EXPRESS TERMSLAW OF CONTRACT II

DR. NURAISYAH CHUA ABDULLAH

Outline

A. Terms and representationsB. Classification of terms:

Conditions, warranties and innominate termsC. Parol evidence ruleD. Collateral contracts

• Parties often negotiated before entering into a contract. In the process, statements are made either orally or in writing.

• Some statements are made only to induce the other party to enter into a contract while others are intended to form part of the contract.

• Statements which are made only to induce the other party to enter into a contract are known as representations. They are not contractually binding and do not form part of the contract. However, they have legal effect and the party who have been induced by the statements to enter into a contract is entitled to relief for misrepresentation.

• Statements which are intended to form part of the contract are known as terms of contract. They are legally binding and the other party can sue for breach of contract if the terms have not been adhered to.

A. Terms and Representation

• Whether a statement is a term or a representation essentially rest on the intention of the parties, objectively assessed based on their conduct and words and from the surrounding circumstances of the case.

• The courts have established various tests and guidelines to determine whether a statement is a term or a representation:

a) When the statement was made;b) Importance of the statement;c) Existence of a written contract;d) Knowledge and expertise of the maker of

the statement.

• The relevant factor in this test is the length of time that has passed from the moment the statement is made until the time the contract is formed.

• The longer the duration, the more likely the statement is a mere representation.

(a). When statement made

Case: Routledge v. McKayThe plaintiff and the defendant negotiated the sale of a motorcycle belonging to the defendant. On October 23, the defendant notified the plaintiff regarding the model of the motorcycle which was said to be a 1942 model based on the registration book. On October 30, that is, one week after the negotiations, the contract was entered into. The contract was silent on the model of the motorcycle in question.

The plaintiff later found out that it was a 1930 model and argued that the defendant’s statement that it was a 1942 model was a term and therefore, there had been a breach of contract.

The plaintiff’s argument was rejected by the Court on the ground that the contract was only entered into one week after the negotiations. The Court also distinguished this case from Bannerman v. White where the contract was entered into almost immediately after negotiations. The Court held that the statement made was a term of the contract.

(b). Importance of statement• The greater the importance a party places on a

statement, the more likely the statement will be regarded as a term.

Case: Bannerman v. WhiteThe buyer wished to purchase some hops, and he asked the seller whether sulphur was used in the process of growing the hops. He said that if sulphur was used, he would not even bother to ask about the price. The seller replied that sulphur was not used. They then entered into a sales and purchase agreement for the hops. Later, there was evidence to show that sulphur had been used on a small portion of the hops.

The buyer refused to pay the purchase price and argued that there was a breach of contract as the seller’s statement amounted to a term of the contract. The court agreed and held that the statement made by the seller regarding the sulphur was a term of the contract.

The buyer had placed great importance on the truth of the statement. Further, the sale and purchase agreement was entered into soon after the statement was made.

In this case, Lord Denning also explained that if a statement is not initiated by the speaker but merely passed on by the speaker, it is more likely to be treated as a representation than as a term.

The example was given of the sale of a second hand motorcar in succession, where each seller passes on information of the year of the car by relying on the false entry in the registration book made by a former seller.

(c). Existence of written contract

• If there is a written contract and the statement in question is not included in the contract, then there is a higher likelihood that the statement is a representation.

• This is based on the assumption that if the statement is important, it would have been included in writing. Thus, in the case of Routledge v. McKay discussed previously, the Court took into consideration that it was a mere representation because the statement was not reduced to writing.

• However, these tests are guideline only and are not decisive.

Case: Oscar Chess Ltd v. WilliamsLord Diplock stated that the writing factor is by no means conclusive:

“If an oral representation is afterwards recorded in writing, it is good evidence that it was intended as a warranty. If it is not pun into writing, it s evidence against a warranty being intended; but it is by no means decisive. There have been many cases … where the courts have found an oral warranty collateral to a written contract. When, however, the purchase is not recorded in writing at all, it must not be supposed that every representation made in the course of the dealing is to be treated as a warranty. The question then is still: Was it intended as a warranty?”

(d). Knowledge and expertise of maker of statement• If the person making the statement has special

knowledge or skill or is in a better position to ascertain the accuracy of the statement vis-à-vis the person who is receiving the information, the courts would more likely regard the statement made as a term rather than a representation.

