Opinion

KLEIN, P. J.

Plaintiffs and appellants Sondra Locke (Locke) and Caritas Films, a California corporation (Caritas) (sometimes collectively referred to as Locke) appeal a judgment following a grant of summary judgment in favor of defendant and respondent Warner Bros., Inc. (Warner).

The essential issue presented is whether triable issues of material fact are present which would preclude summary judgment.

We conclude triable issues are present with respect to whether Warner breached its development deal with Locke by categorically refusing to work with her, and whether Warner fraudulently entered into said agreement without the intention to work with Locke. The judgment therefore is reversed as to the second and fourth causes of action and otherwise is affirmed.

Factual and Procedural Background

1. Locke’s dispute with Eastwood.

In 1975, Locke came to Warner to appear with Clint Eastwood in The Outlaw Josey Wales (Warner Bros. 1976). During the filming of the movie, Locke and Eastwood began a personal and romantic relationship. For *358the next dozen years, they lived in Eastwood’s Los Angeles and Northern California homes. Locke also appeared in a number of Eastwood’s films. In 1986, Locke made her directorial debut in Ratboy (Warner Bros. 1986).

In 1988, the relationship deteriorated, and in 1989 Eastwood terminated it. Locke then brought suit against Eastwood, alleging numerous causes of action. That action was resolved by a November 21, 1990, settlement agreement and mutual general release. Under said agreement, Eastwood agreed to pay Locke additional compensation in the sum of $450,000 “on account of past employment and Locke’s contentions” and to convey certain real property to her.

2. Locke’s development deal with Warner.

According to Locke, Eastwood secured a development deal for Locke with Warner in exchange for Locke’s dropping her case against him. Contemporaneously with the Locke/Eastwood settlement agreement, Locke entered into a written agreement with Warner, dated November 27, 1990. It is the Locke/Wamer agreement which is the subject of the instant controversy.

The Locke/Wamer agreement had two basic components. The first element states Locke would receive $250,000 per year for three years for a “non-exclusive first look deal.” It required Locke to submit to Warner any picture she was interested in developing before submitting it to any other studio. Warner then had 30 days either to approve or reject a submission.

The second element of the contract was a $750,000 “pay or play” directing deal. The provision is called “pay or play” because it gives the studio a choice: It can either “play” the director by using the director’s services, or pay the director his or her fee.

Unbeknownst to Locke at the time, Eastwood had agreed to reimburse Warner for the cost of her contract if she did not succeed in getting projects produced and developed. Early in the second year of the three-year contract, Warner charged $975,000 to an Eastwood film, Unforgiven (Warner Bros. 1992).

Warner paid Locke the guaranteed compensation of $1.5 million under the agreement. In accordance with the agreement, Warner also provided Locke with an office on the studio lot and an administrative assistant. However, Warner did not develop any of Locke’s proposed projects or hire her to direct any films. Locke contends the development deal was a sham, that Warner never intended to make any films with her, and that Warner’s sole *359motivation in entering into the agreement was to assist Eastwood in settling his litigation with Locke.

3. Locke’s action against Warner.

On March 10, 1994, Locke filed suit against Warner, alleging four causes of action.

The first cause of action alleged sex discrimination in violation of public policy. Locke alleged Warner denied her the benefit of the bargain of the development deal on account of her gender.

The third cause of action, captioned “Tortious Breach of the Implied Covenant of Good Faith and Fair Dealing in Violation of Public Policy,” alleged a similar claim. Locke pled that in denying her the benefits of the Wamer/Locke agreement, Warner was “motivated by [its] discriminatory bias against women in violation of . . . public policy.”1

The second cause of action alleged that Warner breached the contract by refusing to consider Locke’s proposed projects and thereby deprived her of the benefit of the bargain of the Wamer/Locke agreement.

Lastly, the fourth cause of action alleged fraud. Locke pled that at the time Warner entered into the agreement with her, it concealed and failed to disclose it had no intention of honoring the agreement.

Warner answered, denied each and every allegation and asserted various affirmative defenses.

4. Warner’s motion for summary judgment and opposition thereto.

On January 6, 1995, Warner filed a motion for summary judgment. Warner contended it did not breach its contract with Locke because it did consider all the projects she presented, and the studio’s decision not to put any of those projects into active development or “hand” Locke a script which it already owned was not a breach of any express or implied contractual duty. Warner asserted the odds are slim a producer can get a project into development and even slimmer a director will be hired to direct a film. During the term of Locke’s deal, Warner had similar deals with numerous other producers and directors, who fared no better than Locke.

*360As for Locke’s sex discrimination claims, Warner averred there was no evidence it ignored Locke’s projects or otherwise discriminated against her on account of her gender. Finally, Warner urged the fraud claim was meritless because Locke had no evidence that when Warner signed the contract, it did not intend to honor the deal, and moreover, Warner had fulfilled its contractual obligations to Locke.

In opposing summary judgment, Locke contended Warner breached the agreement in that it had no intention of accepting any project regardless of its merits. Locke also asserted Warner committed fraud by entering into the agreement without any intention of approving any project with Locke or allowing Locke to direct another film.

Locke’s opposition papers cited the deposition testimony of Joseph Terry, who recounted a conversation he had with Bob Brassel, a Warner executive, regarding Locke’s projects. Terry had stated to Brassel: “ ‘Well, Bob, this woman has a deal on the lot. She’s a director that you want to work with. You have a deal with her. . . . I’ve got five here that she’s interested in.’ [H And then I would get nothing. HD ... 0D I was told [by Brassel], ‘Joe, we’re not going to work with her,’ and then, ‘That’s Clint’s deal.’ And that’s something I just completely did not understand.”

Similarly, the declaration of Mary Wellnitz stated: She worked with Locke to set up projects at Warner, without success. Shortly after she began her association with Locke, Wellnitz submitted a script to Lance Young, who at the time was a senior vice-president of production at Warner. After discussing the script, Young told Wellnitz, “Mary, I want you to know that I think Sondra is a wonderful woman and very talented, but, if you think I can go down the hall and tell Bob Daly that I have a movie I want to make with her he would tell me to forget it. They are not going to make a movie with her here.”

5. Trial court’s ruling.

On February 17, 1995, the trial court granted summary judgment in favor of Warner. Thereafter, the trial court signed an extensive order granting summary judgment. The order stated:

“Under the contract, Warner had no obligation either to put into development any of the projects submitted to the studio for its consideration, or to ‘hand off’ to Locke any scripts for her to direct that it previously had acquired from someone else. The implied covenant of good faith and fair dealing cannot be imposed to create a contract different from the one the *361parties negotiated for themselves. Warner had the option to pass on each project Locke submitted. Warner was not required to have a ‘good faith’ or ‘fair’ basis for declining to exercise its right to develop her material. Such a requirement would be improper and unworkable. A judge or jury cannot and should not substitute its judgment for a film studio’s when the studio is making the creative decision of whether to develop or produce a proposed motion picture. Such highly subjective artistic and business decisions are not proper subjects for judicial review. Moreover, Warner had legitimate commercial and artistic reasons for declining to develop the projects Locke submitted.”

With respect to Locke’s claim she was defrauded by Warner when it entered into the agreement with the undisclosed intention not to honor its contractual obligations, the trial court ruled that because Warner did not breach its contractual obligations to Locke, the fraud claim was meritless. Also, it could not be inferred from the statements by Young and Brassel that two years earlier, when Warner entered into agreement, it had no intention of working with Locke.

As for the two causes of action alleging sex discrimination, the trial court found no evidence Warner declined to develop the projects Locke submitted, and declined to use her directing services, on account of her gender.

Locke filed a timely notice of appeal from the judgment.

Contentions

Locke contends: The trial court erred by granting Warner’s motion for summary judgment based on its conclusion there were no disputed issues of material fact; the trial court erred in weighing the evidence, resolving doubts against Locke, the nonmoving party, and adopting only those inferences favorable to Warner where the evidence supported contrary inferences; and the trial court committed reversible error first by failing to make any findings or evidentiary rulings and then by adopting Warner’s defective ruling.

Discussion

1. Standard of appellate review.

As we recently stated in PMC, Inc. v. Saban Entertainment, Inc. (1996) 45 Cal.App.4th 579, 590 [52 Cal.Rptr.2d 877], summary judgment “motions are to expedite litigation and eliminate needless trials. [Citation.] *362They are granted ‘if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ [Citations.]”

A defendant meets its burden upon such a motion if it negates an essential element of the plaintiff’s cause of action, or establishes a complete defense, or if it demonstrates the absence of evidence to support the plaintiff’s case. Once the moving defendant has met its initial burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists. (PMC, Inc. v. Saban Entertainment, Inc., supra, 45 Cal.App.4th at p. 590; Leslie G. v. Perry & Associates (1996) 43 Cal.App.4th 472, 482 [50 Cal.Rptr.2d 785].)

On appeal, “we exercise ‘an independent assessment of the correctness of the trial court’s ruling, applying the same legal standard as the trial court . . . .’ [Citations.] ‘[W]e construe the moving party’s affidavits strictly, construe the opponent’s affidavits liberally, and resolve doubts about the propriety of granting the motion in favor of the party opposing it.’ [Citations.]” (PMC, Inc., v. Saban Entertainment, Inc., supra, 45 Cal.App.4th at p. 590.)

Our review is guided by the foregoing principles.2

2. A triable issue exists as to whether Warner breached its contract with Locke by failing to evaluate Locke’s proposals on their merits.

As indicated, the second cause of action alleged Warner breached the contract by “refusing to consider the projects prepared by [Locke] and *363depriving [Locke] of the benefit of the bargain of the Wamer-Locke agreement.”3

In granting summary judgment on this claim, the trial court ruled “[a] judge or jury cannot and should not substitute its own judgment for a film studio’s when the studio is making the creative decision of whether to develop or produce a proposed motion picture. Such highly-subjective artistic and business decisions are not proper subjects for judicial review.”

The trial court’s ruling missed the mark by failing to distinguish between Warner’s right to make a subjective creative decision, which is not reviewable for reasonableness, and the requirement the dissatisfaction be bona fide or genuine.

a. General principles.

“‘[W]here a contract confers on one party a discretionary power affecting the rights of the other, a duty is imposed to exercise that discretion in good faith and in accordance with fair dealing.’ [Citations.]” (Perdue v. Crocker National Bank (1985) 38 Cal.3d 913, 923 [216 Cal.Rptr. 345, 702 P.2d 503]; accord, Kendall v. Ernest Pestana, Inc. (1985) 40 Cal.3d 488, 500 [220 Cal.Rptr. 818, 709 P.2d 837].) It is settled that in “ ‘every contract there is an implied covenant that neither party shall do anything which will have the effect of destroying or injuring the right of the other party to receive the fruits of the contract. . . .’” (Kendall, supra, at p. 500; accord, Waller, v. Truck Ins. Exchange, Inc., supra, 11 Cal.4th at p. 36.)

Therefore, when it is a condition of an obligor’s duty that he or she be subjectively satisfied with respect to the obligee’s performance, the subjective standard of honest satisfaction is applicable. (1 Witkin, Summary of Cal. Law (9th ed. 1987) Contracts, § 729, p. 659; Rest.2d Contracts, § 228, corns, a, b, pp. 182-183.) “Where the contract involves matters of fancy, taste or judgment, the promisor is the sole judge of his satisfaction. If he asserts in good faith that he is not satisfied, there can be no inquiry into the reasonableness of his attitude. [Citations.] [tJ0 Traditional examples are employment contracts . . . and agreements to paint a portrait, write a literary or *364scientific article, or produce a play or vaudeville act. [Citations.]” (1 Witkin, Summary of Cal. Law, supra, § 730, p. 660; accord, Schuyler v. Pantages (1921) 54 Cal.App. 83, 85-87 [201 P. 137].) In such cases, “the promisor’s determination that he is not satisfied, when made in good faith, has been held to be a defense to an action on the contract. [Citations.]” (Mattei v. Hopper (1958) 51 Cal.2d 119, 123 [330 P.2d 625], italics added.)

Therefore, the trial court erred in deferring entirely to what it characterized as Warner’s “creative decision” in the handling of the development deal. If Warner acted in bad faith by categorically rejecting Locke’s work and refusing to work with her, irrespective of the merits of her proposals, such conduct is not beyond the reach of the law.

b. Locke presented evidence from which a trier of fact reasonably could infer Warner breached the agreement by refusing to consider her proposals in good faith.

Merely because Warner paid Locke the guaranteed compensation under the agreement does not establish Warner fulfilled its contractual obligation. As pointed out by Locke, the value in the subject development deal was not merely the guaranteed payments under the agreement, but also the opportunity to direct and produce films and earn additional sums, and most importantly, the opportunity to promote and enhance a career.

Unquestionably, Warner was entitled to reject Locke’s work based on its subjective judgment, and its creative decision in that regard is not subject to being second-guessed by a court. However, bearing in mind the requirement that subjective dissatisfaction must be an honestly held dissatisfaction, the evidence raises a triable issue as to whether Warner breached its agreement with Locke by not considering her proposals on their merits.

As indicated, the deposition testimony of Joseph Terry recounted a conversation he had with Bob Brassel, a Warner executive, regarding Locke’s projects. In that conversation, Brassel stated “ ‘Joe, we’re not going to work with her,’ and then, ‘That’s Clint’s deal.’ ”

Similarly, the declaration of Mary Wellnitz recalled a conversation she had with Lance Young, a senior vice-president of production at Warner. After discussing the script with Wellnitz, Young told her: “Mary, I want you to know that I think Sondra is a wonderful woman and very talented, but, if *365you think I can go down the hall and tell Bob Daly that I have a movie I want to make with her he would tell me to forget it. They are not going to make a movie with her here.”

The above evidence raises a triable issue of material fact as to whether Warner breached its contract with Locke by categorically refusing to work with her, irrespective of the merits of her proposals. While Warner was entitled to reject Locke’s proposals based on its subjective dissatisfaction, the evidence calls into question whether Warner had an honest or good faith dissatisfaction with Locke’s proposals, or whether it merely went through the motions of purporting to “consider” her projects.

c. No merit to Warner’s contention Locke seeks to rewrite the instant agreement to limit Warner’s discretionary power.

Warner argues that while the implied covenant of good faith and fair dealing is implied in all contracts, it is limited to assuring compliance with the express terms of the contract and cannot be extended to create obligations not contemplated in the contract. (Racine & Laramie, Ltd. v. Department of Parks & Recreation (1992) 11 Cal.App.4th 1026, 1032 [14 Cal.Rptr.2d 335].)

This principle is illustrated in Carma Developers (Cal.), Inc. v. Marathon Development California, Inc. (1992) 2 Cal.4th 342, 351-352 [6 Cal.Rptr.2d 467, 826 P.2d 710], wherein the parties entered into a lease agreement which stated that if the tenant procured a potential sublessee and asked the landlord for consent to sublease, the landlord had the right to terminate the lease, enter into negotiations with the prospective sublessee, and appropriate for itself all profits from the new arrangement. Carma recognized “[tjhe covenant of good faith finds particular application in situations where one party is invested with a discretionary power affecting the rights of another.” (Id., at p. 372.) The court expressed the view that “[s]uch power must be exercised in good faith.” (Ibid.) At the same time, Corma upheld the right of the landlord under the express terms of the lease to freely exercise its discretion to terminate the lease in order to claim for itself—and deprive the tenant of—the appreciated rental value of the premises. (Id., at p. 376.)

In this regard, Carma stated: “We are aware of no reported case in which a court has held the covenant of good faith may be read to prohibit a party from doing that which is expressly permitted by an agreement. On the contrary, as a general matter, implied terms should never be read to vary

*366express terms. [Citations.] ‘The general rule [regarding the covenant of good faith] is plainly subject to the exception that the parties may, by express provisions of the contract, grant the right to engage in the very acts and conduct which would otherwise have been forbidden by an implied covenant of good faith and fair dealing. ...['][] This is in accord with the general principle that, in interpreting a contract “an implication . . . should not be made when the contrary is indicated in clear and express words.” 3 Corbin, Contracts, § 564, p. 298 (1960). . . . [*][] Ai to acts and conduct authorized by the express provisions of the contract, no covenant of good faith and fair dealing can be implied which forbids such acts and conduct. And if defendants were given the right to do what they did by the express provisions of the contract there can be no breach.’ [Citation.]” (Carma Developers (Cal.), Inc. v. Marathon Development California, Inc., supra, 2 Cal.4th at p. 374, italics added.)

In Third Story Music, Inc. v. Waits (1995) 41 Cal.App.4th 798, 801 [48 Cal.Rptr.2d 747], the issue presented was “whether a promise to market music, or to refrain from doing so, at the election of the promisor is subject to the implied covenant of good faith and fair dealing where substantial consideration has been paid by the promisor.”

In that case, Warner Communications obtained from Third Story Music (TSM) the worldwide right to manufacture, sell, distribute and advertise the musical output of singer/songwriter Tom Waits. (Third Story Music, Inc. v. Waits, supra, 41 Cal.App.4th at pp. 800-801.) The agreement also specifically stated that Warner Communications “ ‘may at our election refrain from any or all of the foregoing.’ ” (Id., at p. 801.) TSM sued Warner Communications for contract damages based on breach of the implied covenant of good faith and fair dealing, claiming Warner Communications had impeded TSM’s receiving the benefit of the agreement. (Id., at p. 802.) Warner Communications demurred to the complaint, alleging the clause in the agreement permitting it to “ ‘at [its] election refrain’ from doing anything to profitably exploit the music is controlling and precludes application of any implied covenant.” (Ibid.) The demurrer was sustained on those grounds. (Ibid.)

The reviewing court affirmed, holding the implied covenant was unavailing to the plaintiff. (Third Story Music, Inc. v. Waits, supra, 41 Cal.App.4th at pp. 808-809.) Because the agreement expressly provided Warner Communications had the right to refrain from marketing the Waits recordings, the implied covenant of good faith and fair dealing did not limit the discretion given to Warner Communications in that regard. (Ibid.; Carma Developers *367 (Cal.), Inc. v. Marathon Development California, Inc., supra, 2 Cal.4th at p. 374.)

Warner’s reliance herein on Third Story Music, Inc., is misplaced. The Locke/Wamer agreement did not give Warner the express right to refrain from working with Locke. Rather, the agreement gave Warner discretion with respect to developing Locke’s projects. The implied covenant of good faith and fair dealing obligated Warner to exercise that discretion honestly and in good faith.

In sum, the Wamer/Locke agreement contained an implied covenant of good faith and fair dealing, that neither party would frustrate the other party’s right to receive the benefits of the contract. (Comunale v. Traders & General Ins. Co., supra, 50 Cal.2d at p. 658; Waller v. Truck Ins. Exchange, Inc., supra, 11 Cal.4th at p. 36.) Whether Warner violated the implied covenant and breached the contract by categorically refusing to work with Locke is a question for the trier of fact.

3. A triable issue exists as to whether Warner made a fraudulent promise.

In the fourth cause of action, Locke pled at the time Warner entered into the agreement with her, it concealed and failed to disclose it had no intention of honoring the agreement.4

The trial court held that because Warner did not breach any express or implied obligations owed to Locke, she could not prevail on the fraud claim. However, as explained above, a triable issue exists as to whether Warner breached the agreement with Locke. Therefore, the trial court’s rationale for disposing of the fraud claim is undermined.

The trial court also ruled Locke could not prevail on the fraud claim because there was no evidence Warner had a fraudulent intent at the time the parties entered into the contract. The trial court acknowledged Locke “filed a declaration of her development assistant, Mary Wellnitz, in which Ms. *368Wellnitz states that a Warner Bros, executive, Lance Young, remarked in late 1992 that Warner Bros, was ‘not going to make a movie’ with Ms. Locke. [Locke] also offered the deposition testimony of a third party, Joe Terry, in which he recalled a 1993 conversation with another Warner Bros, production executive, Bob Brassel, in which Mr. Brassel said that the studio was not going to work with Ms. Locke. However, the Court does not believe that these statements would permit a jury to infer that two years earlier, when plaintiffs and the defendant entered into their contract, Warner Bros, intended to breach its obligations.”

We disagree. Fraudulent intent must often be established by circumstantial evidence, and may be “inferred from such circumstances as defendant’s . . . failure even to attempt performance, . . .” (Tenzer v. Superscope, Inc., supra, 39 Cal.3d at p. 30.) Based on the above evidence that Warner had expressed an absolute unwillingness to work with Locke, a trier of fact reasonably could infer Warner never intended to give Locke’s proposals a good faith evaluation and that Warner entered into the agreement with Locke solely as an accommodation to Eastwood, who had promised to reimburse Warner for any losses under the agreement. The trial court erred in concluding such an inference could not be drawn from the evidence. We conclude the issue of fraudulent intent is one for the trier of fact.

4. Locke waived any error in the trial court’s ruling with respect to her causes of action alleging gender bias.

Locke’s opening brief does not assert any error in the trial court’s disposition of her two causes of action alleging sex discrimination. Accordingly, this court may treat the claims as having been waived.

Belatedly, Locke’s reply brief contends she presented evidence which raised the inference she was discriminated against because of her gender. “Ordinarily, [appellants’] failure to raise an issue in their opening brief waives the issue on appeal. [Citation.]” (Tisher v. California Horse Racing Bd. (1991) 231 Cal.App.3d 349, 361 [282 Cal.Rptr. 330]; accord, 1119 Delaware v. Continental Land Title Co. (1993) 16 Cal.App.4th 992,1004 [20 Cal.Rptr.2d 438]; Regency Outdoor Advertising, Inc. v. Carolina Lanes, Inc. (1995) 31 Cal.App.4th 1323, 1333 [37 Cal.Rptr.2d 552].) Locke has not shown good cause for the untimely contention. Therefore, we disregard Locke’s argument the trial court erred in granting summary judgment on the first and third causes of action.

*3695. Remaining issues not reached.

Because we find triable issues are present with respect to the second and fourth causes of action, it is unnecessary to address Locke’s remaining contentions.

Disposition

The judgment is reversed with respect to the second and fourth causes of action and is otherwise affirmed. Locke to recover costs on appeal.

Kitching, J., and Aldrich, J., concurred.

A petition for a rehearing was denied September 24, 1997, and respondent’s petition for review by the Supreme court was denied November 19, 1997.

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.

Chief Justice VOLLACK

delivered the Opinion of the Court.

We granted certiorari to review the decision by the court of appeals in Nelson v. Elway, No. 93CA0629 (Colo.App. May 26, 1994), affirming in part and reversing in part the trial court’s grant of summary judgment in favor of the respondents. The court of appeals affirmed the trial court’s entry of summary judgment in the respondents’ favor as to the petitioners’ allegations of breach of *105contract, fraud and misrepresentation, dual agency, civil conspiracy, and punitive damages. The court of appeals reversed the trial court’s entry of summary judgment as to the promissory estoppel count in the petitioners’ complaint, ruling that there existed a material issue of fact as to this count. We reverse the court of appeals decision reversing summary judgment as to the promissory estoppel claim and affirm in all other respects.

I.

Mel T. Nelson (Nelson) was the president and sole shareholder of two car dealerships, Metro Auto and Metro Toyota, Inc. General Motors Acceptance Corporation (GMAC) provided all the financing for both dealerships. In the first half of 1990, both dealerships were experiencing financial difficulties. In July of 1990, Nelson retained John J. Pico and the Aspen Brokerage Company (Pico) to represent him in the selling or refinancing of one or both of the dealerships.

In early 1991, Pico, acting on behalf of Nelson and Metro Toyota, began negotiations with John A. Elway, Jr. (Elway) and Rodney L. Buscher (Buscher) regarding the sale of Metro Toyota and the property upon which it was situated. On March 14, 1991, pursuant to those negotiations, Elway and Buscher signed a “Buy-Sell Agreement” and a separate real estate contract to purchase Metro Toyota. The closing was scheduled for April 15, 1991.

Soon after the signing of these documents, Pico asked Nelson if he would be willing to sell both Metro Auto and Metro Toyota to Elway. Nelson stated that he would be willing to sell both dealerships along with the land upon which they were located if he received sufficient personal remuneration. Pico then began negotiating with Elway and Buscher regarding the sale of both dealerships. Through these negotiations it became apparent that Elway and Buscher were unwilling or unable to pay the full purchase price for the dealerships and the land upon which they were located.

In order to consummate the transaction, Pico suggested to Nelson that Elway and Buscher reimburse Nelson for his interest in Metro Toyota by paying Nelson $50 per vehicle sold by both dealerships for a period of seven years commencing on May 1, 1991. In exchange for this compensation arrangement, Elway and Buscher would purchase Metro Auto from Nelson at a greatly reduced purchase price. These terms, referred to by the parties as the “Service Agreement,” were reduced to writing but never signed by the parties. Subsequently, on March 16, 1991, the parties signed a “Buy-Sell Agreement” and a separate real estate contract for the purchase of Metro Auto. This written, signed agreement did not incorporate the terms of the Service Agreement.

By early 1991, the dealerships owed GMAC over $3 million. In order to protect its security interests, on April 3,1991, GMAC required Nelson to execute agreements referred to as “keeper letters,” allowing GMAC significant control over the dealerships. GMAC imposed this requirement as consideration for its agreement to pay in excess of $890,000 in debt owed by Metro Auto and Metro Toyota at the closing of the sale of the dealerships to Elway and Buscher. Nelson knew that execution of these letters would preclude his ability to file for bankruptcy protection and proceed through re-organization. He alleges that he thus sought and received assurances from Elway and Buscher that the orally agreed upon, but as yet unsigned, Service Agreement would be honored.

On April 8,1991, after the execution of the keeper letters, Pico, Elway, and Buscher met at Pico’s office. During this meeting, GMAC telephoned Pico’s office and informed Pico, Elway, and Buscher that as a condition to its agreement to finance the acquisition of the land and assets of the dealerships by Elway and Buscher, Nelson was not to receive any proceeds from the sale of the dealerships. The respondents then informed Nelson they would not be able to enter into the Service Agreement with him, and the Service Agreement was therefore not executed at the closing on April 12, 1991. After closing, Nelson demanded that the respondents honor the Service Agreement. When the respondents refused, Nelson filed the instant action.

*106In his complaint, Nelson sought damages from Elway and Buscher for breach of contract, promissory estoppel, fraud, conspiracy, and dual agency. Additionally, Nelson sought exemplary damages. The respondents then moved the trial court for summary judgment, which the court granted as to all counts. The court of appeals affirmed with respect to all counts except for promissory estoppel. On that claim the court of appeals held there was a genuine issue of material fact and remanded the case to the trial court for trial on that issue alone.

II.

Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Cung La v. State Farm Auto. Ins. Co., 830 P.2d 1007, 1009 (Colo.1992). The burden to show that there exists no genuine issue of material fact is on the moving party, id., and the court must resolve all doubts as to whether an issue of fact exists against that party. Id.

III.

The first issue is whether the court of appeals erred in ruling that the petitioners failed to allege facts sufficient to support the unlawful overt act element of a civil conspiracy claim. The petitioners assert that Pico breached his fiduciary duty, and that this breach constituted the requisite unlawful overt act to give rise to liability for civil conspiracy. The respondents maintain that no valid conspiracy claim exists here because the petitioners failed to show an unlawful overt act. Moreover, the respondents contend that even if Pico breached his fiduciary duty to the petitioners, this is insufficient to impose liability upon the respondents in the absence of evidence that the respondents either committed an unlawful overt act or conspired with Pico to do so. The court of appeals held that:

the negotiations cited by plaintiffs which allegedly gave rise to a civil conspiracy contain no reference to any unlawful overt acts necessary to support a civil conspiracy....

Here, the parties entered into negotiations which culminated in the signing of the buy-sell agreements and contracts for the sale of real estate. After those negotiations, GMAC informed defendants that Nelson was not to receive any proceeds from the sale, and defendants promptly informed plaintiffs about this condition. There is no evidence that Elway or Busch-er engaged in unlawful overt acts in negotiating this sale.

Nelson, slip op. at 10.

We agree with the court of appeals. To establish a civil conspiracy in Colorado, a plaintiff must show: (1) two or more persons; (2) an object to be accomplished; (3) a meeting of the minds on the object or course of action; (4) an unlawful overt act; and (5) damages as to the proximate result. Jet Courier Serv., Inc. v. Mulei, 771 P.2d 486, 502 (Colo.1989). The court will not infer the agreement necessary to form a conspiracy; evidence of such an agreement must be presented by the plaintiff. More v. Johnson, 193 Colo. 489, 494, 568 P.2d 437, 440 (1977). Additionally, the purpose of the conspiracy must involve an unlawful act or unlawful means. A party may not be held liable for doing in a proper manner that which it had a lawful right to do. Contract Maintenance Co. v. Local No. 105, 160 Colo. 190, 194-95, 415 P.2d 855, 857 (1966).

In this case, as was held by the trial and appellate courts, the petitioners alleged no facts giving rise to any unlawful overt act required to support a conspiracy claim. In their brief, the petitioners claim that “Elway and Pico either prompted GMAC or conspired with GMAC to impose an additional condition, eliminating compensation for Nelson.” The petitioners’ amended complaint, however, is devoid of such an allegation. Indeed, the record contains no support at all for such an assertion.

While the petitioners do allege that Pico, as the agent of Metro Toyota, breached his fiduciary duty to the petitioners, this alone does not give rise to a claim for relief against the respondents. Without an allegation that the respondents committed, or participated in the commission of, an unlawful overt act, conspiracy liability may not be imposed *107against them. The record indicates that the respondents negotiated, at arm’s length, the best deal they could for the purchase of the dealerships. We decline to impose liability upon the respondents for doing in a proper manner that which they had the lawful right to do: attempt to obtain the most advantageous position for themselves in purchasing the dealerships. We thus hold that the court of appeals correctly affirmed the trial court’s entry of summary judgment in favor of the respondents on this issue.

IV.

The next issue is whether the court of appeals erred in upholding the trial court’s entry of summary judgment on the petitioners’ claim of breach of contract. The petitioners’ claim for breach of contract is based on the alleged March 15, 1991, Service Agreement orally agreed upon by Nelson, Elway and Buscher.

A.

The first issue with regard to the breach of contract claim is whether the merger clauses in the Buy-Sell Agreements precluded the consideration of evidence that the parties intended the Service Agreement to be part of the overall agreement to sell the dealerships.1 The petitioners argue that the court of appeals erred by ruling that the merger clauses precluded the consideration of the intent of the contracting parties. The respondents assert that the merger clauses wholly manifest the intention of the parties that only those terms of the transaction reduced to writing and signed at the closing would be enforceable terms of the agreement.

We agree with the court of appeals that the merger clauses preclude consideration of extrinsic evidence to ascertain the intent of the parties. Integration clauses generally allow contracting parties to limit future contractual disputes to issues relating to the express provisions of the contract. Keller v. A.O. Smith Harvestore Prods., 819 P.2d 69, 72 (Colo.1991). Therefore, the terms of a contract intended to represent a final and complete integration of the agreement between the parties are enforceable, and extrinsic evidence offered to prove the existence of prior agreements is inadmissible. Id.; Sentinel Acceptance Corp. v. Colgate, 162 Colo. 64, 66, 424 P.2d 380, 382 (1967). Even when extrinsic evidence is admissible to ascertain the intent of the parties, such evidence may not be used to demonstrate an intent that contradicts or adds to the intent expressed in the writing. KN Energy, Inc. v. Great Western Sugar Co., 698 P.2d 769, 777 n. 9 (Colo.1985).

In this ease, the merger clauses plainly and unambiguously manifest the intent of the parties that the Buy-Sell Agreements executed on March 16, 1991 constitute the entire agreement between the parties pertaining to the subject matter contained therein. Where, as here, sophisticated parties who are represented by counsel have consummated a complex transaction and embodied the terms of that transaction in a detailed written document, it would be improper for this court to rewrite that transaction by looking to evidence outside the four corners of the contract to determine the intent of the parties.

The petitioners and respondents signed the March 16, 1991 Buy-Sell Agreements after extensive negotiation and numerous drafts of documents. By doing so, all parties expressly agreed, pursuant to the merger clauses, that the terms of those Buy-Sell Agreements would control the transaction and that all other agreements, oral or written, would be void. We will not step into a commercial transaction after the fact and attempt to ascertain the intent of the parties when that intent is clearly manifested by an express term in a written document. We thus conclude that the merger clauses in the March 16, 1991, Buy-Sell Agreements are *108dispositive as to the intent of the parties in this ease. As there is no dispute as to any material fact with regard to this issue, the court of appeals correctly affirmed the trial court’s order of summary judgment in favor of the respondents on this issue.

B.

The next issue with regard to the breach of contract claim is whether the court of appeals erred in ruling that the doctrine of part performance did not bar application of the statute of frauds to preclude the petitioners’ breach of contract claim against the respondents based on the alleged oral Service Agreement. In so holding, the court of appeals stated the standard for determining the applicability of the part performance doctrine as follows:

[A]n oral contract otherwise unenforceable under the statute of frauds may substitute for a writing if there is part performance of the oral contract.... However, such performance must be at least substantial part performance and must be required by, and referable to, no other theory than that of the alleged oral agreement.

Nelson, slip op. at 5 (citations omitted).

The petitioners argue that the court of appeals applied the incorrect standard to determine that the doctrine of part performance was inapplicable here. The respondents contend that the standard applied by the court of appeals was proper, as was the application of that standard to the facts of the case.

We agree with the respondents. Section 38-10-112(l)(a), 16A C.R.S. (1982), provides that an oral agreement is unenforceable if, by its terms, it is not to be performed within one year after its formation. See also McCrea & Co. Auctioneers, Inc. v. Dwyer Auto Body, 799 P.2d 394, 397 (Colo.App.1989). When applicable, the part performance doctrine operates to preclude the application of the aforementioned statute. Id. The part performance doctrine will apply if there is part performance of an oral contract which is: (1) substantial; and (2) required by, and fairly referable to no other theory besides that allegedly contained within the oral agreement. L.U. Cattle Co. v. Wilson, 714 P.2d 1344,1347 (Colo.App.1986).2 *109This rule is based on the premise that the conduct constituting the partial performance must convincingly evidence the existence of the oral agreement. John D. Calamari & Joseph M. Perillo, Contracts § 19-15, at 799 (3d ed. 1987).

In this case, Nelson’s conduct does not fulfill the requirements for invocation of the part performance doctrine. The petitioners allege that Nelson’s conduct in selling the dealerships constituted part performance of his obligations under the alleged March 15 oral agreement. The petitioners further allege that Nelson engaged in part performance by taking preliminary steps to create a new consulting corporation. The steps allegedly taken were Nelson’s selection of a corporate name, Nelson’s being “in the process of incorporating,” and Nelson’s providing information about the corporation to his attorney. This conduct, however, does not meet the requirement of the part performance doctrine that the conduct be fairly referable to no other theory besides that allegedly contained within the oral agreement. Moreover, even assuming arguendo that Nelson’s allegations of conduct involving formation of a new corporation were referable to the alleged agreement, it would not be substantial enough to constitute part performance.

Here, Nelson’s actions in selling the dealerships were referable to the written agreements signed on March 16, and thus cannot constitute part performance of the oral Service Agreement. Because the March 16 written Buy-Sell Agreements required that Nelson sell the dealerships and land to Elway and Buscher, the fact that Nelson actually did so is not probative of the existence of the alleged March 15 oral agreement. Additionally, the fact that Nelson received a commitment from GMAC to pay in excess of $890,000 of the dealerships’ debt upon closing of the March 16 written Buy-Sell Agreement is consistent with the existence of the March 16 written agreement rather than the March 15 oral agreement.

Moreover, Nelson’s allegations of conduct involving formation of a new corporation were not clearly referable to the alleged Service Agreement. Nelson merely alleges in his affidavit accompanying his response to Elway s summary judgment motion that he chose a corporate name, was “in the process” of incorporating, and had spoken to his attorney regarding the alleged Agreement and the new corporation. Such ambiguous conduct falls below the standard set by our cases that conduct must be fairly referable to the alleged contract in order to fall within the part performance exception to the statute of frauds. Moreover, even were we to hold that this conduct on Nelson’s part was referable to the alleged Service Agreement, it would still be too insubstantial to trigger application of the part performance doctrine.

We therefore hold that the petitioners failed to establish facts indicating substantial part performance of the alleged Service Agreement, and the court of appeals thus correctly entered summary judgment in favor of the respondents on the ground that the petitioners’ breach of contract action was barred by the statute of frauds.

Y.

The respondents argue, in their cross-petition, that the court of appeals erred by holding that summary judgment was precluded because genuine issues of material fact exist as to the petitioners’ promissory estoppel claim. The respondents urge this court to adopt Restatement (Second) of Contracts § 91, and to hold that the conditional nature of any promise made to the petitioners by the respondents precludes the petitioners’ promissory estoppel claim as a matter of law. The petitioners argue that the court of appeals correctly determined that the existence of a genuine issue of material fact with respect to the petitioners’ promissory estoppel claim precluded entry of summary judgment in favor of the respondents on that claim.

