Co. v. Dopplmaier (1957) 48 Cal.2d 208, 222 [308 P.2d 732, 66 A.L.R.2d 590], put it this way: 11 The statutes in this state clearly manifest a policy in favor of the free transferability of all types of property, including rights under contracts.”4 (Citing Civ. Code, §§ 954, 1044, 14585; see also 40 Cal.Jur.2d 289-291, and cases there cited.) These rights of the owner of property to transfer it, confirmed by the cited code sections, are elementary rules of substantive law and not the mere disputable presumptions which the majority opinion in the present case would make of them. Moreover, the right of transferability applies to an option to purchase, unless there are words of limitation in the option forbidding its assignment or showing that it was given because of a peculiar trust or confidence reposed in the optionee. (Mott v. Cline (1927) 200 Cal. 434, 450 [11] [253 P. 718] ; Prichard v. Kimball (1923) 190 Cal. 757, 764-765 [4, 5] [214 P. 863] ; Altman v. Blewett (1928) 93 Cal.App. 516, 525 [3] [269 P. 751] ; see also 5 Cal.Jur.2d 393, 395-396, and cases there cited.) Thus, in Prichard the language of the document ilself (a written, expressly nonassignable lease, with option to buy) was held to establish the trust or confidence reposed in the optionee and so to negate assignability of the option.

The right of an optionee to transfer his option to purchase property is accordingly one of the basic rights which accompanies the option unless limited under the language of the option itself. To allow an optionor to resort to parol evidence to support his assertion that the written option is not transferable is to authorize him to limit the option by attempting to restrict and reclaim rights with which he has already parted. A clearer violation of two substantive and basic rules of law— the parol evidence rule and the right of free transferability of property—would be difficult to conceive.

The majority opinion attempts to buttress its approach by asserting (ante, p. 226) that “California eases have stated that whether there ivas an integration is to be determined solely from the face of the instrument [citations], and that the question for the court is whether it 1 appears to be a complete . . . agreement. . . . [citations],” but that “Neither of these strict formulations of the rule . . . has been consistently applied. ’ ’

The majority’s claim of inconsistent application of the parol evidence rule by the California courts fails to find support in the examples offered. First, the majority opinion asserts (ante, p. 226) that “The requirement that the writing must appear incomplete on its face has been repudiated in many cases where parol evidence was admitted 'to prove the existence of a separate oral agreement as to any matter on which the document is silent and which is not inconsistent with its terms’—even though the instrument appeared to state a complete agreement. [Citations.] ” But an examination of the cases cited in support of the quoted statement discloses that on the contrary in every case which is pertinent here (with a single exception) the writing was obviously incomplete on its face.6 In the one exception (Stockburger v. Dolan (1939) 14 Cal.2d 313, 317 [94 P.2d 33,128 A.L.R. 83]) it was held that lessors under a lease to drill for oil in an area zoned against such drilling should be permitted to show by parol that the lessee had contemporaneously agreed orally to seek a variance—an agreement which, as the opinion points out, did not contradict the written contract. But what is additionally noteworthy in Stockburger, and controlling here, is the further holding that lessors could not show by parol that lessee had orally agreed that a lease provision suspending payment of rental under certain circumstances would not apply during certain periods of time—as “evidence to that effect would vary the terms of the contract in that particular . . . . ” (P. 317 [5] of 14 Cal.2d.)

In further pursuit of what would appear to he nonexistent support for its assertions of inconsistency in California eases, the majority opinion next declares (ante, p. 226) that “Even under the rule that the writing alone is to be consulted, it was found necessary to examine the alleged collateral agreement before concluding that proof of it was precluded by the writing alone. (See 3 Corbin, Contracts (1960) § 582, pp. 444-446.) ” Not only are no California eases cited, by the majority in supposed support for the quoted declaration (offered by the majority as an example of inconsistent applications of the parol evidence rule by California courts), but 3 Corbin, Contracts, which the majority do cite, likewise refers to no California cases, and makes but scanty citation to any eases whatever. In any event, in what manner other than by “examining” an alleged collateral agreement is it possible for a court to rule upon the admissibility of testimony or upon an offer of proof with respect to such agreement?

The majority opinion has thus demonstrably failed to substantiate its next utterance (ante, pp. 226-227) that “ ‘The conception of a writing as wholly and intrinsically self-determinative of the parties ’ intent to make it a sole memorial of one or seven or twenty-seven subjects of negotiation is an impossible one,’ ” citing 9 Wigmore, Evidence (3d ed. 1940) section 2431, page 103, whose views on the subject were rejected by this court as early as 1908 in Germain Fruit Co. v. J. K. Arms-by Co., 153 Cal. 585, 595 [96 P. 319], which, indeed, is also cited by the majority in the present case. And the example given, that of a promissory note, is obviously specious. Earely, if ever, does a promissory note given by a debtor to his creditor integrate all their agreements (that is not the purpose it serves) ; it may or it may not integrate all their present contractual rights and obligations; but relevant to the parol evidence rule, at least until the advent of the majority opinion in this ease, alleged collateral agreements which would vary or contradict the terms and conditions of a promissory note may not be shown by parol. (Bank of America etc. Assn. v. Pendergrass (1935) 4 Cal.2d 258, 263-264 [6] [48 P.2d 659].)

Upon this structure of incorrect premises and unfounded assertions the majority opinion arrives at its climax: The pronouncement of “several policies [to] be accommodated . . . {i\n formulating the rule governing parol evidence.” (Italics added.)7 Two of the “policies” as declared by the majority are: Written evidence is more accurate than human memory8 ; fraud or unintentional invention by interested witnesses may well occur.

I submit that these purported “policies” are in reality two of the basic and obvious reasons for adoption by the Legislature of the parol evidence rule as the policy in this state. Thus the speculation of the majority {ante, pp. 227-228) concerning the views of various writers on the subject and the advisability of following them in this state is not only superfluous but flies flatly in the face of established California law and policy. It serves only to introduce uncertainty and confusion in a field of substantive law which was codified and made certain in this state a century ago.

However, despite the law which until the advent of the present majority opinion has been firmly and clearly established in California and relied upon by attorneys and courts alike, that parol evidence may not be employed to vary or contradict the terms of a written instrument, the majority now announce {ante, p. 227) that such evidence “should be excluded only when the fact finder is likely tobe misled,” and that “The rule must therefore be based on the credibility of the evidence.” (Italics added.) But was it not, inter alia, to avoid misleading the fact finder, and to further the introduction of only the evidence which is most likely to be credible (the written document) , that the Legislature adopted the parol evidence rule as a part of the substantive law of this state ?

Next, in an effort to implement this newly promulgated “credibility” test, the majority opinion offers a choice of two “standards”: one, a “certainty” standard, quoted from the Uniform Commercial Code9 {ante, p. 228), and the other a “natural” standard found in the Restatement of Contracts10 {ante, p. 227), and concludes {ante, p. 228) that at least for purposes of the present case the “natural” viewpoint should prevail.

This new rule, not hitherto recognized in California, provides that proof of a claimed collateral oral agreement is admissible if it is such an agreement as might naturally have been made a separate agreement by the parties under the particular circumstances. I submit that this approach opens the door to uncertainty and confusion. Who can know what its limits are ? Certainly I do not. Por example, in its application to this case who could be expected to divine as “natural” a separate oral agreement between the parties that the assignment, absolute and unrestricted on its face, was intended by the parties to be limited to the Masterson family ?

Or, assume that one gives to his relative a promissory note and that the payee of the note goes bankrupt. By operation of law the note becomes an asset of the bankruptcy. The trustee attempts to enforce it. Would the relatives be permitted to testify that by a separate oral agreement made at the time of the execution of the note it was understood that should the payee fail in his business the maker would be excused from payment of the note, or that, as here, it was intended that the benefits of the note would be personal to the payee? I doubt that trial judges should be burdened with the task of conjuring whether it would have been “natural” under those circumstances for such a separate agreement to have been made by the parties. Yet, under the application of the proposed rule, this is the task the trial judge would have, and in essence the situation presented in the instant case is no different.

Under the application of the codes and the present case law, proof of the existence of such an agreement would not be permitted, “natural” or “unnatural.” But conceivably, as loose as the new rule is, one judge might deem it natural and another judge unnatural.* 11 And in each instance the ultimate decision would have to be made (“naturally”) on a ease-by-case basis by the appellate courts.

In an effort to provide justification for applying the newly pronounced “natural” rule to the circumstances of the present case, the majority opinion next (ante, p. 228) attempts to account for the silence of the writing in this case concerning assignability of the option, by asserting that “the difficulty of accommodating the formalized structure of a deed to the insertion of collateral agreements makes it less likely that all the terms of such an agreement were included. ’ ’ What difficulty would have been involved here, to add the words 11 this option is nonassignable”? The asserted “formalized structure of a deed” is no formidable barrier. The Legislature has set forth the requirements in simple language in section 1092 of the Civil Code. It is this: “I, A B, grant to C D all that real property situated in [naming county], State of California.,... described as follows: [describing it].” To this the grantor desiring to reserve an option to repurchase need only so state, as was done here. It is a matter of common knowledge that collateral agreements (such as the option clause here involved, or such as deed restrictions) are frequently included in deeds, without difficulty of any nature.

To support further speculation (ante, p. 228) that “the reservation of the option might well have been placed in the recorded deed solely to preserve the grantors’ rights against any possible future purchasers, and this function could well be served without any mention of the parties’ agreement that the option was personal,” the majority assert that “There is nothing in the record to indicate that the parties to this family transaction, through experience in land transactions or otherwise, had any warning of the disadvantages of failing to put the whole agreement in the deed.” (Italics added.) The facts of this case, however, do not support such claim of naivete. The grantor husband (the bankrupt businessman) testified that as none of the parties were attorneys “we wanted to contact my attorney . . . which we did. . . . The wording in the option was obtained from [the attorney].... I told him what my discussion was with the Sines [defendant grantees] and he wanted ... a little time to compose it ... . And, then this [the wording provided by the attorney] was taken to the title company at the time Mr. and Mrs. Sine and I went in to complete the transaction.” (Italics added.) The witness was an experienced businessman who thus demonstrated awareness of the wisdom of seeking legal guidance and advice in this business transaction, and who did so. Wherein lies the naive family-transaction postulated by the majority?

The majority opinion (ante, p. 229) then proceeds on the fallacious assertion that the right to transfer or to assign an option, if it contains no provisions forbidding transfer or indicating that performance involves elements personal to the parties, is a mere disputable presumption, and in purported support cites eases not one of which involves an option and in each of which the presumption which was invoked served to supply a missing but essential element of a complete agreement.12 As already emphasized hereinabove, the right of free transferability of property, including options, is one of the most fundamental tenets of substantive law, and the crucial distinction would appear self-evident between such a basic right on the one hand, and on the other hand the disputable evidentiary presumptions which the law has developed to supply terms lacking from a written instrument but essential to making it whole and complete. There is no such lack in the deed and the option reservation now at issue.

The statement of the majority opinion (ante, p. 230) that in the absence of a controlling statute the parties may provide that a contract right or duty is nontransferable, is of course true. Equally true is the next assertion (ante, p. 230) that 11 even when there is no explicit agreement—written or oral— that contractual duties shall be personal, courts will effectuate a presumed intent to that effect if the circumstances indicate that performance by a substituted person would be different from that contracted for.” But to apply the law of contracts for the rendering of personal services to the reservation of an option in a deed of real estate calls for a misdirected use of the rule, particularly in an instrument containing not one word from which such “a presumed intent to that effect” could be gleaned. Particularly is the holding objectionable when the result is to upset established statutory and case law in this state that1 ‘ circumstances ’1 shown by parol may not be employed to contradict, add to or detract from, the agreement of the parties as expressed by them in writing. And once again the quoted pronouncement of the majority concerning the showing of “circumstances" by parol fails to find support in the cases they cite,13 which relate to a patent license agreement, held to be assignable absent terms indicating a contrary intent ; a contract to sell grapes also held assignable; a contract which included language showing the intent that it be nonassignable ; a contract to buy land held to be assignable because approval of title by the buyer was held not to be a personal privilege attaching only to the assignor; and to contracts for personal services.

