Editing Contracts/Parol evidence rule

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The '''parol evidence rule''' prevents parties who have reduced their agreement to a final written document from later introducing other evidence, such as the content of <span style="background:orange">oral discussions</span> from earlier in the negotiation process, as evidence of a different intent as to the terms of the contract. The rule provides that "<span style="background:yellow">extrinsic evidence is inadmissible to vary a written contract</span>". 

The term "parol" derives from the Anglo-Norman French ''parol'' or ''parole'', meaning "word of mouth" or "verbal", and in medieval times referred to oral pleadings in a court case.<ref>"Parol", ''Black's Law Dictionary'', 10th ed. (2014).</ref>

The rule's  origins lie in English contract law, but has been adopted in the US; however there are now some differences between English and American applications. For instance, in the US, a common misconception is that it is a rule of evidence (like the Federal Rules of Evidence), but that is not the case;<ref>''[https://scholar.google.com/scholar_case?case=17812765538668910988 Casa Herrera, Inc. v. Beydoun]'', 32 Cal. 4th 336, 9 Cal. Rptr. 3d 97, 83 P.3d 497 (2004).  This case reaffirmed that the parol evidence rule is a substantive rule of law and not a mere procedural or evidentiary defense, and then held on that basis that a dismissal of a case on the basis of the parol evidence rule is a favorable termination on the merits sufficient to support a subsequent action for [[malicious prosecution]].</ref> whereas in England it is indeed a rule of evidence.<ref>''[[Leduc v Ward]]''</ref><ref>''Pym v Campbell'' [1856]</ref><ref>'' Henderson v Arthur'' [1907] CA</ref>
			
The supporting rationale for this is that since the contracting parties have reduced their agreement to a single and final writing, <span style="background:yellow">extrinsic evidence</span> of past agreements or terms should not be considered when interpreting that writing, as the parties had decided to ultimately leave them out of the contract. In other words, one may not use evidence made prior to the written contract to contradict the writing. 

==Overview==
The rule applies to parol evidence, as well as other <span style="background:yellow">extrinsic evidence</span> (such as written correspondence that does not form a separate contract) regarding a contract.  If a contract is in writing and final to at least one term (integrated), <u>parol</u> or <span style="background:yellow">extrinsic evidence</span> will generally be excluded.<ref name=Codelfa>{{cite AustLII|HCA|24|1982|litigants=[[Codelfa Construction Pty Ltd v State Rail Authority of NSW]] |parallelcite=(1982) 149 [[Commonwealth Law Reports|CLR]] 337 |courtname=auto |date=11 May 1982}}.</ref> However, there are a number of exceptions to this general rule, including for 
# partially integrated contracts, 
# agreements with separate consideration, 
# to <u>resolve ambiguities</u>, or 
# to establish contract defenses.

To take an example, Carl agrees in writing to sell Betty a car for $1,000, but later, Betty argues that Carl earlier told her that she would only need to pay Carl $800.  The parol evidence rule would generally prevent Betty from testifying to this alleged conversation because the testimony ($800) would directly contradict the written contract's terms ($1,000).

The precise extent of the rule varies from jurisdiction to jurisdiction. As a preliminary or threshold issue, the court may first determine if the agreement was in fact totally reduced to a written document or (in US terminology) fully "integrated". In the case of ''State Rail Authority of New South Wales v Heath Outdoor Pty Ltd'' [[Michael McHugh (judge)|McHugh J]] held the parol evidence rule has 'no operation until it is first determined' that all the terms of the contract are in writing.<ref name="SRA v Heath">''State Rail Authority of New South Wales v Heath Outdoor Pty Ltd'' (1986) 7 [[NSW Law Reports|NSWLR]] 170 at 191, [[NSW Court of Appeal]] [http://www.austlii.edu.au/cgi-bin/LawCite?cit=7+NSWLR+170 LawCite records].</ref> This threshold question applies even in those jurisdictions that apply a very strong form of the parol evidence rule, called the "[[Four Corners (law)|Four Corners Rule]]". 

