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b. Merger Clause as a Factor in Determining Whether an Agreement Is Fully Integrated
The presence of a merger (or integration) clause in the agreement is often a crucial factor in determining whether an agreement is fully integrated. Generally, a merger clause states that the writing embodies the final, complete, and exclusive expression of the parties’ agreement. For example, “The parties intend this writing as the final expression of their agreement and as a complete and exclusive statement of the terms of their agreement.” Theoretically, a merger clause is not controlling, especially if the other circumstances clearly indicate that the agreement is not fully integrated. But courts usually honor merger clauses and give them their intended effect, hence their frequent appearance in professionally prepared agreements. Conversely, if an agreement lacks a merger clause, a court is much more likely to find that the agreement is not fully integrated. [ See Hessler v. Crystal Lake Chrysler-Plymouth, Inc. , 788 N.E.2d 405 (Ill. App. Ct. 2003); 2 Anderson U.C.C. §§ 2-202:46, 2-202:47 (3d. ed.), Westlaw (database updated June 2021).] Effect if Merger Clause Is Separately Entered in the Writing or Appears as Boilerplate on a Preprinted Form A merger clause tends to carry more weight if separately entered into an agreement, as opposed to being boilerplate language on a preprinted form. Even so, courts are usually inclined to afford significant weight even to preprinted integration clauses. [ See 2 Anderson U.C.C. § 2-202:47 (3d. ed.), Westlaw (database updated June 2021); Hessler v. Crystal Lake Chrysler-Plymouth, Inc. , 788 N.E.2d 405 (Ill. App. Ct. 2003).] Example : A car dealer entered a written contract with a distributor to purchase a promotional car that had not yet been manufactured, at a price of $60,000. The agreement provided that “the distributor will deliver the car ASAP after the distributor has received the car,” the term “ASAP” having been separately entered into the form. The agreement also contained a preprinted, boilerplate merger clause. On similar facts, an appellate court found that (1) the term ASAP was ambiguous and (2) the agreement was fully integrated. Accordingly, no extrinsic evidence was admissible to vary or contradict the agreement’s express terms. Even so, relevant extrinsic evidence was admissible to interpret the ambiguous term “ASAP.” [ See Hessler v. Crystal Lake Chrysler-Plymouth, Inc. , 788 N.E.2d 405 (Ill. App. Ct. 2003).]
4. Requirement of a Writing for the Parol-Evidence Rule to Apply
The parol-evidence rule applies only if there is some writing evidencing the parties’ agreement, including confirmatory memoranda. [ See U.C.C. § 2-201 (1951).]
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