Neither personal skill nor personal qualities can be conjured as a requirement for the exercise of the option reserved in the deed here, regardless of how ardent may be the desire of the parties (the bankrupt husband-optionee and his sister), “to keep the property in the . . . family." Particularly is this true when a contrary holding would permit the property to be acquired by plaintiff referee in bankruptcy for the benefit of the creditors of the bankrupt husband.

Comment hardly seems necessary on the convenience to a bankrupt of such a device to defeat his creditors. He need only produce parol testimony that any options (or other property, for that matter) which he holds are subject to an oral “collateral agreement" with family members (or with friends) that the property is nontransfer able “in order to keep the property in the family" or in the friendly group. In the present case the value of the ranch which the bankrupt and his wife held an option to purchase has doubtless increased substantially during the years since they acquired the option. The initiation of this litigation by the trustee in bankruptcy to establish his right to enforce the option indicates his belief that there is substantial value to be gained for the creditors from this asset of the bankrupt. Yet the majority opinion permits defeat of the trustee and of the creditors through the device of an asserted collateral oral agreement that the option was “personal” to the bankrupt and nonassignable “in order to keep the property in the family”!14

It also seems appropriate to inquire as to the rights of plaintiff wife in the option which she holds with her bankrupt husband. Is her interest therein also subject to being shown to be personal and not salable or assignable ? And, what are her rights and those of her husband in the ranch land itself, if they exercise their option to purchase it? Will they be free to then sell the land ? Or, if they prefer, may they hold it beyond the reach of creditors? Or can other members of “the family” claim some sort of restriction on it in perpetuity, established by parol evidence?

And if defendants sell the land subject to the option, will the new owners be heard to assert that the option is “personal” to the optionees, “in order to keep the property in the Masterson family”? Or is that claim “personal” to defendants only?

These are only a few of the confusions and inconsistencies which will arise to plague property owners and, incidentally, attorneys and title companies, who seek to counsel and protect them.

I would hold that the trial court ruled correctly on the proffered parol evidence, and would affirm the judgment.

McOomb, J., concurred.

Respondents’ petition for a rehearing was denied March 6, 1968, and the opinion was modified to read as printed above. McOomb, J., and Burke, J., were of the opinion that the petition should be granted.

OPINION

COMPTON, Justice.

Alaska Northern Development, Inc. (“AND”) appeals a judgment in favor of Alyeska Pipeline Service Co. (“Alyeska”) in a dispute involving contract formation and interpretation. For the reasons stated below, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

In late October or early November 1976, David Reed, a shareholder and corporate president of AND, initiated discussion with Alyeska personnel in Fairbanks regarding the purchase of surplus parts. The Alyeska employees with whom Reed dealt were Juel Tyson, Clarence Terwilleger and Donald Bruce.

After a series of discussions, Terwilleger indicated that Reed’s proposal should be put in writing so it could be submitted to management. With the assistance of AND’s legal counsel, Reed prepared a letter of intent dated December 10, 1976. In this letter, AND proposed to purchase “the entire Alyeska inventory of Caterpillar parts.” The place for the purchase price was left blank.

Alyeska responded with its own letter of intent dated December 11,1976. The letter was drafted by Bruce and Tyson in consultation with William Riekett, Alyeska’s manager of Contracts and Material Management. Again, the price term was absent. The letter contained the following language, which is the focus of this lawsuit: “Please consider this as said letter of intent, subject to the final approval of the owner committee.” (Emphasis added.)

Reed was given an unsigned draft of the December 11 letter, which was reviewed by AND’s legal counsel. Reed then met with Riekett, and they agreed on sixty-five percent of Alyeska’s price as the price term to be filled in the blank on the December 11 letter. Riekett filled in the blank as agreed and signed the letter. In March 1977, the owner committee rejected the proposal embodied in the December 11 letter of intent.

AND contends that the parties understood the subject to approval language to mean that the Alyeska owner committee1 would review the proposed agreement only to determine whether the price was fair and reasonable. Alyeska contends that Reed was never advised of any such limitation on *36the authority of the owner committee. In April 1977, AND filed a complaint alleging that there was a contract between AND and Alyeska, which Alyeska breached. The complaint was later amended to include counts for reformation and punitive damages.

Alyeska moved for summary judgment on the punitive damages and breach of contract counts. The superior court granted summary judgment in favor of Alyeska on the punitive damages count. The court initially denied Alyeska’s motion for summary judgment on the breach of contract claim; however, based on a review of the case after discovery had closed, the court announced at a hearing on September 26, 1980, that it would reverse its earlier ruling and grant Alyeska’s motion. The court confirmed this ruling at a hearing on November 5, 1980, after consideration of AND’s Motion for Clarification.

The superior court explained its rationale for granting summary judgment against AND on the breach of contract claim as follows. The court recognized that AND predicated its breach of contract claim on the theory that Reed’s letter of December 10th was an offer and that Rickett’s letter of December 11th was an acceptance of that offer. Viewed in that light, the court addressed “four theoretical possibilities in analyzing the interplay between the December 11th letter and the December 10th letter.” First, the writings could be construed as an offer with a responding promise to pass the offer on to the owner committee, which was responsible for making such determinations. Second, the letters could be construed as an offer and a counter-offer that AND rejected. Third, the letters could be considered as an offer with a responding counter-offer containing, among other things, the unlimited right of the owner committee to review and approve. The court ruled that if the letters were ultimately found to fall into one of these three categories, AND would not prevail, either because the offer embodied in the December 10 letter was never accepted, or because the owner committee never approved the proposal.

The only way in which AND might prevail was on the fourth possibility, i.e., the letters could be construed as an offer followed by a counter-offer limiting the authority of the owner committee to review only the contract price. The court ruled that AND could not establish a breach of contract claim under the fourth construction of the letters because the parol evidence rule barred the admission of extrinsic evidence that might limit the scope of the owner committee’s approval power.2 The only recourse for AND, therefore, was to seek reformation of the December 11 letter that limited the owner committee approval clause.

The case proceeded to trial on the reformation claim. After a six-week trial, the superior court concluded that AND had failed to establish that a specific agreement was not properly reduced to writing and therefore rejected its request to reform the December 11 letter. Attorney’s fees were awarded to Alyeska.

On appeal, AND does not challenge the superior court’s denial of reformation. Instead, it contends that the superior court erred in granting summary judgment on the breach of contract and punitive damages counts, erred in denying a trial by jury on the reformation count, erred in not permitting cross-examination for purposes of impeachment, and erred in awarding attorney’s fees to Alyeska.

II. APPLICATION OF THE PAROL EVIDENCE RULE

The superior court held that the parol evidence rule of the Uniform Commercial Code, section 2-202, codified as AS 45.02.-202,3 applied to the December 11 letter and *37therefore no extrinsic evidence could be presented to a jury which limited the owner committee’s right of approval. AND contends that the court erred in applying the parol evidence rule. We disagree.

In order to exclude parol evidence concerning the inclusion of additional terms to a writing, a court must make the following determinations. First, the court must determine whether the writing under scrutiny was integrated, i.e., intended by the parties as a final expression of their agreement with respect to some or all of the terms included in the writing. Second, the court must determine whether evidence of a prior or contemporaneous agreement contradicts or is inconsistent with the integrated portion. If the evidence is contradictory or inconsistent, it is inadmissible. If it is consistent, it may nevertheless be excluded if the court concludes that the consistent term would necessarily have been included in the writing by the parties if they had intended it to be part of their agreement. AS 45.02.202; Braund, Inc. v. White, 486 P.2d 50, 56 (Alaska 1971); U.C.C. § 2-202 comment 3 (1977).

A. Was the December 11 Letter a Partial Integration?

An integrated writing exists where the parties intend that the writing be a final expression of one or more terms of their agreement. Kupka v. Morey, 541 P.2d 740, 747 n. 8 (Alaska 1975); Restatement (Second) of Contracts § 209(a) (1979). Whether a writing is integrated is a question of fact to be determined by the court in accordance with all relevant evidence. Restatement (Second) of Contracts § 209 comment c (1979).

In granting summary judgment on the breach of contract claim, the superior court stated that it had carefully considered all relevant evidence, including oral and written records of all facets of the business deal in question, to arrive at its finding that the agreement was partially integrated.4 After the six-week trial on the reformation issue, the superior court reaffirmed this finding:

35. The plaintiff initially contends that the letter of December 11,1976 (the letter) was not integrated or partially integrated and therefore the court was in error in granting summary judgment in favor of defendant on the contract counts of the plaintiff’s complaint on September 26, 1980.

36. After considering the evidence submitted at trial, the court reaffirms its prior conclusion that the letter was integrated as to the Owners Committee’s approval clause.

37. The parties intended to write down their discussions in a comprehensive form which allowed Reed to seek financing and allow the primary actors (Tyson, Bruce, Terwilleger, Rickett) to submit the concept embodied by the letter to higher management ....

*3838. There are three subjects upon which plaintiff seeks reformation.... As to the first, [limiting the Owner Committee to a consideration of price] which has been plaintiff’s primary focus, the court finds that such reference was integrated such that the parole [sic] evidence rule would bar any inconsistent testimony. Testimony that the owners were limited to “price” in their review is inconsistent.

41. With respect to the Owners Committee’s approval clause, according to the plaintiff’s contention the owners were entitled to review the transaction, on whatever basis, only one time. This was testified to by both Mr. Reed and argued by plaintiff in closing .... It was also conceded in closing that the review by the owners, on whatever standard, would occur prior to any formal contract being negotiated and executed .... This is also consistent with the testimony of each of the participants.

42. In addition, Mr. Reed, in consultation with Ed Merdes and Henry Camarot, his attorneys, tendered the letter of March 4,1977, as a document which could serve as “the contract” .... The March 4 letter contains no further reference to the Owners Committee’s approval function .... Therefore, I find that as to the Owners Committee’s approval ... the letter of December 11 constitutes an integration or partial integration .... This having been established, the analysis outlined by the court on September 26, 1980, when granting defendant’s motion for summary judgment on the contract claims is applicable. [Citations omitted.]

After reviewing the record, we cannot say that this finding of a partial integration was clearly erroneous.

AND contends that the “clearly erroneous” standard used for reviewing findings of fact issued after a trial does not apply because the breach of contract claim was dismissed by summary judgment. Under the circumstances of this case, we believe that the clearly erroneous standard applies rather than the standard of review used in summary judgment cases because the summary judgment ruling was not a final judgment for purposes of appeal.

Rule 54(b) of the Alaska Rules of Civil Procedure provides in relevant part:

When more than one claim for relief is presented in an action ... the court may direct the entry of a final judgment as to one ... of the claims ... upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction ... the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.

In the pre-trial conference, the superior court indicated that it would make a Rule 54(b) determination if the parties so desired. The parties did not request a Rule 54(b) determination and none was made. During this conference, the court also made it clear that it was willing at the reformation trial to hear all evidence bearing on contract formation, including the negotiations leading up to the letters of intent and the meaning the parties placed on these negotiations and letters. The court emphasized that it was “not cutting out anybody on presenting extrinsic evidence ... [and] that under Rule 54 the court can, until the end of the case ... change any decision it’s previously reached.”

AND contends that the superior court’s determination that the only issue at trial concerned reformation “necessarily foreclosed a variety of factual and legal issues on contract formation and interpretation,” but does not indicate what evidence it was foreclosed from presenting on these issues. Our review of the record indicates that the integration issue was fully explored by AND during the trial.