We agree with the respondents that section 91 is applicable to the facts of this case. We thus reverse the holding of the court of appeals, and hold that the conditional nature of the alleged promise the respondents made to the petitioners regarding the March 15 Service Agreement precludes application of *110the promissory estoppel theory embodied in Restatement (Second) of Contracts § 90.

This court, in Vigoda v. Denver Urban Renewal Auth., 646 P.2d 900, 905 (Colo.1982), adopted the doctrine of promissory estoppel, articulated in section 90.3 The elements of a claim for promissory estoppel are: (1) a promise which the promisor should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promisee; (2) action or forbearance induced by that promise; and (3) the existence of circumstances such that injustice can be avoided only by enforcement of the promise. The presence of these elements will prevent the lack of a written contract from defeating a plaintiffs claim. Chidester v. Eastern Gas & Fuel Associates, 859 P.2d 222, 225 (Colo.App.1992).

The essence of section 90 is the plaintiffs reasonable reliance on the defendant’s representations. Section 91 states:

Effect of Promises Enumerated in §§ 82-90 When Conditional

If a promise within the terms of §§ 82-90 is in terms conditional or performable at a future time the promisor is bound thereby, but performance becomes due only upon the occurrence of the condition or upon the arrival of the specified time.

Section 91 interlocks with section 90, and relates to the reasonableness of the plaintiffs change of position based on promises of the defendant. It would be manifestly unreasonable for a party to rely on a promise that may or may not bind the promisor depending on whether or not a condition occurs. We hold that when a defendant makes a conditional representation to a plaintiff, as contemplated by section 91, any detrimental change of position on the part of the plaintiff prior to the occurrence of the condition is unreasonable as a matter of law.4 This holding is consistent with prior Colorado cases which hold that promissory estoppel may not lie where the asserted reliance is not justified or reasonable. Kiely v. St. Germain, 670 P.2d 764, 767 (Colo.1983); Hansen v. GAB Business Servs., Inc., 876 P.2d 112, 114 (Colo.App.1994).

In this case, the promise upon which the petitioners purport to rely as grounds for their promissory estoppel claim is the alleged March 15 oral Service Agreement. This promise was made expressly conditional on GMAC’s approval of the sale. In this regard, the court of appeals stated:

According to Nelson, on March 15, 1991, Elway and Buscher agreed that if the sale could be structured so Elway’s cash investment would be limited to $1.2 million, and if General Motors Acceptance Corporation (GMAC) approved of the sale, then Elway and Buscher would buy the dealerships and Nelson would receive his compensation through the Service Agreement.

Nelson, slip op. at 10 (emphasis added). This is consistent with Nelson’s affidavit sworn on November 24, 1992 in which he stated:

I agreed with Mr. Elway and Mr. Buscher on March 15, 1991, that if a sale of my Dealerships’ assets and my land could be structured so that Mr. Elway’s cash investment was limited to 1.2 million dollars, and if Mr. Elway and Mr. Buscher could obtain GMAC approval of the Agreement, then Mr. Elway and Mr. Buscher would buy both of my Dealerships and the land upon which they were located, and I would receive, through a separate side deal agreement, $50.00 for every new or used retail vehicle sold by the Dealerships for the next seven years commencing May 1, 1991.

Nelson Aff. at ¶ 12.

This demonstrates not only that the alleged oral Service Agreement of March 15 *111was conditioned on GMAC approval, but also that Nelson was aware of the conditional nature of the promise. We thus hold, as a matter of law, that it was unreasonable for Nelson to rely upon the alleged representations made to him by Elway and Buseher on March 15. We thus reverse the court of appeals’ ruling on this issue and remand for proceedings consistent with this opinion.

VI.

For the foregoing reasons, the court of appeals is reversed in part and affirmed in part. The case is thus remanded to the court of appeals with directions to remand to the trial court to enter judgment in favor of the respondents.

LOHR, J., dissents, and KIRSHBAUM and SCOTT, JJ., join in the dissent.

Justice LOHR

dissenting:

Petitioners Mel T. Nelson and Metro Auto, Inc. (collectively “Nelson”) appealed a trial court ruling dismissing their claims on summary judgment grounds. The Colorado Court of Appeals affirmed the trial court’s dismissal of all of Nelson’s claims except a claim based on promissory estoppel. Nelson v. Elway, No. 93CA0629 (Colo.App. May 26, 1994) (not selected for official publication). On certiorari review in this court, the majority holds that Nelson’s civil conspiracy, breach of contract, and promissory estoppel claims were all properly dismissed by the trial court on summary judgment.

I respectfully dissent. Summary judgment is a severe remedy. As the majority notes, in summary judgment proceedings courts must resolve all doubts as to the existence of genuine issues of material fact against the moving party. Maj. op. at 105. In view of the record and the procedural posture of this case, I would hold that Nelson’s civil conspiracy, breach of contract, and promissory estoppel claims were improperly dismissed. I would therefore reverse the judgment of the court of appeals upholding dismissal of the civil conspiracy and breach of contract claims, and would affirm the judgment of that court overturning the dismissal of the promissory estoppel claim.

I.

The following facts are derived from the record in this ease, resolving all doubts against the party moving for summary judgment, as we must. See infra part II. Mel T. Nelson was the president and sole shareholder of both Metro Toyota, Inc. (“Metro Toyota”) and Metro Auto, Inc. (“Metro Auto”). Nelson also owned the land upon which the dealerships were located. Although Metro Auto was historically profitable, Metro Toyota was less successful. After hiring John J. Pico and Aspen Brokerage Co. (collectively “Pico”) to serve as his agent and negotiator, Nelson agreed to sell Metro Toyota to John A. Elway, Jr., Rodney L. Buseher, J.R. Motors Company, and J.R. Motors Company South (collectively “Elway”).1 The parties signed buy-sell and real estate contracts for the Metro Toyota concern on March 14, 1991, and set a closing date in April of 1991.

Soon after the Metro Toyota contracts were executed, Pico approached Nelson with the idea of selling Metro Auto to Elway as well. The parties agreed that any successful deal would have to meet two conditions: John A. Elway’s total cash contribution would have to be limited to approximately $1.2 million dollars, and Nelson would have to receive enough personal compensation to make a sale of the historically profitable Metro Auto worthwhile. On March 15, 1991, Elway and Nelson agreed that if Nelson made the up-front concessions envisioned by Elway regarding the sale price for the real estate and dealership assets, Nelson would receive deferred personal compensation through a side agreement (“service agree*112ment”) providing that Nelson was to receive $50.00 for every new or used vehicle sold by the dealerships for the next seven years. Both buy-sell agreements noted that sale of the dealerships was contingent on GMAC approval. The parties subsequently signed buy-sell and real estate contracts for Metro Auto on March 16, 1991.

Anticipating the pending sale of the dealerships, GMAC insisted that Nelson relinquish control over the dealerships on April 3, 1991. Since Nelson and Elway had yet to sign the service agreement, Nelson contacted Rodney L. Buscher and received assurances that the service agreement would be honored before relinquishing control to GMAC.

On April 8 or 9, 1991, Pico and Elway met at the Landmark Hotel to discuss the sale of Nelson’s dealerships. During the meeting, GMAC called Pico and told Elway that they would not finance the deal if Elway signed a side agreement with Nelson. Despite Nelson’s understanding that Elway would honor the service agreement, Elway informed Nelson on April 8 or 9, 1991, that the service agreement would not be signed.

The parties disagree as to why Elway did not sign the service agreement. Elway contends that GMAC refused to approve the sale if the service agreement was executed. Nelson, on the other hand, alleges that Pico and Elway prompted GMAC to impose such conditions. Nelson suggests that Pico was interested in sabotaging the service agreement because of a fee dispute between Pico and Nelson. Nelson further contends that Elway realized that even if a portion of the money earmarked for the service agreement was diverted to pay Pico a commission, the total payout under any side agreements would be less if Nelson’s compensation under the service agreement was eliminated. Nevertheless, Nelson proceeded with the sale of the dealerships because he already had turned control over to GMAC and thereby eliminated a bankruptcy reorganization alternative that was previously under consideration.

The parties’ present dispute revolves around the enforceability of the service agreement. The district court dismissed Nelson’s claims in a summary judgment proceeding, and the court of appeals affirmed in part but reversed as to Nelson’s promissory estoppel claim. The court of appeals held that there were “genuine issues of material fact precluding the entry of summary judgment on [Nelson’s] claim for promissory es-toppel.” Nelson, slip op. at 11. Nelson then petitioned this court for certiorari review of the court of appeals’ affirmance of the trial court’s summary judgment ruling regarding his civil conspiracy and breach of contract claims, and Elway cross-petitioned regarding the court of appeals’ ruling on Nelson’s promissory estoppel claim.

II.

Summary judgment is a “drastic remedy.” Rael v. Taylor, 876 P.2d 1210, 1228 (Colo. 1994); Churchey v. Adolph Coors Co., 759 P.2d 1336, 1339 (Colo.1988). C.R.C.P. 56(c) requires that the moving party “show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law” before a court can grant a summary judgment motion. C.R.C.P. 56(c). Furthermore, in determining whether summary judgment is proper, the nonmoving party is entitled to the benefit of all favorable inferences that may reasonably be drawn from the undisputed facts, and all doubts as to the existence of a disputed material fact must be resolved against the moving party. Jafay v. Board of County Comm’rs, 848 P.2d 892, 900 (Colo.1993); Cung La v. State Farm Auto Ins. Co., 830 P.2d 1007, 1009 (Colo.1992); Churchey, 759 P.2d at 1340. Where reasonable people could disagree as to material facts, summary judgment is inappropriate. Jafay, 848 P.2d at 900.

III.

I address Nelson’s claims in the order of resolution by the majority, beginning with the dismissal of the civil conspiracy claim. Nelson contends that Elway conspired with Pico to undermine Pico’s fiduciary duty to Nelson during the negotiations surrounding the service agreement. The majority affirms the summary judgment ruling with respect to Nelson’s civil conspiracy claim, holding that it will not “infer” an agreement between *113Elway and Pico to undermine Pico’s fiduciary duty where “the petitioners alleged no facts giving rise to any unlawful overt act required to support a conspiracy claim.” Maj. op. at 106.

In view of the record and the summary judgment posture of this case, I respectfully disagree. First, the court of appeals is incorrect that Elway could not have engaged in the requisite unlawful act as a matter of law. Second, the record contains sufficient undisputed material facts to support the inference that Elway colluded with Pico to undermine Pico’s fiduciary duty to Nelson. Finally, even if Nelson’s allegation that Elway colluded with Pico to undermine Pico’s fiduciary duty to Nelson is a matter in dispute, summary judgment is inappropriate where reasonable parties could disagree on the material facts of the case.

Elway5 s engagement in an unlawful act for civil conspiracy purposes was not precluded as a matter of law. A civil conspiracy claim requires: (1) two or more persons; (2) an object to be accomplished; (3) a meeting of the minds on the object or course of action; (4) an unlawful overt act; and (5) damages as the proximate result thereof. Jet Courier Inc. v. Mulei 771 P.2d 486, 502 (Colo.1989). To support a civil conspiracy claim, Elway must have either committed an unlawful act, id. at 502, or engaged in a concerted effort or agreement with another conspirator to pursue some unlawful action. See, e.g., United States v. Kane, 23 F. 748, 751 (C.C.D.Colo. 1885); Huckleberry v. M.C. Dixon Lumber Co., Inc., 503 So.2d 1209, 1210-11 (Ala.1987); Nicolet, Inc. v. Nutt, 525 A.2d 146, 150 (Del. 1987).

In fact, as long as there is a “concert of action” or “an agreement to do some unlawful thing,” and the alleged conspirators meet “to carry that purpose into effect, then every man, by virtue of uniting in that preconceived purpose to do the unlawful thing, makes himself responsible for what any one does.” Kane, 23 F. at 751, 752; see also Ex parte Richards, 117 F. 658, 666-67 (C.C.S.D.W.Va.1902) (citing Kane approvingly); United States v. Weber, 114 F. 950, 953 (C.C.W.D.Va.1902) (if an otherwise legal group employs illegal methods, “the persons who combine in such efforts are conspirators,” and it is a “well-settled doctrine that each of the confederates is liable for all such illegal acts of the others as may be reasonably anticipated as incidental to the intended act”); United States v. Sweeney, 95 F. 434, 451 (C.C.W.D.Ark. 1899) (citing Kane for the proposition that “where a party of men combine with the intent to do an unlawful thing, and in the prosecution of the unlawful intent one of the party goes a step beyond the balance of the party, and does acts which the balance do not themselves perform, all are responsible for what the one does”); Huckleberry, 503 So.2d at 1210-11; Southern Cal. Iron & Steel Co. v. Amalgamated Ass’n of Iron, Steel & Tin Workers, 186 Cal. 604, 200 P. 1, 3 (1921) (quoting 12 Corpus Juris, 610 in holding that “ ‘[wjhere two or more persons enter into a conspiracy, any act done by either in furtherance of the common design and in accordance with the general plan becomes the act of all, and each conspirator is responsible for such act. This is true even though the results were not specifically intended or the means specifically agreed on.’”); Nicolet, 525 A.2d at 150. In sum, “‘one who is present, encouraging, aiding, abetting, or assisting, or who is ready to aid, abet, or assist the other in the perpetration or commission of the offense, is a guilty [civil conspiracy] participant, and in the eye of the law is equally guilty with the one who does the [unlawful] act.’ ” Huckleberry, .503 So.2d at 1211 (quoting Stokley v. State, 254 Ala. 534, 49 So.2d 284, 291 (1950)).

Elway did not owe a fiduciary duty to Nelson. Nevertheless, Pico owed a fiduciary duty to Nelson as his agent and representative, and a breach of that fiduciary duty satisfies the unlawful act element of a civil conspiracy charge. See Resolution Trust Corp. v. Heiserman, 898 P.2d 1049, 1056 (Colo.1995) (“a breach of the fiduciary duty is a tortious act which satisfies the element of unlawful act associated with the definition of civil conspiracy”); Jet Courier, 771 P.2d at 502. Nelson contends that Pico violated this fiduciary duty when he allegedly negotiated with Elway and GMAC to precondition GMAC approval on a disavowance of the service agreement in return for Elway’s *114agreement to provide Pico with a fee garnered from funds that were previously earmarked for Nelson. Although Pico and Elway may have met to discuss a variety of otherwise legal considerations, the record supports an inference that they decided to create an alternative fee arrangement where Pico would be paid by Elway to the detriment of Nelson, creating an illegal dual-agency situation and a breach of Pico’s fiduciary duty. Albeit true that Elway never breached a fiduciary duty owed directly to Nelson, he may be responsible for his alleged collusion in Pico’s breach of fiduciary duty. See Kane, 23 F. at 751, 752.

Nelson’s civil conspiracy complaint contained undisputed facts supporting the inference that Elway did indeed engage in a collusive breach of Pico’s fiduciary duty to Nelson. Although the majority purports to apply our well-defined summary judgment standard, it curiously notes that Nelson’s complaint was “devoid” of any allegation that Elway conspired with Pico to breach Pico’s fiduciary duty to Nelson. Maj. op. at 106. I disagree.

There is ample evidence in the record of allegations that Elway actively abetted and participated in Pico’s breach of fiduciary duty. The allegations appear in the complaint and amended complaint and are reaffirmed by Nelson in an affidavit filed in response to Elway’s motion for summary judgment. In his initial complaint, Nelson alleged that Pico breached his fiduciary duty by dividing his loyalty between Nelson and Elway and negotiating a fee arrangement with Elway to the detriment of Nelson.2 Specifically, Nelson asserted:

Defendants Pico and Pico Corporation breached their fiduciary duties to [Nelson] through the following acts and omissions, without limitation: ... (c) by dividing their loyalty between [Nelson] and Defendants Elway and Buscher; (d) by negotiating the Pico Consulting Agreement with Defendants Elway and Buscher, during the course of negotiations for the sale and purchase of the Dealerships and the real property upon which they were located, and formalizing such agreement after [Nelson] was committed to going forward with the sale of the Dealerships and the property upon which they were located.

Nelson’s breach of fiduciary duty claims incorporated even more specific contentions that Elway and Pico agreed to divert proceeds to Pico that were otherwise earmarked for Nelson:

Defendants Elway and Buscher refused to honor them promise to enter into a separate Service Agreement with Plaintiff and to pay [Nelson] Fifty Dollars ($50.00) per car under the Service Agreement, but instead agreed to pay a portion of the money which they had committed to pay to [Nelson] to [Nelson’s] broker, Pico Corporation, in the form of a Seven Hundred Forty Thousand Dollar ($740,000.00) fee payable at the rate of Fifty Dollars ($50.00) per car.

Nelson also took care to incorporate these allegations into his conspiracy claim, describing the aforementioned contentions as “combined and concerted actions,” which “constituted unlawful acts and/or lawful acts accomplished by unlawful means.”

Furthermore, in his amended complaint Nelson again emphasized Elway’s participation in Pico’s breach of fiduciary duty:

Although they acted as Plaintiffs broker and agent, Defendants Pico and Pico corporation also acted as the agent and broker for Defendants Elway and Buscher in the same transaction and worked closely with Defendants Elway and Buscher in negotiations with GMAC which led to a greatly reduced purchase price for the Dealerships and land.

Nelson clarified in his amended complaint his allegation that instead of honoring his service agreement with Nelson, Elway “diverted the sum of Fifty Dollars ($50.00) per retail car sold to pay Pico Corporation a Seven Hun*115dred Forty Thousand Dollar ($740,000.00) fee.”

Lastly, Nelson supported the allegations in his complaint and amended complaint in his response to Elway’s summary judgment motion:

Defendant GMAC allegedly called Defendant Buscher, in the presence of Defendants Elway and Pico and informed Defendant Buscher that its approval of the Buy-Sell Agreement, and its willingness to finance the sales transaction was contingent upon there being no side deal agreement with Defendant Nelson. Instead, Defendants Elway and Buscher used the alleged GMAC financing requirement as an excuse for not performing that portion of their agreement with Nelson pursuant to which Nelson was to be compensated.

By 12:20 p.m. on April 8, 1991, Defendants Elway and Buscher were discussing paying Nelson’s agent, Defendant Pico, a portion of the same $50.00 per retail vehicle sold, which had originally been promised to Nelson, as Defendant Pico’s commission.

The difference was that instead of paying Nelson a sum which was anticipated to be at least $2,100,000.00 at $50.00 per retail vehicle sold over a period of seven years, Defendants Elway and Buscher were discussing paying Defendant Pico an additional $370,000.00 at $50.00 per retail vehicle sold.

As is more fully developed in Section G, herein, the alleged GMAC financing contingency, and the use of the alleged GMAC financing contingency to avoid paying Nelson the compensation to which he was entitled, in favor of paying a substantially lesser total amount, at the rate of $50.00 per retail vehicle sold, to Nelson’s agent, Defendant Pico, supports a civil conspiracy claim against all Defendants.

(citations omitted). All of the factual statements in Nelson’s response to Elway’s summary judgment motion were adopted in Nelson’s attached affidavit.

The majority states that it will not “infer” that Elway and Pico agreed to compensate Pico to the detriment of Nelson, creating a dual agency situation in breach of Pico’s fiduciary duty. Maj. op. at 106. However, a court must give the nonmoving party the benefit of all favorable inferences that may be reasonably drawn from the undisputed facts. Cung La, 830 P.2d at 1009; Jafay, 848 P.2d at 900; Churchey, 759 P.2d at 1340. In his brief in support of summary judgment, Elway never contested Nelson’s claims that Pico breached his fiduciary duty to Nelson in concert with Elway, resting his summary judgment argument on other grounds:

The required “wrong doing” or “illegality” to support [Nelson’s] claims for conspiracy and punitive damages are the allegations in support of the claims of breach of contract, promissory estoppel and fraud. As explained above, these claims are not supportable. Thus, there is no “illegal” conduct by these Defendants, and summary judgment should enter on [Nelson’s] claims for civil conspiracy and punitive damages.

Nelson’s allegations that Pico breached a fiduciary duty in collusion with Elway were uncontroverted. In view of the uneontro-verted allegations of fact, Nelson was entitled to the inference that Elway colluded with Pico to breach Pico’s fiduciary duty to Nelson for summary judgment purposes.

Lastly, even if Elway had controverted Nelson’s allegations of fact concerning the fiduciary duty issue, issues of material fact would by definition remain. See, e.g., Huckleberry, 503 So.2d at 1211 (court holds that “ ‘[t]he jury is to determine whether [collusion in an unlawful act] exists, and the extent of it, from the conduct of the parties and all the testimony in the case’ ” in reversing a trial court’s grant of summary judgment on a civil conspiracy claim based on collusion) (quoting Stokley, 49 So.2d at 291). I would hold that Nelson satisfied his burden of raising issues of material fact with regard to Elway’s alleged involvement in Pico’s breach of fiduciary duty, and any resultant civil conspiracy liability that would stem from that unlawful act. Considering the record and the summary judgment posture of this case, I would hold that material issues of fact remain regarding Elway’s alleged collusion in Pico’s breach of fiduciary duty such that summary judgment is improper.

*116IV.

Nelson also contends that Elway is liable for breach of contract in failing to honor the service agreement. The majority affirms the dismissal of Nelson’s breach of contract claim on summary judgment, holding (1) that the merger clauses in the buy-sell agreements preclude consideration of the alleged service agreement, and (2) that the statute of frauds prohibits a breach of contract claim based on the alleged oral service agreement, and that the doctrine of part performance does not bar application of the statute of frauds to this ease. I disagree with the majority on both of these issues.

First, merger clauses preclude consideration of extrinsic evidence only where the parties intend that the document containing the merger is exclusive. ARB, Inc. v. E-Systems, Inc., 663 F.2d 189, 199 (D.C.Cir. 1980); Darner Motor Sales v. Universal Underwriters, 140 Ariz. 383, 393, 682 P.2d 388, 398 (1984); Anderson & Nafziger v. G.T. Newcomb, Inc., 100 Idaho 175, 180, 595 P.2d 709, 714 (1979); Sutton v. Stacey’s Fuel Mart, Inc., 431 A.2d 1319, 1323 n. 3 (Me. 1981). The very essence of this case is a dispute regarding whether the parties intended the service agreement to be part and parcel of the overall deal. Because Nelson’s position is adequately supported in the record, the intention of the parties regarding the exclusivity of the document containing the merger agreement is a disputed issue of material fact. As a result, this case is inappropriate for summary judgment disposition. See e.g., Jafay, 848 P.2d at 900.

Second, the statute of frauds is a limited defense that is inapplicable where partial performance of an alleged oral agreement occurs. Ridgeway v. Pope, 163 Colo. 160, 163, 430 P.2d 77, 78 (1967); Siler v. Investment Co., 125 Colo. 438, 445, 244 P.2d 877, 881 (1952). The parties are in dispute as to whether part performance of the alleged service agreement did indeed occur. Considering the significant and salient factual issues on which the parties continue to disagree, summary judgment should not have been granted. See, e.g., Jafay, 848 P.2d at 900.

A.

Nelson and Elway disagree regarding their intent to honor the alleged service agreement. The majority contends that the merger clauses in the buy-sell agreements affirmatively preclude consideration of extrinsic evidence such as the alleged oral service agreement, and refuses to look at “evidence outside the four corners of the contract to determine the intent of the parties.”3 Maj. op. at 107. However, the “four corners” approach to contract interpretation is in decline. John D. Calamari & Joseph M. Peril-lo, Contracts § 3-4, at 145-46 (3d ed. 1987); cf. II E. Allan Farnsworth, Farnsworth on Contracts § 7.3, at 206 (1990); 3 Lawrence A. Cunningham & Arthur A. Jacobson, Cor-bin on Contracts § 579, at 558 (1994 Supp.) (“Confining judges to the ‘four corners’ of the contract and ‘objective’ definitions of words led to very haphazard and unjust results, so that an entire body of exceptions, corollaries, practices, and fictions sprung up to work some flexibility into the process.”). The “modern trend,” Darner, 140 Ariz. at 393, 682 P.2d at 398, is that merger and integration clauses are to be afforded varying weight depending on the circumstances of the case. Franklin v. White, 493 N.E.2d 161, 166 (Ind.1986); see also ARB, 663 F.2d at 199 (court must consider “the circumstances surrounding the making of the contract” to ascertain whether an integration clause serves to “express the genuine intention of the parties to make the written contract the complete and exclusive statement of their agreement”); Darner, 140 Ariz. at 393, 682 P.2d at 398 (“Evidence on surrounding circumstances, including negotiation, prior understandings, subsequent conduct and the like, is taken to determine the parties’ intent with regard to integration of the agreement. ... This method obtains even though *117the parties have bargained for and written the actual words found in the instrument.”); Anderson, 100 Idaho at 180, 595 P.2d at 714 (courts “should consider not only the language of the agreement but all extrinsic evidence relevant to the issue of whether the parties intended the written agreement to be a complete integration”); Restatement (Second) of Contracts § 209(2) (1979) (“Whether there is an integrated agreement is to be determined by the court as a question preliminary to determination of a question of interpretation or to application of the parol evidence rule.”); Restatement (Second) of Contracts § 210 cmt. b (1979) (for purposes of proving a complete integration, “a writing cannot of itself prove its own completeness, and wide latitude must be allowed for inquiry into circumstances bearing on the intention of the parties”); cf. Whitney v. Halibut, Inc., 235 Md. 517, 202 A.2d 629, 634 (1964) (“an integration clause is not necessarily conclusive”); Sutton, 431 A.2d at 1323 n. 3 (“A merger clause does not control the question of whether a writing was intended to be a completely integrated agreement.”); Neville v. Scott, 182 Pa.Super. 448,127 A.2d 755, 757 (1956) (“integration clause is not controlling”); 3 Arthur Linton Corbin, Corbin on Contracts § 578, at 405-06, 406 n. 43 (1960 & 1994 Supp.). As the United States Supreme Court describes, “even a written contractual provision declaring that the contract contains the complete agreement of the parties, and that no antecedent or extrinsic representations exist, does not conclusively bar subsequent proof that such additional agreements exist and should be given force.” Blackledge v. Allison, 431 U.S. 63, 75 n. 6, 97 S.Ct. 1621, 1630 n. 6, 52 L.Ed.2d 136 (1977).

Although I believe that merger and integration clauses are presumptively valid, in keeping with the honored tenets of contract law there is an exception such that “[w]here giving effect to the merger clause would frustrate and distort the parties’ true intentions and understanding regarding the contract, the clause will not be enforced.” Zinn v. Walker, 87 N.C.App. 325, 361 S.E.2d 314, 319 (1987). In particular, where the parties intend that both a written contract and an alleged oral agreement constitute eompo-nents of an overall agreement, a merger clause does not preclude consideration of extrinsic evidence. See Coulter v. Anderson, 144 Colo. 402, 410, 357 P.2d 76, 80 (1960) (“[wjhere it is shown that a writing was not intended to be fully integrated, terms other than those set forth in the writing may be proved by parol evidence” even though “nothing appears on [the written document’s] face rendering it incomplete”); see also Bill Dreiling Motor Co. v. Shultz, 168 Colo. 59, 66, 450 P.2d 70, 73 (Colo.1969) (court allows evidence of oral agreement despite contract “provision reciting that it contained all the terms thereof and that all representations of the defendant were contained therein,” where the alleged oral agreement “was inseparably interwoven in the whole transaction”); Fleming v. Scott, 141 Colo. 449, 451-52, 348 P.2d 701, 702 (1960); Restatement (Second) of Contracts § 216 cmt. e (1979) (“a [merger and integration] clause does not control the question whether the writing was assented to as an integrated agreement, the scope of the writing if completely integrated, or the interpretation of the written terms”); 3 Corbin, Corbin on Contracts § 578, at 407, § 580, at 431. As we noted in Keller v. A.O. Smith Harvestore Prods., “ ‘a seller should not be allowed to hide behind an integration clause to avoid the consequences of a misrepresentation.’” 819 P.2d 69, 73 (Colo. 1991) (quoting Formento v. Encanto Bus. Park, 154 Ariz. 495, 499, 744 P.2d 22, 26 (CtApp. 1987)).

The parties’ intention that the buy-sell agreements constituted entire contracts, allegedly evidenced by the merger clauses within, was by no means clearly manifested. See Sierra Diesel Injection Serv. v. Burroughs Corp., 874 F.2d 653, 657 (9th Cir. 1989) (“the presence of a merger clause while often taken as a strong sign of the parties’ intent is not conclusive in all cases”). In this case, despite the disclaimer in both merger clauses that each buy-sell agreement constituted the entire agreement, the overall deal involved two buy-sell agreements and two real estate contracts. Furthermore, each buy-sell agreement made reference to the real estate contracts despite the exclusivity disclaimer. Regardless of the standard *118merger and integration language in the buy-sell agreements, it is clear that the parties intended their ultimate bargain to encompass other agreements, although the substantive weight of the alleged service agreement remains unclear. See Gem Corrugated Box Carp. v. National Kraft Container Carp., 427 F.2d 499, 502-03 (2d Cir.1970) (“The contract price was not attractive; consummation of the stock purchase agreement was the real inducement to enter into the requirements contract.... [I]t was the vital element of the overall transaction. Viewed in this proper perspective, it is plain that the provision in the requirements contract that it contains the entire agreement of the parties means that the writing contains the entire agreement as to its limited subject matter alone; ...”).

When the parties disagree as to whether a document expresses the complete agreement of the parties, and a court subsequently finds that the evidence is conflicting or admits of more than one inference, the resolution of the parties’ dispute requires a factual determination. See Sierra, 874 F.2d at 657 (integration is a factual question); Franklin, 493 N.E.2d at 167 (“preliminary question of integration ... requires the court to hear all relevant evidence, parol or written”); Sutton, 431 A.2d at 1322 n. 3 (“The determination of whether the parties intended a writing to be totally integrated must be based upon all the relevant evidence.”) (emphasis in original); see also Restatement (Second) of Contracts § 209 cmt. c (1979) (“Whether a writing has been adopted as an integrated agreement is a question of fact to be determined in accordance with all relevant evidence.”); 3 Corbin, Corbin on Contracts § 578, at 411 (“A statement in the writing that it contains all terms agreed upon and that there are no promises, warranties, or other extrinsic provisions, is a statement of fact that may actually be untrue.”). In this case, the intention of the parties regarding the scope of the contract is a factual dispute that must be resolved in favor of the non-moving party for summary judgment purposes. See, e.g., Holt v. Katsa-nevas, 854 P.2d 575, 579 (Utah Ct.App.1993) (dispute over the scope of an oral agreement is a factual question not suited for summary judgment).

B.

The court of appeals held that the part performance doctrine permits the enforcement of an oral agreement under limited circumstances as an exception to the statute of frauds. Nelson, slip op. at 5. In particular, the court of appeals required that “such performance must be at least substantial part performance and must be required by, and referable to, no theory other than that of the alleged oral agreement.” Id. (citing L. U. Cattle Co. v. Wilson, 714 P.2d 1344, 1347^8 (Colo.App.1986)). The majority endorses the application of the L. U. Cattle standard, based on the rationale that “the conduct constituting the partial performance must convincingly evidence the existence of the oral agreement.” Maj. op. at 108 (citing John D. Calamari & Joseph M. Perillo, Contracts § 19-15, at 799 (3d ed. 1987)). Because Nelson’s conduct in selling the dealerships is attributable to the written buy-sell agreements, the majority concludes that the part performance doctrine is inapplicable and that Nelson’s breach of contract claim is barred by the statute of frauds. Maj. op. at 108-109.

I disagree. First, although I concur that part performance must be substantial to have any probative effect, I would not adopt the oft-criticized L.U. Cattle standard and require that the part performance be attributable to no theory other than that of the alleged oral agreement. See L. U. Cattle, 714 P.2d at 1347-48 (citing Knoff v. Grace, 68 Colo. 527, 531, 190 P. 526, 528 (1920)). Second, even assuming that the L. U. Cattle standard is appropriate, the majority misconstrues the actions that Nelson alleges he has taken in furtherance of part performance and as a result misapplies the L.U. Cattle standard.

Nelson’s part performance of the alleged oral service agreement may warrant an exception from the statute of frauds defense, depending upon the resolution of disputed issues of fact.4 “[Pjart performance of a *119contract ... effectively removes it from the bar of the Statute of Frauds.” Ridgeway, 163 Colo, at 163, 430 P.2d at 78; accord Siler, 125 Colo, at 445, 244 P.2d at 881; Ralston Oil & Gas Co. v. July Corp., 719 P.2d 334, 339 (Colo.App.1985) (“An oral contract otherwise unenforceable under the statute of frauds may substitute for a writing if there is part performance of the oral contract.”); Walk v. Miller, 650 P.2d 1286, 1287 (Colo. App.1981) (same). Exceptions to the statute of frauds defense stem “from a desire to prevent the statute of frauds from being used as a shield which would otherwise allow a party to be unjustly enriched.” Ralston, 719 P.2d at 339; see also Bumford v. Biarming, 33 Colo.App. 444, 448, 525 P.2d 494, 497 (Colo.App.1974), rev’d on other grounds, 189 Colo. 292, 540 P.2d 337 (1975).

Nelson is entitled to invoke the part performance doctrine to support his breach of contract claim, in responding to the statute of frauds argument in Elway’s summary judgment motion. In order to rely on the part performance doctrine, the alleged part performance must be substantial. Siler, 125 Colo, at 445, 244 P.2d at 881; L.U. Cattle, 714 P.2d at 1347. However, the majority does not reach the question of the substan-tiality of Nelson’s alleged part performance. See maj. op. at 109-110. Instead, the majority concurs with the judgment of the court of appeals, Nelson, slip op. at 6, and concludes that Nelson’s alleged part performance “in selling the dealerships” is attributable to execution of the written buy-sell agreements and therefore cannot support a part performance argument in view of the L. U. Cattle requirement that the conduct be fairly referable to no theory other than that allegedly contained within the oral agreement. Maj. op. at 109; see L.U. Cattle, 714 P.2d at 1347-48. Because I would not adopt this latter qualifier to the part performance doctrine, I believe that the grant of summary judgment regarding Nelson’s breach of contract claim was premature considering the parties’ disagreement over the factual questions of (1) whether Nelson’s alleged part performance was substantial enough to overcome a statute of frauds defense, see Adcock v. Lieber, 51 Colo. 373, 376, 117 P. 993, 994 (1911) (alleged part performance is in part a question of fact); Boesiger v. Freer, 85 Idaho 551, 553, 381 P.2d 802, 804 (1963) (“[wjhat constitutes part performance must depend [in part] upon the particular facts of each ease”); Blasingame v. American Materials, Inc., 654 S.W.2d 659, 663 (Tenn.1983) (existence of partial performance is in part a factual determination), and (2) whether Elway induced Nelson, through the alleged oral commitment, to sign the buy-sell agreements. See Ralston, 719 P.2d at 339 (inducement is a question of fact).

The L.U. Cattle requirement that the alleged part performance be fairly referable to no other theory besides that contained within the alleged oral agreement is an unfortunate embellishment on traditional part performance principles.5 Criticizing Knoff, the case relied upon by the court in L. U. Cattle, 714 P.2d at 1347-48, one commentator states that the “generally prevailing view” in this country does not require that the alleged part performance be fairly attributable to no theory other than that contained within the alleged oral agreement. 73 Am.Jur.2d Statute of Frauds § 408 (1974 & 1995 Supp.). Instead:

The plaintiff must show that in reliance on the contract, he has proceeded, either in performance or pursuance of it, so far to alter his position as to incur an unjust and unconscientious injury and loss in case the defendant is permitted to rely upon the [statute of frauds] defense. But this change of situation is not confined to doing what the contract stipulated — that is, “part *120performance” in the literal sense of that term.

Id.; see also Annotation, Doctrine of Part Performance in Suits for Specific Performance of Parol Contract to Convey Real Property, 101 A.L.R. 923, 962-63 (1936) 0quoting Brown v. Hoag, 35 Minn. 373, 29 N.W. 135, 137 (1886), for the same proposition). Another commentator describes the Knoff requirement as “inconsistent with the great mass of cases in which the doctrine of part performance has been applied.” Doctrine of Part Performance, 101 A.L.R. at 962-63. The part performance doctrine is based in large part on the possibility of fraud, inducement and a subsequent reliance. See Brown, 29 N.W. at 137. Because the Knoff standard reiterated in L. U. Cattle, 714 P.2d at 1347-48, gives no effect to a determination that partial performance was procured through misrepresentations or other fraudulent means, the standard is a poor embodiment of the traditional principles underlying the part performance doctrine. I would hold instead that the part performance doctrine is triggered for statute of frauds purposes where the plaintiff has relied upon alleged oral inducements such that enforcement of the statutory limitation on parol evidence would be inequitable and unjust. See 73 Am.Jur.2d Statute of Frauds § 408; cf Brown, 29 N.W. at 137, 138-39. Under this standard, Nelson has sufficiently averred facts supporting reliance on the oral service agreement and the potential for inequity to justify his invocation of the part performance doctrine in support of his breach of contract claim.

