Parol evidence rule has long been a controversial element in common law system. It often been attacked because of the unfairness justification that come from its application that sometimes even for a lack in rationality in it justification. The parol evidence rule have two type of theory, first is subjective approach and the second one is the objective approach. The subjective approach is being applied in the common law system in US which is a approach that supports a rejection of the parol evidence rule while the objective approach is being applied in the UK and Australia common law system, the simplest overview of the objective approach is that it totally support the parol evidence rule. Even though the two theories have a different perspective but in fact it holds an unavoidable appeal. This essay will discuss about the parol evidence rule that applied in Australia. The parol evidence rule that being applied in Australia has a few exceptions that will being discusses in the discussion part. This essay will also discuss whether government should or should not provide parol evidence rule with relevant case. Discussion
Parol Evidence Rule
Parol evidence rule is where a written contract appears to be entire, it will assume all the content of the agreement will be contain in it and there is no extrinsic evidence can add to or allowed to varying it in anyway. The rationale of the parol evidence rule is that where the parties agree to write the contractual arrangement into a written contract, there is a presumption that all the relevant matters and any promise or arrangement made by the parties that are not included in the written contract should not be taken into account. The rule is logical enough, when the parties are permitted to change or to add a term in the written contract then what the point of having a written contract. In other words, if the written contract exist between the parties, the parties can not give any verbal evidence or to add any extra terms or clause in the existing contract. The problem of parol evidence rule is that it sometimes brings injustice for one of the party because it only look at the written contract and no extrinsic evidence is allowed to add or vary into the written contracts. The problem arise is because the definition and how’s parol evidence works but, parol evidence rule also provide some exception and have some effect from it that can add some oral agreement between the parties into account. Parol evidence rule has it effect and the effect is when the written contract is exist and the content is clear, no extrinsic evidence or other oral agreement being allowed to add or to change the written contract but, when the content of the written contract is not clear there is an exception to add to or to change the written contract but the exception must be related to the main contract. Parol evidence rule only applied in the written contract because it wants to protect the term of the contract. In Gordon v McGregor, one of the leading Australian cases, Griffith CJ said, it was open to the defendant to prove that the parol evidence rule did not apply 'by showing that the written document was not intended to embody the whole contract'. In the words of Roskill LJ in J Evans & Son (Portsmouth) Ltd v Andrea Merzario Ltd: 'The court is entitled to look at and should look at all the evidence from start to finish in order to see what the bargain was that was struck between the parties'. Parol Evidence Rule Exceptions
The parol evidence has seven exceptions. The exception allowed adduction of extrinsic evidences, the first exception is the custom or trade usage (Hutton v Warren (1836) 1 M&W 466). The second exception of parol evidence rule is written document should not operate until a certain event takes place (Pym v Campbell (1856) 6 E&B 370). The third exception of parol evidence rule is partly written and partly oral which mean there are another agreement between the...
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