Flash Cards - Parol Evidence Rule

Question 1

Define the Parol Evidence Rule

Answer 1

The parol evidence rule determines the provability of a prior or contemporaneous oral agreement when the parties have assented to a written agreement. Its purpose is to prevent fraud.

Question 2

Define Interpretation

Answer 2

The ascertainment of the meaning to be given contract language. r2k 200

Question 3

What is the chief rationale for the PER?

Answer 3

Written evidence is presumed more accurate than human memory.

Question 4

What is the first question you must ask when dealing with a PER problem?

Answer 4

Does the written agreement express the entire agreement of the parties?

Question 5

To be admitted into evidence, the oral agreement must not ______ be expected to be part of writing. What goes in the blank according to the Mitchill case?

Answer 5

ordinarily

Question 6

To be admitted into evidence, the oral agreement must not ______ be expected to be part of writing. What goes in the blank according to the UCC?

Answer 6

certainly (permits more evidence than the restatement and Mitchill)

Question 7

To be admitted into evidence, the oral agreement must not ______ be expected to be part of writing. What goes in the blank according to the Restatement?

Answer 7

naturally

Question 8

According to Mitchill, PE modifies written contracts when: (a) the oral agreement is ________ in form, – (b) the parol evidence does not ______ ________ ____ _______ ______ of the written agreement, and – (c) the parol provision is not one the parties would be ________ expected to include in the writing.

Answer 8

collateral, contradict express or implied provisions, ordinarily

Question 9

According to the rule from Mitchill, which of the three parts does the case turn on?

Answer 9

This case fails to satisfy the third option, “the parol provision is not one the parties would be ordinarily expected to include in the writing. It may also fail the second.

Question 10

Summarize the dissent in Mitchill

Answer 10

The rule applied is correct but the removal of the icehouse is not something that would ordinarily be written into the contract. Thus, the parties did not intend to exclude that term from their transaction.

Question 11

According to Mitchill, how is the court to distinguish between a collateral agreement and an independent agreement?

Answer 11

An independent agreement must have separate
consideration and an oral contract must not have been “entered into wholly or partly in consideration” of the written contract.

Question 12

Is the icehouse promise in Mitchill part of an independent contract?

Answer 12

No, it is collateral, because there was no separate

consideration.

Question 13

According to Judge Traynor, what work does the Mitchill test do?

Answer 13

Traynor apparently thought, “not much.”

Question 14

According to Mitchill, this test is used to determine whether the contract was sufficiently integrated (intended to be the final word).

Answer 14

(a) oral agreement must “not ordinarily be expected” to be part of writing; (b) writing cannot appear to completely state terms; and (c) oral agreement “must not be so clearly connected [to written agreement]…as to be a part and parcel of” the written agreement.

Question 15

In Masterson, the plaintiff sold a _______ to the defendant

Answer 15

ranch

Question 16

In Masterson, the contract for sale included an option to….

Answer 16

repurchase the ranch at the sale price for ten years

Question 17

In Masterson, when Mrs. Masterson and Mr. Masterson’s trustee attempt to exercise the option to repurchase the land, the Sines posit that the option is not assignable and that it was intended to stay in the family. This is not in the sales contract. Therefore the issue in the case is…

Answer 17

Issue:
– The clause in question here (governing the
assignment option) does not explicitly provide that it contains the entire agreement, i.e., it does not contain an integration clause. – So, we have to figure out whether the parol
evidence rule requires exclusion of defendants’ oral testimony (that the option was not assignable).

Question 18

In Masterson, the oral testimony was allowed in. Why?

Answer 18

The written agreement (a) did not explicitly provide that it contained the complete agreement and (b) was silent on the assignability issue. Thus, PER does not require exclusion because the written agreement is not “integrated,” i.e., a complete and final embodiment of the terms of the agreement. – The parties might “naturally” make an agreement on the subject separately (echoing Restatement standard) and would not “certainly” have included it in the writing (UCC standard). – Thus, the testimony should be allowed.

