(concurring and dissenting):
126 I concur with the majority except to the extent that it holds that the merger doctrine precludes an action for negligent misrepresentation in this case. Because I conclude that the merger doctrine does not bar plaintiff's negligent misrepresentation claim, I respectfully dissent from that portion of the majority opinion. I would remand for a trial on the issue of negligent misrepresentation.
127 Under the merger doctrine, a deed is the final, integrated agreement of the parties and abrogates all prior agreements, whether written or oral. See, eg., Maynard v. Wharton, 912 P.2d 446, 449-450 (Utah Ct.App.1996). Accordingly, a plaintiff generally may not bring a contract claim based on a representation not memorialized in the deed. Seq, e.g., id. The merger doctrine, however, is not immutable, but rather is subject to exceptions. Utah courts have previously recognized four exceptions: mutual mistake in the drafting of the final documents, ambiguity in the final documents, existence of rights collateral to the contract of sale, and fraud in the transaction. Seq, e.g. id. at 450 (citing *226Secor v. Knight, 716 P.2d 790, 793 (Utah 1986) and Embassy Group, Inc. v. Hatch, 865 P.2d 1366, 1371-72 (Utah Ct.App.1993)).
128 Whether negligent misrepresentation is also an exception to the merger doctrine is an issue of first impression in Utah. See Maack v. Resource Design & Constr., Inc., 875 P.2d 570, 575 (Utah Ct.App.1994) (reserving question for lack of briefing in that case but assuming negligent misrepresentation was exception to merger doctrine for purposes of analysis).1
129 Utah recognizes the tort of negligent misrepresentation. See Dugan v. Jones, 615 P.2d 1239, 1249 (Utah 1980); Jardine v. Brunswick, 18 Utah 2d 378, 423 P.2d 659, 661-62 (1967). Negligent misrepresentation arises
"[where one having a pecuniary interest in a transaction, is in a superior position to know material facts, and carelessly or negligently makes a false representation concerning them, expecting the other party to rely and act thereon, and the other party reasonably does so and suffers loss in that transaction."
Dugan, 615 P.2d at 1249 (quoting Jardine, 423 P.2d at 662).
130 Defendants argue-and the majority concludes-that merger precludes an action for negligent misrepresentation because fraud requires knowing or reckless disregard for the truth whereas negligent misrepresentation requires only negligent disregard of the truth. However, our supreme court has stated:
under the doctrine of constructive fraud there is a well-established exception that a representation must be made knowingly, willfully, and with intent to deceive. Thus, in a case where the circumstances impose upon the vendor a special duty to know the truth of his representations or where the nature of the situation is such [that] the vendor is presumed to know the facts to which his representation relates, a misrepresentation is fraudulent even though not made knowingly, willfully or with actual intent to deceive.
Id. at 1246 (footnote omitted). Thus, a knowing or reckless state of mind is not the sine qua non of fraud in Utah.2 I therefore do not conclude, as the majority does, that negligent misrepresentation is not an exception to the merger doctrine merely because it does not require a knowing or reckless state of mind.
1 31 Plaintiff argues that negligent misrepresentation falls within the fraud exception to the merger doctrine because it "grew out of" common law fraud, Christenson v. Commonwealth Land Title Co., 666 P.2d 302, 305 (Utah 1983), and therefore is a "species" of fraud. In fact, our supreme court has gone so far as to say that negligent misrepresentation is a "form" of fraud:
We have heretofore defined fraud as "a false representation of an existing fact, made knowingly or recklessly for the purpose of inducing reliance thereon upon which the plaintiff reasonably relies to his detriment." - Negligent misrepresentation is a form of fraud which occurs when
*227[olne who, in the course of his business, profession, or employment, or in any other transaction in which he has a peeu-niary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by the justifiable reliance on the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.
Atkinson v. IHC Hosps., Inc., 798 P.2d 733, 737 (Utah 1990) (quoting Sugarhouse Fin. Co. v. Anderson, 610 P.2d 1869, 1878 (Utah 1980) and Restatement (Second) of Torts § 552 (1977)); see also Ellis v. Hale, 13 Utah 2d 279, 373 P.2d 382, 384-85 (1962) ("The usual action for fraud, whether negligent or intentional, requires that a representation be made with the intention that it be relied on." (footnote omitted)). Thus, I conclude that negligent misrepresentation as a form of fraud is an exception to the merger doctrine.
132 Furthermore, my research leads me to conclude that negligent misrepresentation should be an exception to the merger doctrine whether or not it is characterized as a form or species of fraud.
