"But it's not in writing...."

 "But it's not in writing!"  It's a myth that everyone seems to have heard before:  a contract is no good if you don't have it on paper.

The good news:  this myth isn't true.  A contract is an agreement, not a document.  Some contracts are oral, and some are written.  Some are signed, and some are back-and-forth emails.  Some are never discussed, but are just "implied" or "assumed", based on how the parties acted.

And sometimes, there are two contracts at issue:  the written contract, and the oral agreement reached before everything was written down.  In law, the oral agreement reached before the written contract is called the "parol agreement".  (For history and language buffs, the word 'parol' originated in the context of the promises a war prisoner would make prior to being released from captivity, and, literally meant, "giving your word".)

The idea works the same way in the law, as well.  If someone gives their verbal "word", a court can enforce those promises in the same way as a written contract.  And if the written agreement doesn't explain exactly what the parties intended, a court can look at the prior negotiations and agreements.

An opinion issued this week briefly discussed parol agreements, and restated the rule that, usually, a written agreement replaces an oral agreement.  See, Kjerstad Realty v. Bootjack Ranch.  The case involved a dispute between a realtor, demanding a commission, and the property seller, who refused to pay the commission (because the ranch was sold to a neighbor to whom the realtor didn't actually "show" the property).  The case was sent back for a jury trial.

In general, it is better to have written agreements.  Often, however, we take each other's "word", instead.  And the law will treat those promises the same as if they are written down.  So if you hear someone say the magic phrase, "But it's not in writing", tell them the good news:  it doesn't have to be.   

Celebrating Our Independence - July 4th

There will be no shortage of grand celebrations today, July 4th.  And for good reason.  Even back in July of 1776, John Adams, in a letter to his wife, predicted that the signing of the Declaration of Independence would "be celebrated, by succeeding generations, as the great anniversary festival."  However, Adams thought July 2nd would be the "big day", because that was when the Continental Congress voted for independence....in the typical style of politicians, it took two full days of debating to hammer out the details.  Finally, on July 4th, the document was released to the public.  And the rest, of course, is history.

Although it's not nearly as festive as fireworks, every year I download a copy of the Declaration of Independence and read it.  The famous line we all recognize is "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."

The passages that follow, however, often get forgotten, and for me they are a pleasant reminder about how my career as a lawyer is connected to the struggle for freedom they started so long ago.  Part of the tyranny of King George involved his repeated attempts to limit the power of the courts, and also "For depriving us in many cases, of the benefits of Trial by Jury". 

After their long battle for independence, the Colonists eventually established an independent court system, along with the right of everyone to a jury trial for criminal and civil cases...in other words, protection for everyone whose life, liberty, or property was at risk.  For me, it is an honor to serve as an attorney, because we are vehicles for helping carry out the intent of that ancient document, one client at a time, and, when necessary, one jury trial at a time.

As part of your celebration today, I invite you take a few quiet minutes and read the text that started our revolution for freedom.  Happy Independence Day.