• Therefore, in relation to statements made about second hand cars, it was held that the statement made by a car dealer was a term whereas a statement made by a private seller was regarded as a representation.

Case: Dick Bentley Productions Ltd & Anor v. Harold Smith (Motors) Ltd

The second plaintiff told Smith (who was acting on behalf of the defendant company) that he was looking for a well vetted Bentley car. Smith informed the second plaintiff that he was in a position to find out the history of cars.

The second plaintiff purchased a car from the defendant following Smith’s statement that the car’s mileage since the engine was replaced was 20,000 miles. In fact, the car’s actual mileage was 100,000 miles although the speedometer showed 20,000 miles.

Smith had, in fact, not ascertained what mileage the car had done, although he had not made the statement fraudulently. The car proved disappointing and it was taken back to Smith for repairs from time to time. The plaintiffs brought an action for breach of warranty. The issue was whether the representation was an innocent misrepresentation (which does not give rise to damages) or whether it was a warranty.

The Court of Appeal held that the representation amounted to a warranty which entitled the plaintiff to damages. Lord Denning MR stated:

“… it seems to me that if a representation is made in the course of dealings for a contract for the very purpose of inducing the other party to act on it, and it actually induces him to act n it by entering into the contract, that is prima facie ground for inferring that the representation was intended as a warranty …”

“ … the maker of the representation can rebut this inference if he can show that it really was an innocent misrepresentation, in that he was in fact innocent of fault in making it, and that it would not be reasonable in the circumstances for him to be bound by it … The inference is not rebutted. Here we have a dealer, Mr. Smith, who was in a position to know, or at least to find out, the history of he car. Indeed it was done later. When history of this car was examined, his statement turned out to be quite wrong. He ought to have known better.”

Case: Oscar Chess Ltd. v. WilliamsThe defendant, a private seller sold to the plaintiffs, who were motor dealers, a second-hand Morris motor car for £290. The defendant honestly believed the car to be a 1948 model and described it as such to the plaintiff's salesman, and also showed him the registration book. The car was subsequently found to be a 1939 model.

The plaintiffs brought an action for breach of warranty, claiming the difference between sum paid and the actual worth of the car. The Court of Appeal held by a majority that the defendant was not liable to the plaintiffs in damages for breach of warranty.

In deciding whether the statement about the model of the car was a representation or a term of the contract, Lord Denning stated:

“What is the proper inference from the known facts? It must have been obvious to both that the seller had himself no personal knowledge of the year when the car was made. He only became owner after a great number of changes. He must have been relying on the registration book.

It is unlikely that such a person would warrant the year of manufacture. The most that he would do would be to state his belief, and then produce the registration book in verification of it. In these circumstances, the intelligent bystander would, I suggest, say that the seller did not intend to bind himself so as to warrant that the car was a 1948 model. If the seller was asked to pledge himself to it, he would at once have said “I cannot do that. I have only the log-book to go by, the same as you”.

In this case, Lord Denning also observed that the buyers who were motor dealers had bought the car relying on the year stated in the log book although they could have checked the correctness of it.

Case: Esso Petroleum Co. Ltd. v. MardonThe plaintiff negotiated with the defendant to grant the defendant a tenancy for an Esso station. During the negotiations, an Esso Representative who had had 40 years’ experience in the petrol trade told the defendant in good faith that Esso had estimated that the throughput of petrol would reach 200,000 gallons a year in the third year of operation of the station.

Based on the representation, the defendant entered into a tenancy agreement for three years. The defendant incurred losses to operate the station which was only capable of an annual throughput of some 70,000 gallons.

Esso issued a writ against the defendant claiming possession of the station when the defendant was unable to pay for petrol supplied. The defendant counterclaimed for damages in respect of the representation, alleging, inter alia, that it amounted to a breach of warranty.

The court held that the plaintiffs were liable to the defendant for breach of warranty. Lord Denning MR stated:

“I would quite agree with counsel for Esso that it was not a warranty that it did not guarantee hat the throughput would be 200,000 gallons. But, nevertheless, it was a forecast made by a party, Esso, who had special knowledge and skill. It was the yardstick by which they measured the worth of a filling station. They knew the facts. They knew the traffic in the town. They knew the throughput of comparable stations. They had much experience and expertise at their disposal. They were in a much better position than Mr. Mardon to make a forecast.

