Parol Evidence Flow-Chart
(Final expression
w.r.t. one or more
terms => §209)
Writing
INTEGRATED?
No
Not (~) Discharged (~D)
Yes
Admissible (A)
Completely Integrated? §210
Partially Integrated
Agreement
No
Yes
Parol Agreement Consistent?
D
~A
~D
A
No
Yes
Parol
Agreement
w/in scope?
w/in scope
~D
A
No
D
~A
Yes
Inconsistent
I.e. partially integrated agreement kicks out all
inconsistent terms. Fully integrated agreement
kicks out all terms w/in scope
Integrated: A writing is “integrated” if it contains at least one term intended by the parties to be their final
expression of agreement as to that term, i.e., the term is no longer meant to be part of a preliminary draft or
negotiation, but rather is the term to which both parties have agreed to be bound. Restatement 2d § 209(1).
Partially Integrated: A writing is “partially integrated” if the parties intended it to be the final expression of at least
one term, but did not intend it to be a final expression of all terms of the agreement. Restatement 2d § 210(2). If a
writing is partially integrated, some parol evidence is admissible to supplement the writing.
Totally Integrated: A writing is “totally integrated” if it is intended to be the complete and exclusive expression as
to all terms of the agreement. Restatement 2d § 210(1). If a writing is totally integrated, no evidence of any parol
term can be admitted. Restatement 2d §§ 210, 213, 215, 216. This makes sense because if a writing is found to be
a wholly integrated contract, by definition, the parties have intended for it to be the complete statement of their
final agreement and there is no term that was supposed to be part of the agreement that was not found in the
written agreement.
Principles of Interpretation and Construction
i. Tools of Interpretation (#s 1-5 Ordered from Most to Least Persuasive, reading down)
1.
Language (Canons of Interpretation)
a.
Contra proferentum (last resort) (against its author or profferor)
b.
Specific controls general
c.
Canon against surplusage
d.
Expression of one thing is the exclusion of another (expression unius
est exclusio alterius) (e.g. Galligan where expression of 7 things but
not one under study [lawn]; Greenfield)
i. Ways to work around this canon: “w/out limitation to the
foregoing” or “including, but not limited to,…”
e.
Of the same kind (ejusdem generis) (trying to infer a general term as
drawn from a specific term)
f.
It is known from its associates (noscitur asociis) (trying to discern
meaning of a specific term w/ 2 different meanings)
2.
Negotiating History
3.
Course of Performance (what the parties have done so far w.r.t. this specific K)
4.
Course of Dealing (evidence of how these parties have dealt w/ each other prior)
5.
Trade Usage (e.g. reasonable profits)
ii. Construction
1.
Default Terms (Majoritarian, Policy-Based, Penalty)
a.
Warranties: (1) implied warranty of merchantability, and (2) implied
warranty of fitness for purpose (“sold as is” (*))
b.
2.
Can be contracted out of, but certain obstacles present, such as w/ *
Non-Waivable Terms (e.g. implied duty of g.f. and fair dealing § 205)