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Licensed Unlicensed Requires Authentication Published by De Gruyter August 18, 2019

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, however, are 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.

* Agnes N. Williams Research Professor, Professor of Law, Georgetown University 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).

Published Online: 2019-08-18
Published in Print: 2019-07-26

© 2019 by Theoretical Inquiries in Law

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