Does this entire-agreement clause keep the prior promises and representations out?
Only within the subject matter your writing actually covers, and not against a fraud claim unless you wrote a specific nonreliance clause. Integration is decided by the judge, and not from the four corners: Traudt v. Nebraska Public Power District holds that “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”, and “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.” Cleasby v. Leo A. Daly Co. sets the three tests: “(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?” Where the writing IS completely integrated the rule bites hard, Rowe v. Allely: “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”, but Rowe is also the limit, because “the parol evidence rule does not apply to a separate and distinct agreement supported by separate consideration”, and “Assuming that the employment contract and the stock agreement are completely integrated, they represent only those agreements contained in each of the respective writings.” An oral condition precedent to the writing taking effect is admissible, within a limit: Cosgrove v. Mademoiselle Fashions states the rule allowing evidence “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.” Cosgrove itself EXCLUDED the evidence, however, because the claimed SBA-financing condition contradicted a printed "This order is NOT subject to cancellation." And on fraud, Nebraska refused the New York rule: Gibb v. Citicorp Mortgage, Inc., restating Flakus v. Schug, carries “the disclaimer is ineffective to preclude the trier of fact from considering whether fraud induced formation of the bargain”, and that whether the claimant acted reasonably “is one of fact”. What DOES work is a specific nonreliance clause, Nathan v. McDermott: “The clear and unambiguous language of the agreement showed that the Nathans expressly disclaimed any reliance on representations made by RBA and Nielsen”, reporting the Delaware court's line in RAA Management v. Savage Sports Holdings, which distinguished fraud claims “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 trap
A word-perfect merger clause can exclude nothing, because it integrates only what the writing contains. Rowe v. Allely is the case: the clause said the writing was the “full and complete understanding and agreements of the parties and supersedes all prior understandings and agreements”, and the Supreme Court REVERSED summary judgment and let a prior ORAL promise of financial support in anyway, on separate subject matter with its own consideration, expressly assuming the writings were completely integrated. Cleasby is the same mechanism inverted: the writing was held NOT complete precisely because it omitted job description, performance review, discharge and termination: “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.” So OMISSION IS EVIDENCE AGAINST YOU, and adding a clause does not cure it. Second trap: a generic disclaimer, an “as is”, and a merger clause do not stop a fraud claim in Nebraska. Citicorp asked the Supreme Court to adopt Danann Realty Corp. v. Harris and it REFUSED; across all 51,154 published Nebraska opinions the word “Danann” appears exactly once, in the case rejecting it. Third, the escape is narrow and it is NOT the merger clause: what worked in Nathan was a specific nonreliance clause naming the counterparty and the subject matter, in a negotiated commercial acquisition between represented parties, with the entire-agreement clause invoked only “[a]dditionally” and with an independent ground about agent liability. And Nathan records the Delaware boundary (in RAA Management the Delaware court held a nonreliance clause cannot immunise false statements of fact made INSIDE the same document) without deciding the point for Nebraska. Fourth, the research limit you should know: Neb. U.C.C. § 2-202, the Code's own parol evidence rule for goods, is absent from the Nebraska statutes we publish, and “Neb. Rev. Stat. § 2-202” is not that rule either: in the Agriculture chapter that number is a transfer stub, moved to section 2-258, with no statutory text at all. For a sale of goods this rule states the common law and nothing more.
19 authorities
The words that state the rule
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.
The words that state the rule
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 words that state the rule
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?
The words that state the rule
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.
The words that state the rule
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.
The words that state the rule
Nevertheless, we recognize that the parol evidence rule does not apply to a separate and distinct agreement supported by separate consideration
The words that state the rule
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.
The words that state the rule
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.
The words that state the rule
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.
The words that state the rule
We also said, however, that the disclaimer is ineffective to preclude the trier of fact from considering whether fraud induced formation of the bargain.
The words that state the rule
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.
The words that state the rule
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.
The words that state the rule
Under these circumstances, the question as to whether Gibb acted reasonably is one of fact.
The words that state the rule
The clear and unambiguous language of the agreement showed that the Nathans expressly disclaimed any reliance on representations made by RBA and Nielsen.
The words that state the rule
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 words that state the rule
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
The words that state the rule
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.
The words that state the rule
full and complete understanding and agreements of the parties and supersedes all prior understandings and agreements
The words that state the rule
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.
“Defective” means that reading found something to correct. What you are reading is the rule as it stands after that reading.