Entire agreement

As a general rule, "when parties reduce a contract to writing and intend that writing to be the complete contract, no extrinsic evidence of prior or contemporaneous agreements will be admissible to change, alter, or contradict the contractual writing." Sherman v. Woerner Magnolia Farms, Inc., 565 So.2d 601, 605 (Ala.1990).

When a contract contains ... a merger clause, the agreement is deemed to be `integrated,' such that evidence of prior or contemporaneous agreements shall not be admitted to contradict the terms of the agreement." Johnson Enters. of Jacksonville, Inc. v. FPL Group, Inc., 162 F.3d 1290, 1309 (11th Cir.1998). Merger clauses thus create a presumption that the writing represents an integrated, that is, the final and complete, agreement of the parties. See Tallmadge Bros., Inc. v. Iroquois Gas Transmission Sys., L.P., 252 Conn. 479, 504 , 746 A.2d 1277 , 1291 n. 15 (2000).

In order to rebut the presumption and, in effect, invalidate the merger clause, a party must offer evidence to establish the existence of fraud, bad faith, unconscionability, negligent omission or mistake in fact." Smith v. Central Soya of Athens, Inc., 604 F.Supp. 518, 526 (E.D.N.C.1985). See also Lake Martin/Alabama Power Licensee Ass'n, Inc. v. Alabama Power Co., 601 So.2d 942, 945 (Ala.1992) ("When fraud in the inducement has been ruled out, ... all prior statements and negotiations are merged into the written contract and ... in the absence *661 of an ambiguity ..., parol evidence will not be received to explain, contradict, vary, add to, or subtract from the express terms of the written contract.").

Whether a contract is integrated is ordinarily a question of law for the court to decide.

Significantly, Palm Harbor and Southern Lifestyle have not attempted to show—or contended—that the Installment Contract was the result of "fraud, bad faith, unconscionability, negligent omission or mistake in fact," Smith, 604 F.Supp. at 526 , or overreaching or duress on the part of the Knapps.

In short, the trial court was not permitted to consider the arbitration provisions in the free-standing instruments. Thus, Palm Harbor and Southern Lifestyle have failed to demonstrate that the trial court erred in holding that "arbitration is to be held in accordance with the Retail Installment contract and security agreement," and, consequently, that they have a clear, legal right to relief from that holding. Indeed, Palm Harbor and Southern Lifestyle only mention the merger issue in passing and cite no relevant authority. Under the posture of this case, therefore, insofar as the trial court ordered arbitration "to be held in accordance with the Retail Installment contract and security agreement," the petition is denied. II. The Alabama Arbitration Act The second objection of Palm Harbor and Southern Lifestyle to the trial court's order stands on better ground. It held the Alabama Arbitration Act, Ala. Code 1975, § 6-6-1 et seq., to be applicable. In this respect, it erred. The Installment Contract provided: "THIS AGREEMENT IS MADE PURSUANT TO A TRANSACTION IN INTERSTATE COMMERCE AND SHALL BE GOVERNED BY THE FEDERAL ARBITRATION ACT AT 9 U.S.C. SECTION 1." (Capital letters in original.) The parties' agreement to be governed by the Federal Arbitration Act is express and clear. Indeed, the Knapps concede that there is no legal basis for the application of the Alabama Arbitration Act. Palm Harbor and Southern Lifestyle have thus shown a clear, legal right to relief from that portion of the order. As to that portion of the order, therefore, the petition is granted. PETITION GRANTED IN PART AND DENIED IN PART; AND WRIT ISSUED.

Terms with respect to which the confirmatory memoranda of the parties agree or which are otherwise set forth in a record intended by the parties as a final expression of their agreement with respect to such terms as are included therein may not be contradicted by evidence of any prior agreement or of a contemporaneous oral agreement but may be explained or supplemented: (a) by course of performance, course of dealing, or usage of trade (Section 7-1-303); and (b) by evidence of consistent additional terms unless the court finds the record to have been intended also as a complete and exclusive statement of the terms of the agreement.

Terms with respect to which the confirmatory memoranda of the parties agree, or that are otherwise set out in a writing intended by the parties as a final expression of their agreement with respect to the terms included in the writing, may not be contradicted by evidence of a prior agreement or of a contemporaneous oral agreement, but may be explained or supplemented (1) by course of performance, course of dealing, or usage of trade ( AS 45.01.303 ); and (2) by evidence of consistent additional terms unless the court finds the writing was intended also as a complete and exclusive statement of the terms of the agreement.

The parol evidence rule states that an integrated written contract may not be varied or contradicted by prior negotiations or agreements.

Before the rule can be applied, three things must be determined: (1) whether the contract is integrated, (2) what the contract means, and (3) whether the prior agreement conflicts with the integrated agreement.

The parol evidence rule does not apply “where a contract has been formed as a result of misrepresentation or mutual mistake.”

We agree with Philbin’s argument that the release is not an integrated agreement.

There is no evidence that the release memorialized terms of an agreement between Philbin and the borough; it appears simply to have been a standard form presented to Philbin when he went to pick up his check. The release contains' no integration clause. The borough has not disputed that it owed Philbin the payment he received upon signing the release. That circumstance is inconsistent with reading the release as having memorialized a previously reached agreement to waive all past, present, and future claims.

This was a permissible use of extrinsic evidence to prove mutual mistake.

Philbin’s purpose in offering evidence about what he was told by borough representatives on November 2, 3 or 8 was to show that the parties did not intend that the November 15 release had the meaning the borough ascribed to it, not to vary or contradict the terms of the written contract.

Because there are genuine issues of material fact as to the parties’ understanding of the release, we REVERSE and REMAND for further proceedings.

(a) Terms set forth in a writing intended by the parties as a final expression of their agreement with respect to the terms included therein may not be contradicted by evidence of a prior agreement or of a contemporaneous oral agreement. (b) The terms set forth in a writing described in subdivision (a) may be explained or supplemented by evidence of consistent additional terms unless the writing is intended also as a complete and exclusive statement of the terms of the agreement. (c) The terms set forth in a writing described in subdivision (a) may be explained or supplemented by course of dealing or usage of trade or by course of performance. (d) The court shall determine whether the writing is intended by the parties as a final expression of their agreement with respect to the terms included therein and whether the writing is intended also as a complete and exclusive statement of the terms of the agreement. (e) Where a mistake or imperfection of the writing is put in issue by the pleadings, this section does not exclude evidence relevant to that issue. (f) Where the validity of the agreement is the fact in dispute, this section does not exclude evidence relevant to that issue. (g) This section does not exclude other evidence of the circumstances under which the agreement was made or to which it relates, as defined in Section 1860, or to explain an extrinsic ambiguity or otherwise interpret the terms of the agreement, or to establish illegality or fraud. (h) As used in this section, “agreement” includes trust instruments, deeds, wills, and contracts between parties.

Finally, Pendergrass departed from established California law at the time it was decided, and neither acknowledged nor justified the abrogation. We now conclude that Pendergrass was ill- considered, and should be overruled.

For these reasons, we overrule Pendergrass and its progeny, and reaffirm the venerable maxim stated in Ferguson v. Koch, supra, 204 Cal. at page 347: “[I]t was never intended that the parol evidence rule should be used as a shield to prevent the proof of fraud.”

However, in 1935 this court adopted a limitation on the fraud exception: evidence offered to prove fraud “must tend to establish some independent fact or representation, some fraud in the procurement of the instrument or some breach of confidence concerning its use, and not a promise directly at variance with the promise of the writing.” (Bank of America etc. Assn. v. Pendergrass (1935) 4 Cal.2d 258, 263 (Pendergrass).)

Plaintiffs, who prevailed below, not only defend the Court of Appeal‟s holding but, alternatively, invite us to reconsider Pendergrass.

Here, as in Tenzer, we stress that the intent element of promissory fraud entails more than proof of an unkept promise or mere failure of performance. We note also that promissory fraud, like all forms of fraud, requires a showing of justifiable reliance on the defendant‟s misrepresentation. (Lazar v. Superior Court, supra, 12 Cal.4th at p. 638.) The Credit Association contends the Workmans failed to present evidence sufficient to raise a triable issue on the element of reliance, given their admitted failure to read the contract. However, we decline to decide this question in the first instance. The trial court did not reach the issue of reliance in the summary judgment proceedings below, nor did the Court of Appeal address it.

Here as well we need not explore the degree to which failure to read the contract affects the viability of a claim of fraud in the inducement. 18 III. DISPOSITION We affirm the Court of Appeal‟s judgment.

The Court of Appeal reversed. It reasoned that Pendergrass is limited to cases of promissory fraud. 3 The court considered false statements about the contents of the agreement itself to be factual misrepresentations beyond the scope of the Pendergrass rule. We granted the Credit Association‟s petition for review.

Although there are exceptions to this rule, 14 we continue to adhere to the general principle that the unambiguous terms of a written contract containing a merger clause may not be varied or contradicted by extrinsic evidence.

In order for the bar against the introduction of extrinsic evidence to apply, the writing at issue must be integrated, that is, it must have been intended by the parties “to contain the whole agreement”; Associated Catalog Merchandisers, Inc. v. Chagnon, 210 Conn. 734, 740 , 557 A.2d 525 (1989); and to be “a final expression of one or more terms of [the] agreement . . . .” (Citation omitted; internal quotation marks omitted.) Id.