However, even assuming that the L.U. Cattle standard is the wisest articulation of the part performance doctrine, I believe that the majority applied that standard incorrectly. The court of appeals held that “any actions [Nelson] did take in selling the dealerships related to the terms of the signed, written agreements, and not to the terms of the alleged oral agreement.” Nelson, slip, op. at 6. The majority agrees, holding that “Nelson’s conduct in selling the dealerships ... does not meet the requirement of the part performance doctrine that the conduct be fairly referable to no other theory besides that allegedly contained within the oral agreement.” Maj. op. at 109.

Neither the court of appeals nor the majority addresses two major contentions that Nelson argued in his response to Elway’s summary judgment motion. First, Nelson’s verified statements include the assertion that he sold the dealerships and land upon which they sat at “prices far below the [market] value of those assets.” Although Nelson’s general execution of the buy-sell agreements and real estate contracts may be attributable to the documents themselves, Nelson’s specific agreement to sell the dealerships at a below-market value without additional compensation is conduct that cannot be attributed solely to those documents. Second, Nelson avers that the service agreement required the creation of a new consulting corporation, and that Nelson took steps to form that new corporation. Nelson supported this representation in an affidavit attached to his response to Elway’s summary judgment motion:

Pursuant to the Service Agreement, I selected a corporate name under which to perform services under the side deal, and was in the process of incorporating under that name in the State of Texas. I provided information regarding the new corporation to my attorney, so that the Agreement he was formalizing could be drawn up in the name of the new corporation.

On review of Elway’s summary judgment motion, the trial court never discussed the question of a below-market price. As for Nelson’s efforts to establish the consulting corporation necessary to implement the side agreement, the court simply ruled in conclu-sory fashion that “[s]uch nebulous action on Nelson’s part does not constitute part performance.”

Considering the foundation for Nelson’s assertions in the record, the questions of (1) whether the property was indeed sold for below-market values, and (2) how extensive Nelson’s efforts were to establish the corporation necessary to implement the side agreement, both constituted issues of material fact that were in dispute and therefore unsuitable for resolution by summary judgment. See, e.g., Jafay, 848 P.2d at 903. *121Assuming Nelson’s version of these two disputed factual issues to be true for summary judgment purposes, see, e.g., Cung La, 830 P.2d at 1009, Nelson’s actions in both selling the property at below-market rates and organizing the corporation necessary to implement the side agreement were unattributable to any theory other than that of partial performance of the service agreement, and Nelson’s breach of contract claim should not have been precluded by the statute of frauds under the standard reiterated in L. U. Cattle. See L.U. Cattle, 714 P.2d at 1347-48.

V.

In a cross-petition, Elway contends that the court of appeals erred in reversing the trial court’s dismissal of Nelson’s promissory estoppel claim on summary judgment grounds. Elway urges this court to adopt section 91 of the Restatement (Second) of Contracts, and hold that the conditional nature of a promise precludes a promissory estoppel claim as a matter of law. See Restatement (Second) of Contracts § 91 (1979). The majority accepts the invitation to adopt section 91, and as a matter of law reverses the court of appeals’ determination that Nelson’s promissory estoppel claim should survive Elway’s summary judgment motion. Maj. op. at 109. Because section 91 is a limited exception based on reasonableness, and the parties are in dispute as to the contingent nature of the service agreement and the reasonableness of relying on that agreement, I would affirm the court of appeals’ ruling and allow Nelson’s promissory estoppel claim to proceed in view of the disputed issues of material fact.

Colorado law affords plaintiffs the opportunity to present promissory estoppel claims. See, e.g., Vigoda v. Denver Urban Renewal Auth., 646 P.2d 900, 905 (Colo.1982); accord Kennedy v. William R. Hudon, Inc., 659 F.Supp. 900, 905-06 (D.Colo.1987) (federal court adopts promissory estoppel principles in applying Colorado law). This court has adopted the doctrine of promissory estoppel, as outlined in Restatement (Second) of Contracts section 90. Vigoda, 646 P.2d at 905; see also Restatement (Second) of Contracts § 90 (1979). The purpose of promissory es-toppel is “ ‘to keep remedies abreast of increased moral consciousness of honesty and fair representations’” in business dealings. Vigoda, 646 P.2d at 905 (quoting Peoples Nat’l Bank v. Linebarger Constr. Co., 219 Ark. 11, 240 S.W.2d 12, 16 (1951)); cf. Kiely v. St. Germain, 670 P.2d 764, 767 (Colo.1983) (“The doctrine of promissory estoppel encourages fair dealing in business relationships and discourages conduct which unreasonably causes foreseeable economic loss because of action or inaction induced by a specific promise.”). As the majority states, maj. op. at 109-110, the elements of a promissory estoppel claim are: (1) a promise which the promisor should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promisee; (2) action or forbearance induced by that promise; and (3) the existence of circumstances such that injustice can be avoided only by enforcement of the promise. Chidester v. Eastern Gas & Fuel Assoc., 859 P.2d 222, 224 (Colo.App.1992); Restatement (Second) of Contracts § 90 (1979). The lack of a written contract will not defeat a promissory estoppel claim that satisfies the elements of section 90. See Kiely, 670 P.2d at 767; Chidester, 859 P.2d at 224.

The court of appeals concluded that Nelson supported his promissory estoppel allegation in an affidavit filed with the court. Nelson, slip. op. at 11-12. As summarized by the court of appeals, Nelson’s affidavit stated that:

(1) on March 15, 1991, the parties reached an agreement with respect to all of the terms of the Service Agreement; (2) on April 2,1991, GMAC insisted that [Nelson] sign the keeper letters; (3) on the evening of April 2, 1991, he contacted Buscher by telephone to reaffirm the portion of the Service Agreement pursuant to which he would receive significant compensation for the sale of the dealerships; (4) Buscher assured Nelson he would be compensated as provided for in the Service Agreement; (5) in reliance on Buseher’s representation, he signed the keeper letters; and (6) by signing the keeper letters he irrevocably committed himself to completing the sale of the dealerships and lands to defendants *122and had no alternative except to proceed to closing.

Id. The majority never addresses the substance of Nelson’s promissory estoppel claim, ruling instead that the claim was precluded as a matter of law under section 91 because it was based on an oral service agreement that was allegedly contingent in nature. Maj. op. at 109. The alleged oral service agreement itself contained no contingency provisions. Even assuming, however, that the contingency clauses of the buy-sell agreement are imported into the service agreement, I would hold that section 91 is a limited exception to the promissory estoppel provisions outlined in section 90, and that the section 91 qualifier is potentially inapplicable where the parties disagree over the contingent nature of a contract and the reasonableness of relying on that allegedly conditional promise. Considering the parties’ dispute over the contingent nature of the alleged oral service agreement, section 91 is not preclu-sive as a matter of law and material factual issues remain in dispute.

Nelson’s reliance on the promise of the alleged oral service agreement must be reasonable for promissory estoppel purposes. See, e.g., Kiely, 670 P.2d at 767; Restatement (Second) of Contracts § 90 (1979). Section 90 requires that the promisor “reasonably expect” the promise to induce action or forbearance on the part of the promisee or a third person. Restatement (Second) of Contracts § 90 (1979). Toward this end, section 91 precludes consideration of conditional promises for promissory estoppel purposes:

If a promise within the terms of §§ 82-90 is in terms conditional or performable at a future time the promisor is bound thereby, but performance becomes due only upon the occurrence of the condition or upon the arrival of the specified time.

Restatement (Second) of Contracts § 91 (1979). The majority correctly points out that section 91 cannot be read in a vacuum, and that “[sjection 91 interlocks with section 90, and relates to the reasonableness of the plaintiffs change of position based on promises of the defendant.” Maj. op. at 110 (emphasis added).

However, I cannot agree with the majority that an allegedly conditional promise precludes a promissory estoppel claim under all circumstances as a matter of law. Maj. op. at 109. Because the preclusive effect of section 91 hinges on the reasonableness of the reliance, courts should consider the alleged contingency to determine whether the promi-sor would “reasonably expect” the conditional promise to nevertheless induce action or forbearance on the part of the promisee. See Restatement (Second) of Contracts § 90 (1979). Indeed, courts typically consider the conditional nature of a promise by examining the context in which the promise was made. See, e.g., Chipokas v. Hugg, All N.W.2d 688, 691 (Iowa Ct.App.1991). In fact, Elway concedes in his reply brief that “the Elway Defendants do not dispute that the context and language of the promise should be considered.”

The buy-sell agreements that the parties signed in this case contained a clause requiring GMAC approval and consent regarding:

(i) BUYER’S purchase of the Dealerships and the Real Property and (ii) floor plan financing by GMAC or another financing source and capital financing from such source in such amounts as may be required by the Factory and on such terms as are reasonably acceptable to BUYER.

Assuming that the contingency clause in the buy-sell agreements can be imported as a condition of the service agreement, the parties disagree as to the conditional nature of the contract. Elway contends that GMAC approval was a dispositive contingency. Nelson argues that GMAC approval of Elway as a buyer was never in question, that the contingency provisions of the buy-sell agreement were unrelated to the question of Nelson’s personal compensation, that Nelson received assurances from Rodney L. Buscher that the service agreement would be honored without qualification, and that Elway and Pico colluded to precondition GMAC approval on a disa-vowance of the service agreement. Under these circumstances, the parties disagree over both (1) the contingent nature of the service agreement as a practical matter, and (2) the reasonableness of relying on the *123promise contained in the oral service agreement in view of the alleged contingencies.

The court of appeals was correct in determining that genuine issues of material fact precluded the entry of summary judgment on Nelson’s promissory estoppel claim. Nelson, slip op. at 11-12. Nelson and Elway disagree as to the existence of a service agreement, the contingent ñatee of the service agreement and the reasonableness of relying on that agreement, and whether Elway colluded with Pico in soliciting GMAC’s preconditions. In view of these disagreements, the parties continue to assert competing factual constructions and the resolution of their dispute should not be made in a summary judgment proceeding. See, e.g., P-W Investments, Inc. v. City of Westminster, 655 P.2d 1365, 1372 (Colo.1982) (reasonable reliance is a question of fact). For these reasons, Nelson’s promissory estoppel claim should be reviewed on the merits after a neutral fact-finder has an opportunity to review all of the evidence in this case.

VI.

In short, this case is singularly inappropriate for resolution in a summary judgment proceeding. First, there is adequate support in the record for Nelson’s allegation that Elway colluded with Pico to undermine Pico’s fiduciary duty to Nelson. Elwajfs alleged actions satisfy the unlawful act element of a civil conspiracy claim as a matter of law, and there are contested issues of material fact in this regard that must be resolved in order to determine the merits of Nelson’s civil conspiracy claim.

Second, neither the merger clauses in the parties’ buy-sell agreements nor the statute of frauds precludes Nelson’s breach of contract claim for summary judgment purposes. At base, the parties are embroiled in a dispute regarding whether they intended the buy-sell agreements to be fully integrated and whether they intended the service agreement to be enforced. Nelson again supported his factual construction in the record, and as a result the parties’ disagreement over the factual issues of integration, inducement and part performance cannot properly be resolved by summary judgment.

Finally, the court of appeals was correct in determining that material issues of fact remain in dispute regarding Nelson’s promissory estoppel claim. Nelson, slip op. at 11-12. Because the applicable Restatement sections revolve around the reasonableness of relying on an allegedly contingent promise, and where, as here, the parties disagree over both the contingent nature of the agreement and the reasonableness of relying on that agreement, the factual issues in dispute make the claim inappropriate for resolution by summary judgment.

For the aforementioned reasons, I respectfully dissent. I would reverse the judgment of the court of appeals upholding dismissal of Nelson’s civil conspiracy and breach of contract claims, and would affirm the judgment of the court of appeals overturning the trial court’s dismissal of Nelson’s promissory es-toppel claim.

KIRSHBAUM and SCOTT, JJ„ join in this dissent.

PRESIDING JUSTICE JORGENSEN

delivered the judgment of the court, with opinion.

Justices McLaren and Burke concurred in the judgment and opinion.

OPINION

On May 30, 2000, plaintiff-appellant and cross-appellee, Gunther Gassner, sustained a work-related back injury and, following surgery for the injury, a staphylococcal (staph) infection originating in his back area. On May 1, 2002, in settlement thereof, the Industrial Commission (Commission) approved a “settlement contract” between Gassner and his employer, defendant-appellee and cross-appellant, Raynor Manufacturing Company (RMC). The settlement contract contained an “open medical provision,” the scope of which is at the center of the instant appeal. In that provision, despite Gassner’s general release, RMC agreed to pay for certain approved treatment for a year following the Commission’s approval of the settlement contract. After the approval, the staph infection spread to Gassner’s heart, and Gassner incurred approximately $190,000 in medical expenses for treatment to his heart. Gassner thought that the open medical provision covered the expenses related to the staph infection surrounding his heart (provided he could prove that it was the same staph infection that began in his back), but RMC disagreed.

On October 31, 2008, Gassner petitioned for entry of judgment pursuant to section 19(g) of the Illinois Workers’ Compensation Act (Act), which allows for a circuit court to enter judgment in accordance with an arbitration award (or a Commission-approved settlement contract). 820 ILCS 305/19(g) (West 2008). RMC moved to dismiss, *997arguing that the statute of limitations barred Gassner’s claim. The trial court denied the motion to dismiss. RMC then moved for summary judgment, and the trial court granted the motion. Gassner appeals, arguing that the trial court erred in granting summary judgment to RMC. RMC maintains that summary judgment was proper, but it cross-appeals, arguing that the trial court erred in denying its motion to dismiss. For the reasons that follow, we affirm the trial court’s denial of RMC’s motion to dismiss, we reverse the trial court’s grant of summary judgment to RMC, and we remand the cause.

I. BACKGROUND

On May 30, 2000,1 Gassner fell down the stairs while at work for RMC. As a result, Gassner suffered a herniated disk at L4-L5, which required a fusion that was performed on February 25, 2002. Following the surgery, Gassner developed a deep staph infection at the site of the surgical incision. He was treated with oral and intravenous antibiotics. Gassner and RMC subsequently entered into an agreement entitled “Illinois Industrial Commission Settlement Contract Lump Sum Petition and Order” (settlement contract). The settlement contract stated in pertinent part:

“Terms of Settlement: Attach a recent medical report signed by the physician who examined or treated the employee.

[RMC] offers and [Gassner] accepts the sum of $47,500 [less attorney fees and expenses], subject to approval by the Industrial Commission, in full settlement of all claims, known or unknown, including all claims for specific loss, temporary total compensation[,] or compensation pursuant to Sections 8(d)(1), 8(d)(2) or 8(f) of the Act resulting from said alleged accident of 5/30/00 and any other accident, injury, or aggravation of a pre-existing condition arising out of and in the course of [Gassner’s] employment with [RMC] to the date he signed this contract, involving alleged disability to any portion of [Gassner’s] anatomy. This general release includes but is not limited to the rights under Sections 8(a) and 19(h) of the Act, [which] are expressly and mutually waived. *** Liability, causality, necessity and propriety of certain medical care, and nature and extent of permanent disability are the matters in issue. This settlement shall not be construed as a commutation of or a substitution for periodic payments; rather it represents a *998compromise of each disputed issue and has been effectuated to terminate litigation. Notwithstanding anything to the contrary contained herein, as additional consideration, [RMC] agrees to pay reasonable and necessary medical expenses for treatment to the low back causally related to the alleged injury of 5/30/00 for a period of one year after the date of approval of this settlement contract, but not thereafter.” (Emphasis added.)

Additionally, the signature line of the contract, which Gassner signed, read:

“PETITIONER’S SIGNATURE. Attention, petitioner. Do not sign this contract unless you understand all of the following statements. I have read this document, understand its terms, and sign this contract voluntarily. I believe it is in my best interests for the Commission to approve this contract. I understand that I can present this settlement contract to the Industrial Commission in person. I understand that by signing this contract, I am giving up the following rights:

1. My right to a trial before an arbitrator;

2. My right to appeal the arbitrator’s decision to the Commission;

3. My right to any further medical treatment, at the employer’s expense, for the results of this injury;

4. My right to any additional benefits if my condition worsens as a result of this injury.”

The Commission approved the settlement contract on May 1, 2002.

A few months later, in September 2002, Gassner began to experience chest pain, shortness of breath, and fever. By late October 2002, doctors diagnosed Gassner with septic pericardis near his heart, and Gassner underwent multiple surgeries as a result of the infection. Between May 1, 2002, and May 1, 2003, Gassner incurred $190,000 in medical expenses for treatment of his heart infection. Dr. Jeffrey Coe examined Gassner, and Dr. Coe provided the opinion that Gassner’s heart infection was caused by the same bacteria responsible for Gassner’s low back infection.

On October 1, 2003, Gassner petitioned the Commission to enforce2 the settlement contract pursuant to sections 8(a) and 19(h) of the Act, seeking payment for expenses related to the heart infection. 820 ILCS 305/8(a), 19(h) (West 2008). On November 19, 2007, the Commission *999entered an order (which is contained in the record), noting that the parties had become involved in a disagreement concerning the interpretation of the “reasonable and necessary medical expenses” for which RMC was responsible under the open medical provision. The Commission found, however, that it lacked subject matter jurisdiction to hear the case, because the settlement contract stated that all statutory rights of review, including but not limited to the “rights under sections 8(a) and 19(h) of the Act, are expressly and mutually waived.” The Commission then advised that Gassner could pursue relief in the circuit court under section 19(g) of the Act.

Nearly one year after the entry of the Commission’s order, on October 31, 2008, Gassner petitioned the trial court for entry of judgment pursuant to section 19(g) of the Act, which states:

“(g) Except in the case of a claim against the State of Illinois, either party may present a certified copy of the award of the Arbitrator, or a certified copy of the decision of the Commission when the same has become final, when no proceedings for review are pending, providing for the payment of compensation according to this Act, to the Circuit Court of the county in which such accident occurred or either of the parties are residents, whereupon the court shall enter a judgment in accordance therewith.” 820 ILCS 305/19(g) (West 2008).

In his section 19(g) petition, Gassner alleged that RMC did not pay all of the medical expenses that it had agreed to cover in the open medical provision. Gassner attached the bills in question, which in large part pertained to the staph infection surrounding his heart (which, according to Gassner, originated in his low back) and which totaled approximately $190,000. Gassner contended that these expenses were covered by the open medical provision because they were incurred between May 1, 2002, and May 1, 2003, and the open medical provision stated that RMC would “pay reasonable and necessary medical expenses for treatment to the low back causally related to the alleged injury of 5/30/00 for a period of one year after the date of approval of this settlement contract [i.e., May 1, 2002], but not thereafter.”

On December 9, 2008, RMC moved to dismiss pursuant to section 2 — 619 of the Code of Civil Procedure (Code) (735 ILCS 5/2—619 (West 2008)), arguing that Gassner’s section 19(g) petition was time-barred. RMC asserted that the five-year limitations period set forth in section 13 — 205 of the Code applies because that section governs “awards of arbitration *** and all civil actions not otherwise provided for.” 735 ILCS 5/13—205 (West 2008). RMC noted that Gassner’s “purported” cause of action accrued on May 1, 2003, the last day on which Gassner could arguably seek compensation for his medical *1000expenses, and that Gassner did not file his petition until October 31, 2008, more than five years later.

On April 30, 2009, the trial court denied RMC’s motion to dismiss. The court found that the limitations period was tolled from October 1, 2003, to November 19, 2007, when Gassner’s petition to enforce the settlement contract was pending before the Commission. The court reasoned that, therefore, Gassner satisfied a five-year limitations period. Rather than end its analysis there, however, the court continued, stating that, in any case, the applicable limitations period was 10 years as set forth in section 13 — 206 of the Code, not 5 years as set forth in section 13 — 205. 735 ILCS 5/13—206 (West 2008). In reaching this conclusion, the court cited two cases that together represented an appellate court split on the appropriate time period within which a claimant must file for judgment under section 19(g) of the Act: Blacke v. Industrial Comm’n, 268 Ill. App. 3d 26 (1994) (Third District) (characterizing a section 19(g) action based on an arbitration award as an action to enforce liability resulting from a statute, i.e., a “civil action[ ] not otherwise provided for,” for which a 5-year limitations period was appropriate (735 ILCS 5/13—205 (West 2008))); and Givens v. Givens, 192 Ill. App. 3d 97 (1989) (First District) (characterizing a section 19(g) action based on an approved settlement contract as an action based on a “written contract[ ]” for which a 10-year limitations period was appropriate (735 ILCS 5/13—206 (West 2008))). The court noted that the instant case involved an approved settlement contract, and so it would follow Givens.

On October 28, 2009, RMC moved for summary judgment, arguing that the settlement contract did not cover the $190,000 in expenses incurred in treating Gassner’s heart infection. RMC attached two affidavits to its motion for summary judgment, one by a claims adjuster, Evelyn Harper, and one by RMC’s attorney, James M. O’Brien. Harper attested that RMC (through its insurer, St. Paul Travelers) had paid $24,000 for treatment to Gassner’s low back between May 1, 2002, and May 1, 2003. O’Brien attested that the terms of the settlement contract obligated RMC to pay only “for treatment to the low back causally related to the alleged injury of 5/30/00 for a period of one year after the date of approval of this settlement contract, but not thereafter.” (Emphases added.) O’Brien stated that, based on his experience as a workers’ compensation and personal injury attorney, he was familiar with the type of medical records submitted by Gassner and that, upon his review, the only “unpaid medical treatment bills produced by Gassner that might pertain to ‘treatment to the low back’ during the period from May 1, 2002[,] through May 1, 2003[,] are, at most [$283].” (Emphases in original.)

*1001Each side argued on the motion for summary judgment through a written memo and at a hearing. RMC argued that, according to the “four corners” rule governing contracts, a court may not look beyond the plain language of a contract unless a facial ambiguity exists, and here no facial ambiguity exists. According to RMC, it was obligated to pay for future medical expenses only if those expenses met three conditions precedent:

1. The subject medical treatment had to be “treatment to the low back” (i.e., not treatment “to” the head, knee, heart, lung, etc.).

2. The “treatment to the low back” had to occur between May 1, 2002, and May 1, 2003 (“for a period of one year after the date of approval of this settlement contract [May 1, 2002], but not thereafter”); and

3. The “treatment to the low back” occurring between May 1, 2002, and May 1, 2003, must be “causally related to the alleged injury of 5/30/00” (i.e., not related to some new back injury, fall, auto accident, etc.). (Emphases added.)

RMC essentially contended that any factual question whether the heart infection was causally related to the initial injury (third condition precedent) is irrelevant because, as a matter of law, the treatment for Gassner’s heart infection cannot be characterized as “treatment to the low back” (first condition precedent).

Gassner argued that “the term ‘treatment to the low back’ itself incorporates treatment for injuries causally related to that approved treatment.” Gassner argued that, at least provisionally, a court may look to extrinsic evidence for the limited purpose of determining whether an ambiguity exists. And, according to Gassner, a provisional review of the extrinsic evidence supports his interpretation of the phrase, “treatment to the low back.” For example, when the parties entered into the settlement contract, Gassner had already undergone surgery directly to his back and was at that time undergoing physical therapy as well as treatment for the staph infection that began at the site of the surgical incision, for which RMC paid under the settlement contract. Gassner pointed out that treatment for the staph infection originating at the site of the incision was not administered directly to that site but, rather, was treated with intravenous and oral antibiotics. Thus, Gassner essentially argued that even RMC acknowledged some flexibility to the term “treatment to the low back,” at least to the extent that “treatment to the low back” need not mean “treatment [administered] to the low back.” Gassner further argued that workers’ compensation case law supported his interpretation of the phrase “treatment to the low back,” because the case law establishes that injuries causally related to those injuries arising out of and in the *1002course of employment are compensable under the Act. See, e.g., International Harvester Co. v. Industrial Comm’n, 46 Ill. 2d 238, 245 (1970); Shell Oil Co. v. Industrial Comm’n, 2 Ill. 2d 590, 595 (1954).

RMC responded that the cases to which Gassner cited in support of his position that the phrase “treatment to the low back” should be read to include treatment causally related to that approved treatment (i.e., Shell Oil and International Harvester) are inapposite because they do not involve settlement contracts. Rather, they stand for the simple proposition that injuries causally related to those injuries arising out of and in the course of employment are compensable under the Act.

The trial court granted RMC’s motion for summary judgment, finding dispositive O’Brien’s affidavit. The court, citing Abrams v. City of Chicago, 211 Ill. 2d 251, 257 (2004), stated that “a party may not rely upon his own unverified pleadings to oppose a motion for summary judgment when [the] movant has supplied evidentiary material, which[,] if uncontradicted[,] would entitle him to judgment as a matter of law.” The court noted that the affidavit was evidence that there are no unpaid medical bills pertaining to the treatment of the low back, while Gassner did not offer any evidence to the contrary. Based on this, the court concluded that “[RMC’s] evidence goes unrefuted and must be accepted as true, leaving no issue of fact as to whether there are any unpaid bills arising out of [Gassner’s] low back injury,” and that, “[b]ecause [Gassner] has not offered any contrary evidence ***, the Court does not get to consider the terms of the contract or whether an ambiguity exists.” 3 (Emphasis added.) This appeal followed.

*1003II. ANALYSIS

A. Statute of Limitations

We first address RMC’s cross-appeal. As a threshold matter, RMC contends that the trial court should have granted its motion to dismiss because Gassner’s petition is barred by the statute of limitations. A statute of limitations’ applicability to a cause of action presents a question of law, subject to de novo review. Travelers Casualty & Surety Co. v. Bowman, 229 Ill. 2d 461, 466 (2008).

RMC contends that section 13 — 205 of the Code controls. That section provides that “actions on *** awards of arbitration *** and all civil actions not otherwise provided for[ ] shall be commenced within 5 years next after the cause of action accrued.” 735 ILCS 5/13—205 (West 2008). RMC notes that the action accrued May 1, 2003, one year after the settlement contract was approved (i.e., the date by which any expenses covered by the contract would have been incurred), and that Gassner did not file his petition with the trial court until more than five years later, on October 31, 2008. In support of its position that a five-year limitations period should apply, RMC cites Ahlers v. Sears, Roebuck Co., 73 Ill. 2d 259, 265 (1978), for the proposition that the Commission’s approval of a settlement contract has the “legal effect” of an arbitration award. Though Ahlers was not a statute-of-limitations case, RMC uses the above-mentioned proposition as a stepping stone to reach its conclusion that the settlement contract at issue here should be treated as an arbitration award (subject to the section 19(g) remedy of reducing the arbitration award to judgment). RMC then relies upon Blacke, which characterized arbitration awards approved by the Commission and subject to enforcement under section 19(g) as actions arising from statute and, therefore, as “civil action[s] not otherwise provided for,” governed by a five-year limitations period. (Internal quotation marks omitted.) Blacke, 268 Ill. App. 3d at 29.4

Gassner responds that the trial court correctly determined that section 13 — 206 of the Code controls. That section provides that actions on written contracts “shall be commenced within 10 years next after the cause of action accrued.” 735 ILCS 5/13—206 (West 2008). Gassner argues that a settlement contract should be characterized as a written contract and relies upon Givens, 192 Ill. App. 3d 97, which held the same. Gassner notes that, as the action accrued on May 1, *10042003, and he filed his petition on October 31, 2008, he clearly did not violate the 10-year limitations period. We agree and see no reason to depart from Givens.

Finally, we reject RMC’s argument that this court should consider the settlement contract to be an oral contract, subject to a five-year limitations period. RMC, relying on Armstrong v. Guigler, 174 Ill. 2d 281, 287 (1996), asserts that, where the language of a written contract is ambiguous such that a party requests the court to look to parol evidence to determine one of the contract’s essential terms, then the contract is deemed oral for the purposes of determining the limitations period, and an oral contract is subject to a five-year limitations period. RMC posits that, from Gassner’s perspective, the term “treatment to the low back” can at best be considered ambiguous and, therefore, Gassner will have to resort to parol evidence to support his claim.

We find that RMC has improperly extended the rule set forth in Armstrong, and therefore we reject RMC’s argument. In Armstrong, the court held that, where one party is claiming breach of a written contract but the existence of that contract or one of its essential terms must be proven by parol evidence, the contract is deemed oral and the five-year statute of limitations applies. Armstrong, 174 Ill. 2d at 287. Here, parol evidence is not necessary to establish the existence of an essential term. Rather, the purpose of parol evidence in this case would be to interpret a term, the existence of which is evident.

Because we determine that a 10-year statute of limitations applies, we need not address whether the limitations period was tolled while Gassner attempted to assert his cause in the wrong forum.

B. Summary Judgment

Gassner challenges the trial court’s grant of summary judgment, arguing that the trial court erred in finding that O’Brien’s affidavit was uncontradicted such that no question of fact remained whether there were any unpaid medical bills arising out of Gassner’s low back injury and in thereby failing to reach the contract-interpretation issue. A summary judgment is a drastic remedy that is to be awarded and reviewed with care and caution. Bloomer Amusement Co. v. Eskenazi, 75 Ill. App. 3d 117, 118 (1979). A motion for summary judgment should be granted only where the pleadings, depositions, and admissions on file, together with the affidavits, if any, show there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2—1005(c) (West 2008). If the facts are not in dispute but are subject to conflicting inferences, or if a reasonable person can draw different inferences and conclusions from *1005the undisputed facts, summary judgment is not appropriate. Bloomer, 75 Ill. App. 3d at 118-19. A grant of summary judgement is subject to de novo review. Id. at 119.

1. The Court Erred in Failing to Reach the Contract-Interpretation Issue

As to whether the trial court properly granted RMC’s motion for summary judgment, Gassner first argues that the trial court erred in finding that O’Brien’s affidavit was uncontradicted such that no question of fact remained whether there were any unpaid medical hills arising out of Gassner’s low back injury and in thereby failing to reach the contract-interpretation issue. We agree with Gassner that the trial court erred on this point.

It is true that a party may not rely upon his or her own verified pleadings to oppose a motion for summary judgment when the movant has supplied evidentiary material, such as an affidavit, that, if uncontradicted, would entitle him or her to judgment as a matter of law. See, e.g., Abrams, 211 Ill. 2d at 257. However, summary judgment affidavits must contain not conclusions but only evidentiary facts to which the affiant is capable of testifying. Jones v. Dettro, 308 Ill. App. 3d 494, 499 (1999) (citing Ill. S. Ct. R. 191(a) (eff. Aug. 1, 1992)). Unsupported assertions, opinions, and self-serving or conclusory statements do not comply with the rule governing summary judgment affidavits. Id.

Here, O’Brien attested that the terms of the settlement contract obligated RMC to pay only “for treatment to the low back causally related to the alleged injury of 5/30/00 for a period of one year after the date of approval of this settlement contract, but not thereafter.” (Emphases added.) O’Brien stated that, based on his experience as a workers’ compensation and personal injury attorney, he was familiar with the type of medical records submitted by Gassner and that, upon his review, the only “unpaid medical treatment bills produced by Gassner that might pertain to ‘treatment to the low back’ during the period from May 1, 2002[,] through May 1, 2003[,] are, at most [$283].” (Emphasis in original.)

These statements are conclusory in that they assume the very interpretation of the open medical provision that Gassner challenges: that the term “treatment to the low back” means treatment administered to or directed at healing the low back only, not treatment for a spreading injury/illness that originated in the low back and not subsequently required treatment arising out of the approved treatment. O’Brien does not dispute that RMC refused to pay $190,000 in medical expenses that Gassner incurred for the treatment of his heart *1006infection, as set forth in Gassner’s answers to various interrogatories and in his submission of medical records. Rather, O’Brien asserts that the settlement contract released RMC from any obligation that it may have otherwise had under the Act to pay for the treatment of Gassner’s heart infection. Gassner’s answers to RMC’s interrogatories and his medical bills are sufficient to stand in response to O’Brien’s affidavit. In sum, O’Brien’s affidavit is insufficient to resolve the controversy as a matter of law, and the trial court erred in failing to address the contract-interpretation issue. Although the trial court failed to address the issue, we -will do so because, as set forth below, the issue is subject to de novo review.

2. Contract-Interpretation Issue

The parties dispute the scope of the open medical provision, which is contained within the general release. A release is a contract and, therefore, is governed by contract law. Janowiak v. Tiesi, 402 Ill. App. 3d 997, 1014 (2010). General words in the release are restrained by specific recitals contained in the document. Id. Releases are strictly construed against the benefitting party and must be written with great particularity. Id. Additionally, an oft-cited principle in release cases is that “[t]he intention of the parties controls the scope and effect of the release, and this intent is discerned from the release’s express language as well as the circumstances surrounding the agreement.” Id. (quoting Fuller Family Holdings, LLC v. Northern Trust Co., 371 Ill. App. 3d 605, 614 (2007)).

Courts have used two approaches in discerning the intent of the parties in typical contract-interpretation cases: the four corners rule and the provisional admission approach. The traditional, four corners rule of contract interpretation states:

“An agreement, when reduced to writing, must be presumed to speak to the intention of the parties who signed it. It speaks for itself, and the intention with which it was executed must be determined from the language used. It is not to be changed by extrinsic evidence.” (Internal quotation marks omitted.) Air Safety, Inc. v. Teachers Realty Corp., 185 Ill. 2d 457, 462 (1999) (quoting Western Illinois Oil Co. v. Thompson, 26 Ill. 2d 287, 291 (1962)).

In applying the four corners rule, a court initially looks to the language of the contract alone. Id. at 462. If the language of an agreement is facially unambiguous, then it is interpreted as a matter of law, without resort to parol (or extrinsic) evidence. Id. If, however, a facial ambiguity is present, then parol evidence may be admitted to aid the trier of fact in resolving the ambiguity. Id. at 462-63. Whether an ambiguity is present is a matter of law, subject to de novo review. Installco, Inc. v. Whiting Corp., 336 Ill. App. 3d 776, 783 (2002).

*1007The provisional admission approach, also known as the extrinsic ambiguity approach, can be summed up as follows:

“Under the provisional admission approach, although the language of [the] contract is facially unambiguous, a party may still proffer parol evidence to the trial judge for the purpose of showing that an ambiguity exists which can be found only by looking beyond the clear language of the contract. [Citation.] Under this method, an extrinsic ambiguity exists ‘when someone who knows the context of the contract would know if the contract means something other than what it seems to mean.’ [Citation.] *** [I]f, after ‘provisionally’ reviewing the parol evidence, the trial judge finds that an ‘extrinsic ambiguity’ is present, then the parol evidence is admitted to aid the trier of fact in resolving the ambiguity.” Air Safety, 185 Ill. 2d at 463.

The theory behind the provisional admission approach is that it corrects for flaws inherent in a strict application of the four corners rule. According to advocates of the provisional admission approach, the four corners rule is flawed because “it assumes precision in language that cannot exist and requires the judge to determine the true intent of the parties in a transaction that is removed from time and circumstances.” Id. at 465. The provisional admission approach allows for the consideration of negotiations leading up to the agreement so that parties’ use of particular words and phrases may be better understood. Arrington v. Walter E. Heller International Corp., 30 Ill. App. 3d 631, 637 (1975). Therefore, the provisional admission approach is more similar to the oft-quoted principle in release cases, that “[t]he intention of the parties controls the scope and effect of the release, and this intent is discerned from the release’s express language as well as the circumstances surrounding the agreement.” (Internal quotation marks omitted.) Janowiak, 402 Ill. App. 3d at 1014.5

*1008In any case, under both the four corners rule and the provisional admission approach, the first step is to determine whether an ambiguity exists. An ambiguity exists where there is doubt as to the true *1009sense or meaning of the words themselves or an indefiniteness in the words’ expression, resulting in a difficulty in the application of the words under the circumstances of the dispute that the contract is supposed to govern. Central Illinois Light Co. v. Home Insurance Co., 213 Ill. 2d 141, 153 (2004); 18 Christine Gimeno et al., Ill. L. & Prac. Evidence §290 (2011) (using the “difficulty in application” definition) (citing Martindell v. Lake Shore National Bank, 15 Ill. 2d 272, 280-81 (1958) (finding ambiguous the phrase “ ‘[debentures paid and discharged by the new corporation shall not thereafter be available for purchase by the Buyer under [the] option’ ” (emphasis added) because, if one considers the primary relationship between the parties to be that of lender and borrower, the option granted by the agreement seems to be an unconditionally revocable offer, but, in the context of the case, if one considers the primary relationship between the parties to be that of buyer and seller, then the option was not revocable at the seller’s whim and only those debentures paid and discharged in the normal course of business would no longer be available for purchase by the buyer)). Additionally, when dealing with a settlement contract involving a work injury that would be covered under the Act, a court construes the contract strongly against the drafter, and the risk of ambiguity and lack of clarity is on the drafting party. Johnson v. State, 55 Ill. Ct. Cl. 410, 412 (2002) (dealing specifically with such a settlement contract); see also Dowd & Dowd, Ltd. v. Gleason, 181 Ill. 2d 460, 479 (1998) (ambiguity in the contract must be resolved against the drafter of the disputed provision).6

With this background, we proceed to determine whether the disputed language in the contract is ambiguous so as to require the *1010introduction of parol evidence and preclude summary judgment. The disputed language reads:

“Notwithstanding anything to the contrary contained herein, as additional consideration, [RMC] agrees to pay reasonable and necessary medical expenses for treatment to the low back causally related to the alleged injury of 5/30/00 for a period of one year after the date of approval of this settlement contract, but not thereafter.”

