You have probably been advised at some point in your life to “get it in writing.” You may also at some point have wished that you had gotten it in writing. If that has not happened to you yet, see the following for some good reasons to put it in writing.
- Not everyone is as honest as you are. Most of us believe that we are pretty good judges of character. We may especially believe that when it comes to people we have known a long time. Nearly every lawyer, though, can tell you about disputes between family members or close friends that end up in court – but that would not have if the deal had been put in writing. Don’t lead others into temptation – get it in writing.
- Faulty memories. Recent experiments have shown that memories can change without our realizing it. Our memories are less like computers and more like the old game of “telephone,” where the information changes at every link in the chain. People can even unwittingly create memories of events that never happened. However, it is much harder to alter a written document than it is to alter a memory.
- All people must pass. As time passes, people do too. The person who would back up your version of what the terms of a deal were might not be around when a dispute arises some years later. Documents don’t last forever, but longer than people do.
- Legal requirements. Under the law, some agreements cannot be enforced at all if they are not in writing. The problem arises most often in the context of real estate. A verbal agreement to buy or sell real property cannot be enforced in most states. You need to have the other person’s signature on something that sets out the basic terms.
- Fraud. If it sounds too good to be true, get it in writing. If the other side won’t do that, don’t do the deal. And if there is a written contract, make sure that the statements that are influencing your decision to do the deal are in the contract.
- Clarity. A contract is sometimes said to require a “meeting of the minds,” but if it is not in writing, you cannot be sure that has happened. A good written contract will have defined terms and clear language that insure that both parties – and third parties – are clear as to what it means.
- Statute of Limitations. A statute of limitations is a rule that requires a lawsuit to be brought within a certain time period after a legal claim has arisen. In most states, the limitations period for the breach of a written contract is longer than the period for a breach of an unwritten contract. If there is some uncertainty as to whether or when the contract was actually broken, the extra time can make a big difference.
- Focus. If you put the terms of a contract in writing, you may think more about those terms than you would if it were a simple handshake deal. You will have more time to think about the “what ifs” – what would happen to this deal if we have 30 straight days of rain? Or the other guy’s supplier goes broke? A good contract will address developments that two people shaking hands would never have thought of.
- Remedies. State law generally sets forth the type of damages and other relief you can get if a contract is breached. Some remedies, though, such as attorney fees or a particular interest rate, are available only if agreed to in advance. You can even have a provision that says no one can go to court until a claim has been mediated or arbitrated, but that won’t happen if it is not in writing.
About the Author
Lynn Howell joined the predecessor firm of Christensen Law Group, P.L.L.C. in 1983. Lynn has spent the majority of his practice in commercial and complex litigation, mostly in Oklahoma. He enjoys and is skilled at every aspect of litigation, from pleading through discovery, motion practice, trial and appeal. His litigation experience also aids him in drafting contracts and structuring transactions. Lynn prides himself on providing prompt, skillful and efficient legal services to the clients of the firm. You can read more about him and his legal experience here.