133 I have found no appellate decisions addressing the precise issue of whether the merger doctrine precludes a claim for pre-contractual negligent misrepresentation.3 A number of appellate courts, however, have addressed the closely related contract law issue of whether the parol evidence rule or the doctrine of caveat emptor preclude such a claim in cases concerning both sale of goods and real property. Those cases addressing negligent misrepresentation claims in the context of a real estate transaction ignore the threshold merger doctrine issue and proceed to an analysis of the antecedent sales contract or earnest money agreement. See, e.g., Formento v. Encanto Bus. Park, 154 Ariz. 495, 744 P.2d 22 (Ariz.Ct.App.1987) (sale of business property); Wagner v. Cutler, 232 Mont. 332, 757 P.2d 779 (1988) (sale of residence); Hoover v. Hegewald, 70 Or.App. 223, 689 P.2d 965 (1984) (sale of ranch property); Grube v. Daun, 173 Wis.2d 30, 496 N.W.2d 106 (1992) (sale of agricultural property). Indeed, in this case, in their Memorandum in Support of Defendants' Motion for Summary Judgment, Defendants characterize the issue as one of merger but argue that they are entitled to judgment on the basis of the "as is" and integration clauses in the Earnest Money Agreement executed by the parties.
1 34 A majority of courts that have considered a claim for pre-contractual negligent misrepresentation have concluded that the claim is not barred by contract law defenses. These cases present two persuasive arguments in favor of permitting such a cause of action to proceed.
T35 First, several cases note that the cause of action sounds in tort and therefore cannot be barred by substantive rules of contract law such as the merger doctrine or the parol evidence rule. Seq, e.g., Formento, 744 P.2d at 25-26; Keller v. A.O. Smith Harvestore Prod. Inc., 819 P.2d 69, 73 (Colo.1991); Johnson v. Healy, 176 Conn. 97, 405 A.2d 54, 56-57 (1978); Martens Chevrolet, Inc. v. Seney, 292 Md. 328, 439 A.2d 534, 539 (1982); Zimmerman v. Kent, 31 Mass.App.Ct. 72, 575 N.E.2d 70, 74 (1991); Wagner, 757 P.2d at 781-82; Gilliland v. Elmwood Properties, 301 S.C. 295, 391 S.E.2d 577, 580-81 (1990); Grube v. Daun, 178 Wis.2d 30, 496 N.W.2d 106, 116-17 (1992).4
*2284 36 Second, the harm to the party induced to contract in reliance on false information is the same whether that information was supplied knowingly, recklessly, or negligently. See, e.g., Formento, 744 P.2d at 26. That is, misrepresentation, whether knowing, reckless, or negligent, threatens the integrity of the bargaining process because the party induced might not have consented to contract with the party supplying the false information but for that information.
37 The Maryland Court of Appeals recognized this in Martens Chevrolet, Inc. v. Seney, 292 Md. 328, 439 A.2d 534 (1982). In that case, the seller of an auto dealership misrepresented the dealership's profitability to the eventual purchaser of the dealership. When the dealership turned out to be less profitable than represented, the buyer sued. See id. at 586-37. The court held that an integration clause in the contract for sale stating that the contract "supercedes all pri- or and contemporaneous agreements and undertakings, inducements or conditions, express or implied, oral or written" did not shield the seller from a claim for negligent misrepresentation. Id. at 539 n. 7.
A party to a contract cannot, by misrepresentation of a material fact, induce the other party to the contract to enter into it to his damage, and then protect himself from the legal effect of such misrepresentation by inserting in the contract a clause to the effect that he is not to be held liable for the misrepresentation which induced the other party to enter into the contract. The effect of misrepresentation and fraud cannot be thus easily avoided. If it could be, the implied covenant of good faith and fair dealing existing in every contract would cease to exist.
Id. (citations omitted).
138 Similarly, Formento involved a misrepresentation about zoning restrictions in a business real estate transaction. See 744 P.2d at 23. Holding that the parol evidence rule did not bar a claim for negligent pre-contractual misrepresentation, the court recognized the importance of the finality of transactions to contract law, but noted:
"There is also a judicial policy promoting honesty and fair dealing in business relationships. This policy is expressed in the law of fraudulent and negligent misrepresentations. Where a misrepresentation is fraudulent or where a negligent misrepresentation is one of material fact, the policy of finality rightly gives way to the policy of promoting honest dealings between the parties...." =... [A] seller should not be allowed to hide behind an integration clause to avoid the consequences of a misrepresentation, whether fraudulent or negligent.
Id. at 26 (citation omitted).
139 The few courts that deny recovery argue that allowing a tort cause of action for pre-contractual negligent misrepresentation interferes with the principle of freedom of contract. I agree that bargained-for duties and liabilities not contrary to public policy should remain beyond judicial intervention. Moreover, it is well established that parties may bargain for immunity from negligence. See, e.g., DCR Inc. v. Peak Alarm Co., 663 P.2d 433, 438 (Utah 1983). However, I would not conclude as a matter of law that parties have bargained away judicial intervention unless the real estate or other contract clearly and unequivocally expresses an intent to preclude liability for negligent misrepresentation.