In particular, the parties dispute whether the phrase “treatment to the low back” creates a facial ambiguity. Black’s Law Dictionary defines the word “treatment” as “[a] broad term covering all the steps taken to effect a cure of an injury or disease; including examination and diagnosis as well as application of remedies.” Black’s Law Dictionary 1502 (6th ed. 1990). Dorland’s Medical Dictionary defines “treatment” as “the management and care of a patient for the purpose of combating disease or disorder.” Dorland’s Medical Dictionary 1388 (26th ed. 1981).

Gassner’s primary argument is that the plain language of the open medical provision includes treatment for the heart staph infection, provided that he can establish that the heart staph infection was the same infection that originated in his low back and was causally related to the initial injury. That would, of course, be an issue for trial. Thus, Gassner requests that this court remand the cause for a determination of whether the staph infection surrounding his heart was the same infection that originated in his low back and was causally related to his initial injury. Alternatively, Gassner contends that the terms of the open medical provision are, at the very least, ambiguous, requiring a remand for a determination of the parties’ intent regarding the scope and extent of the open medical provision. Gassner notes that RMC was well aware of the staph infection, then localized near the site of the surgical incision, when the parties entered into the open medical provision, and he posits that the open medical provision was an acknowledgment of and agreement to pay for Gassner’s then-unresolved health issue (the staph infection) for the next year only.

RMC, on the other hand, argues that the plain language of the open medical provision includes treatment administered to or directed at healing the low back only, regardless of whether a condition originating in the low back spreads to other parts of the body. At oral argument, RMC set forth that it was aware that Gassner had a staph infection when the parties entered into the settlement contract, and it noted that it (RMC) had paid for treatment of Gassner’s staph infection up to that point. However, it was RMC’s position that the term “treatment to the low back” unambiguously excluded treatment of the staph infection and released RMC from any further duty to pay for *1011such treatment. In other words, RMC posited that the purpose of the open medical provision was to limit its obligation to paying for treatment to the low back (in the muscular-skeletal, chiropractic sense), so long as it was causally related to the initial injury, for a term of one year.

RMC’s preferred reading of the open medical provision, i.e., that it was not obligated to pay for treatment of the staph infection even while it remained localized in the low back, is not obvious from the language of the provision. To the contrary, absent any parol evidence, we read the term “treatment to the low back” to include treatment for a staph infection manifesting in the low back — the open medical provision does not specify the type of low back medical condition (muscular-skeletal injury or infectious illness) and requires only that the low back condition be causally related to the initial injury. RMC, as the drafter of the settlement contract, should have set forth the terms of the release with a greater degree of clarity. If it meant to exclude treatment for the staph infection, it should have so stated.

Once one considers the obligation to pay for treatment as including an infection manifesting in the low back, it becomes difficult to define the limits of the obligation. Assuming that the facts later show that the infection in the heart was the same infection as that originating in the back, is RMC obligated to pay for treatment aimed at the infection or merely for treatment aimed at the resulting damage? The former interpretation is more consistent with the term “treatment,” i.e., a broad term covering all steps to effect a cure, while the latter more readily lends itself to literal compliance with the open medical provision’s reference to the “low back.”

The fact that the health issue for which coverage is disputed is an infection, as opposed to a more discrete injury such as a broken arm, creates the greatest difficulty in applying the terms of the open medical provision. By way of counter-example, if, within the year following the approval of the settlement contract, the initial injury caused Gassner to have a spasm that in turn caused him to fall and break his arm, treatment for his arm would not be covered under the open medical provision. Even though the broken arm would arguably be causally related to the initial injury, it would not be covered because its treatment could in no way be construed as treatment to the low back. In contrast, treatment of an infection originating in the low back, once bloodborne, is not so easily localized. The infection was not treated at the site of origin but, rather, was treated by intravenous and oral antibiotics. If Gassner is able to establish before a trier of fact that the infection surrounding his heart was the same infection as the one that originated in his low back, then, in order to “treat” the *1012infection that originated in the low back, i.e., in order to “effect a cure of the [condition],” it would seem that one would have had to treat the entire infection, however it may have manifested, evolved, or spread.

In sum, even under a four corners approach, the contract is ambiguous. The open medical provision does not, as a matter of law, exclude treatment for Gassner’s staph infection. Summary judgment was therefore inappropriate. Should Gassner continue to pursue his claim in the trial court, we allow for the introduction of (reliable) parol evidence to determine the intent of the parties in entering into the release and in creating the open medical provision. Whether the parties created the open medical provision to include or exclude treatment of the staph infection is a question of fact to be decided in the trial court, as is the question of whether the staph infection that damaged Gassner’s heart is the same infection that originated in his low back as a result of the low back surgery that corrected the initial work injury.

III. CONCLUSION

For the aforementioned reasons, we affirm the trial court’s denial of RMC’s motion to dismiss, we reverse the trial court’s grant of RMC’s motion for summary judgment, and we remand the cause.

Affirmed in part and reversed in part; cause remanded.

FRIENDLY, Circuit Judge.

The issue is, what is chicken? Plaintiff says “chicken” means a young chicken, suitable for broiling and frying. Defendant says “chicken” means any bird of that genus that meets contract specifications on weight and quality, including what it calls “stewing chicken” and plaintiff pejoratively terms “fowl”. Dictionaries give both meanings, as well as some others not relevant here. To support its, plaintiff sends a number of volleys over the net; defendant essays to return them and adds a few serves of its own. Assuming that both parties were acting in good faith, the case nicely illustrates Holmes’ remark “that the making of a contract depends not on the agreement of two minds in one intention, but on the agreement of two sets of external signs — not on the parties’ having meant the same thing but on their having said the same thing.” The Path of the Law, in Collected Legal Papers, p. 178. I have concluded that plaintiff has not sustained its burden of persuasion that the contract used “chicken” in the narrower sense.

The action is for breach of the warranty that goods sold shall correspond to the description, New York Personal Property Law, McKinney’s Consol. Laws, c. 41, § 95. Two contracts are in suit. In the first, dated May 2, 1957, defendant, a New York sales corporation, confirmed the sale to plaintiff, a Swiss corpora-tion, of

“US Fresh Frozen Chicken, Grade A, Government Inspected, Eviscerated

2½-3 lbs. and 1½-2 lbs. each all chicken individually wrapped in cryovac, packed in secured fiber cartons or wooden boxes, suitable for export

75.000 lbs. 2y2-3 lbs.......@$33.00

25.000 lbs. 1½-2 lbs.......@$36.50

per 100 lbs. FAS New York

scheduled May 10, 1957 pursuant to instructions from Penson & Co., New York.” 1

The second contract, also dated May 2, 1957, was identical save that only 50,-000 lbs. of the heavier “chicken” were called for, the price of the smaller birds was $37 per 100 lbs., and shipment was scheduled for May 30. The initial shipment under the first contract was short but the balance was shipped on May 17. When the initial shipment arrived in Switzerland, plaintiff found, on May 28, that the 2½-3 lbs. birds were not young chicken suitable for broiling and frying but stewing chicken or “fowl”; indeed, many of the cartons and bags plainly so indicated. Protests ensued. Nevertheless, shipment under the second contract was made on May 29, the 2½-3 lbs. birds again being stewing chicken. Defendant stopped the transportation of these at Rotterdam.

This action followed. Plaintiff says that, notwithstanding that its acceptance was in Switzerland, New York law con*118trols under the principle of Rubin v. Irving Trust Co., 1953, 305 N.Y. 288, 305, 113 N.E.2d 424, 431; defendant does not dispute this, and relies on New York decisions. I shall follow the apparent agreement of the parties as to the applicable law.

Since the word “chicken” standing alone is ambiguous, I turn first to see whether the contract itself offers any aid to its interpretation. Plaintiff says the 1½-2 lbs. birds necessarily had to be young chicken since the older birds do not come in that size, hence the 2½-3 lbs. birds must likewise be young. This is unpersuasive — a contract for “apples” of two different sizes could be filled with different kinds of apples even though only one species came in both sizes. Defendant notes that the contract called not simply for chicken but for “US Fresh Frozen Chicken, Grade A, Government Inspected.” It says the contract thereby incorporated by reference the Department of Agriculture’s regulations, which favor its interpretation; I shall return to this after reviewing plaintiff’s other contentions.

The first hinges on an exchange of cablegrams which preceded execution of the formal contracts. The negotiations leading up to the contracts were conducted in New York between defendant’s secretary, Ernest R. Bauer, and a Mr. Stovicek, who was in New York for the Czechoslovak government at the World Trade Fair. A few days after meeting Bauer at the fair, Stovicek telephoned and inquired whether defendant would be interested in exporting poultry to Switzerland. Bauer then met with Stovicek, who showed him a cable from plaintiff dated April 26,1957, announcing that they “are buyer” of 25,000 lbs. of chicken 2½-3 lbs. weight, Cryovac packed, grade A Government inspected, at a price up to 33^ per pound, for shipment on May 10, to be confirmed by the following morning, and were interested in further offerings. After testing the market for price, Bauer accepted, and Stovicek sent a confirmation that evening. Plaintiff stresses that, although these and subsequent cables between plaintiff and defendant, which laid the basis for the additional quantities under the first and for all of the second contract, were predominantly in German, they used the English word “chicken”; it claims this was done because it understood “chicken” meant young chicken whereas the German word, “Huhn,” included both “Brathuhn” (broilers) and “Suppenhuhn” (stewing chicken), and that defendant, whose officers were thoroughly conversant with German, should have realized this. Whatever force this argument might otherwise have is largely drained away by Bauer’s testimony that he asked Stovicek what kind of chickens were wanted, received the answer “any kind of chickens,” and then, in German, asked whether the cable meant “Huhn” and received an affirmative response. Plaintiff attacks this as contrary to what Bauer testified on his deposition in March, 1959, and also on the ground that Stovicek had no authority to interpret the meaning of the cable. The first contention would be persuasive if sustained by the record, since Bauer was free at the trial from the threat of contradiction by Stovicek as he was not at the time of the deposition; however, review of the deposition does not convince me of the claimed inconsistency. As to the second contention, it may well be that Stovicek lacked authority to commit plaintiff for prices or delivery dates other than those specified in the cable; but plaintiff cannot at the same time rely on its cable to Stovicek as its dictionary to the meaning of the contract and repudiate the interpretation given the dictionary by the man in whose hands it was put. See Restatement of the Law of Agency, 2d, § 145; 2 Mecham, Agency § 1781 (2d ed. 1914); Park v. Moorman Mfg. Co., 1952, 121 Utah 339, 241 P.2d 914, 919, 40 A.L.R.2d 273; Henderson v. Jimmerson, Tex.Civ.App.1950, 234 S.W. 2d 710, 717-718. Plaintiff’s reliance on the fact that the contract forms contain the words “through the intermediary of; ”, with the blank not filled, as negating agency, is wholly unpersua*119sive; the purpose of this clause was to permit filling in the name of an intermediary to whom a commission would be payable, not to blot out what had been the fact.

Plaintiff’s next contention is that there was a definite trade usage that •“chicken” meant “young chicken.” Defendant showed that it was only beginning in the poultry trade in 1957, thereby bringing itself within the principle that “when one of the parties is not a member of the trade or other circle, his acceptance of the standard must be made to appear” by proving either that he had actual knowledge of the usage or that the usage is “so generally known in the community that his actual individual knowledge of it may be inferred.” 9 Wigmore, Evidence (3d ed. 1940) § 2464. Here there was no proof of actual knowledge of the alleged usage; indeed, it is quite plain that defendant’s belief was to the contrary. In order to meet the alternative requirement, the law of New York demands a showing that “the usage is of .so long continuance, so well established, .so notorious, so universal and so reasonable in itself, as that the presumption is violent that the parties contracted with reference to it, and made it a part of their agreement.” Walls v. Bailey, 1872, 49 N.Y. 464, 472-473.

Plaintiff endeavored to establish .-such a usage by the testimony of three witnesses and certain other evidence. :Strasser, resident buyer in New York for a large chain of Swiss cooperatives, testified that “on chicken I would definitely understand a broiler.” However, the force of this testimony was consider.ably weakened by the fact that in his own transactions the witness, a careful busi-nessman, protected himself by using “broiler” when that was what he wanted .and “fowl” when he wished older birds. Indeed, there are some indications, dating back to a remark of Lord Mansfield, Edie v. East India Co., 2 Burr. 1216, 1222 (1761), that no credit should be .given “witnesses to usage, who could not adduce instances in verification.” 7 Wigmore, Evidence (3d ed. 1940), § 1954; see McDonald v. Acker, Merrall & Condit Co., 2d Dept.1920, 192 App.Div. 123, 126, 182 N.Y.S. 607. While Wig-more thinks this goes too far, a witness’ consistent failure to rely on the alleged usage deprives his opinion testimony of much of its effect. Niesielowski, an officer of one of the companies that had furnished the stewing chicken to defendant, testified that “chicken” meant “the male species of the poultry industry. That could be a broiler, a fryer or a roaster”, but not a stewing chicken; however, he also testified that upon receiving defendant’s inquiry for “chickens”, he asked whether the desire was for “fowl or frying chickens” and, in fact, supplied fowl, although taking the precaution of asking defendant, a day or two after plaintiff’s acceptance of the contracts in suit, to change its confirmation of its order from “chickens,” as defendant had originally prepared it, to “stewing chickens.” Dates, an employee of Urner-Barry Company, which publishes a daily market report on the poultry trade, gave it as his view that the trade meaning of “chicken” was “broilers and fryers.” In addition to this opinion testimony, plaintiff relied on the fact that the Urner-Barry service, the Journal of Commerce, and Weinberg Bros. & Co. of Chicago, a large supplier of poultry, published quotations in a manner which, in one way or another, distinguish between “chicken,” comprising broilers, fryers and certain other categories, and “fowl,” which, Bauer acknowledged, included stewing chickens. This material would be impressive if there were nothing to the contrary. However, there was, as will now be seen.

Defendant’s witness Weininger, who operates a chicken eviscerating plant in New Jersey, testified “Chicken is everything except a goose, a duck, and a turkey. Everything is a chicken, but then you have to say, you have to specify which category you want or that you are talking about.” Its witness Fox said that in the trade “chicken” would encompass all the various classifications. Sadina, who conducts a food inspection *120service, testified that he would consider any bird coming within the classes of “chicken” in the Department of Agriculture’s regulations to be a chicken. The specifications approved by the General Services Administration include fowl as well as broilers and fryers under the classification “chickens.” Statistics of the Institute of American Poultry Industries use the phrases “Young chickens” and “Mature chickens,” under the general heading “Total chickens.” and the Department of Agriculture’s daily and weekly price reports avoid use of the word “chicken” without specification.

Defendant advances several other points which it claims affirmatively support its construction. Primary among these is the regulation of the Department of Agriculture, 7 C.F.R. § 70.300-70.370, entitled, “Grading and Inspection of Poultry and Edible Products Thereof.” and in particular § 70.301 which recited:

“Chickens. The following are the various classes of chickens:

(a) Broiler or fryer

(b) Roaster .

(c) Capon .

(d) Stag . . .

(e) Hen or stewing chicken or fowl .

(f) Cock or old rooster .

Defendant argues, as previously noted, that the contract incorporated these regulations by reference. Plaintiff answers that the contract provision related simply to grade and Government inspection and did not incorporate the Government definition of “chicken,” and also that the definition in the Regulations is ignored in the trade. However, the latter contention was contradicted by Weininger and Sadina; and there is force in defendant’s argument that the contract made the regulations a dictionary, particularly since the reference to Government grading was already in plaintiff’s initial cable to Stovicek.

Defendant makes a further argument based on the impossibility of its obtaining broilers and fryers at the 33{5 price offered by plaintiff for the 2½-3 lbs. birds. There is no substantial dispute that, in late April, 1957, the price for 2½~3 lbs. broilers was between 35 and 37f! per pound, and that when defendant entered into the contracts, it was well aware of this and intended to fill them by supplying fowl in these weights. It claims that plaintiff must likewise have known the market since plaintiff had reserved shipping space on April 23, three days before plaintiff’s cable to Stovicek, or, at least, that Stovicek was chargeable with such knowledge. It is scarcely an answer to say, as plaintiff does in its brief, that the 33^ price offered by the 2%-3 lbs. “chickens” was closer to the prevailing 35^ price for broilers than to the 30(i at which defendant procured fowl. Plaintiff must have expected defendant to make some profit — certainly it could not have expected defendant deliberately to incur a loss.

Finally, defendant relies on conduct by the plaintiff after the first shipment had been received. On May 28 plaintiff sent two cables complaining that the larger birds in the first shipment constituted “fowl.” Defendant answered with a cable refusing to recognize plaintiff’s objection and announcing “We have today ready for shipment 50,000 lbs. chicken 2%-3 lbs. 25,000 lbs. broilers iy2-2 lbs.,” these being the goods procured for shipment under the second contract, and asked immediate answer “whether we are to ship this merchandise to you and whether you will accept the merchandise.” After several other cable exchanges, plaintiff replied on May 29 “Confirm again that merchandise is to be shipped since resold by us if not enough pursuant to contract chickens are shipped the missing quantity is to be shipped within ten days stop we resold to our customers pursuant to your contract chickens grade A you have to deliver us said merchandise we again state that we shall make you fully responsible for all resulting costs.” 2 Defendant argues *121that if plaintiff was sincere in thinking it was entitled to young chickens, plaintiff would not have allowed the shipment under the second contract to go forward, since the distinction between broilers and chickens drawn in defendant’s cablegram must have made it clear that the larger birds would not be broilers. However, plaintiff answers that the cables show plaintiff was insisting on delivery of young chickens and that defendant shipped old ones at its peril. Defendant’s point would be highly relevant on another disputed issue — whether if liability were established, the measure of damages should be the difference in market value of broilers and stewing chicken in New York or the larger difference in Europe, but I cannot give it weight on the issue of interpretation. Defendant points out also that plaintiff proceeded to deliver some of the larger birds in Europe, describing them as “poulets”; defendant argues that it was only when plaintiff’s customers complained about this that plaintiff developed the idea that “chicken” meant “young chicken.” There is little force in this in view of plaintiff's immediate and consistent protests.

When all the evidence is reviewed, it is clear that defendant believed it could comply with the contracts by delivering stewing chicken in the 2½-3 lbs. size. Defendant’s subjective intent would not be significant if this did not coincide with an objective meaning of “chicken.” Here it did coincide with one of the dictionary meanings, with the definition in the Department of Agriculture Regulations to which the contract made at least oblique reference, with at least some usage in the trade, with the realities of the market, and with what plaintiff’s spokesman had said. Plaintiff asserts it to be equally plain that plaintiff’s own subjective intent was to obtain broilers and fryers; the only evidence against this is the material as to market prices and this may not have been sufficiently brought home. In any event it is unnecessary to determine that issue. For plaintiff has the burden of showing that “chicken” was used in the narrower rather than in the broader sense, and this it has not sustained.

This opinion constitutes the Court’s findings of fact and conclusions of law. Judgment shall be entered dismissing the complaint with costs.

Julius J. Olson, Justice.

Plaintiffs appeal from an order denying their motion for new trial after the cause had been heard and decision rendered for defendants. The facts are not in substantial conflict. But solution of the legal problems presented thereby is decidedly controversial, at least so counsel for the parties seem to think.

Ira Collins Soper, a native and resident of Kentucky, was the central figure in the drama now to be depicted. In October, 1911, he and plaintiff Adeline Johnson Westphal were united in marriage. She was a widow with three young daughters, the issue of her first marriage. She and her three daughters lived with him until August, 1921, when he suddenly disappeared, not to be heard of again by his wife during his remaining lifetime. Their family life is said to have been a happy one. But there were many occasions when Mrs. Soper undoubtedly had real difficulties with which to contend. Soper was inclined to go on periodic sprees. He had been on such a spree immediately prior to his last departure from plaintiff wife. His sister, who was visiting at that time Avith the Soper family, had upbraided him about this affair and so had the wife of one of his friends. The Sopers are said to be proud of their family name, and the good repute of its members Avas a matter not to be lightly treated. On at least two prior occasions he had made unannounced trips, once to Memphis and at another time to St. Louis, after having been on such drunken sprees. But at the *62time of,the last mentioned occasion he studiously and almost fiendishly made his disappearance take on the aspect of suicide. He wrote several suicide notes to his wife, one of them ending with this significant statement: “If there is any hereafter may meet you again.” His car was found at the bank of a near-by canal, and so were his hat and portions of his clothing. Pinned to his business card and left in his car was a note reading: “This belongs to Mrs. Soper.”

The record abundantly supports the view that he did not intend to end his life but went through these performances for the sole purpose of deceiving his wife and to leave with her the impression that he had in fact committed suicide. He managed to leave Louisville, that being his home, without clue or trace. He first went to Canada and shortly thereafter came to Minneapolis. There he assumed the name of John W. Young. By that name, and that name only, he ivas known to his business and social acquaintances from the time he came to Minneapolis until his death in 1932, something like 11 years. In Minneapolis he became well acquainted and established both in a business and social way. He entered the fuel business and with one Karstens formed a corporation known as the Young Fuel Company. In 1922, he married a widow, Mary Christopher, a resident of Minneapolis, and they lived together as husband and wife and were so known until she died in 1925. In May, 1927, he married defendant Gertrude Whitby, another Minneapolis widow, with whom he had been acquainted and had kept company for some six or eight months prior to their marriage. They lived together as husband and wife from the time of this marriage until his death in 1932, Avhen he actually did commit suicide. Gertrude in good faith believed him to be a widoAver, he having informed her and many others that his first wife died of pneumonia many years prior thereto.

Some time after Young’s marriage to Gertrude, he and Karstens were interviewed by one Smith, an insurance agent, Avho de\dsed a stock insurance plan whereby provision was to be made for the surviving partner of the fuel company to acquire the entire business in event of death of one of them, the surviving Avife of such de*63ceased partner to be compensated by life insurance to be taken out by each partner upon his life, premiums to be paid by the fuel company and charged as an item of operating expense. The purpose was to keep the corporate enterprise from becoming split up as to Stock ownership in event of death of either,, owner. The capital of the fuel company ivas $10,000, represented by 400 shares of the par value of $25 each. The ownership of the stock was as follows: Karstens had 175 shares, Mrs. Karstens 25, Young 195, and Gertrude 5. Each owner, i. e., Karstens and Young,, was to take out a policy of life insurance in the amount of $5,000 payable to First Minneapolis Trust Company as trustee. The resulting agreement, designated “escroiv receipt,” after reciting the deposit of 200 shares by each depositor, provides:

“Upon the decease of either John W. Young or Ferdinand J. Karstens, the Trust Company shall proceed to collect the proceeds of the Insurance Policies upon the life of such deceased Depositor, and shall handle and dispose of such proceeds as follows:

“The Trust Company shall deliver the stock certificates of the deceased Depositor to the surviving Depositor and it shall deliver the proceeds of the insurance on the life of the deceased Depositor to the wife of the deceased Depositor if living, and if not living, then to the representative of his estate, and the stock certificates that were deposited by the Depositor who is then the surviving Depositor, together with the policies of insurance upon his life shall be delivered to such surviving Depositor.

“All of the stock deposited hereunder and all of the policies deposited hereunder or any part thereof may be withdrawn by said two Depositors on the joint receipt of both of them.”

The policies were duly issued and, with the stock certificates, appropriately indorsed, deposited with the trustee. The insurance premiums were paid by the fuel company. Shortly after Young’s death the trustee collected the insurance money upon the policy issued upon his life and paid the proceeds over to defendant Gertrude as his surviving wife, and at the same time delivered to Mr. Karstens as the surviving partner decedent’s 200 shares in the fuel company, together with the policy issued upon his life.

*64The trust officer who dealt with the parties was informed that the relationship between Young and Gertrude was that of husband and wife, likewise that of Karstens and his wife. No one except Young knew anything about the first wife. She was to all intents and purposes, as to all arrangements and engagements heretofore related, entirely out of the picture.

Several months elapsed after these matters had been properly closed by the parties, as they in good faith thought, when Mrs. Soper, the true wife of Young, put in her appearance. An administrator of the estate of the late Soper, alias Young, was appointed. He and Mrs. Soper brought this suit against defendants to recover the insurance money. The suit was brought upon the theory that this fund had been erroneously paid by the trustee to Gertrude.

Plaintiffs have assigned áÓ errors and devote pages 18 to 50, inclusive, in their printed brief thereto. These are summarized, however, into more compact form thus:

“The essential issue, as it really presented itself at the trial, was this: granting that Mrs. Whitby was not the deceased’s wife, could not be his wife, was not his heir, did not have and could not have any rights of inheritance, statutory or otherwise, did Soper, by some valid, clear, effective supervening instrument, valid as a will or as a present deed or conveyance inter vivos, shut off and determine, in her or in some one else’s favor, the clear rights which his wife and heir would otherwise plainly have had? And, further, if it first be found that he actually did execute a valid instrument which clearly and unmistakably has that effect, to deprive his wife of her rights, did he have the .power to do that, without his wife’s consent, under our law?”

It must be conceded that defendant Gertrude never was the legal wife of decedent. Although her innocence of wrongdoing is clearly established and her good faith in entering into her marriage relation with Young is amply sustained, the fact remains that she can take nothing under the laws of descent. Nor do we think the escrow agreement can be considered a testamentary disposition of *65the insurance money or of any other property included in that instrument. It was not so intended, and nothing therein contained can be so construed. Rather, so it seems to us, it takes the form of and functions as an insurance trust. The legal right to demand and receive the insurance money was by the agreement vested in the trust company. It was the payee in both policies. The legal title to the stock certificates vested in it. Immediately upon the death of the insured the rights of the settlors and beneficiaries were finally established. The duty of the trustee to act as in the agreement stipulated became operative. What had theretofore been a passive or inactive matter became at once upon Young’s death an obligation requiring action. The trustee performed thereunder. It could do no more, and duty required it to do no less.

By 2 Mason Minn. St. 1927, § 8081, all trusts are abolished except as defined by and limited in the act. Section 8090 expressly authorizes trusts for such purposes as were here intended. Subsection 6 thereof furnishes the authority. Therein and thereby it is provided that a trust may be created, “For the beneficial interests of any person or persons, whether such trust embraces real or personal property or both, when the trust is fully expressed and clearly defined on the face of the instrument creating it; * * Under the terms of the escrow agreement it seems clear that the parties intended just such trust.

An insurance trust having been created, the cases seem to hold with practical unanimity that such trusts are nontestamentary. The mere fact that the settlor reserves the right to revoke the trust does not destroy its efficacy as an insurance trust if the event upon which the trust depends takes place before revocation is made effective. A late and very important case bearing upon this subject is Gurnett v. Mutual L. Ins. Co. 356 Ill. 612, 191 N. E. 250. The facts in that case were that the trustee had been made the beneficiary in certain policies of life insurance. The settlor was to pay the premiums, and he retained the right to change the beneficiary, borrow money on the policies, use, the policies as security for loans, receive dividends, and he could surrender any policy for its cash surrender value. The agreement imposed no duty on the trustee *66except to hold the policies and deliver them to the settlor upon his request. The trustee agreed that upon the insured’s death it would collect the policies and pay the proceeds in accordance with the agreement entered into. Upon the death of the insured his creditors attacked the transaction, claiming that it was testamentary in character and that the insured had relinquished no interest in the insurance policies to the trustee. The court, however, came to the conclusion that a trust was created inter vivos and that as such the beneficiaries under the trust agreement were entitled to the proceeds of the policies. The court amongst other things said, 356 Ill. 619:

“Their [insurance companies] obligations to pay and the right of the trustee to receive the proceeds of the policies, upon the happening of the contingency specified, were determined when the companies noted upon the face of the policies the exercise, by the insured, of his right or privilege to change .the beneficiaries. The date of the death of the insured merely fixed the time when the obligation of the insurers to pay and the right of the beneficiary to receive the proceeds of the policies became enforcible.” This case is carefully analyzed, as are many other cases bearing upon this matter, in an interesting' and instructive article appearing in 18 Minn. L. Bev. 891, under the title, “The Insurance Trust as a Non-Testamentary Disposition.” In that article the author, at p. 398, has this to say:

“In other words, it is submitted that if a life insurance policy payable to a third party beneficiary is not testamentary, a life insurance trust is not, for in both cases legal title to the insurance funds is given by the policy to the designated beneficiary. In the case of a trust a split property interest is involved, but this is a trust problem, not a problem in wills.” And on the following page: “It may be concluded that life insurance trusts i;' will not be held to be testamentary even though the trustee is named as third party beneficiary.”

Other cases bearing upon this subject are Bose v. Meury, 112 N. J. Eq. 62, 163 A. 276; Beirne v. Continental-Equitable T. & T. Co. 307 *67Pa. 570, 161 A. 721; In re Voorhees’ Estate, 200 App. Div. 259, 193 N. Y. S. 168; In re Haldrich’s Estate, 134 Misc. 741, 236 N. Y. S. 395; Fidelity Trust Co. v. Union Nat. Bank, 313 Pa. 467, 169 A. 209.

Even if it be conceded that this was not an insurance trust, the authorities generally seem to hold that such arrangements, even if not involving the trust aspect, are valid as inter vivos transactions because they are contractual in nature. Thus in Coe v. Winchester, 43 Ariz. — , 33 P. (2d) 286, it appears that two partners entered into a written agreement whereby each agreed that he would effect a policy of life insurance payable to his wife. On the death of either the wife of the deceased Avas to get the insurance and the surviving partner Avas to take the deceased’s interest in the partnership. Under Arizona laAV each partner’s interest in the business is community property belonging equally to the partner and his AArife. But as to such property the husband has complete right of disposal of the entire interest by any deal inter vivos but cannot make a testamentary disposition of his Avife’s interest. One of the partners died. His wife claimed a one-fourth interest in the business upon the theory that the attempted disposition of the property was testamentary and therefore could not affect her community interest. The court came to the conclusion that the contract Avas not a testamentary disposition of property and that as such the entire one-half interest of the deceased partner had been validly transferred. Other cases upon this phase are Murphy v. Murphy, 217 Mass. 233, 104 N. E. 466; In re Mildrum’s Estate, 108 Misc. 114, 177 N. Y. S. 563; In re Eisenlohr’s Estate, 258 Pa. 438, 102 A. 117; McKinnon v. McKinnon (C. C. A.), 56 F. 409; Thompson v. J. D. Thompson Carnation Co. 279 Ill. 54, 116 N. E. 648, Ann. Cas. 1917E, 591. In the last cited case the court held an agreement between a stockholder and a corporation, of similar nature, import, and purpose to those partnership cases hereinbefore cited, to be mutually binding upon each and all the parties thereto from the date of its execution. It Avas held there that there was no testamentary disposition of the property.

We conclude that Gertrude neither did nor could take anything as the “Avife” of Young. As a matter of law she never became such. *68But this conclusion does not solve our problem because she does not lay claim to the insurance merely as his lawful wife, but as the person intended to be the beneficiary under the escrow agreement as fully as if her name had been written into that contract •instead of the word “wife.” So the real question presented is whether under the escrow agreement designating the “wife” of depositor Young as the beneficiary parol proof is admissible that Gertrude was so intended and not Mrs. Soper, the true wife. Plaintiffs claim that the written instrument is free from ambiguity, latent or otherwise, and that as such it was improper for the trial court to permit oral evidence to show who was intended thereby to be such beneficiary. They strenuously assert that the agreement is not subject to construction, that it is perfectly plain in its language, and that the only thing for the court to determine is whether Mrs. Soper was the lawful wife of the deceased husband or if Gertrude was such.

From the facts and circumstances hereinbefore related the conclusion seems inescapable that Gertrude was intended. She was the only one known or considered by the contracting parties. True, Young knew otherwise, but that he did not intend his real wife to take anything as beneficiary seems obvious. From the time he left Louisville and came to Minneapolis, and until some time after his death, no one amongst his business or social acquaintances kneAv anything of or concerning his true wife. Gertrude alone ansAvered the descriptive designation of “wife.” Public records disclosed her and her alone to be such. There was no one else.

The question of Avho is one’s wife is at times, under circumstances similar to what we are here considering, a matter of grave concern and genuine dispute. There may be involved the question of divorce, whether the court had jurisdiction of the status or of the parties, and many other difficulties. In many cases fact questions arise ordinarily capable of proof only by means of the aid of oral testimony. The question of identification of the individual intended by the written instrument very often involves and requires oral proof. That is the situation here. The right to the money here involved is claimed by both Adeline Soper and Gertrude Young. In *69what manner may either establish relationship to the decedent as his “wife” except by means of oral testimony? Ira Collins Soper and John W. Young, in the absence of proof contra,, would likely lead an inquirer to the vieiv that two different men were involved. Adeline, to establish her relationship, was necessarily required to and did furnish proof, principally oral, that her husband, Ira Collins Soper, was in fact the same individual as John W. Young. Gertrude by similar means sought to establish her claim. Of course the proof was such as to require a finding sustaining Adeline’s claim. No one questions that result. But until such proof was adduced it is equally clear, both from public records in Hennepin county and general repute, that Gertrude had been duly married to John W. Young. All friends and acquaintances knew and recognized her as his wife. There was nothing in Minneapolis or in this state indicating otherwise. Were we to award the insurance fund to plaintiff Adeline, it is obvious that wre would thereby be doing violence to the contract entered into by the decedent Young with his associate Mr. Karstens. That agreement points to no one else than Gertrude as Young’s “wife.” To hold otherwise is to give the word “wife” “a fixed symbol,” as “something inherent and objective, not subjective and personal.” Dean Wigmore in his excellent work on evidence, 5 Wigmore, Evidence (2 ed.) § 2462, p. 378, has this to say:

“The ordinary standard, or 'plain meaning,’ is simply the meaning of the people who did not write the document. The fallacy consists in assuming that there is or ever can be some one real or absolute meaning. In truth, there can be only ¿orne person’s meaning; and that person, whose meaning the law is seeking, is the writer of the document.” . And further, p. 379: “The truth is that whatever virtue and strength lies in the argument for the antique rule leads not to a fixed rule of law, but only to a general maxim of prudent discretion. In the felicitous alliteration of that great judge, Lord Justice Bowen, it is 'not so much a canon of construction as a counsel of caution.’ ”

It is argued that in two other life insurance policies, issued by the same company upon the life of John W. Young, the beneficiary *70was named “Gertrude Young, wife” of insured. These policies were issued respectively on October 6 and 26, 1925. Both policies were payable to “the executors, administrators or assigns of the insured, or to the duly designated beneficiary.” On October 6, 1927, both policies were changed as to beneficiary so as to read as above stated, “Gertrude Young, wife.” This does not tend to prove a different intention on the part of the insured than what he sought to accomplish when the escrow agreement was made. Bather, it points strongly to the conclusion reached by the trial court that Gertrude Young was the “wife” whom he sought to protect. As to these policies no issue is raised. They were not included in the escrow agreement. We are limited strictly to the policy deposited with the trust company wherein it was designated the beneficiary.

In the books are found numerous cases wherein similar situations have arisen. Several cases have come before this court wherein the particular question now being considered has arisen. Thus in In re Swenson’s Estate, 55 Minn. 300, 56 N. W. 1115, testator had made a will in 1884. He and his wife had no children, and they were then of such age that it could not be expected that they would have any. Under the statutes of descent then in force, his heirs would have been his next of kin, of whom there were then living a brother and two sisters. While testator was still living the statute was changed so that the sole heir would be his wife. However, the will gave certain property to his wife with the residue to “my heirs at law, share and share alike.” There it was held that the next of kin took the residuary estate. The court said, 55 Minn. 310, 56 N. W. 1116, 1117:

“Nor is there an inflexible rule for determining the meaning of the words ‘heirs at law,’ or any other Avords found in a will. From an examination of the authorities it Avill be found that these particular words have been construed to mean children, adopted children, next of kin, heirs of a particular class or description, heirs presumptive, heirs apparent, heirs at the date of the will, heirs at the decease of the testator, or heirs at a later date even, the construction seeming to rest and to be predicated upon an ascertain*71ment of the testator’s intention from the words used, from the context of the instrument and from the stirrounding circumstances (Italics ours.)

In Anderson v. Brower, 148 Minn. 44, 180 N. W. 1019, the facts were that testator had by will made specific provision for his wife. He had also made provision for his son wherein, upon certain conditions arising, the son should not take and the property was to go to testator’s “legal heirs.” The son did not take because of the proviso, and the issue arose as to who Avere the legal heirs within the meaning of the Avill. The court said, 148 Minn. 48, 180 N. W. 1020:

“It is sometimes said that the intent of the testator is to be derived by a Tour-cornered’ view of the will. Words used may or may not be given their technical meaning. They are to be given such meaning as giAres effect to the real intent of the testator. Such Avords as heirs, or legal heirs, though their technical significance is not to be overlooked, may, to give effect to the testator’s intent, be held to refer to others than those who are technically heirs and may exclude those Avho are technically heirs.” (Citing many cases.)

