Teaching Magic from Teachers of the Year

Teaching Magic
by Paula A. Franzese, Professor of Law, Seton Hall University School of Law

Excellence in teaching is linked to three Es: Expertise (command of the subject matter), Empathy (compassion for the struggle that often attends law school learning) and Enthusiasm (a passion for what we do). Part of the passion resides in a willingness to take risks, encouraging our students to do the same as, collectively, we leave our egos at the door. I teach Property and Commercial Law. The class excerpt that I am about to demonstrate is rooted in the premise that intelligence is multi-dimensional and that adults learn in different ways or “modalities.” There are visual learners, auditory learners and kinesthetic learners. This exercise taps into each mode.

The Parol Evidence Rule and the “Living Contract”

The parol evidence rule, §2-202 of the UCC, is designed to give certainty to written agreements and to guard against perjury. The rule tells us that final writings may not be contradicted by any prior or contemporaneous agreement. However, the rule contemplates two levels of finality when it describes final writings: 1.) the partially integrated “final” writing, best described as one which is entered into with some modicum of care, but which is not so thoroughly and carefully executed as to qualify for the second, more exalted level of finality, 2.) the fully integrated or “final, complete and exclusive” writing. The distinction between partially and fully integrated writings is important because partially integrated agreements cannot be contradicted by any previous understanding, but may be supplemented by so-called consistent additional terms. By contrast, a fully integrated writing is not only immune from contradiction, but cannot be supplemented even by a consistent additional term. The potential for confusion is compounded by the statute’s insistence that evidence of course of dealing, course of performance and trade usage (what I affectionately refer to collectively as “the triplets”), are freely admissible to explain the deal, regardless of the extent of the contract’s integration.

To give life to this model, I use problem sets, cases and even more hypotheticals. Then, mindful that learning is assimilated through all five senses and that a multi-modality approach facilitates understanding and retention, I ask a student to come to the front of the class and be a living, breathing, three-dimensional “contract.”To carry out this exercise, I bring at least three props with me. For purposes of this summary, those props will be a t-shirt, a fishing hat and a towel. Here’s how the exchange proceeds. (Assume that the student asked to be the contract is named Leonard.)

Professor: [Leonard is now in front of the class. He may be very well dressed (perhaps he’s going to work later in the day or to a job interview) or he may be less than very well dressed. Either way, the exercise works.] “I’d like all of you to imagine that Leonard is a contract. This morning, all of us, parties to this contract, gathered in Leonard’s closet to determine this deal’s relevant terms. Here’s what we came up with. Imagine that each item of clothing, piece of jewelry and accessory now worn by this contract is a relevant term. Take a look at the finished product. Our first step is to determine this deal’s level of integration. Is Leonard put together well enough to at least qualify as a final contract, worthy of some protection under §2-202? [Invariably, the group’s conclusion is yes.] But just how final is Leonard? Is he partially integrated, which is the norm, or is he so meticulously well-crafted, so finely put together, as to be fully integrated?” [Here, some discussion ensues. Typically, the conclusion is that our deal is only partially integrated. Factors relevant to that conclusion are discussed at some length.]

The Professor continues, now holding up the t-shirt: “Suppose that I, one of the parties to this contract, now assert, after the fact, that ‘No, it wasn’t this shirt term [pointing to the shirt that Leonard is wearing] that we agreed on, but this one’ [pointing to the t-shirt in my hand]? Is my proffer admissible? [Here, the conclusion is no, the proffer should not be admissible because it is contradictory. Quite literally, the variant t-shirt term doesn’t fit. When we met in the closet this morning, we obviously talked about and decided on a shirt term. That’s why our contract, Leonard, is wearing one. Deals entered into with some modicum of care don’t deserve to be contradicted in this way.]

Professor, now holding up the fishing hat: “How about this fishing hat term? Is it contradictory? What would the proponent of this proffer argue to get it in?” [The proponent of the term would assert that it is a consistent additional term. Notice, after all, that Leonard, our contract, does not yet have a hat term. (If, by contrast, our contract happens to be wearing a cap or other headwear, that becomes the springboard for arguing that the fishing hat term is indeed contradictory.) Here, let the contract try the hat on. Ask the class how our deal looks. Does it seem a compatible term, or, even as a visceral matter, does that term seem out of place? Which additional facts would be relevant? For example, what if we knew that we were going fishing today? What role do the triplets have to play in determining the admissibility of this proffer? For example, what if, in the past, we always included a fishing hat term for good luck. (Course of dealing). Or, what if every deal of this sort, in this jurisdiction, on this date, tends to include a fishing hat term? (Trade usage).]

Professor, now ready to throw in the towel: “What about this towel term? Is it contradictory (in which case it’s out), or is it consistent with the tenor of this deal? Can we hook it up to the triplets? For example, did we understand, based on previous experience, that a portion of this deal would probably occur in a sauna? Context, after all, is everything.”

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