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What is due diligence?
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To
05/07/2001 23:51:14
General information
Forum:
Visual FoxPro
Category:
Contracts, agreements and general business
Miscellaneous
Thread ID:
00527182
Message ID:
00527383
Views:
16
>
Since contracts form a cornerstone of business, judges are loath to rewrite them...
<

While the courts do not want to rewrite contracts, the issue still often exists as to what makes up a contract. A contract is simply a legally enforceable promise. By legally enforceable, a court will enforce by granting relief in the form of specific performance or damages.

The basic question a court must ask before granting relief is "What are the terms of the contract?" This requires the court to look at a variety of sources of information. If there is a written contract, that only solves part of the problem. However, it is a mistake to think that other oral/written agreements that were made prior to that writing cannot be offered to and evaluated by the court. These items are subject to the parole evidence rule

It is also important to note that any subsequent oral/written agreements subsequent to the written contract are not subject to the parole evidence rule. The PAR is simply an additional bar to getting this information admitted as evidence for a judge/jury to consider.

The basics of the rule are simple. If a term is being introduced that contradicts a term that was in writing, it will not be admitted. However, it is important to note that the distinction is not clear. The basic question is whether the additional term contradicts or explains/clarifies an existing term. If you don't want the term admitted, you will argue that it contradicts. If you argue that it explains and clarifies.

You are correct that courts are loathe to rewrite or even write contracts for people. Still, if contracts where really that black and write/clear cut, there would be no need for courts and litigation when there is a writing. Remember, while courts don't wan't to write contracts for people, the courts are very interested in making sure the concept of fairness survives. Despite a writing, if it would be manifestly unjust to hold you to a term that you did not bargain for, the entire contract could be deemed void. Alternatively, the term could be knocked out leaving the rest of the contract in tact.

If there is one thing law school has taught me, nothing is black and white. Everything is open to interpretation.
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