Sales and Leases | 71
In Article 2, evidence of course of performance, course of dealing, and usage of trade is always admissible to explain or supplement integrated terms, regardless of whether the terms are ambiguous. At least some courts may require ambiguity, however, before they will admit evidence of consistent, additional terms. And if any term in the agreement is ambiguous, most courts will admit virtually any type of relevant extrinsic evidence to resolve the ambiguity, even if the agreement is fully integrated. Obviously, it is crucial to bear in mind that resolving an ambiguity is not the same as adding to or contradicting the writing. [ See U.C.C. § 2-201, cmt. 1 (1951); Hessler v. Crystal Lake Chrysler-Plymouth, Inc. , 788 N.E.2d 405 (Ill. App. Ct. 2003); 2 Anderson U.C.C. §§ 2-202:20, 2-202:145 (3d. ed.), Westlaw (database updated June 2021).] Note : Some courts permit extrinsic evidence to interpret terms in an agreement even if they are not ambiguous. [ See 2 Anderson U.C.C. § 2-202:123 (3d. ed.), Westlaw (database updated Dec. 2020).] 3. Significance of a Fully Integrated Agreement In applying the parol-evidence rule, it is crucial to distinguish between (1) a writing intended to be the final, but not complete and exclusive, expression of the parties’ agreement as to any terms appearing in the writing (a partially integrated agreement) and (2) a writing intended to be the final, complete, and exclusive statement of the parties’ agreement (a fully integrated agreement). As to the former, consistent additional terms are admissible to supplement or explain any integrated terms. As to the latter, consistent additional terms are not admissible, even to explain or supplement any integrated terms. Here again, though, if any term in the agreement is ambiguous, most courts will admit virtually any relevant extrinsic evidence to resolve the ambiguity. [ See U.C.C. § 2-202 (1951); Hessler v. Crystal Lake Chrysler-Plymouth, Inc. , 788 N.E.2d 405 (Ill. App. Ct. 2003); 2 Anderson U.C.C. § 2-202:37 (3d. ed.), Westlaw (database updated June 2021).] a. Determining Whether an Agreement Is Fully Integrated The parol-evidence rule does not preclude extrinsic evidence for the purpose of determining whether the agreement is fully integrated. To that end, in making this determination, courts consider all relevant circumstances. A few factors, though, are especially important, namely: (1) the presence of a merger or integration clause, (2) any disclaimers, (3) the parties’ prior negotiations, and (4) the parties’ sophistication. Of these factors, by far the most important is the presence of a merger or integration clause. The second most important factor seems to be the parties’ sophistication, as more sophisticated parties can more readily be presumed to grasp the significance of the language they include in their written agreements. [ See Hessler v. Crystal Lake Chrysler- Plymouth, Inc. , 788 N.E.2d 405 (Ill. App. Ct. 2003).]
Made with FlippingBook - Online Brochure Maker