140 The Wisconsin Court of Appeals adopted this approach in Grube v. Daun, 173 Wis.2d 30, 496 N.W.2d 106 (1992). In that case, the plaintiffs purchased farm land that contained underground storage tanks that had leaked fuel and contaminated the property's water wells. See id. at 111. The plaintiffs brought suit alleging fraud, negligent misrepresentation, and nondisclosure. See id. The defendants filed for summary judgment arguing that the suit was barred by a clause in the offer to purchase contract stating, "Buyer is buying the property in afsic] as is condition without any warranties." Id. The court reversed summary judgment for *229the defendants, holding that the "as is" clause barred a suit for breach of warranty but not for negligent misrepresentation. See id. at 117. The court stated:
[Als a matter of public policy, tort disclaimers in contracts will not be honored unless the disclaimer is specific as to the tort it wishes to disclaim. In order to be effective, the disclaimer must make it apparent that an express bargain was struck to forgo the possibility of tort recovery in exchange for negotiated alternate economic damages.
Even if the scope of the "as is" clause extended outside of the warranty context, the clause in the ... contract does not specify, or even refer to, negligence or misrepresentation as required by [Wisconsin case lawl. It also does not show that the clause was reached through bargaining between the parties, for example, through lower contract costs or express concessions regarding other terms.
[This case law rests] on the careful balancing of the principles of contract and tort law. The law of contracts is based on the principle of freedom of contract. The law protects justifiable expectations and the security of transactions. These principles generally support the enforcement of an exculpatory clause. The law of torts is based on the principle of compensation of individuals for injuries sustained as the result of the unreasonable conduct of another. Tort law also serves the purpose of preventing future harm. These tort law principles make a court reluctant to allow the parties to shift by contract the burden of negligent conduct from the actor to the victim.
Id.
{41 The Colorado Supreme Court reached the same result in Keller v. A.O. Smith Harvestore Prod., Inc., 819 P.2d 69 (Colo.1991). There the plaintiffs purchased a grain silo that caused their silage to spoil. See id. at 70-71. The sales contract included an integration clause and an additional clause providing, in capital letters,
I [buyer] have read and understood the terms and conditions of this purchase order including the warranties, disclaimers, and terms and conditions herein given to me, either by the manufacturer or the seller. I rely on no other promises or conditions and regard that as reasonable because these are fully acceptable to me.
Id. at 71. The court held that the contract did not preclude a claim for negligent misrepresentation:
Many other courts have also concluded that the mere presence of a general integration clause in an agreement does not bar a claim for negligent or fraudulent misrepresentation. We conclude that a general integration clause does not effect a waiver of a claim of negligent misrepresentation not specifically prohibited by the terms of the agreement. The general language of the integration provisions of the purchase agreements here at issue does not specifically preclude negligent misrepresentation claims....
A contract provision purporting to prohibit a party to the contract from asserting a claim of negligent misrepresentation must be couched in clear and specific language.
Id. at 73-74 (citations omitted); see also Elizabeth Cumming, Note, Balancing the Buyer's Right to Recover for Precontractual Misstatements and the Seller's Ability to Disclaim Express Warranties, 76 Minn. L.Rev. 1189 (1992) (proposing Uniform Commercial Code revision adopting this approach); Jared M. Levin, Note, A Proposed Penalty Default Rule Governing a Seller's Ability to Disclaim Liability for Precontrac-tual Misrepresentations, 1997 Colum. Bus. L.Rev. 399 (proposing that federal courts adopt this approach under existing U.C.C.).
42 Utah likewise recognizes that parties may contract to avoid prospective liability for negligent torts. See, eg., DCR, 668 P.2d at 438. Allowing parties to contract around prospective liability for negligent torts-but not reckless or intentional torts-comports with the important policy of allowing contracting parties freedom to apportion duties and liabilities while prohibiting contracts contrary to public policy. I see no reason to distinguish between prospective and retroactive lability when it comes to apportioning duties and liabilities through contract. Although placing the liability for fraudulent *230bargaining behavior on the victim is plainly contrary to public policy, parties should be free to apportion liability for negligent bargaining behavior through the terms of their contract.
{48 However, as in the case of a contract limiting prospective liability for negligence, this court should not limit a party's lability in tort for prior negligent misrepresentations unless the contract "clearly and unequivocally" expresses an intent to do so. See id. at 437 (holding liquidated damages clause in contract did not express intent to limit damages in tort for economic damages resulting from vendor's failure to warn customer of burglar alarm's deficiencies). "Without such an expression of intent, ' "the presumption is against any such intention, and it is not achieved by inference or implication from general language.""" - Interwest Const., v. Palmer, 923 P.2d 1350, 1356 (Utah 1996) (quoting DCR, 663 P.2d at 437 (quoting Union Pac. R.R. v. El Paso Natural Gas Co., 17 Utah 2d 255, 408 P.2d 910, 914 (1965))). Only a clear and unequivocal expression ensures both that the contracting parties have notice of the rights waived and that the courts enforce the parties' intent to relieve a party of its duty.
