rects the representations; and whatever terms are not contained in the [written] contract do not bind the seller, and must be struck out of the case." 1824, Abbott, C. J., in Kain v. Old, 2 B. & C. 627, 634: "Where the whole matter passes in parol, all that passes may sometimes be taken together as forming parcel of the contract (though not always, because matter talked of at the commencement of a bargain may be excluded by the language used at its termination). But if the contract be in the end reduced into writing, nothing which is not found in the writing can be considered as a part of the contract." 1846, Parke, B., in Knight v. Barber, 16 M. & W. 66 (the plaintiff and the defendant had made an oral agreement for the sale of shares; on the same afternoon the defendant signed a memorandum, which was then handed to the plaintiff, reciting the sale, the price, etc.; it was held that this memorandum should have borne a stamp): "With respect to the first point made by Mr. Baines [for the plaintiff], that there was a distinct parol contract between these parties before the memorandum was signed, if that memorandum was afterwards made and signed by the defendant, and was intended to contain the terms of the contract and to be acted upon by the plaintiff, it became, when it was so acted upon, the real contract between the parties. The parol agreement goes for nothing, if it was intended that it should be reduced into writing and this is afterwards done." 1875, Blackburn, J., in Angell v. Duke, 32 Law T. Rep. N. s. 320: "It is a most important rule that, where there is a contract in writing, it should not be added to, if the written contract is intended to be the record of all the terms agreed upon between the parties. Where there is a collateral contract, the written contract does not contain the whole of the terms." 1880, Van Fleet, C., in Van Syckel v. Dalrymple, 32 N. J. Eq. 233: "What was said during the negotiation of the contract or at the time of its execution must be excluded, on the ground that the parties have made the writing the only repository and memorial of the truth, and whatever is not found in the writing must be understood to have been waived and abandoned." 1 (2) In the next place, this rule has no necessary relation to any rule of law requiring acts to be done with a particular formality, such as writing. On the one hand, a contract may be entirely in written form, prescribed by law, and yet the terms may be scattered through many writings and not integrated in a single document; for example, a will of personalty under the statute of Charles II (against frauds and perjuries) had to be in writing, and yet the ecclesiastical Courts constantly dealt with valid wills which were made up from numerous separate writings of all sorts.2 On the other hand, even where no form of writing is prescribed, the rule of integration applies if the parties have in fact embodied their act in a single memorial.3 1 In the following passages the theory is concisely stated: 1781, L. C. Thurlow, in Irnham v. Child, 1 Bro. Ch. C. 92 ("The rule is perfectly clear that where there is a deed in writing, it will admit of no contract that is not part of the deed"); 1859, Pollock, C. B., in Harris v. Pickett, 4 H. & N. 1, 7 ("The rule relied on by the plaintiffs only applies where the parties to an agrement reduce it to writing and agree or intend that that writing shall be their agreement"); 1859, Martin, B., in Langton v. Higgins, 4 H. & N. 401, 408 (" Where two parties enter into a contract and put it into [a single] writing, that writing determines the terms of the bargain"); 1861, Hoar, J., in Kelly v. Cun ningham, 1 All. 473 ("The writing is the contract of the parties, in the view of the law, and supersedes all the previous parol_agreements"); 1878, Depue, J., in Franklin F. Ins. Co. v. Martin, 40 N. J. L. 568, 581 ("The written contract shall be regarded as the sole repository of the intentions of the parties"). 2 See the cases cited post, § 2454. 3 1845, Pollock, C. B., in Eden v. Blake, 18 M. & W. 614, 618 ("Whatever be the value of the goods sold, whether it be such as calls for a memorandum in writing, under the statute of frauds, or not, if there has been a memorandum in writing, it cannot be altered by extrinsie evidence"). (3) As a consequence of the same principle, it is to be noted that, in theory, the rule of Integration would apply equally to an act embodied in oral form, i. e. to a single oral pronouncement. Such a transaction is entirely unlikely in fact; it can be imagined, perhaps, in a contract by heliograph or by unwritten electric telegraph. But it serves to illustrate and emphasize the principle that the essence of the present rule is the embodiment of the act in a single utterance, and that the rule applies to acts as acts, independently of whether the form be written or oral. (4) Finally, the notion of Integration is not that any additional terms are involved in that process, but merely that the terms are contained in a different material or embodiment; and therefore the act is complete and binding when finally assented