Performance and Parol Evidence

Question 1

What is parol evidence?

Answer 1

Parol Evidence Rule: evidence contemporaneously or prior to final written contract.

Question 2

True or false: Parol Evidence applies to modifications and amendments after a contract has been formed.

Answer 2

False. DOES NOT APPLY to modifications or amendments after the fact.

ONLY refers to evidence from before or when a contract was finalized

Question 3

What is the primary question to ask when determining if the parol evidence rule applies?

Answer 3

Have the parties created an integrated writing?

Complete integration—the contract expresses all terms of the agreement

Partial integration—there is a final writing, but some terms are not included.

Question 4

How do you distinguish an agreement that is not integrated from one that is completely or partially integrated?

Answer 4

1) Look for a merger clause (evidence of complete integration)
2) Courts may also ask whether, under the circumstances, an extrinsic term of the agreement would “naturally be omitted” from the writing (evidence of partial integration, bring in non-conflicting evidence)

Question 5

How does the UCC approach parol evidence?

Answer 5

UCC presumes that a writing is, at most, only a partial integration—unless the parties would have certainly included a disputed term in the writing

Question 6

What are the situations where there is a fully integrated contract, yet parol evidence does not apply (extrinsic evidence not barred)?

Answer 6

1) Relevant to a defense against contract formation (duress, mistake, fraud, etc.)

2) Evidence of a second, separate deal

3) Prior communication that is designed to interpret an ambiguous term in the final contract.

Question 7

What’s the difference b/t SOF and Parol Evidence?

Answer 7

If the question does not have a signed writing, think SOF

If the question does have a signed writing, along with an earlier discussion of the deal, think Parol Evidence