For example, extrinsic evidence may be admissible: “(1) to explain an ambiguity appearing in the instrument; (2) to prove a collateral oral agreement which does not vary the terms of the writing; (3) to add a missing term in [a] writing which indicates on its face that it does not set forth the complete agreement; or (4) to show mistake or fraud.” (Internal quotation marks omitted.) TIE Communications, Inc. v. Kopp, supra, 218 Conn. 288 -89.

We conclude, therefore, that the parties’ insertion of the merger clauses into the settlement agreements is *505 conclusive evidence of their intent to create fully integrated contracts, and that the trial court’s subsequent consideration of extrinsic evidence was improper.

A merger clause, of course, will not operate as a bar to the introduction of evidence of fraud by one of the contracting parties.

As discussed previously, the parties here possessed relatively equal bargaining power, and they executed the settlement agreements only after a lengthy drafting process during which they had received the advice of counsel.

Although the question of what weight should be given to a merger clause has prompted a number of differing views, 15 much of this disagreement has occurred in the context of unequal bargaining power between the parties, fraud, duress, or contracts in contravention of public policy.

Despite the definite and unambiguous language of the settlement agreements, the trial court concluded, and the plaintiffs now argue, that certain extrinsic evidence, specifically the conduct of the parties during the negotiation process and subsequent to the defendant’s dragging of the smoothing beam, supports their contention that the general release language in the agreements does not apply to direct construction damage outside of the work area. The trial court’s reliance on such extrinsic evidence to determine the parties’ intent cannot be reconciled with the merger clause contained in the contracts and, therefore, cannot be squared with our well settled principles of contract law.

The judgment is reversed and the case is remanded with direction to render judgment for the defendant.

None of the concerns that might call the merger clauses into question is present in this case.

Delaware will enforce only “clear anti-reliance clauses” where the party has unambiguously “contractually promised that it did not rely upon statements outside the contract’s four corners in deciding to sign the contract.” 253 “[M]urky integration clauses, or standard integration clauses without explicit anti-reliance representations, will not relieve a party of its oral and extra-contractual fraudulent representations.”

We therefore hold, consistent with Abry, that where (i) the contract contains a one-sided anti-reliance clause disclaiming reliance by only one party, and (ii) the other party to the contract made no comparable promise, an exclusive remedy clause cannot be invoked to bar the other party’s post-closing claims for intentional extra- contractual fraud.

Section 4.08 is a textbook Abry- style anti-reliance provision, but it runs solely against J&J. Auris never disclaimed reliance on extra-contractual statements.

Nothing in Express Scripts suggests that an exclusive remedy provision, standing alone, can operate as an Abry-compliant anti-reliance clause in favor of a party that never obtained an express non-reliance promise from its counterparty. Accordingly, we affirm the Court of Chancery’s determination that Section 8.05(b) does not bar Fortis’s fraud claim.

First, that interpretation would circumvent Abry’s core requirement that any waiver of extra- contractual fraud must be effectuated through “unambiguous anti-reliance language” from the party who is seeking to rely on extra-contractual statements.

If the lease was procured by fraud and misrepresentation as to a material fact, the truth or falsity of which was known only to the Lessor (and *458 it is so alleged in the bill of complaint) and which misrepresentations, if proved, would be sufficient basis for a decree of recission, then such fraudulent misrepresentation vitiated every part of the lease contract and the Lessee was not bound by the above quoted clause.

The clause of the contract here relied on does not stipulate that the lease may not be rescinded for fraud, but it does stipulate “and that no verbal agreements, stipulations, representations, exceptions or conditions whatsoever have been made or entered into in regard to the above described property which will in any way vary, contradict or impair the validity of this lease, or of any of the terms and conditions herein contained.” This provision in the contract does not make the contract incontestable because of fraud, but evidences an agreement between the parties that no fraud had been committed.

We recognize the rule to be that fraud in the procurement of a contract is ground for rescission and cancellation of any contract unless for consideration or expediency the parties agree that the contract may not be cancelled or rescinded for such cause, and that by such special provisions of a contract it may be made incontestable on account of fraud, or for any other reason.

We think the factual conditions differentiate this case from the Cassara case. The allegations of the two bills of complaint are entirely different as to the nature of the representations alleged to have been false.

By the inclusion of the latter clause the parties agreed that the lease contained the entire contract between the parties and that no oral representations, promises or undertakings, and that no act or acts done at or taken pursuant to such oral representations, promises or undertakings shall effect, vary, alter or modify the terms of the lease. The lease contained no representations as to the amount or profits made by the owner on the operation of the hotel and no representatons as to the amount for which the pent house had been leased and, therefore, the les'see foreclosed *304 any right on his part to claim a forfeiture or rescission of the lease because of such oral representations if the same had been made.

Concluding that the “non-reliance” and “waiver” components of the disclaimer clauses negate Appellant’s fraud claims, we affirm.

Courts have struggled to reconcile and apply Oceanic Villas and Cassara, yielding conflicting results.

The lease contains the following clause: “It Is Distinctly Understood and Agreed that the Lessee herein accepts the property herein leased and demised in its present condition, being governed by its own personal inspection of the premises, and in executing this lease it has not been governed or influenced by any representations of the Lessors as to the age and condition, or character of improvements situated upon said property, or as to the earning capacity thereof, and Lessee is guided in making this lease in accordance with the present terms only by its own judgment and without any influence, representation, fraud or duress of any nature on the part of the Lessors, and that the Lessee herein shall under no circumstances assert or maintain any claims for damages against the Lessors by reason of any present or future condition of improvements or buildings, if any, situated upon the above described property, and that no verbal agreements, stipulations, reservations, exceptions or conditions whatsoever have been made or entered into in regard to the above described property, which will in any way vary, contradict or impair the validity of this lease, or of any of the terms and conditions herein contained.”

The appeal brings for review order dismissing amended bill of complaint. The suit was for rescission of a lease contract and for judgment requiring refund of moneys paid on the lease. The grounds upon which the right of rescission is based are, in effect three: (1) that the lessor knowingly and wil *303 fully misrepresented the amount of profits made on the operation of the hotel during the year or season preceding the lease; (2) that he misrepresented the amount for which he had leased the pent house on top of the premises leased and which were included within the lease, for the year or season preceding the date of the lease; and (3) that the hotel bore a good reputation as a first class hotel when in truth and in fact it did not bear such a reputation.

The bill of complaint shows that the lessee was on the ground a stranger to the lessor and that he elected to act upon the alleged representations of the lessor and made no inquiry elsewhere as to the character and reputation which the hotel had acquired and maintained under its operation by the lessor. Character and reputation are measured by the opinion of the, public and not by the opinion of one interested individual. Our knowledge of men and affairs leads to the conclusion that there is nothing more easily acquired by inquiry than is the character and reputation of a hotel and casual inquiry among citizens and residents, business people and frequenters of hotels will easily elicit reliable information as to the character and reputation of any hotel in any city.

With these factual conditions in mind, we conclude that the lower court followed the enunciations of controlling legal principles found in Carmadella v. Cartright, 126 Fla. 536 , 171 Sou. 225 ; People v. Rogers, 104 Fla. 462 , 140 Southern 205; Willis v. Fowler, et al., 102 Fla. 35 , 136 Sou. 358 . *305 It, therefore, follows that the order appealed from should be, and is, affirmed.

We think there is clearly a distinction in the effect of a stipulation of a contract which recognizes that fraud may have been committed and stipulates that such fraud, if found to have been committed, should not vitiate the contract, and one in which the parties merely stipulate that no fraud has been committed and that neither party has relied upon the representations of the other party made prior to the execution of the contract.

So the bill is not entirely without equity but we do not find that the bill contains sufficient allegations constituting offers to do equity. It would be inequitable to allow *460 the plaintiff to retain possession of valuable property and enjoy the rents, issues and profits thereof pending what may be long litigation without offering any security to the lessor for his rentals, or so much thereof as he may be found entitled to receive. It, therefore, follows that the circuit court was without error in its order dismissing the bill of complaint with leave to amend.

For the reasons stated, certiorari is granted and quashed with directions that the cause be remanded to the lower court for further procedings not inconsistent with the views herein expressed. So ordered. Brown, C. J., Whitfield and Adams, J. J., concur.

The lease attached to and made a part of the bill of complaint has , two pertinent provisions, One is: “4. That the said premises shall not be used for any purpose other than that of conducting a hotel of a reputation and character as good as is enjoyed by the said hotel under its present management and in this connection the parties understand and agree that the said hotel enjoys a first class' reputation and rating at the present time.” And the other is: “10. It is understood and agreed that this lease contains the entire contract between the parties and that no oral representations, promises or undertakings' and that no act or acts done at or taken pursuant to such oral representations, promises or undertakings shall effect, vary, alter or modify the terms of this lease in any particular' where the payment of money is required to be made by the lessee.”

In Cassara, the lease contained a classic “merger” or “integration” clause. 186 So. at 514. The contract in Oceanic Villas contained a “non-reliance” clause. 4 So. 2d at 690. Accordingly, a superficial resolution of the apparent conflict between the cases is that a “merger” clause negates a fraud claim but a “non-reliance” clause does not. Because the contracts at issue here contain both such clauses, it would follow from Cassara that the “merger” language negates Appellant’s fraud claim.

