Category Archives: Contracts

Get It In Writing!

There is no more common saying than this, but as with most clichés, there is a large grain of truth in this one. Most people would like to think that they could have the help of courts and lawyers to enforce promises that have been made to them, especially when goods and services have been paid for but not delivered.

However, judges and juries are often unable to protect the victims of those who do not keep their promises, when there is an inability to determine exactly what led up to their agreements and disputes.

Recall, that even the likes of King Solomon was so frustrated over his inability to determine which of two mothers standing before him was telling the truth, that he ordered the baby they both claimed to be cut in half and divided between them, in order to best solve their dispute.

There are a lot of reasons for preferring written understandings to oral agreements. For instance, one of the fundamental requirements for a valid contract, are terms that are certain enough for a court to determine and enforce, if a dispute develops between parties. Such disputes could center around the exact time in which an act would need to be performed, or the exact quantity or quality of goods to be delivered, or a payment schedule that would have to be met before goods and services could be delivered.

Society’s interest in the enforceability of commercial promises as an aid to free enterprise, would be seriously undermined if courts only had the oral testimony of parties to determine who was telling the truth. That’s why clear and convincing evidence is so cherished and jealously guarded by our legal system.

That’s also why it long ago became a rule that certain contracts had to be in writing in order to be valid. For instance, a contract that seeks to transfer an interest in real property, has to be in writing. A contract which by its terms cannot be completely performed within one year of its making, has to be in writing. A contract which seeks to hold a person liable for the debt of another, has to be in writing.

One of the most common situations encountered by lawyers, has clients telling us that there was a so-called “side agreement” to a contract they entered into, where the person who sold or otherwise promised them something, assured them of a fact or benefit that was not actually written into the contract. A common twist on such a situation might include an assurance to a client that a term that was actually written into the contact, will not really be binding on the client, or the client will not otherwise be held responsible for performing the obligation created by the term.

More often than not, we have to sadly inform our clients that they are “out-of-luck”, because one of the fundamental rules of written contracts, is that once the parties have reduced their understandings to a written document, a court will generally not enforce terms that are not within the “four corners” of that document. On the other hand, if a term is actually written into a contract, and the client has signed it, it is presumed that the client will be bound by that term, despite any oral statements to the contrary that were made to the client by the other party at the time the contract was entered into.

It’s generally the law that a written contract can only be modified by another written document, and never by an oral understanding. In fact, some rules actually forbid judges from even hearing evidence that would contradict the terms of a written agreement. So, that’s why it’s so important to “get it in writing”; and if the persons with whom you are dealing are unwilling to put every detail important to you in words that you can understand, just walk away!

It would be irresponsible to attempt critical legal advice in 350 words. If you need help, call me at 800-339-5539 or 661-287-3600.

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