Quick answer

Two evidence rules govern documents. The best evidence rule (now called the original document rule) provides that when the subject of inquiry is the contents of a document, no evidence is admissible other than the original document itself, subject to exceptions. The rationale is to prevent inaccuracy and fraud from relying on copies or recollection. Secondary evidence (copies, testimony) may be admitted when the original is lost or destroyed without bad faith, is in the custody of the adverse party who fails to produce it, consists of numerous accounts, or is a public record, among the recognized exceptions. The parol evidence rule provides that when the terms of an agreement have been reduced to writing, the written agreement is considered as containing all the terms agreed upon, and there can be, between the parties and their successors, no evidence of such terms other than the contents of the written agreement. In other words, oral or extrinsic evidence generally cannot be used to add to, vary, or contradict the terms of a written contract. But a party may present evidence to modify, explain, or add to the terms of the writing if they put in issue in their pleading: an intrinsic ambiguity, mistake, or imperfection in the writing; the failure of the writing to express the true intent of the parties; the validity of the agreement; or the existence of other terms after its execution. So documents generally speak for themselves, both as to what they say (best evidence) and as to being the final word (parol evidence), subject to specific exceptions.

The Best Evidence (Original Document) Rule

When the inquiry is the contents of a document, only the original is admissible, subject to exceptions — to prevent inaccuracy and fraud. Secondary evidence is allowed when the original is lost, withheld by the adverse party, voluminous, or a public record.

The Parol Evidence Rule

When an agreement is reduced to writing, the writing is deemed to contain all the terms, and no other evidence of those terms is allowed between the parties — so oral evidence generally cannot add to, vary, or contradict a written contract.

The Exceptions to Parol Evidence

A party may present other evidence if they put in issue in their pleading: an ambiguity, mistake, or imperfection; the writing's failure to express the true intent; the validity of the agreement; or later terms.

Practical Takeaways

Frequently Asked Questions

What is the best evidence rule? Now called the original document rule, it requires that when the subject of inquiry is the contents of a document, no evidence is admissible other than the original, subject to exceptions such as loss of the original.

What is the parol evidence rule? That when the terms of an agreement are reduced to writing, the writing contains all the terms, and no other evidence of those terms is allowed between the parties. Oral evidence generally cannot vary or contradict a written contract.

When can secondary evidence of a document be used? When the original is lost or destroyed without bad faith, is in the custody of the adverse party who fails to produce it, consists of numerous accounts, or is a public record, among the recognized exceptions.

Can I use oral evidence to change a written contract? Only in specific cases put in issue in the pleading, such as an ambiguity, mistake, or imperfection, the failure of the writing to express the true intent, the validity of the agreement, or the existence of later terms.

This commentary is for general informational purposes only and does not constitute legal advice. For guidance specific to your situation, please consult a licensed attorney.

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