We also conclude, pursuant to Oceanic Villas, that an express waiver of the right to base a claim on pre-contract representations renders the contract “incontestable . . . on account of fraud.” Oceanic Villas, 4 So. 2d at 690. We emphasize that the disclaimer clauses here are as clear and conspicuous as they are comprehensive. If these clauses are insufficient to render a claim for fraud “incontestable” within the contemplation of the Oceanic Villas court, then no disclaimer can possibly accomplish that objective—an objective that is both reasonable and essential in our complex and litigious society.

We certify the following questions to the Florida Supreme Court as involving great public importance: Did the court’s decision in Oceanic Villas, Inc. v. Godson, 4 So. 2d 689 (Fla. 1941), sub silentio overrule its decision in Cassara v. Bowman, 186 So. 514 (Fla. 1939)? If Oceanic Villas did not overrule Cassara, does a merger clause such as that discussed in Cassara, negate a claim for fraud? Do clear and unambiguous disclaimer clauses, such as those in this case, negate or “ma[ke] incontestable” a claim for fraud as discussed in Oceanic Villas?

Terms with respect to which the confirmatory memoranda of the parties agree or which are otherwise set forth in a writing intended by the parties as a final expression of their agreement with respect to such terms as are included therein may not be contradicted by evidence of any prior agreement or of a contemporaneous oral agreement but may be explained or supplemented

(a) By course of performance, course of dealing, or usage of trade (section 28-1-303); and

By evidence of consistent additional terms unless the court finds the writing to have been intended also as a complete and exclusive statement of the terms of the agreement.

The Boards respond that Appellants fundamentally misconstrue Idaho’s parol evidence rule, which only prevents the district court from considering extrinsic evidence relating to other terms of a contract when the contract is integrated. The Boards are correct.

Under the parol evidence rule, if the written agreement is complete on its face and unambiguous, no fraud or mistake being alleged, extrinsic evidence of prior contemporaneous negotiations or conversations is not admissible to contradict, vary, alter, add to or detract from the terms of the written contract.

“The mere existence of a written document, however, does not establish integration.” Valley Bank v. Christensen, 119 Idaho 496, 498, 808 P.2d 415, 417 (1991). “A written contact containing a merger clause is 6 integrated for purposes of the parol evidence rule.” Steel Farms, Inc., 154 Idaho at 267, 297 P.3d at 230.

Appellants’ argument and authority deal with the interpretation of terms of a contract. The district court did not look to extrinsic evidence in order to interpret the terms of the handwritten Memorandum of Settlement. Instead, it was attempting to determine whether an enforceable contract between the parties had been formed at all.

We find that the present appeal was pursued without a reasonable basis in law. Thus, the Boards are entitled to attorney fees on appeal pursuant to Idaho Code section 12-117(1). IV. CONCLUSION We affirm the judgment of the district court and its award of attorney fees to the Boards.

Additionally, section 14.7 of the contract states that the “Contract represents the entire and integrated agreement between the parties hereto and supersedes all prior negotiations, representations, or agreements, either written or oral.”

For the reasons stated, we hold that the four corners rule precludes the consideration of extrinsic evidence where a contract contains an integration clause and is facially unambiguous. Thus, Air Safety is bound by the language of the 1990 contract and the change orders executed pursuant to that contract. The judgments of the appellate and circuit courts are affirmed. Affirmed.

An integration clause such as the one in the present case is a clear indication that the parties desire the contract be interpreted solely according to the language used in the final agreement.

We expressly decline to rule on whether the provisional admission approach may be applied to interpret a contract which does not contain an integration clause until such a case is squarely before the court.

Air Safety cannot use the very evidence banned by the four corners rule to show that an exception applies which will allow the use of that evidence. The arguments are clearly circular and without merit.

This court, however, has never formally adopted the provisional admission approach, and we decline to do so today because the contract in the case before us contains an explicit integration clause.

Consequently, we will not write the integration clause out of the contract for policy reasons. Air Safety was free to negotiate a contract omitting the integration clause. It did not, and it is bound by its bargain.

The integration clause makes clear that the negotiations leading to the written contract are not the agreement. Accordingly, considering extrinsic evidence of prior negotiations to create an “extrinsic ambiguity” where both parties explicitly agree that such evidence will not be considered ignores the express intentions of the parties and renders integration clauses null.

An agreement is fully integrated when the parties involved adopt a writing or writings as the final and complete expression of the agreement.

Whether or not a written agreement is integrated is a question of fact to be determined by the totality of the evidence.

When an agreement is deemed fully integrated, the parol evidence rule prevents the receipt of any extrinsic evidence to contradict (or even supplement) the terms of the written agreement.

The parol evidence rule applies only to prior and contemporaneous matters; it does not bar evidence of subsequent negotiations to show modification of a written contract. Baie v. Nordstrom, 238 Iowa 866, 869 , 29 N.W.2d 211, 213 (1947). A written contract can be amended by oral agreement and a provision in a written contract that it can be modified or rescinded only in writing is ineffective (subject, of course, to the doctrine of consideration and the statute of frauds).

Although we have allowed fraudulent inducement claims to proceed despite an integration clause in a contract, we have done so only with regard to misrepresentations concerning facts or circumstances not included in the written contract.

We have held extrinsic evidence is admissible as an aid to interpretation when it throws light on the situation of the parties, antecedent negotiations, the attendant circumstances and the objects they were striving to attain.

Extrinsic evidence is also admissible before the issue of interpretation is reached in order to determine whether the writing is or is not an integrated agreement or whether, if integrated, it is completely or partially integrated.

Terms with respect to which the confirmatory memoranda of the parties agree or which are otherwise set forth in a record intended by the parties as a final expression of their agreement with respect to such terms as are included therein may not be contradicted by evidence of any prior agreement or of a contemporaneous oral agreement but may be explained or supplemented: 1. by course of performance, course of dealing, or usage of trade (section 554.1303); and 2. by evidence of consistent additional terms unless the court finds the record to have been intended also as a complete and exclusive statement of the terms of the agreement.

We have held the parol evidence rule applies where a “handcrafted contract contains an integration clause, where the parties were sophisticated business persons represented by counsel and of equal bargaining strength, and where terms of the alleged oral agreement reasonably would be expected to be included in the ... agreement.”

Whalen cannot establish these elements for two reasons. In the first place all of the alleged representations involved matters that were specifically addressed in the integrated written partnership agreements and corresponding letter agreements.

When a person with knowledge of a potential fraud enters into a new agreement concerning the same subject matter, he waives his claim to fraud in the original transaction.

This rule applies to the present case. The partnership agreements were clearly handcrafted documents and both partnership agreements contained an integration clause (section 17.7 in both).

Such is not the case here. To allow Whalen to proceed would vitiate the parol-evidence rule.

We believe the trial court erred in failing to consider the extrinsic evidence for each purpose. We base this conclusion on a review of the writing and the extrinsic evidence.

An integration clause protects both the seller and the broker from the buyer's argument that the seller made oral representations upon which the buyer relied.

Accordingly, we hold that paragraph 5 of the buyer's acknowledgment does not relieve a seller of the obligation to make accurate and complete disclosures and does not bar Osterhaus' contract claims as a matter of law.

Terms with respect to which the confirmatory memoranda of the parties agree or which are otherwise set forth in a writing intended by the parties as a final expression of their agreement with respect to such terms as are included therein may not be contradicted by evidence of any prior agreement or of a contemporaneous oral agreement but may be explained or supplemented:

(b) by evidence of consistent additional terms unless the court finds the writing to have been intended also as a complete and exclusive statement of the terms of the agreement.

(a) By course of performance, course of dealing or usage of trade (K.S.A. 2025 Supp. 84-1-303, and amendments thereto); and

On reliance, like Jennings, Golson and PHB seek shelter under Paragraph 5 of the Buyer Acknowledgement. Osterhaus rejected this blanket waiver-of-reliance argument as to all of the defendants in that case, which included the agent and his brokerage. 291 Kan. at 785 . We therefore do likewise here.

The decision of the Court of Appeals is affirmed. The decision of the district court *911 is reversed and remanded to the district court for further proceedings.

The parol evidence rule operates to exclude from judicial consideration extrinsic evidence offered to alter or vary unambiguous contractual language. This proposition, however, presupposes the existence of an integrated contract.

As a general rule parol evidence of additional terms is admissible to supplement a partially integrated written agreement if the additional terms are consistent with the writing.

We see no basis for concluding that Jackson did not raise genuine issues of material fact as to whether there was an oral condition to his obligation to pay the Rogers and, if so, whether the condition was satisfied. Accordingly, the District Court erred in granting summary judgment in favor of the Rogers. The entry is: Judgment vacated. Remanded for further proceedings consistent with this opinion.

Here, the agreement between the parties is not integrated: there is no integration clause; the agreements are extremely sparse in their language; and, given that both parties agree that there was to be a five-year delay in conveying the small parcel and that this is not reflected in the language of the agreements, clearly the parties contemplated at least some oral terms. At most, the agreement is partially integrated.