In Wilmot v. Minneapolis A. T. Assn. 169 Minn. 140, 142, 210 N. W. 861, this court said:

“The duty of courts is to apply contracts to their subject matter and so effect the purpose of the parties. Their interpretation is incidental. To accomplish the main object resort may and frequently must be had to the circumstances under which the contract was made and, if there be need for resort to extraneous aids to construction, it is immaterial whether such need arises from an uncertainty in the instrument itself or, that being clear standing alone, it ceases to be so and ambiguity arises when the contract is applied to its subject matter. In either case construction must follow and resort must be had to the. aids furnished by extrinsic circumstances. The prohibition of the law is not against their being used for interpretation but against making them the instruments of contradiction of an expressed contractual intent. The old *72distinction between patent and latent ambiguities, never more than 'an unprofitable subtlety’ (Thayer, Preliminary Treatise on Evidence, 424), 'so far as contracts are concerned * * * may be wholly disregarded.’ 2 Williston, Contracts, § 627.” To hold as plaintiffs would have us do (169 Minn. 143), “would thwart the one purpose of construction which is to ascertain the intention of the parties themselves. It Avould 'sacrifice rationalism to that 'primitive formalism Avhich vieAvs the document as a self-contained and self-operative formula’ rather than an instrument the Avliole of Avhich is in relation to extrinsic matter, and concerning Avhich very frequently there can be no adequate understanding of purpose without first an understanding of the extrinsic facts and things upon which the Avriting must have its only operation.”

After all, as Ave said in City of Marshall v. G-regoire, 193 Minn. 188, 198-199, 259 N. W. 377, 381-382, 98 A. L. R. 711:

“A written contract is little more than a scrap of writing save as it operates with legal effect on matters extraneous to itself. Construction deals with the dynamic rather than the static phase of the instrument. The question is not just Avhat words mean literally but how they are intended to operate practically on the subject matter. Thus, seemingly plain language becomes susceptible of construction, and frequently requires it, if ambiguity appears when attempt is made to operate the contract.”

That is the situation here. The trust agreement has become “susceptible of construction” because “ambiguity appears when attempt is made to operate the contract.”

The order is affirmed.

I. M. Olsen, Justice

(dissenting).

I am unable to agree that this court should make a neAv contract for the parties and so change either the policy or the trust agreement as to substitute a neAv beneficiary. A man can have only one Avife. If, while married, a man fraudulently and in violation of law, goes through a marriage ceremony with another woman, she does not become his wife, however innocent such Avoman may be of *73any wrongdoing. She cannot inherit from the man who has wronged her or claim any benefits as his wife. Much is said in the opinion as to the wrong done to the innocent woman whom he purported to marry. Nothing is said about the wrong done to the lawful wife. To have her husband abandon her and then purport to marry another, and live in cohabitation with such other, ivas about as great a wrong as any man could inflict upon his wife. While there are some intimations that there may have been some unpleasant incidents in the Soper family life because of the husband’s habits in using liquor to excess, there is nothing to show that the wife was in any way to blame.

The contract in this case designates the “wife” as the one to whom the money was to be paid. I am unable to construe this word to mean anyone else than the only wife of Soper then living.

Soper’s suicide is readily explainable. He had committed two felonies in this state. One was bigamy and, assuming that the clerk of court did his duty, perjury was committed in obtaining a marriage license here. About two years before Soper’s suicide his brother had discovered that he was alive and in Minneapolis. There was constant danger of his situation becoming known and being investigated. He was an educated man, had been a teacher in a .commercial school, and was a good business man. He was fully aware of what he had been doing.

As to the trust company’s liability, there are other questions in the case which I do not discuss.

DANA, Justice.

[¶ 1] Kenneth Irving, Jr. appeals from the summaiy judgment entered in the Superior Court (Kennebec County, Kravchuk, C.J.) in favor of the Town of Clinton on Irving’s breach of contract claim. Because we conclude that an express condition precedent to the contract did not occur, we affirm the judgment.

[¶ 2] The underlying facts in this ease are not in dispute. On June 19,1996, Irving and a majority of the Town’s selectmen signed a document entitled “Snow Plowing and Road *142Sanding Contract” which provided that Irving would maintain the Town’s roads from October 1996 to May 1997 in return for $107,723.96. Paragraph 13 of the document states:

13. VOTER APPROVAL:

This contract is contingent upon voter approval (Article 11, Highway Dept. Account dated June 25,1996).

The Town held its 1996 annual town meeting on June 25, 1996, at which the residents voted on Article 11, which stated in full: “To see if the town will vote to raise and appropriate the sum of $236,503.00 for the Highway Department Account.” The annual town report, which had been distributed to residents and was available at the meeting, contained a detailed breakdown of the highway department budget, including an appropriation for $107,860 for plowing. At the meeting a voter moved to amend Article 11 to reduce the snow removal line from $107,860 to $99,999. The amendment passed and the Article was approved as amended. The Town then offered Irving the snowplowing contract at the reduced amount, which he refused, opting instead to file the breach of contract lawsuit that is the subject of this appeal.

[¶ 3] The Town moved for a summary judgment, and the court concluded that because the selectmen did not have the authority to contract on behalf of the municipality under the Town’s governmental structure, no contract was ever entered into that could be the subject of a breach. The court essentially held that the proposed contract constituted an offer by Irving that was rejected by the voters and that Irving never accepted the Town’s counteroffer of $99,999. Accordingly, the court entered a summary judgment for the Town, and this appeal followed.

[¶ 4] We need not address Irving’s argument that the Town selectmen possess the authority to enter into contracts on behalf of the Town to carry out necessary governmental functions such as snowplowing.1 Even if such authority exists the contingency provided for in paragraph 13 of the parties’ contract was never met. The contract was made expressly contingent on the approval of the voters at the annual town meeting. The voters did not approve the contract as written and appropriated a lesser amount of money for snow removal. An elementary rule of contract law is that the nonoccurrence of a condition discharges the parties from their duties under the contract. Restatement (Second) of Conteacts § 225 (1981). Because the Town’s duty to pay Irving for his snowplowing services was discharged by the failure of the Town’s voters to approve the contract as written, the court properly entered a summary judgment in favor of the Town.

The entry is:

Judgment affirmed.

In an action to recover damages for breach of contract, the defendant appeals from (1) an order of the Supreme Court, Queens County (Grays, J.), entered October 18, 2012, which denied its motion for summary judgment dismissing the complaint, and (2) a judgment of the same court entered April 8, 2014, which, upon a decision of the same court dated August 23, 2013, made after a nonjury trial, is in favor of the plaintiff and against it in the principal sum of $209,235.36.

Ordered that the appeal from the order is dismissed; and it is further,

Ordered that the judgment is revérsed, on the law and the facts, and the complaint is dismissed; and it is further,

Ordered that one bill of costs is awarded to the defendant.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of the judgment in the action (see Matter of Aho, 39 NY2d 241, 248 [1976]). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501 [a] [1]).

In 2000, the defendant entered into a contract with the City of New York Department of Sanitation (hereinafter the City) to construct a garage (hereinafter the project). In August 2003, the defendant entered into a subcontract with the plaintiff, pursuant to which the plaintiff was to furnish and install five elevators for the project. Subsequently, in 2010, the plaintiff commenced this action against the defendant to recover dam*931ages allegedly incurred as a result of delays in the performance of the work.

After a nonjury trial, the Supreme Court found that the plaintiff was entitled to delay damages in the principal sum of $209,235.36. It rejected the defendant’s contention that the plaintiff waived its claim for delay damages by failing to comply with a contractual notice requirement. We reverse.

“In reviewing a determination rendered after a nonjury trial, the power of this Court is as broad as that of the trial court, and this Court may render the judgment it finds warranted by the facts, taking into account that in a close case the trial court had the advantage of seeing the witnesses and hearing the testimony” (Palombo Group v Poughkeepsie City Sch. Dist., 125 AD3d 620, 621 [2015] [internal quotation marks omitted]; see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499 [1983]; Plato Gen. Constr. Corp./EMCO Tech Constr. Corp., JV, LLC v Dormitory Auth. of State of N.Y., 89 AD3d 819, 823 [2011]).

“Where a construction contract contains ‘a condition precedent-type notice provision setting forth the consequences of a failure to strictly comply,’ strict compliance will be required” (Peter Scalamandre & Sons, Inc. v FC 80 Dekalb Assoc., LLC, 129 AD3d 807, 808 [2015], quoting Northgate Elec. Corp. v Barr & Barr, Inc., 61 AD3d 467, 468-469 [2009]; see A.H.A. Gen. Constr. v New York City Hous. Auth., 92 NY2d 20, 30-31 [1998]; Rifenburg Constr., Inc. v State of New York, 90 AD3d 1498, 1498-1499 [2011]). Express conditions precedent “must be literally performed; substantial performance will not suffice,” and “[f]ailure to strictly comply with such provisions generally constitutes waiver of a claim” (Rifenburg Constr., Inc. v State of New York, 90 AD3d at 1499 [internal quotation marks omitted]; see Peter Scalamandre & Sons, Inc. v FC 80 Dekalb Assoc., LLC, 129 AD3d at 808-809).

Here, article 11 of the primary contract between the defendant and the City, which is incorporated into the subcontract, contains such a condition-precedent type notice provision. Article 11.1.2 requires a contractor claiming to be sustaining delay damages to submit, “within forty-five (45) Days from the time such damages are first incurred, and every thirty (30) Days thereafter for as long as such damages are incurred, verified statements of the details and amounts of such damages, together with documentary evidence of such damages.” Moreover, pursuant to article 11.2, a failure “to strictly comply with the requirements of Article . . . 11.1.2 shall be deemed a conclusive waiver by the Contractor of any and all claims for damages for delay arising from such condition.”

*932The letters and emails relied upon by the Supreme Court and the plaintiff did not strictly comply with the contractual notice requirement, since they did not contain verified statements of the amount of delay damages allegedly sustained by the plaintiff and were unsupported by documentary evidence (see Marcor Remediation, Inc. v County of Broome, 46 AD3d 1066, 1068 [2007]; Tug Hill Constr. v County of Broome, 270 AD2d 755, 757 [2000]). Contrary to the plaintiff’s contention, the defendant’s actual knowledge of the delay and the claims did not relieve the plaintiff of its obligation to serve a proper notice of claim, and the defendant’s alleged breach of the subcontract did not excuse the plaintiff from complying with the notice requirements under the circumstances of this case (see A.H.A. Gen. Constr. v New York City Hous. Auth., 92 NY2d at 31; Accadia Site Contr., Inc. v Erie County Water Auth., 115 AD3d 1351, 1352-1353 [2014]; S.J. Fuel Co., Inc. v New York City Hous. Auth., 73 AD3d 413, 414 [2010]).

Accordingly, the Supreme Court should have found that the plaintiff failed to strictly comply with the notice requirement, and dismissed the complaint on that ground.

The plaintiff’s remaining contentions have been rendered academic in light of our determination.

Mastro, J.P., Chambers, Dickerson and Connolly, JJ., concur.

*997AMENDED OPINION *

Chief Justice DURRANT,

opinion of the Court:

introduction

11 Utah law recognizes two different kinds of promises parties make in a contract, covenants and conditions. Covenants are mutual obligations the parties bargain for in their agreement, and the failure to perform them generally gives rise to remedies for breach of contract. Conditions, on the other hand, are events not certain to occur, but which must occur before either party has a duty to perform under the contract. In contrast to covenants, the failure of a condition relieves the parties of any performance obligations, and neither may seek remedies for breach.

12 In this case, Mind & Motion entered into a real estate purchase contract (REPC) with Celtic Bank to buy a large piece of property the bank had acquired from a developer through foreclosure. Although the county had approved plans to construct condominiums on the land, the developer had not recorded the plats for the first phase of development. Accordingly, the REPC required Celtic Bank to record the plats by a certain date, and it allowed Mind & Motion sole discretion to extend the recording deadline as necessary to allow Celtic Bank enough time to record. It further provided that any extension of the recording deadline automatically extended the deadline to complete the transaction.

13 After extending the recording deadline once, Mind & Motion declined to extend it a second time and sued Celtic Bank for breach of contract. The district court granted summary judgment in Mind & Motion's favor, concluding that the recording provision was unambiguously a covenant, not a condition. It then awarded Mind & Motion $100,000 in liquidated damages and more than $200,000 in attorney fees, as well as the return of Mind & Motion's $100,000 earnest money deposit. On appeal, Celtic Bank argues that summary judgment was improper because the recording provision is unambiguously a condition. And 'in the alternative, it maintains that the agreement contains facial and latent ambiguities.

T4 We agree with the district court that the language of the contract lends itself to just one plausible reading-that the recording provision is a covenant, not a condition. Under our caselaw, although it is true that the fulfillment of a condition often hinges on the action of a third party, conditions are also typically phrased using explicitly conditional terms. Here, Celtic Bank is correct that its ability to meet the recording deadline depended on when county officials decided to approve its application. But the- parties employed explicitly mandatory language to characterize the recording provision, while using explicitly conditional language elsewhere in the agreement. Based on these features of the REPC, we conclude that there is no plausible way to read the recording provision as anything other than a covenant.

] 5 We also conclude that there is no latent ambiguity in the REPC. Latent ambiguities arise only where unambiguous language mislabels a person or thing due to a collateral matter. And parties cannot make such a showing by merely submitting affidavits that set forth their own subjective understanding of particular terms. Here, Celtic Bank has not argued that any terms in the agreement fail to reflect the parties' intent due to some collateral matter. And even if it had, the only extrinsic evidence Celtic Bank submits are affidavits from bank officers describing their own subjective understanding of the recording provision. We therefore reject Celtic Bank's latent ambiguity argument and affirm the district court's summary judgment ruling,

Background

6 On appeal from a motion for summary Judgment, we view the facts and all reasonable inferences from them in the light most favorable to the nonmoving party, Celtic Bank.1 The following recitation of the facts is consistent with that standard.

*998T7 Celtic Bank aequired fourteen acres of real estate in Huntsville, Utah, through a foreclosure sale. The prior owner had partially completed four condominium units and received approval to construct more than 160 additional units, But the prior owner had not recorded. the plat for the next phase of development, and neither had Celtic Bank after assuming ownershlp of the property.

18 Mind & .Motion agreed to purchase the property from Celtic Bank in a real estate purchase contract executed May 25, 2010. The REPC described the property as including "[alpproximately 14 acres with recorded PRUD for 168 units" and stated that Celtic bank was selling the property "AS RECORDED." The agreement required Mind & Motion to deposit $100,000 in earnest money with an escrow agent, which was fully refundable if the property did not pass a buyer's inspection. Mind & Motion could complete its inspections anytime within fifteen days after receiving notice that the property was substantially complete and that Celtic Bank had recorded the plat.

T9 The REPC also provided that Celtic Bank "shall record Phase 1" and "agrees to complete recording of Phase 1" of the development by June 15, 2010. It further provided that Celtic Bank "will, accomplish any necessary construction or repairs required to complete recording of Phase 1." But it granted Mind & Motion "the sole discretion" to extend the deadline "as necessary to allow" Celtic Bank to record. If Mind & Motion extended the deadline, "the Evaluations and Inspection Deadline and the Settlement deadline" would be "automatically extended by the same amount of time."

110 The recording process requires an applicant to obtain approval from a number of different entities. First, the Weber County Planning Commission requires "an applicant to complete a required landscaping or infrastructure improvement prior to any plat recordation or development activity."2 After the planning commission approves a final plat, the commission submits it to the county surveyor, county health department, and county engineer for signatures.3 After the county engineer approves the plat, the engineer submits it to the county attorney and the board of county commissioners for their approval.4 An applicant who jumps through each hoop is entitled to record-county officials do not have discretion to decline an application that complies with the apphcable zoning ordinances.5

T11 The REPC also contained a "time is of the essence clause," which provided that "Iujnless otherwise explicitly stated in this Contract," performance must be completed "by 5:00 PM Mountain Time" on the applicable deadline. The clause also stated that "{plerformance dates and times referenced herein shall not be binding upon title companies, lenders, appraisers, and others not parties to this Contract, except as otherwise agreed to in writing by such non-party."

~ {12 In the event Mind & Motion default, ed, the REPC allowed Celtic Bank to keep the earnest money as liquidated damages. If Celtic Bank defaulted, Mind & Motion would receive back its earnest money and could either sue to specifically enforee the contract or obtain $100,000 in liquidated damages.

13 The day the parties signed the REPC, the planning commission recommended final approval of recording the phase 1 plat. But several entities still needed to approve various aspects of Celtic Bank's application, None of them approved the plat by the June 15 recording deadline, and Mind & Motion accordingly extended it to July 26.

14 That date came and went, however, without the application being approved, and rather than extend the deadline a second time, Mind & Motion claimed Celtic Bank had breached the contract and demanded the return of its earnest money as well as the payment of liquidated damages. Celtic Bank refused to pay, so Mind & Motion filed a breach of contract action. The district court granted Mind & Motion partial summary *999judgment on its breach of contract claim, concluding that the recording provision was unambiguously a covenant, not a. condition. It reasoned that because the REPC phrased Celtic Bank's recording obligation in mandatory terms-the bank "shall record Phase 1"-theré was no plausible way to read the provision as anything other than a covenant. Celtic Bank appeals We have jurisdiction under Utah Code section 78A-8-102(8)(j).

Standard of Review

115 Celtic Bank argues that the REPC's recording provision is unambiguously a condition, not a covenant, and that the district court therefore erred in granting summary judgment in Mind & Motion's favor. In the alternative, the bank argues that the provision is at least reasdnably susceptible to either reading and is therefore facially ambiguous. Additionally, Celtic Bank has urged us to consider affidavits from two of its officers that it argues show a latent ambiguity in the contract We review a district court's decision granting summary judgment for correctness, viewing "the facts and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party. 6 Summary judgment is appropriate when "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law."7 The interpretation of:- a contract is legal question, which we also review for correctness.8

Analysis

116 We conclude that the district court correctly granted summary judgment in Mind & Motion's favor. Although Celtic Bank's ability to meet the recording deadline hinged in large part on the approval of county officials, the parties couched the recording obligation in mandatory language while employing explicitly conditional language elsewhere in the REPC to describe other performance obligations. This shows that Celtic Bank and Mind & Motion, both sophisticated parties, knew how to draft a condition when they so desired. Accordingly, it is not plausible to read Celtic Bank's duty to record the phase 1 plat as anything other than a cove nant, and the REPC is therefore not facially ambiguous.

1 17 We also conclude that Celtic Bank has failed to establish a latent ambiguity in the contract. - Latent ambiguities arise only when a collateral matter-such as trade usage, course of dealing, or linguistic context-shows that a contract's terms mislabel a person or thing or otherwise fail to reflect the parties' intentions. And extrinsic evidence is only relevant to such a determination if it is objective. Here, because Celtic Bank has submitted affidavits from its officers setting forth their own subjective understanding of the agreement, it has failed to submit any credible evidence relevant to establishing a latent ambiguity. For these reasons, we affirm the district court's decision.

I. The REPC Is Unambiguous as to the Nature of Celtic Bank's Recording Obligation

18 Because resolving the parties' dispute hinges on whether the recording obligation is a covenant or a condition, we first discuss the key differences between these types of obligations. We then analyze the relevant provisions of the REPC and conclude that the only plausible way to read Celtic Bank's recording obligation is as a covenant. As we explain in more detail below, this is primarily because the obligation is phrased in explicitly mandatory terms despite the parties' use of conditional language to characterize other performance obligations. For that reason, even though Celtic Bank could not control the precise timing of recordation, the language the parties' employed cannot plausibly be read as creating a conditional obligation. Rather, the plain language of the agreement shows that Celtic Bank agreed to shoulder the same type of regulatory risk businesses routinely assume in such contracts.

*1000A. Covenants ond Conditions

{19 The distinction between covenants and conditions is an important one because each imposes qualitatively different kinds of obligations. A covenant is a "promise[ ] between the parties to the contract about their mutual obligations."9 In essence, covenants are the core bargained-for exchange of an agreement. They create specific legal duties, the violation of which gives rise to remedies for breach of contract.10

120 Conditions are different "A condition is 'an event, not certain to occur, which must occur ... before performance under a contract becomes due.'" 11 We have noted three principal differences between conditions and covenants. First, the parties to the contract have no duty to perform until the condition is fulfilled, so the failure of a condition relieves the parties of all of their contractual duties.12 the parties have no remedy for breach of contract if a condition is not fulfilled, because at that point there is simply no contract to breach.13

21 Third, conditions "typically fall outside the control of the parties to the contract, often requiring some environmental trigger (such as "weather permitting') or action by a third party (such as 'upon the lender's approval') for the contract to begin.14 Stated differently, even if one of the parties has some influence over the fulfillment of a condition, "its incidence usually is a matter of fate or of the decision of one or more third parties" 15 Covenants, by contrast, "are almost always within the control of the contracting parties." 16

122 To determine whether a contractual obligation is a covenant or a condition, we examine the language of the provision in question and the nature of the agreement itself."17 In McArthur v. State Farm Mutual Automobile Insurance Co., for example, we held that an exhaustion clause in an insurance policy was a condition, not a covenant, for two reasons: (1) its fulfillment was outside the control of the contracting parties, and (2) the parties employed conditional language to characterize the exhaustion requirement in the agreement.18 The clause provided in part that the insured would have "NO COVERAGE UNTIL" coverage limits on a separate bodily injury insurance policy had been "USED UP.19 We noted that the "word 'until exemplifies a word[ ] of condition" 20 and that satisfying the exhaustion condition was "dependent on the actions of a non-contracting third party-the liability insurer."21 Accordingly, we concluded that exhaustion of the other policy's limits was "the very event, not certain to occur, which must occur ... before performance under a contract becomes due." 22

123 Our analysis in McArthur indicates that express terms like "unless," "on condition that," "provided that," and "if," often create conditions."23 This implies that more mandatory terms, such as "shall," *1001"must," or "agree," will often create covenants. That is not to say that such terms are talismans-regardless of the precise terms used in the contract, the parties' degree of control over the fulfillment of an obligation remains "a significant indication" of whether the parties intended a performance obligation to be a condition or a covenant.24 But when parties employ mandatory terms to characterize an obligation whose fulfillment hinges on the action of a third party, this may indicate an express assumption by one party of the risk that the condition will remain unfulfilled.25

B. The Recording Obligation Is Unambiguously a Covenant

124 Having set forth the key distinctions between covenants and conditions, we now discuss whether the district court correctly interpreted the REPC's recording provision as a covenant. When interpreting a contract, our task is to ascertain the parties' intent.26 And the best indication of the parties' intent is the ordinary meaning of the contract's terms.?27 Accordingly, "LK the language within the four corners of the contract is unambiguous, the parties' intentions are determined from the plain meaning of the contractual language, and the contract may be interpreted as a matter of law." 28 A contract is facially ambiguous if its terms are "capable of more than one reasonable interpretation because of uncertain meanings of terms, missing terms, or other facial deficiencies." 29 But terms are not ambiguous "simply because one party seeks to endow them with a different interpretation according to his or her own interests." 30 Rather, the proffered alternative interpretations "must be plausible and reasonable in light of the language used.31 4 If the parties' intentions cannot be determined from the face of the contract, "extrinsic evidence must be looked to in order to determine the intentions of the parties," 32

125 Applying these principles, we conclude that the REPC is facially unambig-vous. While Mind & Motion's preferred reading of the agreement is strongly supported by the REPC's plain terms, Celtic Bank's interpretation finds no such support in the language of the contract. Below, we examine each party's proffered interpretation of the REPC in turn.

1. Mind & Motion's Reading of the REPC Is Strongly Supported by the Language of the Agreement '

[ 26 Mind & Motion urges us to affirm the district court's conclusion that the recording provision is unambiguously a covenant, citing the mandatory language in the agreement. For several reasons, we agree that this reading of the REPC receives strong support from the language of the contract.

127 First, the recording provision states that Celtic Bank "shall record [the] Phase 1" plat "no later than 90 calendar days from accepted offer." The next paragraph also states that Celtic Bank "agrees to record" the plat. As we have discussed, when interpreting a contract, we generally give each term its plain and ordinary meaning.*1002 33 And here, Black's Law Dictionary.defines "shall" as "a duty to," "is required to," or "mandatory."34 We have also held that the legislature's use of the word "shall" in statutes - creates mandatory - obligations.35 And while it is true, as Celtic Bank argues, that "shall" can be directory or express a future expectation, it is "the mandatory sense that drafters typically intend and that courts typically uphold."36 - The word “agree” similarly means to "exchange promises" or "to unite in an engagement to do or not do sometlnng 37 Our court of appeals has also 'interpreted the word "agree" to create a covenant rather than a condltlon 38

128 These mandatory terms contrast sharply with the explicitly conditional language in McArthur that we held created a condition.39 There, as we have discussed, the contract provided that no insurance coverage would be provided "until" other coverage had been exhausted. And we noted that the "word 'until' exemplifies a word[ ] of condition." 40 The recording provision, of course, contains no such language.

T 29 Second, not only is the recording obligation phrased in mandatory terms, but the parties used explicitly conditional language in other provisions of 'the REPC. For instance, paragraph eight provides, "Buyer's obligation to purchase under this Contract is conditioned upon Buyer's approval of the content of each of the Seller Disclosures referenced in Section 7 [and] is conditioned upon Buyer's approval of the following tests and evaluations." (Emphasis added). 'This shows that Mind & Motion and Celtic Bank, both sophisticated parties, understood how to consciously identify a condition precedent when they so desired. 41

T30 Finally, the recording provision also must be satisfied by a specific date. The REPC contains a "time is of the essence clause," stating that "performance under each Section of this Contract which references a date shall absolutely be required by 5:00 PM Mountain Time on the stated date." While it is true that deadlines can be coupled with conditions,"42 the REPC explicitly makes all deadlines "absolute ...

T31 Standing alone, language of this kind could conceivably be found to be a conditional obligation, depending on a particular contract's operation and surrounding terms. But together, these features of the REPC--mandatory language, a hard deadline for performance, and other provisions that employ conditional language-strongly suggest that the parties intended the recording provision to operate as covenant, not a condition.

€32 We therefore conclude that Mind & Motion's reading of the contract is strongly supported by the language of the agreement. Consequently, in order for the contract to be facially ambiguous, Celtic Bank's alternative reading must also be reasonably supported by the language of the agreement. For a variety of reasons, however, we conclude that it is not,

*10032. Celtic Bank's Reading of the REPC Receives No Support from the Agreement's Plain Terms -

133 In arguing that the recording provision is a condition, Celtic Bank relies heavily on the fact that the county ultimately controlled the timing of recordation. It argues that "parties may manifest their intent to create a condition 'by clear implication'" and cites MeArthur for the proposition that conditions generally fall outside the control of the contracting parties, "often requiring some environmental trigger ... or action by a third party ... for the contract to begin." 43 And here, Celtic Bank maintains, there is no dispute that it needed approval from the planning commission, engineers, and other county officials before the phase 1 plat could be recorded.44 So even though Celtic Bank "controlled whether it completed the various ... lists of tasks that were prerequisite to the county's approval and recordation process," no ordinance required the county to "approve the Phase 1 plat" by the recording deadline. As a result, Celtic Bank argues, "whether the county approved the Phase 1 plat before the deadline was beyond [its] control." Celtic Bank also argues that none of Mind & Motion's performance obligations became due until the phase 1 plat was recorded, which is consistent with one of the touchstones of conditions precedent we outlined in McArthur.45

{ 34 We have no quarrel with Celtic Bank's description of the recording process. (It seems clear that even if Celtic Bank complied with the county's every demand, the county officials ultimately controlled the timing of the recordation-not Celtic Bank. Celtic Bank is also correct that the deadline for performing many of its obligations under the REPC was automatically extended whenever Mind & Motion extended the recording deadline. But we do not agree that these aspects of the agreement are sufficient to override the explicit mandatory language in the REPC.

- 185 It is .a basic principle of contract law that parties are generally "free to, contract according to their desires in whatever terms they can agree upon." 46 This in-eludes assuming risks that third parties or external environmental cireumstances will fail to conform to the parties' expectations.47 And absent language in the contract to the contrary, "[al party who contracts knowing that governmental permission or license will be required ordinarily assumes the obligation of assuring that permission will be, granted.” 48

136 For example, in Central Utah Water Conservancy District v. Upper East Union Irrigation Co., a water district entered into a contract with several irrigation companies to make specific improvements to its irrigation systems in exchange for rights to the increased water flow.49 The water district failed to complete the promised improvements to its irrigation systems, however, citing "environment[al]l and permitting concerns." 50 The irrigation companies sued for breach of contract, and the district court eventually granted summary judgment in their favor.51 On 'appeal, the water district argued that it was impossible to secure state *1004and federal permits because "[tlhe contemplated design" of the irrigation improvements "was inconsistent" with federal and state regulations.52 We affirmed the district court, holding that the water district "explicitly undertook the obligation of obtaining the necessary permits," so "its performance under the Agreement was not contingent on its ability to do so." 53 In so holding, we noted that by signing a contract providing that the water district "shall obtain all construction permits required by" state and federal law, the water district "assumed the risk that such permits may be difficult, or even impossible, to obtain." 54

137 Like the water district in Central Utah Water, Celtic Bank signed an agreement that phrased its recording obligation in mandatory terms even though fulfilling that obligation required third-party approval. And as even Celtic Bank concedes, so long as its application complied with the applicable zoning ordinances, "the county's eventual approval was nearly guaranteed." So this is not a case where government permits are "difficult, or even impossible, to obtain," and even if it were, the language of the agreement strongly indicates that Celtic Bank "assumed the risk" that its application would not be approved before the recording deadline.55 We therefore conclude that it is simply not plausible to read the recording provision as a condition, and therefore the REPC is not facially ambiguous.

II. There Is No Latent Ambiguity in the REPC '

188 Having concluded that the REPC is not facially ambiguous, we now turn to Celtic Bank's argument that there is a latent ambiguity in the REPC. Celtic Bank relies on language from Ward v. Intermountain Farmers Ass'n for the proposition that "any relevant evidence must be considered" when "determining whether a contract is ambiguous." 56 Accordingly, it urges us to consider affidavits submitted by its chief lending officer and chief executive officer stating that they understood the recording provision as a conditional obligation when they negotiated and signed the REPC.

$39 We decline to consider the affidavits and conclude that there is no latent ambiguity in the REPC. Latent ambiguities arise only where a collateral matter arising after the contract is executed renders otherwise clear terms ambiguous. And affidavits setting forth the parties' subjective understanding of contractual terms are insufficient to make 'this showing. Here, Celtic Bank does not argue that a collateral matter rendered the REPC's terms ambiguous, nor does it offer the type of extrinsic evidence relevant to such a determination,. We therefore reject its argument that the REPC contains a latent ambiguity.

T40 Before addressing Celtic Bank's latent ambiguity argument, we first take the opportunity to clarify the conditions under which latent ambiguities arise and the evidence relevant to establishing them. Unlike facial ambiguities, a "latent ambiguity 'arises from a collateral matter when the document's terms are applied or executed," not from any facial deficiency in the contract's terms."57 So, "bly its very nature, a latent amblgmty is one that cannot be found within the four corners of the document but is only discoverable through the introduction of extrinsic evidence." 58 But we have also recognized that instances where extrinsic evidence is allowed.to "uncover" a latent ambiguity "will prove to be the exception and not *1005the rule." 59 Parties may not simply proffer subjective affidavits setting forth their favored interpretation of otherwise clear terms to create an ambiguity. Rather, the extrinsic evidence must show that due to some collateral matter-trade usage, course of dealing, or some other linguistic particularity that arises in the context of extrinsic collateral matters-the contract's terms mislabel a person or thing, or otherwise fail to reflect the parties' intentions.60

{41 For example, in Watkins v. Ford, a buyer contracted with a car dealership to preorder a Ford concept car, the "GT4O." 61 Before Ford made the cars available for sale, however, it shortened the name to "GT,." 62 When the dealership refused to sell the buyer a GT at the price mentioned in their agreement, the buyer filed suit for breach of contract."63 The district court granted summary judgment in the dealership's favor, holding that the contract unambiguously required the dealership to sell "GT4Os to [the buyer], not the GT's." 64 We reversed, holding that there was a latent ambiguity in the contract.65 We so held because undisputed extrinsic evidence showed "that when the [contract was] executed, both parties were in agreement regarding the particular car for which they were contracting-the production version (eventually designated the Ford 'GT") of Fords concept car, the 'GT4O'"66 So there was "no dispute -as to the identity of the vehicles for which the parties contracted," even though the terms of the agreement failed to correctly reflect their intentions."67

142 As illustrated by Watkins, latent ambiguities do not arise unless matters collateral to the contract cast doubt on the interpretation 'of terms that otherwise appear clear and unambiguous. Such matters may include trade usage, the mislabeling of a person or thing, or linguistic context.68 Parties cannot create a latent ambiguity by simply "seek[ing]l to endow" clear terms "with a different interpretation according to his or her own interests."69 That is, latent ambiguities are objectively verifiable and ordinarily eannot be proven based on the parties' subjective understanding of contractual terms.70 Therefore, affidavits and other evidence that fails to identify a collateral matter are not "relevant" to showing a latent ambiguity, As the Seventh Circuit observed in an opinion authored by Judge Posner, when considering extrinsic ev1dence of a latent am-blglllty » o

the key is the dls‘mnctlon between what might be called "objective": and "subjective" evidence of ambiguity.... By "objective" evidence we mean evidence of ambiguity that can be supplied by disinterested third parties: evidence that there was more than one ship called Peerless, or that *1006a particular trade uses "cotton" in a nonstandard sense, The ability of one of the contracting parties to "fake" such 'evidence, and fool a judge or jury; is limited. By "subjective" evidence we mean the tes-tirhony_ of the parties themselves as to what they believe the contract means. Buch testimony is invariably self-serving, being made by a. party to the lawsuit, and is inherently difficult to verify. "Objective" evidence is admissible to demonstrate that apparently clear contract language means something different from what it seems to mean; "subjective" evidence is inadmissible for this purpose.71

1483 Here,; Celtic Bank has not identified any particular term in the REPC as latently ambiguous, nor has it offered any objective evidence that a collateral matter rendered a term in the recording provision ambiguous. Instead, the bank offers sworn testimony from its chief lending officer asserting generally that he "understood that Mind & Motion had a right ... to terminate the transaction if the Phase 1 plat were not recorded by the deadline," and that "[it was never Celtic Bank's intention to, in effect, gamble that it could record a plat on the Property." Celtic Bank's chief executive officer also makes general assertions in an affidavit that he believed if the plat were not recorded by the deadline, the parties simply "would no longer have a viable transaction to proceed with."

44 Celtic Bank argues that we can consider these affidavits because "this litigation is [al 'collateral matter' that shed{[s] light on the latent ambiguity." But accepting this assertion would broaden the latent ambiguity rule beyond all recognition. If litigation qualified as a collateral matter, any party to a contract dispute could create an ambiguity by going to court and submitting affidavits setting forth their subjective understanding of otherwise unambiguous terms. Contrary to our precedent, this would allow parties "to create ambiguity out of whole cloth," "72 swallowing the general rule prohibiting consideration of extrinsic evidence absent a facial ambiguity. We therefore reject it and decline to consider the affidavits Celtic Bank has submitted. For all these reasons, we conclude that there is no latent ambiguity in the REPC. -

Conclusion

{45 We conclude that Celtic Bank's recording obligation outlined in the REPC is unambiguously a covenant. Even though Celtic Bank could not ultimately control when the county issued its final approval to record the phase 1 development, the recording obligation is framed in mandatory language, and the REPC employs explicitly conditional language elsewhere in the agreement. We also conclude that Celtic Bank has failed to establish a latent ambiguity in the contract. Affidavits that seek to endow otherwise clear language with an alternative meaning are insufficient, We therefore affirm the district court's ruling in its entirety. As a final matter, Mind & Motion has requested it be awarded attorney fees and costs incurred on appeal, and the parties have stipulated to such an award. We accordingly remand for the calculatlon of reasonable fees and costs. ®

Spain, J.

Pursuant to a 2006 ground lease agreement, defendant agreed to construct and open a restaurant on plaintiffs real property, located in Pennsylvania, by March 2009, and to pay plaintiff an annual fixed rent in addition to a percentage of the restaurant’s gross sales. Although defendant has consistently paid the fixed rent on the property, it did not construct the anticipated restaurant, prompting plaintiff to commence this breach of contract action. Plaintiff successfully moved for partial summary judgment on the issue of liability, and defendant now appeals.

We affirm. Defendant does not dispute that plaintiff has established a prima facie case for breach of contract under Pennsylvania law,* but argues that its performance was excused under the agreement’s force majeure provision. “In order to use a force majeure clause as an excuse for non-performance, the event alleged as an excuse must have been beyond the party’s control and not due to any fault or negligence by the nonperforming party” (Martin v Com., Dept. of Envtl. Resources, *1225120 Pa Commw 269, 272, 548 A2d 675 678 [1988]). “Furthermore, the non-performing party has the burden of proof as well as a duty to show what action was taken to perform the contract, regardless of the occurrence of the excuse” (id.; accord Rohm & Haas Co. v Crompton Corp., 2002 WL 1023435, *2, 2002 Phila Ct Com PI LEXIS 20, *6-7 [2002]).