144 The Earnest Money Sales Agreement (Agreement) in the present case contains no expression, much less a clear and unequivocal expression, of an intent to limit Defendants' liability in tort. The Agreement includes an inspection clause and an integration clause. The inspection clause provides:
INSPECTION, Unless otherwise indicated, Buyer agrees that Buyer is purchasing said property upon Buyer's own examination and judgment and not by reason of any representation made to Buyer by Seller or the Listing or Selling Brokerage as to its condition, size, location, present value, future value, income herefrom or as to its production. Buyer accepts the property in "as is" condition subject to Seller's warranties as outlined in Section 6. In the event Buyer desires any additional inspection, said inspection shall be allowed by Seller but arranged for and paid by Buyer.
The integration clause provides:
COMPLETE AGREEMENT-NO ORAL AGREEMENTS. This instrument constitutes the entire agreement between the parties and supersedes and cancels any and all prior negotiations, representations, warranties, understandings or agreements between the parties. There are no oral agreements which modify or affect this agreement. This agreement cannot be changed except by mutual written agreement of he parties.
The Agreement makes no mention of negligence or tort liability of any kind. Although the inspection clause refers to seller's representations, it fails to refer to negligent representations, and, on its face, purports only to limit liability for warranties not included in Section 6 of the Agreement. Thus, the inspection clause expressly limits contract liability, but expresses no intent to limit Defendants' tort liability, and such intent is not to be inferred or implied. The integration clause likewise expresses no intent to limit tort liability.
145 Because I conclude that the merger doctrine does not bar Plaintiff's claim and that, rather, the terms of the parties' contract should dictate whether a claim for negligent misrepresentation is precluded, and because the contract in this case does not clearly and unequivocally preclude an action for negligent misrepresentation, I dissent from the portion of the majority opinion on that issue. I would remand the issue to allow the plaintiff an opportunity to prove his negligent misrepresentation claim.
. I agree with the majority that this court is bound by stare decisis. However, I disagree that either this court or the Utah Supreme Court has held that the merger doctrine precludes a claim for precontractual negligent misrepresentation. As the majority notes in its footnote three, the Maynard court recites the four separate exceptions to the merger doctrine recognized at the time. See 912 P.2d at 450. However, neither Maynard nor any other opinion of this court or the Utah Supreme Court forecloses the possibility of recognizing negligent misrepresentation as an exception to the merger doctrine. Furthermore, as I explain in my dissent, I conclude that, as a form of fraud, negligent misrepresentation is included within the exceptions to the merger doctrine in Utah.
. Similarly, our supreme court's statement that "to prevail on a claim of fraud, all the elements of fraud must be established by clear and convincing evidence," see majority opinion, supra, at 223 (quoting Secor v. Knight, 716 P.2d 790, 794 (Utah 1986), cannot be read to hold that the merger doctrine precludes the present claim. Read in context, that statement is merely a segue to the court's actual holding, which affirms the trial court's conclusion that the plaintiffs did not rely on the real estate agent's representations and that any reliance would have been unreasonable, thus plaintiff failed to establish two elements of fraud.
. In their Memorandum in Support of Defendants' Motion for Summary Judgment, Defendants argue that one appellate court opinion has concluded that claims for negligent and innocent misrepresentation do not survive the merger doctrine in a real estate transaction. See Sullivan v. Reliable Realty, 16 Va. Cir. 118 (1989). On the contrary, that frial court opinion concluded merger did not preclude those claims, reasoning that "[wJhether the representation is made innocently or knowingly, if acted on, the effect is the same." Id. at 121 (citation omitted).
. Even courts that have denied the cause of action do not foreclose the possibility of a negligent misrepresentation claim between contracting parties, but rather base their holdings on the language of the underlying contract. See, e.g., Rio Grande Jewelers Supply, Inc. v. Data Gen.Corp., 101 NM. 798, 689 P.2d 1269, 1270-71 (1984) (noting, inter alia, that parties' contract contained integration clause); Hoover, 689 P.2d at 969 ("[In this case the contract contained a clause specifically excluding any prior warranties and declaring that there had not been any representations made which induced defendants to *228purchase the property."); Snyder v. Lovercheck, 992 P.2d 1079, 1087 (Wyo.1999) (stating issue "is whether a plaintiff may bring an action which arises out of a contract and call it a tort action, thereby rendering his own statement in the contract null and void").