An alleged oral condition precedent requiring Brown to acquire the Davidson lot before Hemond's duty to perform arises cannot be said to "contradict" or be "repugnant" to the terms of the agreement between the parties. The alleged oral condition does not vary or alter the written terms: it does not alter the property to be conveyed; it does not alter the parties involved; and it does not alter the consideration agreed to by the parties. [5] It simply places a condition on the transfer of the small parcel, just as an oral condition in Rogers allegedly placed a condition on the repayment of a note. [6] Therefore, because the contract is not fully integrated and because the alleged oral condition does not contradict the written terms of the contract, consideration of the oral condition is not barred by the parol evidence rule.

Because Hemond has presented evidence of a genuine issue of material fact, summary judgment is inappropriate. The entry is: Judgment vacated. Remanded to the Superior Court for proceedings consistent with this opinion.

Terms with respect to which the confirmatory memoranda of the parties agree or that are otherwise set forth in a record intended by the parties as a final expression of their agreement with respect to such terms as are included therein may not be contradicted by evidence of any prior agreement or of a contemporaneous oral agreement but may be explained or supplemented:

raise factual issues of whether the parties' agreement included a condition that Jackson was not obligated to pay unless he was able and, if so, whether he was able to pay.

(1). By course of performance, course of dealing or usage of trade ( section 1‑1303 ); and

By evidence of consistent additional terms unless the court finds the record to have been intended also as a complete and exclusive statement of the terms of the agreement.

when parties reduce their agreement to writing, parol evidence is ordinarily inadmissible to vary, contradict, or alter the written agreement.

where a written agreement is ambiguous or incomplete, evidence of oral agreements tending to establish the intent of the parties is admissible.

A merger clause establishes that the parties intended the writing to be an integration of their agreement. Richard A. Lord, Williston on Contracts § 33:21 (4th ed.1999). In some jurisdictions a merger clause is “conclusive evidence of the parties’ intent to consider the agreement integrated.”

Thus, under these facts, we need not look beyond the writing of the 1997 lease itself to determine whether it is a complete integration.

Bussard instructs that if the additional agreement is one that similarly situated parties would include in the written agreement, then the written agreement is complete. Bussard, 294 Minn. at 226 , 200 N.W.2d at 162 . The survival of the additional rent obligation after purchase is certainly important enough that the parties would have included it in the 1997 lease if it were intended to survive after a purchase by Alpha.

Moreover, as found by the district court, the 1997 lease was drafted by Delta’s counsel. Even if there were an ambiguity in the 1997 lease, any such ambiguity would be construed against the party who drafted it.

Here, the 1997 lease contains a merger clause: All preliminary and contemporaneous negotiations are merged into and incorporated in this Lease Agreement. This Lease Agreement contains the entire agreement between the parties and shall not be modified or amended in any manner except by an instrument in writing executed by the parties hereto. This merger clause specifically states that it is the “entire agreement between the parties.” As the district court found, “the 1997 lease is a 54-page, comprehensive agreement which, by its terms, contains the entire agreement between the parties.”

Although the district court found that the 1997 lease contained the entire agreement of the parties, it engaged in a practical construction of the 1995 agreement to modify the terms of the 1997 lease. We agree that the 1997 lease is a comprehensive agreement that contains the entire agreement of the parties, but we also conclude that the district court erred in construing the 1997 lease and the 1995 agreement together.

We conclude that the 1997 lease is a complete integration and represents the complete and exclusive statement of the terms of the agreement between the parties and is unambiguous. Therefore, it was error to consider extrinsic evidence, such as the conduct of the parties, and the terms of the 1995 agreement, to reform or modify the terms of the 1997 lease.

Finally, we affirm the court of appeals on the grounds stated herein, that this was not an appropriate case for reformation of a contract. The district court erred when it found that the absence of language in the 1997 lease regarding the survival of the five percent additional rent after the closing of the option was a result of mutual mistake or scrivener’s error. The district court reasoned that because the parties did not negotiate a change to the five percent additional rent provision in the 1995 or 1997 lease, “The change was made by mistake, inadvertence, or a scriv-ner’s [sic] error.” Thus, on the basis of mutual mistake and scrivener’s error, the district court essentially reformed the 1997 lease to include the survival of the five percent additional rent clause. Reformation is appropriate when (1) there was a valid agreement between the parties expressing their real intentions; (2) the written instrument failed to express the real intentions of the parties; and (3) this failure was due to a mutual mistake of the parties. Nichols v. Shelard Nat’l Bank, 294 N.W.2d 730, 734 (Minn.1980). To demonstrate mutual mistake based on scrivener’s error, “it is necessary that both parties agree as to the content of the document but that somehow through a scrivener’s error the document does not reflect that agreement.” Id. Here, there is no evidence of a drafting error; nor is there evidence of mutual mistake, fraud, misrepresentation or inequitable conduct. Reformation was not an appropriate remedy.

This issue is not properly before us because we denied review of the district court's determination of fraud. But, in any event, we have held that fraudulent statements or misrepresentations are an exception to the parol evidence rule.

Therefore, we remand the issue to the court of appeals to review de novo whether the five percent additional rent clause violates federal and state law. Reversed in part, affirmed in part and remanded.

The execution of a contract in writing, whether the law requires it to be written or not, supersedes all the oral negotiations or stipulations concerning its matter which preceded or accompanied the execution of the instrument.

Whenever the terms of an agreement have been reduced to writing by the parties, it is to be considered as containing all those terms. Therefore, there can be between the parties and their representatives or successors in interest no evidence of the terms of the agreement other than the contents of the writing except in the following cases:

This section does not exclude other evidence of the circumstances under which the agreement was made or to which it relates, as described in 1-4-102 , or other evidence to explain an extrinsic ambiguity or to establish illegality or fraud.

Section 28-2-905(1)(b), MCA, allows the introduction of extrinsic evidence of a written agreement “when the validity of the agreement is the fact in dispute.” See also Thornton v.

resort to extrinsic evidence to construe clear and unambiguous contract language prohibited―intent of parties to written contract must “be ascertained from the writing alone if possible”).

When interpreting an express contract, extrinsic evidence can only be considered “when a mistake or imperfection of the writing is put in issue by the pleadings” or “when the validity of the agreement is the fact in dispute.” Section 28-2-905, MCA.

(a) when a mistake or imperfection of the writing is put in issue by the pleadings; (b) when the validity of the agreement is the fact in dispute.

The term "agreement", for the purposes of this section, includes deeds and wills as well as contracts between parties.

For the proper construction of an instrument, the circumstances under which it was made, including the situation of the subject of the instrument and of the parties to it, may also be shown so that the judge is placed in the position of those whose language the judge is to interpret.

The court, not the jury, decides as a preliminary matter the extent to which the transaction is embodied in the writing, that is, the question of integration.

Sometimes the court will have to look no further than the instrument itself and sometimes it will be proper to consider the surrounding circumstances, including the conduct and language of the parties as the Wigmore rule would require.

The following three tests are appropriately applied to determine if a transaction has been completely integrated: (1) Was the contract complete; did it include the whole or only a part of the transaction? (2) Does the evidence outside the writing vary or controvert the written terms? (3) Was the writing intended to cover the whole transaction, as shown by the conduct and language of the parties and the surrounding circumstances?

There are no provisions for job description, level of performance and job review, discharge and termination rights of either party, rights of the parties in the event of unforeseen absences from the jobsite (an issue here), or inability to perform the contract except as provided in the force majeure provisions. The lack of such important provisions in the writing indicates that the contract was not complete; it clearly described only a part of the agreement.

When the parties have executed a completely integrated written document purporting to express the terms of their agreement, the parol evidence rule renders ineffective any evidence of a prior or contemporaneous oral agreement which adds to, alters, varies, or contradicts the terms of the written document.

Nevertheless, we recognize that the parol evidence rule does not apply to a separate and distinct agreement supported by separate consideration

Assuming that the employment contract and the stock agreement are completely integrated, they represent only those agreements contained in each of the respective writings. The alleged oral agreement is a separate agreement, and thus, the parol evidence rule does not apply to exclude evidence of that alleged oral agreement. Because there exists a genuine issue of fact whether the oral agreement was made, summary judgment was improper. We reverse, and remand for further proceedings.

It is well settled that the parol evidence rule does not prevent a party from using contemporaneous or prior negotiations or expressions to show that the writing was never intended to be operative or that it was intended to be effective only upon the happening of a condition precedent, provided that the condition sought to be proved is not inconsistent with a specific term of the writing.

It appears to be the general rule that, even though parol evidence is admissible to show conditions precedent which relate to the delivery or taking effect of a written instrument, if the condition precedent is inconsistent with, or contradictory to, the written instrument, parol evidence thereof is not admissible.

We also said, however, that the disclaimer is ineffective to preclude the trier of fact from considering whether fraud induced formation of the bargain.

we held that a disclaimer clause in a contract for the purchase of real estate does not relieve the vendor or his agent from responsibility for the fraudulent representations made by the vendor’s agent concerning the subject matter of the contract.

Thus, a clause that an article is taken in the condition in which it is, or in other words, “as is,” is relevant in determining whether a claimant relied on a false representation concerning the condition of the article, but is not controlling.

