Parol Evidence Rules and the Mechanics of Choice

Georgetown University Law Center <a href="/goto?url=https://scholarship.law.georgetown.edu/" target="_blank">Scholarship @ GEORGETOWN LAW </a>2019 Parol Evidence Rules and the Mechanics of Choice Gregory Klass Georgetown University Law Center, [email protected] This paper can be downloaded free of charge from: https://scholarship.law.georgetown.edu/facpub/2048 https://ssrn.com/abstract=3150616 Gregory Klass, Parol Evidence Rules and the Mechanics of Choice, 20 Theoretical Inq. L. 457 (2019). This open-access article is brought to you by the Georgetown Law Library. Posted with permission of the author. Follow this and additional works at: <a href="/goto?url=https://scholarship.law.georgetown.edu/facpub?utm_source=scholarship.law.georgetown.edu%2Ffacpub%2F2048&utm_medium=PDF&utm_campaign=PDFCoverPages" target="_blank">https:</a><a href="/goto?url=https://scholarship.law.georgetown.edu/facpub?utm_source=scholarship.law.georgetown.edu%2Ffacpub%2F2048&utm_medium=PDF&utm_campaign=PDFCoverPages" target="_blank">/</a><a href="/goto?url=https://scholarship.law.georgetown.edu/facpub?utm_source=scholarship.law.georgetown.edu%2Ffacpub%2F2048&utm_medium=PDF&utm_campaign=PDFCoverPages" target="_blank">/</a><a href="/goto?url=https://scholarship.law.georgetown.edu/facpub?utm_source=scholarship.law.georgetown.edu%2Ffacpub%2F2048&utm_medium=PDF&utm_campaign=PDFCoverPages" target="_blank">scholarship.law.georgetown.edu/facpub </a> Part of the <a href="/goto?url=http://network.bepress.com/hgg/discipline/591?utm_source=scholarship.law.georgetown.edu%2Ffacpub%2F2048&utm_medium=PDF&utm_campaign=PDFCoverPages" target="_blank">Contracts Commons</a>, and the <a href="/goto?url=http://network.bepress.com/hgg/discipline/601?utm_source=scholarship.law.georgetown.edu%2Ffacpub%2F2048&utm_medium=PDF&utm_campaign=PDFCoverPages" target="_blank">Evidence Commons </a>457 Parol Evidence Rules and the Mechanics of Choice Gregory Klass* Scholars have to date paid relatively little attention to the rules for deciding when a writing is integrated. These integration rules, howeve r , a re as dark and full of subtle difficulties as are other parts of parol evidence rules. As a way of thinking about Hanoch Dagan and Michael Heller’s The Choice Theory of Contracts, this Article suggests we would do better with tailored integration rules for two transaction types. In negotiated contracts between firms, courts should apply a hard express integration rule, requiring firms to say when they intend a writing to be integrated. In consumer contracts, standard terms should automatically be integrated against consumer- side communications, and never integrated against a business ’ s communications. The argument for each rule rests on the ways parties make and express contractual choices in these types of transactions. Whereas Dagan and Heller emphasize the different values at stake in different spheres of contracting, differences among parties’capacities for choice — or the “mechanics of choice” — are at least as important. IntroductIon Contractual obligations are chosen obligations. They are chosen in two senses. First, each party must choose to enter into an agreement that generates the contractual obligations. Each must assent to the deal. Second, the parties have the ability to choose the terms of their agreement, and thereby determine the content of their contractual obligations. The parties can decide what the deal is. <ul style="display: flex;"><li style="flex:1">*</li><li style="flex:1">Agnes N. Williams Research Professor, Professor of Law, Georgetown University </li></ul>Law Center. This Article was presented at the Freedom, Choice, and Contract Conference, Columbia Law School, October 13-14, 2017, and benefited from the questions and feedback I received there. Cite as: Gregory Klass, Parol Evidence Rules and the Mechanics of Choice, 20 TheoreTical inquiries L. 457 (2019). 458 Theoretical Inquiries in Law [Vol. 20.2:457 Many rules of contract law address how parties make those choices. Some of those rules are about parties’ choice to enter into a legally binding agreement. These include rules governing offer and acceptance, implied-in- fact contracts, Statutes of Frauds, and formation defenses. Other rules are about how parties choose terms. Examples include hierarchies of interpretive evidence, plain meaning rules, default obligations, and contra proferentem. Taken as a whole, these rules do two things: they tell adjudicators how to decide whether and how parties have exercised their power to choose, and they inform sophisticated parties what they must do to exercise a legally effective choice. ThisArticle argues that contract theorists — scholars exploring the normative basis of contract law — should pay more attention to how contracting parties make choices and to how the law determines the choices they have made. Or as I put the point below, theorists should pay attention both to the mechanics of choice and to legal mechanisms for choosing. I make the case by exploring the relevance of both to Hanoch Dagan and Michael Heller’s choice theory of contracts.1 Dagan and Heller argue that the core value of contract law is to enable party choice. Yet