Parole Evidence Rule Flashcards
PER
when parties express their agreement in a writing with the intent that it embody the final expression of their bargain, the writing is an integration. Any other expressions written or oral made prior to the writing as well as any oral expressions contemporaneous with the writing are inadmissible to vary the terms of the writing.
Is the writing an integration?
- was writing intended to be a final expression
2. whether the integration was intended to be complete or partial
Partial integration
writing may be supplemented by proving consistent additional terms. UCC presumes all writings are partial
merger clauses
recited it is complete agreement of parties. modern trend is to consider this a factor that it is complete. ANOTHER PARTY HAS TO SEE IT.
Interpretation
if there is uncertainty or ambiguity in the written agreement’s terms or a dispute as to the meaning of those terms, parole evidence can be received to aid the fact finder in reaching a correct interpretation of the agreement.
subsequent modifications
PER can be used to show this
Additional terms under article 2
a party cannot contradict a written contract but may add consistent additional terms unless:
1) there is a merger clause
2) courts find from all of the circumstances the writing is complete
Course of performance, course of dealing, usage of trade
UCC states that a written contracts terms may be explained or supplemented by evidence of this even if writing is ambiguous.
The owner of an art gallery entered into a written contract with an avid art collector whereby the art collector agreed to buy and the gallery owner agreed to sell for $7,500 any painting in the gallery by artist Alpha. The contract was to be executed on July 6 according to its written terms. The art collector went to the gallery on July 6 with a certified check in the amount of $7,500. The art collector pointed out a painting by a different artist hanging on the wall, and told the gallery owner that that was the painting he wanted, and that he would also take its old-fashioned $250 gilt frame to go with it. The gallery owner responded that the painting was by the artist Beta, but that the art collector could have it with the frame if he was willing to pay $250 extra for it. This enraged the art collector, and he filed suit against the gallery owner, asserting in his pleading that he remains able and willing to tender $7,500 to the gallery owner. He also asserts that prior to signing the contract, the parties agreed orally that the art collector could have a painting by Beta for the same price in lieu of one by Alpha, and that the gallery owner would throw in the frame for whatever painting he chose. The gallery owner denied that any such conversation took place. There are no other witnesses.
About which agreements should the court allow the art collector to testify?
Under the UCC, which applies here because a sale of goods is involved, a writing is presumed not to be the complete and exclusive integration of all of the terms of the agreement. While the presumption may be overcome if the parties actually intended a total integration or it is certain that similarly situated parties would have included that term, there is no indication of that in these facts. Given that the subject of the contract was a $7,500 painting, a promise to throw in a frame priced at a fraction of the cost of the painting is likely to be found to be a consistent additional term. Given this finding, evidence of the alleged agreement regarding the frame will be admissible for the purpose of supplementing the terms of the writing.