to before integration, even if it is an agreed condition that the act shall be so reduced or integrated.5 § 2426. History of the Rule. Looking back to find the origin and development of this rule, the precise inquiry, then, is this: The modern rule being that when the parties have embodied a transaction in a single document, the writing is indisputable as to the terms of the transaction, how far back in our history does this rule go, and what were the circumstances of its origin and development? It might have been supposed that this great principle of our law had come down to us as a continuous tradition from the earliest days. The indisputability of the terms of a writing seems to harmonize with that rigid formalism of primitive days which is elsewhere in the law constantly observable (ante, § 2405). Resting though it does now on a rational foundation of experience and policy, did it not nevertheless exist, even at the very beginning, as a natural part of the earlier system? Curiously enough, its history is quite the contrary. Our primitive system knew it not. Only towards the end of the middle ages does it come into being; and only in fairly modern times does it gain complete recognition. Its history falls, by a rough division, into three periods I, from primitive times till the vogue of the seal, in the 1200s; II, then, on English soil, till the statute of frauds and perjuries, in 1678; III, and thence, its modern recognition. I. In the primitive Germanic notions, at the time of the barbarian inva 41854, Mr. (later Justice) Blackburn, arguing, in Brown v. Byrne, 3 E. & B. 703 (“It may be convenient first to answer a question, put from the Bench, as to whether there is a distinction between written and verbal contracts. There is a difference; but in this respect there is none. If the parties met for the first and last time, and made a contract entirely by [oral] words, these words would, if proved, have precisely the same construction as if they had been written down"); 1885, Mulkey, J., in Gilbert v. McGinnis, 114 Ill. 28, 28 N. E. 382 ("The rule here stated [as to interpolating a usage] is equally applicable to a verbal contract, where the terms of it are definitely fixed, as they are in the present case"). 1894, Sanders v. Pottlitzer B. F. Co., 144 N. Y. 209, 39 N. E. 75 (defendant and plaintiff had settled by letters and telegrams upon the terms of their contract, and had mutually assented, the intention being also to embody the terms thereupon in a single document; the defendant then refused to execute the document unless a new condition was inserted; held, that the understanding that the contract should be embodied in a single document did not involve the addition of any substantive terms to the obligation, and that the contract could therefore be enforced in spite of its not having been so embodied). 1 The materials for this first part of the story are to be gleaned from the following works: 1877-8, Ficker, Beiträge zur Urkundenlehre ; 1885, Heusler, Institutionen des deutschen Pri sions and under the Merovingian and Carlovingian monarchies, there was certainly no notion of the indisputability of the terms of a document. This is explained, and was indeed predetermined, by the character of the civilization of those peoples. When the Germanic tribes spread west and south, and absorbed the Roman territories in Gaul, Spain, and Northern Italy, they brought with them two marked traits, an ignorance of letters, and a legal system of formal oral transactions. They found writing in use among the Romanized peoples, and (in Italy at least) an advanced habit of transaction by notarial documents; and this they in part fell in with. But it remained alien to their own ideas; and after the dissolution of the Carlovingian empire and the subsidence of Romanesque influence (say, by the 900s), the alien element that had found entrance was excised, and the development of their native system proceeded on its own main lines.2 The document, then, even in its most definite type (carta), is in the Germanic system merely one of the symbols that entered into the formalism of the transaction, and, like the wand, the glove, and the knife, has an efficacy independent of its written tenor, which indeed could mean nothing to the parties who employed it: "In the legal affairs of a people who, from the lowest churl to the great Emperor Charles, were unskilled alike in reading and in writing, the written document could have but a precarious position, and its acceptance into legal practice was opposed by all sorts of obstacles, in particular, by an almost ineradicable distrust of everything written, which they feared with the fear of a man who stands weaponless and helpless. For us moderns a written document is quite another thing than for the Germanic tribes, confronted with it yet not comprehending it. Nowadays, our documents of debt, or the like, we write ourselves, or at least sign them after perusal; we are masters of them, and we know that the thing we have written or signed is precisely what it is, and no fearsome mysterious thing. Quite otherwise