Contracts II Outline

I. Parol Evidence Rule and Interpretation
A. The PER operates to keep prior agreements that have not been reduced to writing out of an agreement that the parties have put into writing
B. Restatement 213 says 1. Can’t bring in contradictory/inconsistent things into a partially integrated contract 2. Cant bring anything into a completely integrated contract
C. We know that inconsistent terms are not let into an agreement, what does inconsistent mean? 2 views of inconsistency put forth in Luria Bros case
– UCC 2-202: to be inconsistent the term must contradict or negate a term in the writing
– 2-202(b): the absence of reasonable harmony in terms of the language and respective obligations of parties
o With regards to UCC 2-202 whether have total or partial integration you can supplement with consistent extrinsic info evidence with course dealing*previous conduct btwn parties before creating the k*, course performance*previous conduct between parties under particular agreement at hand* , usage of trade* any practice commonly accepted within particular trade of industry*
o Approaching A Parol evidence rule problem- how to figure it out
§ Is the k in writing
§ Do any of the 5 exceptions apply
§ Is it a final statement integrated (final expression of the parties agreement- no additional terms were meant to be added!)
§ Is the final writing a TOTAL or PARTIAL integration *by using UCC or Williston rule to figure out*

D. EXCEPTIONS TO PER
– For something to get in must be
o Separate
o Not contradict provisions of the writing
o Must be a clause not ordinarily put in to the written contract
– The judge is the one who interprets the contract NOT the jury
– A court will not let information into a completely integrated contract because is the final written expression of the parties agreement. Inconsistent information is not allowed into a partially integrated contract this is because although the writing is final, it is not the complete written expression of the parties. You may supplement a partial integrated contract with extrinsic evidence—oral or written—that is by consistent and additional terms.
– Merger clause, aka integration clause, essentially says that all we about and whatever is in the contract is it, don’t try and bring in other stuff. Its just evidence of compete integration, but it is NOT conclusiveà if both parties agreed that they talked about something else then it is partial.
– Restatement 216: 1. Evidence of a consistent additional term is admissible to supplement an integrated agreement unless the court finds that the agreement was completely integrated. 2. An agreement is not completely integrated if the writing omits a consistent additional term which is
o Agreed to for separate consideration
o Such a term as in the circumstances might naturally be omitted from the writing *partially integrated if something missing should be in there*
– Matters of avoidance: if a party seeks to avoid a contract PER does NOT apply. Evidence must be shown to show matters of avoidance. Some avoidance issues: lack of consideration, misrepresentation, duress, mistake, illegality, incapacity, or unconscionability.
– SUMMARY OF EXCEPTIONS: CARCAMP. Collateral Agreements avoidance matters, reformation, conditions precedent, ambiguity, modifications, partial integrations
E. How to determine if it is complete or partial integration
– Williston’s view: 1. If merger clause exists [“this writing contains all the terms of the agreement of the parties”], presume integration is TOTAL unless merger/integration clause obtained by fraud, mistake etc. 2. ASK: would it have been “natural” for the parties to have included them in the writing? If yesà total integration; if noàpartial integration. Ask this question for each proffered additional consistent term. Not looking for actual intent of parties, but intent “presumed” using reasonable person standard. Contra to case book, with respect to the PER(vs. interpretation), Williston