subject: The Lawyer Business Coach: Must A Contract Be In Writing To Be Valid and Enforceable in Court? [print this page] The Lawyer Business Coach: Must A Contract Be In Writing To Be Valid and Enforceable in Court?
The legal answer to the title of this article, generally, is no. The practical answer is yes. Verbal contracts are allowable in most cases, and can be substantiated and enforceable in court, especially by corroborating witnesses and testimony. But is it wise to have to go this route? No, it is not.
We sadly live in an age when a person's word is not as good as it used to be. It is said: "A verbal contract is not worth the paper it's written on." It's sad but true. When I started law practice, in the 1970s, the lawyer who did not keep his word, and abided by what he said was rare. However, by the 1990s, the lawyer who did keep his word, and abided by what he said was rare. Times had totally changed. Today it's even hard to get a lot of lawyers to keep their commitment to return phone calls.
Thus, most contracts don't have to be in writing, but should be for safety. A lawyer once remarked: "I've got a file cabinet full of worthless pieces of paper that most people call CONTRACTS." You see, not all written contracts are truly enforceable today. People skip town. People file bankruptcy. People die. People become unemployed or indigent. As is said, "You can't get blood out of a turnip." But there are some contracts that must be in writing, especially in most jurisdictions.
Generally speaking, the following are true, but consult your own state's statutes:
1. Contracts dealing with real estate must be in writing. This includes lease agreements, but rental agreements under a year do not have to be in writing.
2. Contracts for personal property and goods over $500 must be in writing. However, in some states, if you've paid for the goods you can enforce an oral contract, even though there is no written contract. Similarly, if the receiver has received and accepted the goods, the verbal contract may be enforceable. However, you must check your state statutes about this.
3. Contracts that can't be completed within a year most in writing. But here, even if you perform under the contract for more than a year, even though the written contract is only for one year, most states will allow you to enforce it for the longer term even though it is not in writing. And you can recover reasonable value of services if you are stopped from fully performing it.
4. Contracts to pay someone else's debt (or them to pay yours) it must be in writing.
5. Contracts in contemplation of marriage (pre-nuptial agreements) must be in writing.
These situations are all described in what is called The Statute of Frauds,' which to my knowledge, has been adopted in some form by all 50 states.
These writings don't have to be long, detailed, lawyer-drawn contracts that are filled with legal gobbledegook. They can be simple, understandable, hand written statements that are signed by both (or more) parties who are involved, and dated. If it is written but unsigned, it is not enforceable. Some states only require that the party to be charged must have signed the contract, but other states require both parties to sign the contract or the court won't even review it. So check your state.
Include a statement of money, if any. Say when the contract is intended to be performed: "By November 1, 2011" or "Before school starts again."
The bottom line, rule of thumb is simply, "State your case simply and succinctly." You don't have to be verbose. You don't even have to dot all the I's and cross all the T's. You can use ain't, or other improper English, if you so choose. These things don't matter in the legal community. What does matter is that what you have written can be understood by "John Doe on the street." If it can be, and if he can tell what's in your heart, you're off and running. If it can't be, then re-write it.
