Extrinsic Evidence, Parol Evidence, and the Parol Evidence Rule: a Call for Courts to Use the Reasoning of the Restatements Rather than the Rhetoric of Common Law

David G. Epstein, University of Richmond

Coauthored with Timothy Archer and Shalayne Davis


As should be clear from our two practice context problems, this article is an example of what Professor Richard Epstein would call "Contracts small." According to Professor Richard Epstein, "'Contracts small' relates to contract law at the doctrinal level; it focuses on the rules of contract formation and performance; the everyday 'stuff of lawyer's law.' "This article looks to the Restatement of Contracts (hereafter "Restatement") and the Restatement (Second) of Contracts (hereafter "Restatement Second") for answers to the questions raised by the two problems. The Restatements generally have both been praised and condemned for their focus on doctrinal issues-on what Richard Epstein calls the "everyday stuff of lawyer's law." As indicated earlier, the "everyday stuff of lawyer's law" includes the terms "extrinsic evidence," "parol evidence,'' and "parol evidence rule." Let's start by choosing some working definitions.