Gregory Klass, ‘Parol Evidence Rules and the Mechanics of Choice’

Although parol evidence rules have received their share of scholarly attention, relatively little has been paid to the rules for deciding when parties have agreed to integrate a writing. These integration rules, however, are as dark and full of subtle difficulties as are other parts of the rule. Starting from Hanoch Dagan and Michael Heller’s recent advocacy of different contract laws for different transaction types, this essay recommends tailored integration rules for two types of transactions. In negotiated contracts between firms, courts should apply a hard express integration rule that requires firms to say when they intend that a writing be integrated. In consumer contracts, standard terms should automatically be integrated against consumer-side communications, but never against a business’s communications. Neither corresponds to standard integration rules. The argument for each rests on how parties make choices in type of transaction. 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’ – is at least as important.

Other contributions include: criticism of the English Law Review Commission’s argument that the parol evidence rule is not a distinctive rule of law; a detailed analysis of rules for integration; an argument that formalist scholars have not been formalist enough when it comes to integration; and a critical analysis of the parol evidence rule in the draft Restatement of the Law of Consumer Contracts.

Klass, Gregory, Parol Evidence Rules and the Mechanics of Choice (March 2018). Forthcoming in Theoretical Inquires in Law, Vol 20.

First posted 2018-04-02 07:19:53

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