by Jonathan T. Howe, esq. | May 01, 2008

Lawyers often will insert a provision in contracts stating that the only way the agreement can be amended is “in writing and signed by both parties.” Another favorite addition is to state that “all earlier agreements, discussions, proposals and negotiations” have been integrated into the contract and are superseded by the written agreement.

These paragraphs generally appear one after the other, and lawyers refer to them as “integration clauses.” But do they do the trick?

Crux of the Matter

While there has been some disparity in the decisions handed down by judges over the years, sometimes the courts pay no attention to the integration clause.

The intent of the clause is to erase the slate up to the time the agreement is executed. If particular items have not been incorporated into the final document, they will not count; and, if changes are to be made, they must be mutually agreed to in writing.

When attempting to overcome an integration clause, the parties still are bound by the basic rules of contract law, which require “consideration” and an offer and acceptance by both parties. Consideration -- legal give and take -- is the price paid by both parties for the concession.

Step Wisely

Because integration clauses are vulnerable, parties should act carefully when dealing with each other after the agreement has been signed.

A case decided in 1992 by the Massachusetts Supreme Judicial Court, and which since has been approved by many other courts, dealt with the question of whether a written contract could be amended by an oral agreement, where the contract specifically excluded such changes unless in writing.

The court said the verbal agreement can override the signed contract, stating an integration clause creates only a presumption that the contract cannot be changed other than as allowed by the language of the integration clause. If there is sufficient evidence of a valid, subsequent contract, even though oral, the oral modification can be enforced.


In last month’s column, I discussed instances in which e-mails can be a form of an enforceable contract. In another case from Massachusetts, the court held that e-mail exchanges also can amend the effect of a contract, in this case an employment agreement concerning a salary reduction, when the original agreement included an integration clause stating the contract could be changed only in writing.

In some states, such as New York and those that have adopted the Uniform Commercial Code, a state law can bar any oral modification. Nonetheless, an exception to this was found by one federal court, which said if there is partial performance under the oral modification, then the oral modification will stand as an amendment to the original contract.

Subsequent conduct by the parties, consistent with the oral changes, might result in the courts finding that the oral amendment takes precedence over the written agreement, despite both contract language and state law. Even the Uniform Commercial Code recognizes that subsequent conduct consistent with oral statements can override the integration clause.

Despite these cases, meeting planners still should include the integration clause to negate contentious matters that might have arisen prior to the signing of the formal agreement.

One caveat: If any part of the contract is ambiguous, the court might allow testimony and other evidence to help explain what the parties intended in the first place.

Jonathan T. Howe, Esq.,is a senior partner in the Chicago, St. Louis and Washington, D.C., law firm of Howe & Hutton Ltd., which specializes in meetings, travel and hospitality law. Legal questions can be e-mailed to him at [email protected].