Evidence Category Archives — The Virginia Business Litigation Blog Published by Virginia and Washington, D.C. Litigation & Appeals Attorney

Virginia’s parol evidence rule prohibits the use of prior or contemporaneous oral statements or agreements to contradict, modify, or supplement the terms of a written contract that is intended to be a complete and final representation of the parties’ agreement. The rule is designed to protect the integrity of written contracts. It’s based on the premise that when parties have entered into a written agreement, the document itself is the best evidence of the terms of the agreement and the mutual intent of the parties. The parol evidence rule ensures the stability, predictability, and enforceability of finalized written instruments by excluding evidence of the parties’ intent not expressed in the written contract. Memories fade and people lie. Contracting parties need to be able to rely on the written agreement without the prospect of the other party having the ability to claim that certain verbal modifications or additions were made to it.

The parol evidence rule requires a court to construe a document according to its plain terms if it is clear and unambiguous on its face. In such a case, the court will not look for meaning beyond the instrument itself. (See Ott v. L & J Holdings, LLC, 275 Va. 182, 187 (2008)). The rule doesn’t always result in the exclusion of extrinsic evidence, however. There are times when a court may need to consider parol evidence to determine the intent of the parties, such as when the written contract is ambiguous, where it may be subject to a condition precedent, or where the contract was induced by fraud, mistake, or duress. (See Price v. Taylor, 251 Va. 82, 86–87 (1996); Jones v. Franklin, 160 Va. 266, 270 (1933)).

Virginia’s “Dead Man’s Statute,” found at Va. Code § 8.01-397, does two things: (1) it provides a hearsay exception allowing certain statements to come into evidence when the person who made them is dead or otherwise incapable of testifying; and (2) it prohibits an adverse party in litigation from winning a judgment based solely on uncorroborated testimony that can’t be rebutted due to the other party’s incapacity. The statute makes it more difficult to win a case against someone who has died. If key testimony will relate to conversations between the decedent and the adverse party, or to events that took place in the decedent’s presence, the law does not permit the surviving party to win a judgment based solely on his own uncorroborated testimony when the decedent is not available to challenge that testimony.

The Dead Man’s Statute provides in material part:

In an action by or against a person who, from any cause, is incapable of testifying, or by or against the committee, trustee, executor, administrator, heir, or other representative of the person so incapable of testifying, no judgment or decree shall be rendered in favor of an adverse or interested party founded on his uncorroborated testimony. In any such action, whether such adverse party testifies or not, all entries, memoranda, and declarations by the party so incapable of testifying made while he was capable, relevant to the matter in issue, may be received as evidence in all proceedings including without limitation those to which a person under a disability is a party.

Articles Posted in Evidence

The Parol Evidence Rule in Virginia

The Dead Man’s Statute