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Faculty Scholarship Series Yale Law School Faculty Scholarship 1-1-1944 The Parol Evidence Rule
Arthur Corbin
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Corbin, Arthur, "The Parol Evidence Rule" (1944). Faculty Scholarship Series. Paper 2901.
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more information, please contact [email protected] THE YALE LAW JOURNAL
VOLUiE
VOLUME 53 SEPTEMBER, 1944 NUmBER
NUMBER 4 THE PAROL EVIDENCE
EVIDENCE RULE
ARTHUR
ARTHUR L. CORBIN
CORBIN t
expressed it in a
WHEN
WHEN two parties have made a contract and have e.xpressed
writing to which they have both assented as the complete
complete and accurate
integration of that contract, evidence, whether parol or otherwise, of anintegration
tecedent
tecedent understandings
understandings and negotiations will not be admitted for the
contradicting the writing. This is in substance what
what
purpose of varying or contradicting
"parol evidence rule,"
rule," a rule that does not deserve
is called the "parol
deserve to be called
called
a rule of evidence of any kind, and a rule that is as truly applicable
applicable to
to
name for this
written evidence
evidence as to parol evidence.
evidence. The use of such a name
rule has had unfortunate
unfortunate consequences, principally by distracting
distracting attention
attention
any one or
from the real issues that are involved. These issues may be anyone
or
(2) Is
more of the following: (1)
(1) Have
Have the parties made a contract?
contract? (2)
Is
that contract
contract void or voidable
voidable because of illegality, fraud, mistake, or any
(3) Did the parties assent to a particular writing as the
other
other reason? (3)
complete
complete and accurate integration
integration of that contract ??1
"parol evidence rule" to be apIn determining these issues, there is no "parol
In
plied. On these issues, no relevant evidence, whether
whether parol
parol or otherwise,
othen'lise,
is excluded. No written document is sufficient,
sufficient, standing alone, to deterhowever
one of them, however
mine any
anyone
however long and detailed it may be, however
formal, and however many may be the seals and signatures and assertions. In
In determining
determining these issues, however, there is no necessity for
for
being gullible or simple minded. The party presenting the writing will •
completeness. The form
testify to its execution
execution and to its accuracy and completeness.
document may strongly corroborate
corroborate his testimony;
testimony;
and substance
substance of the document
or it may not. There may be disinterested
disinterested witnesses who corroborate
corroborate him
may or may not be corroboration
or contradict
contradict him. There
There mayor
corroboration by virtue of
of
other circumstances that are
are proved. When
\Vhen the other party testifies to
contrary on any of these issues, he should always be listened to; but
the contrary
but
School.
ttWilliam
William K. Townsend, Professor of Law, Emeritus, Yale Law
Law School.
1. A contract may be held to be fully integrated
integrated in writing, even
even though there are
arc
See Curtis v. Pierce, 157 Ga.
several writings in which parts of the contract
contract are contained. Sec
Gao
(bond for deed, inventory, and writing setting out terms of
717, 122 S. E. 208 (1924)
(1924) (bond
of
(1924) (three
agreement) ; Sig. C. Mayer
agreement);
Mayer &
& Co. v. Smith, 112 Ore. 559, 230 Pac. 355 (1924)
telegrams).
telegrams).
603 HeinOnline -- 53 Yale L. J. 603 1943-1944 604 THE YALE
YALE LAW
LAW JOURNAL [Vol. 53 : 603
[Vol. overwhelmed
he does not have to be believed. His testimony may be so overwhelmed
that it would be credited
credited by no reasonable man; or it may not. Perhaps a
verdict should be directed; but perhaps
perhaps not. This is a question of weight
admissibility.2
of evidence, not of admissibility.2
2. In Strakosch
Strakoseh v. Connecticut Trust &
& Safe
Safe Deposit
Deposit Co., 96 Conn. 471, 479, 114 Ati.
AU.
(1921) the court said: "Whether the parties intended the writing to embody
660, 663 (1921)
embody
be
their entire
entire oral agreement or only a part of it, was a question for the trial court, to be
determined from the conduct and language
language of the parties and the surrounding
surrounding circumstances.
circumstances•
agreement in the writing,
....• . Where
Where the parties
parties do not intend to embody their entire oral
oral agreement
E, 555
the rule invoked
invoked does not apply." In Higgs v. Maziroff,
Maziroff, 263 N. Y. 473, 189 N. E.
