Cardinal Rules of Legal Interpretation

particular."-Haynes v. Haynes (1861), 1 Dr. & Sm. 426, at P. 433; 30 L. J. Ch. 578, at p. 579, Kindersley, V.-C.

"I understand by a contract an agreement which the law will enforce, and I apprehend that, speaking generally, the law will enforce all agreements made upon good consideration, or with certain solemnities which dispense with consideration. Agreement and consideration are thus the elements which constitute a contract not under seal. It may seem trivial to mention such obvious matters, but attention to them appears to me to clear up many decisions which are not otherwise readily explained."—Alderson v. Maddison (1880), 5 Ex. D. 293, at pp. 297, 298; 49 L. J. Ex. 801, at p. 804, Stephen, J.

A contract requires two parties to it.

"A contract requires two parties to it, and a man in one character can, with difficulty, contract with himself in another character."-Collinson v. Lister (1855), 20 Beav. 356, at p. 370; 24 L. J. Ch. 762, at p. 766, Sir John Romilly, M. R.

Evidence of Contract.

A written contract not under seal is not the contract itself, but only evidence the record of the contract.

"It should be borne in mind that a written contract, not under seal, is not the contract itself, but only evidence the record of the contract. When the parties have recorded their contract, the rule is that they cannot alter or vary it by parol evidence. They put on paper what is to bind them, and so make the written document conclusive evidence between them. But it is always open to the parties to show whether or not the written document is the binding record of the contract."-Wake v. Harrop (1861), 6 H. & N. 768, at pp. 774, 775; 30 L. J. Ex. 273, at p. 277,

Bramwell, B.

Extrinsic Evidence of Contract.

"Quoties in verbis nulla est ambiguitas, ibi nulla expositio contra verba fienda est."-Co. Litt. 147; Wing. Maxims, p. 24. Extrinsic evidence is always admissible, not to add to or subtract from, contradict, or vary a written contract, but to apply it to the facts which the parties had in mind and were negotiating about.

All facts are admissible which tend to show the sense the words bear with reference to the surrounding circumstances of and concerning which the words are used, e.g., identification of persons and things to which the contract refers; but such facts as only tend to show that the writer intended to use words bearing a particular sense are to be rejected.

If a contract is by fraud or mistake made to speak a different language from what was intended, then in those cases parol proof is admissible to show the fraud or mistake.

"It would be inconvenient that matters in writing, made by advice and on consideration, and which finally import the certain truth of the agreement of the parties, should be controlled by averment of the parties to be proved by the uncertain testimony of slippery memory."-The Countess of Rutland's Case (1605), 5 Rep. 26 a.

"It is not necessary to cite any case to prove the proposition. that parol evidence of a parol communication between the parties ought not to be received to add a term not inserted in the specific agreement which they have executed; and for this plain reason, that what passed between them in that communication may have been altered and shifted in a variety of ways, but what they have signed and sealed was finally settled. It would destroy all trust, it would destroy all security and lay it open, unless the parties are completely bound by what they have signed and sealed."-Haynes v. Hare (1791), 1 H. Bl. 659, at p. 664, Lord Loughborough delivering the opinion of the Court.

"It is a sound rule of evidence that you cannot alter or substantially vary the effect of a written contract by parol proof. This excellent rule is intended to guard against fraud and perjuries, and it cannot be too steadily supported by Courts of justice. Expressum facit cessare tacitum; Vox emissu volat; Litera scripta manet, are law axioms in support of the rule; and law axioms are

nothing more than the conclusions of common sense, which have been formed and approved by the wisdom of ages. This rule prevails equally in a Court of equity and a Court of law; for generally speaking, the rules of evidence are the same in both. Courts. If the words of a contract be intelligible, says Lord Chancellor Thurlow [Shelburne v. Inchiquin (1784), 1 Bro. C. C. 338, at p. 342], there is no instance where parol proof has been admitted to give them a different sense. Where a deed is in writing, he observes in another place [Lord Irnham v. Child (1781), 1 Bro. C. C. 92, at p. 93], it will admit of no contract that is not part of the deed.' You can introduce nothing on parol proof that adds to or deducts from the writing. If, however, an agreement is by fraud or mistake made to speak a different language from what was intended, then, in those cases, parol proof is admissible to show the fraud or mistake. These are cases excepted from the general rule."-Bebee v. Bank of New York (1806), 1 Johns. (U.S.) R. 571, 572, Kast, C. J.

that there

"I seldom pass a day in a Nisi Prius Court without wishing had been some written statement evidentiary of the matters in dispute. More actions have arisen, perhaps, from want of attention and observation at the time of a transaction, from the imperfection of human memory, and from witnesses being too ignorant, too much under the influence of prejudice, to give a true account of it, than from any other cause. There is often a great difficulty in getting at the truth by means of parol testimony. Our ancestors were wise in making it a rule that in all cases the best evidence that could be had should be produced; and great writers on the law of evidence say, if the best evidence be kept back, it raises a suspicion that if produced it would falsify the secondary evidence on which the party has rested his case. first case these writers refer to as being governed by this rule is, that where there is a contract in writing, no parol testimony can be received of its contents unless the instrument be proved to have been lost."-Strother v. Barr (1828), 5 Bing. 136, at p. 151,

Best, C. J.

The

"By the general rules of the Common Law, if there be a contract which has been reduced into writing, verbal evidence is not allowed to be given of what passed between the parties, either before the written instrument was made or during the time that it was in a state of preparation, so as to add to or subtract from, any manner to vary or qualify the written contract.”—Goss

or in

v. Lord Nugent (1833), 5 B. & Ad. 58, at p. 64, Lord Denman, C. J.

"It is a wholesome rule of law that, when parties have put an agreement into writing, parol evidence is not admissible to contradict, or vary the terms of the written agreement. There are certain cases which may conveniently be called 'escrow' cases, where the question is, whether the written agreement has ever become an effective agreement, or whether it was only to have effect as an agreement upon some condition being fulfilled which has not been fulfilled."-New London Credit Syndicate v. Neale, [1898] 2 Q. B. 487, at p. 491; 67 L. J. Q. B. 825, at p. 827, Rigby, L. J.

"Extrinsic evidence is always admissible, not to contradict or vary the contract, but to apply it to the facts which the parties had in their minds and were negotiating about. The rule is thus stated in Taylor on Evidence, 8th ed., vol. ii., s. 1194: 'It may be laid down as a broad and distinct rule of law that extrinsic evidence of every material fact which will enable the Court to ascertain the nature and qualities of the subject-matter of the instrument, or, in other words, to identify the persons and things to which the instrument refers, must of necessity be received.' In Grant v. Grant (1870), L. R. 5 C. P. 727, at p. 728, Blackburn, J., quoted judicially the following passage from his valuable work on Contract of Sale (p. 47):- The general rule seems to be, that all facts are admissible which tend to show the sense the words bear with reference to the surrounding circumstances of and concerning which the words are used, but that such facts as only tend to show that the writer intended to use words bearing a particular sense are to be rejected.""Bank of New Zealand v. Simpson, [1900] A. C. 182, at pp. 187, 188; 69 L. J. P. C. 22, at pp. 24, 25, Lord Davey delivering the judgment of the Judicial Committee.

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