Parol Evidence Rule

No, I didn't spell parole incorrectly... the rather uncommonly used word parol is used in the same sense as one would use the word oral or verbal. This rule, effective in United States courts, states that you may not give parol evidence in court to vary or contradict the otherwise unambiguous terms of a written contract. You may, however, explain or clarify something ambiguously written, or note that there was a verbal agreement in addition to the written contract.

Say, for example, that you sign a contract with your dealer, to the effect that you agree to pay him $10 for a dimebag next Tuesday. As you're looking over the document, you happen to ask him whether there will be any seeds or stems in the sack, and he promises you that he'll go through and take them out. If it turns out that the sack he presents you with when Tuesday rolls around is chock full of seeds, you can take him to court*, and testify that there was a verbal agreement in addition to the written one, whereby he promised to de-seed the weed. Of course, you would want to back up your case by calling any witnesses who might have been present at the time, or referring to past instances where he has promised and delivered seedless products.

But say that there is a small line of text at the bottom of the written agreement, which stated that "Removal of seeds and stems is not guaranteed." You ask him about this line before you sign the document, being the careful emptor that you are, and he replies that there's no reason why he wouldn't remove them... it is part of his stash, after all. If he gives you a seedful sack, and you try to take him to court, you will not be allowed to say that such a verbal agreement took place, because that would contradict a very straight-forward statement which you agreed to in the written contract.

The moral? If someone tells you to sign a written contract whose terms are in conflict with a verbal agreement you've established, DON'T SIGN THE CONTRACT. This gives the other party a perfect opportunity to fuck you over and remain legally immune.

Many written contracts have a merger clause, stating that there are no agreements between the two parties outside the terms presented therein. These are useful for avoiding sticky situations like the one presented above, but you should take note if there is such a clause in a contract you're about to sign, and make sure that anything you want out of the deal is stated explicitly on paper. Remember, from a legal point of view, all contracts are negotiable... if handwritten changes are made on a typed contract, and there's a discrepency between the two, the terms that are written by hand are the ones that apply (unless you can prove that someone altered the contract after it was signed... that's against the law).

* this is probably a bad idea, though

The parol evidence rule: A South African perspective

The authors of one of the standard South African texts on the law of evidence, Hoffman & Zeffert, say the “the parol evidence rule . . . shares with the Holy Roman Empire the distinction of being misleading in all three of its component parts.” The Holy Roman Empire wasn’t holy, Roman or an empire to really speak of.

The parol evidence rule was received into South African law through English law. This was largely as a result of judicial influence, as most of the country’s best judges in the early years of the (then) Union of South Africa (and even before) which was established in 1910, were educated in England. The result was that they incorporated particular mechanisms from English law and grafted them onto the Roman-Dutch principles of the law of South Africa as it was at the time. But to return to the three component parts of the rule in South African law:

1. Two rules, not one

The parol evidence rule has application in instances where parties to an agreement (contract), elect to reduce the terms of their agreement to writing. For this reason, the parol evidence rule is not a single rule, but effectively two rules, the first dealing with whether the document containing the terms of the agreement is in fact the complete agreement (i.e. whether the document contains a “full integration” of the consensus that gave rise to agreement), while the second relates to the question to which extent proof of facts extraneous to the integration (=document) may have some effect on the interpretation or meaning of the terms evidenced by the integration.

2. Not a rule of evidence, but rather substantive law

The two constituent parts of the parol evidence rule actually are not rules of evidence, but rules relating to the substantive law in respect of agreements reduced to writing.

3. What the rule deals with

While the “rule” purports to relate to oral (“parol”) evidence, it is misleading, as it also relates to any other kind of evidence that may pertain to the construction placed on the integration of the agreement between the parties, such as documents, e.g. letters purporting to be proof of negotiations leading up to the agreement, or even real evidence such as recordings or photographs etc.

What the rule provides

Once is has been established that an agreement was reached which the parties embodied in a document or other form of writing (perhaps even an electronic version), the question arises as to whether the writing represents fully all the terms of the agreement. In the absence of proof that the parties intended that the writing would represent only a part of the agreement reached between them, our courts deem the integration to represent the full and complete version of the agreement. The parol evidence rule now precludes any party to the agreement from adducing evidence at trial that seeks to either disprove any term or terms of the agreement, or seeks to vary any of the terms in the agreement.

The rationale behind the rule is simply one that holds a party to a contract to his or her bargain, prohibiting any party from later attempting to vary the agreement or to attempt to prove the agreement to have been made on terms meaning something else than what appears on the face of it from the document. For that reason: Caveat subscriptor.

(Note: This does not pretend to be a complete and comprehensive explanation of the parol evidence rule as it functions in South African law. It is only a very brief summary.)