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Parol Evidence Rule in retrospect

Parol Evidence Rule in retrospect. A PER issue is raised when a party seeks to prove agreement that preceded writing or oral agreement from time of writing, and alleged agreement is not reflected in writing What evidence is affected by PER?

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Parol Evidence Rule in retrospect

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  1. Parol Evidence Rule in retrospect • A PER issue is raised when a party seeks to prove • agreement that preceded writing or oral agreement from time of writing, and • alleged agreement is not reflected in writing • What evidence is affected by PER? • prior written or oral agreement, and contemporaneousoral agreement • does not affect evidence of subsequentagreements The Parol Evidence Rule

  2. PER is not applicable to [§214] • Evidence of integration • Evidence offered to interpretwriting • Evidence offered to prove non-existence or invalidity of agreement • mutual assent & consideration • affirmative defenses (e.g., statute of frauds, misrepresentation, duress, unconscionability, public policy) • impossibility and mistake defenses (forthcoming) • Evidence offer to prove non-contract claim The Parol Evidence Rule

  3. Parol Evidence Flow Chart Separate Transaction The Transaction Described in Writing Resolve Ambiguity Mistake, Formation Defenses Existence of Term Unintegrated Partially Integrated Completely Integrated Is Parol Evidence Admissible? The Parol Evidence Rule

  4. PER Analysis: Step 1 Is writing integrated, and if so, at what level? Is there a “merger” (integration) clause? Modern perspective (minority; Masterson; Nelson dissent): informative Must be specifically agreed upon Williston’s rule (majority; Nelson): decisive Two exceptions: instrument obviously incomplete merger clause product of fraud/mistake • Four Corners Doctrine • (Davis) • ObjectiveTest • (Gianni, Williston) • SubjectiveTest • (Masterson, Rest. (2d) §210) • UCC Approach The Parol Evidence Rule

  5. PER Analysis: Step 2 • If agreement is NOT integrated, then all evidence of other terms is admissible. • If agreement is PARTIALLY integrated, evidence of additional consistent terms is admissible. • Consistency standard may be narrow (only terms that contradict integrated written terms) or broad (any terms that are not in reasonable harmony with integrated written terms) • If agreement is TOTALLY integrated, then all evidence of additional terms is excluded. The Parol Evidence Rule

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