Here, the agreement’s force majeure provision provides: “Except for any payments due [plaintiff] in accordance with this [l]ease, [plaintiff] and/or [defendant] shall be excused for the period of any delay and shall not be deemed in default with respect to the performance of any of the terms, covenants, and conditions of this [l]ease when prevented from so doing by cause or causes beyond the [plaintiffs] and/or [defendant’s] control, which shall include, without limitation, all labor disputes, governmental regulations or controls, fire or other casualty, inability to obtain any material, services, acts of God, or any other cause, whether similar or dissimilar to the foregoing, not within the control of the [plaintiff] and/or [defendant]” (emphasis added). Defendant argues that the “global economic downturn that took hold in 2008” prevented its performance under the contract and, thus, its nonperformance was excused under the force majeure provision. Specifically, defendant relies on an affidavit of its vice-president and corporate controller, attesting that due to the economic crisis that began in early 2008, defendant experienced a drastic decline of its stock price, forcing defendant to reclassify over $500 million of its long term debt and to determine that complying with the lease provisions requiring construction of a new restaurant “would divert needed funds away from meeting debt obligations and leverage thresholds under its loan covenants.” As a result, defendant communicated to plaintiff in March 2008 that it would not construct the store anticipated by the parties’ agreement.

We agree with Supreme Court that the economic factors that led defendant to make this decision cannot, as a matter of law, excuse its nonperformance. “[W]hen the parties have themselves defined the contours of force majeure in their agreement, those contours dictate the application, effect, and scope of force majeure” (Rohm & Haas Co. v Crompton Corp., 2002 WL 1023435, *3, 2002 Phila Ct Com PI LEXIS 20, *9, quoting R & B Falcon Corp. v American Exploration Co., 154 F Supp 2d 969, 973 [SD Tex 2001]). Here, although the parties did, after identifying particular force majeure events, agree on a fairly broad clause by including the language “any other cause, whether similar or dissimilar to the foregoing,” they still expressly limited the contemplated force majeure events to those beyond the control *1226of the nonperforming party. While defendant, of course, had no control over the world economy, the decisions it made with respect to how to cope with the financial downturn— notwithstanding that its options may have been limited— remained within defendant’s power and control. Defendant made a calculated choice to allocate funds to the payment of its debts rather than to perform under the subject lease. Economic factors are an inherent part of all sophisticated business transactions and, as such, while not predictable, are never completely unforeseeable; indeed, “financial hardship is not grounds for avoiding performance under a contract” (Rohm & Haas Co. v Crompton Corp., 2002 WL 1023435, *5, 2002 Phila Ct Com PI LEXIS 20, *14, quoting Macalloy Corp. v Metallurg, Inc., 284 AD2d 227, 227 [2001]; see In re Millers Cove Energy Co., Inc., 62 F3d 155, 158 [6th Cir 1995] [“Courts and commentators generally refuse to excuse lack of compliance with contractual provisions due to economic hardship, unless such a ground is specifically outlined in the contract”]; Morgantown Crossing, L.P. v Manufacturers & Traders Trust Co., 2004 WL 2579613, *6, 2004 US Dist LEXIS 22949, *15 [ED Pa 2004]; Stand Energy Corp. v Cinergy Servs., Inc., 144 Ohio App 3d 410, 416, 760 NE2d 453, 457 [2001] [“worsening economic conditions ... do not qualify as a force majeure”]; Hanover Petroleum Corp. v Tenneco Inc., 521 So 2d 1234, 1239-1240 [La App 3d Cir 1988] [“adverse economic conditions . . . which tend to render performance burdensome and unprofitable do not constitute force majeure”], writ denied 526 So 2d 800 [La 1988]).

Further, having decided not to construct the restaurant as early as March 2008, defendant has failed to demonstrate an attempt to perform, despite the alleged excuse, as required by Pennsylvania law (see Martin v Com., Dept. of Envtl. Resources, 120 Pa Commw at 272, 548 A2d at 678). Accordingly, we conclude that defendant’s performance was not excused under the agreement’s force majeure clause and plaintiff was properly granted partial summary judgment.

Peters, J.E, Stein, McCarthy and Garry, JJ., concur. Ordered that the order is affirmed, with costs. [Prior Case History: 27 Misc 3d 1222(A), 2010 NY Slip Op 50846(U).]

*744OPINION OF THE COURT

Eric N. Vitaliano, J.

Dreams of a honeymoon safari in East Africa dashed offer fresh evidence of how the terror attack on the World Trade Center of September 11, 2001 has shredded the lives of ordinary New Yorkers and has engendered still continuing reverberations in decisional law. What might have ordinarily warranted summary disposition in favor of the safari company and its travel agent, pinning on the traveler the economic burden of trip cancellation, cannot, in the wake of September 11th, be sustained here on their motion for summary judgment.

Defendant Taicoa Corporation, doing business as Micato Safaris (Micato), acknowledges that plaintiff Alexandra Bush contacted Micato about booking a safari. By its admission, Micato referred the plaintiff to defendant ProTravel International, Inc. (ProTravel), a retail travel agent, to arrange for a reservation on one of the various safaris offered by Micato. It is undisputed that, on or about May 8, 2001, the plaintiff booked an African safari travel package for herself and her fiancé through ProTravel with Micato. At that time, it is also undisputed, the plaintiff gave ProTravel an initial 20% deposit in the amount of $1,516. Micato admits that it received the plaintiffs deposit from ProTravel on May 15, 2001. The safari Alexandra Bush selected for husband to be and herself was scheduled to begin on November 14, 2001.

Sixty-four days before the safari’s start, September 11, 2001, the world, as we knew it, came to an end. As a result of the attack on the World Trade Center, other terrorism alerts and airline scares, the plaintiff and her fiancé decided almost immediately to cancel their trip. Further, the plaintiff claims, she endeavored to notify ProTravel of her decision, but, as a result of the interruption of telephone service between Staten Island, where she had fled to safety, and Manhattan, where ProTravel maintained an office in midtown, she was physically unable to cdidfiiunicate her cancellation order until September 27, 2001. ProTravel agrees that the plaintiff did contact it that day and avers it passed along her request to Micato orally and in writing. Micato acknowledged receiving a fax from ProTravel to that effect on October 4, 2001. Thereafter, when the defendants refused to return her deposit, Alexandra Bush sued in this action to get it back.

The defendants, by their Manhattan and Massachusetts counsel, now move for summary judgment dismissing this action. The court notes that it has granted a separate motion permitting counsel from the Massachusetts firm of Rubin, Hay *745& Gould, P.C. to appear pro hac vice to argue this motion for summary judgment. In support of the motion, counsel have appeared for oral argument and submitted four affidavits and two memoranda of law. The court notes that the second affidavit of Patricia Buffolano, dated June 7, 2002, and received by the court on June 10, 2002, is clearly a late submission. Counsel appeared on the June 6, 2002 submission date and did not request an adjournment in order to submit further papers. Nevertheless, the court has considered this affidavit in deciding the motion.

The defendants’ motion hangs on a registration form. A copy of a completed form executed by Alexandra Bush was annexed to the moving affidavits of Joseph Traversa and Patricia Buffolano. Mr. Traversa, the employee of ProTravel who made the plaintiffs travel arrangements, states that the plaintiff completed and signed the form when she booked the safari on May 8, 2001. The form contained the following provision: “I confirm that I have read and agree to the Terms and Conditions as outlined in our brochure.” Also annexed to the moving affidavits was an excerpt the defendants contend was in the “brochure” referenced in the registration form, and which the plaintiff claims she never received, setting forth Micato’s cancellation policy for the safari booked by Ms. Bush. The policy imposes a $50 per person penalty for a cancellation occurring more than 60 days prior to departure. For a cancellation occurring between 30 and 60 days prior to departure, the traveler was subject to a penalty equal to 20% of the total retail tour rate. There is no disagreement that the deposit given by the plaintiff was in an amount equal to 20% of the tour rate.

With a departure date of November 14, 2001, for Alexandra Bush the days of moment under the cancellation policy were September 14, 2001 and October 15, 2001. A cancellation order given by her on or before September 14, 2001, the 61st day prior to departure, would have subjected her to, at worst}i3r$50 per person, i.e., a $100 penalty. Any cancellation after that date but on or before October 15, 2001 would subject her to the greater 20% penalty under the cancellation policy. Using either the September 27, 2001 date Mr. Traversa admits ProTravel received Ms. Bush’s notice of cancellation or the October 4, 2001 date Micato’s general manager, Patricia Buffolano, claims in her affidavit that Micato received written confirmation of the cancellation from ProTravel, the plaintiffs trip cancellation came within the 30- to 60-day prior to departure window that would trigger a 20% penalty for cancellation. On the strength *746of those facts, neither defendant returned the deposit to Alexandra Bush and both now seek summary judgment dismissing her claim.

Without conceding that the cancellation policy the defendants advance as their sword and buckler is either valid or binding on her, Ms. Bush states in her affidavit submitted in opposition to the motion that, beginning on September 12, 2001 and continuing for days thereafter, she attempted to contact the travel agency and that due to difficulties with telephone lines, access to Manhattan and closures of its office, she was unable to speak to someone from ProTravel -until September 27, 2001. All of the phone calls made by the plaintiff to ProTravel were placed from Staten Island. While ProTravel’s reply affidavit protests that it was open for business from September 12th and onward and supplies phone records to show its phones were able to make and receive calls, no evidence is offered to dispute the plaintiffs claim that it was virtually impossible for many days after the terrorist attack to place a call from Staten Island if such call was transmitted via the telephone trunk lines in downtown Manhattan.

In any event, the defendants ultimately argue that all of the horror, heartbreak and hurdles for communications and commerce visited on Alexandra Bush and all New Yorkers in the aftermath of September 11th doesn’t matter, for the thrust of their motion is that a contract is a contract, and that since the cancellation call was received, at best, 13 days late, the plaintiff is not entitled, as a matter of law, to her refund. In an equitable bolster to its position, the defendants also assert that Micato imposes the cancellation penalties to cover costs which it incurs in planning and preparing for a customer’s safari. However, upon oral argument, defendants were unable to set forth what, if. any, expenses had been incurred towards plaintiffs trip, nor when such expenses were incurred. Thereafter, the defendants submitted, in an untimely manner, the further affidavit of Patricia Buffolano, dated June 7, 2002, restating the contention that, prior to receiving notice that Ms. Bush wished to cancel her trip, Micato was required to pay certain expenses. The affidavit, nonetheless, is silent as to when these expenses, and more specifically, whether any such expenses were incurred on or before September 14, 2001, whether any were incurred between September 14 and September 27, 2001 or whether any were incurred during the one-week delay between the time ProTravel received notification of the cancellation, September 27, 2001, and when Micato claims it received notification from ProTravel, October 4, 2001.

*747When the residue has been poured away, the issue distilled here is whether the attack on the World Trade Center and the civil upset of its aftermath in the days that immediately followed excuses Alexandra Bush’s admittedly late notice of cancellation. More to the point, given that effective cancellation on or before September 14, 2001 would have absolved the plaintiff of the 20% cancellation penalty, does Ms. Bush’s sworn statement that she attempted to phone her cancellation notice to ProTravel beginning on September 12, 2001 but did not get through until September 27, 2001 raise a triable issue of fact, which, if resolved in her favor, entitles her to relief from the cancellation penalty provision of the contract?

It is in this context that the motion for summary judgment brought on by the defendants must be considered and it is in this context that they, as the moving parties, must demonstrate that there is no genuine issue of material fact and that they are entitled to judgment as a matter of law pursuant to CPLR 3212. Since summary judgment deprives the litigant of her day in court and is considered to be a drastic remedy, it should not be granted where there is any doubt as to the existence of a material and triable issue of fact. (See Krupp v Aetna Life & Cas. Co., 103 AD2d 252 [2d Dept 1984]; see also Rotuba Extruders v Ceppos, 46 NY2d 223 [1978]; Van Noy v Corinth Cent. School Dist., 111 AD2d 592 [3d Dept 1985].)

A movant for summary judgment has the burden to set forth evidentiary facts sufficient to entitle that party to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact. Failure to make such a showing requires denial of the motion. (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985].) “[Office a moving party has made a prima facie showing of its entitlement to summary judgment, the burden shifts to the opposing party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action.” (Garnham & Han Real Estate Brokers v Oppenheimer, 148 AD2d 493, 494 [2d Dept 1989]; see Friedman v Pesach, 160 AD2d 460 [1st Dept], appeal dismissed 76 NY2d 935 [1990].)

Though it is true that the black letter of the law establishes the rule that “once a party to a contract has made a promise, that party must perform or respond in damages for its failure, even when unforeseen circumstances make performance burdensome” (Kel Kim Corp. v Central Mkts., 70 NY2d 900, 902 [1987]), the rule is not an absolute. Where the “means of performance” have been nullified, making “performance *748objectively impossible,” a party’s performance under a contract will be excused. (Id. at 902; see Conversion Equities v Sherwood House Owners Corp., 151 AD2d 635, 636 [2d Dept 1989].)

Counsel for the defendants at oral argument claimed to understand the difficulties encountered by literally every New Yorker in the wake of the disaster at the World Trade Center, but argue that those difficulties do not constitute a valid excuse for the failure of the plaintiff to cancel the safari before September 15, 2001. The delay until September 27, 2001, they contend, is inexcusable. Putting aside the sheer insensitivity of their argument, the argument fails to come to grips with Alexandra Bush’s sworn claim that the disaster in lower Manhattan, which was unforeseen, unforeseeable and, certainly, beyond her control, had effectively destroyed her ability and means to communicate a timely cancellation under the contract for safari travel she had booked through and with the defendants. To the point, Alexandra Bush claims she could not physically take the steps necessary to cancel on time. Micato and ProTravel, to the contrary, claim she was simply a traveler too skittish to travel after September 11th, who wanted to stick the travel professionals she had retained with the bill for her faint heart. Should the defendants establish that to be the case to the satisfaction of the jury or at a bench trial, they will be entitled to judgment. (See Evanoski v All Around Travel, 178 Misc 2d 693 [App Term, 2d Dept 1998].) They certainly have not established that as a matter of law now.

Furthermore, the plaintiffs claim of excuse because of the frustration of the means of performance is supported, underscored and punctuated by the official actions taken by civil authorities on September 11, 2001 and in the days that followed. On the day of the attack, a state of emergency had been declared by the Mayor of the City of New York, directing the New York City Commissioners of Police, Fire and Health and the Director of Emergency Management to “take whatever steps are necessary to preserve the public safety and to render all required and available assistance to protect the security, well-being and health of the residents of the City.” (NY City Legis Ann, at 355.)1 Simultaneously, the Governor of the State of New York declared a state disaster emergency, directing state officials to “take all appropriate actions to * * * provide *749* * * assistance as necessary to protect the public health and safety.” (Executive Order [Pataki] No. 113 [9 NYCRR 5.113] [2001].)2

*750Particularly on the days at the focal point of the argument here, September 12, 13 and 14, 2001, New York City was in the state of virtual lockdown with travel either forbidden altogether or severely restricted. Precedent is plentiful that contract performance is excused when unforeseeable government action makes such performance objectively impossible. (See Matter of A&S Transp. Co. v County of Nassau, 154 AD2d 456, 459 [2d Dept 1989]; Metpath, Inc. v Birmingham Fire Ins. Co., 86 AD2d 407, 411-412 [1st Dept 1982].) Further, in the painful recognition of the obvious and extraordinary dimensions of the disaster that prevented the transaction of even the most time sensitive business during the days and weeks that followed the September 11th atrocities, the Governor even issued an Executive Order extending the statute of limitations for all civil actions in every court of our state for a period well beyond the times Alexandra Bush claims to have communicated her cancellation and Micato acknowledges it received it. (Exec*751utive Order [Pataki] No. 113.7 [9 NYCRR 5.113.7] [2001].)3 In such light, to even hint that Alexandra Bush has failed to raise *752a triable issue of fact by her argument that the doctrine of impossibility excuses her late cancellation of the safari she booked through ProTravel with Micato borders on the frivolous.

It is not hyperbole to suggest that on September 11, 2001, and the days that immediately followed, the City of New York was on a wartime footing, dealing with wartime conditions. The continental United States had seen nothing like it since the Civil War and, inflicted by a foreign foe, not since the War of 1812. Accordingly, it is entirely appropriate for this court to consider and follow wartime precedents which developed the law of temporary impossibility. Stated succinctly, where a supervening act creates a temporary impossibility, particularly of brief duration, the impossibility may be viewed as merely excusing performance until it subsequently becomes possible to perform rather than excusing performance altogether. (See generally Annotation, Modern Status of the Rules Regarding Impossibility of Performance in Action for Breach of Contract, 84 ALR2d 12, § 14 [a] [1962].)

The law of temporary and/or partial impossibility flows from the theory that when a promisor has obligated himself to perform certain acts, which, when taken together are impossible, the promisor should not be excused from being “called upon to perform in so far as he is able to do so.” (Miller v Vanderlip, 285 NY 116, 124 [1941].) The First Department’s opinion in the World War I era case of Erdreich v Zimmermann (190 App Div 443 [1st Dept 1920]) is extremely instructive. In Erdreich, the plaintiff purchased German war bonds, which, at the time of purchase on December 14, 1916, was entirely lawful since the United States had not yet entered the conflict. Because of the war, however, the bonds could not *753be delivered due to a naval blockade. In April 1917, after a state of war had been declared between the United States and Germany, the plaintiff demanded his money back for the defendant seller’s failure to deliver the bonds. Almost two years later, with the bonds essentially worthless, the plaintiff sued for rescission and return of his purchase payment. Appellate Term held that the delivery of the bonds, though legally contracted for, would have been unlawful under wartime rules and, therefore, the contract should have been rescinded for impossibility. The Appellate Division reversed, holding that “at most, performance of [the] contract was suspended during the existence of hostilities” (at 452), and the performance, which had been temporarily excused for impossibility during hostilities, was now required. The plaintiff was entitled, therefore, to his worthless bonds, but not the return of his purchase payment. This holding is in harmony with even earlier precedents acknowledging the fog of war and its upset of civil society:

“Where performance can be had, without contravening the laws of war, the existence of the contract is not imperiled, and even if performance is impossible the contract may still, when partly executed, be preserved by ingrafting necessary qualifications upon it, or suspending its impossible provisions [i.e., physical impossibility to cancel timely] * * * . If the contract * * * can be saved while the war lasts, it should be.” (Mutual Benefit Life Ins. Co. v Hillyard, 37 NJL 444, 468-469.)

So too here, if Alexandra Bush can establish objective impossibility of performance at trial, she is entitled to, at minimum, a reasonable suspension of her contractual obligation to timely cancel, if not outright excuse of her untimely cancellation.4

Clearly, the plaintiff has raised, in any event, sufficient material issues of fact concerning both her inability to cancel by September 15, 2001 the safari she had booked and the reasonableness of her cancellation on September 27, 2001, all as a result of the terrorist attack on the World Trade Center, the *754damage the attack caused to communications and transportation in the City of New York and the actions of government in declaring and enforcing a state of emergency in the city and beyond. Moreover, the failure of the defendants to establish that they sustained any loss whatsoever on account of the plaintiffs failure to act in the 13-day intervening period between September 14 and September 27, 2001 further supports the reasonableness of the plaintiffs late cancellation as well as the court’s determination that triable issues of fact are present.

In the instant matter, the court finds that the plaintiff has raised sufficient material issues of fact concerning her inability to cancel the contract by September 15, 2001, which would, if established, provide a defense to the argument of the defendants, so as to warrant denial of this motion. Accordingly, for the reasons stated in the opinion of the court, the motion of defendants ProTravel and Micato for summary judgment dismissing this action is denied in its entirety.

POSNER, Circuit Judge.

These appeals bring before us various facets of a dispute between Northern Indiana Public Service Company (NIPSCO), an electric utility in Indiana, and Carbon County Coal Company, a partnership that until recently owned and operated a coal mine in Wyoming. In 1978 NIPSCO and Carbon County signed a contract whereby Carbon County agreed to sell and NIPSCO to buy approximately 1.5 million tons of coal every year for 20 years, at a price of $24 a ton subject to various provisions for escalation which by 1985 had driven the price up to $44 a ton.

NIPSCO’s rates are regulated by the Indiana Public Service Commission. In 1983 NIPSCO requested permission to raise its rates to reflect increased fuel charges. Some customers of NIPSCO opposed the increase on the ground that NIP-SCO could reduce its overall costs by buying more electrical power from neighboring utilities for resale to its customers and producing less of its own power. Although the Commission granted the requested increase, it directed NIPSCO, in orders issued in December 1983 and February 1984 (the “economy purchase orders”), to make a good faith effort to find, and wherever possible buy from, utilities that would sell electricity to it at prices lower than its costs of internal generation. The Commission added ominously that “the adverse effects of entering into long-term coal supply contracts which do not allow for renegotiation and are not requirement contracts, is a burden which must rest squarely on the shoulders of NIPSCO management.” Actually the contract with Carbon County did provide for renegotiation of the contract price — but one-way renegotiation in favor of Carbon County; the price fixed in the contract (as adjusted from time to time in accordance with the escalator provisions) was a floor. And the contract was indeed not a requirements contract: it specified the exact amount of coal that NIPSCO must take over the 20 years during which the contract was to remain in effect. NIP-SCO was eager to have an assured supply of low-sulphur coal and was therefore willing to guarantee both price and quantity.

Unfortunately for NIPSCO, as things turned out it was indeed able to buy electricity at prices below the costs of generating electricity from coal bought under the contract with Carbon County; and because of the “economy purchase orders,” of which it had not sought judicial review, NIPSCO could not expect to be allowed by the Public Service Commission to recover in its electrical rates the costs of buying coal from Carbon County. NIPSCO therefore decided to stop accepting coal deliveries from Carbon County, at least for the time being; and on April 24, 1985, it brought this diversity suit against Carbon County in *268a federal district court in Indiana, seeking a declaration that it was excused from its obligations under the contract either permanently or at least until the economy purchase orders ceased preventing it from passing on the costs of the contract to its ratepayers. In support of this position it argued that the contract violated section 2(c) of the Mineral Lands Leasing Act of 1920, 30 U.S.C. § 202, because of Carbon County’s affiliation with a railroad (Union Pacific), and that in any event NIPSCO’s performance was excused or suspended— either under the contract’s force majeure clause or under the doctrines of frustration or impossibility — by reason of the economy purchase orders.

On May 17, 1985, Carbon County counterclaimed for breach of contract and moved for a preliminary injunction requiring NIPSCO to continue taking delivery under the contract. On June 19, 1985, the district judge granted the preliminary injunction, from which NIPSCO has appealed. Also on June 19, rejecting NIPSCO’s argument that it needed more time for pretrial discovery and other trial preparations, the judge scheduled the trial to begin on August 26, 1985. Trial did begin then, lasted for six weeks, and resulted in a jury verdict for Carbon County of $181 million. The judge entered judgment in accordance with the verdict, rejecting Carbon County’s argument that in lieu of damages it should get an order of specific performance requiring NIPSCO to comply with the contract. Upon entering the final judgment the district judge dissolved the preliminary injunction, and shortly afterward the mine — whose only customer was NIP-SCO — shut down. NIPSCO has appealed from the damage judgment, and Carbon County from the denial of specific performance and from the district judge’s order staying execution of the damage judgment without requiring NIPSCO to post a bond guaranteeing payment of the judgment should NIPSCO lose on appeal.

NIPSCO’s appeal from the grant of the preliminary injunction is moot, the injunction having been dissolved last October when the final judgment was entered. Lifting a preliminary injunction does not always make an appeal from the grant of the injunction moot; if the injunction was improper, the defendant may be entitled to damages. See Fed.R.Civ.P. 65(c); Coyne-Delany Co. v. Capital Development Bd., 717 F.2d 385 (7th Cir.1983). But all that NIPSCO is asking for in appealing from the grant of the preliminary injunction is that the injunction be dissolved, and that request is moot. Later we shall see that another issue in the case, relating to the judge’s instructions to the jury on force majeure, is also moot.

We are left with the following issues to decide: (1) whether the district judge abused his discretion in refusing to give NIPSCO more time to prepare for trial, (2) whether the contract was unenforceable as a violation of the Mineral Lands Leasing Act, (3) whether NIPSCO’s obligations under the contract were excused or suspended by virtue of either the force majeure clause or (4) the doctrines of frustration or impracticability, (5) whether Carbon County was entitled to specific performance of the contract, and (6) whether NIPSCO should be required to post a bond in order to be allowed to stave off the execution of the damage judgment until the appellate process is over.

1. When he issued the preliminary injunction, two months into the case, the district judge scheduled the trial to begin in two months. This was a tight deadline for the completion of pretrial discovery, though NIPSCO is wrong to argue that it violates a local rule of the Northern District of Indiana. Rule 12(d) provides that “in all civil cases except in patent, antitrust, and trade-mark cases, all discovery shall be completed within five months after the case is at issue.” Five months is the maximum, not the minimum. With somewhat greater force NIPSCO argues that this case is extraordinary, even though it is not a patent, antitrust, or trademark case. Although the issues are no more complex than they would be if the contract had been for $1 million rather than $1 billion (the *269estimated amount that NIPSCO would have owed over the life of the contract if the contract had not been cancelled), the large stakes justified a more careful and thorough preparation than if the stakes had been smaller: the consequences of an erroneous judgment were greater, so the optimal expenditure on avoiding error was greater. NIPSCO particularly complains about its inability to conduct thorough discovery of Carbon County’s relationship to the Union Pacific Railroad — a relationship that as we shall see is the basis of NIP-SCO’s defense based on the Mineral Lands Leasing Act — and of Carbon County’s theory of damages. And the only reason the district judge gave for drastically compressing the pretrial period was that his criminal trial calendar was so crowded (with cases not deferrable, because of the requirements of the Speedy Trial Act) that if he did not try the case in August 1985 he would have to put it over to April 1986—which still would have been only a year after the complaint was filed.

Nevertheless we do not think the district judge abused his discretion in refusing to postpone the trial. Matters of trial management are for the district judge; we intervene only when it is apparent that the judge has acted unreasonably. The occasions for intervention are rare. At a time when a combination of very heavy caseloads with the pressure exerted by the Speedy Trial Act to take criminal cases out of order and try them first makes managing federal district courts’ dockets trickier than ever before, district judges must be allowed considerable leeway in scheduling civil cases, and therefore in denying continuances that would disrupt their schedules. Afram Export Corp. v. Metallurgiki Halyps, S.A., 772 F.2d 1358, 1366 (7th Cir.1985); see also Fontenot v. Upjohn Co., 780 F.2d 1190, 1193 (5th Cir.1986); cf. Kagan v. Caterpillar Tractor Co., 795 F.2d 601, 608-09 (7th Cir.1986).

Of course some cases are so immense that it would be unrealistic to insist on trial after only two months for pretrial discovery, or even to insist on rigid adherence to deadlines in local rules. But this is not such a case. To begin with, the two-month figure is misleading. NIPSCO had decided in 1984 to stop accepting coal deliveries from Carbon County and had retained late in that year — nine months or more before the trial began — the large Chicago law firm that would later conduct the trial with the help of the much smaller Indiana firm that is NIPSCO’s regular counsel. The Chicago firm has between 40 and 50 lawyers in its trial department. The timing of the suit was in the control of NIPSCO and its lawyers, and they could do much of their trial preparation before filing suit. True, they could not have conducted discovery then. Discovery is sometimes allowed before suit is filed, see Fed.R.Civ.P. 27(a), but not in the circumstances of this case. The defendants could, however, have begun discovery when they filed their suit, four months before the beginning of the trial and almost six months before the end; the latter is the relevant interval, because the judge interrupted the trial to allow NIP-SCO to complete its discovery on the damage issue.

No case holds that the denial of a continuance in such circumstances is reversible error. The common element in cases that reverse such denials is the existence of changed circumstances to which a party cannot reasonably be expected to adjust without an extension of time. In Sutherland Paper Co. v. Grant Paper Box Co., 183 F.2d 926, 931 (3d Cir.1950), the denial of certain pretrial motions just two weeks before the trial of a complex patent case, combined with the illness of the inventor, made it impossible for the defendants to complete their pretrial preparation without a continuance that the judge denied. In Smith-Weik Machinery Corp. v. Murdock Machine & Engineering Co., 423 F.2d 842 (5th Cir.1970), the defendant’s principal counsel became ill on the eve of trial, and its local counsel was not sufficiently well informed about the facts and pertinent law to conduct the trial by himself on such short notice. In Fenner v. Dependable Trucking Co., 716 F.2d 598, 600-02 (9th Cir.1983), the judge refused to grant a con*270tinuanee to enable the defendants’ expert to rebut evidence newly discovered by the plaintiff. Other “surprise” cases are Wells v. Rushing, 755 F.2d 376, 380-81 (5th Cir.1985); Menendez v. Perishable Distributors, Inc., 763 F.2d 1374, 1379-80 (11th Cir.1985), and Shelak v. White Motor Co., 581 F.2d 1155, 1159 (5th Cir.1978) (and see Judge Rubin’s powerful dissent, id. at 1161-64). The element of changed circumstances is missing here.

Lack of precedent need not defeat NIPSCO’s argument for reversal; NIPSCO can appeal to first principles, and ask us to forge new ground. But this we shall not do, when NIPSCO is unable to show how it was prejudiced by the compressed period for discovery and pretrial preparation, given the amount of time it had to plan the case before it filed suit and the large staff of lawyers at its disposal to conduct discovery once the suit began. On the view that we take of its defense of illegality, nothing NIPSCO could reasonably have been expected to obtain from additional discovery on the linkage between Carbon County and the Union Pacific Railroad could change the result of the case. As for damages, it is noteworthy both that NIP-SCO does not complain in this court about the size of the jury verdict and that in April 1984 it had estimated that cancelling the contract would cost it $300 million in damages if Carbon County could show that the cancellation was a breach of contract. At argument NIPSCO’s counsel acknowledged that the compression of the time for pretrial preparation was as harmful to Carbon County as to itself. Even if as a matter of abstract justice the judge should have given NIPSCO more time for conducting discovery, his refusal to do so would not be reversible error unless there was a reasonable probability that it caused NIPSCO to lose the case, see Fed.R.Civ.P. 61; Fontenot v. Upjohn Co., supra, 780 F.2d at 1194; Menendez v. Perishable Distributors, Inc., supra, 763 F.2d at 1380, and there is no indication of that. Finally, in arguing against the grant of a preliminary injunction NIPSCO had said that having to continue taking coal under the contract would be very costly to it; and if so it should have welcomed an early trial. Business Ass’n of University City v. Landrieu, 660 F.2d 867, 877-78 (3d Cir.1981), upheld the denial of a continuance in parallel circumstances.

Justified public concern with the expenses and delays of modern litigation requires reexamination of traditional attitudes about the big case — one of which is that such a case cannot be tried without leisurely pretrial preparation. Despite the abbreviated period for pretrial discovery in the present case, both parties had an adequate opportunity, which they used, to obtain all the evidence they needed for the trial and to scrutinize the opponent’s evidence closely. Rather than believing that the district judge abused the broad discretion that our system gives trial judges in the management of litigation, we find nothing to criticize in the dispatch with which this big case was brought to judgment.

2. Section 2(c) of the Mineral Lands Leasing Act of 1920 provides in pertinent part that “no company or corporation operating a common-carrier railroad shall be given or hold a permit or lease under the provisions of this chapter [relating to federal lands] for any coal deposits except for its own use for railroad purposes____” Oddly in this litigious age, no reported decision has interpreted section 2(c) in the 66 years since its enactment. NIPSCO contends that if the statute is not to be made a dead letter, it must be read to forbid a railroad’s affiliate to hold a mineral lease or permit on federal lands. Roughly 15 percent of Carbon County’s projected output for the contract with NIPSCO was to come from federal lands that Carbon County had a permit to mine, and Carbon County is a partnership of two firms (each with a half interest in the partnership), Dravo Coal Company and Rocky Mountain Energy Company, the latter a wholly owned subsidiary of the Union Pacific Corporation, whose principal subsidiary is the Union Pacific Railroad Company.

*271When the contract was made back in 1978, the Department of Interior took the view that section 2(c) did not require the automatic piercing of corporate veils, and hence did not invalidate leases by subsidiaries or other affiliates of railroads unless the affiliate was an “alter ego” of the railroad, meaning that their corporate separateness was a paper formality with no business or economic significance. In 1980 the Department of Justice, while recommending to Congress that section 2(c) be repealed as an anachronism, advised it that the section does reach affiliates, and in 1982 the Department of the Interior adopted this interpretation, though only for prospective application. Railroad Affiliates and Coal Leasing, 89 I.D. 610 (1982).

No one doubts that section 2(c) reaches a lease by a railroad’s alter ego. The statutory language, “company ... operating a ... railroad,” can without contortion be interpreted to cover a situation where the railroad sets up a dummy corporation to hold a mineral lease on federal lands and places control of the mining operations in the railroad’s management; if such facile evasions could not be prevented, the statute would have very little consequence. By way of comparison consider the effort of the Federal Communications Commission to make its requirement that communications common carriers conduct their terminal equipment business through separate subsidiaries a meaningful one by forbidding the subsidiary and the carrier to share staff or facilities. See Illinois Bell Tel Co. v. FCC, 740 F.2d 465, 473-74 (7th Cir.1984). But if section 2(c) merely covers the railroad plus its alter egos, NIPSCO must lose, for Carbon County is not the alter ego of the Union Pacific Railroad. In recent years the railroad has generated only about half of Union Pacific Corporation’s total revenues; and the corporation’s Rocky Mountain subsidiary is only a 50 percent partner in Carbon County and the other partner both is unrelated to the Union Pacific family and was an active partner in the venture. Even if we treated the holding company as the alter ego of the railroad, we could not treat Carbon County so, if only because an equal partner cannot call the tune when the other partner is active, knowledgeable, and independent.

But does section 2(c) go beyond alter egos to embrace affiliates of railroads? It was enacted out of a fear that if railroads were allowed to own coal mines they would discriminate in transportation against competing coal mines which depended on rail transportation; this was thought to have happened in the anthracite mine fields of the eastern United States. See 58 Cong. Rec. 4739 (1919) (remarks of Sen. LaFol-lette); United States v. Reading Co., 253 U.S. 26, 40 S.Ct. 425, 64 L.Ed. 760 (1920). Since the railroads owned their coal mines through subsidiaries rather than directly, it is indeed true that the purpose of section 2(c) could not be fully achieved unless “company ... operating a ... railroad” were interpreted to mean “company ... affiliated with a ... railroad.” And strained as this interpretation might seem from a linguistic standpoint, other strained statutory interpretations have been adopted where necessary to prevent a statute’s evident, but imperfectly expressed, purpose, whether of inclusion or exclusion, from being too easily defeated. Yet so patent is the oversight — given the corporate form in which the eastern railroads had held their coal mines, the narrow interpretation the Supreme Court had given the parallel “commodities clause” of the Interstate Commerce Act in United States ex rel. Attorney Gen’l v. Delaware & Hudson Co., 213 U.S. 366, 413-14, 29 S.Ct. 527, 538, 53 L.Ed. 836 (1909), and the fact that an earlier version of the bill that became section 2(c) referred explicitly to subsidiaries and affiliates — that one suspects it was deliberate. The proponents of cracking down on railroads’ ownership of coal mines must not have had the votes to get a fully effective statute. We note that United States v. Reading Co., supra, 253 U.S. at 60-62, 40 S.Ct. at 433, as interpreted in United States v. Elgin, Joliet & Eastern Ry., 298 U.S. 492, 501-02, 56 S.Ct. 841, 844, 80 L.Ed. 1300 (1936), became the source of an “alter ego” interpretation of the com*272modities clause which the Department of the Interior then borrowed for section 2(c) of the Mineral Lands Leasing Act. Perhaps no broader interpretation of the section can be squared with its language and history.

Support for this conclusion is found in the peculiar pattern of railroad land holdings in the West, described in Leo Sheep Co. v. United States, 440 U.S. 668, 672-77, 99 S.Ct. 1403, 1406-08, 59.L.Ed.2d 677 (1979). Beginning in 1862, Congress, in an effort to induce the Union Pacific to build a transcontinental railroad, had granted the Union Pacific large tracts of land along the projected railroad right of way. To reduce the cost to the government, Congress configured the grant in a checkerboard pattern: the Union Pacific got alternate blocks of land, and as a result every block granted to the Union Pacific was surrounded by federal land and every block of federal land was surrounded by Union Pacific land. The idea was that the federal government would benefit equally with Union Pacific from any appreciation in land values that was brought about by the creation of the railroad. The checkerboard pattern created problems for coordinated development, and Congress in 1920 may not have wanted to inhibit the development of contiguous lands by preventing the Union Pacific from obtaining mineral leases for subsidiaries already engaged in mining on the railroad’s own land. The complications caused by the checkerboard grant, as well as the obsolescence of the monopoly concerns (possibly exaggerated even in 1920) that had led to the passage of section 2(c), are what persuaded the Justice Department to recommend repealing the statute.

