(DISTRICT HIGH COURT OF KHARTOUM)

HABIB YASSA vs. Dr. ROBERT BIDJIKIAN

(HC-CS-409-1956)

Principles

·  Evidence — Parol evidence inadmissible to contradict written document — admissible to show collateral warranty.

A prior oral agreement or warranty not embodied in a written contract is admissible in evidence, if it forms part of the consideration of the main contract, and is not inconsistent with it.

Action:

The plaintiff was administrator of the estate of Daoud Yassa who had leased a house to the defendant, at a rent of L.S.200  permonth. The action was for the recovery of LS.200 being four months rent. The defendant admitted the written lease and the rent of LS.50 per month, but pleaded that, under a prior oral agreement, it had been agreed that considerable repairs and alterations would be done to the house and that these should be paid for by the defendant as agent for the landlord, who would re-imbursethe defendant. The plaintiff alleged that this evidence was inadmissible.

The case is only reported on the point of evidence.

Advocates: Mohd. Ahmed Orabi ………...for Plaintiff

Albert Mihran Bidjikian …………………..for Defendant

Shawki, D.J. (The learned judge set out the facts and continued)

The general rule of evidence is that parol evidence is inadmissible to contradict, vary, add to or subtract from a document, because to admit inferior evidence to a contract’s superior evidence contradicts the principle that the law considers agreements in writing as conclusive evidence between the parties or their privies which should be placed “beyond the reach of any future controversy or bad faith”.

But this rule has been modified by various exceptions, one of which is the case of private formal documents. These documents can be supplemented but not contradicted by parol evidence and thus if the

contract is in writing a prior oral agreement or warranty which is not in the document, but which forms part of the consideration of the main contract, and is not inconsistent with the document, is admissible. But this collateral warranty must not be subsequent to the main contract for it could not then form part of the consideration.

In Pym. v. Campbell (1856) 6 E. & B. 370, the defendant agreed in writing to buy the plaintiff’s interest in a certain patent. In an action by the plaintiff to enforce the agreement the defendant was allowed to prove that it had been orally agreed at the time that no sale was to take place unless the defendant’s engineer approved of the patent, and that he did not approve. (See also Davis v. Jones, I 7 C.B. 625)

(Judgment affirmed AC/Rev! 105/1957 when appeal summarily dismissed)