Under these circumstances, the question as to whether Gibb acted reasonably is one of fact.

The clear and unambiguous language of the agreement showed that the Nathans expressly disclaimed any reliance on representations made by RBA and Nielsen.

The Delaware court distinguished fraud claims based on repre- sentations made outside of a merger agreement—which can be disclaimed through nonreliance language—from fraud claims based on false representations of fact made within the contract itself—which cannot be disclaimed.

The parol evidence rule is designed to preserve the integrity and certainty of written documents against disputes arising from fraudulent claims or faulty recollections of the parties

A determination as to whether an ambiguity exists is made as a matter of law and on an objective basis, not by the subjective contentions of the parties.

full and complete understanding and agreements of the parties and supersedes all prior understandings and agreements

In this case, the contract signed by the parties specifically provided: "This order is NOT subject to cancellation." Even if we were to find in this case that the contract was subject to a condition that the purchasers obtain an SBA loan, such condition, we believe, would be inconsistent with, or contradictory to, the provision against cancellation in the contract; and hence, under the rules above cited, parol evidence would not be admissible to show the condition.

In sum, we permit a broad use of extrinsic evidence to achieve the ultimate goal of discovering the intent of the parties. Extrinsic evidence may be used to uncover the true meaning of contractual terms. It is only after the meaning of the contract is discerned that the parol evidence rule comes into play to prohibit the introduction of extrinsic evidence to vary the terms of the contract.

The issue presented is whether the parol evidence rule bars admission of extrinsic evidence to explain the meaning of a bonus provision in a lawyer's retainer agreement when the written terms of the agreement appear to be clear. In the first trial of this matter, the court denied admission of extrinsic evidence to interpret the terms of the retainer agreement and found that the condition requiring a bonus, a zoning change, was satisfied. The Appellate Division reversed and held that the *343 trial court should have considered extrinsic evidence of the parties' intent. At the second trial, the court concluded that the parties intended that to earn the bonus both a zoning change and access to the property were required. The Appellate Division affirmed. We hold that extrinsic evidence was properly admitted to explain the meaning of the bonus provision and affirm the judgment of the Appellate Division.

In sum, the evidence clearly established that the parties intended the bonus would be earned only if Conway were successful in obtaining both a zoning change and access to the property to permit development. Because access to the property was not attained, the bonus was not earned. IV. The judgment of the Appellate Division is affirmed.

Terms with respect to which the confirmatory memoranda of the parties agree or which are otherwise set forth in a writing intended by the parties as a final expression of their agreement with respect to such terms as are included therein may not be contradicted by evidence of any prior agreement or of a contemporaneous oral agreement but may be explained or supplemented (a) by course of dealing or usage of trade (12A:1-205) or by course of performance (12A:2-208); and (b) by evidence of consistent additional terms unless the court finds the writing to have been intended also as a complete and exclusive statement of the terms of the agreement.

Justice RIVERA-SOTO, dissenting. Applying a two-step analysis, the majority first reviews extrinsic evidence to interpret a written retainer agreement negotiated between sophisticated parties—one of whom was a lawyer and the other was represented by its own counsel—and, based on that extrinsic evidence, determines that the written retainer agreement is ambiguous. As a result, the majority requires that the same extrinsic evidence used to create the ambiguity be used to cure it.

a. A "course of performance" is a sequence of conduct between the parties to a particular transaction that exists if: (1) the agreement of the parties with respect to the transaction involves repeated occasions for performance by a party; and (2) the other party, with knowledge of the nature of the performance and opportunity for objection to it, accepts the performance or acquiesces in it without objection. b. A "course of dealing" is a sequence of conduct concerning previous transactions between the parties to a particular transaction that is fairly to be regarded as establishing a common basis of understanding for interpreting their expressions and other conduct. c. A "usage of trade" is any practice or method of dealing having such regularity of observance in a place, vocation, or trade as to justify an expectation that it will be observed with respect to the transaction in question. The existence and scope of such a usage must be proved as facts. If it is established that such a usage is embodied in a trade code or similar record, the interpretation of the record is a question of law.

Were we dealing solely with a general and vague merger clause, our task would be simple. A reiteration of the fundamental principle that a general merger clause is ineffective to exclude parol evidence to show fraud in inducing the contract would then be dispositive of the issue (Sabo v. Delman, 3 N Y 2d 155). To put it another way, where the complaint states a cause of action for fraud, the parol evidence rule is not a bar to showing the fraud—either in the inducement or in the execution—despite an omnibus statement that the written instrument embodies the whole agreement, or that no representations have been made.

Here, however, plaintiff has in the plainest language announced and stipulated that it is not relying on any representations as to the very matter as to which" it now claims it" was defrauded.

Such a specific disclaimer destroys the allegations in plaintiff’s complaint that the agreement was executed in reli *321 anee upon these contrary oral representations

The complaint here contains no allegations that the contract was not read by the purchaser. We can fairly conclude that plaintiff’s officers read and understood the contract, and that they were aware of the provision by which they aver that plaintiff did not rely on such extra-contractual representations. It is not alleged that this provision was not understood, or that the provision itself was procured by fraud.

The marshaling of phrases plucked from various opinions and references to generalizations, with which no one disagrees, cannot subvert the fundamental precept that the asserted reliance must be found to be justifiable under all the circumstances before a complaint can be found to state a cause of action in fraud.

When the citations are read in the light of this caveat, we find that they are generally concerned with factual situations wherein the facts represented were matters peculiarly within the defendant’s knowledge, as in the cases of Sabo v. Delman (supra) and Jackson v. State of New York (supra). The general rule was enunciated by this court over a half a century ago in Schumaker v. Mather ( 133 N. Y. 590, 596 ) that ‘ ‘ if the facts represented are not matters peculiarly within the party’s knowledge, and the other party has the means available to him of knowing, by the exercise of ordinary intelligence, the truth or the real quality of the subject of the representation, he must make use of those means, or he will not be heard to complain that he was induced to enter into the transaction by misrepresentations.

Accordingly, the order of the Appellate Division should be reversed and that of Special Term reinstated, without costs. The question certified should be answered in the negative.

1. A written agreement or other written instrument which contains a provision to the effect that it cannot be changed orally, cannot be changed by an executory agreement unless such executory agreement is in writing and signed by the party against whom enforcement of the change is sought or by his agent.

The Purchaser has examined the premises agreed to be sold and is familiar with the physical condition thereof. The Seller has not made and does not make any representations as to the physical condition, rents, leases', expenses, operation or any other matter or thing affecting or related to the aforesaid premises, except as herein specifically set forth, and the Purchaser hereby expressly acknowledges that no such representations have been made, and the-Purchaser further acknowledges that it has inspected the premises and agrees to take the premises ‘ as is ’ * * * It is understood and agreed that all understandings and agreements heretofore had between the parties hereto are merged in this contract, which alone fully and completely expresses their agreement, and that the same is entered into after full investigation, neither party relying upon any statement or representation, not embodied in this contract, made by the other. The Purchaser has inspected the buildings standing on said premises and is thoroughly acquainted with their condition.

2. A written agreement or other written instrument which contains a provision to the effect that it cannot be terminated orally, cannot be discharged by an executory agreement unless such executory agreement is in writing and signed by the party against whom enforcement of the discharge is sought, or by his agent, and cannot be terminated by mutual consent unless such termination is effected by an executed accord and satisfaction other than the substitution of one executory contract for another, or is evidenced by a writing signed by the party against whom it is sought to enforce the termination, or by his agent.

4. If a written agreement or other written instrument contains a provision for termination or discharge on written notice by one or either party, the requirement that such notice be in writing cannot be waived except by a writing signed by the party against whom enforcement of the waiver is sought or by his agent.

3. a. A discharge or partial discharge of obligations under a written agreement or other written instrument is a change of the agreement or instrument for the purpose of subdivision one of this section and is not a discharge or termination for the purpose of subdivision two, unless all executory obligations under the agreement or instrument are discharged or terminated. b. A discharge or termination of all executory obligations under a written agreement or other written instrument is a discharge or termination for the purpose of subdivision two even though accrued obligations remaining unperformed at the date of the discharge or termination are not affected by it. c. If a written agreement or other written instrument containing a provision that it cannot be terminated orally also provides for termination or discharge on notice by one or either party, both subdivision two and subdivision four of this section apply whether or not the agreement or other instrument states specifically that the notice must be in writing.

5. If executed by an agent, any agreement, evidence of termination, notice of termination or waiver, required by this section to be in writing, which affects or relates to real property or an interest therein as defined in section 5-101 in any manner stated in subdivisions one or two of section 5-703 of this chapter shall be void unless such agent was thereunto authorized in writing.

Thus, section 15-301 nullifies only "executory” oral modification. Once executed, the oral modification may be proved.

Contrary to the view of the courts below, for purposes of section 15-301 the agreement to modify reached by the parties, even as to the quantity term alone, was not fully executed. Perforce, an "executed” agreement is one that has been fully performed (see 1 Bouvier’s Law Dictionary [Rawle’s 3d rev], Executed Contract, p 1111; cf. Jemison v Citizens’ Sav. Bank, 122 NY 135, 142-143 ; see, also, 1 Williston, Contracts [3d ed], § 14). The conduct of both parties indubitably prepared the ground for completion of the sale of 96 unit sites. But title had not been conveyed, and no consideration had changed hands. Hence, to enforce what is less than a fully executed oral modification, the statute must be satisfied.