After six weeks of testimony, during which time the court had the opportunity to view the demeanor and to judge the credibility of the witnesses, the superior court entered written findings of fact and *39conclusions of law. As shown in the portion quoted above, these findings reviewed and reaffirmed the findings made in the court’s prior summary judgment ruling. Accordingly, the appropriate standard of review is the same as for any other finding of fact, i.e., that the superior court’s findings of fact must be upheld unless “clearly erroneous.” Alaska R.Civ.P. 52(a). As stated above, the finding of partial integration was not clearly erroneous; therefore, we find no merit in AND’s contentions to the contrary.

B. Does the Excluded Evidence Contradict the Integrated Terms?

Having found a partial integration, the next determination is whether the excluded evidence contradicts the integrated portion of the writing. Comment b to section 215 of the Restatement (Second) of Contracts is helpful in resolving this issue.5 Comment b states:

An earlier agreement may help the interpretation of a later one, but it may not contradict a binding later integrated agreement. Whether there is a contradiction depends ... on whether the two are consistent or inconsistent. This is a question which often cannot be determined from the face of the writing; the writing must first be applied to its subject matter and placed in context. The question is then decided by the court as part of a question of interpretation. Where reasonable people could differ as to the credibility of the evidence offered and the evidence if believed could lead a reasonable person to interpret the writing as claimed by the proponent of the evidence, the question of credibility and the choice among reasonable inferences should be treated as questions of fact. But the asserted meaning must be one to which the language of the writing, read in context, is reasonably susceptible. If no other meaning is reasonable, the court should rule as a matter of law that the meaning is established.

According to comment b, therefore, a question of interpretation may arise before the contradiction issue can be resolved. If the evidence conflicts, the choice between competing inferences is for the trier of fact to resolve. Alyeska Pipeline Service Co. v. O’Kelley, 645 P.2d 767, 771 n. 2 (Alaska 1982). The meaning is determined as a matter of law, however, if “the asserted meaning [is not] one to which the language of the writing, read in context, is reasonably susceptible.” Restatement (Second) of Contracts § 215 comment b (1979). See also J. Calamari & J. Perillo, The Law of Contracts §§ 3-12, 3-13 (2d ed. 1977).

AND contends that the superior court erred in granting summary judgment because the evidence conflicted as to the meaning of the owner committee approval clause. It concludes that under Alyeska it was entitled to a jury trial on the interpretation issue. Alyeska contends, and the superior court ruled, that a jury trial was inappropriate because, as a matter of law, AND’s asserted meaning of the clause at issue was not reasonably susceptible to the language of the writing. The superior court stated:

The Court is making the ... ruling that the offer of evidence to show that Rick-ett’s letter really meant to limit owner committee approval to the price term alone ... is not reasonably susceptible— or the writing is not reasonably susceptible to that purpose. And therefore, that extrinsic evidence operates to contradict the writing, not specific words in the writing, but the words in the context of the totality of the writing and the totality of the extrinsic evidence.

We agree that the words used in the December 11 letter are not reasonably susceptible to the interpretation advanced by AND. Therefore, we find no merit to AND’s contention that it was entitled to a jury trial on the interpretation issue.

*40After rejecting the extrinsic evidence for purposes of interpretation, the superior court found AND’s offered testimony, that the owner committee’s approval power was limited to approval of the price, to be inconsistent with and contradictory to the language used by the negotiators in the December 11 letter. AND contends that the offered testimony did not contradict, but rather explained or supplemented the writing with consistent additional terms. For this contention, AND relies on the standard articulated in Hunt Foods & Industries, Inc. v. Doliner, 26 A.D.2d 41, 270 N.Y.S.2d 937 (N.Y.App.1966). In Hunt Foods, the defendant signed an option agreement under which he agreed to sell stock to Hunt Foods at a given price per share. When Hunt Foods attempted to exercise the option, the defendant contended that the option could only be exercised if the defendant had received offers from a third party. The court held that section 2-202 did not bar this evidence from being admitted because it held that the proposed oral condition to the option agreement was not “inconsistent” within the meaning of section 2-202; to be inconsistent, “the term must contradict or negate a term of the writing. A term or condition which has a lesser effect is provable.” Id. 270 N.Y.S.2d at 940.

The narrow view of consistency expressed in Hunt Foods has been criticized. In Snyder v. Herbert Greenbaum & Associates, Inc., 38 Md.App. 144, 380 A.2d 618 (Md.App.1977), the court held that the parol evidence of a contractual right to unilateral rescission was inconsistent with a written agreement for the sale and installation of carpeting. The court defined “inconsistency” as used in section 2-202(b) as “the absence of reasonable harmony in terms of the language and respective obligations of the parties.” Id. 380 A.2d at 623 (emphasis in original) (citing U.C.C. § 1-205(4)). Accord: Luria Brothers & Co. v. Pielet Brothers Scrap Iron & Metal, Inc., 600 F.2d 103, 111 (7th Cir.1979); Southern Concrete Services, Inc. v. Mableton Contractors, Inc., 407 F.Supp. 581 (N.D.Ga.1975), aff’d mem., 569 F.2d 1154 (5th Cir.1978).

We agree with this view of inconsistency and reject the view expressed in Hunt Foods. 6 Under this definition of inconsistency, it is clear that the proffered parol evidence limiting the owner committee’s right of final approval to price is inconsistent with the integrated term that unconditionally gives the committee the right to approval. Therefore, the superior court was correct in refusing to admit parol evidence on this issue.7

III. DENIAL OF A JURY TRIAL

At the trial on reformation, AND sought reformation of the contract and then recovery for Alyeska’s breach of the contract as reformed. AND requested a jury trial, but the superior court refused to empanel a jury until it determined whether the contract should be reformed. The court stated that only if it decided to reform the contract would it empanel a jury to determine whether Alyeska breached the reformed contract.

AND contends that it was entitled to a jury trial under article I, section 16, of the Alaska Constitution, which preserves the right to a trial by jury in suits that determine legal rights. AND recognizes that reformation is an equitable, not legal, determination and therefore one for the court, not the jury, to decide; however, it con*41tends that it was entitled to a jury trial because the court resolved legal issues concerning whether the parties had entered into a contract.

In support of its contention, AND relies on Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 508, 79 S.Ct. 948, 955, 3 L.Ed.2d 988, 996 (1959), which held that when a case involves both legal and equitable claims, the facts common to such claims must be first tried to a jury if a proper demand is made.8 Beacon Theatres does not apply in this case because the trial did not involve both legal and equitable claims. As we stated earlier, the superior court correctly dismissed the breach of contract claim because the parol evidence rule barred the introduction of any extrinsic evidence to prove that the owner committee’s approval power was limited to price. Therefore, the only issue at trial was whether the alleged contract should be reformed, which is an equitable determination.

The correct procedure when an action is brought to reform a contract and to recover on it as reformed is explained as follows: “If plaintiff seeks reformation and money damages on the contract as reformed, the court may decide whether to allow reformation but there is a right to jury trial on the reformed contract.” 9 C. Wright & A. Miller, Federal Practice and Procedure: Civil § 2316, at 83 (1971). See also 5 J. Moore, J. Lucas & J. Wicker, Moore’s Federal Practice ¶ 38.22 (2d ed. 1982). Under this procedure, if the superior court had reformed the contract, AND would be entitled to a jury trial concerning the breach of contract as reformed. Because the superior court refused to reform the contract, a ruling that AND does not contest, AND has no legal claim to present to a jury. Therefore, the superior court did not err in denying AND’s request for a jury trial.

IY. PUNITIVE DAMAGES

AND contends that punitive damages are warranted in this case based on the following theory of conspiracy: Alyeska had an interest in inflating pipeline costs because, under the federal system of price controls, higher construction costs result in higher pipeline rates per barrel of oil. Alyeska breached the agreement with AND because the sale of surplus parts to AND would have decreased pipeline costs and therefore lowered the tariff. Therefore, punitive damages are appropriate because Alyeska’s actions were tortious in nature and the public interest is served by the deterrent effect that punitive damages would have upon the future conduct of the oil companies that own Alyeska.

Punitive damages are not available in a breach of contract action unless “ ‘the wrongdoer’s conduct can be characterized as outrageous, such as acts done with malice or bad motives or reckless indifference to the interests of another.’ ” Alyeska Pipeline Service Co. v. O’Kelley, 645 P.2d at 774 (quoting Bridges v. Alaska Housing Authority, 375 P.2d 696, 702 (Alaska 1962)). Whether malice is present is a question of fact; however, “where there is no evidence that gives rise to an inference of actual malice or conduct sufficiently outrageous to be deemed equivalent to actual malice, the trial court need not submit the punitive damages issue to the jury.” Id.

AND negotiated an arms-length business deal with Alyeska. It does not point to any evidence that would give rise to an “inference of actual malice or conduct sufficiently outrageous to be deemed equivalent to actual malice.” Therefore, it was not error for the superior court to grant summary judgment against AND on the punitive damages issue.

V. LIMITING THE SCOPE OF CROSS-EXAMINATION

At the reformation trial, AND attempted to cross-examine Alyeska’s vice president of administration, George Nelson, with regard *42to whether he had ever had discussions on the impact that the proposed sale to AND would have on the cost of the pipeline project. AND contended that it was offering the evidence for the purpose of impeaching Nelson’s testimony that he had no knowledge of the AND-Alyeska agreement on December 17,1976, hoping to show that Nelson had a motive to distort his testimony. The superior court did not permit AND’s line of questioning because, though tangentially relevant, it was concerned that the trial could turn into a proceeding on the truth or falsity of the conspiracy theory.

“Although relevant, evidence may be excluded if its probative value is outweighed by ... considerations of undue delay [and] waste of time.” Alaska R.Evid. 403. The standard for appellate review of a trial court’s decision to exclude testimony is whether it abused its discretion. Babinec v. State, 586 P.2d 966, 968 (Alaska 1978).

It was the superior court’s express concern to prevent the “side show [from] swallowpng] up the circus.” To allow counsel to fully examine Nelson as to his motivation would require that the court allow an exploration into the underlying conspiracy theory. The court stated that AND would not be permitted to proceed with its line of questioning unless AND could produce direct evidence that AND was an intended victim under the conspiracy theory. AND was unable to do so. Under these circumstances, the superior court did not abuse its discretion in limiting AND’s cross-examination of Nelson.

VI. ATTORNEY’S FEES

AND challenges the superior court’s award of approximately $463,000.00 in attorney’s fees to Alyeska, which was fifty-three percent of its actual attorney’s fees. Civil Rule 82 requires the court to award attorney’s fees to partially compensate the prevailing party for attorney’s fees incurred during the proceeding. This award will be set aside on appeal only if it is manifestly unreasonable and amounts to a clear abuse of discretion. E.g., Palfy v. Rice, 473 P.2d 606, 613 (Alaska 1970).

At the end of the trial, Alyeska asked for reimbursement of its full attorney’s fees on the ground that the lawsuit had been brought in bad faith.9 The court did not find that the lawsuit had been maintained in bad faith. It did find, however, that proceeding to trial on the reformation claim was frivolous at the time summary judgment was granted in the fall of 1980. The court then reviewed Alyeska’s attorney’s participation in the case, services rendered, and the nature of the case, and determined that an appropriate partial award for attorney’s fees necessary to a prudent defense would be fifty-three percent of Alyeska’s actual attorney’s fees, or sixty-six percent of the fee base established by the court. We do not find this award to be manifestly unreasonable and therefore uphold the award.

For the foregoing reasons, the judgment of the superior court is AFFIRMED.

Peters, C. J.

The principal issue in this appeal is whether the doctrine of commercial impracticability excuses a developer from submitting construction plans when he discovers that necessary financing has become unavailable. The plaintiffs, Timothy E. Dills and the Neecon Corporation, sued the defendants, the town of Enfield (town) and the Enfield development agency (agency), to recover a $100,000 deposit Dills had paid the agency under an option and contract for sale. The trial court referred the case to Attorney J. Read Murphy, a state trial referee appointed pursuant to General Statutes § 52-434 (a) (4). Following a hearing and the parties’ submission of briefs, the referee reported his findings of fact and recommended that judgment enter for the plaintiffs. The trial court rejected the referee’s recommendation, instead rendering judgment for the defendants. The plaintiff Neecon Corporation appealed to the Appellate Court and we transferred the case here pursuant to Practice Book § 4023. We find no error.