555
(1934),
(1934), a written contract
contract for a loan provided that the defendant should give a note
note
for $15,000
$15,000 payable
.for
payable in nine months. In an action on this note, the defendant testified
testified
objection
without obj
ection that the plaintiff
plaintiff had agreed the note was to be payable
payable only out of the
proceeds of certain paintings desposited as security. The trial court's judgment for the
contract was as matter
law
defendant was reversed
reversed on appeal, the court
court saying, "The
"The contraot
matter of taw
integrated
Id. at 479, 189 N. E. at 557. It may be that the partieg
integrated by the writings."
writings." ld.
parties had
had
.he writing
both assented
assented to <the
writing as a complete integration intending to nullify plaintiff's
plaintiff's inin·
consistent assurance as to payment. Such assent and intention, however,
howc.ver, was a question
*amatter mainly
of fact, not of law and should have been regarded
regarded as 'a
mainly for the trial court.
court.
The Court
Court of Appeals should not have
have reversed unless the weight of evidence against the
defendant was obviously overwhelming. Although defendant's oral testimony, in concon·
tradiction of the writing, was received
received without objection, the plaintiff moved to dismiss
the defense
the defendant's case for lack of proof, and because
agreedefense at the close of <the
because "the agree·
... does not contain
ment •..
contain any condition
condition such as claimed." The trial judge denied this
this
motion; it does not appear why. Nor does a factual basis appear for the Court of Appeals'
deholding that this denial was error. It reversed the trial court's judgment for the de·
writings." Id.
ld. at
fendant, stating "The
"The contract was as matter of law integrated by the writings."
Zell v. American
479, 189 N. E. at 557. See comment
comment on this case in Zeit
American Seating Co.,
Co., 138 F.
F.
(2d)
1943). Such a rationale
Tile existence
(2d) 641,
641, 643 (C. C. A. 2d, 1943).
rationale is clearly erroneous. The
existence
of an "integration"
"integration" as the act of the parties is a matter of fact, not a "matter of law." In
the case before the court, credible evidence
evidence had been
been presented
presented that the writings were
were not a
complete and accurate
complete
accurate integration.
integration. The trial court believed that evidence to be true.
summarily reversed, directing judgment
The appellate court
court should not have summarily
judgment for the
plaintiff. Possibly it would have
have been
been justified in ordering a new trial, with directions
to permit the plaintiff to introduce
introduce testimony
testimony in rebuttal
rebuttal of the defendant's oral testimony.
In Pitcairn v. Philip Hiss Co., 125
(C. C. A. 3d,
1903), there was a written
125 Fed. 110 (C.
3d, 1903),
contract for interior
decontract
interior decoration. In a suit for the price of the completed work, the de·
fendant was allowed to testify without objection that the duty to pay was by mutual agree·
agreement conditional on the approval of the work by the defendant's
defendant's wife. The plaintiff
plaintiff
testified
testimony
testified to the contrary. The
The trial judge instructed
instructed the jury that the oral testimony
must be disregarded
disregarded even if they believed it to be true, and this instruction
instruction was sustained
by the court of appeals. The court
rule" is a rule of
court thought
thought that the "parol evidence rule"
substantive law, making oral agreements inoperative. As to this the court was correct,
substantive
correct;
but its decision
decision was nevertheless erroneous. The written integration makes
makes the previous
understanding
executing the integration the parties in fact agree
understanding inoperative only if in executing
upon it as the final and complete statement
statement of terms. The evidence of such agreement
agreement
before
before the court, other
other than the written instrument itself, was the plaintiff's positive
positive
testimony. This testimony was flatly denied by the defendant, his wife, and her niece,
niece,
who testified that the defendant said when he signed the writing that he did so only on
the express condition of satisfaction. If this testimony
testimony is believed,
believed, there is no rule of
of HeinOnline -- 53 Yale L. J. 604 1943-1944 1944]
19441 PAROL
PAROL EVIDENCE
EVIDENCE RULE
RULE 605 In hundreds
hundreds of cases
cases stating
stating and
and purporting
purporting to
to apply
apply the
the "parol
"parol evieviIn
the
dence rule,"
rule," the reported
reported opinion
opinion has
has failed
failed to
to indicate
indicate the
the basis
hasis of the
dence
d in
(or assumption)
assumption) that
that the
the writing
writing presente
pr~$entctl
in court
court had
had
court's finding
finding (or
court's
integration of agreeagreefact been
been assented
assented to
to as the complete
complete and final integration
in fact
ment.
of little
little or
or no
no service
sen'ice as
as precedents:
precedents: and
and it isis futile
ment. Such
Such cases
cases are
are of
to
many such cases,
cases, itit may
may not
not have
have been
been subsubto cite them
them in
in this
this article.