Where there is partial performance of the oral modification sought to be enforced, the likelihood that false claims would go undetected is similarly diminished. Here, too, the court may consider not only past oral exchanges, but also the conduct of the parties. But only if the partial performance be unequivocally referable to the oral modification is the require *344 ment of a writing under section 15-301 avoided

There is, however, another qualification to the mandates of section 15-301. Analytically distinct from the doctrine of partial performance, there is the principle of equitable estoppel. Once a party to a written agreement has induced another’s significant and substantial reliance upon an oral modification, the first party may be estopped from invoking the statute to bar proof of that oral modification (see, e.g., Zolar Pub. Co. v Doubleday & Co., 529 F2d 663, 667-668; cf. Imperator Realty Co. v Tull, 228 NY 447, 453 ; Thomson v Poor, 147 NY 402, 409-410 ; Gray v Met Contr. Corp., 4 AD2d 495, 497 ; The Savage is Loose Co. v United Artists Theatre Circuit, 413 F Supp 555,559 ). Comparable to the requirement that partial performance be unequivocally referable to the oral modification, so, too, conduct relied upon to establish estoppel must not otherwise be compatible with the agreement as written

Generally, evidence of prior and contemporaneous negotiations and agreements are not admissible to vary, add to, or contradict a written instrument.

However, when the court finds a contract to be ambiguous, evidence of prior negotiations is admissible to show the intent of the parties.

Further, the rule is intended to apply only to final, totally integrated writings; that is, those writings relating to a transaction which are intended to supersede all other agreements regarding that transaction. If the writing supersedes only a part of the transaction, it is a partial integration and other portions of the transaction may be shown by parol evidence.

We disagree with the trial court and the Court of Appeals that the testimony defendant sought to elicit on cross-examination would violate the parol evidence rule.

Terms with respect to which the confirmatory memoranda of the parties agree or that are otherwise set forth in a record intended by the parties as a final expression of their agreement with respect to the terms included in it shall not be contradicted by evidence of any prior agreement or of a contemporaneous oral agreement but may be explained or supplemented by the following: (1) By course of dealing or usage of trade (G.S. 25-1-205) or by course of performance (G.S. 25-2-208). (2) By evidence of consistent additional terms unless the court finds the record to have been intended also as a complete and exclusive statement of the terms of the agreement.

The intention of the parties regarding the reciprocity of the agreements is not evident from a reading of the consent order. Therefore, evidence of the negotiations and contemporaneous property settlement agreements of the parties are admissible to clarify the uncertainty created when the non-modification provision of the order appears to be void as a matter of law. We also note that defendant does not seek to vary, add to or contradict the terms of the consent order. Indeed, she is merely trying to enforce the entire agreement as written. Further, it is clear that the consent order represents only part of the total settlement between the parties. As such, it is only a partial integration of the total agreement and parol evidence is admissible to show the balance of the transaction.

Terms with respect to which the confirmatory memoranda of the parties agree or which are otherwise set forth in a record intended by the parties as a final expression of their agreement with respect to such terms as are included therein may not be contradicted by evidence of any prior agreement or of a contemporaneous oral agreement but may be explained or supplemented:

but may be explained or supplemented: - By course of performance, course of dealing, or usage of trade (section 41-01-17); and - By evidence of consistent additional terms unless the court finds the record to have been intended also as a complete and exclusive statement of the terms of the agreement.

Section 41-02-09, N.D.C.C., changes the common law of contracts and liberalizes the application of the parol evidence rule to writings evidencing a .contract for the sale of goods.

There is no assumption that the parties intended a writing to be final or exclusive and, in fact, the assumption is to the contrary, unless the court expressly finds that the parties intended the contract to be completely integrated.

The written invoices did not contain a merger clause 5 and there is no assumption that the parties intended the invoices to be a final expression of their agreement. Under N.D.C.C. § 41-02-09, the trial court could consider extrinsic evidence of the commercial context of the parties’ agreement, including evidence of their “special arrangement,” to determine that the written invoices were not a final expression of their agreement about terms of payment.

We hold that the trial court’s implicit determination that Herman Oil and Peter-man Oil did not intend written invoices to be a final expression of their agreement was not clearly erroneous and permitted the court to rely on extrinsic evidence to determine the terms of that agreement.

When a contract is reduced to writing, the intention of the parties is to be ascertained from the writing alone if possible, subject, however, to the other provisions of this chapter.

Under N.D.C.C. § 41-02-09, the court must initially determine whether the parties intended a writing to be a final expression of their agreement on the written terms, or to be a complete and exclusive statement of their agreement.

Even if the court finds the parties intended a writing to be a final expression of written terms, N.D.C.C. § 41-02-09 authorizes the court to consider extrinsic evidence of course of dealing and course of performance to supplement or explain the written terms.

The parol evidence rule applies, in the first instance, only to integrated writings, and an express stipulation to that effect adds nothing to the legal effect of the instrument. The presence of an integration clause makes the final written agreement no more integrated than does the act of embodying the complete terms into the writing. Thus, the presence of an integration provision does not vitiate the principle that parol evidence is admissible to prove fraud.

However, the parol evidence rule may not be avoided “by a fraudulent inducement claim which alleges that the inducement to sign the writing was a promise, the terms of which are directly contradicted by the signed writing. Accordingly, an oral agreement cannot be enforced in preference to a signed writing which pertains to exactly the same subject matter, yet has different terms.” Marion Prod. Credit Assn. v. Cochran (1988), 40 Ohio St.3d 265 , 533 N.E.2d 325 , paragraph three of the syllabus.

“The parol evidence rule is a rule of substantive law which, when applicable, defines the limits of a contract.” Id., paragraph one of the syllabus.

The parol evidence rule states that “absent fraud, mistake or other invalidating cause, the parties’ final written integration of their agreement may not be varied, contradicted or supplemented by evidence of prior or contemporaneous oral agreements, or prior written agreements.” 11 Williston on Contracts (4 Ed.1999) 569-570, Section 33:4.

When the terms of an agreement have been reduced to writing by the parties, it is to be considered as containing all those terms, and therefore there can be, between the parties and their representatives or successors in interest, no evidence of the terms of the agreement, other than the contents of the writing, except where a mistake or imperfection of the writing is put in issue by the pleadings or where the validity of the agreement is the fact in dispute. However this section does not exclude other evidence of the circumstances under which the agreement was made, or to which it relates, as defined in ORS 42.220, or to explain an ambiguity, intrinsic or extrinsic, or to establish illegality or fraud.

The parol evidence rule, in brief, provides that a binding, completely integrated, written agreement supersedes or discharges all agreements, written or oral, that were made before the completely integrated agreement, to the extent that the prior agreements are within the scope of the completely integrated agreement.

The parol evidence rule does not prohibit the introduction of evidence extrinsic to a writing when the writing is not an integrated agreement.

Whether parties to a writing intended it to be an integrated agreement is a question of fact for the court. Land Reclamation v. Riverside Corp., supra, 261 Or at 183 (citing cases); accord Restatement (Second) of Contracts § 209, comment c (1979) (stating proposition). In answering that question, the court may consider all relevant evidence, including parol evidence.

An integrated writing is partially integrated if the writing omits a consistent, additional agreed-upon term, which was (1) agreed to by the parties for separate consideration, or (2) such a term as in the circumstances might naturally be omitted from the writing. Id. at 533 (adopting Restatement of Contracts § 240 (1932)); accord Restatement (Second) of Contracts § 216 (1979). Otherwise, the integrated writing is completely integrated. The trial court may consider all relevant evidence, including evidence extrinsic to the writing in question, to determine whether the parties intended the integrated writing to be a complete or partial integration.

A prior agreement is “inconsistent” with the terms of an integrated writing if it contradicts or negates an express term in the writing.

For the foregoing reasons, we hold that the quitclaim deeds are unambiguous, integrated writings that cannot be contradicted by evidence of the asserted oral sixth extension. Therefore, the trial court erred in admitting evidence of the asserted oral sixth extension, and the Court of Appeals erred in affirming the judgment of the trial court on the basis that the deeds were ambiguous.

An integrated document is one “where the parties thereto' adopt a writing or writings as the final and complete expression of the agreement.” 1 Restatement, Contracts §228, p. 307.

That question cannot be answered by an examination of the instrument alone for the writing does not in or of itself prove completeness.

Instead in each instance wide latitude must be allowed for inquiry as to whether the parties intended that the writing constitute an integration of all of their prior agreements and negotiations.

the trial justice must then determine whether the collateral terms are consistent with the written and are such as would normally be excluded from the written contract by the parties.

pursuant to G. L. 1956, §6A-2-202(b), parol or extrinsic evidence of consistent prior agreements is admissible in supplementation or explanation of such instruments unless there has been a preliminary finding by the trial justice that the writing was intended by both -parties as a complete and exclusive statement of all the terms

In addition, the parol evidence rule bars the admission of any previous or contemporaneous oral statements that attempt to modify an integrated written agreement.