It seems to me that if such a person makes a forecast – intending that the other should act on it and he does act on it – it can well be interpreted as a warranty that the forecast is sound and reliable in this sense that they made it with reasonable care and skill.”

Case: Ecay v. Godfrey

Where the maker of the statement suggest to the other party to seek independent verification of the accuracy of the statement, the statement is more likely to be held as a representation than a terms.

B. Conditions, Warranties and Innominate Terms

• Traditionally, every contractual term is classified as a condition or a warranty. It is important to determine whether a term is a condition or a warranty as not all breaches have the same effect. Remedy for a breach would depend on they type of term that has been breached.

• A condition is an essential and the more important term, a breach of which gives an innocent party the right to rescind the contract and claim damages.

• A warranty is a non-essential term, a subsidiary term and being the less important term, a breach of which only gives rise to an action for damages.

• This approach is based on the intention of the parties at the time they form the contract as to the importance they attach to the term.

• It is not merely what the parties have labeled of the terms but the court will determine what the parties have truly intended. The courts are also vigilant against attempts by stronger parties to take advantage of weaker parties by arbitrarily classifying terms as conditions or warranties to suit their purposes.

• In contract to the traditional approach of classifying terms as a condition or a warranty which looks at the intention of the parties at the time the contract is formed, an approach of classifying terms as innominate or intermediate terms has emerged.

• Following this approach, whether the innocent party has a right to rescind the contract or only get a remedy in damages depends on the consequences of the breach. If the consequences are so severe and strike at the very purpose of the contract, the innocent party may rescind the contract and be discharged. If the effect of the breach is only minor and is capable of being rectified, then it will only afford a remedy in damages,

Difference between condition and warranty • Whether a term is a condition or a warranty depends on

the intention of the parties as to the importance they had placed on the term concerned.

• The court will look at the nature of the contract and the surrounding circumstances.

Case: Bettini v. GyeThe plaintiff had agreed to sing for the defendant during the London season for two consecutive weeks. The plaintiff also agreed to be in London at least 6 days prior to the commencement of his engagement for the purpose of rehearsals. The plaintiff fell sick and only arrived in London two days before the first show. The defendant refused to employ the plaintiff. The court held that the term regarding rehearsals was not a condition and did not go to the root of the contract. Thus, its breach did not entitled the defendant to rescind the contract.

Case: Poussard v. Spiers

The plaintiff had a similar agreement with the defendants to sing and play in the chief female part in a new opera for three months. Although she attended several rehearsal, she was taken ill subsequently and was unable to perform at the opening of the opera season.

Her role was substituted by another person. When she recovered, the defendant refused to accept her service. The plaintiff brought an action for wrongful dismissal. The court held that the plaintiff’s inability to perform at the opening and early performances went to the root of the matter and this, justified the defendants in rescinding the contracts.

• It can be seen that in Bettini, the absence from rehearsals before the actual show was a less important term (thus, a warranty) whereas in Poussard, the absence from the opera performance was breach which went to the root of the contract (thus, a condition).

Case: Tan Chong & Sons Motor Co Sdn. Bhd. v. Alan McKnight

Salleh Abas FJ explained the difference between a condition and a warranty as follows:

“The word ‘warranty’ in the law of contract tends to be confusing as it may relate to a term of the contract or to a separate enforceable promise which is collateral to a contract.

In so far as the word is used to denote a term of a contract, its employment is purely for the purpose of distinguishing the most important terms (known as conditions) from the less important ones (known as warranty), the breaches of which lead to different result and give different remedies to the innocent party.

If the term breached is a condition, the innocent party has the right to repudiate the contract and consider himself discharged therefore and claim damages for the breach.

If on the other hand, the term broken is only a warranty the innocent party cannot repudiate the contract and his remedy is confined to the claim for damages only. In the case of breach of a condition it is of course open to the innocent party to treat the matter as breach of warranty and sue for the damages only without having to repudiate the contract.

Innominate or Intermediate term • The traditional classification of condition and warranty

was found to be difficult to apply in some contract. It was felt that there were some contractual obligations which could not be classified merely as a condition or a warranty. Thus, a third category was created, which is known as the innominate or intermediate term.