they pay little attention to the mechanics of choice or legal mechanisms for choosing. That neglect, I argue, renders their theory incomplete, and at times Panglossian. I support that claim through a close examination of one mechanism of contractual choice: the parol evidence rule. When parties reduce their agreement to writing, courts sometimes treat that writing as dispositive of the terms in it, or even of the parties’agreement as a whole. In common law jurisdictions, the primary rule for determining when a writing is given special evidentiary weight is the parol evidence rule. The term “parol evidence” refers to evidence of the parties’ agreement other than the writing at issue. A writing that operates to exclude parol evidence of terms is “integrated.” Parol evidence rules determine when writings are integrated and when if ever parol evidence may be used to contradict, supplement, and sometimes interpret the terms contained in an integrated writing. My analysis of parol evidence rules starts from Dagan and Heller’s suggestion that we do better with different laws of contracts for different transaction types, or “spheres of contract.” Examples of such spheres include agreements between firms, employment contracts, consumer contracts and intra-family agreements. I examine how, starting from a clean slate, we might design a parol evidence rule for each of two such spheres: negotiated contracts between firms and consumer contracts. Neither of the resulting parol evidence rules corresponds to the rules one finds in the case law or treatises. For negotiated 1hanoch Dagan & Michael heller, The choice Theory of conTracTs (2017). 2019] Parol Evidence Rules and the Mechanics of Choice 459 contracts between firms, the analysis suggests a hard, strict integration rule, requiring firms to say when they intend a writing to be integrated and treating such expressions as dispositive. For consumer contracts, I argue for automatic integration of standard terms against consumer-side parol communications together with a mandatory rule that standard terms are not integrated against a business’s parol representations or promises. The argument for each rule relies in part on the social values at stake in each sphere. But the differences between the recommended rules reflect the different mechanics of choice in each — how in each sphere parties can and do exercise their power to choose terms. Whereas Dagan and Heller argue that local rules of contract law should be crafted in light of “the normative concerns driving different contract types,”2 this Article demonstrates that the mechanics and available mechanisms of choice are at least as important. Along the way, this Article makes several other contributions. I reject the English Law Review Commission’s argument that the parol evidence rule is not a separate rule of law, but a specific application of the general principles of contract law. I provide an analysis of parol evidence rules that emphasizes rules for integration, an oft overlooked element of those rules. I argue that contemporary formalist scholars have not been formalist enough in their thinking about integration in contracts between firms. And I suggest an argument for a largely choice-independent form of parol evidence rule for consumer contracts. Part I introduces Dagan and Heller’s choice theory, together with the ideas of the mechanics of choice and legal mechanisms for choosing. Part II provides an overview of existing parol evidence rules and the role of integration by way of a critical analysis of the English Law Review Commission’s 1986 report on the rule. Part III argues that the mechanics of choice in two types of transactions, negotiated contracts between firms and consumer contracts, recommend different integration rules for each. The Conclusion draws a few lessons, both for Dagan and Heller’s choice theory and contract theory more generally. I. the choIce theory, the MechanIcs of choIce, and MechanIsMs for choosIng At least since the Legal Realists’attack on Langdell, English-language legal theorists have shown an affinity for lapsarian narratives. In The Choice Theory of Contract, Dagan and Heller blame contract law’s fall from an earlier, more 2Id. at 7. 460 Theoretical Inquiries in Law [Vol. 20.2:457 Edenic state on Samuel Williston. Williston’s original sin was to attempt to construct a unified theory of contract law, taking commercial contracts as the paradigm and ignoring the many differences in the laws that governed other types of transactions. “This distinctive, early twentieth-century American trajectory elevated commercial transactions to the core of contract, and, as a byproduct, substantially obscured the generative role of diverse contract types.”3 Dagan and Heller suggest that many contracts scholars remain captive to this Willistonian worldview, seeking out unifying principles and trying to craft rules of general applicability.4 In fact, Dagan and Heller argue, there are many different types, or “spheres,” of contractual transactions. Examples include agreements between businesses of various types, employment relationships, consumer transactions, and agreements among family members. Because different spheres implicate different