The relevant facts reported by the referee, accepted by the trial court and supported by the record are as *707follows. The town of Enfield instructed its development agency to solicit private developers for the Enfield Memorial Industrial Park to be constructed on town property. Pursuant to an earlier option agreement, on May 1, 1974, the plaintiff Dills and the development agency entered into a contract for the sale of the land to be developed. Dills at that time paid a $100,000 deposit toward the contract price of $985,900. The plaintiff Neecon Corporation, owned by Dills, was to perform the necessary work, and has become, by virtue of an assignment from Dills, the only remaining plaintiff in this appeal.

Under the terms of the contract, the development agency agreed to convey the property to the developer sixty days after the fulfillment of two conditions: (1) the submission and approval of construction plans in accordance with section 301 of the contract;1 and (2) *708the submission of evidence of financial capacity in accordance with section 304 of the contract.2 The contract also included provisions for its termination by either party. Section 702 (b) of the contract allowed the developer to withdraw and to reclaim his deposit if, after the preparation of construction plans satisfactory to the agency, the developer could not obtain the necessary mortgage financing.3 Section 703 (b) of the contract allowed the agency to terminate the contract, retaining the deposit as liquidated damages, if the developer failed to submit acceptable construction plans.4

*709Dills never submitted construction plans that were acceptable to the agency. A set of plans denominated “preliminary” was rejected by the agency on June 24, 1974. The agency accepted a revised set of “preliminary plans” and drawings three months later, but demanded the submission of full construction plans and specifications by early December. The referee found that the preliminary sets of plans did not themselves meet the definition of “construction plans” in section 301.5 The referee agreed with the agency’s interpretation of section 301 of the contract as requiring the developer to submit full construction plans within 210 days of the agency’s approval of preliminary plans.

The reason Dills failed to submit construction plans was that, despite diligent efforts, he was unable to obtain mortgage financing. Thereafter, both parties attempted, with proper notification, to invoke the contract’s termination clauses. On December 19, 1974, the agency, having been informed by Dills of his financial difficulties, voted to terminate the agreement pursuant to section 703 (b) of the contract of sale and to retain the $100,000 deposit as liquidated damages.6 On *710December 22,1974, Dills’ attorney notified the agency that, because of Dills’ inability to obtain financing within the time specified in the contract,7 Dills was terminating the agreement pursuant to section 702 (b) of the contract of sale.

In the referee’s view, although Dills had never submitted anything more than “preliminary plans,” the fact that he could not obtain financing had become evident and “[t]he costly rendition of detailed drawings and specifications which were part of the Construction Plans thus became a useless act.” He concluded, therefore, that “[t]he duty of [Dills] to provide full Construction Plans by December, 1974 was discharged by supervening impracticability.” Accordingly, he recommended that the plaintiffs recover their $100,000 deposit.

After unsuccessful efforts to persuade the referee to make material changes in his report, the defendants moved the trial court, pursuant to Practice Book § 440, to reject the report and refer the case to another referee for a new trial, or to revoke the reference and leave the case to be disposed of in court. Alternatively, the defendants took exception in the trial court to the referee’s report and findings of fact and moved the court, pursuant to Practice Book § 439, to grant the corrections they had proposed in their motion to correct and to strike the corrections granted at the plaintiff’s request.

On July 14, 1988, the trial court issued its decision rejecting the referee’s recommendation that judgment enter for the plaintiffs. The court accepted the referee’s findings that the plans submitted by Dills were preliminary plans but not construction plans as defined by *711the contract. It also accepted the finding that Dills had unsuccessfully engaged in “diligent efforts” to secure financing. Reviewing the history of the contract negotiations between the parties, the court held that the defendants were entitled to judgment. The court noted that the town had been concerned about the developer’s reliability because an earlier option agreement between Dills and the town, concerning this same property, had failed to come to fruition. In response, Dills had publicly assured the town “that he was going to be putting $250,000 on the line,” the contemplated cost of preparing the construction plans. Because the various contract provisions, including the furnishing of construction plans, had been bargained for, the court concluded that Dills could not invoke the doctrine of impracticability in this case. Absent a showing of the impracticability of preparing and submitting construction plans, the court held that “the facts found by the attorney-referee can only lead to one conclusion,” i.e., judgment for the defendants.

After the trial court denied the plaintiffs’ motion for reconsideration,8 the plaintiff Neecon took the present appeal. It claims that the trial court erred in (1) rendering judgment for the defendants, rather than either rendering judgment for the plaintiffs or revoking the reference to the attorney state trial referee and remanding the case for further findings by an appropriate factfinder, and (2) finding facts not found by the *712attorney state trial referee. We conclude that the trial court did not err either procedurally or substantively.

I

In its procedural attack on the trial court’s judgment, the plaintiff proceeds from the premise that reference of a case to an attorney trial referee necessarily limits the subsequent authority of the trial court to address issues of law. According to the plaintiff, the issuance of a referee’s report deprives the court of authority to render any judgment except that recommended by the referee. The plaintiff maintains that, if the court, disagreeing with the referee, decides to reject the report, the court must refer the case for a new trial either before a new referee or before another trial judge. We disagree.

This court discussed the relationship between attorney trial referees and trial court judges in Seal Audio, Inc. v. Bozak, Inc., 199 Conn. 496, 508 A.2d 415 (1986), in which we upheld the constitutionality of General Statutes § 52-434 (a) (4), the statute authorizing the chief justice to appoint such referees.9 We concluded that, although attorney trial referees could act as fact-finders, in the same manner as committees appointed pursuant to General Statutes § 52-425; id., 504-505; they lacked the power to render judgments. Id., 502. The reports of referees are therefore “reviewable in accordance with well established procedures prior to the rendition of judgment by the court. Practice Book §§ 428 through 445.” Id.; see also Bowman v. 1477 Central Avenue Apartments, Inc., 203 Conn. 246, 250, 524 A.2d 610 (1987); Logan v. Lenhart, 158 Conn. 611, 612, 259 A.2d 643 (1969). As provided in Practice Book *713§ 434, a referee’s determinations of law in his or her report are not binding on the court. Seal Audio, Inc. v. Bozak, Inc., supra, 509-10.

Our holding in Seal Audio, Inc., necessarily implies that the trial court has the power to render whatever judgment appropriately follows, as a matter of law, from the facts found by the attorney trial referee. The nondelegable judicial duty to render judgments is not limited to endorsement of the decision recommended by the referee. The trial court’s unlimited authority in this regard is underscored by the first sentence of Practice Book § 443, which provides, without qualification: “The court shall render such judgment as the law requires upon the facts in the report as it may be corrected.” (Emphasis added.) Although the remainder of Practice Book § 443 contemplates the possibility of further proceedings before a referee or a court, we construe that direction to apply only when a trial court discovers material errors in the referee’s factual findings.10 See Rostenberg-Doern Co. v. Weiner, 17 Conn. App. 294, 300, 552 A.2d 827 (1989).

We therefore conclude that the trial court had the inherent authority, even without a request for judgment by the defendants, to render whatever judgment was appropriate in light of the facts found by the attorney trial referee. There was no procedural impediment to the trial court’s exercise of this jurisdiction.

II

Even though the trial court had jurisdiction to render an appropriate judgment, the outstanding unre*714voked reference of the litigation to the attorney trial referee deprived the trial court of the authority to retry the case. The court could not find additional facts or reject others “unless a material fact has been found without evidence or the [referee] has failed to find an admitted or undisputed fact, or has found a fact in such doubtful language that its real meaning does not appear.” Practice Book § 439; see Bowman v. 1477 Central Avenue Apartments, Inc., supra, 256-57; Cohn v. Hartford, 130 Conn. 699, 704-705, 37 A.2d 237 (1944). Thus, our review of the substantive merits of the trial court’s judgment devolves into two questions: (1) did the court exceed its authority by finding additional facts or rejecting facts found by the referee; and (2) did the court err in applying the law to the facts found?

A

The plaintiff claims that the trial court improperly exercised the role of factfinder by concluding that: (1) the parties had “bargained for” the two contract provisions at issue herein (the provisions for submission of construction plans and for financing); and (2) the contract provisions were clear and unambiguous.11 The trial court expressly disavowed such a role. We hold that the trial court did not exceed its authority.

The plaintiff argues that the trial court improperly found facts about the bargaining process that led to the contract in this case. The trial court did recount the history of the transaction, and noted the defend*715ants’ allegation that Dills had indicated his readiness to invest $250,000 in procuring construction plans. The referee made no finding that the contract between the parties had resulted from the defendants’ reliance on this representation.12 Nonetheless, we fail to perceive how the plaintiff was injured by the trial court’s comments. The referee never found that the parties had not bargained for the contractual provisions here at issue. What motivated the defendants to enter into the contract is unimportant in this case. What is important is that the parties intended that Dills assume full financial responsibility until such time as he submitted construction plans acceptable to the defendants, and the referee so found.13

The plaintiff also contends that the trial court’s statement that the “contract provisions are clear and unambiguous” in effect rejects the referee’s finding that they were indeed ambiguous. The plaintiff contends that the referee’s findings that section 301 called for a two-step procedure (preliminary plans followed by full construction plans within 210 days) and that zoning approval led the developer to the next two steps (arranging financing and preparing detailed drawings and specifications sufficient to build the building) amounted to a finding of ambiguity. We disagree.

Examination of the reason given in the referee’s report for discharging the plaintiffs of their contractual obligation demonstrates that the trial court read *716the report correctly. The referee made no express finding that there was any ambiguity in the provisions in sections 303 or 702 (b) of the contract,14 which required the plaintiffs to submit acceptable construction documents before they could claim contractual relief because of financial adversity. Notably, the referee did not base his discharge of the plaintiffs on a finding that the parties had intended the termination clause in the contract to provide relief for the plaintiffs in the present circumstances. In invoking the doctrine of commercial impracticability, the referee determined that, although the contract unambiguously imposed on the plaintiffs a contractual duty to perform, the plaintiffs should nonetheless be excused from their nonperformance because of supervening circumstances.15 The referee’s earlier statements that other parts of section 301 were confusing did not contradict his implicit finding that the contract clearly made the submission of construction plans a condition precedent to recovering the deposit. Thus, we conclude that the trial court did not exceed its authority by impermissibly engaging in fact-finding contrary to the report of the referee.

B

Finally we must decide whether the trial court erred as a matter of law in rejecting the referee’s determination, endorsed by the plaintiff on appeal, that the impracticability doctrine excused Dills’ failure to deliver construction plans to the agency. The plaintiff contends that Dills’ inability to obtain such financing made submitting the construction plans a “futile” and “useless act,” and therefore the doctrine of supervening imprac*717ticability discharged his duty to submit the plans. We hold, as did the trial court, that “[t]he doctrine of impracticability and impossibility . . . [is] not relevant to this case.”

The impracticability16 doctrine represents an exception to the accepted maxim of pacta sunt servanda, in recognition of the fact that certain conditions cannot be met because of unforeseen occurrences. Cf. Aetna Casualty & Surety Co. v. Murphy, 206 Conn. 409, 413, 538 A.2d 219 (1988). A party claiming that a supervening event or contingency has prevented, and thus excused, a promised performance must demonstrate that: (1) the event made the performance impracticable; (2) the nonoccurrence of the event was a basic assumption on which the contract was made; (3) the impracticability resulted without the fault of the party seeking to be excused; and (4) the party has not assumed a greater obligation than the law imposes. 2 Restatement (Second), Contracts § 261; E. Farnsworth, Contracts (1982) § 9.6, p. 678. We discuss only the first two prongs of this test in disposing of the plaintiff’s argument.