We previously have held “[i]n situations in which the language of a contractual agreement is plain and unambiguous, its meaning should be determined without reference to extrinsic facts

As is well settled by our long-standing principles of contract interpretation, “[t]he determination of whether a contract’s terms are ambiguous is a question of law to be decided by the court.”

“We, the parties hereto, each declare that this instrument contains the entire agreement between the parties, and that it is subject to no understandings, conditions or representations other than those expressly stated therein.”

For the same reason the general merger and disclaimer language used in this P & S does not, as a matter of law, bar the fraud claim against the Spidells.

We find that there was no issue of material fact in the instant case and that summary judgment was appropriate because the merger and disclaimer clauses preclude defendants from asserting that plaintiffs made material misrepresentations regarding the profitability of the business.

The provision in the instant case differs considerably from the one quoted above in that it is not a general but a specific disclaimer. Such a provision, in our view, shall not vitiate the contract if it was read and understood by the party now claiming fraud and the provision itself was not procured by fraud.

The Buyers rely on their own judgment as to the past, present or prospective volume of business or profits of the business of the Seller and does not rely on any representations of the Seller with respect to the same.

If the clause in the case before us had been as general and had not provided that the buyer was to rely solely on his own judgment regarding the past, present, or prospective volume of the business, the *186 trial justice’s ruling would have been inappropriate.

If on the other hand, what is collateral is inconsistent with the writing or is such that the parties would naturally and normally have included one in the other, then the extrinsic evidence originally admitted preliminarily must be excluded and may not be considered by the trier of facts.

The complainant’s appeal is sustained, the decree appealed from is reversed, and the cause is remanded to the superior court with direction that the justice who heard the bill of complaint, if available, shall determine, in accordance with this opinion, the ultimate issues raised.

Bloomberg held that this general-merger clause did not shield the defendant from fraud liability when the plaintiff alleged that the defendant’s false promise to throw some “trucking business” his way induced him to buy a truck.

Accordingly, we sustain the plaintiffs appeal, vacate the decision below granting summary judgment for the defendants, and remand the papers in this case to the Superior Court for further proceedings consistent with our decision.

In this case, we need not go beyond the unambiguous terms of the agreements in order to understand them. Conclusion For the foregoing reasons we affirm the judgment of the Superior Court. The record shall be remanded to the Superior Court.

The ambiguity must become evident when the contract is read in context of the surrounding circumstances, not after parol evidence of intent is admitted to create an ambiguity.

Only where a contract is first determined to be ambiguous may the courts consider the parties’ interpretation, see Sun Oil Co. (Delaware) v. Madeley, 626 S.W.2d 726, 732 (Tex.1981), and admit extraneous evidence to determine the true meaning of the instrument.

Whether a contract is ambiguous is a question of law for the court to decide by looking at the contract as a whole in light of the circumstances present when the contract was entered.

A contract is unambiguous if it can be given a definite or certain legal meaning. Columbia Gas Transmission Corp. v. New Ulm Gas, Ltd., 940 S.W.2d 587, 589 (Tex.1996). On the other hand, if the contract is subject to two or more reasonable interpretations after applying the pertinent rules of construction, the contract is ambiguous, creating a fact issue on the parties' intent.

Hence, in Lewis v. East Texas Finance Company, 136 Tex. 149 , 146 S.W.2d 977, 980 (1941), we said: *732 If a written contract is so worded that it can be given a certain or definite legal meaning or interpretation, it is not ambiguous. It follows that parol evidence is not admissible to render a contract ambiguous, which on its face, is capable of being given a definite certain legal meaning. This rule obtains even to the extent of prohibiting proof of circumstances surrounding the transaction when the instrument involved, by its terms, plainly and clearly discloses the intention of the parties, or is so worded that it is not fairly susceptible of more than one legal meaning or construction.

Since mere disagreement over the interpretation of the lease does not make it ambiguous, we must determine which party’s interpretation is correct.

An unambiguous contract will be enforced as written, and parol evidence will not be received for the purpose of creating an ambiguity or to give the contract a meaning different from that which its language imports.

If a contract is unambiguous, the parol evidence rule precludes consideration of evidence of prior or contemporaneous agreements unless an exception to the parol evidence rule applies. See Hubacek v. Ennis State Bank, 159 Tex. 166 , 317 S.W.2d 30, 31 (1958). Haden argues that the collateral and consistent exception applies. Under the exception, parol evidence can be used to demonstrate a prior or contemporaneous agreement that is both collateral to and consistent with a binding agreement, and that does not vary or contradict the agreement’s express or implied terms or obligations. Id. But “[a] previous or simultaneous agreement to alter the fee agreed upon in a written contract is in conflict with the written contract and not merely collateral to it.” Lakeway Co. v. Leon Howard, Inc., 585 S.W.2d 660, 662 (Tex.1979) (per curiam); see also Rincones v. Windberg, 705 S.W.2d 846, 849 (Tex.App.-Austin 1986, no writ) (“It is a fair conclusion, we think, that the parol evidence rule prohibits the admission of oral evidence which alters the payment terms of a written contract.”). The evidence offered by Haden would alter the written fee agreement, and is therefore not admissible under the collateral and consistent exception to the parol evidence rule. The court of appeals erred in holding that there was no meeting of the minds necessary to form a binding contract, and erred in holding that the parol evidence rule did not bar Haderis evidence of an oral agreement to cap fees. Accordingly, we grant Sacks’s petition for review and, without hearing oral argument, see Tex. R.App. P. 59. 1, reverse the court of appeals’ judgment and render judgment that the trial court’s judgment with respect to the admissibility of parol evidence be reinstated. We remand the case to the court of appeals for consideration of other issues raised on appeal.

We reverse the judgments of the courts below and remand the cause to the trial court.

SPEARS, J., dissents in which POPE, C.J., and RAY and ROBERTSON, JJ., join. SPEARS, Justice, dissenting. I respectfully dissent. I do not believe that the property settlement agreement entered into by the Cokers is ambiguous.

Because we cannot discern whether Davidson's unilateral right to terminate "personnel policies" applies to the agreement to arbitrate, we conclude that the arbitration agreement is ambiguous. We reverse the court of appeals' judgment and remand this case to the trial court for further proceedings consistent with this opinion. TEX. R. APP. P. 60.2(d). Justice SCHNEIDER filed a dissenting opinion, joined by Justice O'NEILL. Justice SMITH filed a dissenting opinion.

For example, when interpreting an integrated writing, the parol evidence rule circumscribes the use of extrinsic evidence.

We hold today that in the face of a clear integration clause, extrinsic evidence of a separate oral agreement is not admissible on the question of integration.

Where a contract by an explicit term purports to be integrated, we will nevertheless allow extrinsic evidence in support of an argument that the contract is not, in fact, valid for certain reasons that we have specified. We have held that extrinsic evi *331 dence is appropriately considered, even in the face of a clear integration clause, where the contract is alleged to be a forgery, a joke, a sham, lacking in consideration, or where a contract is voidable for fraud, duress, mistake, or illegality.

While we agree that the Contracts contain integration clauses,1 the integration clauses do not necessarily bar the introduction of extrinsic evidence. Tangren Family Trust v. Tangren, 2008 UT 20, ¶ 11, 182 P.3d 326. Despite a finding that an “agreement is integrated, . . . parol evidence may be admitted . . . if . . . the language of the agreement is ambiguous.

Where two or more parties sign contemporaneous, executed instruments related to the same transaction, those agreements should be construed together—even where one contains a clear integration clause.

Tangren was careful to specify that its holding applied only to oral side agreements like the one at issue there. See Tangren, 2008 UT 20, ¶¶ 1, 17, 19. And, while Tangren indeed overruled or limited many prior cases, it specified that it did so only “[t]o the extent” that those cases “suggest[ed] that extrinsic evidence of a separate oral agreement [was] admissible where the contract contains a clear integration clause.”

He and the dealership, National Buick GMC (National), signed at least two agreements in connection with the sale: a Purchase Agreement and an Arbitration Agreement.

We reverse the determination that the Purchase Agreement’s integration clause precludes consideration of the Arbitration Agreement, vacate the ruling denying the motion to arbitrate, and remand for further proceedings consistent with this opinion.

To argue that the Lease is not the complete agreement of the parties is to argue in direct contradiction to the clear integration clause. Thus, we will not allow extrinsic evidence of a separate agreement to be considered on the question of integration in the face of a clear integration clause. 19 To the extent any of our prior cases provide otherwise, we overrule those cases.

Extrinsic evidence of a separate oral agreement is not admissible on the question of integration where the contract at issue contains a clear integration clause. Thus, evidence that Richard and Rodney entered into a separate oral agreement that the Lease is invalid or that its effectiveness is subject to a condition precedent was improperly considered by the trial court, given that the Lease contains a clear integration clause. We conclude that the Lease is integrated and that its terms are unambiguous. Thus, the parol evidence rule bars the admission of all extrinsic evidence regarding the Lease. Affirmed.

“When determining whether a contract is ambiguous, any relevant evidence must be considered” and “the better-reasoned approach is to consider the writing in light of the surrounding circumstances.” Ward v. Intermountain Farmers Ass’n, 907 P.2d 264, 268 (Utah 1995).

