In most contracts, there exists a short clause which can make all the difference when things go awry and litigation commences.
This is often described as an “entire agreement” clause. This essentially means that the written contract contains the entirety of the agreement and supersedes any verbal representations made by the parties. It often goes hand-in-hand with a clause requiring that any variation to the contract must be in writing and signed by the parties to the contract.
These clauses play an important litigation and constitute an agreement to be contractually bound by the parole evidence rule.
The parole evidence rule is a common law principle. Parole evidence (in the context of contracts or other legal writings) refers to extraneous evidence (such as an oral representation) that is not included in the relevant written contract. The parole evidence rule preserves the integrity of that written document by prohibiting the parties from attempting to alter the written agreement through the use of oral or written representations not referenced in the written contract itself.
There are exceptions to this rule, such as when the contract is vague, poorly drafted and/or ambiguous and extrinsic evidence is required to give efficacy to the contract.
However, the parole evidence rule, coupled with an entire agreement clause and a requirement for variations to be in writing and signed by the parties can effectively mean that if it is not in the written contract then it doesn’t exist.
Many people find this out the hard way; including Jessie Nizewitz of “Dating Naked” fame.
For those of us who don’t know (including me until I started writing this article) “Dating Naked” is a reality television show. In the show contestants participate in blind dates, completely naked. If they hit it off, they may continue dating after the show. While the contestants are naked, their “bits” are blurred on screen.
Jessie, a part-time model, actress and former stripper, was one such contestant.
During Jessie’s appearance on the show, she attempted to tackle her date to the ground where they wrestled (these are not euphemisms by the way; they were actually playing football on the beach. You know, as you do when you’re starkers on a blind date).
Due to an editing error, certain “parts” of Jessie’s body were shown on television, unintentionally uncensored.
Jessie was not happy and sued the producers of the reality series (among others) for $10 million in damages,
In her lawsuit, Jessie alleged that the editing error lead to a one second inadvertent exposure of her genital area, leading to public humiliation and personal distress. She claimed she had been exposed to public ridicule and that one man had even cancelled dates with her after the show aired.
Considering that Jessie had been filmed earlier in the segment saying “honestly, being naked to me really means absolutely nothing” many would question how much humiliation and distress she could feel after being shown naked on television in a television show called “Dating Naked”, or why it was unexpected. Nevertheless, Jessie alleged that at no time did she consent to her entire naked body being shown and that she had been promised that her private areas would be fully blurred throughout the broadcast.
The show’s producers applied to dismiss the claim. The show’s producers provided no less than three (3) written releases from Jessie agreeing to appear naked on the show and agreeing not sue for damages in the event she was shown naked.
Importantly; Jessie’s contact contained both an entire agreement clause, whereby she specifically disclaimed reliance on any extraneous oral representations and a requirement that any variation to the contract be in writing and signed by the parties.
The producer’s submitted that while there had been an inadvertent editing error, Jessie was unable to rely on any oral representation to sue for damages. They also submitted that Jessie, by bringing the lawsuit, was in breach of contract and should pay their costs.
The New York Supreme Court agreed and the case was dismissed with Jessie ordered to pay the producer’s costs.
The lesson to be learned from this is that any representation which forms part of a deal should always be reduced into writing and signed by the parties. That, and maybe think twice before agreeing to appear fully naked on television.