All this leaves in doubt whether section 2(c) reaches affiliate relationships short of alter egoism (on the distinction between a mere affiliate and an alter ego in other legal settings see, e.g., Crest Tankers, Inc. v. National Maritime Union, 796 F.2d 234 (8th Cir.1986)); but even if it does, the relationship here is so attenuated that one may doubt whether Carbon County should even be called an affiliate of the Union Pacific Railroad. And even if Carbon County should not have been granted a permit to mine coal on federal land, this would not allow NIPSCO to avoid its obligations under the contract. To begin with, assuming there is a violation of section 2(c) lurking somewhere in the background, the contract itself is not illegal. The statute does not regulate sales of coal mined on federal land. It prohibits railroads from holding leases or permits to mine coal on those lands (other than for the railroad’s own use — an anachronistic exception in the age of the diesel), but says nothing about sales of the coal. And it is not the sale that conceivably offends the statute but the seller’s affiliation — a problem that could be solved, without termination of the contract, by Union Pacific Corporation’s selling Rocky Mountain Energy Company. Moreover, Carbon County’s mine is mainly on private land. Apparently there is not enough coal on that land to supply the entire contract; and the contract requires Carbon County to supply the coal for the contract from this mine. Nevertheless the contract could not be thought illegal in its entirety. At most NIPSCO could claim an abatement of some of the contract damages, representing profits that would have accrued from the sale of the coal mined on public land. NIPSCO claimed no such abatement.

Since this is not a case where the contract itself is illegal — as it would be if it were a contract in restraint of trade and therefore a violation of section 1 of the Sherman Act, or a contract to commit a bank robbery and therefore a criminal conspiracy — it is not governed by Kaiser Steel Corp. v. Mullins, 455 U.S. 72, 77-83, 102 S.Ct. 851, 856-59, 70 L.Ed.2d 833 (1982). Kaiser agreed to make extra contributions to a union welfare fund if Kaiser failed to adhere to an allegedly illegal boycott; the Court sustained the defense of illegality to a suit to enforce the agreement. The extra contributions were in effect a penalty for abandoning the boycott; the underlying agreement that the penalty was designed to enforce was thus an agreement to participate in the boycott. See also Somerset *273 Importers, Ltd. v. Continental Vintners, 790 F.2d 775 (9th Cir.1986). In contrast, the contract in this case is not “intrinsically illegal,” Trustees of the Operative Plasterers’ and Cement Masons’ Local Union Officers & Employees Pension Fund v. Journeyman Plasterers’ Protective & Benevolent Soc’y, Local Union No. 5, 794 F.2d 1217, 1220 (7th Cir.1986); and the defense of illegality does not come into play just because a party to a lawful contract (here a contract to supply coal to an electric utility) commits unlawful acts to carry out his part of the bargain. See, e.g., Michigan Millers Mutual Fire Ins. Co. v. Canadian Northern Ry., 152 F.2d 292, 297 (8th Cir.1945); Drost v. Professional Building Service Corp., 153 Ind.App. 273, 279, 286 N.E.2d 846, 850 (1972).

Second, supposing that the contract does violate section 2(c) of the Mineral Lands Leasing Act, this does not necessarily make it unenforceable. This issue, too, is one of federal rather than state law, though we have no reason to think Indiana law would require a different resolution of it; federal and state law on the contract defense of illegality — the latter well described in Farnsworth, Contracts §§ 5.5, 5.6 (1982) — seem quite similar. When the statute is federal, federal law determines not only whether the statute was violated but also, if so, and assuming the statute itself is silent on the matter, the effect of the violation on the enforceability of the contract. Walsh v. Schlecht, 429 U.S. 401, 407-08, 97 S.Ct. 679, 684-85, 50 L.Ed.2d 641 (1977); Kelly v. Kosuga, 358 U.S. 516, 519, 79 S.Ct. 429, 431, 3 L.Ed.2d 475 (1959); Sola Electric Co. v. Jefferson Electric Co., 317 U.S. 173, 176, 63 S.Ct. 172, 174, 87 L.Ed. 165 (1942); cf. Kaiser Steel Corp. v. Mullins, supra, 455 U.S. at 77, 102 S.Ct. at 856.

But when we ask what is the federal rule on illegality as a contract defense, we find, alas, that the course of decision has not run completely true. Compare, for example, the hard line taken in government-contract cases such as United States v. Mississippi Valley Generating Co., 364 U.S. 520, 563-66, 81 S.Ct. 294, 316-17, 5 L.Ed.2d 268 (1961), where the defense seems almost automatic (see also Comdisco, Inc. v. United States, 756 F.2d 569, 576 (7th Cir.1985); but cf. United States v. Medico Industries, Inc., 784 F.2d 840, 845 (7th Cir.1986)), with the very soft line taken in antitrust cases such as Kelly v. Kosuga, supra, and Delta Marina, Inc. v. Plaquemine Oil Sales, Inc., 644 F.2d 455, 458-59 (5th Cir.1981); but cf. Kaiser Steel Corp. v. Mullins, supra, 455 U.S. at 79-82, 102 S.Ct. at 857-59. The best generalization possible is that the defense of illegality, being in character if not origins an equitable and remedial doctrine, is not automatic but requires (as NIPSCO’s counsel acknowledged at argument) a comparison of the pros and cons of enforcement. See Jackson Purchase Rural Electric Coop. Ass’n v. Local Union 816, Int’l Brotherhood of Electrical Workers, 646 F.2d 264, 267 (6th Cir.1981); cf. 15 Williston, A Treatise on the Law of Contracts § 1767, at pp. 264-65 (Jaeger 3d ed. 1972).

There are, after all, statutory remedies (e.g., cancellation of the lease or permit, see 30 U.S.C. § 188(b)) for violations of section 2(c); the question is whether there should be an additional, a judge-made, remedy. To decide whether there should be, we must consider the reciprocal dangers of overdeterrenee and underdeterrence. Applied too strictly, the doctrine that makes the unenforceability of a contract an additional remedy for the violation of a statute can produce a disproportionately severe sanction; and the overdeterrence of illegality is as great a danger to freedom and prosperity as underdeterrence. The benefits of enforcing the tainted contract — benefits that lie in creating stability in contract relations and preserving reasonable expectations — must be compared with the costs in forgoing the additional deterrence of behavior forbidden by statute that is brought about by refusing to let the violator enforce the contract.

The balance in this case favors enforcement. This makes it irrelevant whether the district judge improperly instructed the *274jury that in order to uphold the defense of illegality, it must find both that Carbon County was an alter ego of the railroad and that NIPSCO had been injured by the violation of section 2(c), or even whether the contract itself could be viewed as illegal under any interpretation of the statute. The interpretation of section 2(c) by the Departments of Justice and the Interior as embracing mere affiliates reversed the Department of the Interior’s previous interpretation and was sufficiently unexpected to lead the Department to make the new interpretation prospective only — and the contract in this case had been signed years earlier. In any event the violation of section 2(c) (if any) was trivial given the attenuated linkage between the Union Pacific Railroad and Carbon County, and so far as appears completely harmless. No competitor of Union Pacific in the railroad business, and no competitor of Rocky Mountain Energy Company in the coal business who might be dependent on Union Pacific to transport his coal — no competitor of any member of the Union Pacific “family,” however broadly defined — has complained that Carbon County is violating section 2(c). Nor has the Department of the Interior or the Department of Justice. Nor has any customer of any of the entities involved (however peripherally) in this lawsuit. Compare National Licorice Co. v. NLRB, 309 U.S. 350, 364-66, 60 S.Ct. 569, 577-78, 84 L.Ed. 799 (1940); Republic Airlines, Inc. v. United Air Lines, Inc., 796 F.2d 526, 528 (D.C.Cir.1986). Only NIPSCO complains.

Section 2(c) is an anachronism — a regulatory statute on which the sun set long ago. It could serve as Exhibit A to Dean Cala-bresi’s proposal that courts be empowered to invalidate obsolete statutes without having to declare them unconstitutional. See Calabresi, A Common Law for the Age of Statutes (1982). We do not believe that we have the power to declare a constitutional statute invalid merely because we, or for that matter everybody, think the statute has become obsolete. But the question in this case is not whether section 2(c) is enforceable but whether an alleged violation of the statute makes a contract unenforceable, and the obsolescence of the statute may be relevant to that determination.

NIPSCO does not argue that Carbon County’s alleged violation of the statute hurt NIPSCO or that invalidating this contract under section 2(c) would help anyone, anywhere, at any time. The only consequence, other than to the parties to this suit, would be to throw a cloud of uncertainty over hundreds, perhaps thousands, of contracts for the supply of coal by firms affiliated with railroads, and to inject uncertainty into the contracting process generally. Persons negotiating contracts would have to worry about whether their contract might someday be found to have violated some old, little-known, and newly reinterpreted statute. Lawyers would benefit from the need to do more legal research before signing a contract, but no one else would. We conclude that the Mineral Lands Leasing Act is not a defense to the enforcement of this contract.

3. The contract permits NIPSCO to stop taking delivery of coal “for any cause beyond [its] reasonable control ... including but not limited to ... orders or acts of civil ... authority ... which wholly or partly prevent ... the utilizing ... of the coal.” This is what is known as a force majeure clause. See, e.g., Northern Illinois Gas Co. v. Energy Coop., Inc., 122 Ill.App.3d 940, 949-52, 78 Ill.Dec. 215, 223-24, 461 N.E.2d 1049, 1057-58 (1984). NIP-SCO argues that the Indiana Public Service Commission’s “economy purchase orders” prevented it, in whole or part, from using the coal that it had agreed to buy, and it complains that the district judge instructed the jury incorrectly on the meaning and application of the clause. The complaint about the instructions is immaterial. The judge should not have put the issue of force majeure to the jury. It is evident that the clause was not triggered by the orders.

All that those orders do is tell NIPSCO it will not be allowed to pass on fuel costs to its ratepayers in the form of higher rates if *275it can buy electricity cheaper than it can generate electricity internally using Carbon County’s coal. Such an order does not “prevent,” whether wholly or in part, NIP-SCO from using the coal; it just prevents NIPSCO from shifting the burden of its improvidence or bad luck in having incorrectly forecasted its fuel needs to the backs of the hapless ratepayers. The purpose of public utility regulation is to provide a substitute for competition in markets (such as the market for electricity) that are naturally monopolistic. Suppose the market for electricity were fully competitive, and unregulated. Then if NIPSCO signed a long-term fixed-price fixed-quantity contract to buy coal, and during the life of the contract competing electrical companies were able to produce and sell electricity at prices below the cost to NIPSCO of producing electricity from that coal, NIPSCO would have to swallow the excess cost of the coal. It could not raise its electricity prices in order to pass on the excess cost to its consumers, because if it did they would buy electricity at lower prices from NIP-SCO’s competitors. By signing the kind of contract it did, NIPSCO gambled that fuel costs would rise rather than fall over the life of the contract; for if they rose, the contract price would give it an advantage over its (hypothetical) competitors who would have to buy fuel at the current market price. If such a gamble fails, the result is not force majeure.

This is all the clearer when we consider that the contract price was actually fixed just on the downside; it put a floor under the price NIPSCO had to pay, but the escalator provisions allowed the actual contract prices to rise above the floor, and they did. This underscores the gamble NIPSCO took in signing the contract. It committed itself to paying a price at or above a fixed minimum and to taking a fixed quantity at that price. It was willing to make this commitment to secure an assured supply of low-sulphur coal, but the risk it took was that the market price of coal or substitute fuels would fall. A force majeure clause is not intended to buffer a party against the normal risks of a contract. The normal risk of a fixed-price contract is that the market price will change. If it rises, the buyer gains at the expense of the seller (except insofar as escalator provisions give the seller some protection); if it falls, as here, the seller gains at the expense of the buyer. The whole purpose of a fixed-price contract is to allocate risk in this way. A force majeure clause interpreted to excuse the buyer from the consequences of the risk he expressly assumed would nullify a central term of the contract.

The Indiana Public Service Commission is a surrogate for the forces of competition, and the economy fuel orders are a device for simulating the effects in a competitive market of a drop in input prices. The orders say to NIPSCO, in effect: “With fuel costs dropping, and thus reducing the costs of electricity to utilities not burdened by long-term fixed-price contracts, you had better substitute those utilities’ electricity for your own when their prices are lower than your cost of internal generation. In a freely competitive market consumers would make that substitution; if you do not do so, don’t expect to be allowed to pass on your inflated fuel costs to those consumers.” Admittedly the comparison between competition and regulation is not exact. In an unregulated market, if fuel costs skyrocketed NIPSCO would have a capital gain from its contract (assuming the escalator provisions did not operate to raise the contract price by the full amount of the increase in fuel costs, a matter that would depend on the cause of the increase). This is because its competitors, facing higher fuel costs, would try to raise their prices for electricity, thus enabling NIPSCO to raise its price, or expand its output, or both, and thereby increase its profits. The chance of this “windfall” gain offsets, on an ex ante (before the fact) basis, the chance of a windfall loss if fuel costs drop, though NIPSCO it appears was seeking a secure source of low-sulphur coal rather than a chance for windfall gains. If as is likely the Public Service Commission would require NIPSCO to pass on any capital gain from an advantageous contract to the *276ratepayers (which is another reason for thinking NIPSCO wasn’t after windfall gains — it would not, in all likelihood, have been allowed to keep them), then it ought to allow NIPSCO to pass on to them some of the capital loss from a disadvantageous contract — provided that the contract, when made, was prudent. Maybe it was not; maybe the risk that NIPSCO took was excessive. But all this was a matter between NIPSCO and the Public Service Commission, and NIPSCO did not seek judicial review of the economy purchase orders.

If the Commission had ordered NIPSCO to close a plant because of a safety or pollution hazard, we would have a true case of force majeure. As a regulated firm NIPSCO is subject to more extensive controls than unregulated firms and it therefore wanted and got a broadly worded force majeure clause that would protect it fully (hence the reference to partial effects) against government actions that impeded its using the coal. But as the only thing the Commission did was prevent NIPSCO from using its monopoly position to make consumers bear the risk that NIPSCO assumed when it signed a long-term fixed-price fuel contract, NIPSCO cannot complain of force majeure; the risk that has come to pass was one that NIPSCO voluntarily assumed when it signed the contract.

4. The district judge refused to submit NIPSCO’s defenses of impracticability and frustration to the jury, ruling that Indiana law does not allow a buyer to claim impracticability and does not recognize the defense of frustration. Some background (on which see Farnsworth, Contracts §§ 9.5-9.7 (1982)) may help make these rulings intelligible. In the early common law a contractual undertaking unconditional in terms was not excused merely because something had happened (such as an invasion, the passage of a law, or a natural disaster) that prevented the undertaking. See Paradine v. Jane, Aleyn 26, 82 Eng. Rep. 897 (K.B.1647). Excuses had to be written into the contract; this is the origin of force majeure clauses. Later it came to be recognized that negotiating parties cannot anticipate all the contingencies that may arise in the performance of the contract; a legitimate judicial function in contract cases is to interpolate terms to govern remote contingencies — terms the parties would have agreed on explicitly if they had had the time and foresight to make advance provision for every possible contingency in performance. Later still, it was recognized that physical impossibility was irrelevant, or at least inconclusive; a prom-isor might want his promise to be unconditional, not because he thought he had superhuman powers but because he could insure against the risk of nonperformance better than the promisee, or obtain a substitute performance more easily than the promisee. See Field Container Corp. v. ICC, 712 F.2d 250, 257 (7th Cir.1983); Holmes, The Common Law 300 (1881). Thus the proper question in an “impossibility” case is not whether the promisor could not have performed his undertaking but whether his nonperformance should be excused because the parties, if they had thought about the matter, would have wanted to assign the risk of the contingency that made performance impossible or uneconomical to the promisor or to the promisee; if to the latter, the promisor is excused.

Section 2-615 of the Uniform Commercial Code takes this approach. It provides that “delay in delivery ... by a seller ... is not a breach of his duty under a contract for sale if performance as agreed has been made impracticable by the occurrence of a contingency the non-occurrence of which was a basic assumption on which the contract was made....” Performance on schedule need not be impossible, only infeasible — provided that the event which made it infeasible was not a risk that the promisor had assumed. Notice, however, that the only type of promisor referred to is a seller; there is no suggestion that a buyer’s performance might be excused by reason of impracticability. The reason is largely semantic. Ordinarily all the buyer has to do in order to perform his side of the bargain is pay, and while one can think of all sorts of reasons why, when the time *277came to pay, the buyer might not have the money, rarely would the seller have intended to assume the risk that the buyer might, whether through improvidence or bad luck, be unable to pay for the seller’s goods or services. To deal with the rare case where the buyer or (more broadly) the paying party might have a good excuse based on some unforeseen change in circumstances, a new rubric was thought necessary, different from “impossibility” (the common law term) or “impracticability” (the Code term, picked up in Restatement (Second) of Contracts § 261 (1979)), and it received the name “frustration.” Rarely is it impracticable or impossible for the payor to pay; but if something has happened to make the performance for which he would be paying worthless to him, an excuse for not paying, analogous to impracticability or impossibility, may be proper. See Restatement, supra, § 265, comment a.

The leading case on frustration remains Krell v. Henry, [1903] 2 K.B. 740 (C.A.). Krell rented Henry a suite of rooms for watching the coronation of Edward VII, but Edward came down with appendicitis and the coronation had to be postponed. Henry refused to pay the balance of the rent and the court held that he was excused from doing so because his purpose in renting had been frustrated by the postponement, a contingency outside the knowledge, or power to influence, of either party. The question was, to which party did the contract (implicitly) allocate the risk? Surely Henry had not intended to insure Krell against the possibility of the coronation’s being postponed, since Krell could always relet the room, at the premium rental, for the coronation’s new date. So Henry was excused.

NIPSCO is the buyer in the present case, and its defense is more properly frustration than impracticability; but the judge held that frustration is not a contract defense under the law of Indiana. He relied on an Indiana Appellate Court decision which indeed so states, Ross Clinic, Inc. v. Tabion, 419 N.E.2d 219, 223 (Ind.App.1981), but solely on the basis of an old decision of the Indiana Supreme Court, Krause v. Board of Trustees, 162 Ind. 278, 283-84, 70 N.E. 264, 265 (1904), that doesn’t even discuss the defense of frustration and anyway precedes by years the recognition of the defense by American courts. At all events, the facts of the present case do not bring it within the scope of the frustration doctrine, so we need not decide whether the Indiana Supreme Court would embrace the doctrine in a suitable case.

For the same reason we need not decide whether a force majeure clause should be deemed a relinquishment of a party’s right to argue impracticability or frustration, on the theory that such a clause represents the integrated expression of the parties’ desires with respect to excuses based on supervening events; or whether such a clause either in general or as specifically worded in this case covers any different ground from these defenses; or whether a buyer can urge impracticability under section 2-615 of the Uniform Commercial Code, which applies to this suit. Regarding the last of these questions, although the text says “seller,” Official Comment 9 to the section says that in some circumstances “the reason of the present section may well apply and entitle the buyer to the exemption,” and many courts have done just that. See, e.g., Nora Springs Coop. Co. v. Brandau, 247 N.W.2d 744 (Iowa 1976); Lawrance v. Elmore Bean Warehouse, Inc., 108 Idaho 892, 894, 702 P.2d 930, 932 (Idaho App.1985); Northern Illinois Gas Co. v. Energy Coop., Inc., supra, 122 Ill.App.3d at 954, 78 Ill.Dec. at 226, 461 N.E.2d at 1060. The rub is that Indiana has not adopted the “Official Comments” to the UCC. It has its own official comments, and they seem critical of Official Comment 9: “Comment 9 discusses ‘exemption’ for the buyer, but the text of the section is applicable only to sellers.” Burns Ind.Stat.Ann. § 26-1-2-615, Ind. Comment. It may be, therefore, that buyers cannot use section 2-615 in Indiana. But it is not clear that this has substantive significance. Section 1-103 of the Uniform Commercial Code authorizes the courts to *278apply common law doctrines to the extent consistent with the Code — this is the basis on which NIPSCO is able to plead frustration as an alternative defense to section 2-615; and the essential elements of frustration and of impracticability are the same. With section 2-615 compare Restatement, supra, §§ 261 (impossibility/impracticability) and 265 (frustration); and see id., § 265, comment a. NIPSCO gains nothing by pleading section 2-615 of the Uniform Commercial Code as well as common law frustration, and thus loses nothing by a ruling that buyers in Indiana cannot use section 2-615.

Whether or not Indiana recognizes the doctrine of frustration, and whether or not a buyer can ever assert the defense of impracticability under section 2-615 of the Uniform Commercial Code, these doctrines, so closely related to each other and to force majeure as well, see International Minerals & Chemical Corp. v. Llano, Inc., 770 F.2d 879, 885-87 (10th Cir.1985), cannot help NIPSCO. All are doctrines for shifting risk to the party better able to bear it, either because he is in a better position to prevent the risk from materializing or because he can better reduce the disutility of the risk (as by insuring) if the risk does occur. Suppose a grower agrees before the growing season to sell his crop to a grain elevator, and the crop is destroyed by blight and the grain elevator sues. Discharge is ordinarily allowed in such cases. See, e.g., Matousek v. Galligan, 104 Neb. 731, 178 N.W. 510 (1920); Pearce-Young-Angel Co. v. Charles R. Allen, Inc., 213 S.C. 578, 50 S.E.2d 698 (1948); cf. Olbum v. Old Home Manor, Inc., 313 Pa.Super. 99, 459 A.2d 757 (1983). The grower has every incentive to avoid the blight; so if it occurs, it probably could not have been prevented; and the grain elevator, which buys from a variety of growers not all of whom will be hit by blight in the same growing season, is in a better position to buffer the risk of blight than the grower is.

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. As we have already noted, a fixed-price contract is an explicit assignment of the risk of market price increases to the seller and the risk of market price decreases to the buyer, and the assignment of the latter risk to the buyer is even clearer where, as in this case, the contract places a floor under price but allows for escalation. If, as is also the case here, the buyer forecasts the market incorrectly and therefore finds himself locked into a disadvantageous contract, he has only himself to blame and so cannot shift the risk back to the seller by invoking impossibility or related doctrines. See Farnsworth, supra, at 680 and n. 18; White & Summers, Handbook of the Law Under the Uniform Commercial Code 133 (2d ed. 1980). It does not matter that it is an act of government that may have made the contract less advantageous to one party. See, e.g., Connick v. Teachers Ins. & Annuity Ass’n, 784 F.2d 1018, 1022 (9th Cir.1986); Waegemann v. Montgomery Ward & Co., 713 F.2d 452, 454 (9th Cir.1983). Government these days is a pervasive factor in the economy and among the risks that a fixed-price contract allocates between the parties is that of a price change induced by one of government’s manifold interventions in the economy. Since “the very purpose of a fixed price agreement is to place the risk of increased costs on the promisor (and the risk of decreased costs on the promisee),” the fact that costs decrease steeply (which is in effect what happened here — the cost of generating electricity turned out to be lower than NIPSCO thought when it signed the fixed-price contract with Carbon County) cannot allow the buyer to walk away from the contract. In re Westinghouse Electric Corp. Uranium Contracts Litigation, 517 F.Supp. 440, 453 (E.D.Va.1981); cf. Neal-Cooper Grain Co. v. Texas Gulf Sulphur Co., 508 F.2d 283, 293 (7th Cir.1974).

*2795. This completes our consideration of NIPSCO’s attack on the damages judgment and we turn to Carbon County’s cross-appeal, which seeks specific performance in lieu of the damages it got. Carbon County’s counsel virtually abandoned the cross-appeal at oral argument, noting that the mine was closed and could not be reopened immediately — so that if specific performance (i.e., NIPSCO’s resuming taking the coal) was ordered, Carbon County would not be able to resume its obligations under the contract without some grace period. In any event the request for specific performance has no merit. Like other equitable remedies, specific performance is available only if damages are not an adequate remedy, Farnsworth, supra, § 12.6, and there is no reason to suppose them inadequate here. The loss to Carbon County from the breach of contract is simply the difference between (1) the contract price (as escalated over the life of the contract in accordance with the contract’s escalator provisions) times quantity, and (2) the cost of mining the coal over the life of the contract. Carbon County does not even argue that $181 million is not a reasonable estimate of the present value of the difference. Its complaint is that although the money will make the owners of Carbon County whole it will do nothing for the miners who have lost their jobs because the mine is closed and the satellite businesses that have closed for the same reason.. Only specific performance will help them.

But since they are not parties to the contract their losses are irrelevant. Indeed, specific performance would be improper as well as unnecessary here, because it would force the continuation of production that has become uneconomical. Cf. Farnsworth, supra, at 817-18. No one wants coal from Carbon County’s mine. With the collapse of oil prices, which has depressed the price of substitute fuels as well, this coal costs far more to get out of the ground than it is worth in the market. Continuing to produce it, under compulsion of an order for specific performance, would impose costs on society greater than the benefits. NIPSCO’s breach, though it gave Carbon County a right to damages, was an efficient breach in the sense that it brought to a halt a production process that was no longer cost-justified. See Lake River Corp. v. Carborundum Co., 769 F.2d 1284, 1289 (7th Cir.1985); Thyssen, Inc. v. S.S. Fortune Star, 777 F.2d 57, 63 (2d Cir.1985) (Friendly, J.). The reason why NIPSCO must pay Carbon County’s loss is not that it should have continued buying coal it didn’t need but that the contract assigned to NIPSCO the risk of market changes that made continued deliveries uneconomical. The judgment for damages is the method by which that risk is being fixed on NIPSCO in accordance with its undertakings.

With continued production uneconomical, it is unlikely that an order of specific performance, if made, would ever actually be implemented. If, as a finding that the breach was efficient implies, the cost of a substitute supply (whether of coal, or of electricity) to NIPSCO is less than the cost of producing coal from Carbon County’s mine, NIPSCO and Carbon County can both be made better off by negotiating a cancellation of the contract and with it a dissolution of the order of specific performance. Suppose, by way of example, that Carbon County’s coal costs $20 a ton to produce, that the contract price is $40, and that NIPSCO can buy coal elsewhere for $10. Then Carbon County would be making a profit of only $20 on each ton it sold to NIPSCO ($40-$20), while NIPSCO would be losing $30 on each ton it bought from Carbon County ($40-$10). Hence by offering Carbon County more than contract damages (i.e., more than Carbon County’s lost profits), NIPSCO could induce Carbon County to discharge the contract and release NIPSCO to buy cheaper coal. For example, at $25, both parties would be better off than under specific performance, where Carbon County gains only $20 but NIPSCO loses $30. Probably, therefore, Carbon County is seeking specific performance in order to have bargaining leverage with NIPSCO, and we can think of no reason why the law should give it such *280leverage. We add that if Carbon County obtained and enforced an order for specific performance this would mean that society was spending $20 (in our hypothetical example) to produce coal that could be gotten elsewhere for $10 — a waste of scarce resources.

As for possible hardships to workers and merchants in Hanna, Wyoming, where Carbon County’s coal mine is located, we point out that none of these people were parties to the contract with NIPSCO or third-party beneficiaries. They have no legal interest in the contract. Cf. Local 1330, United Steel Workers of America v. United States Steel Corp., 631 F.2d 1264, 1279-82 (6th Cir.1980); Serrano v. Jones & Laughlin Steel Co., 790 F.2d 1279, 1289 (6th Cir.1986). Of course the- consequences to third parties of granting an injunctive remedy, such as specific performance, must be considered, and in some cases may require that the remedy be withheld. See Weinberger v. Romero-Barcelo, 456 U.S. 305, 312-13, 102 S.Ct. 1798, 1803, 72 L.Ed.2d 91 (1982); Shondel v. McDermott, 775 F.2d 859, 868 (7th Cir.1985); Duran v. Elrod, 760 F.2d 756, 759 (7th Cir.1985); Donovan v. Robbins, 752 F.2d 1170, 1176 (7th Cir.1985). The frequent references to “public interest” as a factor in the grant or denial of a preliminary injunction invariably are references to third-party effects. See, e.g., Punnett v. Carter, 621 F.2d 578, 587-88 (3d Cir.1980). But even though the formal statement of the judicial obligation to consider such effects extends to orders denying as well as granting injunctive relief, see, e.g., Kershner v. Mazurkiewicz, 670 F.2d 440, 443 (3d Cir.1982) (en banc), the actuality is somewhat different: when the question is whether third parties would be injured by an order denying an injunction, always they are persons having a legally recognized interest in the lawsuit, so that the issue really is the adequacy of relief if the injunction is denied. In Mississippi Power & Light Co. v. United Gas Pipe Line Co., 760 F.2d 618 (5th Cir.1985), for example, a public utility sought a preliminary injunction against alleged overcharges by a supplier. If the injunction was denied and later the utility got damages, its customers would be entitled to refunds; but for a variety of reasons explained in the opinion, refunds would not fully protect the customers’ interests. The customers were the real parties in interest on the plaintiff side of the case, and their interests had therefore to be taken into account in deciding whether there would be irreparable harm (and how much) if the preliminary injunction was denied. See id. at 623-26. Carbon County does not stand in a representative relation to the workers and businesses of Hanna, Wyoming. Treating them as real parties in interest would evade the limitations on the concept of a third-party beneficiary and would place the promisor under obligations potentially far heavier than it had thought it was accepting when it signed the contract. Indeed, if we are right that an order of specific performance would probably not be carried out — that instead NIPSCO would pay an additional sum of money to Carbon County for an agreement not to enforce the order — it becomes transparent that granting specific performance would make NIPSCO liable in money damages for harms to non-parties to the contract, and it did not assume such liability by signing the contract. Cf. H.R. Moch Co. v. Rensselaer Water Co., 247 N.Y. 160, 159 N.E. 896 (1928).

Moreover, the workers and merchants in Hanna assumed the risk that the coal mine would have to close down if it turned out to be uneconomical. The contract with NIP-SCO did not guarantee that the mine would operate throughout the life of the contract but only protected the owners of Carbon County against the financial consequences to them of a breach. As Carbon County itself emphasizes in its brief, the contract was a product of the international oil cartel, which by forcing up the price of substitute fuels such as coal made costly coal-mining operations economically attractive. The OPEC cartel is not a source of vested rights to produce substitute fuels at inflated prices.

6. The last issue is the judge’s refusal to force NIPSCO to post a $181 million *281bond as a condition of obtaining a stay of execution of the damage judgment pending NIPSCO’s appeal. The issue is not moot, because our, decision upholding the judgment will not become final until NIPSCO has exhausted all its rights of further review, and meanwhile Carbon County will continue to incur whatever risk is created by the absence of a bond.

There are two grounds for rejecting Carbon County’s appeal. The first is the cross-appeal, which seeks to substitute specific performance for the damage judgment. A party that it trying to obtain specific performance in lieu of damages cannot at the same time attempt to execute a damage judgment. Bronson v. La Crosse & Milwaukee R.R., 68 U.S. 405, 409-10, 1 Wall. 405, 409-10, 17 L.Ed. 616 (1863); Price v. Franklin Investment Co., 574 F.2d 594, 597 (D.C.Cir.1978). Yet the reason for an appeal bond is to give the plaintiff security while execution is postponed. If he does not want to execute the damage judgment, because he hopes for something better, he gives up nothing by waiting till the appeals are over with before executing the damage judgment— there is no quid for the quo of a bond paid for by the defendant-appellant. Although supersedeas bonds have sometimes been granted in such cases, see New York v. Shore Realty Corp., 763 F.2d 49, 51 (2d Cir.1985); Mid-Jersey Nat’l Bank v. Fidelity-Mortgage Investors, 518 F.2d 640, 642 (3d Cir.1975); Knapp v. Kinsey, 249 F.2d 797, 800 (6th Cir.1957), none of the cases discusses the propriety of doing so. Lacking omniscience, we hesitate to say that requiring a bond would never be proper in such a case, but there would have to be a good reason for it and Carbon County has provided none.

Second, as explained in Olympia Equipment Leasing Co. v. Western Union Telegraph Co., 786 F.2d 794 (7th Cir.1986), it is a misreading of Rule 62(d) of the Federal Rules of Civil Procedure to suggest that an appellant who wants to stay execution pending appeal must post a bond. The rule requires him to post a bond if he wants an automatic stay, but not if he is content to throw himself on the district judge’s discretion. See also Lightfoot v. Walker, 797 F.2d 505, 506 (7th Cir.1986). An appeal bond usually costs one percent of the amount secured, which in the case of a $181 million judgment is almost $2 million. That is not small change; and if the district judge is satisfied that the expenditure is unnecessary to protect the appellee, he does not have to insist that it be spent. NIPSCO has assets of more than $4 billion, revenues of almost $2 billion a year, and a net worth of more than $1 billion. A public utility, it is in no financial jeopardy, it is not about to place its assets beyond the reach of this judgment creditor, and it is, in short, good for the $181 million. Should NIPSCO’s ability to pay begin to deteriorate, Carbon County can always petition the district judge for supplementary relief; he has even required periodic reports from NIPSCO to make it easier to monitor the company’s financial health.

To summarize, the appeal from the grant of the preliminary injunction is dismissed as moot; the other orders appealed from are affirmed. No costs will be awarded in this court, since we have turned down Carbon County’s appeals as well as NIPSCO’s.

So Ordered.

Morse, J.

A jury awarded plaintiffs* Carmichael $160,000 against defendant Adirondack Bottled Gas for breaching an implied covenant of good faith and fair dealing in the termination of their business relationship. On appeal, Adirondack claims that (1) Janet Carmichael was precluded from bringing this action because her claims were resolved either in arbitration or in a federal antitrust case, both of those proceedings having become final; (2) the trial court should have directed a verdict in Adirondack’s favor; (3) the court erroneously instructed the jury on the law of breach of good faith; (4) the plaintiffs waived *202their claim for punitive damages and the facts did not warrant punitive damages to be considered by the jury; (5) the court erred in refusing to instruct the jury on the defense of accord and satisfaction; and (6) the award and calculation of interest in the judgment order were erroneous. We affirm.

The evidence supports the jury’s concluding that the parties began and ended their business relationship in the following manner: In September 1981, Philip and Janet Carmichael bought an existing petroleum gas distributorship from Allen and Sharon Granger. The transaction required Philip Carmichael to enter into a contractor’s agreement with Adirondack. In general, the agreement described the terms under which Adirondack would supply the Carmichaels with the product which they, in turn, would retail to their customers. Furthermore, the agreement contained a “key man” clause, which provided in part:

This Agreement shall automatically terminate without written notice upon the sale or assignment of Contractor’s business, the death of Philip Carmichael or upon any change in the capital structure, management or ownership of contractor.

(Emphasis added.)

After experiencing ups and downs, the Carmichaels’ business turned modestly profitable, but in the summer of 1987, the couple had grown “sick of the gas business” and explored with Adirondack the possibility of selling their distributorship for $60,000. Adirondack was interested in acquiring the Carmichael business in order to convert it from a distributorship to a retail outlet. Adirondack offered the Carmichaels $38,500. The Carmichaels declined the offer.

Six months later, on December 24, 1987, Philip Carmichael died in a snowmobile accident, triggering the “key man” termination provision of the 1981 contractor’s agreement. A few days later, David Johnson, Adirondack’s district manager, attended Philip Carmichael’s funeral. As he paid his respects, Johnson asked Janet Carmichael about her intentions toward the business. Carmichael indicated an intention to stay in business, and Johnson replied that they would get together at a future time to discuss how she would operate the distributorship. Shortly thereafter, Johnson reported the gist of this conversation to his *203supervisor, James Harrison. Harrison testified he would not have been opposed to Janet Carmichael continuing in the business, provided she sign a contract in her own right with Adirondack, but Harrison did not communicate that to her. Instead, on January 5,1988, Adirondack sent a letter to Carmichael’s attorney, again offering to purchase the business for $38,500. The letter gave no acceptance deadline, but Carmichael promptly instructed her attorney to inform Adirondack that she still wished to stay in business.

On January 13, 1988, Adirondack corresponded with Janet Carmichael’s attorney, instructing him to tell her that the offer would be withdrawn in five days. Two days later, on Friday, January 15, Adirondack’s attorney asked Carmichael if she was going to accept Adirondack’s offer. She replied, “I’m not going to sell. I’m not going out of business. I want to keep this business.” According to Carmichael, the attorney became “very upset with me and he told me at the end of the conversation that no matter what, whether I sold the assets to them or not, I was out of business Monday at noon.” Concluding that Adirondack would no longer supply her with fuel as of Monday, Carmichael laid off her employees Friday afternoon. During the weekend, Carmichael sold much of her business equipment for $35,000 to Blue Flame Gas, a local competitor. She did not want to sell to Adirondack because “they wanted to take my business away from me that we had worked hard for.”