Question 19

When comparing Mitchill and Masterson, which makes it easier to bring pe in?

Answer 19

Masterson

Question 20

Masterson looks at the face of the agreement as in Mitchill, and what else?

Answer 20

Intent of the parties

Question 21

What is an integrated agreement?

Answer 21

An agreement that embodies the entire agreement of the parties

Question 22

What might a merger clause look like?

Answer 22

This agreement encompasses the entire agreement, supersedes all other negotiations, and shall constitute exclusive basis of the bargain.

Question 23

What effect will a merger clause have on a finding of an integrated agreement?

Answer 23

It is merely evidence of an integrated agreement, not proof. It does not foreclose a party from arguing against a finding of integration

Question 24

Was a merger clause present in Mitchill?

Answer 24

No

Question 25

Was a merger clause present in Masterson?

Answer 25

No

Question 26

What is a partially integrated agreement?

Answer 26

An agreement that is integrated as to one or more terms (AND case)

Question 27

In the AND case, the owner approval clause was argued to be limited to only approval of the price. Was this PE allowed in? Why or Why not?

Answer 27

It was not allowed in because it was inconsistent with a written term

Question 28

The AND court applies a three part test for applying the PER. What is this test?

Answer 28

1) Partial Integration Test. Was the written agreement partially integrated regarding the extrinsic evidence put forth? If yes, apply PER 2) Consistency Test Is alleged prior or contemporaneous agreement inconsistent with integrated portion? If yes, apply PER 3) Exclusive Statement (Complete Integration) Test. If evidence does not contradict, would the nature of the evidence “necessarily” mean it would have been included in the writing? If yes, apply PER

Question 29

The AND court has a confusing definition for the word “inconsistency.” What is it?

Answer 29

the absence of reasonable harmony

Question 30

In Suburban Leisure there were two agreements. An oral franchise agreement and a written ecommerce agreement with a merger clause. The ecommerce agreement came after the oral franchise agreement. Did these two agreements merge?

Answer 30

No. They are independent and under Mitchill cannot merge.

Question 31

According to the Unexpected Spouse hypothetical, if both parties manifest assent to a term that would mean X to a reasonable person, but both parties intended it to mean Y. Which meaning prevails?

Answer 31

Y

Question 32

To be admitted into evidence, the oral agreement must not ______ be expected to be part of writing. What goes in the blank according to the AND case?

Answer 32

necessarily

Question 33

As far as adverbs go, AND, Mitchill, the UCC and the Restatement pose four different ones. AND is most similar to which of the four? What about Mitchill?

Answer 33

AND is practically equal to the UCC and Mitchilll is practically equal to the Restatement

Question 34

Suppose A and B sign a k for the sale of a car. The k has an integration clause. The k also has an arbitration clause. A and B simultaneously agree that A will mow B’s lawn for $20 a week. A and B later have a dispute about the frequency of lawn mowing. Does week mean calendar week or work week? Do they have to arbitrate this dispute under AND?

Answer 34

Conclusion: The lawn mowing agreement is a separate agreement. The parol evidence will come in. Applying the AND Test: 1) The agreement was partially integrated, but not as to lawn mowing. 2) Oral evidence is consistent with the writing 3) the lawn mowing week definition is not something that “necessarily” would have been in the writing.

Question 35

When testing the integration of a k, look at which case?

Answer 35

AND

Question 36

Remember, when you’re dealing with the sale of GOODS always use which test?

Answer 36

UCC

Question 37

An independent agreement is based on what?

Answer 37

Independent consideration

Question 38

If the PER question does not specify which rule controls, what analysis should be performed?

Answer 38

An analysis under both prevailing rules: the AND/UCC test and the Restatement/Mitchill test. The exception is that if the contract is for the sale of goods, always use the UCC

Question 39

What is a collateral agreement?

Answer 39

A side agreement that is made with the same consideration, an inducement