values, the law should not treat all alike. More specifically, the sometimes competing values of community and efficiency take on different forms and receive different weights depending on the sphere of contracting. A universal law of contract cannot take account of the specific mix of values at stake in each sphere. We should not, therefore, seek one big law of contract, but should construct local contract laws for the various spheres of contracting. In addition to this intersphere legal pluralism, Dagan and Heller advocate for intrasphere pluralism of contract types and terms. No matter the social values at stake in one or another sphere, parties’ autonomous choice should remain a guiding principle in all spheres. Party autonomy is valuable for at least two reasons. First, and most familiarly, autonomous choice is a good in itself. Second, party autonomy addresses the fact that even within a single <ul style="display: flex;"><li style="flex:1">3</li><li style="flex:1">Dagan & heller, supra note 1, at 8. It is worth noting that Book V of the </li></ul>first edition of Williston’s treatise, which occupies the bulk of Volume Two, was devoted to “Particular Classes of Contract.” These included chapters on Contracts for the Sale of Land, Contracts for the Sale of Personal Property, Contracts of Employment and Contracts to Marry, Contracts of Bailment and of Innkeepers, Contracts of Affreightment, Bills of Exchange and Promissory Notes, and Contracts of Suretyship. 5 saMuel WillisTon, The laW of conTracTs § 633, 1225 (1924). <ul style="display: flex;"><li style="flex:1">4</li><li style="flex:1">Dagan and Heller are not the first to suggest different contract laws for different </li></ul>spheres of contracting. See, e.g., William J. Woodward, Jr., “Sale” of Law and Forum and the Widening Gulf Between “Consumer” and “Nonconsumer” Contracts in the UCC, 75 Wash. u. l.q. 243 (1997); Ethan J. Leib, On Collaboration, Organizations, and Conciliation in the General Theory of Contract, 24 quinnipiac l. rev. 1 (2005); Ronald J. Gilson, Charles F. Sabel & Robert E. Scott, T e xt and Context: Contract Interpretation as Contract Design, 100 cornell l. rev. 23 (2014). 2019] Parol Evidence Rules and the Mechanics of Choice 461 sphere there is no one right way to balance competing values. Party choice provides a means of resolving conflicts between our normative commitments.5 Dagan and Heller suggest that the law should enable intrasphere choice in two ways. First, the law should ensure that within any given sphere there is a choice among “contract types” — pre-established or off-the-rack transaction structures.6 Predefined contract types promote efficiency by reducing transaction costs. But they do more than that. Contract types also enhance autonomy by providing socially recognized relational forms that embody various mixes of values and shared cultural meanings, thereby generating new meaningful forms of acting together.7 Second, autonomy requires also that the parties be granted the power to make alterations to the off-the-rack contract types society offers. A commitment to voluntariness “implies that people should generally be able to choose not only among various contract types, but also terms within each.”8 Although Dagan and Heller say a lot about the value of choice, they do not say much about how parties make such choices. There are two salient dimensions to how contracting parties exercise their powers of choice. The first is parties’ baseline abilities to choose, and the conditions under which they are able to make informed, autonomous and therefore valuable choices. I will call this the “mechanics of choice.” Although Dagan and Heller do not spend many pages on the topic, they do not ignore the mechanics of choice. For example: Sometimes, cognitive, behavioral, structural, and political economy reasons imply that more choice may actually reduce freedom. But those circumstances will be local to certain contract types or market structures, not universal to contract as a whole. Frankly, we just don’t know in which contexts the probable effects of these concerns are significant enough to justify limiting multiplicity.9 567 Dagan & heller, supra note 1, at 80. Id. at 3. Id. at 76 (“[W]hen contract law offers us multiple contract types, it participates in the ongoing social production of stable categories of human interaction by consolidating people’s expectations of themselves and others. In this, law enlarges the range of valuable options available to us.”). 89Id. at 109. Id. at 127. See also id. at 74 (“The impediments to secure contracting often depend on the specific features of the particular contract type and therefore each type requires its own legal facilitation.”), 106-07 (suggesting that how people choose and the design of choice mechanisms “should be . . . . a major focus of behavioral and institutional economics studies of contract law”). 