PER

Question 1

Has the K been performed? (4)

Answer 1

ACDS – agreement, consideration, defense to formation, SOF

PER
Warranties
Conditions
Excuses

Question 2

What is the PER? When does it apply?

Answer 2

When the parties have reduced their K to a comprehensive writing, then earlier statements or writings relating to the agreement are not part of the deal under the PER.

• Later writings/statements about deal = not barred by PER; these are modifications
• Earlier writings/statements about deal = barred by PER

Question 3

How do you know PER is triggered?

Answer 3

The intent of the parties determines whether integration–thus triggering PER–occurred.

If the writing is completely integrated, the K expresses all terms of the agreement and PER bars all other evidence. Look for merger clause.

If the writing is partially integrated, the K expresses some but not all of the terms included in the agreement. Parties can introduce outside evidence of other terms of the agreement, provided it is CONSISTENT with the writing.

If document is not integration, then PER does not apply. (document is merely a preliminary negotiation or tentative draft)

Question 4

Triggering PER CL v UCC

Answer 4

CL: if extrinsic term would “naturally be omitted” from a writing, term can be introduced as long as it doesn’t contradict the writing.

UCC: court presumes that a writing is, at most, a partial integration and allows any additional consistent terms UNLESS the parties would have “certainly” included the disputed term in the writing.

Question 5

Situations in which the PER does not bar earlier evidence (3)

Answer 5

PER does not bar evidence relevant to a defense against K formation (duress, mistake, etc.)

PER does not bar earlier evidence, even if completely integrated, to show that there is a second, separate deal.

PER does not bar earlier evidence, even if completely integrated, when an ambiguous term is in the final agreement and needs to be interpreted.