My question is regarding the second sentence in Restatement 213(3). It reads, "But an integrated agreement, even though not binding, may be effective to render inoperative a term which would have been part of the agreement if it had not been integrated." I don't quite understand how the "term" in question could be operative in the first place if the agreement it would have been a part of is itself not binding. I think I may be confused on the difference between binding and operative.

-- Anonymous, November 17, 1998

Answers

My understanding is that suppose we say an integrated agreement to buy a house is not binding, to steal Prof. Lessig's example, because one party is a minor. A sidebar oral agreement to that sale, such as an agreement that the buyer will give the seller a place to live, could be operative and binding despite the fact that the original agreement has failed. However 213 says that a court may look at and use their integrated, albeit now voided, agreement, to reason that the oral agreement is inoperative because if the parties really intended to fulfill it, they would have included it in their integrated agreement. That, at least, is my understanding of it as it was explained in class today.

Nathan

-- Anonymous, November 17, 1998