The parol evidence rule is a time-honored fixture in the law of this Commonwealth. “[I]n controversies between two parties to *92 a contract, parol evidence of prior or contemporaneous oral negotiations or stipulations is inadmissible to vary, contradict, add to, or explain the terms of a complete, unambiguous, unconditional, written instrument.”

We agree with the Board. The trial court ruled that the contract was unambiguous. Furthermore, a merger clause in the contract stated that the document "represents the entire and integrated agreement between the parties ... and supersedes all prior negotiations, representations, or agreements, either written or oral." Hence, there was no reason or authority to admit evidence of pre-contract discussions and correspondence. Any similar evidence should be excluded upon retrial.

A buyer can show that a contract of sale was induced by the seller’s fraud, notwithstanding the fact the sale was made “as is”. 1 R. Anderson, Uniform Commercial Code § 2-316:35 (2d. ed. 1970). The same is true even though the written contract contains covenants waiving warranties or disclaiming or limiting liabilities.

The express warranty, which purports to be ‘in lieu of all other warranties’ does not render the seller immune from fraud that induced the contract. The warranty stands no higher than the contract which is vitiated by the fraud.

Our opinion in Shevel’s, Inc. v. Southeastern Assoc., 228 Va. 175 , 320 S.E.2d 339 (1984), this day decided, summarizes several well-defined exceptions to this rule.

Applying the “plain meaning” rule, we hold that the language of the Coffey deed was unambiguous and unconditional and that the testimony proffered by Mrs. Amos, which tended to vary and contradict the intention of the parties as expressed in the deed, was inadmissible.

Finding no merit in the assignments of error, we will affirm the chancellor’s decree. Affirmed.

We will demonstrate infra that the trial court did err in admitting evidence of precontract discussions and correspondence. We think, however, that the question of design errors and discrepancies in plans is a different matter, one not subject to the strictures of the merger clause.

For the reasons assigned, the judgment in favor of Sherman will be reversed, the jury's verdict set aside, and the case remanded for a new trial consistent with the views expressed in this opinion. Reversed and remanded.

Defendant filed as an exhibit with its answer an “Aircraft Delivery Receipt” memorializing the contract of sale. This document provided that it “shall not be extended, altered or varied except by written instrument”, stated that the airplane is “accepted in ‘As is Where Is’ condition”, and waived “all warranties, guaranties, conditions or liabilities”, including all liability for direct and consequential damages.

Pursuing that thesis, defendant argues that Code § 8.2-202 forbids the use of parol evidence to contradict the written contract; that Code § 8.2-316 excludes all implied warranties in a sale “as is”; that Code § 8.2-719, which authorizes contracting parties to “limit or alter the measure of damages recoverable”, validates the covenants waiving all claims for damages; and that plaintiff was, therefore, bound by all the waivers and disclaimers written into the contract. We find no merit in defendant’s argument.

While, as defendant says, contracting parties may waive their contractual rights and disclaim or limit certain liabilities, a “false representation of a material fact, constituting an inducement to the contract, on which the purchaser had a right to rely, is always *112 ground for rescission of the contract by a court of equity.”

We hold that the trial court erred in entering summary judgment on the pleadings, and we will reverse the judgment order and remand the case for a trial on the merits. Reversed and remanded.

Second, even when a party to a contract drafts the written document, he is not estopped to show that its terms were induced by the other party’s fraud; it follows that he is not estopped when the document is drafted by his agent.

However, the parol evidence rule only applies to a writing intended by the parties as an "integration" of their agreement; i.e., a writing intended as a 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. Barber v. Rochester, supra at 698. 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.

If, however, the court finds that the parties intended the writing to be a final expression of the terms it contains but not a complete expression of all terms agreed upon — i.e., partially integrated — then the terms not included in the writing may be proved by extrinsic evidence only insofar as they are not inconsistent with the written terms.

The Court of Appeals recognized the conflict between the oral and written agreements but, nonetheless, upheld the trial court's admission of parol evidence, relying upon Black v. Evergreen Land Developers, Inc., supra, in support of its decision. The court's reliance is misplaced. In Black, the buyer of real property sued to enforce an oral *558 agreement with the seller that a particular view would never be impaired. The earnest money agreement contained a boilerplate integration clause which stated: " 'There are no verbal or other agreements which modify or affect this agreement.'" Black, at 250. Although this court found that evidence of the oral covenant conflicted with the boilerplate integration clause, we held that parol evidence was admissible to show that the integration clause was false because "'a party to a contract is not bound by a false recital of fact". (Italics ours.) Black, at 250, quoting Cook v. Vennigerholz, 44 Wn.2d 612, 616-17 , 269 P.2d 824 (1954). However, we also found that evidence of the oral covenant did not conflict with the substantive provisions of the deed and thus was admissible under the doctrine of partial integration. In this case, evidence of the oral agreement does conflict with a substantive provision of the written lease — a cancellation clause — and is therefore inadmissible under the parol evidence rule.

They brought an action seeking to prevent petitioners from exercising a right of termination expressly provided for in the written lease, claiming that petitioners had orally agreed not to terminate the lease until the property was "ready to be developed." The trial court admitted evidence of the oral agreement *553 and entered a decree entitling respondents to specific performance of this agreement. The Court of Appeals, Division One, affirmed. Emrich v. Connell, 41 Wn. App. 612 , 705 P.2d 288 (1985). We reverse.

We now hold that extrinsic evidence is admissible as to the entire circumstances under which the contract was made, as an aid in ascertaining the parties' intent. We adopt the Restatement (Second) of Contracts §§ 212, 214(c) (1981).

Whether or not ambiguity is apparent from the face of a contract, evidence of the circumstances of the making of the contract is admissible. We reject the plain meaning rule and expressly adopt the context rule as the applicable rule for *679 ascertaining the parties' intent and interpreting written contracts. The trial court is reversed and the matter remanded for proceedings consistent with this opinion.

In Hollis, we sought to clarify the meaning of Berg: Initially Berg was viewed by some as authorizing unrestricted use of extrinsic evidence in contract analysis, thus creating unpredictability in contract interpretation. During the past eight years, the rule announced in Berg has been explained and refined by this court, resulting in a more consistent, predictable approach to contract interpretation in this state. Hollis v. Garwall, Inc., 137 Wn.2d 683, 693 , 974 P.2d 836 (1999) (citations omitted). Since Berg , we have explained that surrounding circumstances and other extrinsic evidence are to be used “to determine the meaning of specific words and terms used” and not to “show an intention independent of the instrument” or to “vary, contradict or modify the written word.”

Thus, when interpreting *504 contracts, the subjective intent of the parties is generally irrelevant if the intent can be determined from the actual words used.

We agree with Town Bank that the TCA contains an unambiguous merger clause which precluded City Real Estate from introducing any evidence of prior understandings or agreements that may have existed between the parties, including the commitment letter.

Even assuming, without deciding, that the commitment letter constitutes a separate and enforceable contract for financing, we conclude that Town Bank was within its rights to terminate the agreement. It is undisputed that City Real Estate did not fulfill at least two of the conditions set forth in the commitment letter. We therefore affirm the decision of the court of appeals.

We conclude that the TCA is an unambiguous, fully integrated agreement with which Town Bank fully complied. Accordingly, Town Bank should have been granted summary judgment, and the case should not have proceeded to a jury trial.

However, as Town Bank accurately points out, when the contract contains an unambiguous merger or integration clause, the court is barred from considering evidence of any prior or contemporaneous understandings or agreements between the parties, even as to the issue of integration. See Dairyland Equip. Leasing, 94 Wis. 2d at 608 ; Matthew, 54 Wis. 2d at 341-42 . Again, this principle stems from basic contract law: if the contract is unambiguous, the court's attempt to determine the parties' intent ends with the language of the contract, without resort to extrinsic evidence. See Huml, 293 Wis. 2d 169, ¶ 52 . In Dairyland Equip. Leasing, this court defined a merger clause as a "written provision which expressly negatives collateral or antecedent understandings." 94 Wis. 2d at *361 608 . Thus, by definition, an unambiguous merger or integration clause demonstrates that the parties intended the contract to be a final and complete expression of their agreement.

Relevant to this case, the parol evidence rule does not preclude the court from considering evidence of any prior or contemporaneous understandings or agreements between the parties for the purpose of determining whether the parties intended the contract to be integrated. Our courts often refer to this rule by stating that" '[p]arol evidence is always admissible with respect to the issue of integration.

City Real Estate's interpretation of our case law necessarily implies that hereinafter, lenders — or all contract drafters, for that matter — would be obligated to expressly identify and exclude in their contracts any prior oral or written communication between the parties that may rise to the level of an agreement, lest risk its inclusion within the contract. We refuse to impose such an unnecessary and cumbersome burden on contract drafters.

We recognize a limited exception to the parol evidence rule for contemporaneous or prior agreements that supplement, but do not conflict with, the contract. See Dairyland Equip. Leasing, Inc. v. Bohen, 94 Wis. 2d 600, 607-08 , 288 N.W.2d 852 (1980). In such cases, the contract is considered "partially integrated." Id. at 607 . If the contract is shown to be only a partial integration of the parties' overall agreement, the court may properly consider parol evidence to establish the parties' *359 full agreement, so long as the parol evidence does not conflict with the part of the contract that has been integrated.