• In this classification, what is looked at is not whether the term is an essential or subsidiary term but the consequences of a breach of the term. If the breach result in serious consequences, and the innocent party is substantially deprived of the benefits under the contract, the innocent party has the right to rescind the contract and treat himself as discharged. If the result is not serious, the innocent party is only entitled to damages.

Case: Hong Kong Fir Shipping Co Ltd v. Kawasaki Kisen Kaisha Ltd.

In this case, the issue is was whether there was a breach of an undertaking that the ship chattered was seaworthy and was ‘in every way fitted for ordinary cargo service’. The ship was chartered for 24 months and had many breakdowns.

The engine trouble encountered was largely due to incompetent staff and outdated machinery and the ship was at sea only eight and a half weeks in the first seven months. The court held that the seaworthiness clause was an innominate term.

Lord Diplock laid out the test as follows:

“Does the occurrence of the event deprive the party who has further undertakings still to perform of substantially the whole benefit which it was the intention of the parties so expressed in the contract that he should obtain as the consideration for performing those undertakings.

There are, however many contractual undertakings of a more complex character which cannot be categorized as being ‘condition’ or ‘warranties’. Of such undertakings all that can be predicated is that some breaches will and others will not give rise to an event which will deprive the party not in default of substantially the whole benefit which it was intended that he should obtain form the contract; and the legal consequences of a breach if such an undertaking, unless provided for expressly in the contract, depend upon the nature of the event to which the breach gives rise and do not follow automatically from a prior classification of the undertaking as a ‘condition’ or a ‘warranty’.

Case: Datuk Abu Samah v. Shah Alam Properties Sdn. Bhd & Anor Appeal

An alternative method of classification of the terms of a contract is according to, not their relative importance, but the consequences, of their breach. This approach is especially useful in cases of synallagmatic contracts. Under the alternative method, if the breach of a particular terms foes to the root of the contract so as to affect its very substratum, then, the remedy of the innocent party lies in repudiation and damages. However, if its breach produces lesser consequences, the remedy of the innocent party lies in damages only.

C. Parol Evidence RuleThe parol evidence rule prohibits a person form adducing oral evidence where the terms of the contract have been put into writing. In other words, where a written document purports to records the parties’ agreement, the court will not allow the parties to adduce extrinsic evidence to add to, vary, or contradict the terms of the written document.

Essentially, the rule aims to protect the written contracts’ original content which will contribute to maintaining certainty and stability, particularly in business dealings. The rationale for this rule can be seen in the statement of Chang Min Tat FJ, in Tindok Besar Estate Sdn. Bhd. v. Tinjar Co.

The parol evidnce rule is found under the common law and in Malaysia, it is provided in ss91 and 92 of the Evidence Act 1950.

Section 91: When the terms of a contract … have been reduced by or by consent of the parties to the form of a document … no evidence shall be given in proof of the terms of the contract … except the document itself …

Section 92: When the terms of any such contract … have been proved according to section 91, no evidence of any agreement or statement shall be admitted as between the parties to any such instrument or their representative in interest for the purpose of contradicting, varying, adding to or subtracting from its terms.

There are, however, many exceptions to the parol evidence rule which are provided in s92:

a) any fact may be proved which would invalidate any document or which would entitle any person to any decree or order relating thereto, such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, the fact that it is wrongly dated, want or failure of consideration, or mistake in fact or law;

b) the existence of any separate oral agreement, as to any matter on which a document is silent and which is not inconsistent with its terms, may be proved, and in considering whether or not this proviso applies, the court shall have regard to the degree of formality of the document;

c) the existence of any separate oral agreement constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property, may be proved;

d) the existence of any distinct subsequent oral agreement, to rescind or modify any such contract, grant or disposition of property, may be proved except in cases in which the contract, grant or disposition of property is by law required to be in writing, or has been registered according to the law in force for the time being as to the registration of documents;

e) any usage or custom by which incidents not expressly mentioned in any contract are usually annexed to contracts of that description may be proved if the annexing of any such incident would not be repugnant to or inconsistent with the express terms of the contract; and

f) any fact may be proved which shows in what manner the language of a document is related to existing facts.

Case: Tindok Besar Estate Sdn. Bhd. v. Tinjar Co

The appellant was a contractor for extraction of timber for a company. He later decided not to carry in with the work. An agreement was made between the appellant and the respondent where the respondent undertook the work of extracting timber.