article. In many
e.xecuted as a complete
complete integration;
integration;
stantially disputed
disputed that
that the
the writing
writing was
was executed
stantially
showand the
the testimony
testimony offered
offered may
may have
have been
been solely
solely for
for the
the purpose
purpose of showearlier negotiations
negotiations were
were different
different and
and that
that the document
document would
would
ing that earlier
not have been executed
e.xecuted had
had those
those negotiations
negotiations been
been recalled
recalled tu
tu mind
mind at
at
the time of execution.
execution. But such forgetfulness would not have
have prevented
prevented
written contract
contract from being enforceable
enforceable according
according to its
its expressed
expressed
the written
or
unless there had
had been
been such
such a "mistake"
"mistake" as justified
justified rescission
rescission or
terms, unless
reformation.
reformation.
other cases
cases the evidence
evidence offered
offered to prove an assertion
assertion that the writing
writing
In other
assented to as a complete
complete integration,
integration, may have been quite unwas not assented
credibility of evidence
evidence is mainly a question for the
worthy of belief. The credibility
worthy
When the appellate
appellate court later said that the evidence
e\'idence offered
offered
trial court. 'When
admissible, it may in fact have
to vary or contradict the writing was not achnissible,
merely assenting
assenting to the trial court's
court's finding made
made after
after listening
listening to the
been merely
evidence.
evidence. 33
In still other cases, both the trial court and the appellate court may have
correctness of the writing, merely by reason
completeness and correctness
assumed the completeness I question is one as to
the oral agreement
substantive
substantive law that makes ,the
agreement inoperative.
inoperath·c. The questiull
Evidence Rule
McCormick, The Parol
Parol E~'idellee
Rille as aa Proacdural
Pro,'cdural Dcvce
Dct.jec
weight of testimony. See :McCormick,
J. 365. See the case
YAan L. J.
Jury (1932)
for
Control of the 1:lr;),'
for COlltrol
(1932) 41 YALE
QSe of Zell v. American
American Seatenlightening opinion,
1943). With an enlightening
(2d) 641 (C. C. A. 2d, 1943).
opinion, the court
ing Co., 138 F. (2d)
that
there correctly held that the "parol evidence rule" is a rule of substantive
substantive law and tllat
intentionally omitted a term from the writit does not exclude
c.....elude evidence
evidence that the parties intentionatly
percentage contingent
contingent
ing, such as the promise by an employer, there involved, to pay a percentage
xwas sO
so made
fee to his agent, in addition to the stated salary of $1,000
$1,000 per month, which was
should become
which might result" if the provision should
"avoid any possible stigma whiell
in order to "avoid
for
judgment for
known to third parties. It
It was error for the trial court to render summary judgment
the defendant when sued for the promised compensation. Surprisingly, however, the
per ctlriam
curiamn
Supreme
Supreme Court reversed the decision of the Circuit Court of Appeals in a per
Appeals
the Circuit Court of Appeals
decision. In this case two members
members of the court think that tlle
reversed and the
judgment should be re\'ersed
should
should be affirmed.
affirmed. Seven are of the opinion that the judgment
alleged in
District Court affirmed. Four because proof of the contrast alleged
judgment of
of the District
the applicable
by tlle
respondent's affidavits on the motion'
for summary judgment is precluded by
motion'for
is contrary to public policy and
contract is
state parol evidence rule, and three because the contract
does
Such an opinion dlX:S
1944). Such
void, American Seating
(U. S. 1944).
1053 (U.
v. Zett,
Zell, 64 Sup. Ct. 1053
Seating Co. v.
not
rule."
evidence rule."
existing law as to the "parol e\'idence
the c.~sting
not affect the
124, 258 Pac.
Heath, 70 Utah 124,258
Co. \'.
Y.HcaUl,
is Hatloran-Judge
Halloran-Judge Trust Co.
case is
3. An
An illustrative case
3.
it, the
weighing it,
342
the trial court; after weighing
admitted by Ule
wvas admitted
evidence was
The oral evidence
(1927). The
342 (1927).
finding
court
such aa finding
course such
full integration. Of course
was aa full
court made a finding that the writing was
be applicable to aa
generally be
rule should gcncratly
should seldom be reversed on
A similar
similar rule
on appeal.
appeal. A
finding that
full integration.
integration.
that the writing is not aa futl HeinOnline -- 53 Yale L. J. 605 1943-1944 606
606 LAW JOURNAL
YALE LAW
THE YALE [Vol.