462 Theoretical Inquiries in Law [Vol. 20.2:457 Dagan and Heller also argue that the mechanics of consumer choice suggest mandatory restrictions on businesses’ ability to include hard-to-read terms like arbitration clauses or class-action waivers. “[C]hoice theory implies that [these terms’] inclusion in consumer contracts should not be able to upset consumers’background expectation of relatively unimpeded access to courts or to reasonably equivalent procedures for dispute resolution.”10 Dagan and Heller have less to say about a second dimension of how parties choose, which I will call the “mechanisms of choice.” These are the tools that the law gives parties for exercising their power to choose, which Ian Ayres has called “altering rules.”11 Consider, for example, Dagan and Heller’s positive view of section 17.42 of Texas’s Deceptive Trade Practices and Consumer ProtectionAct, which empowers consumers to waive theAct’s protections.12 Dagan and Heller favor the opt-out provision, as “people should, in some circumstances, be able to choose between purchasing a good with the protections of consumer transaction law or by using sales law.”13 They do not discuss, however, what a consumer must do to opt out of such protections — the mechanisms needed to ensure a fully informed and valuable choice. It is worth paying attention to those details. Section 17.42 requires that “(1) the waiver is in writing and is signed by the consumer; (2) the consumer is not in a significantly disparate bargaining position; and (3) the consumer is represented by legal counsel in seeking or acquiring the goods or services.”14 It requires that the consumer’s counsel be independent of the business. And it requires that the waiver be: (1) conspicuous and in bold-face type of at least 10 points in size; (2) identified by the heading “Waiver of Consumer Rights,” or words of similar meaning; and (3) in substantially the following form: “I waive my rights under the Deceptive Trade Practices-Consumer Protection Act, Section 17.41 et seq., Business & Commerce Code, a law that gives consumers special rights and protections. After consultation with an attorney of my own selection, I voluntarily consent to this waiver.”15 10 Id. at 112. 11 Ian Ayres, Regulating Opt-Out: An Economic Theory of Altering Rules, 121 yale l.J. 2032 (2012). 12 Tex. Bus. coM. coDe ann. § 17.42 (West 2017). 13 Dagan & heller, supra note 1, at 71. See also id. at 82 (advocating that consumers be able to “make their own (individual) choices between the ‘souk’ or ‘bazaar’ mode of ‘as is’contracting and the ‘errands’model of consumer protection law”). 14 Tex. Bus. coM. coDe ann. § 17.42(a) (West 2017). 15 Id. at §§ 17.42(b) & (c). 2019] Parol Evidence Rules and the Mechanics of Choice 463 This choice mechanism makes perfect sense given the mechanics of consumer choice — the difficulty of ensuring informed consumer agreement to a term such as this. The Texas legislature appears to have been concerned that a consumer might assent to waive theAct’s protections without fully understanding what she was giving up, as consumers regularly assent to unread standard terms. The resulting mechanism of choice, however, is enormously expensive to use. One might guess that few if any Texans will exercise this power of choice the Texas legislature has granted them. The remainder of thisArticle examines one of the most important mechanisms of choice in U.S. contract law: parol evidence rules. A parol evidence rule provides mechanisms of contractual choice in two ways. First, if a writing is integrated, the rule limits the evidence an adjudicator may consider when deciding what terms parties have chosen. In this way, parol evidence rules determine how parties can exercise their legal power to choose terms: sometimes they must express that choice in a writing. Second, modern parol evidence rules treat integration as itself a matter of choice:Awriting is integrated only if the parties have agreed that it shall be a final statement of some or all terms of their agreement. U.S. courts have crafted several rules for deciding when parties have made that choice. That is, they have provided parties with various mechanisms for exercising the choice to integrate a writing. It is widely recognized that different U.S. jurisdictions employ different parol evidence rules. Most accounts of those rules, however, describe one parol evidence rule for all contracts. Dagan and Heller’s choice theory suggests a different approach. Perhaps there is not, or should not be, one big parol evidence rule, but local parol evidence rules for distinct spheres of contracting. Part III explores that idea, focusing on two spheres of contracting: negotiated contracts between firms and consumer contracts. Before getting there, however, it is necessary to say a few words about parol evidence rules generally. II. Parol evIdence rules: the BasIcs It is no easy thing to summarize the parol evidence rules found in the common law of contracts. The reasons are manifold. Parol evidence rules are complex, with multiple moving parts. Judicial articulations of the rules often bear traces of older doctrines modern rules were meant to supplant. There are important differences between parol evidence rules in different jurisdictions, and often

Parol Evidence Rules and the Mechanics of Choice

Details

Download

Copyright

We respect the copyrights and intellectual property rights of all users. All uploaded documents are either original works of the uploader or authorized works of the rightful owners.

Support