4.4 Supplying Omitted Terms

• Library: Contract Law in Virginia (Virginia CLE) (2019 Ed.)

4.4 SUPPLYING OMITTED TERMS

4.401 In General. The Virginia Supreme Court has recognized that despite the care or caution taken by attorneys, "[n]othing is more common than the omission of words, and even most important words, in drawing written instruments." ²⁴⁶ While upholding the general rule that courts should not incorporate additional terms that the parties either purposefully or negligently omitted from their contracts, ²⁴⁷ it has nevertheless indorsed several important exceptions. ²⁴⁸

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4.402 Partial Integration Doctrine. As discussed in paragraph 4.303(C) of this chapter, the partial integration doctrine allows parties to introduce parol evidence to prove the existence of additional terms when the contract is otherwise silent.

4.403 Common Terms. Where the parties disputed a debt "in the just and full sum of Seven Hundred and Seventy Six Lawful Money of Virginia," ²⁴⁹ the court supplied the omitted term "dollars" to reflect the intentions of the parties. Moreover, courts may correct an obvious mistake on the face of an instrument, and supply words which have been omitted by the parties, and which are manifestly necessary to express their obvious meaning." ²⁵⁰

4.404 Scrivener's Error. ²⁵¹ In Drysdale v. Barco Assocs., ²⁵² the parties executed a five-year commercial lease that provided for year-to-year extensions unless either party notified the other in writing that it wanted to terminate the lease. ²⁵³ Nine years later, they negotiated a three-year lease but failed to provide for any extension periods therein. ²⁵⁴ When the three-year lease expired, the lessee continued to occupy the premises under the

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extension provision set forth in the old five-year lease. ²⁵⁵ When the new lessor later gave notice, the lessee refused to sign another lease or to pay higher rent. ²⁵⁶

The trial court held that while a scrivener's error had caused the omission of extension provisions from the three-year lease, the new lessor's notice had terminated the lease and transformed the lessee into a month-to-month tenant at a higher rent. ²⁵⁷ The Virginia Supreme Court agreed that the three-year lease was ambiguous but held that the trial court should have construed or interpreted it to include the extension provisions of the old five-year lease. ²⁵⁸ It thus allowed the lessee to remain on the premises until the end of the calendar year at the previous rental rate. ²⁵⁹

However, in Westgate at Williamsburg Condominium Ass'n v. Philip Richardson Co....