Should your contract be in writing?

By James J. Pringle, Esq.

Kyler, Pringle, Lundholm & Durmann, L.P.A.
405 Chauncey Avenue, NW
P.O. Box 668
New Philadelphia, OH 44663

The short answer to this question is “yes, if at all possible.” The terms of an agreement can be difficult to establish without a writing. Does a contract have to be in writing to be enforceable? The answer to that question is “sometimes.” It depends on whether a writing is required under Ohio law to comply with what is called the “Statute of Frauds.”

Certain types of agreements, historically regarded as being subject to false claims, must be in writing to be legally enforceable. Those kinds of contracts are:

  • A promise to be responsible for the obligation of someone else.
  • A contract to sell land or an interest in land.
  • Contracts which the parties believe will not be fully performed by at least one of the parties to the contract within one year
  • An agreement that includes a promise to marry.

There is a misconception among some that oral agreements or contracts cannot be enforced. How often have you heard someone say “You can’t prove that”? Many times that is not true and you can legally prove your point. For example, say you are in court and you testify that Bill promised to pay you $20 if you mowed his lawn. You also swear that you mowed his lawn and Bill refused to pay you. If the judge or jury believes you and disbelieves Bill’s denial, then you have just “proved” the facts and your case. A videotape or recording of the exact conversation isn’t required.

Even if the terms of contract may be “established” without a writing, it may be a good idea to have a written agreement. It eliminates the uncertainty of who the court would believe. Also, it helps both parties confirm whether they are communicating clearly. It is easy for two people to have a conversation and come away with a different take on what was discussed or agreed. Our memories are imperfect. Putting the agreed upon terms in a signed writing can eliminate some disagreements later.

Another purpose of a signed writing is to identify and allocate risks. For example, when a contractor is performing under a construction contract, it is possible for there to be sub-surface problems that were not expected (like solid rock in an area where the ground is normally not so hard or expensive to excavate). The agreement can state that the contractor takes the risk of performing regardless of sub-surface conditions. Or it could say that if unexpected sub-surface conditions are encountered that the owner will pay for the additional expense.

In general, if there is a lot at stake, either in money or risk, you should consider consulting an attorney to have a written contract prepared.

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