SC Lawyer, March 2004, #1. Beyond the Bar March 2004 A primer on the parol evidence rule.

AuthorBy Warren Mo\xEFse

South Carolina Lawyer


SC Lawyer, March 2004, #1.

Beyond the Bar March 2004 A primer on the parol evidence rule

South Carolina LawyerMarch 2004Beyond the Bar March 2004 A primer on the parol evidence ruleBy Warren MoïseMeet the parol evidence rule - an ancient, arthritic, sanctimonious precept of English substantive law masquerading as a rule of evidence. It haunts both the federal and state courts. See Figgie Int'l v. Destileria Serralles, Inc., 190 F.3d 252 (4th Cir. 1999) (Traxler, J.); Estate of Holden v. Holden, 343 S.C. 267, 539 S.E.2d 703 (2000) (Burnett, J.). Like its cousin the dead man's rule, the parol evidence rule is an ancestor from an era when the law was strict and unyielding, favoring blanket exclusionary rules. The rule's name is misleading. It bars not only "parol" (oral) evidence but also written evidence. The parol evidence rule applies to a wide range of writings, from a town council's minutes to settlement agreements. The common law provides that when agreements are complete and unambiguous, there is no need for extrinsic evidence to determine parties' intentions. The judge simply looks at the contract's plain meaning and decides the parties' rights and duties. Accordingly, the parol evidence rule makes incompetent any evidence that contradicts, explains or varies written contractual terms. Sounds simple. However, with the consistency of pluff mud, the parol evidence rule has been a pebble in the common law's shoe for centuries.

Public policy underlying the rule

The parol evidence rule favors the conclusiveness of writings: "Real and personal property rights . . . would be jeopardized were the terms and conditions of a written instrument, solemnly executed, dependent upon the slippery memories and the individual consciences of the parties to the transaction. Therefore the law has directed . . . certain well defined rules and exceptions [enforcing the contract pursuant to] its expressed terms . . . ." Knighton v. DesPortes Mercantile Co., 119 S.C. 340, 112 S.E. 343, 345 (1922). Usually a dispute about an object or tangible thing is handled by simply admitting it into evidence, then allowing both sides to testify about its significance. The common law, however, assumes that if the writing appears complete, the parties worked out all possible details. Well, possibly this is how corporate attorneys negotiate contracts but, it's not necessarily how lay people reach agreements.

How does it work?

The common law rule reads as follows: "[W]here the terms of [a] written...

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