On Monday, January 18, she returned to her work place and began closing up shop. The phone rang repeatedly that morning with calls from customers needing fuel deliveries. The calls were attended to either on site or by relaying the calls to Adirondack’s business phone in Bolton, Vermont. Later that morning, David Johnson stopped by to see Carmichael, who told him she had sold her trucks and discharged her employees. She then handed him a list of customers who required immediate attention from Adirondack.

Shortly after Johnson’s departure, Carmichael had another telephone conversation with Adirondack’s attorney. According to Carmichael, the attorney again became upset, this time because “I wasn’t going to deliver that day. That I had taken him on his word that I was done at noon.” The attorney began yelling so loudly that Carmichael held the receiver up so that others who were in the office with her could hear it.

*204After that phone call, Adirondack arranged a meeting for the next day, January 19, to transfer vital business records and to tie up loose ends as provided for under the distributorship agreement. Fifteen minutes before the meeting, Carmichael was notified that her attorney could not be present. She elected to attend, but announced upon her arrival that she would not discuss legal questions without her lawyer present. Despite this statement, Adirondack repeatedly asked Carmichael to accept and sign a written agreement that had been drafted and signed by Adirondack prior to the meeting. The agreement provided for the transfer of Carmichael’s remaining business assets. Carmichael repeatedly refused to sign the document then and there, although she did sign it after the meeting. Adirondack also asked at the meeting to review all of her records, including her customer list, route cards, accounts receivable and other records. Concerned that her customers not be left without fuel in the dead of winter, Carmichael handed over the requested documents. Adirondack then immediately began servicing the customers formerly serviced by the Carmichaels.

The winding down of remaining business affairs between Carmichael and Adirondack was not smooth. Carmichael had claims against Adirondack for the return of deposits, payments under the January 19 agreement, collection of accounts receivable, and other items. Adirondack had claims against Carmichael for inventory that was not returned or otherwise accounted for, fuel that had been supplied but not paid for, and other items. In March 1989, all of these issues were submitted to arbitration by order of the Washington Superior Court, where Carmichael had filed suit against Adirondack. The court ordered that “[cjlaims raised by Plaintiff in Civil Action Docket Number S-12-89 WnC which do not arise out of the Contractor Agreement are not subject to arbitration and are properly within the jurisdiction of the Washington Superior Court.”

On September 24,1990, the parties stipulated to the entry of an arbitration award. The award set the various claims of the parties off one against another and concluded that “the adoption of the ‘account resolution’ set forth herein and the monetary award to Carmichael in the amount of $4,922.26 fully resolves all of the disputes which either of the parties has raised, or could have raised, arising under the Contractor Agreement, as amended, between the parties.”

*205The arbitration proceedings, however, did not address any claim regarding bad faith and unfair dealing. It dealt only with accounting disputes. While the parties were in arbitration, Carmichael initiated suit against Adirondack in federal district court on January 5,1990, alleging federal antitrust violations by Adirondack. Eight months later, Carmichael was granted a stay of the state court proceedings pending the outcome of her federal antitrust suit. Adirondack neither opposed the stay nor attempted to remove Carmichael’s state claims to the federal forum.

In December 1991, the district court dismissed Carmichael’s antitrust suit with prejudice. Arguing that Carmichael’s remaining complaints were now barred by the res judicata effect of the federal court’s dismissal, Adirondack moved for summary judgment in state court. In April of 1992, the state court denied summary judgment and the parties proceeded to trial.

After a seven-day jury trial, the trial court directed a verdict in Adirondack’s favor on all but one count of Janet Carmichael’s complaint. That count, alleging that Adirondack’s conduct toward Carmichael following Philip’s death amounted to a breach of the implied covenant of good faith and fair dealing, was submitted to the jury, which returned a verdict against Adirondack in the amount of $60,000 compensatory and $100,000 punitive damages. Thereafter, Adirondack filed several post-verdict motions, all of which were denied.

I.

Relying on the doctrines of res judicata and collateral estoppel, Adirondack first contends that the arbitration award resolving the parties’ contractual disputes and the dismissal of Janet Carmichael’s federal antitrust complaint precluded her state court action.

A.

With respect to the legal effect of the arbitration award, we note that the superior court record begins with Carmichael’s complaint dated January 9, 1989. Adirondack, however, began seeking arbitration in December of 1988 and filed a motion to compel arbitration before January 9,1989. The record that Adirondack submitted for our review contains no documents per-*206tabling to these early proceedings. The trial court decided Adirondack’s motion to compel arbitration in March of 1989, but no transcript of the hearing was submitted for our review. The court’s order states specifically that it retained jurisdiction over claims Carmichael raised in state court “which do not arise out of the Contractor Agreement.” Adirondack argues that the court had intended for the arbitration proceedings to resolve all of the parties’ claims against each other arising out of their business relationship. This argument, however, is inconsistent with the language in the court’s order compelling arbitration. There are no documents in the record that support Adirondack’s characterization of the court’s intentions or that delineate the scope of the arbitration proceedings. Nor does the record demonstrate that Adirondack objected to the court’s retention of jurisdiction or its scope. Consequently, Adirondack has not preserved the issue, and there is no basis on which to give res judicata effect to the arbitration award.

B.

Adirondack contends that the federal court dismissal constituted a final judgment precluding Carmichael’s state action. We disagree that the federal court dismissal triggered preclusion of the state court action because defendant’s litigation strategy throughout belies any reliance on the doctrines of res judicata and collateral estoppel.

Adirondack did not ask to remove and consolidate Carmichael’s state claims in the federal forum. See 28 U.S.C. § 1441(a) (state court civil action to federal district court having jurisdiction); 28 U.S.C. § 1367(a) (supplemental jurisdiction exists over claims related to those within the district court’s original jurisdiction). At no time before the federal court dismissal did Adirondack object to the maintenance of the two actions or claim that dismissal of the federal action would preclude the state action. In support of its preclusion claim, Adirondack stated that “we take the position that we did not have to move .... [I]f they chose to go forward with the federal court action first, that was their prerogative, but they did so at the risk that the decision in that case might preclude litigation of these issues in state court.” Similarly, Adirondack claims it was its pre*207rogative not to oppose the stay in state court or to seek removal of the state claims to federal court. Adirondack’s position, however, ignores the well-established procedural rule requiring preservation of the issue:

Where the plaintiff is simultaneously maintaining separate actions based upon parts of the same claim, and in neither action does the defendant make the objection that another action is pending based on the same claim, judgment in one of the actions does not preclude the plaintiff from proceeding and obtaining judgment in the other action. The failure of the defendant to object to the splitting of the plaintiff’s claim is effective as an acquiescence in the splitting of the claim.

Restatement (Second) of Judgments § 26 comment a (1982) (emphasis added). Adirondack argues that the record below is devoid of any evidence that Adirondack expressly acquiesced to Carmichael’s claim-splitting. “Acquiescence,” however, denotes an absence of action, a failure to register objection. See The Random House Dictionary of the English Language (2d ed. 1987) (to acquiesce is to assent tacitly, to submit or comply silently or without protest).

Adirondack cites no case holding that, but for the evidence of defendant’s express consent, the courts would have precluded a plaintiff from claim-splitting. We hold that evidence of express consent is not the sine qua non for finding acquiescence to claim-splitting. Adirondack’s failure to object to Carmichael’s strategy is a waiver of the defense of res judicata. Notwithstanding the public policy favoring conservation of judicial resources by allowing a claimant only “one bite of the apple,” Sure-Snap Corp. v. State St. Bank & Trust Co., 948 F.2d 869, 870 (2d Cir. 1991), litigation is not a game where surreptitious maneuvering is favored by the rules. See V.R.C.P. 1 (civil rules “construed to secure the just, speedy, and inexpensive determination of every action”).

II.

We treat together Adirondack’s claims that the jury instruction on Carmichael’s claim was erroneous and that, in any event, it was entitled to a directed verdict. Adirondack argues *208that it could not have violated “good faith and fair dealing” because no contract existed between the parties as of Philip Carmichael’s death. We disagree that the duty of good faith and fair dealing expired abruptly on December 24, 1987, when Philip died. The very nature of their business relationship contemplated that, after the contract termination, the parties owed each other duties with respect to winding down their affairs as long as the post-termination conduct was related to the contractual relationship. See deTreville v. Outboard Marine Corp., 439 F.2d 1099, 1100 (4th Cir. 1971) (“[R]egardless of broad unilateral termination powers, the party who terminates a contract commits an actionable wrong if the manner of termination is contrary to equity and good conscience.”).

The definition of the “covenant of good faith and fair dealing” is broad. An underlying principle implied in every contract is that each party promises not to do anything to undermine or destroy the other’s rights to receive the benefits of the agreement. Shaw v. E. I. DuPont de Nemours & Co., 126 Vt. 206, 209, 226 A.2d 903, 906 (1966). The implied covenant of good faith and fair dealing exists to ensure that parties to a contract act with “faithfulness to an agreed common purpose and consistency with the justified expectations of the other party.” Restatement (Second) of Contracts § 205 comment a (1981). The factual question in this case was whether Adirondack so acted toward Janet Carmichael after her husband died.

Other than stating the underlying principles, little can be said in general as to what constitutes a breach of the covenant. Although we have stated that a covenant of good faith is implied in every contract, an action for its breach is really no different from a tort action, because the duty of good faith is imposed by law and is not a contractual term that the parties are free to bargain in or out as they see fit. Cf. Ainsworth v. Franklin County Cheese Corp., 156 Vt. 325, 331-32, 592 A.2d 871, 874-75 (1991).

We note that “good faith” is a concept that “varies .. . with the context” in which it is deemed an implied obligation. Restatement (Second) of Contracts § 205 comment a (1981). Contextual and fact-specific, the implied good-faith covenant has been the subject of many decisions that have informed the substance of this cause of action. The implied promise by its nature *209protects against “a variety of types of conduct characterized as involving ‘bad faith’ because they violate community standards of decency, fairness or reasonableness.” Id. As the Restatement points out,

[a] complete catalogue of types of bad faith is impossible, but the following types are among those which have been recognized in judicial decisions: evasion of the spirit of the bargain, lack of diligence and slacking off, willful rendering of imperfect performance, abuse of a power to specify terms, and interference with or failure to cooperate in the other party’s performance.

Id. § 205 comment d. Further, bad faith inheres in “harassing demands for assurances of performance, rejection of performance for unstated reasons, willful failure to mitigate damages, and abuse of a power to determine compliance or to terminate the contract.” Id. § 205 comment e. Additionally, “[sjubterfuges and evasions violate the obligation of good faith in performance even though the actor believes his conduct to be justified.” Id. § 205 comment d. Finally, the covenant of good faith “also extends to dealing which is candid but unfair, such as taking advantage of the necessitous circumstances of the other party.” Id. § 205 comment e.

In the end, good faith is ordinarily a question of fact, one particularly well-suited for juries to decide. J. Calamari & J.. Perillo, Contracts § 11 — 38 (c) (1987). It follows that a jury instruction on point will feature few precise analytical elements. Rather, such an instruction will ask the jurors to judge the context within which the alleged offensive conduct occurred.

Adirondack argues that the jury was improperly instructed when the trial court explained the implied covenant of good faith and fair dealing as follows:

While the contracts between the parties provided that they terminated upon the death of Philip Carmichael, Adirondack was under a duty to treat Plaintiffs fairly and in good faith. Adirondack had a duty to advise Plaintiffs whether it would agree to enter into a new contract with them or to allow Plaintiffs a reasonable opportunity to find a buyer for the distributorship or to decide to sell their interest in the distributorship to Adirondack.

*210Adirondack claims for the first time on appeal that the instruction in effect created substantive duties that the parties had not bargained for in their original contract. Not only did Adirondack waive any objection it had to the language of the instruction, we believe the “duties” specified in the instructions, given the nature of the business relationship, arose under the termination provision of the parties’ contract by the implication of fair dealing and good faith.

The context in which the jury was asked to judge involved a contract featuring a “key man” termination clause and a number of post-termination obligations demanding reasonable accommodations in winding up the parties’ affairs and accounting for assets. For instance, the contract provided for returning deposits, cooperating in locating equipment in the field, turning over business records, and implementing a covenant not to compete. All of these activities contemplated continued interaction of the parties after the “key man” provision had triggered the termination of the existing contractual arrangement. All of this post-termination activity was subject to good faith and fair dealing. Although the “key man” provision may have spelled an end to the parties’ contractually contemplated business-as-usual, the provision did not extinguish the context of prior dealings between the parties. These dealings might have legitimately led Janet Carmichael to expect that Adirondack might negotiate a new agreement with her, or that it might arrange to buy her out at a fair price, or that it might allow her sufficient time to negotiate a sale of the business to a third party. Specific facts were presented at trial that evidenced the relational context within which the termination clause went into effect. The trial court’s instruction simply asked the jurors to decide whether good faith and fair dealing were observed in this context. The evidence showed that Adirondack knew Carmichael had just lost her husband and thus had incurred the sole responsibility for running the business and supporting her family; that Adirondack knew that Carmichael wanted to stay in business and arguably did not discourage her from thinking she could; that Adirondack knew that the price it was offering for the distributorship had previously been rejected; and that Adirondack imposed unreasonably short deadlines on Carmichael for making an important and complex business decision. The *211court’s instruction captured the substance of the implied promise of good faith and fair dealing described in the Restatement. We see no error in the instruction.

It is settled law that “[g]eneral verdicts should be construed to give them effect, if that can reasonably be done.” Vineyard Brands, Inc. v. Oak Knoll Cellar, 155 Vt. 473, 481, 587 A.2d 77, 81 (1990). On appeal, we view the facts in the light most favorable to Janet Carmichael, who prevailed at trial. The relevant question before us, however, is whether a jury reasonably could have found that Adirondack’s conduct amounted to a breach of the implied covenant of good faith and fair dealing. In our opinion, the trial record contained sufficient evidence to support the jury’s verdict, provided that it chose to believe Janet Carmichael’s testimony. “[I]f the verdict is justified by ‘any reasonable view of the evidence, it must stand.’” Claude G. Dern Elec., Inc. v. Bernstein, 144 Vt. 423, 426, 479 A.2d 136, 138 (1984) (quoting Crawford v. State Highway Bd., 130 Vt. 18, 25, 285 A.2d 760, 764 (1971)). It was not error to deny Adirondack’s motion for a directed verdict.

III.

Next, Adirondack argues that Carmichael was not entitled to a jury instruction on punitive damages for two reasons: (1) Adirondack had no notice that such damages were an issue because the applicable count of the complaint did not request them and, (2) the evidence did not support punitive damages. To preserve the issue for review, however, “defendant must object to the charge ‘before the jury retires to consider its verdict, stating distinctly the matter objected to and the grounds of the objection.’ ” Ainsworth, 156 Vt. at 332-33, 592 A.2d at 875 (quoting V.R.C.P. 51(b), holding that failure to object to the presence of punitive damage instructions results in waiver of claim of error on appeal), Adirondack did not object to the giving of a punitive damage instruction on either ground. Even assuming the evidence was insufficient to charge the jury on punitive damages, the court instructed the jury on such damages without any communication from Adirondack that the instruction was unwarranted. Because the alleged error was not brought to the trial court’s attention in time to correct it, it was waived.

*212IV.

Adirondack also claims that the trial court erred in not submitting an instruction on the affirmative defense of accord and satisfaction. Adirondack’s request for the instruction was based on a document signed by Carmichael in which she agreed to accept $5000 from Adirondack in exchange for the conveyance of a business telephone number, customer records, a mailbox, and miscellaneous business assets.

The party asserting the accord-and-satisfaction defense must establish that: (1) the claim is disputed; (2) the party claiming the defense offered to pay less than the amount purportedly due; and (3) the other party accepted and retained the lesser amount offered in full settlement of the claim. Eccomunity, Inc. v. Lussier, 147 Vt. 276, 278, 514 A.2d 711, 713 (1986). By the time the jury received its instructions, the only claim remaining in this case was the alleged breach of the implied covenant of good faith and fair dealing. There was such scant evidence in the record to support a contention that Adirondack offered Carmichael $5000 to satisfy any claim resting on bad faith, that any finding of an accord and satisfaction would have been unsupportable as a matter of law. The $5000 was consideration for the items listed in the document she signed, and it did not reach, even by implication, a satisfaction of anything else. Accordingly, we find no error in the trial court’s refusal to instruct the jury on accord and satisfaction.

V.

Finally, Adirondack argues that the trial court used the wrong date to compute its award of prejudgment interest on the jury’s award of compensatory damages. The court computed the prejudgment interest from the date of breach, January 18, 1988. Adirondack does not dispute the date of breach. Rather, it maintains that the court should have computed the interest either as of the date Carmichael first signaled a demand of payment, October 14, 1988, or as of the date Carmichael filed her suit, January 5, 1989.

The court’s choice of the date of the contract breach was an appropriate exercise of its discretion. See V.R.C.P. 54(a); Hall v. Miller, 143 Vt. 135, 146, 465 A.2d 222, 228 (1983) (court has *213discretion to award interest as long as damages are not so contingent as to be unsupportable). But cf. Gilman v. Towmotor Corp. 160 Vt. 116, 121, 621 A.2d 1260, 1263 (1992) (prejudgment interest not available on “soft” tort damages, such as pain and suffering).

Affirmed.

*46Loiselle, J.

The plaintiffs contracted to purchase for $85,000 premises in the city of Stamford owned by the defendants and paid a deposit of $8500. The contract was “subject to and conditional upon the buyers obtaining first mortgage financing on said premises from a bank or other lending institution in an amount of $45,000 for a term of not less than twenty (20) years and at an interest rate which does not exceed 8-% per cent per annum.” The plaintiffs agreed to use due diligence in attempting to obtain such financing. The parties further agreed that if the plaintiffs were unsuccessful in obtaining financing as provided in the contract, and notified the seller within a specific time, all sums paid on the contract would be refunded and the contract terminated without further obligation of either party.

In applying for a mortgage which would satisfy the contingency clause in the contract, the plaintiffs relied on their attorney who applied at a New Haven lending institution for a $45,000 loan at 8% percent per annum interest over a period of twenty-five years. The plaintiffs’ attorney knew that this lending institution was the only one which at that time would lend as much as $45,000 on a mortgage for a .single-family dwelling. A mortgage commitment was obtained for $45,000 with “interest at the prevailing rate at the time of closing but not less than 8-%%.” Since this commitment failed to- meet the contract requirement, timely notice was given to the defendants and demand was made for the return of the down payment. The defendants’ counsel thereafter offered to make up the difference between the interest rate offered by the bank and the 8y2 percent rate provided in the contract for the entire twenty-five years by a funding arrange*47ment, the exact terms of which were not defined. The plaintiffs did not accept this offer and on the defendants’ refusal to return the deposit an action was brought. From a judgment rendered in favor of the plaintiffs the defendants have appealed.

The defendants claim that the plaintiffs did not use due diligence in seeking a mortgage within the terms specified in the contract. The unattacked findings by the court establish that the plaintiffs’ attorney was fully informed as to the conditions and terms of mortgages being granted by various banks and lending institutions in and out of the area and that the application was made to the only bank which might satisfy the mortgage conditions of the contingency clause at that time. These findings adequately support the court’s conclusion that due diligence was used in seeking mortgage financing in accordance with the contract provisions. Brauer v. Freccia, 159 Conn. 289, 293, 268 A.2d 645. The defendants assert that notwithstanding the plaintiffs’ reliance on their counsel’s knowledge of lending practices, applications should have been made to other lending institutions. This claim is not well taken. The law does not require the performance of a futile act. Vachon v. Tomascak, 155 Conn. 52, 57, 230 A.2d 5; Tracy v. O’Neill, 103 Conn. 693, 699, 131 A. 417; Janulewycz v. Quagliano, 88 Conn. 60, 64, 89 A. 897.

■The remaining assignment of error briefed by the defendants is that the court erred in concluding that the mortgage contingency clause of the contract, a condition precedent, was not met and, therefore, the plaintiffs were entitled to recover their deposit. “A condition precedent is a fact or event which the parties intend must exist or take place before there is a right to performance.” Lach v. Cahill, 138 *48Conn. 418, 421, 85 A.2d 481. If the condition precedent is not fulfilled the contract is not enforceable. Lach v. Cahill, supra; Bialeck v. Hartford, 135 Conn. 551, 556, 66 A.2d 610. In this case the language of the contract is unambiguous and clearly indicates that the parties intended that the purchase of the defendants’ premises be conditioned On the obtaining by the plaintiffs of a mortgage as specified in the contract. From the subordinate facts found the court could reasonably conclude that since the plaintiffs were unable to obtain a $45,000 mortgage at no more than 8y2 percent per annum interest “from a bank or other lending institution” the condition precedent to performance of the contract was not met and the plaintiffs were entitled to the refund of their deposit. Any additional offer by the defendants to fund the difference in interest payments could be rejected by the plaintiffs. See Lach v. Cahill, supra, 420. There was no error in the court’s exclusion of testimony relating to the additional offer since the offer was obviously irrelevant.

There is no error.

In this opinion the other judges concurred.

BENDER, Justice.

In this case we interpret the payment provisions of a construction contract to -require a general contractor to pay a subcontractor even though the owner has failed to pay the general contractor. This provision is referred to as a “pay-when-paid” clause. We hold that the “when” of this clause is not a contingency, but rather means that payinent may be delayed. We decline to find that this clause is a “pay-if-paid” clause that excuses the general contractor’s obligation to the subcontractor if the owner does not pay.

In Printz Services Corp. v. Main Electric, Ltd., 949 P.2d 77 (Colo.App.1997), the court of appeals held that the relevant language in the construction contract between the general contractor and a subcontractor was a pay-if-paid clause which barred the subcontractor from receiving payment from the general contractor because the owner became insolvent and never paid the general contractor. We reverse on this issue. We construe the *524relevant payment phrase in this contract, that the subcontractor would be paid “provided like payment shall have been made by owner to contractor,” to be insufficient to constitute a condition precedent that results in shifting the risk of the owner’s nonpayment from the general contractor to the subcontractor. We hold that in order to create a condition precedent, the language of the parties’ agreement must clearly express their intent that the subcontractor is to be paid only if the owner first pays the general contractor. Thus, we hold that the payment clause in this contract constitutes a pay-when-paid clause - that is, an unconditional promise by the general contractor to pay its subcontractor even if the owner becomes insolvent.

As part of this case, a second subcontractor sought to recover from the same general contractor based upon an implied oral contract. We agree with the analysis of the court of appeals that the second subcontractor’s claim is not ripe for appellate review because the trial court did not make findings of fact concerning the terms, if any, of the payment clause of their oral agreement. Hence, with respect to the court of appeals’ opinion, we reverse in part and affirm in part and return this case to that court with directions to remand this case to the trial court for further proceedings consistent with this opinion.

I.

Facts and Proceedings Below

Respondent Printz Services Corporation was the general contractor on a casino construction project in Cripple Creek, Colorado. Petitioners C.J. Masonry and Main Electric were subcontractors on the project. The relationship between Printz and C.J. Masonry was governed by a preprinted form contract prepared by Printz, the general contractor. The form contains the following pertinent payment provisions:

3.SUBCONTRACT AMOUNT. In consideration of the faithful performance of the covenants and agreements herein, ... Contractor agrees to pay, or cause to be paid, Subcontractor ... at the times and in the manner following in Articles 4 and 5.

4. PROGRESS PAYMENTS.

D. Contractor shall make payment on or before the 25th day of the next month following receipt of the Payment Request provided like payment has been made by Owner to Contractor.

5. FINAL PAYMENT. Contractor shall make final payment to Subcontractor after work is complete and accepted by Owner and Architect provided like payment shall have been made by Owner to Contractor....

Main Electric did not sign a written form contract but agreed orally to work for Printz.

Before the project was complete, the owner became insolvent and lost the property in a deed of trust foreclosure. The owner failed to pay Printz, and Printz in turn failed to pay its subcontractors. C.J. Masonry and Main Electric both sought payment for breach of contract against the general contractor. Printz claimed in defense that it was obligated to pay its subcontractors only if it was first paid by the owner.

The trial court interpreted the payment clause “provided like payment shall have been made by Owner to Contractor” in C.J. Masonry’s contract to be a promise by Printz to pay the subcontractor when and not if the general contractor was paid by the owner. In the trial court’s view, the general contractor remained unconditionally obligated to pay the subcontractor provided the work was performed. The trial court ruled that Printz must pay C.J. Masonry regardless of the owner’s insolvency.

Concerning Main Electric’s claim, the trial court found that although Printz and Main Electric did not execute a written agreement, Main Electric had performed valuable services for Printz. Ruling that an implied contract existed between the two, the court awarded damages to the subcontractor under a quantum meruit theory.

The court of appeals reversed the trial court on both subcontractors’ claims. See Printz Servs. Corp., 949 P.2d at 79. It held *525that the contract between Printz and C.J. Masonry created a condition precedent rather than a promise to pay, relying substantially on language in Orman v. Ryan, 25 Colo. 383, 55 P. 168 (1897), in which a similarly worded clause in a construction contract was referred to as a condition precedent. See id. at 388, 55 P. at 170. Thus, the court of appeals ruled Printz was not obligated to pay C.J. Masonry. See Printz Serus. Corp., 949 P.2d at 81-82.

Turning to Main Electric’s claim, the court of appeals reasoned that since both parties conceded that they had an express oral agreement, an award based on a theory of quantum meruit was inappropriate. The court noted that ordinarily the distinction between enforcement of an oral contract and a quantum meruit award would make no substantive difference and would not require remand. However, because the parties disputed whether the payment clause formed part of their express oral agreement, and since the trial court did not resolve this disputed fact, remand to the trial court was appropriate.

We granted certiorari to determine whether the holding in Orman controls this case and whether the relevant contract provisions between the general contractor and the subcontractor should be interpreted as creating a condition precedent.1

II.

Orman Does Not Govern Our Analysis

Because the parties and the court of appeals rely so heavily upon Orman, we first examine that case in some detail. In Orman, the subcontractor agreed to perform trestle work on a railroad construction project with the knowledge that the railroad company had no assets, and only by selling its own bonds could the railroad company finance the construction. See Orman, 25 Colo, at 388, 55 P. at 170. The contract provided that the general contractor was to pay the subcontractor after the general contractor received the money from the owner:

During the progress of the work, and until it is completed, there will be a monthly estimate ... of the ... value of the work done during the month, ... eighty-five percent of which value will be paid [to the subcontractor] as soon after the 15th day of the succeeding month as the [general contractor] shall have received the money for said work from the [owner].

Id. (emphasis added).

The railroad company failed to sell any bonds and became insolvent. It never paid the general contractor which filed lien proceedings to recover against the company. The general contractor, in turn, did not pay • the subcontractor for its work, arguing that it had not been paid by the railroad company; therefore, under the terms of the contract, it was not obligated to pay the subcontractor. The subcontractor then brought an action against the general contractor contending that by filing lien proceedings against the railroad company, the general contractor had “received money” and was therefore obligated to pay the subcontractor.

The legal issue 'decided in this case was whether, when the general contractor filed lien proceedings against the insolvent owner, it “received money” as that term was defined by the contract. See Orman, 25 Colo, at 387, 55 P. at 170. The subcontractor’s theory of recovery at trial and on appeal was that the relevant contract payment clause established a contingency or a condition precedent that had in fact occurred. See id. at 392, 55 P. at 171. The sole litigated issue was whether this contingency took place. On appeal, the Orman court reversed, holding that when the general contractor filed a lien against the *526owner’s property, it had not “received money” as that term was defined in the contract. See id. at 387, 55 P. at 170.

In its opinion, the Orman court stated that the language in the contract was a condition precedent to the subcontractor’s payment:

The language used clearly and explicitly makes the receipt of the money by [the general contractor] a condition precedent to any liability on their paid; to pay for the work ... and obligated] them to pay for the work done by [the subcontractor] only in case they should receive the money for that purpose from the [owner].

Id. at 388, 55 P. at 170. However, this statement is eonclusory and made without analyzing the contract terms and appears as dictum.2 The Orman court’s interpretation of the contract focussed solely on the parties’ understanding when they entered into their agreement. The court specifically noted that, at this time, the subcontractor and general contractor understood and agreed to shift the risk of the owner’s nonpayment from the general contractor to the subcontractor:

[W]hen [the language of the contract is] read in the light of the conditions that existed at the time the contract was made, and of the circumstance that the work was undertaken with knowledge on the part of appellees that the railway company and the Pacific Contract Company had no property or assets except the projected line of road, and that the only source from which money could be realized for its construction was the sale of the railway company’s bonds, we think its evident intent and meaning was to exempt appellants from all personal liability.

Id.

After the Orman court announced its opinion, the subcontractor argued for the first time in its petition for rehearing that the contract created an unconditional obligation on the part of the general contractor to pay its subcontractors. See id. at 393, 55 P. at 172. The Orman court refused to consider bais contention because this new theory of recovery deviated from the theory upon which the case was tried. See id. at 392, 55 P. at 171. Thus, we conclude that the Or-man dictum does not control our analysis here.

III.

The Payment Provision in this Contract is Not a Pay-if-Paid Clause

We now turn to address the interpretation of the payment clause in the contract between Printz and C.J. Masonry. Initially, we note that the interpretation of a contract is a question of law which we review de novo. See Union Ins. Co. v. Houtz, 883 P.2d 1057, 1061 (Colo.1994).

We begin our analysis by reviewing basic principles of contract interpretation. The parties’ intention when drafting a contract governs the interpretation of that contract. See Centennial Enter. v. Mansfield Dev. Co., 193 Colo. 463, 464, 568 P.2d 50, 51 (1977). A contract term can be interpreted as either a condition precedent or a promise to perform depending on the parties’ intent. See Charles Ilfeld Co. v. Taylor, 156 Colo. 204, 209, 397 P.2d 748, 750 (1964). In other contexts we have followed the rule that a condition precedent in a contract is not favored and will not be given effect unless established by clear and unequivocal language. See id.; Balzano v. Bluewater Insurance Ltd., 801 P.2d 1, 3 (Colo.App.1990). If there is any doubt as to the parties’ intention, we interpret a clause in a contract as a promise rather than a condition. See Ilfeld, 156 Colo, at 209, 397 P.2d at 750. This rule of contract interpretation expresses the recognized policy of avoiding the harsh results of forfeiture against a party who has no control over the occurrence of the condition. See Rohauer v. Little, 736 P.2d 403, 409 (Colo.1987); Ilfeld, 156 Colo, at 209, 397 P.2d at 750. As we stated in Ilfeld:

The intention of the parties in making a contract controls.... In cases of doubt as to the intention of the parties, courts re*527solve the' doubt in favor of an interpretation making the engagement a promise rather than a condition. And such rule of construction is founded on a policy of avoiding, if possible, forfeitures.... To frown upon forfeitures is part of the judicial policy of this state, too.

Ilfeld, 156 Colo, at 209, 397 P.2d at 750-751 (citations omitted).

Although we have not yet applied this reasoning to conditions precedent in payment clauses of a construction contract, we believe-that our general rule of contract interpretation applies with equal force in that context. If a payment provision such as the one here creates a condition precedent, then the subcontractor will forfeit payment for work performed due to the occurrence of a condition — the owner’s insolvency — over which the subcontractor has no control. See R.N. Robinson & Son, Inc. v. Ground Improvement Techniques & Fireman’s Fund Ins. Co., 31 F.Supp.2d 881, 886 (D.Colo.1998) (applying Colorado law) (“[Cjonditions precedent create a risk of forfeiture, even when the party against whom the condition operates has no control over whether the condition is met.”).

Typically, a subcontractor looks to the general contractor for payment and not the owner. See Thomas J. Dyer Co. v. Bishop Int’l Eng’g Co., 303 F.2d 655, 660 (6th Cir.1962). Therefore, the subcontractor need not factor in the risk of nonpayment by the owner. See Robinson, 31 F.Supp.2d at 886; Peacock Constr. Co. v. Modem Air Conditioning Inc., 353 So.2d 840, 842 (Fla.1977). If the risk of the owner’s nonpayment is to be shifted from the general contractor to the subcontractor, then this shift must be clearly articulated in the agreement.

With the principle in mind that we will interpret a clause as a promise rather than a condition unless the language of the contract explicitly mandates otherwise, we analyze the relevant terms of this contract. Printz argues that the contract’s terms, that the general contractor will pay its subcontractor “provided like payment shall have been made by owner to contractor,” establishes a condition precedent requiring payment by the owner before payment to the subcontractor. We are not persuaded.

Although the payment clause may be read to support the argument that the parties intended the subcontractors to be paid only if the owner paid the general contractor first, this clause contains no language reflecting any intent of the parties to shift the risk of the owner’s nonpayment from the general contractor to the subcontractor. There is no express acknowledgement by the subcontractor that it, rather than the general contractor, agrees to assume the risk of the owner’s nonpayment.3 The “provided” clause does not indicate that the parties reasonably anticipated the possibility that the owner might not pay and therefore specifically addressed this contingency.4 The payment clause contains no specific language creating a contingency that must occur before payment must be made by the general contractor.

We conclude that the payment clause here leaves room for reasonable argument by both the general contractor and the subcontractor as to whether the parties intended to shift the risk of the owner’s nonpayment from the general contractor to the subcontractor. Applying our rule interpreting a clause as a promise rather than a condition if there is any doubt of the parties’ intention, we conclude that this payment clause is a pay-when-paid clause.. It created a promise to pay the subcontractor that remains unconditional, although payment may be delayed because of the owner’s failure to pay the *528general contractor. To create a pay-if-paid clause in a construction contract, the relevant contract terms must unequivocally state that the subcontractor will be paid only if the general contractor is first paid by the owner and set forth the fact that the subcontractor bears the risk of the owner’s nonpayment.5 That required precision and clarity is missing here. Hence, we hold that the payment clause of this construction contract does not expressly reflect the parties’ intent to shift the risk of the owner’s nonperformance from the general contractor to the subcontractor with sufficient clarity to qualify as a condition precedent.6

IV.

This Court has Jurisdiction to Hear this Appeal Because the Judgment Has Not Been Satisfied

We next address Printz’s argument that we lack jurisdiction over this case because Printz has paid C.J. Masonry in full, and, therefore, there is no actual controversy between the parties and the case is moot.

While this matter was pending in the court of appeals, C.J. Masonry undertook to collect the judgment awarded by the trial court through garnishments. Printz tendered this sum and C.J. Masonry accepted it. C.J. Masonry refused to file a satisfaction of judgment and argued that the interest that had accrued on the funds between the time that the writ was issued and the funds were transferred was not paid. Printz tendered the additional money and again moved for a satisfaction of the judgment. C.J. Masonry refused to accept these funds and opposed the motion, claiming that the judgment was not satisfied. Printz argues that it has paid all of the money it owes and thus the controversy has been resolved. C.J. Masonry maintains that the controversy continues and the case is not moot.

Although in general an appellate court will not render judgment on the merits of an appeal if subsequent events have caused the issues in the litigation to become moot, a case is only moot if the parties intended to settle their claims. See 13A Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3533.2 (2d ed. 1982) (“The general rule is now well settled: the case is not moot unless the parties intended to settle.”). Accepting a financial award from a party does not necessarily indicate that both parties intended to settle:

(W)hen a party accepts the benefits of a judgment under circumstances which indicate an intention to finally compromise and settle a disputed claim, an appeal may be foreclosed. In such a case, it is “the mutual manifestation of an intention to bring the litigation to a definite conclusion upon a basis acceptable to all parties” which bars a subsequent appeal, and not the fact, standing alone, that benefits under the judgment were accepted.

United States ex rel. H & S Indus., Inc. v. Rich Co., Inc., 525 F.2d 760, 764 (7th Cir. 1975).7

*529Here the record is clear that when C.J. Masonry accepted payment from -Printz, it did not intend to settle its claim on appeal. Hence, we hold that the controversy between C.J. Masonry and Printz is not moot.

V.

Main Electric’s Case is not Ripe for Review

Lastly, we address whether Main Electric’s case is ripe for appellate review at this time.8 We agree with the court of appeals that the terms of the oral contract between Printz and Main Electric are unclear, and hence this claim must be remanded to the trial court for further factual findings. Because we do not know the specific terms of the payment clause between these parties, we are unable to determine whether the oral contract between Printz and Main Electric included a clause similar to the one between Printz and C.J. Masonry. Therefore, we cannot decide this case. See Linnebur v. Public Serv. Co. of Colo., 716 P.2d 1120, 1128 (Colo.1986). Hence, we affirm the portion of the court of appeals’ decision that remands Main Electric’s ease to the trial court.

VI.

Conclusion

In conclusion, reviewing the contract between Printz and C.J. Masonry de novo, we hold that the payment provisions did not create a condition precedent to payment and did not absolve Printz of its duty to pay C.J. Masonry. Hence, with respect to C.J. Masonry, we reverse the judgment of the court of appeals and reinstate the trial court judgment. We also hold that Main Electric’s claim is not ripe for review at this time and affirm the judgment of the court of appeals. Therefore, we affirm in part and reverse in •part and remand this case to the court of appeals with directions to return the case to the trial court to conduct further proceedings consistent with this opinion.