Wednesday, November 17, 2004
It is one of the curious things about contract law that some of the most interesting cases involve the dullest of rules. There are few duller than the Parol Evidence Rule. And yet, as Hila Keren points out, the case that gave it birth is a fascinating story of love, death, and—well, deer.
Keren marks the 400th anniversary of the Parol Evidence Rule with a fascinating look back at The Countess of Rutland's Case. Click on the link below for the article.
Textual Harassment: Four Hundred Years
of the Parol Evidence Rule
by Hila Keren
Hebrew University of Jerusalem;
Center for the Study of Law and Society, UC-Berkeley
Even the most experienced contract law teacher, who has taught the parol evidence rule dozens of times, might be surprised to know that this year marks its 400th anniversary. As early as 1893, in the sixth edition of the Harvard Law Review, we were told by the learned J. Thayer that "few things in our law are darker than this, or fuller of subtle difficulties." How was this dark rule born? Remarkably, the answer lies in Tudor England and makes a fine story, full of love, hate, money and . . . deer.
In 1604, not long after the death of Queen Elizabeth, Sir Edward Coke wrote a two-and-a-half page report of The Countess of Rutland’s Case, which had been litigated at the King’s Bench. At the core of the report are the words that have been quoted for centuries as the parol evidence rule: "[I]t 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."
Who had the matters in writing? Who offered a competing testimony? Let us go back in time.
From Coke’s report we learn that Isabel, Countess of Rutland (and widow of Edward, 3rd Earl of Rutland) [the arms of the Earls of Rutland are at left], sued her nephew Roger, 5th Earl of Rutland. At the heart of these legal proceedings stood a manor called Eykering House and additional land of unclear nature named the "Lady Park," both located in "the county of Nottingham." Isabel claimed that the house and the park were promised to her by her husband and blamed Roger for trying to take them from her. She had a deed in which her husband Edward contracted with several trustees that he would convey the property to them in order to ensure that if he died first, Isabel would have the right to use the property for the rest of her life.
More than six months later, however, Edward made another written contract. This one dealt with a much larger parcel of land which contained many properties including Eykering House. But this time, the trustees were supposed to make sure that the specified lands, were transferred in male-tail only—that is, from Edward directly to his male heirs without any rights whatsoever to his widow Isabel.
In the suit, the question was which of the two conflicting contracts should govern. The Countess offered to hear oral testimonies that could support her standpoint while contradicting the later contract.
That is Coke’s tale. But while digging up the context of the legal report I learned that the story behind it is much juicier and yields support for Isabel’s evidence.
Edward and Isabel were a special, even scandalous, couple, especially in a society obsessed with status and hierarchy, as was the England of their times. While Edward was the eldest son and therefore the sole heir of one of the richest aristocratic families in England, Isabel was only the daughter of "the younger son of an undistinguished county landowner." And indeed, the marriage was considered as a mésalliance, "a union between two people that is thought to be unsuitable or inappropriate."
It was a love story. Isabel’s mother claimed "that the Earl was so deeply in love that he was willing to marry the girl even without a marriage portion" (dowry). To top it off, Edward also had put himself and his family at risk by refusing the suggestion to marry the daughter of Lord Burghley, the powerful aristocrat in Elizabethan England—an offer that few would have dared to decline and many would have loved to take up.
The marriage resulted in great rage on the part of Edward’s male heirs, who probably felt robbed by the poor bride. What made things even worse was the birth of a daughter, Elizabeth, who under the old laws couldn’t inherit from Edward and thus deepened the rivalry between his widow and his male heirs.
Since Edward was a gifted legal professional—good enough that the Queen appointed him Lord Chancellor—it is plausible that he calculated the risks to his beloved wife’s future. He therefore chose respected trustees from her family and entrusted them to make sure that she should have an adequate jointure for her widowhood. Against this background the argument that by making the later contract Edward intended to implicitly cancel his written and expressed promise to his wife becomes somewhat unpersuasive.
The characteristics of the disputed land enhance the trustworthiness of the testimonies that subverted the later contract. This land, that was named in Coke’s report as "Eykering" is to be found today in Eakring (note the slight change of spelling), a village in the center of Nottinghamshire. Here, an ancient special survey, preformed in 1604—the year of the Case—allows us a rare peek to the far past. Offering attractive plans of the house and its surroundings, the survey sheds light on the term "Lady Park" as it appears in Coke’s report and provides a serious clue regarding the mysterious result of the Case.
The plan (left, from the Nottinghamshire Archives—click on the picture for a larger version) depicts the Lady Park as full of woods but the text at the lower right hand corner says that the woods were recently sold "so that little profitte is to be made thereof by wood sales for manye yeres." Such account suggests that the Lady Park was significantly more valuable when Edward included it in the contracts he made than later on during the legal debate regarding their interpretation.
One of the most charming explanations for the "lady" in "Lady Park" concerns female deer hunters. It was accepted that the monarch, invariably a man up until the time of Queen Mary and Queen Elizabeth, took part in the exercise of hunting and particularly in the hunting of deer. As this was a very physical activity for which a woman was not considered suited, the Lady Park developed whereby Elizabeth and her ladies would sit in carriages and the deer would be driven past them, allowing the ladies comfortable aim. The Eakring Park was quite small and perhaps particularly suitable for this type of hunting and one can easily imagine Isabel hunting in that manner.
The 1604 survey also suggests that Eykering was a relatively modest estate in view of the Rutlands’ vast possessions at the time, a fact that might explain Edward’s choice of this property as one that could provide decent income to his widow with no considerable harm to his male heirs.
Finally it is worth mentioning that Isabel’s rival, Roger, had a strong external incentive to fight for the property of Eykering, despite its marginal significance. Impetuous as he was known to be Roger found himself in prison for playing an active role in the notorious Essex revolt against Queen Elizabeth, for which he was fined by the Privy Council on May 1601 the enormous sum of £30,000. This punishment added to the disastrous debts of Roger and presumably pushed him to insist on a formal interpretation of the later contract’s text.
One immediate lesson that can be learned from the thicker version of the story is that four hundred years ago the act of establishing a legal rule that crowned text and expelled context was a gender-biased act. Back then the contractual text was totally inaccessible to women, and it was only the wider context that had the potential to carry their voice. Women were in general far less literate and educated than men and needless to say there was no way an early-modern Englishwoman could earn the legal education that would enable her to comprehend, let alone write, a contract. Furthermore, once married a woman could not even be a passive side to a contract, for instance by signing it without reading it, since according to the rule of coverture she had no legal entity of her own.
This last point brings us directly to the gendered impact of rejecting context. Not only insignificant details were left out by focusing only on the text. Rather, as Isabel’s Case beautifully demonstrates, it was for the most part the patriarchal nature of the story that was excluded: Isabel’s inability, as any other married woman’s inability, to hold or control personal property, necessitating third-party contractual arrangements; the difficulty in enforcing these arrangements and fulfilling the intent of a husband who sought to bypass patriarchal inheritance rules in order to secure the future of his wife; the strong resistance to brides who could not bring along hefty dowries; and finally, the need to fight for jointure lands against powerful male heirs of the patriline. Hence, shaping a rule that decidedly gives the text ultimate control over the interpretation of the contracts had (even if unknowingly) a strong patriarchal meaning, creating a source for textual harassment.
Now, in 2004, after the historical reality that made the rule so female-excluding has dramatically changed one might argue that the rule that was "born in sin" is now purified and hence sustainable. But is it?