Does a Contract Have to Be in Writing?

Does a Contract Have to Be in Writing?

548 364 Cynthia Conlin

It is a question often misunderstood: Does a contract have to be in writing?

The answer, most of the time, is no.  But sometimes, yes.

A contract, by its very nature, does not require a piece of paper.  It requires (1) an offer, which can be made orally, (2) acceptance of that offer,  (3) consideration, and (4) specific specification of essential terms.  For example:

Bob: Would you paint this chair for $40, if I give you the paint, and get it done today?

Larry: Sure!

Bob: Great! Here’s $40 and a can of paint.  Thanks a lot!

Larry: I’ll get to work.

In this brief dialog and exchange of funds, a very simple contract has been entered.  The terms of the contract are that Bob will pay Larry $40 and supply the paint; and Larry will paint the chair today.

Another example is when you agree to pay your accountant, attorney, or other professional a specific dollar amount per hour to perform a certain task, and he or she does the work.  Even if you did not sign a written agreement with that professional, you probably did enter into a legally binding contract.

So when does a contract need to be in writing?  There are a few examples.

The first is where the parties intend to be bound by a written contract only.  In other words, they expressly tell each other, understand, and accept that their oral statements are worth nothing until they write them down.  This sort of argument usually only occurs when they’ve already a written contract, and the written contract has a clause specifically excluding oral statements.

The other example is when statutory law requires a written contract.  For example, a promise to pay a debt that is so old that it is barred by a statute of limitations must be in writing and signed by the person sought to be charged, pursuant to section 95.04, Florida Statutes.  And home solicitation sales must be in writing, pursuant to section 501.031, Florida Statutes.

Another statute, called the “statute of frauds,” found in section 725.01 Florida Statutes, requires multiple types of contracts to be in writing, including:

• A special promise by an executor or administrator to answer or pay any debt or damages out of his or her own estate;

• A special promise to pay for another person’s debt or default;

• A marriage contract, or prenuptial agreement;

• A contract for the sale of lands;

• A contract to lease lands for a period longer than one year;

• An agreement not to be performed within one year from the making thereof; and

• Certain agreements on the part of providers of health care.

It is not always easy to tell when a writing is necessary.  Even attorneys argue over this, which is why the “statute of frauds” argument comes up in court cases as a defense to breach of contract actions.  Therefore, if you want to protect your rights, it’s good to memorialize them in writing.  However, if someone tells you that there’s no deal because the arrangement was not in writing, they’re not necessarily correct.

When in doubt, contact an attorney.   Cynthia Conlin, P.A. is a law office of Orlando attorneys who will usually provide a free lawyer consultation (up to 30 minutes, and telephonic) of your matter if it is one of our practice areas.  Feel free to call us at 407-965-5519.

Cynthia Conlin

Cynthia Conlin is the lead attorney at the Law Office of Cynthia Conlin, P.A., an Orlando law firm focusing on assisting businesses and individuals with litigation needs.

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