Primacy of Paratextual Contracts

Issues similar to those involved with videotaped wills arise in the law of contracts, particularly in the context of the parol evidence rule. Once a court concludes that a written contract is fully integrated, the majority rule mandates that the court should then limit its interpretation to the "four corners" of the written document and exclude extrinsic evidence of prior communications. ¹⁷³ This approach, often known as the "Williston test," ¹⁷⁴ accords at least presumptive primacy to the written text and, many argue, "creates a fictitious intention which may or may not coincide with the actual intention of the parties." ¹⁷⁵ Among the critics of this view, Professor Arthur Corbin insisted that the mere words of a writing could not establish categorically the final and complete expression of the parties' actual intentions. For that reason, Corbin argued, the courts should feel no compunction in looking beyond the borders of the writing to extrinsic evidence of intent. ¹⁷⁶

In the electronic age, Professor Corbin's criticism may finally prevail over Williston's majority rule. For example, the classic "four­ corners" test of Gianni v. R. Russell & Co. ¹⁷⁷ might have foundered if plaintiff Frank Gianni could have recorded electronically the alleged promise of his landlord to grant an exclusive right to sell soft drinks on the premises. Even a recalcitrant Williston would have been hard­pressed to champion the primacy of the written text in the fact of such audio­visual evidence. Notwithstanding the sanctity that the law accords to the written word, the eye and ear will typically favor the paratext.