contract-law civil-law common-law
Does absence of legal advice affect litigation of a written agreement?
<p>It is common for parties to a contract to adapt templates (in a generally misguided effort to avoid legal costs).  In such cases, the <em>Written Agreement</em> may not reflect the parties' <em>Actual Agreement</em>.</p>
<p>How do courts resolve claims by a party in litigation that a term in their Written Agreement does not reflect the Actual Agreement, in a scenario in which (at least) the party disputing the term did not obtain legal advice on the Written Agreement?</p>
<p>For example, if neither party obtained legal advice, will a court accept evidence that a term of the Written Agreement did not reflect the Actual Agreement, and instead apply compelling evidence of the Actual Agreement?  Or is the language of the Written Agreement always applied, regardless?</p>
<p>For purposes of this question, assume:</p>
<ul>
<li>The litigation does not concern ambiguities, so this is not a question that is answered by the <a href="https://www.law.cornell.edu/wex/contra_proferentem" rel="nofollow noreferrer"><em>contra proferentem</em></a> rule.</li>
<li>Neither litigant asserts that the contract in question is an adhesion contract.  I.e., the litigants had equal bargaining power upon entering into their agreement.</li>
</ul>
<p>As an example, imagine that the parties adopted a Written Agreement with a standard integration clause.  The plaintiff's case depends on invalidating the integration clause.  Plaintiff presents contemporaneous evidence that the parties did not intend the Written Agreement to be integrated, even though the template they used contains the integration clause.  (Of course, in this case the defense succeeds if the integration clause is enforced, so the defendant will not admit that the intent was otherwise.)  So far it sounds like the plaintiff can't prevail.</p>
<ul>
<li>But what if <em>at the same time</em> that they signed the Written Agreement in question the parties signed another agreement covering some of the same subjects?  That seems like evidence that the Written Agreement was not in fact integrated.</li>
<li>Or what if there is incontrovertible evidence that both parties subsequently and intentionally acted contrary to some term of the Written Agreement?  That would suggest that the Written Agreement did not represent the Actual Agreement.</li>
</ul>
<p>Interested in common law; particularly U.S.</p>

<h2>Courts only decide disputes</h2>
<p>If the written contract says X but the parties agree they meant Y, then the court adopts Y.</p>
<p>However, if the written contract says X but one party asserts Y and the other Z, the court takes the written contract as definitive. The <a href="https://en.wikipedia.org/wiki/Parol_evidence_rule" rel="nofollow noreferrer">parol evidence rule</a> would prevent any evidence being introduced if X is unambiguous.</p>
<blockquote>
<p>Plaintiff presents contemporaneous evidence that the parties did not intend the Written Agreement to be integrated, even though the template they used contains the integration clause.</p>
</blockquote>
<p>The plaintiff can’t introduce that evidence in the first place unless there is some ambiguity to be resolved. If it’s plain on the face that integration (whatever that is) was intended then we’re done here counsel, move along.</p>
<blockquote>
<p>But what if at the same time that they signed the Written Agreement in question the parties signed another agreement covering some of the same subjects?</p>
</blockquote>
<p>If the documents don’t create a practical conflict then we’re in the same place as before. If they do then the court will try to resolve that within the written documents - a later document will usually prevail over an earlier one and a more detailed document over a more general one. Extrinsic evidence is almost always excluded.</p>
<blockquote>
<p>Or what if there is incontrovertible evidence that both parties subsequently and intentionally acted contrary to some term of the Written Agreement? That would suggest that the Written Agreement did not represent the Actual Agreement.</p>
</blockquote>
<p>No, that would constitute a waiver by one or both parties - you can choose not to enforce (waive) your rights under a contract. This can be one off or, if repeated often enough, a waiver for all future breaches.</p>
<p>Alternatively, the parties are free to change the terms of their contract; maybe that’s what happened.</p>
