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A Surprising Twist on the Parol Evidence Rule!

The following is borrowed from Judge Carroll’s recent August 27, 2015 unpublished opinion on a claims objection which can be found here.

In law school, we learned that if a written instrument is valid, complete and unambiguous, extrinsic evidence is not admissible to vary, add to, or contradict the terms of the instrument. This is called the parol evidence rule. The exception to this rule is if there is an allegation of fraud, accident or mistake.

In Wilson Arlington Co. v. Prudential Ins. Co. of Am., the Ninth Circuit explained the policy behind enforcement of the parol evidence rule:

If parties to an agreement could not rely on written words to express their consent to the express terms of that agreement, those words would become little more than sideshows in a circus of self-serving declarations as to what the parties to the agreement really had in mind. The parol evidence rule thus enables parties to rely on written instruments as embodying a complete memorial of their agreement, and to avoid costly and disruptive litigation over the existence of oral and implied terms that may or may not have been contemplated by the parties.

912 F.2d 366, 370 (9th Cir. 1990).

It is surprising to me but even though the 9th Circuit but this is not California law. In California, parol evidence is admissible to construe a facially unambiguous contract if the proffered interpretation is one to which the agreement is “reasonably susceptible.” Pac. Gas & Elec. Co. v. G.W. Thomas Drayage & Rigging Co., 69 Cal.2d 33, 37 (1968).

In Pacific Gas & Electric, the California Supreme Court discussed the admissibility of extrinsic evidence to explain the meaning of a written instrument, stating:

he test of admissibility of extrinsic evidence to explain the meaning of a written instrument is not whether it appears to the court to be plain and unambiguous on its face, but whether the offered evidence is relevant to prove a meaning to which the language of the instrument is reasonably susceptible. . . .

Although extrinsic evidence is not admissible to add to, detract from, or vary the terms of a written contract, these terms must first be determined before it can be decided whether or not extrinsic evidence is being offered for a prohibited purpose. The fact that the terms of an instrument appear clear to a judge does not preclude the possibility that the parties chose the language of the instrument to express different terms. That possibility is not limited to contracts whose terms have acquired a particular meaning by trade usage, but exists whenever the parties’ understanding of the words used may have differed from the judge’s understanding.

69 Cal.2d at 37-39.

Pacific Gas & Electric requires the court to conditionally consider proffered extrinsic evidence to determine if it would be relevant to prove a meaning to which the language of a facially unambiguous instrument is reasonably susceptible. See George v. Automobile Club of S. Cal., 201 Cal.App.4th 1112, 1122 (2012).

An entertaining footnote about metaphors!

This is footnote 2 from Official Committee v. Integrated Res., Inc. (In re Integrated Res., Inc.), 147 B.R. 650, 662 n.2 (S.D.N.Y. 1992):

The Supreme Court has warned that “[c]atch words and labels . . . are subject to the dangers that lurk in metaphors and symbols, and must be watched with circumspection lest they put us off guard.”United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 253, 109 S.Ct. 1026, 1036, 103 L.Ed.2d 290 (1989) (citing Henneford v. Silas Mason Co., 300 U.S. 577, 586, 57 S.Ct. 524, 528, 81 L.Ed. 814 (1937)). Nevertheless, courts seem to enjoy framing bankruptcy issues in colorful, but misleading, metaphor. For example, the term “stalking horse” has appeared in a variety of odd contexts. See, e.g.,In re El Paso Pharm., Inc., 130 B.R. 492, 496 (Bankr.W.D.Tex. 1991) (“[t]he jury issue thus turns out to be a stalking horse”); In re Louis Fleet, 122 B.R. 910, 917 (Bankr.E.D.Pa.1990) (rejecting a “last ditch effort” of a debtor to use “his wife as a stalking horse”).

Bankruptcy cases teem with other mixed and maltreated metaphors. See, e.g., United States v. Nelson,969 F.2d 626 (8th Cir.1992) (“trustee here was attempting to `gouge substantive congressional-given rights from the eyes of debtors’”); Reynolds v. Comm’r of Internal Revenue, 861 F.2d 469, 472-73 (6th Cir.1988) (“Emerson’s dictum that `a foolish consistency is the hobgoblin of little minds’ cuts no ice in this context.”).

Food-related metaphors are common. See, e.g., In re Central Ice Cream Co., 114 B.R. 956, 960 (D.N.D.Ill.1989) (referring to the bankruptcy judge’s metaphor of the “egg” of conflict); In re Jeffrey B. Stone, 119 B.R. 222, 234 n. 18 (Bankr.E.D.Wash.1990) (“An appropriate, if informal metaphor, is to compare the exemption to a wedge of Swiss cheese.”); In re Charles Richard Snow, 92 B.R. 154, 158 n. 3 (D.W.D.Va. 1988) (extending the Swiss cheese metaphor to “argue that the wedge of Virginia cheese contains too high a ratio of holes to cheese”); C.I.T. Corp. v. A & A Printing, Inc., 70 B.R. 878, 882 (D.M.D.N.C.1987) (“The familiar metaphor of a pie is instructive.”); In re Tri-Cran, 98 B.R. 609, 620 (Bankr.D.Mass.1989) (learning “through the grapevine” in the cranberry industry).

Zoological metaphors abound. See, e.g., In re Financial News Network, 126 B.R. at 154 n. 5(conferring the title “tethered goat” on a break-up fee recipient); Mellon Bank v. Metro Communications,945 F.2d 635, 646 (3d Cir.1991) (“the target firm may not at all reflect the Elizabethan deadbeat, but may in fact wind up as the sacrificial lamb”); In re Universal Profile, Inc., 5 B.R. 572, Bankr.L.Rep. (CCH) ¶ 67,696 (N.D.Ga. 1980) (“This court is not favorably inclined toward making [the subsidiary] a sacrificial lamb for its parent company.”); In re Willie Charles Jones, 105 B.R. 1007, 1012 (D.N.D.Ala.1989) (remarking that “`Chapter 26′ . . . is an animal as different from `Chapter 20′ as an elephant is from a giraffe”); In re Assembled Interests Corp., 117 B.R. 31, 32 (Bankr.N.H.1990)(acknowledging that “calling an elephant a giraffe does not make the animal any less an elephant,” but also noting that “[t]his is an obvious but irrelevant truth”); In re Robert James Johnson, 80 B.R. 953, 962 (Bankr.D.Minn.1987) (“This test is popularly phrased via the fine, homely folk adage of `The pig gets fattened, but the hog gets slaughtered.’”); Dolese v. United States, 605 F.2d 1146, 1154 (10th Cir.1979) (employing a variant: “There is a principle of too much; phrased colloquially, when a pig becomes a hog it is slaughtered”); In re Donald J. Falconer, 79 B.R. 283, 289 (D.W.D.Mich.1987)(suggesting the allegory of counting and burying cattle to explain the “ontological demise” of cattle which “disappeared in almost `Orwellian fashion’ [and] became, in a word, `uncattle’”).

The reference to Orwell is particularly jarring because that author, a master of the language, warned against the use of stale metaphors as a substitute for clearly expressed thought. IV The Collected Essays, Journalism and Letters of George Orwell 127-40, esp. 130 (Sonia Orwell and Ian Angus, eds. 1968).