Beyond that, the <span style="background:green">exception</span>s to the parol evidence rule vary between jurisdictions. Examples of circumstances where <span style="background:yellow">extrinsic evidence</span> may be admissible in different jurisdictions include:
* To prove the parties to a contract. A written agreement to sell land signed by Mrs Kenny at times made reference to Mr Kenny, and the court held that oral evidence was admissible and that she was signing for herself and as an agent for her husband.<ref name="Gilberto v Kenny">''Gilberto v Kenny'' (1983) 155 [[Commonwealth Law Reports|CLR]] 691  (15 February 1983) [[High Court of Australia|High Court]] (Australia).</ref>
* To prove a condition precedent. In ''Pym v Campbell'' (1865) 119 ER 903, Pym entered into a written contract with Campbell to sell an interest in an invention. The court allowed Campbell to include the oral terms of acknowledgement that the sale was subject to an inspection and approval by an engineer.  The engineer did not approve the invention.
* To prove that the written document is only part of the contract as in ''[[Hospital Products Ltd v United States Surgical Corporation]]'',<ref name="Hospital Products  HCA">{{Cite AustLII|HCA|64|1984|litigants=[[Hospital Products Ltd v United States Surgical Corporation]] |parallelcite=(1984) 156 [[Commonwealth Law Reports|CLR]] 41 |date=25 October 1984 |courtname=[[High Court of Australia|High Court]]}}.</ref> where the court found for a written contract to be only part of an agreement. In ''State Rail Authority of NSW'' v Heath Outdoor Pty Ltd the court held that the parol evidence rule is persuasive and the evidenciary burden is on the party wishing to establish that the whole contract was not in writing.<ref name="SRA v Heath"/>
* To prove that an implied term of custom or trade usage or past dealings is part of a contract even if not in a written agreement, as in ''[[Hutton v Warren]]''[[Hutton v Warren| [1836] 1 M and W 466]], where the party wishing to add the term bears the evidenciary burden and in this case, a lease had to be read in the light of established custom.
* To prove what is true consideration, not something added to avoid taxes.
* To prove the term or promise is part of a [[collateral contract]].<ref name="Hoyt's Pty Ltd v Spencer">{{cite AustLII|HCA|64|1919|litigants=Hoyt's Pty Ltd v Spencer |parallelcite=[http://www.austlii.edu.au/au/cases/cth/HCA/1919/64.pdf (1919) 27 {{abbr|CLR|Commonwealth Law Reports}} 133] |courtname=auto |date=24 November 1919}}.</ref>
* To aid in the interpretation of existing terms.<ref name=Codelfa/>
* To resolve ambiguity using the ''[[contra proferentem]]'' rule.
* To show, particularly in [[California]], that (1) in light of all the circumstances surrounding the making of the contract, the contract is actually ambiguous (regardless of whether the contract's meaning appears unambiguous at first glance), (2) thus necessitating the use of <span style="background:yellow">extrinsic evidence</span> to determine its ''actual'' meaning.<ref>''[https://scholar.google.com/scholar_case?case=3574754840919265063 Pacific Gas & Elec. Co. v. G. W. Thomas Drayage Co.]'', 69 Cal. 2d 33, 39, 69 Cal. Rptr. 561, 442 P.2d 641  (1968). ''Pacific Gas & Electric'' is one of [[Roger Traynor]]'s most famous (and controversial) opinions, which has been criticized by a number of prominent jurists, including Judge [[Alex Kozinski]] of the U.S. Court of Appeals for the Ninth Circuit.  See ''Trident Center v. Connecticut Gen. Life Ins. Co.'', 847 F.2d 564 (9th Cir. 1988) and Jeffrey W. Stempel, ''Stempel on Insurance Contracts'', 3rd ed., § 4.02, 4-9, n.16 (2006).</ref>
* <span style="background:green">To disprove the validity of the contract</span>.
* To show that an unambiguous term in the contract is in fact a mistaken transcription of a prior valid agreement. Such a claim must be established by [[clear and convincing evidence]], and not merely by the [[preponderance of the evidence]].
* To correct [[Error|mistakes]].
* <span style="background:green">To show wrongful conduct such as [[misrepresentation]], [[fraud]], [[duress]], unconscionability (276 N.E.2d 144, 147), or illegal purpose</span> on the part of one or both parties.<ref name=Wollner1999/>
* To show that [[consideration]] has not actually been paid. For example, if the contract states that A has paid B $1,000 in exchange for a painting, B can introduce evidence that A had never actually conveyed the $1,000.
* To identify the parties, especially if the parties have changed names.
* To imply or incorporate a term of the contract.<ref name="Codelfa"/>
* To make changes in the contract after the original final contract has been agreed to. That is, oral statements can be admitted unless they are barred by a clause in the written contract.<ref name=Wollner1999>Wollner KS. (1999). How to Draft and Interpret Insurance Policies, p 10. Casualty Risk Publishing LLC.</ref>

In order for evidence to fall within this rule, it must involve either 

(1) a written or oral communication made <span style="background:yellow">prior</span> to execution of the written contract; or 

(2) an oral communication made <span style="background:yellow">contemporaneous</span> with execution of the written contract. 

Evidence of a ''<span style="background:yellow">later</span>'' communication will not be barred by this rule, as it is admissible to show a later modification of the contract (although it might be inadmissible for some other reason, such as the [[Statute of frauds]]). 

Similarly, evidence of a <span style="background:yellow">collateral agreement</span> - one that would naturally and normally be included in a separate writing - will not be barred. For example, if A contracts with B to paint B's house for $1,000, B can introduce <span style="background:yellow">extrinsic evidence</span> to show that A also contracted to paint B's storage shed for $100. The agreement to paint the shed would logically be in a separate document from the agreement to paint the house.

Though its name suggests that it is a procedural evidence rule, the consensus of courts and commentators is that the parol evidence rule constitutes substantive contract law.