with the Germanic peoples, confronted with the alien practice of legal writings, upon their invasions of Roman regions. The grantor of land, the borrower of money, could neither read nor write the document which might be executed in his name; he could but mark his cross at the bottom, and hope that all was right. Thus we hear, even in the early 1200s, a certain bailiff of the abbey of Pruem, in a litigation with the abbey before Henry IV, scornfully protesting, when the abbey produces a royal charter against him, that a partisan scribe could indite whatever he might please to vatrechts; 1887, Posse, Die Lehre von Privaturkunden; 1889, Bresslau, Handbuch der Urkundenlehre für Deutschland und Italien, I, 476-555; 1887-92, Brunner, Deutsche Rechtsgeschichte (based upon earlier separate essays by the same author, especially his Rechtsgeschichte der römischen und germanischen Urkunden); 1903, Brunner, Grundzüge der deutschen Rechtsgeschichte (confirming his earlier results); 1895, A. S. Schultze, Zur Lehre vom Urkundenbeweise, Zeitschrift für das privat- und oeffentliches Recht, XXII, 70; 1898, Déclareuil, Les preuves judiciaires dans le droit frane du V au VII siècle, Nouv. revue hist. du droit fr. et etrang., XXI, 220, 747, 757 (independently reaching results in harmony with the German scholars); 1902, Schroeder, Lehrbuch der deutschen Rechtsgeschichte, 4th ed., 361, 698. All these scholars are in substantial agreement upon the historical facts to be referred to; Ficker and Bresslau having contributed most to establish the correct story of the great fact, the relation of the seal and the attesting witnesses to the effect of the document. Pertile (Storia del diritto italiano, ed. 1900, VI, pt. 1, pp. 417– 419) is in accord as to most points, yet does not notice the importance of the seal; but in Italy the early vogue of notaries gave a different turn to the story of its local law. Stouff (Etude sur la formation des contrats par l'écriture dans le droit des formules du Ve au XIIe siècle; Nouvelle revue hist. de droit, XI, 249; 1887) ignores entirely the historical place of the seal; but Bresslau and Posse had not at that date published their researches copiously confirming Ficker's. 2 Ficker, I, 83-88; Brunner, R. G., I, 399, II, 420; id., Grundz., 41, 119; Pollock & Maitland, II, 88-190. invent ('irridens testamenta, dicens quod penna cuiuslibet quelibet notare posset, non ideo suum jus amittere deberet'). So too, in even a later age, there was an almost proverbial verse which ran, ‘On parchment, scribes may place with ease Exactly what their own minds please.' It is, in short, easy to imagine the mistrust which must in those days have attached itself to the written document. . . . The truth is that the legal value of the carta consisted in this, that by means of it the legal transaction was completed. . . . The grantor of a piece of land could transfer it in the ancient national form of sale and vestitura, or he could now accomplish the transfer by means of the document (per cartam venditionis), and the traditio per cartam effected the transfer of ownership, just as before this the sale had done. . . . Thus the traditio carta was itself a formal act. The act of delivery of the document was performed by the maker grasping the still blank parchment, lifting it from the earth (in land transfers at least, by Frankish usage), calling upon the witnesses to grasp it with him, handing it to the scribe to fill out the writing, and, after signatures affixed, delivering it to the grantee." 4 In this stage, then, the carta merely plays a convenient part, first, by enabling the formal delivery of the land to be made symbolically away from the premises, and, next, by preserving against future forgetfulness the names of the witnesses.5 The important and unquestionable fact is that the tenor of the writing does not legally and bindingly establish anything. If the truth of its statement is disputed the amount of money loaned, the area of land conveyed, the conditions of tenure annexed, the terms of the transaction may and must be proved by calling the witnesses to it, regardless of any contradiction of the writing. The attendant witnesses continued to be, as they had been, the main reliance for the proof of a disputed transaction. The procedure for disputing by the witnesses' oaths the correctness of the document was elaborate and well-settled, and its ultimate settlement might turn upon a wager of battle. How long was the persistence of this subsidiary status of the document, and how continuous the connection between Germanic usage and early Anglo-Norman legal ideas, may be seen from the following record of English litigation two hundred years after the Conquest: 1292, Anon., Year Book 20 Edw. I, 258 (Horwood's ed.): "A brought the mordancester against B, on the death of his father, for tenements in C; and he prayed the assise. — B. 'There ought not to be an assise: for see here your father's charter, by which he enfeoffed us and put us in good seisin. Judgment if there ought to be an assise.' — A. 