Although courts in recent years have liberalized the requirements for such an excuse; see G. Gilmore, The Death of Contract (1972) pp. 80-81; H. Berman, “Excuse for Nonperformance in Light of Contract Practices in International Trade,” 63 Colum. L. Rev. 1413, 1414 (1963); only in the most exceptional circumstances have courts concluded that a duty is discharged because additional financial burdens make performance less practical than initially contemplated. See, e.g., Neal-Cooper *718 Grain Co. v. Texas Gulf Sulphur Co., 508 F.2d 283, 294 (7th Cir. 1974) (party not allowed “to escape a bad bargain merely because it is burdensome”); American Trading & Production Corporation v. Shell International Marine, Ltd., 453 F.2d 939, 942 (2d Cir. 1972) (closing of Suez Canal requiring charterer to sail nearly twice as many miles at a cost of nearly one third more than the contract price does not excuse performance); United States v. Wegematic Corporation, 360 F.2d 674, 676-77 (2d Cir. 1966) (duty of manufacturer to produce revolutionary computer system not excused because of “engineering difficulties” requiring two years and $1.5 million to correct); Peerless Casualty Co. v. Weymouth Gardens, 215 F.2d 362, 364 (1st Cir. 1954) (increased costs caused by the unexpected outbreak of war does not constitute superior force ending obligation of contract); Matter of Westinghouse Electric Corporation, 517 F. Sup. 440, 452-53 (E.D. Va. 1981) (duty to remove spent fuel not excused merely because reprocessing of the fuel became unprofitable); see also Connecticut General Statutes Annotated § 42a-2-614, comment 4; E. Farnsworth, supra, p. 680; 6 A. Cor-bin, Contracts (1962) § 1333; 16 S. Williston, Contracts (3d Ed. Jaeger 1978) § 1968; J. White & R. Summers, Uniform Commercial Code (2d Ed. 1980) § 3-9, pp. 131-32. Thus, the fact that preparing the construction plans would have cost Dills a great deal of money (more than the deposit he sought to recover) did not excuse him from submitting them as the contract provided.

Furthermore, the event upon which the obligor relies to excuse his performance cannot be an event that the parties foresaw at the time of the contract. We have previously held that “[t]he regular enforcement of conditions is . . . subject to the competing but equally well established principle that the occurrence of a condition may be excused in the event of impracticability *719 ‘if the occurrence of the condition is not a material part of the agreed exchange and forfeiture would otherwise result.’ 2 Restatement (Second), Contracts § 271; 6 Cor-bin, Contracts (1962) § 1362; 5 Williston, Contracts (3d Ed. 1961) § 793.” (Emphasis added.) Grenier v. Compratt Construction Co., 189 Conn. 144, 148-49, 454 A.2d 1289 (1983); see also West Haven Sound Development Corporation v. West Haven, 201 Conn. 305, 313, 514 A.2d 734 (1986). Thus, the “central inquiry” is whether the nonoccurrence of the alleged impracticable condition “was a basic assumption on which the contract was made.” General Statutes § 42a-2-615 (a);17 2 Restatement (Second), Contracts § 261;18 E. Farnsworth, supra, § 9.6, pp. 679-84.

In this case the contingency upon which fulfilling the contract allegedly depended was Dills’ obtaining the requisite financing. We cannot conclude, however, that Dills’ failure to obtain financing was “an event the nonoccurrence of which was a basic assumption on which the contract was made.” Indeed, section 702 (b) of the contract of sale demonstrates that the parties expressly contemplated that Dills might encounter financial *720difficulties. The contract allowed Dills to terminate for this reason “after preparation of Construction Plans satisfactory to the Agency.” If “an event is foreseeable, a party who makes an unqualified promise to perform necessarily assumes an obligation to perform, even if the occurrence of the event makes performance impracticable.” E. Farnsworth, supra, p. 686.19

This case, like virtually every case involving discharge from an obligation to perform, concerns the issue of which party bears the loss resulting from an event that renders performance by one party uneconomical. See R. Posner, Economic Analysis of Law (3d Ed. 1986) pp. 93-94; R. Posner & A. Rosenfield, “Impossibility and Related Doctrines in Contract Law: An Economic Analysis,” 6 J. Legal Stud. 83, 86-87 (1977). “Determining whether the non-occurrence of a particular event was or was not a basic assumption involves a judgment as to which party assumed the risk of its occurrence .... In making such determinations, a court will look at all circumstances, including the terms of the contract.” 2 Restatement (Second), Contracts, c. 11, introductory note. “Since impossibility and related doctrines are devices for shifting risk in accordance with the parties’ presumed intentions, which are to minimize the costs of contract performance, one of which is the disutility created by risk, they have no place when the contract explicitly assigns a particular risk to one party or the other.” Northern Indiana Public Service Co. v. Carbon County Coal Co., 799 F.2d 265, 278 (7th Cir. 1986); see also Wasserman Theatrical Enterprise, Inc. v. Harris, 137 Conn. 371, 374-75, 77 A.2d 329 (1950). Where, as in this case, sophisticated contracting parties have negotiated termination pro*721visions, courts should be slow to invent additional ways to excuse performance. We exercise such caution in this case.

There is no error.

In this opinion the other justices concurred.

*46BALMER, C. J.

In this breach of contract case, we examine the availability of different remedies under the Uniform Commercial Code (UCC) for an aggrieved seller of goods after a buyer breaches a .contract to purchase those goods. Specifically, we consider the relationship between ORS 72.7080(1), which measures a seller’s damages as the difference between the unpaid contract price and the market price at the time and place for tender, and ORS 72.7060, which measures a seller’s damages as the difference between the contract price and the resale price. We examine those provisions to determine whether an aggrieved seller who has resold goods can recover a greater amount of damages using the market price measure of damages than the seller would recover using the resale price measure of damages.

Plaintiff, a seller seeking damages from a buyer that breached contracts to purchase goods, argued at trial that it was entitled to recover its market price damages. The trial court determined that plaintiff was entitled to the lesser of its market price damages or its resale price damages, and the court ultimately awarded plaintiff its resale price damages. The Court of Appeals reversed and remanded, because the court determined that plaintiff could recover its market price damages, even though it had resold some of the goods at issue. Peace River Seed Co-Op v. Proseeds Marketing, 253 Or App 704, 717, 293 P3d 1058 (2012). The Court of Appeals also reversed the trial court’s decision not to award plaintiff its attorney fees under the parties’ contracts, and remanded for the trial court to determine whether the parties intended the ambiguous contract term “charges for collection” to include attorney fees. Id. at 724-25. For the reasons that follow, we agree that plaintiff was entitled to recover its market price damages, even if those damages exceeded plaintiffs resale price damages. We conclude, however, that plaintiff is not entitled to recover its attorney fees under the parties’ contracts.

FACTS AND PROCEEDINGS BELOW

The facts material to our discussion are mostly undisputed. Peace River Seed Co-Operative (“plaintiff’) is a Canadian company that buys grass seed from and sells *47grass seed for grass seed producers. Proseeds Marketing (“defendant”) is an Oregon corporation that purchases grass seed from various sources to resell to end users. A broker prepared and the parties agreed to multiple contracts for defendant to purchase from plaintiff the total production of grass seed from a certain number of acres for a fixed price over a period of two years. The contracts incorporated the NORAMSEED Rules for the Trade of Seeds for Planting, which have been adopted by the American and Canadian Seed Trade Associations to govern the trade of seed. The NORAMSEED Rules provide that the UCC applies to transactions within the United States, and both parties have litigated this case under the UCC.

Under the contracts, defendant was to provide shipping and delivery instructions to plaintiff. During the contract period, however, the price of grass seed fell dramatically. Although defendant initially provided shipping instructions and plaintiff shipped conforming seed, defendant eventually refused to provide shipping instructions for delivery of additional seed under the contracts. After multiple requests for shipping instructions, and defendant’s continued refusal to provide them, plaintiff cancelled the contracts. Over the next three years, plaintiff was able to sell at least some of the seed that defendant had agreed to purchase to other buyers.

The parties submitted their contract dispute to arbitration. Following an arbitrator’s award in plaintiffs favor, plaintiff sought to enforce the award in court, and the trial court entered judgment over defendant’s objection. Defendant appealed, and the Court of Appeals remanded for trial after concluding that the arbitration was not binding. Peace River Seed Co-Op v. Proseeds Marketing, 204 Or App 523, 526, 534, 132 P3d 31, rev den, 341 Or 216 (2006). In the subsequent bench trial, the court concluded that defendant had breached the contracts and that plaintiff had been entitled to cancel the contracts and seek damages. When the trial court awarded plaintiff its damages, the court noted that the parties had entered into fixed price contracts, “regardless of the market price at the time of harvest and shipment,” and the court explained that “[e]ach party takes certain risks and hopes for certain benefits in this type of *48a contract.” Nonetheless, the court concluded that plaintiff had an “obligation to mitigate damages” and was “not entitled to recover damages in an amount greater than actually incurred.” Accordingly, the trial court awarded plaintiff the lesser of two measures of damages: the difference between the unpaid contract price and the market price (the measure under ORS 72.7080(1)) or the difference between the contract price and the resale price (the measure under ORS 72.7060). The trial court directed plaintiff to submit calculations of each measure of damages.

Both parties sought reconsideration. At a hearing on those motions, the trial court stated that it would not be “absolutely one-hundred percent convinced” about the appropriate measure of damages until it could see how each party calculated market price damages and resale price damages. The trial court acknowledged that plaintiff previously had submitted its calculation of market price damages and had proven those damages, but the court also directed the parties to calculate damages to account for any seed that had been resold. Subsequently, defendant submitted its analysis of damages based on the prices that plaintiff had received when it resold. Plaintiff criticized defendant’s analysis and stuck by its calculation of market price damages, without submitting an analysis of damages based on resale prices.

Each party’s calculation of damages for one of the breached contracts, contract 1874, illustrates the implications of using the market price or the resale price to calculate damages. The evidence at trial showed that the contract price for contract 1874 was $0.72 per pound. Plaintiff sought damages of $3,736.00 for that contract, apparently based on a market price of $0.64 per pound, resulting in a contract price minus market price differential of $0.08 per pound for 46,700 pounds of seed not accepted by defendant.1 Defendant argued, however, that plaintiff had resold at least some of that seed for $0.75 per pound, $0.03 per pound above the contract price and $0.11 per pound above plaintiffs market price calculation. Thus, according to defendant, plaintiff did *49not have any damages for that resold seed because plaintiff had resold for more than the contract price. If plaintiff recovered $0.08 per pound in market price damages, in addition to the $0.75 per pound that plaintiff allegedly had received on the resale, plaintiff ultimately would recover $0.83 per pound, which was $0.11 more than the contract price.2

For that same contract, however, where the contract price was $0.72 per pound, defendant noted that some of the seed had been resold for $0.60 per pound. That meant that the resale price damages would be $0.12 per pound. That is, for at least some of the resold seed from contract 1874, plaintiffs resale price damages of $0.12 per pound would exceed plaintiffs claimed market price damages of $0.08 per pound. In sum, the parties’ calculations of damages for contract 1874 showed that, with regard to some seed, the market price damage calculation would lead to a larger award, but that, with regard to other seed, the resale price damage calculation would lead to a larger award. On the whole, however, defendant calculated that plaintiff would receive a smaller amount of damages using the resale price measure of damages than plaintiff calculated that it would receive using the market price measure of damages.

The trial court awarded plaintiff damages using the resale price measure of damages as calculated by defendant.3 The trial court reasoned that plaintiff had not calculated damages as ordered by the court. The court stated that “even if Plaintiff [was] correct that Defendant’s calculations [were] somehow flawed or incorrect, no alternative calculation ha[d] been offered.” Thus, the trial court concluded that it was “left with no option but to accept Defendant’s calculation.”

