Template:Course of dealing vs waiver: Difference between revisions
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England and the US have taken different paths when it comes to respecting the sanctity of that four-cornered document representing the contract. Whereas the [[parol evidence]] rule gives the written form a kind of “epistemic priority” over any other articulation of the abstract deal in the [[common law]], in the new world greater regard will be had of how the parties behave when performing their contract, and less significance on what at the outset they wrote down. | England and the US have taken different paths when it comes to respecting the sanctity of that four-cornered document representing the contract. Whereas the [[parol evidence]] rule gives the written form a kind of “epistemic priority” over any other articulation of the abstract deal in the [[common law]], in the new world greater regard will be had of how the parties behave when performing their contract, and less significance on what at the outset they wrote down. | ||
So whereas in England action to not insist upon strict contractual rights will have scarce effect on those rights (at best a [[waiver | So whereas in England action to not insist upon strict contractual rights will have scarce effect on those rights (at best a [[waiver by estoppel]] might arise, at least until it is withdrawn<ref>{{casenote|Hughes|Metropolitan Railway}}</ref>), in the United States [[Uniform Commercial Code]]<ref>[https://www.law.cornell.edu/ucc/1/1-303 § 1-303. ''Course of Performance, Course of Dealing, and Usage of Trade''].</ref> a “[[course of dealing]]” between the parties at variance with the written terms of their bargain will tend to override those written terms. Thus, by not insisting on the strict terms of her deal, an American risks losing that deal, and will be taken by the [[course of dealing]] to have agreed something else; whereas an Englishman, by granting such an indulgence, at worst suspends his strict contractual rights but does not lose them. | ||
In this way the [[parol evidence]] rule is less persuasive in American jurisprudence than in British. <br> | In this way the [[parol evidence]] rule is less persuasive in American [[jurisprudence]] than in British. <br> | ||
Latest revision as of 20:25, 23 March 2020
Different approaches to evidence of the contract in the UK and US
England and the US have taken different paths when it comes to respecting the sanctity of that four-cornered document representing the contract. Whereas the parol evidence rule gives the written form a kind of “epistemic priority” over any other articulation of the abstract deal in the common law, in the new world greater regard will be had of how the parties behave when performing their contract, and less significance on what at the outset they wrote down.
So whereas in England action to not insist upon strict contractual rights will have scarce effect on those rights (at best a waiver by estoppel might arise, at least until it is withdrawn[1]), in the United States Uniform Commercial Code[2] a “course of dealing” between the parties at variance with the written terms of their bargain will tend to override those written terms. Thus, by not insisting on the strict terms of her deal, an American risks losing that deal, and will be taken by the course of dealing to have agreed something else; whereas an Englishman, by granting such an indulgence, at worst suspends his strict contractual rights but does not lose them.
In this way the parol evidence rule is less persuasive in American jurisprudence than in British.