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THE PAROLE EVIDENCE RULE

This is a rule which states that were a contract has been reduced to
writing no other evidence of its content will be acceptable save for the
written document itself or secondary evidence thereof. Basically the point
is that the moment you have a written document you may not adduce or
lead oral evidence as to the content of the contract whether to alter,
contradict or vary such contents.
The rules are not solely concerned with the exclusion of parole or oral
evidence. The rules may also exclude other documents. It includes the
direct testimony of the parties, their extra-curial statements and their
physical acts which are tendered to supplement and contradict a complete
transaction and it excludes documents and correspondence other than
those that actually constitute the transaction or act being considered.
It is not only confined to written contracts. Thus, for instance, it has been
applied to judicial documents and even to unilateral, non-formal acts such
as the declarations of deceased persons that had been made in the course
of duty.
Extrinsic evidence may be received to indicate whether the signatory
signed as an agent or a principal. Even if the document incorporates a
jural act that makes subject to the rule against parole, part of it, such as
the receipt added to the substance of what has been written; or a date
may be proved by extrinsic evidence.
Union Government v. Vianini Ferro-Concrete Pipes (Pty) Ltd 1941
AD 43
Watermayer JA said, ...this court has accepted the rule that when a
contract has been reduced to writing, the writing is, in general, regarded
as the exclusive memorial of the transaction and in a suit between the
parties no evidence to prove its terms may be given save the document
or secondary evidence of its contents, nor may the contents of such a
document be contradicted, altered, added to or varied by parole
evidence.
The application of the integration rule may result in a partys being bound
by terms which it never really intended to agree, but its justification is that
it enables the terms of the contract to be proved with certainty and
precision

Like all other rules of evidence the parole evidence rule has exceptions to
it. The reason for the exceptions is as stated by Christie, Business Law in
Zimbabwe (page 65), It is obvious that the parole evidence rule contains
seeds of injustice because it excludes evidence which might reveal the
true agreement between the parties. To minimise this danger, the
application of this rule is subject to a number of limitations. These are
where there is misrepresentation, fraud, illegality, duress and mistake.

Exceptions
1. It doesnt exclude the leading of evidence to establish that the
contract was subject to a suspensive condition because one would
not be varying the contract in leading such evidence.
2. The rule will not be applicable where it is the intention of the parties
that the contract should partly be in writing or partly oral. The court
will give effect to the intention of the parties.
There is what is regarded as the so-called partial integration rule
which is but a corollary of the integration rule. Cobett JA in
Johnson v. Leal defines it thus, Where a written contract is not
intended by the parties to be the exclusive memorial of the whole of
their agreement but merely to record portion of the agreed
transaction, leaving the remainder as an oral agreement, then the
integration rule merely prevents the admission of extrinsic evidence
to contradict or vary the written portion; it does not preclude proof
of the additional or supplemental oral agreement.
Avis v. Versput 1943 AD 331
The court took the view that this was a situation where the parties
had intended that their contracts should be partly in writing and
partly oral. The court held that the oral agreement had to be given
effect.
To counter the problem of including evidence outside the written
contract one has to include an integration clause or a whole contract
clause. This will be a term stating that the document will be the
entire contract between the parties and all terms, conditions,
warranties or representations not herein included will be expressly
excluded. This means that one will be entrenching the parole
evidence rule into the contract. (See Mhene v. Teubes 1986 (2)
ZLR 179)

The parole evidence rule is designed to promote certainty and as


such the contract document serves all purposes on evidential
aspects. However, the exceptions to the parole evidence rule make
the written document uncertain and ultimately the court has to
balance the competing interests of the parties.
3. The parole evidence rule does not apply where the validity of the
contract itself is being challenged by one of the parties thereto.
Kok v. Osbourne 1993 (4) SA 788
The court held that one could not exclude oral evidence to establish
the grounds of invalidity of a contract e.g. due to mistake.
Thus the courts are sometimes prepared to disregard the integration
clause as it did in the Mhene case supra.
To seal the loose valve, an integration clause is often coupled with a
non-variation clause. If the parties intend to vary the terms of the
contract it has to be in writing and signed. Any such purported oral
evidence to vary the terms of the contract would be of no force and
effect.
In 1964 the CPD decided that the non-variation clause is binding on
both parties and any purported oral variation inconsistent with such
a clause would be invalid. However, a non-variation clause does not
in itself preclude a waiver and to completely seal the loose valve a
non-variation clause is often coupled with a non-waiver clause, in
that way one will have gotten rid of all the exceptions. A non-waiver
or indulgence clause says that no indulgence made by the party can
be taken to be a waiver of his rights.
Agricultural Finance Corporation v. Pocock 1986 (2) ZLR 229
(SC)
A non-variation clause in a contract entrenches the requirement
that any variation has to be in writing but does not prevent a party
for whose benefit it is inserted from waiving the requirement.
A non-waiver clause negatives any raising of a waiver or any
estoppel in that it amounts to notice given in advance,
acknowledged by the other party, that conduct which might
otherwise be a waiver or give rise to an estoppel, may not be taken
to be such conduct.
The combined effect of the two clauses is that two parties to a
written agreement containing carefully and extensively worded non-