==Examples==
The parol evidence rule is a common trap for consumers. For example:

* Health club contracts.  You enroll in a health club, and the salesperson tells you that the contract can be cancelled.  You later decide you would like to cancel, but the written contract provides that it is non-cancellable.  The oral promises of the salesperson are generally non-enforceable.  However, the salesperson in misleading you into the terms of the contract constitutes a misrepresentation and you may seek to rescind the contract.  It may also be a violation of [[Consumer protection law]], which may have its own remedies.
* Auto sales agreements.  You purchase a used car, and the salesperson tells you it is "good as new", but the contract provides that the sale is [[as is]].  Again, in most circumstances the written contract controls.  However, this may constitute misrepresentation if it exceeds reasonably accepted "puffing" or "dealers' talk".<ref>''Vulcan Metals Co. v. Simmons Mfg. Co.'', 248 F. 853, 856 (2d Cir. 1918).</ref>
* [[Timeshare]]s.  While in certain jurisdictions, and in certain circumstances, a consumer may have a right of [[rescission]], some people attend real estate sales presentations at which they may feel pressured into immediately signing binding contracts.  Evidence that the contract was entered into under duress will not be precluded by the parol evidence rule.

==Specific jurisdictions==
'''United States'''

In order for the rule to be effective, the contract in question must first be a final integrated writing; it must, in the judgment of the court, be the final agreement between the parties (as opposed to a mere draft, for example).

A final agreement is either a partial or complete integration, provided that it has an agreement on its face indicating its finality.<ref>{{cite journal |last1=Corbin |first1=Arthur L. |title=The Interpretation of Words and the Parol Evidence Rule |volume=50 |journal=[[Cornell Law Quarterly]] |publisher=[[Cornell Law School]] |page=161 |year=1965}}</ref>  If it contains some, but not all, of the terms as to which the parties have agreed then it is a partial integration. This means that the writing was a final agreement between the parties (and not mere preliminary negotiations) as to some terms, but not as to others. On the other hand, if the writing were to contain all of the terms as to which the parties agreed, then it would be a complete integration. One way to ensure that the contract will be found to be a final and complete integration is through the inclusion of a [[merger clause]], which recites that the contract is, in fact, the whole agreement between the parties.  However, many modern cases have found merger clauses to be only a [[rebuttable presumption]].

The importance of the distinction between partial and complete integrations is relevant to what evidence is excluded under the parol evidence rule. For both complete and partial integrations, evidence contradicting the writing is excluded under the parol evidence rule. However, for a partial integration, terms that supplement the writing are admissible. To put it mildly, this can be an extremely subtle (and subjective) distinction.

To put it simply, (1) If the parties intend a complete integration of the contract terms, no parol evidence within the scope of agreement is permitted. (2) If the parties intended a partial integrated agreement, no parol evidence that contradicts anything integrated is permitted. And (3), if the parol evidence is collateral, meaning it regards a different agreement, and does not contradict the integrated terms, and are not terms any reasonable person would always naturally integrate, then the rule does not apply and the evidence is admissible.

In a minority of U.S. states, (Florida, Colorado, and Wisconsin), the parol evidence rule is extremely strong and <span style="background:yellow">extrinsic evidence</span> is always barred from being used to interpret a contract. This is called the [[Four_corners_(law)|Four Corners Rule]], and it is traditional/old. In a Four Corners Rule jurisdiction, there are two basic rules. First, the court will never allow parol evidence if the parties intended a full and completely integrated agreement, and second, the court will only turn to parol evidence if the terms available are wholly ambiguous. The policy is to prevent lying, to protect against doubtful veracity, to enable parties to rely dearly on written contracts, and for judicial efficiency.

===Exceptions===
In most jurisdictions there are numerous exceptions to this rule, and in those jurisdictions, <span style="background:yellow">extrinsic evidence</span> may be admitted for various purposes. This is called the Admission Rule. It favors liberalizing the admission of evidence to determine if the contract was  fully integrated and to determine if the parol evidence is relevant. In these jurisdictions, such as California, one can bring in parol evidence even if the contract is unambiguous on its face, if the parol evidence creates ambiguity. The policy is to get to the actual truth.

The third and final admissibility rule is that under the UCC § 2-202: Parol evidence cannot contradict a writing intended to be the "final expression" of the agreement integrated but may be explained or supplemented by (a) a course of dealing/usage of trade/ course of performance, and by (b) evidence of consistent additional terms unless the writing was also intended to be a complete and exclusive statement of the terms of the agreement.

Additional information on the parol evidence rule may be found in Restatement (Second) of Contracts § 213.

Parol evidence may be used to decide whether a remedy should be granted or denied to one of the parties.

==Cases==
* ''[[Mitchill v. Lath]]'', 1928
*''[[Pacific v. Drayage]]'', 1968

==See also==
*[[Statute of frauds]]

==Notes==
{{reflist|30em}}

==References==
*Cornelius, Steve [https://www.academia.edu/11379276/Redefining_the_Rules_for_the_Admissibility_of_Evidence_in_the_Interpretation_of_Contracts Redefining thee Rules for the Admissibility of Evidence in the Interpretation of Contracts] 2014 De Jure 363
*{{cite book | first = Robert E. | last = Scott | first2 = Jody S. | last2 = Kraus | title = Contract Law and Theory | location = New Providence | publisher = LexisNexis | year = 2013 | isbn = 978-0-7698-4894-5 | ref = harv }}