'I admit perfectly that the charter is the deed of my father; but I tell you that he gave you the tenements by that charter upon these terms, viz., that you should hold it for one month, and that at the end of the month you should espouse his daughter Emma; and that if you did not, the land should revert to him and his heirs. Now, he died within the month, and at the end of the month you would not marry his daughter; therefore we pray judgment if there ought not to be an assise.'-B. You have admitted the charter, which is simple and unconditional. Judgment if there ought to be an assise.’— A. 'Whatever the words of the charter may be, such was the covenant between my father 3 Konrad von Würzburg, Schwanritter, 1.571. Heusler, I, 86. Ficker, I, 85; Bresslau, I, 729, 730. Pertile, I, pt. 1, p. 417, pt. 2, p. 192; Glasson, Hist. du droit et des inst. de la France, III, 503. 7 "That the probative value of a document lay only in its witnesses may be gathered from the fact that the word urkunde meant nothing else than witness'": Schroeder, 361; so Brunner, R. G. II, 391. and his friends and your friends; ready, etc.'-B. The reverse. -Therefore to the country.' The Jurors said that such was the contract even as A said; and that his father died within the month. They were asked if he died seised in his demesne as of fee. — The Jurors. We pray your assistance.' — The Justice. And inasmuch as it is found that the estate of B was conditional, which condition was not specifically performed, by reason of the default of B, and therefore his seisin was null.' ” • II. The rise of the seal brings a new era for written documents, not merely by furnishing them with a means of authenticating genuineness (ante, § 2161), but also by rendering them indisputable as to the terms of the transaction and thus dispensing with the summoning of witnesses. The vogue of the seal and of the transaction-witness wax and wane, the one relatively to the other. This legal value of the seal was the result of a practice working from above downwards, from the King to the people at large. It is involved, in the beginning, with the Germanic principle that the King's word is undisputable. Who gives him the lie, forfeits life. The King's seal to a document makes the truth of the document incontestable. This leads, along another line, to the modern doctrine of the verity of judicial records,— to be noticed later. Here, for private men's documents, its significance is that the indisputability of a document sealed by the King marked it with an extraordinary quality, much to be sought after. As the habitual use of the seal extends downwards, its valuable attributes go with it. First, a few counts and bishops acquire seals; and then their courtesies are sought in lending the impress and guarantee of their seal to some document of an inferior person, as serving him in future instead of witnesses.10 Finally, the ordinary freeman comes usually to have a seal; and his seal too makes a document indisputable at least, by himself. This extension of the seal begins in the 1000s, and is completed by the 1200s." Thus the old regime of proof by transaction-witnesses disappears by degrees; by the 1300s they are almost superfluous.12 This means that when a transaction has been made by writing, the parties rely for their future proof no longer on witnesses called in at the time of the transaction, but on the opponent's seal found affixed to the document, which thereby makes its terms indisputable by him as representing the actual terms of the transaction between the parties.13 8 Another case of a similar sort is cited by Professor Thayer (Preliminary Treatise on Evidence, 105) from Forsyth, who cites from Jocelyn de Brakelonde. About the 1300s, the following passage also is found: Mirror of Justices, ubi infra, pp. 75, 115, 152, 163 ("a charter is vicious if it testifies that a gift has been made, whereas as yet there has been no delivery of seisin "). 9 Ficker, I, 94, 95, 106, 107, 115; Bresslau, 510-549; Brunner, R. G., I, 393, II, 420, 523. 10 Ficker, 94; Posse, 130; ante, § 2161. England had a seal; . . . before the end of the thirteenth century the free and lawful man usually had a seal"). 12 Ficker, 95-97; Bresslau, 545. The course of thought is seen in the attribution of the qualities of a witness to the seal, as in a much quoted passage of the Schwabenspiegel, c. 34, § 2: "Hilfet ein toter geziuge [i. e. die briefe] als wol dir als ein lebendiger" (Schultze, 119). 13 Ficker, 82-91; Bresslau, 546 ("there is therefore no counter-proof allowable against the statements of fact [den sachlichen Bericht] in a sealed document"); id. 539 ("as a first principle of the law for documentary proof in Germany after the 1200s, it may be considered... [exceptions excepted] that the sealing was an indispensable requirement for the legal evidential force of a document, no matter who was its 11 Ficker, 91, 97; Posse, 129; Bresslau, 534 ("by the second half of the 1200s even ordinary burgers seal their documents"); Holmes, The Common Law, 272; Pollock and Maitland, II, 221 (at the date of the Conquest the Norman duke has a seal, and his cousin the late King of |