*50The trial court also denied plaintiff’s request for attorney fees. The court concluded that plaintiff had not adequately alleged its request for attorney fees, and, on the merits, rejected plaintiff’s argument that it was entitled to recover attorney fees under a provision of the NORAMSEED Rules, which the parties had incorporated into their contracts. Those rules allowed a seller to recover “charges for collection of payment” if the buyer did not pay in full and immediately when due. Rather than construing the phrase “charges for collection of payment,” however, the trial court stated that the term “fees” in the NORMASEED Rules was ambiguous, and the court purported to construe the term against plaintiff as the drafter of the contracts that had incorporated those rules.4

Plaintiff appealed. As relevant on review, plaintiff argued that the trial court erred in not awarding plaintiff its market price damages under ORS 72.7080(1) or its attorney fees under the NORAMSEED Rules. Peace River, 253 Or App at 711, 722-23.

The Court of Appeals reversed and remanded. On the first issue, the court noted that, at least on its face, the UCC allows a seller to recover damages as calculated under either ORS 72.7060 (contract price less resale price) or ORS 72.7080(1) (contract price less market price). Id. at 713. After reviewing the relevant statutory provisions, the court went on to conclude that, “[i]n the absence of a restriction within the UCC that precludes an aggrieved seller from seeking its remedy pursuant to ORS 72.7080 if the seller has resold, we would decline to impose such a restriction.” Id. at 715. In support of that conclusion, the court explained that, once the buyer breaches, the buyer loses any right to control the goods or to “insist upon a different measure of damages.” Id. at 716-17. Moreover, the court noted, market price damages require the buyer to fulfill only the bargain to which it agreed. Id. at 717. Although the court acknowledged that the UCC policy is that remedies should put an aggrieved party “in as good a position as if the other party had fully performed,” ORS *5171.3050(1), the court concluded that the intent of the UCC is to allow an aggrieved seller to recover market price damages, even if the seller has resold the goods. Id. at 715-16 n 7. The court remanded the case for a proper calculation of plaintiffs market price damages. Id. at 717.

On the issue of attorney fees, the Court of Appeals determined that the trial court had erred in its contract interpretation analysis by both interpreting the wrong contract term and failing to follow the contract interpretation framework in Yogman v. Parrott, 325 Or 358, 361, 363-64, 937 P2d 1019 (1997). Peace River, 253 Or App at 723-25. Applying the Yogman analysis, the Court of Appeals first determined that the relevant contract term, “charges for collection,” was ambiguous. The court went on to note that the trial court had failed to determine the intent of the parties as necessary under the second step of Yogman. Id. at 724. Because the court concluded that there was some evidence in the record of the parties’ intent regarding that contract term, the court remanded to the trial court to consider the parties’ intent in the first instance. Id. at 725.

Defendant sought review and now urges this court to reverse the Court of Appeals and affirm the trial court on both issues.

AN AGGRIEVED SELLER’S REMEDIES UNDER THE UCC

The UCC provides a variety of remedies to an aggrieved seller. See ORS 72.7030 (providing an index of a seller’s remedies). As noted, the issue in this case is whether an aggrieved seller who has resold goods can recover the difference between the unpaid contract price and the market price under ORS 72.7080(1), even when market price damages would exceed resale price damages under ORS 72.7060.

Commentators and courts have taken two different approaches to this issue. Relying on the text and context of the sellers’ remedies provisions, some commentators have argued that the drafters of the UCC intended for sellers to be able to recover either market price damages or resale price damages, even if the seller resold the goods for more than the market price. See, e.g., Henry Gabriel, The *52 Seller’s Election of Remedies Under the Uniform Commercial Code: An Expectation Theory, 23 Wake Forest L Rev 429, 429 (1988) (arguing that an aggrieved seller “should be allowed to elect between the two remedies regardless of the seller’s good faith post-breach activities concerning the non-accepted goods”); Ellen A. Peters, Remedies for Breach of Contracts Relating to the Sale of Goods Under the Uniform Commercial Code: A Roadmap for Article Two, 73 Yale LJ 199, 260 (1963) (arguing for a “non-restrictive reading of the various remedies sections to preserve full options to use or to ignore substitute transactions as a measure of damages”). On the other hand, Professors White and Summers, whose view has been adopted by a number of courts, have argued that the UCC’s general policy is that damages should put a seller only in “as good a position as if the other party had fully performed,” ORS 71.3050(1), meaning a seller who has resold should not be allowed to recover more in market price damages than it could recover in resale price damages. James J. White, Robert S. Summers and Robert A. Hillman, 1 Uniform Commercial Code § 8:13, 689 (6th ed 2012) (so stating). We agree with those commentators who have observed that the drafters did not clearly resolve this issue. See, e.g, id. at 691 (noting that the UCC and the comments are “equivocal” about whether a seller can recover more under section 2-708(1) than it could recover under section 2-706); Gabriel, 23 Wake Forest L Rev at 430 (noting “the failure of the drafters to clearly resolve the problem of election between sections 2-706 and 2-708(1)”). Nonetheless, we conclude that the text, context, and legislative history of the sellers’ remedies provisions support a seller’s right to recover either market price damages or resale price damages, even if market price damages lead to a larger recovery.

We analyze the relevant statutory provisions using the framework described in State v. Gaines, 346 Or 160, 171-72, 206 P3d 1042 (2009). We begin by examining the statute’s text and context to determine the legislature’s intent regarding a seller’s remedies under the UCC. Because the relevant statutes are part of the UCC, we also consider the official UCC comments as an indication of the legislature’s intent. Security Bank v. Chiapuzio, 304 Or 438, 445 n 6, 747 P2d 335 (1987) (noting that the Oregon legislature took note *53of the official comments of the UCC, which are “statements of the purpose of each section”). In addition, “the legislative intent to make the UCC a uniform code makes relevant the decisions of other courts that have examined these questions and the discussions of the questions by scholars in the field, especially those scholars who participated in drafting the UCC.” Id. We also examine legislative history. The Oregon legislature enacted the UCC in 1961 “with little debate or discussion of the legislative intent,” but the UCC was proposed so that Oregon could “obtain the same advantages that other states had gained from the adoption of a uniform and comprehensive set of commercial statutes.” Id. Given “the legislative intent to make the UCC a uniform code,” id., we consider prior drafts of the UCC, as drafted by the National Conference of Commissioners on Uniform State Laws (NCCUSL), as part of the legislative history. Cf. Datt v. Hill, 347 Or 672, 680, 227 P3d 714 (2010) (examining history of uniform act in interpreting Oregon statute taken from that act).

Before examining the statutory scheme, however, we briefly review the law as it existed prior to the enactment of the UCC in Oregon. At common law, an aggrieved seller

“ha[d] the election of three remedies: (1) To hold the property for the purchaser, and to recover of him the entire purchase money; (2) to sell it, after notice to the purchaser, as his agent for that purpose, and recover the difference between the contract price and that realized on the sale; (3) to retain it as his own, and recover the difference between the contract and market prices at the time and place of delivery!.]”

Krebs Hop Co. v. Livesley, 59 Or 574, 588, 118 P 165 (1911). Krebs Hop Co. suggests that, before Oregon adopted the UCC, an aggrieved seller had to elect between remedies, and if the seller resold the goods, it had elected its remedy and could recover only resale price damages, but not market price damages. See Gabriel, 23 Wake Forest L Rev at 446 (explaining that, under pre-UCC law, an aggrieved seller who resold the goods was assumed to have elected the resale remedy and was barred from using an inconsistent remedy, such as market price damages). Although the UCC retained some aspect of each of the remedies available at common *54law, as explained below, it specifically rejected the doctrine of election of remedies. See Legislative Comment 1 to ORS 72.7030, reprinted in Legislative Counsel Committee, Oregon’s Uniform Commercial Code with Comments and Index and Tables 101 (1962) (noting that the UCC chapter on sales “reject [s] any doctrine of election of remedy as a fundamental policy”); Peters, 73 Yale LJ at 204 n 16 (noting that many sections of the UCC were “designed to mitigate the effect of prior law insofar as it forced a choice of remedy on the party aggrieved without regard to the adequacy of compensation”).

When a buyer breaches a contract for the sale of goods, ORS 72.7030 provides a seller with an index of remedies:

“Where the buyer wrongfully rejects or revokes acceptance of goods or fails to make a payment due on or before delivery or repudiates with respect to a part or the whole, then with respect to any goods directly affected and, if the breach is of the whole contract as provided in ORS 72.6120, then also with respect to the whole undelivered balance, the aggrieved seller may:

ii'Jfi ‡ * * *

“(4) Resell and recover damages as provided in ORS 72.7060.[5]

“(5) Recover damages for nonacceptance as provided in ORS 72.7080 or in a proper case the price as provided in ORS 72.7090.[6]

“(6) Cancel.”

*55That section lists the seller’s remedies, which, as relevant here, include resale price damages, ORS 72.7060, and market price damages, ORS 72.7080. Moreover, it lists those remedies without any limiting conjunction, such as “or,” that might suggest that the remedies are mutually exclusive. In contrast, a similar index of a buyer’s remedies after a seller’s breach provides that the buyer may “(a) ‘Cover’ and have damages * * * or (b) Recover damages for nondelivery.” ORS 72.7110(1) (emphasis added). Thus, although the buyer’s index of remedies suggests that a buyer who covers may be precluded from seeking market price damages, the seller’s index of remedies does not contain a similar limitation if the seller chooses to resell. It follows that the text of ORS 72.7030 supports plaintiffs argument that a seller who has resold is not necessarily limited to its resale price damages under ORS 72.7060, but has the option of seeking to recover market price damages under ORS 72.7080.

The UCC comments to the statute describing a seller’s remedies confirm that interpretation. Although the comments acknowledge that, in a particular case, the pursuit of one remedy may prevent a seller from obtaining certain damages, the comments also state that the UCC chapter on sales “reject [s] any doctrine of election of remedy as a fundamental policy and thus the remedies are essentially cumulative in nature and include all of the available remedies for breach.” Legislative Comment 1 to ORS 72.7030 at 101; id. (“Whether the pursuit of one remedy bars another depends entirely on the facts of the individual case.”). In contrast, the comments to the statute describing a buyer’s market price remedy explain that that remedy “is completely alternative to ‘cover’ under ORS 72.7120 and applies only when and to the extent that the buyer has not covered” Legislative Comment 5 to ORS 72.7130 at 110 (emphasis added). Thus, while the comments to the statute describing a seller’s remedies expressly reject the doctrine of election of remedies, the comments to the statute describing a buyer’s market price remedy appear to adopt that doctrine. Those comments further indicate that a seller who resells goods after a buyer’s breach would not be considered to have “elected” the resale remedy and thus would not be precluded from seeking a larger damage recovery using the market price measure of damages.

*56The text of ORS 72.7060, which sets forth the seller’s resale remedy, similarly suggests that a seller who resells goods is not necessarily precluded from using the market price measure of damages, even if it leads to a larger recovery. ORS 72.7060(1) states that “the seller may resell the goods concerned or the undelivered balance thereof,” which suggests that an aggrieved seller is not required to resell. (Emphasis added.) See White, Summers and Hillman, 1 Uniform Commercial Code § 8:6 at 671 (“Resale is not mandatory.”). Similarly, the text of ORS 72.7060 indicates that a seller who resells is not required to seek damages using the resale remedy. See ORS 72.7060(1) (“Where the resale is made in good faith and in a commercially reasonable manner the seller may recover the difference between the resale price and the contract price * * * ” (Emphasis added.)). In fact, the unqualified text of ORS 72.7080(1) seems to suggest that market price is in fact the default measure of damages. See ORS 72.7080(1) (“Subject to *** the provisions of ORS 72.7230 with respect to proof of market price, the measure of damages for nonacceptance or repudiation by the buyer is the difference between the market price at the time and place for tender and the unpaid contract price ***.” (Emphasis added.)). Thus, the text of the remedy provisions does not limit a seller who resells to its resale price damages.

