1. What is the Term?
I. Parol Evidence
Ø The parol evidence rule triggers when there is a final written expression of the agreement and governs whether parties may introduce extrinsic evidence made prior to or at the same time of the formation of contract.
· [Final and Complete writing -> Total Integration -> cannot be contradicted nor supplemented] · [Final and Incomplete writing -> Partial Integration -> cannot be contradicted, but can be supplemented by consistent additional terms]
① I s there Final Written Expression of the agreed terms?
a. R.2d § 209 (integrated agreement)
b. UCC 2-202 (final written expression)
§ Parties’ intention on the writing as the final embodiment of their agreement
· No preliminary negotiation form is regarded as final embodiment
· Usually a memorandum in one party -> not likely, confirmation by the other party and no response -> likely
· the more complete and the formal it is, the more it is likely to be intended as final
§ Any relevant evidence is admissible to show that the writing was not to be final
§ it would require more formal style, therefore, writing in napkin might satisfy Statute of Fraud, but no integration (not final expression)
§ completeness is not required to be a final expression! (discuss in terms of degree)
② Is there an EXTRINSIC Prior/Contemporaneous agreement?
§ if yes, triggers PER, subsequent evidence triggers Modification rule
③ Does the agreement CONTRADICT existing terms?
§ If yes -> inadmissible
1. R.2d §215– Contradiction of Integrated Terms: either for complete or partial integration parol evidence is not admissible to contradict a term of the writing
2. UCC 2-202– Final Written Expression may not be contradicted by parol or extrinsic Evidence
· Consistent v. Contradictory
Ø contradictory to expressly stated terms? -> might not be admissible
Ø contradictory to implied term in law or fact? -> might be admissible
§ general practice (reasonable time, etc) can be contradicted…
Ø consistent -> might be ad
§ UCC 2-208(1) – Course of Performance: repeated occasion w/o objection shall be relevant to determine the agreement (interpretation)
ð why? the assumption that these elements were taken for granted when the document was phrased, therefore, are admissible to supplement the terms of any writing unless carefully negated,
ð admissible even if there is a complete integration with merger clause unless there is careful negation
Ø R.2d §214 – Big exception of PER: admissibility of extrinsic evidence even if there is merger clause or contradictory
① to aid in the interpretation of existing terms
② to show that a writing is or is not an integration
③ to establish that an integration is complete or partial
to show that terms were the product of illegality, fraud, duress, mistake, lack of consideration or other invalidating cause: