acted other than in writing, or is now offering to testify orally, that impression is radically incorrect. When the prohibition of the rule is applicable, what is excluded may equally be written as oral, may be letters and telegrams as well as conversations; and where the prohibition is applicable on the facts to certain written material, nevertheless for the very same transaction certain oral material may not be prohibited. So that the term " parol" not only affords no necessary clue to the material excluded, but is even positively misleading. It must be understood to be employed in a purely unnatural and conventional sense.4

(3) There is no one and undivided parol evidence rule. There are at least four distinct principles or bodies of doctrine. They concern a common subject legal acts, but their content and details are separate and distinct. The case lies very much as if we possessed one term "action" for all the various forms of remedial procedure. It is true enough that they all may be looked upon as mere species of the general notion of a remedy, but it would be by all conceived impossible to discuss the details of mandamus, certiorari, injunction, capias, replevin, bill in chancery, action on the case, scire facias, subpœna, and the rest, with no better word-materials than the one word "action." Yet this is not far from the impossible task which has been attempted with the term "parol evidence rule." There is no one generalization for that rule, at least none which has any practical consequence. The four general groups of doctrine which go to make up the whole have each a separate set of rules; the chief problem in their application is to ascertain which kind of rule is involved in the case in hand, and to keep one from being mistaken for another.

(4) The parol evidence rule is not the only rule which concerns the use of written things. There are several other rules, with which it has nothing to do, that have also something to say about writings, the chief of which are the rule about Producing Documentary Originals (ante, §§ 1177-1282) and the rule about Authenticating Documents (ante, §§ 2129-2169). These are rules of Evidence in the genuine sense, and the term "parol" is often naturally employed (especially with the former) in discussing them. But they are of no kith or kin with the Parol Evidence rule proper, as here involved, i. e. the rule of substantive law. Their difference from the present rule is plain enough; but the false nomenclature of the latter has sometimes caused a relation between them to be suspected.

(5) Finally, it needs to be insisted, in opposition to the popular and natural view which tends to thrust itself forward at trials, that a writing has no efficacy per se, but only in consequence of and dependence upon other circumstances external to itself. The exhibition of a writing is often made as though it possessed some intrinsic and indefinite power of dominating the situation and quelling further dispute. But it needs rather to be remembered that a writing is, of itself alone considered, nothing,- simply nothing. It How unnatural it is may be seen from the trast to "sealed contract," in Briggs v. Parphrase "written parol contract," used in con- tridge, 64 N. Y. 357.

must take life and efficacy from other facts, to which it owes its birth; and these facts, as its creator, have as great a right to be known and considered as their creature has. Granting that there is a writing before us: Has it been brought home to anybody as his act? Was it meant to supersede other materials? Was it essential to the transaction? What external objects does it apply to? These are questions which cannot be answered without looking away from the writing to other data; and until they are answered the efficacy of the writing is merely hypothetical. There is no magic in the writing itself. It hangs in mid-air, incapable of self-support, until some foundation of other facts has been built for it. So far as the parol-evidence rule is concerned with writings at all, it concerns these questions of the relation between the writing and other data, and it points out what other data are essential and available for the proper use of the writing. It conduces, then, to a sound understanding of the rule if we dispel wholly that natural notion which falsely attributes to a writing some mystic independence and automatism.

In short, then, (1) the parol-evidence rule is not a rule of evidence; (2) nor is it only a rule for things parol; (3) nor is it a single rule; (4) nor is it all of the rules that concern either parol or writing; (5) nor does it involve the assumption that a writing can possess, independently of the surrounding circumstances, any inherent status or efficacy.

§ 2401. Parol Evidence Rule, a group of Rules defining the Constitution of Legal Acts; Four Subdivisions of the Subject. What, then, is the Parol Evidence rule? It concerns the constitution of legal acts. This requires a brief notice of the nature of legal acts.

Only a small part of conduct is legal conduct, i. e. conduct having legal effectiveness. The nature and effect of such conduct as will be given legal effect is therefore a question of general consequence in all departments of the law. Leaving aside the field of crimes (which deal with the relation between State and individual) and of torts (which deal with irrecusable or involuntary civil relations), we are here concerned with voluntary relations, i. e. those relations which may be created, defined, transferred, or extinguished by will of the parties. The conduct which is allowed to have such effect is a legal act.1

For the purpose of specific varieties of legal effects - sale, contract, release, and so on, there are specific requirements, varying according to the subject. But there are also certain fundamental elements, common to all, and capable of being generalized. These elements present problems which run through all

1 "There is a very important class of acts in which the legal result follows because that result was itself contemplated and desired as one of the consequences of the act. From the fact that legal results are in contemplation in this class of acts, the Germans call them Rechtsgeschäfte, Frenchmen call them actes juridiques. English lawyers have not yet agreed upon any name for them. The terms 'juristic acts' and acts in the law' have been suggested" (Mark by, Elements of Law, 3d ed., § 235); "It has been

defined, by a high authority [Puchta], as an 'act the intention of which is directed to the production of a legal result.' . . . A better definition [by Windscheid] is a manifestation of the will of a private individual directed to the origin, termination, or alteration of rights.' A juristic act has also been well described [by Ihering] as the form in which the subjective will developes its activity in creating rights, within the limits assigned to it by the law'" (Holland, Jurisprudence, 3d ed., c. 8).

the varieties of legal acts, and must therefore be analyzed and discussed in union. Their principles, when applied to specific kinds of acts, usually give substantially similar results; and, when they do not, it is merely because special circumstances call for local variances. It is therefore impossible to solve these problems adequately as a peculiarity of any one kind of act, since they do not peculiarly belong there, and do not take their significance from any one variety. For example, whether a mistake due to signing a document unread can avoid the effect of the document is not a question solvable separately for deeds, wills, simple contracts, and negotiable instruments; it is a question common to all, and solvable only in comparison. So, too, the question whether an oral promise to give money, made at the same time with a written one, is legally effective, is not essentially one question for deeds, another for promissory notes, and another for wills; whatever variation there is must be a variation from a common principle underneath all. Again, whether the word "dollars" may be considered to signify the lawful money of the United States or the money of the unlawful Confederate States, is the same kind of a question for bills of exchange, for ordinary contracts, and for wills, — a question of some general principle of interpretation. Even when the answer is different for different kinds of acts, it appears in all cases as a variation from some general doctrine. What has to be done, therefore, is to compare under one head the principles common to all legal acts, and to take account of the specific variations for specific kinds of acts. This is what the "parol evidence" rule does in our law.

These principles fall into four groups, marking the four possible elements of every legal act: (A), The Enaction, or Creation, of the act; (B), its Integration, or embodiment in a single memorial, when desired; (C), its Solemnization, or fulfilment of the prescribed forms, if any; and (D), the Interpretation, or application of the act to the external objects affected by it. Of these four, the first and the fourth are necessarily involved in every legal act; the second and the third may or not become practically important, but are always pos

sible elements.

A. The Enaction, or Creation, of an act is concerned with the question whether any legal act at all, or a legal act of the alleged tenor, has been consummated; or, if consummated, whether the circumstances attending its creation authorize its avoidance or annulment. Under the first head arise the

questions whether a writing is anything more than a preparatory draft, whether it has been completed by delivery, whether its tenor is to be judged by its actual words or the intended words, and the like. Under the second head arise the questions whether it can be avoided because of mistake, fraud, or duress, affecting the motive leading to its enaction.

B. The Integration of the act consists in embodying it in a single utterance or memorial, commonly, of course, a written one. This process of integra tion may be required by law, or it may be adopted voluntarily by the actor or actors; and, in the latter case, either wholly or partially. Thus the question in its usual form is whether a particular document is the one deemed

by law to be the sole memorial of the act, or how far a particular document was intended by the parties to cover certain subjects of transaction between them and therefore to deprive of legal effect all their other utterances.

C. The Solemnization of the act concerns the forms which are required by law to attend it in order to give it legal effect. This always becomes a question of some particular subject in the law, because there is no universal formality required in common for all acts. Thus the formalities of attestation, seal, registration, and the like, are essential for some but not for other acts.. Writing is naturally the most important and most common instance of a required formality. The resort to writing may sometimes be an instance of Integration and sometimes of Solemnization, but either may exist without the other.