As defendant notes, however, one of the comments to ORS 72.7060 does indicate that the drafters intended ORS 72.7060 to be a seller’s primary remedy, and did not intend to allow a seller to recover more under the market price remedy. Comment 2 to ORS 72.7060 explains that “[flailure to act properly under ORS 72.7060 deprives the seller of the measure of damages there provided and relegates him to that provided in ORS 72.7080 [market price damages].” Legislative Comment 2 to ORS 72.7060 at 104 (emphasis added). That language suggests that the comment drafters viewed market price damages as less favorable, but it does not indicate why they viewed them that way. The pejorative language used in the comments does not necessarily lead to the conclusion that a seller who resells cannot use the market price remedy or must use the resale price remedy if it would yield the same or a smaller *57amount of damages than the market price remedy. That language instead could indicate that market price damages are considered less favorable because market price is often hard to prove, as many commentators have noted. See, e.g., Henry J. Bailey III, 1 The Oregon Uniform Commercial Code § 2.140, 279 (2d ed 1990) (noting that the remedy under ORS 72.7080(1) “is often a less advantageous remedy for the seller because of difficulty of proof of market price”). As a result, that comment language is not dispositive, particularly in light of the text of the remedy provisions.

Turning to legislative history, prior drafts of the UCC provide additional insight into the drafters’ intent to allow a seller to recover its market price damages, even if the seller has resold. In particular, in an earlier draft of the section describing the resale price remedy, section 2-706, one of the comments stated that that section provided

“‘the exclusive measure of the seller’s damages where the resale has been made in accordance with the requirements of this section. Evidence of market or current prices at any particular time or place is relevant only on the question of whether the seller acted with commercially reasonable care and judgment in making the resale.’”

See Gabriel, 23 Wake Forest L Rev at 436 (quoting UCC § 2-706 cmt 3 (May 1949 Draft) (emphasis added)). Under that version of the UCC, a seller who had met the resale requirements would be required to use the resale price measure of damages. That comment later was revised, however, and when Oregon adopted the UCC, the comment included language that also had been in the 1949 draft comment, but the mandatory language had been removed, leaving only the permissive wording: “If the seller complies with the prescribed standard of duty in making the resale, he may recover from the buyer the damages provided for in subsection (1).” Legislative Comment 3 to ORS 72.7060 at 104 (emphasis added). That shift, from resale as the exclusive remedy to resale as a permissible remedy, indicates that the drafters intended for a seller to be able to choose to recover market price damages, even after reselling under ORS 72.7060.

*58Defendant argues, however, that even if a seller who resells can recover market price damages under ORS 72.7080(1), those damages cannot exceed the seller’s resale price damages. Defendant primarily relies on the general policy statement set forth in ORS 71.3050 to support its argument. ORS 71.3050(1) provides,

“The remedies provided by the Uniform Commercial Code must be liberally administered to the end that the aggrieved party may be put in as good a position as if the other party had fully performed but consequential damages, special damages or penal damages may not be had except as specifically provided in the Uniform Commercial Code or by other rule of law.”

(Emphasis added.) Defendant reasons that the reference in ORS 71.3050(1) to putting an aggrieved party “in as good a position as if the other party had fully performed” acts as a limit on the damages that a party can receive. Commentators and courts likewise have relied on that provision in concluding that a seller’s market price damages should be limited to the actual loss suffered, by taking into account any goods that have been resold. See, e.g., White, Summers and Hillman, 1 Uniform Commercial Code § 8:13 at 689 (“We conclude that a seller should not be permitted to recover more under 2-708(1) [market price damages] than under 2-706 [resale price damages] * * *. Section 1-305 indicates that a seller who has resold may not invoke 2-708(1).”); Coast Trading Co. v. Cudahy Co., 592 F2d 1074, 1081-83 (9th Cir 1979) (adopting approach of White and Summers and reducing section 2-708(1) market price damages of seller who conducted commercially unreasonable resale to what seller could have recovered under section 2-706 if resale had been commercially reasonable); Tesoro Petroleum Corp. v. Holborn Oil Co., 547 NYS2d 1012, 1016-17 (NY Sup Ct 1989) (adopting approach of White and Summers and limiting seller to resale price damages because higher market price damages would create a “windfall” inconsistent with the general policy of the UCC).

The text of ORS 71.3050(1) indicates that the drafters of the UCC intended a seller’s remedies to be compensatory. See Legislative Comment 1 to former ORS 71.1060 at 6 (1963), amended and renumbered as ORS 71.3050 (2009) *59(noting that statute is intended to “make it clear that compensatory damages are limited to compensation”). The text of that section, however, also provides that the remedies in the UCC are to be “liberally administered.” ORS 71.3050(1); see also Legislative Comment 4 to ORS 72.7030 at 101 (“It should also be noted that the Uniform Commercial Code requires its remedies to be liberally administered ***.”). Nonetheless, we agree with defendant that the general policy of compensation provided in ORS 71.3050(1) must be taken into account.

We do not agree, however, that that policy necessarily limits an aggrieved seller who has resold to its resale price damages. Defendant argues that if it had fully performed, plaintiff could expect to recover only the contract price, and that limiting plaintiff to the difference between the contract price and the resale price therefore gives it the benefit of its bargain. As Professor Gabriel notes, however, limiting a seller to its resale price damages does not account fully for either party’s expectations upon entering into the contract. He explains that a seller expects to be able to recover the difference between the contract price and the market price because it is the “logical and expected measure of damages,” and because the ability to recover market price damages “is the natural assumption the seller makes in return for the risk inherent in the contract that the sale may not turn out to be economically beneficial to the seller. That the seller then resells the goods in no way diminishes this expectancy regarding the first contract.” Gabriel, 23 Wake Forest L Rev at 449, 453. From the buyer’s perspective, he argues that “the [buyer] has specific obligations and will suffer the consequences of the failure to perform these obligations because this is the [buyer’s] expectation.” Id. at 450. In other words, contrary to defendant’s argument, an aggrieved seller expects to be able to recover market price damages under the contract, and a breaching buyer expects to have to fulfill its obligation to the seller — even if a seller resells and recovers market price damages, “the buyer’s obligation is no more than the right the buyer originally conferred upon the seller.” Id. at 449.

Moreover, limiting an aggrieved seller to its resale price damages ignores the risk for which the parties *60bargained. When parties bargain for fixed price contracts, each party assumes the risk of market price fluctuations. The parties are willing to take that risk because of the benefits that they might receive: if the market price decreases, the seller benefits, and if the market price increases, the buyer benefits. In a fixed price contract, therefore, market price damages represent the risk for which both parties bargained.7 Cf. id. (“The logical and expected measure of damages is the contract price-market price differential. This measure of damages is the risk the buyer assumed by entering into the contract', it is the right conferred upon the seller by the buyer.” (Emphasis added.)).8 For those reasons, we conclude that a seller can recover market price damages, even if the seller resells some of the goods at above the market price at the time and place for tender.

Defendant argues, however, that that conclusion does not account for an aggrieved party’s duty to mitigate, which is consistent with the UCC’s policy of minimizing damages. See Legislative Comment 1 to former ORS 71.1060 at 6 (1963) (“[T]he Code elsewhere makes it clear that damages must be minimized.”);9 Roy Ryden Anderson, 1 Damages Under the Uniform Commercial Code § 1:6, 11-12 (2012) *61(noting that the duty to mitigate is “implicit in every damage remedy” and typically is justified under section 1-305). We do not understand the duty to mitigate to be a limit on a seller’s market price damages because, as noted, the text demonstrates and commentators agree that a seller is not required to resell goods after a buyer’s breach. If the duty to mitigate does not require the aggrieved seller to resell its goods, we do not think that the duty to mitigate can require the seller to use the resale price measure of damages. See Gabriel, 23 Wake Forest L Rev at 445 (“The seller has no obligation to resell, and the failure to resell the goods does not affect the right to proceed under section 2-708(1). If non-action by the seller does not impact on the statutory right under section 2-708(1), common sense dictates that an affirmative act by the seller to resell should not have any impact on that right.” (Footnote omitted.)). The comments to the resale remedy provision also acknowledge that the seller who resells does so for its own benefit, and not for the benefit of the breaching party as mitigation. See Legislative Comment 2 to ORS 72.7060 at 104 (noting that the seller resells “in his own behalf, for his own benefit and for the purpose of fixing his damages”); cf. ORS 72.7060(6) (“The seller is not accountable to the buyer for any profit made on any resale.”). Therefore, the principle of mitigation does not appear to limit an aggrieved seller’s recovery to resale price damages under ORS 72.7060; the seller may instead seek market price damages under ORS 72.7080(1).

In sum, when viewed in light of the bargained-for market risks and the UCC’s rejection of the doctrine of election of remedies, the text, context, and legislative history of the sellers’ remedy provisions demonstrate that an aggrieved seller can seek damages under either ORS 72.7080(1) or ORS 72.7060. That means that an aggrieved seller can seek damages under ORS 72.7080(1) even if the seller has resold the goods and market price damages exceed resale price damages.

Returning to the facts of this case, the trial court limited plaintiffs damages to resale price damages under ORS 72.7060. We have determined that plaintiff is entitled to market price damages under ORS 72.7080(1). Plaintiff asks us not to remand for calculation of those damages, *62as the Court of Appeals did. See Peace River, 253 Or App at 717 (concluding that “the case must be remanded for a proper calculation of [plaintiffs] damages”). Instead, plaintiff argues that this court should remand with instructions to award plaintiff its market price damages as previously calculated. Plaintiff argues that the trial court made a specific finding accepting its calculation of those damages, and then improperly deducted certain resales from that amount. Because of that initial finding, plaintiff asserts that any additional calculation of its damages under ORS 72.7080(1) is unnecessary. Defendant responds that the trial court never made a finding accepting plaintiffs calculation of its damages under ORS 72.7080(1). Moreover, defendant notes, the record does not identify the amount that the trial court attributed to plaintiffs resales, which means that this court cannot simply work backwards from the trial court’s award. Thus, defendant argues, this court must remand for calculation of plaintiffs market price damages.

As noted, after the trial court issued its initial letter opinion concluding that defendant had breached the contracts and directing plaintiff to calculate both its resale price damages and its market price damages, defendant filed a motion for reconsideration. Among other things, that motion challenged plaintiff’s calculation of its market price damages. At the hearing on defendant’s motion, defense counsel emphasized that plaintiff had the burden of proving its damages, and the trial court responded, “[T]hey have proven they have been damaged and they have proven in my opinion the numbers that they presented at trial. I’m just not sure whether they are entitled to all of that or something lesser based upon our discussion here.”10 Although the trial court appeared to accept plaintiffs calculation *63of market price damages, the court stated that it had not decided the amount of damages or how to determine those damages because, the court explained, “I am not absolutely one-hundred percent convinced what the measure is until I see completely how you each calculate your damages to some degree [.]”

Following that hearing, defendant submitted a calculation of plaintiffs resale price damages, and although plaintiff argued that that calculation was incorrect, plaintiff did not submit its own calculation of resale price damages. In the trial court’s subsequent ruling awarding damages, the court acknowledged that it had “informed the parties at the close of evidence that a prima facie case for damages had been presented at trial,” but the court noted that it had directed the parties to calculate the damages using the measure of damages directed by the court. Moreover, the court stated, “it could well be argued that Plaintiff has not in fact proved their damages,” and the court went on to note that it “would have been within [its] discretion to have found Plaintiff did not adequately prove damages.” Nonetheless, the court explained that it had given plaintiff time to provide a calculation of the measure of damages that accounted for resales. Because plaintiff did not do so, the court reasoned that it was “left with no option but to accept Defendant’s calculation” using the resale price measure of damages.