There was a dispute as to this agreement. At the trial, the trial judge in construing the agreement admitted parol evidence to prove several implied undertakings on the ground that not all the terms had been incorporated into the agreement.

The Federal Court disagreed with the trial judge’s approach and held that unless the additional evidence sought to be adduce fell within any of the exceptions in s92 of the Evidnece Act, it should not be introduced as it would be to contradict, vary, add or subtract to the terms of the agreement.

Chang Min Tat FJ:

“I think and I say so with respect, the fundamental mistake made by the learned judge is to conclude simply and without qualification that s92 applies only to a case where all the terms of the agreement have been reduced to writing. But that is not what section 92 says. It merely says “where the terms …” and by referring back to section 91, it means where the terms of a contract have been reduced to writing, as in this particular agreement they had been, the contract could only be proved by the document itself, and it is not open to the respondent to seek to introduce and the judge to admit evidence that would add new terms. … The provisoes qualify but did not eliminate the main provisions of the sections, so that unless the additional evidence sought to be adduced falls within the scope of any of the provisoes, it should not be allowed …”.

Case: Tan Chong & Sons Motor Co Sdn. Bhd. v. Alan McKnight

The respondent was a member of the Royal Australian Air Force. He agreed to buy a car from the appellants and signed a Buyer’s Order which contained a condition that no guarantee or warranty of any kind whatsoever was given by the company.

However, the respondent only bought the car on the representation of the appellant’s salesman that the car conformed to the Australian Design Regulations allowing him import duty exemption on the car. The car supplied did not comply with the Regulations and the respondent had to sell the car at a loss.

The respondent claimed damages for breach of warranty. The issue rose whether the representations of the appellant’s salesman were admissible in view of s92 of the Evidence Act.

The court held that proviso (b) and (c) applied. Salleh Abas FJ stated:

“But the primary purpose – rather the dominant purpose – of proving the pre-contract statements in the case under the present appeal was not to contradict, vary, add or subtract the terms of the Order, but to prove the existence of warranty, a separate contractual promise, although such proof resulted in a conflict between the warranty and the terms of the contract subsequently entered into. Such proof is obviously allowed by the provisions (b) and (c) and also illustrations (d), (g) and (h) of section 92.

Perhaps, a short answer to the objection can be given in that the prohibition against admissibility of evidence under section 92 only apply where all – as opposed to some only – of the terms of the contract are written into the agreement . Thus where some terms are given orally and some in writing, oral evidence could be given to prove the terms agreed to orally.

The expression “When the terms of any such contract” at the beginning of section 92 must be read to mean “When all the terms of any such contract”.

Proviso (b) which allows the admission of parol evidence of the existence of any separate oral agreement as to any matter on which the document is silent and which is not inconsistent to it, has been applied by the Malaysian courts as akin to a collateral warranty which is a common law exception to the rule on parol evidence.

D. Collateral Contracts• A device which ahs been used to overcome the

parol evidence rule to admit pre-contractual statement which had not been incorporated into the written agreement is the collateral contract.

• This device is particularly relevant where an oral statement is made which induces the party to enter into a contract. The oral promise is a separate contract but is collateral to the main transaction. As it exist side by side with the main contract, it thus does not offend the parol evidence rule.

Case: Kluang Wood Product Sdn. Bhd. & Anor v. Hong Leong Finance Berhad and Anor

The trial judge in this case held that in order to establish the presence of a collateral contract, the party must show the following:

a) A representation which was intended by the defendants to be relied upon;

b) The representation induced the signing of the contract;

c) The representation itself must amount to a warranty, collateral to the main contract and existing side by side with it.

In this case, the first appellant was a housing developer and the registered proprietor of a piece of land. The second appellant (Chew) was a director of the first appellant. Chew was introduced to Pang, the southern regional manager of the first respondent and they discussed banking facilities to enable the first appellant to develop the land into a housing estate.

According to Chew, during the negotiations with Pang, Pang had agreed that the first respondent would furnish the first appellant with a bridging loan and syndicated end-finance, and also represented that for a finance company of the first respondent’s repute, the amount of the loans would not be a problem.