D. The Interpretation of an act is the application of it to external objects, in the process of defining and enforcing the right or obligation affected by its terms. The words of a legal act are merely the symbols by which the actor indicates the external objects which the act is expected to affect a parcel of land or a barrel of sugar or John Doe the legatee. The connection between these words and their possible objects must be judicially established before the terms of the act can be given the effects expected by the parties. In this process of Interpretation, the main questions concern the standard of meaning to be adopted and the data which may be used in determining that meaning. For these four elements in the act, the principles are independent of each other, so independent, indeed, that they sometimes appear to be contradictory; and the chief inherent difficulty in their application arises from the necessity of distinguishing which element and which principle is really involved.

For

In the present exposition, it is impossible to do more than trace the general principles into their main details. Not only is the subject properly one of substantive law, instead of evidence; but it involves logically an application to many particular branches of the substantive law. Nothing short of separate treatises would suffice for a complete collection of precedents. example, the statute of frauds, with its myriad rulings, is involved; and the doctrine of collateral agreements as applied to negotiable instruments, the doctrine of mistake and misrepresentation as a motive for a deed or contract, the doctrine of judicial records as unimpeachable, these and numerous other applications of the principle, would require for their complete exposition far more scope than is appropriate in a treatise upon the law of evidence. The purpose in this chapter is to collect in systematic form the various applications of the principles and to examine in as much detail as is necessary those particular topics which have hitherto been commonly discussed as a part of the law of evidence and not of the substantive law.2

2 No attempt has been made to collect all of the precedents on any of the topics; but in those topics commonly appropriated to the law

of evidence the greatest part of the English cases and a large portion of the American cases are believed to be here collected.

A. CREATION OF LEGAL ACTS (VOIDNESS AND VOIDABLENESS).

§ 2404. General Principle; Subject, Terms, and Delivery; Intent and Expression. A legal act — that is, here, an act regarded as capable of having legal effects in civil relations other than tort-may be analyzed from two points of view. With reference to its tenor, it involves three elements,— its Subject, its Terms, and its Stages of Utterance. With reference to the mental condition of the actor himself, it involves two elements, Volition and Expression.

1. In the former aspect, it is clear that each of these three elements raises its own set of questions. (a) The act must be jural, as to its subject. Thus, on the one hand, an act which concerns merely relations of courtesy, or duties of morality, or other non-jural subjects, will receive no legal effects. On the other hand, acts which concern transactions prohibited by some policy of law - such as gambling or cheating — will equally be left without legal effects. (b) The act must be definite as to its terms. This excludes all acts whose terms are so uncertain or unintelligible that they are incapable of enforcement. Within these limits, the terms of the act will be whatever the actor has used. (c) The act must be final in its utterance. It does not come into existence as an act until the whole has been uttered. As almost all important transactions are preceded by tentative and preparatory negotiations and drafts, the problem is to ascertain whether and when the utterance was final; because until there has been some finality of utterance, there is no act. The necessity for a delivery of a document, and the nature of a delivery, are here the most usual questions in practice. These three elements, then, are all essential to any legal act, and no others are essential to all legal acts.

2. In the second aspect, it is clear that there must be both Volition and Expression; for an unexpressed volition would receive no legal effect, and an expression without some sort of volition would be equally ignored. But the volition and the expression may not correspond, and thus the usual problem is to define the relation that must exist between volition (or intention) and expression, in each one of the three elements of (1), above, in order to make the act legally effective. For example, Doe and Roe go through the form of marriage, Doe secretly intending it in jest, but Roe seriously; here the subject is jural in Doe's expression, but not in his volition; which shall prevail? Again, Doe by mistake of absent-mindedness writes in a contract "$100," instead of "$10," and hands it to Roe; here the terms, in expression, are different from the terms in volition; which is to prevail? Again, Doe writes a check payable to bearer and places it in his desk, and the check is stolen and handed to Roe; here, in expression - that is, in outward appearance - there has been finality of utterance, but not in Doe's volition; shall the former or the latter be decisive? This is the world-old legal problem, inevitably faced in the history of every jurisprudence, the problem of the competition between the external and the internal standards, the objective and the subjective