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WPI 301.06 Parol Evidence

6A WAPRAC WPI 301.06Washington Practice Series TMWashington Pattern Jury Instructions--Civil

6A Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 301.06 (7th ed.)
Washington Practice Series TM
Washington Pattern Jury Instructions--Civil
April 2022 Update
Washington State Supreme Court Committee on Jury Instructions
Part XIII. Contracts
Chapter 301. Contracts—Formation, Interpretation, and Enforceability
WPI 301.06 Parol Evidence
If you find that all of the provisions of an agreement between(name of plaintiff)and(name of defendant)are contained in a single written document, and that the document was intended by the parties as their final agreement on the subjects addressed in it, then you may not consider evidence outside the written document to add to, subtract from, vary, or contradict that written document [unless you also find that terms were included in the document as the result of fraud or mutual mistake].
However, if you find that such written document was not intended to be a complete expression of all of the terms agreed upon by those parties, that is, that the document does not contain all of the terms of their agreement, then you may also consider evidence of the circumstances surrounding the making of the agreement to supply additional terms of the agreement between the parties, but only if they are not inconsistent with the provisions of the written document.
Use this instruction with WPI 301.05 (Contract Interpretation) when there is a written contract and a factual issue exists as to whether the contract is integrated.
If there is a basis for a jury finding of an exception to this rule on the basis of fraud or mutual mistake, include the bracketed phrase and supplement the instruction with a clarifying instruction regarding the appropriate requirements and burdens of proof. See WPI Chapter 160 (Fraud). Regarding mutual mistake, see the Comment to WPI 301.08 (Enforceability—Mutual Mistake).
Overview. This instruction is used when a party alleges that the intent of a written contract is not what the opposing party claims it to be. In this context, “parol evidence” simply means oral testimony.
In broad outline, the purpose of the parol evidence rule is to implement the policy of enforcing written contracts, as written, preventing a party from later arguing that the written contract is not what the parties intended.
A dispute over the intent of a contract should not be confused with the issues presented when one party claims the parties executed a second contract intended to replace the first contract. When the issue is whether the first contract was replaced by a second contract, WPI 301.7 (Contract Modification) is used rather than WPI 301.06.
Preliminary determination that contract is integrated. The parol evidence rule does not apply until the court has determined that the written contract is integrated; i.e., that the contract expresses the final and complete agreement by the parties. This preliminary determination is summarized in Emrich v. Connell, 105 Wn.2d 551, 716 P.2d 863 (1986). In Emrich, the court said:
[T]he parol evidence rule only applies to a writing intended by the parties as an “integration” of their agreement; i.e., a writing intended as the final expression of the terms of the agreement. In making this preliminary determination of whether the parties intended the written document to be an integration of their agreement, which is a question of fact, the trial court must hear all relevant, extrinsic evidence, oral or written. If, after hearing all the evidence, the court determines that the writing is the final and complete expression of the parties' agreement—i.e., completely integrated—then the extrinsic evidence is disregarded.
Emrich, 105 Wn.2d at 556.
When the evidence would support a jury finding that a set of written documents, rather than a single written document, constituted an integrated agreement, the instruction should be modified accordingly.
The parol evidence rule. The current parol evidence rule in Washington was summarized by the Supreme Court in Hollis v. Garwall, 137 Wn.2d 683, 695, 974 P.2d 836 (1999). In Hollis, the court said in a dispute arising out of a written contract, the parol evidence rule bars:
  • (1) Evidence of a party's unilateral or subjective intent as to the meaning of a contract word or term; and
  • (2) Evidence that would show an intention independent of the instrument; and
  • (3) Evidence that would vary, contradict or modify the written word.
Effect of Berg v. Hudesman. A 1990 case, Berg v. Hudesman, 115 Wn.2d 657, 801 P.2d 222 (1990), seemed to signal a departure from the general rules summarized above. The most controversial portion of Berg was a statement by the court that parol evidence is admissible to show the intent of the contract even if the contract is not ambiguous on its face.
Over the years, however, the courts, including the Supreme Court, have signaled disapproval of Berg, without ever overruling Berg. It is now safe to say that the controversial portions of Berg have been abandoned, and that the traditional rules summarized above continue to be controlling. Tegland, 5C Washington Practice, Evidence Law and Practice § 1200.13 (6th ed.); see also Miller v. Kenny, 180 Wn.App. 772, 796, 325 P.3d 278 (2014) (discussing WPI 301.06).
Cross-references. The foregoing is only a brief summary of the substantive law underlying WPI 301.06. For a detailed analysis of the law, see DeWolf, Allen, & Caruso, 25 Washington Practice, Contract Law and Practice ch. 4 (3d ed.); Tegland, 5C Washington Practice, Evidence Law and Practice ch. 12 (6th ed.).
[Current as of April 2021.]
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