Extrinsic Evidence Rule

Extrinsic Evidence Rule

Extrinsic Evidence Rule

(1) Is the K integrated with respect to the term to which the extrinsic evidence applies?

(1) Is it the final expression?

Is it a writing? (If not, ERR not apply)

Is it intended to replace prior agreements?

(2) Is it a complete expression?

Is it intended to replace contemporaneous agreements that are within the

“scope” of this agreement

If not integrated, no ERR

If integrated:

(2) For what purpose is the evidence to be admitted?

(a) inadmissible if it is evidence of a prior agreement or a contemporaneous agreement within the scope of this agreement

(b) inadmissible to “alter” or “contradict” the writing

Whether something is an integration is a question of law.  What may the judge consider?

(1) “4 corners” approach –  only the document itself

(2) Modified classical – evidence of surrounding circumstances admissible

(3) UCC – Trade Usage, course of Performance, Course of Dealing always admissible

For what purposes is extrinsic evidence admissible?

(1) To show a defect in formation (Finger 2)

(2) To interpret an “ambiguous:” provision.  In most states, whether a term is ambiguous is a question of law.  That question is usually decided using the same three approaches used to determine if a contract is integrated.  Some courts allow the evidence to be admitted solely for the purpose of determining whether the contract is ambiguous.

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