The trial court did not award plaintiff its market price damages under ORS 72.7080(1), presumably because the court concluded that plaintiff was not entitled to that measure of damages — defendant’s calculation of resale price damages was the “lesser of’ the two calculations offered. Nonetheless, the trial court did state that plaintiff had proven its damages at trial. Even after defendant challenged plaintiffs market price damage calculation, the trial court concluded that plaintiff had presented a prima facie case for its market price damages. Moreover, although defendant suggests that the “record in this case does not permit this court to identify the amount the trial court attributed to [plaintiffs] resales,” the amount that the trial court attributed to plaintiffs resales is irrelevant in determining plaintiff’s market price damages because market *64price damages and resale price damages are separate remedies. The trial court ordered that plaintiff be awarded “[t]he lesser of’ its resale price damages or its market price damages. Thus, because we have concluded that plaintiff is entitled to recover its market price damages, on remand, the trial court should award plaintiff its market price damages as calculated in Exhibit 409.11 The trial court also awarded plaintiff prejudgment interest on its damages. Defendant did not raise that issue in the Court of Appeals. Because we have concluded that the measure of damages awarded by the trial court was erroneous, on remand the trial court should calculate prejudgment interest on the damages set out in Exhibit 409 and include the appropriate sum in its judgment.12

ATTORNEY FEES

The second issue on review is whether plaintiff is entitled to recover its attorney fees under the parties’ contracts. In its initial ruling, the trial court noted that plaintiff could submit an application for attorney fees and costs under ORCP 68. In its subsequent ruling awarding damages, however, the trial court determined that plaintiff was not entitled to recover attorney fees. As relevant on review, the trial court ruled that the parties’ contracts, which incorporated the NORAMSEED Rules — which we quote and discuss below — were ambiguous because the term “fees” in the NORAMSEED Rules had multiple possible meanings. The trial court resolved that ambiguity against plaintiff, reasoning that plaintiff was the drafter of the contracts. The Court of Appeals reversed, concluding that the trial court had construed a term that was not at issue in the case — the term “fees,” rather than the disputed term “charges for collection”— and that the trial court had relied on an inapplicable maxim *65of construction. Peace River, 253 Or App at 723-25. Applying the Yogman framework for contract interpretation, the Court of Appeals determined that the phrase “charges for collection” was ambiguous and remanded for the trial court to determine the intent of the parties. Id. at 724-25.

On review, defendant argues that the text and context of the contracts demonstrate that the phrase “charges for collection” does not include attorney fees. Even if this court concludes that that phrase is ambiguous, defendant argues, the record lacks clear evidence that the parties intended to allow for recovery of attorney fees. Alternatively, defendant argues that attorney fees can be recovered only if the contracts “expressly” authorize them, and defendant asserts that ambiguous contracts cannot expressly authorize attorney fees. Plaintiff responds that the phrase “charges for collection” is ambiguous, and that this court can resolve that ambiguity because the NORAMSEED Rules are a trade code that must be interpreted as a matter of law. Alternatively, plaintiff argues, the ambiguity can be resolved by applying ORS 42.260, which explains how to resolve contract ambiguities.

Generally, a party cannot recover attorney fees unless there is a statute or a contract that authorizes recovery of those fees. Menasha Forest Products Corp. v. Curry County Title, 350 Or 81, 88, 249 P3d 1265 (2011) (so stating). Because plaintiff seeks attorney fees under the parties’ contracts, plaintiff must demonstrate that the contracts authorize recovery of those fees. See Draper v. Mullennex et al, 225 Or 267, 271, 357 P2d 519 (1960) (“If plaintiff is entitled to a judgment for attorney’s fees against a defendant by reason of any special contract * * * then the right to such recovery should be particularly pleaded and proved.”). As noted, plaintiff points to the phrase “charges for collection” in the NORAMSEED Rules, which the parties incorporated into their contracts, to support its claim that it is entitled to recover attorney fees. We interpret contract provisions using the framework described in Yogman, 325 Or 358. Under that framework, we begin by examining the “text of the disputed provision, in the context of the document as a whole,” and if the provision is clear, the analysis ends. Id. at 361; see also id. (noting that whether a provision is ambiguous *66is a question of law). A provision is ambiguous if it “‘reasonably can, in context, be given more than one meaning.’” Id. at 363-64 (quoting Pacific First Bank v. New Morgan Park Corp., 319 Or 342, 347-48, 876 P2d 761 (1994)).

Here, the disputed provision is in a rule titled “Payment,” and it provides that “ [t] he charges for collection of payment shall be for the Seller’s account unless the Buyer does not pay in full and immediately when due, in which case they shall be for the Buyer’s account.” (Emphasis added.) The next paragraph of the rule explains, “If the Buyer does not pay within three working days of the due date of payment, or from the date on which he can legally do so, he shall pay the charges for collection[.]” (Emphasis added.) The phrase “charges for collection” is not a defined term in the rules or the contracts, and it does not appear anywhere else in the NORAMSEED Rules.

Although this court previously has looked to dictionary definitions when interpreting the text of a contract, see, e.g., Yogman, 325 Or at 362-63, the UCC rejects that approach for commercial contracts. See Legislative Comment 1 to former ORS 71.2050 at 14 (1963), amended and renumbered as ORS 71.3030 (2009) (“The Uniform Commercial Code rejects * * * the ‘lay-dictionary’ * * * reading of a commercial agreement. Instead the meaning of the agreement of the parties is to be determined by the language used by them and by their action, read and interpreted in the light of commercial practices and other surrounding circumstances.”); see also Legislative Comment 1(b) to ORS 72.2020 at 26-27 (noting that that section, which allows trade usage to explain or supplement a final written agreement, rejects “[t]he premise that the language used has the meaning attributable to such language by rules of construction existing in the law rather than the meaning which arises out of the commercial context in which it was used”). Instead, we must examine the text “in the light of commercial practices and other surrounding circumstances.” Legislative Comment 1 to former ORS 71.2050 at 14 (1963).

Commercial practices include “usage of trade,” which is defined as “any practice or method of dealing having such regularity of observance in a place, vocation, or trade as to *67justify an expectation that the practice or method will be observed with respect to the transaction in question.” ORS 71.3030(3). We conclude that it is appropriate to consider any applicable trade usage at the first level of analysis under Yogman. See also Legislative Comment 1(c) to ORS 72.2020 at 27 (noting that that provision rejects “[t]he requirement that a condition precedent to the admissibility of the type of evidence specified in subsection (1) [including usage of trade] is an original determination by the court that the language used is ambiguous”); Legislative Comment 2 to ORS 72.2020 at 27 (stating that a commercial contract is to be read on the assumption that usages of trade “were taken for granted when the document was phrased” so that they became “an element of the meaning of the words used” if not carefully negated).

The existence and scope of a usage of trade, however, is a question of fact. ORS 71.3030(3) (“The existence and scope of the usage must be proved as fact.”). Plaintiff nonetheless contends that the NORAMSEED Rules are a trade code that this court can construe as a matter of law. See id. (“If it is established that the usage is embodied in a trade code or similar record, the interpretation of the record is a question of law.”). Even if we accept that argument, however, this court would need some evidence of what the “usage” was — here, the “existence and scope” of the asserted trade usage of the term “charges for collection.” The trial court, however, did not make any findings about the meaning of that term, about any “trade usage” under the relevant NORAMSEED Rule, or about any other aspect of the commercial context of the contracts that relates to attorney fees. For that reason, on review we must determine whether there is any evidence in the record that would support a remand to the trial court to determine the relevant commercial context. See Gill v. SAIF, 314 Or 719, 724-25, 842 P2d 402 (1992) (declining to remand a case for further findings of fact on whether plaintiffs suffered any actual loss where the record “appear [ed] to be complete” and plaintiffs presented no evidence of actual loss).

Plaintiff points to testimony in the record to demonstrate the relevant usage of trade and commercial context *68of the phrase “charges for collection.” In particular, plaintiffs general manager at the time of the contracts testified that, after a dispute arose with defendant, he sent correspondence to the seed broker to forward to defendant that threatened to “commence with legal action for interest, legal fees and damages.” Plaintiffs counsel then asked the general manager,

“Q: Now what was the basis for your claim for legal fees?

“A: Actually it’s just the cost of collection.

“Q: Is it customary in Alberta and British Columbia that when you have to sue to collect money, you get to recover your attorney’s fees?

“A: Yes, it is.”

That exchange — and another similar exchange — is the only evidence plaintiff has identified in the record to show that the trade usage was that “charges for collection” included attorney fees.13

That evidence alone is insufficient to justify a remand for the trial court to determine the commercial context and usage of trade. The testimony of plaintiffs general manager is some evidence that, in a suit to collect money, the custom in parts of Canada is that the plaintiff can recover attorney fees. However, that testimony is not evidence of a regular practice or method of dealing in the grass seed trade.14 Although a usage of trade can include a “practice or method of dealing having such regularity of observance in a place” plaintiff does not point to evidence to “justify an expectation that the practice or method [would] be observed with respect to the transaction in question,” which *69also involved an Oregon corporation, defendant. See ORS 71.3030(3) (defining “usage of trade”). Moreover, the Court of Appeals held that the contracts were to be interpreted applying Oregon law, Peace River, 253 Or App at 720, and neither party challenged that holding on review. The general manager’s testimony is insufficient to justify a remand to the trial court on the issue of usage of trade, and because plaintiff does not identify other evidence in the record of usage of trade, we conclude that there is no evidence of usage of trade to support plaintiffs proposed interpretation of the phrase “charges for collection” to include attorney fees.

We turn to other provisions of the contract. See Yogman, 325 Or at 363 (examining other provisions of contract as part of analysis of text in context). As noted, the disputed provision appears in the NORAMSEED Rule entitled “Payment.” That rule addresses the timing of payment, as well as the seller’s options if the buyer does not pay. In particular, in addition to providing that the “charges for collection of payment” are for the buyer’s account if the buyer does not pay in full and immediately when due, the rule also states, in a later paragraph, that the seller can recover “all damages, including expenses” if the buyer does not pay for the seed: “If the Buyer has not paid for the seed or not taken delivery upon arrival, or stated that he will not do so, he shall be liable for all damages, including expenses as well as loss of profit to the Seller.”15 The separate provisions covering “charges for collection of payment” and “damages, including expenses,” suggest that charges for collection of payment are separate from the seller’s effort to recover damages, which often would be the basis for a seller’s claim for attorney fees. That is, as defendant notes, the part of the rule that discusses “charges for collection of payment” does not appear to contemplate litigation and, in turn, does not appear to contemplate recovery of attorney fees.

Even if we agreed with the Court of Appeals that the phrase “charges for collection” is capable of more than one interpretation, and could be construed to include attorney *70fees, the evidence of the parties’ intent adds little to our analysis of the text and context. See Yogman, 325 Or at 363 (noting that if a contractual provision is ambiguous after considering text and context, next step is to “examine extrinsic evidence of the contracting parties’ intent”). As noted, the only evidence of the parties’ intent identified by plaintiff— the testimony of the general manager — addressed the fact that a party seeking to recover money damages in Alberta and British Columbia customarily has a right to attorney fees, and even that testimony is ambiguous because it is unclear whether the general manager expected to recover attorney fees under the NORAMSEED Rules, which apply here, or under Canadian law, which does not apply here.16 In any case, for the same reason that there is no evidence that supports a remand on the issue of usage of trade, no evidence supports a remand on the issue of the parties’ intent.

In sum, plaintiff did not present evidence that the parties’ contracts, through incorporation of the NORAMSEED Rule allowing a seller to recover “charges for collection of payment,” provide for plaintiff to recover its attorney fees. That is, plaintiff did not demonstrate through text and context, including trade usage, or through evidence of the parties’ intent, that the term “charges for collection” includes attorney fees.17

*71CONCLUSION

For the reasons explained above, we conclude that plaintiff can recover its market price damages under ORS 72.7080(1). Because the trial court determined that plaintiff had proven its market price damages at trial, but later declined to award those damages for reasons that we have concluded were legally erroneous, plaintiff is entitled to recover market price damages in the amount calculated in plaintiffs Exhibit 409, together with prejudgment interest on that amount. However, we agree with the trial court, although for different reasons, that plaintiff is not entitled to recover its attorney fees under the NORAMSEED Rule that allows a seller to recover “charges for collection.”

The decision of the Court of Appeals is affirmed in part and reversed in part. The judgment of the circuit court is affirmed in part and reversed in part, and the case is remanded to the circuit court.