variation and non-waiver clauses cannot enter an enforceable oral


agreement departing from the written terms since to the extent it is
a variation of the contract it is precluded by the non-variation clause
whereas if it be said to be a waiver or conduct giving rise to an
estoppel then the non-waiver clause provides the complete answer
to the point.
Maparanyanga v. The Sheriff & Ors SC 132-02
The sheriff entered into a standard form agreement with the
purchaser after the purchaser had offered to purchase the debtors
property by private treaty. The purchasers offer had conditions of
payment different from those in the standard form. The standard
form provided for the full purchase price to be paid on signature
thereof. However, both parties regarded themselves as being bound
by the terms of payment set out in the written offer made by the
purchaser and accepted by the sheriff.
The High Court concluded that although the standard form contract
could both reflect the terms of the agreement between the parties,
that form had been signed merely as a formality that was required
by the practice in the sheriffs office. The parties were well aware of
the conditions of the sale that had been agreed upon between them
and those conditions were observed.
On appeal the Supreme Court set aside the High Court order, one of
the reasons given by the Supreme Court for setting aside the order
was that it did not regard the standard form of agreement of the
sale to be inferior to, or less binding than any other contract
properly entered into by the contracting parties. The Supreme Court
went on to state that it was satisfied that the consequences of
disregarding a material term of such a contract were not more
elastic than suggested by the High Court.
The sheriff denied breaching the agreement; his evidence was that
the standard form did not record accurately the agreed terms of the
contract. This is also supported by the offer made by the purchaser
which culminated in the signing of the agreement. The offer by the
purchaser did not state that full payment would be made upon the
signing of the agreement. Other contemporaneous documents may
be looked to when the written contract is only one part of a larger
transaction. The purchaser and the sheriff were agreed as to the
true nature of the terms of the agreement. The standard form
agreement had no whole contract clause in it. The Supreme Court
held that from a contractual point of view, having signed such a

contract, both parties were bound and obliged to adhere to its


contents.
The sheriff entered into a standard form agreement with the
purchaser after the purchaser had offered to purchase the debtors
property by private treaty. The purchasers offer had conditions of
payment different from those in the standard form. The standard
form provided for the full purchase price to be paid on signature
thereof. However, both parties regarded themselves as being bound
by the terms of payment set out in the written offer made by the
purchaser and accepted by the sheriff.
The High Court concluded that although the standard form contract
could both reflect the terms of the agreement between the parties,
that form had been signed merely as a formality that was required
by the practice in the sheriffs office. The parties were well aware of
the conditions of the sale that had been agreed upon between them
and those conditions were observed.
On appeal the Supreme Court set aside the High Court order, one of
the reasons given by the Supreme Court for setting aside the order
was that it did not regard the standard form of agreement of the
sale to be inferior to, or less binding than any other contract
properly entered into by the contracting parties. The Supreme Court
went on to state that it was satisfied that the consequences of
disregarding a material term of such a contract were not more
elastic than suggested by the High Court.
The sheriff denied breaching the agreement; his evidence was that
the standard form did not record accurately the agreed terms of the
contract. This is also supported by the offer made by the purchaser
which culminated in the signing of the agreement. The offer by the
purchaser did not state that full payment would be made upon the
signing of the agreement. Other contemporaneous documents may
be looked to when the written contract is only one part of a larger
transaction. The purchaser and the sheriff were agreed as to the
true nature of the terms of the agreement. The standard form
agreement had no whole contract clause in it. The Supreme Court
held that from a contractual point of view, having signed such a
contract, both parties were bound and obliged to adhere to its
contents.
It is submitted that this is not the correct statement of the law. The
words of a contract are not engraved in stone. If parties can show
that a written contract does not reflect what was agreed between

them, a court cannot insist that they perform according to it. Rather,
it will insist that they comply with what each had agreed to do
because they consider themselves bound by the terms not
expressed.
4. No conclusive effect is attached to a note or memorandum drawn up
merely for the purpose of providing evidence of an essentially oral
agreement. Such a document may constitute an admission by a
party who made or assented to it, but like all informal admissions it
can be contradicted or explained away by other evidence.
Allen v. Pink [1838] 4 M&W 140
The plaintiff bought a horse from the defendant and received from
him a note reading, Bought by G. Pink, a horse for the sum of
7.2s.6d. The court held that this document was not intended to
record the terms of the sale and therefore did not prevent the
plaintiff from proving that the oral contract had included a warranty
as to the horses condition. The fact that only one party had signed
the document is some indication that it was intended to be no more
than a memorandum, but this is by no means conclusive.
Where the parties intend a document signed by only one of them to
represent the contract between them, parole evidence to vary the
document is inadmissible. Although the rest is said to be the
intention of the parties this has been taken to mean their intention
objectively ascertained from the nature of the document and the
surrounding circumstances.
5. As the rule applies only when the document was intended to record
the terms of the transaction, it is open to a party to show that the
document was drawn up for a special purpose and that the real
transaction was something different.
Moodley v. Moodley & Anor
The respondents did not seek to upset the validity of a written
contract for the sale of land. They sought to prove an agreement
which was in fact, not a simple agreement of sale if it was an
agreement of sale at all in terms of which the applicant was to
obtain a transfer of the property. Milne JP held that extrinsic
evidence was admissible to show that there had been this special
purpose.

6. Evidence may be adduced of a trade usage whereby additional


terms are implied in a written contract if the usage does not
contradict the terms of the document.
Brown v. Byrne [1864] 3 E&B 703
A custom by which ship owners allowed a discount on freight
charges was held not to be inconsistent with a statement of the full
amount in a bill of lading.

Does the rule bind third parties?


Where parties make a document the sole embodiment of their jural act,
the effect of the act has to be found only in the writing no matter who
may wish to avail himself to it. The parole evidence rule therefore applies
against a third party if it sought to use those utterances for the very
purpose for which the writing has superseded them as the legal act. If the
question is what the parties really agreed then it is not bound by the
terms of the document. But if a third party is concerned to prove the
terms actually enforceable by the contracting parties, he should also be
bound by the document because as a matter of substantive law this
determines what those terms are.