53:: 603
[Vo1.53 of the form and content of the document itself; but the opinion of the
appellate court is seldom sufficient
sufficient to show that such an assumption was
made without supporting evidence. In such cases, it is impossible to tell
decision was correct; and once more the report fails
whether or not the decision
to show a precedent
precedent that can be followed.44
All these cases may, indeed, be accepted as precedents
precedents for the proposiproposicontract in the form
tion that if the parties
parties have stated the terms of their contrClct
written integration, it cannot be varied or contradicted
contradicted by
by
of a complete written
proof of antecedent
antec;edent negotiations
negotiations and agreements.
agreements. This is a mere statement of the obvious. There is no need to support it by a thousand citations.P
tions.P
greater
It should be clearly observed
observed that
tIlat a written integration
integration has no greater
understandings and agreements
effect upon antecedent
antecedent parol understandings
agreements than a parol
integration
integration has upon antecedent
antecedent written agreements. In
Ttl both cases
cases alike,
agreement discharges the antecedent ones in so far as it contrathe later agreement
dicts or is inconsistent with the earlier ones. In both
both cases it must be
agreement was in fact made and that its terms were
shown that the later agreement
assented to, especially those terms that vary or contradict antecedent
antecedent exassented
agreements..
pressions and agreements.?
character as a complete
4. That the document cannot, by itself, prove its own character
complete inte"The
1940) § 2430(2)
gration
EVIDENCE (3d ed. 1940)
2430(2):: "The
gration is asserted
asserted by Wignore.
Wigmore. 9 WIGMORE, EVIDENCE
id. at §§2431,
document
document alone
alone will not suffice"; id.
2431, the proposition
proposition that "the writing is the
practice."
•.. is untenable,
untenable, both on principle
principle and in practice."
sole criterion ...
J. Eq.
Eq. 207,
5. An illustrative case is Childs v. South Jersey Amusement
5.
Amusement Co., 95 N. ].
in
(1923), where a mortgage
122 Atl. 803 (1923),
mortgage was given to secure payment of a sum of money itt
one year. The court held that foreclosure for non-payment in one year would not be
had
denied because
because of testimony
testimony that before
before execution of the mortgage the plaintiff
plaintiff hud
payment for two years. The defendant clearly understood
understood the
promised not to require payment
says: "Such
"Such is
Wigrnore S3Y5:
terms of the writing and did not even assert that he did not. Wigmore
the complexity of circumstance and the variety of documentary phraseology, and so
or
controlling authority or
minute
minute the indicia
indicia of intent, that one ruling can seldom be of controllittg
even of utility for a subsequent
subsequent one. The opinions of judges
judges are cumbered
cumbered with citations
citations
serv~ no purpose there except
except to prove what is not disputedi-the
disputed,-the general
general
of cases which serve
WIGmoRE, EVIDENCE,
principle."
EVIDENCE, § 2442.
principle." 9 WIGMORE,
§§ 240,
RESTATEMENT,
RESTATEllffiNT, CONTMAcTs
CONTRACTS (1932)
(1932) § 237, reads as follows: "Except
"Except as stated in §§
240,
agreeagreement makes inoperative
241, the integration of an agreement
inoperative to add to or to vary the agreesubject-matter; and
contemporaneous oral agreements
ment all contemporaneous
agreements relating to the same subject-matter;
voidable and avoided, all prior oral
oral or written
also, unless the integration is void, or voidable
agreements relating thereto. If either void or voidable
voidable and avoided, the integration
integration leaves
leaves
agreements
unaffected."
the operation of prior agreements
agreements unaffected."
objec:ed that "parol integration"
It may be objec~ed
6. It
integration" is a contradiction in terms; and so
"integration" means paper and ink. The phrase
it is, if "parol" means oral and "integration"
phrase is here
the terms of which are definitely
definitely asintentionally used to describe an oral agreement, ,the
sented to and satisfactorily proved. In the light of the habits of men, paper
paper and ink may
sentell
be strongly evidential
evidential of assent and of completeness and finality; but they do not constitute conclusive evidence. The "parol
"parol evidence
evidence rule"
rule" might well have been stated in
rule."
this fashion, as a "paper
"paper and ink rule." HeinOnline -- 53 Yale L. J. 606 1943-1944 1944]
19+1] PAROL EVIDENCE
PAROL
EVIDENCE RULE
RULE 607 Contracts Can Be Discharged
Discharged by
All Confrads
by a Substituted
Sul'sfitufed Agreement.
Agrecmcnt. Any
contract, however made
ihade or evidenced, can be discharged or modified bi'
by
subsequent agreement
agreement of the parties.
subsequent
parties.;7 No contract whether oral or written
written
discharged by an antecedent
antecedent agreement.
can be varied, contradicted, or dischargcd
Today
may
control
the
effect
of
what
happened
yesterday;
but what hapToday
effect
happened
pened yesterday cannot change the effect of what happens today. This, it
it
is believed, is the substance
substan...
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