Contract enforcement is a common legal need by businesses and individuals alike.
Contracts should always be put in writing, no matter the relationship between the parties. This may seem like commons sense to most, but you would be surprised how many agreements are never memorialized in writing. It is often these verbal agreements that result in disputes, disagreements, and ultimately litigation. This can often be avoided by simply putting the agreement on paper.
Parties wishing to enforce any contract, must show that an enforceable contract exists, and this is very difficult in a situation where it is one party’s word against the other.
To sustain a claim for breach of contract, a party must prove the following: (1) existence of a valid, enforceable contract, (2) that plaintiff performed, tendered performance of, or was excused from performing its contractual obligations, (3) that defendant breached contract, and (4) that defendant’s breach caused injury to plaintiff.
Any attempt to enforce an agreement begins with the party attempting to enforce the contract attempting to establish that there is a valid, enforceable contract. Succeeding in this without a written agreement is not prohibited, but it is difficult. The difference between a verbal contract and a written contract, can be the difference between success and failure in enforcing the agreement.
An implied contract is one that isn’t in writing and arises from the acts and conduct of the parties. Such a contract exists when the facts and circumstances surrounding the parties’ relationship imply a mutual intent to contract. Every contract requires a meeting of the minds between the parties, but the meeting can be implied from the parties’ conduct and course of dealing. An implied contract is difficult to prove in court however.
The elements of a contract, express or implied, are identical; there must be an offer, an acceptance, a meeting of the minds, each party’s consent to the terms, and execution and delivery of the contract with the intent that it be mutually binding. A written agreement that memorializes those elements is always preferred. The failure to “paper up” the agreement creates havoc in interpreting and enforcing any of the elements to the agreement and could leave the parties exposed to problems.
The importance of a written agreement can’t be stressed enough. Any time we are called to litigate a contract matter, it is critical to have a written agreement as the starting point. Without a writing, we’re left with our client’s word against that of the opposing party. Why take the chance for a failed interpretation of the agreement, or an enforcement of an agreement you didn’t reach? Just put it on paper.
The business attorneys at Smith Simmons are prepared to assist you in insuring every agreement is in writing and clearly defines what you’re agreeing to. We regularly draft, execute, defend and enforce contracts, and we can do the same for you. If you would like to speak to a Smith Simmons attorney, contact us today to schedule your consultation.