The appellant’s formal application was approved by the first respondent vide a letter of approval. However, the first respondent failed to provide end-financed as promised. The first appellant argued that Pang’s representation amounted to a collateral warranty. The issue also arose whether the pre-contractual statements made by Pang were admissible pursuant to s92 of the Evidence Act. The Federal Court held that they were admissible as the statement fell within the scope of proviso (b) to the section.

(a). Exist side by side yet independentThe appellant orally agreed to allow the respondents to occupy their premises for as long as they wished on payment of $14,000 as tea money. Two written tenancy agreements were executed, but these did not refer to the oral agreement. Later, a dispute on rent arose between the parties and the appellants issued the respondent with a notice to quit the premises.

The respondent averred that under the agreement, they were allowed to stay in the premises for as long as they paid the rent regularly. The Federal Court upheld the respondents’ submission and held that a collateral contract exists.

Case: Tan Swee Hoe Co. Ltd v. Ali Hussain Brothers

Raja Azlan Shah CJ ruled:

“In our view, those cases are strong authority for the preposition that an oral promise, given at the time of contracting which induces a party to enter into the contract overrides any inconsistent written agreement. This device of collateral contract does not offend the extrinsic evidence rule because the oral promise is not imported into the main agreement. Instead it constitutes a separate contract which exists side by side with the main agreement.

It seems to us that the contract was this: If we give you $14,000 tea money, you will ensure that we can stay for as long as we wish” and the appellants agreed that this would be so … We do not see how the appellants can escape from the bond of the oral promise which was given and which seems to us to have been given for perfectly good consideration.”

(b). Overrides inconsistent written term• A collateral contract exists side by side with the main

written contract, but it is an independent contract. In addition, if it contradicts a written term in the main contract, then the collateral contract overrides the inconsistent written term.

Case: Tan Chong & Sons Motor Co Sdn. Bhd. v. Alan McKnight

The representation made by the appellant’s salesman that the car complied with the Australian Design Regulations was in conflict with condition no. 5 printed on the reverse side of the Buyer’s Order signed by the respondet. The condition stated that no guarantee/warranty was given by the company. On this issue, Salleh Abas FJ stated:

“ … we hold that the representations must be given an overriding effect and the printed condition must therefore be rejected”.

Case: Kandsami v. Mohamed Mustafa

The Privy Council held that if parties put their names to a document, and one party represents and the other party agrees that the document shall not, as between themselves, have any legal effects so that it exists only to answer some other purpose, the law will give effect to that collateral agreement and deny the document whatever legal effect it might otherwise have had. In this case, the Privy Council held that a collateral contract existed under which the parties agreed that the written agreement would have no effect.

(c). Cannot destroy the main contractWhile a collateral contract exists side by side with the main agreement and even overrides the inconsistent written terms, it cannot, however, destroy the written contract entirely as a collateral contract can only exist if there is a written contract.

Case: Industrial & Agricultural Distribution Sdn Bhd v. Golden Sands Construction Sdn. Bhd.

The defendant purchased two excavators from the plaintiff. After two months, the defendant wanted to return it, and alleged that there was an oral collateral warranty by the plaintiff that if the excavators were unsuitable, the defendant could return it without any financial liability.

The plaintiff then brought a claim for damages for the depreciation in value of the excavators during the two-month period. The High Court granted only nominal damages and held that the defendants had failed to establish the existence of a collateral contract.

In any event, the oral assurance asserted by the defendant could not amount to a collateral contract, as it would destroy the main contract.

Visu Sinnadurai J stated:

“A collateral contract, by its very nature, exist side by side with the main contract. It does not have the effect of substituting the main contract. A collateral contract merely confer certain other rights which are not incorporated in the main contract. But such rights must be related to the right and obligations of the parties under the main contract.

In the present case, there is clearly an agreement between the parties for the sale and purchase of the two excavators. However, if the defendants contention is accepted, the effect of the alleged collateral contract is to obliterate the main contract of sale or to convert it into a conditional contract. There cannot be a collateral contract without the main contract being in existence.

If the defendant is allowed to return the excavators without incurring any financial obligation to the plaintiff, the main contract becomes meaningless as the defendant is no longer under any obligation to buy the excavators under the main contract.”

Visu Sinnadurai J also emphasised that “a cautious approach is adopted by the court in recognising the existence of a collateral contract, especially in cases where it contradicts the term of a written contract”.

Further the burden of proving the existence of a collateral contract is on the party alleging its existence.

Thank you for your attention