- posted: Nov. 19, 2010
When I discuss contracts with Business of Media students at Ex’Pression College for the Digital Arts , I give them four words of wisdom that I hope will outlast their memories of me. I tell them I want them to whisper these four words, like Charles Foster Kane whispering, “Rosebud,” on their deathbed. If my family coughs up some money for a tombstone for me, it can have these four words, too:
“Get it in Writing”
Now, I know that contracts do not have to be in writing to be enforced. They can be oral – “Hey, gimme your apple, and I’ll give you my orange.” That’s a contract. Contracts can be implied – I wave around a $20 bill in front of a student and point to his writing instrument, and he understands that I’m willing to pay $20 for a cheap pen. That’s a contract, too. So why get it in writing?
Getting it in writing means that it is ever so much easier to enforce – both for a lawyer like myself, and for a regular client. A writing makes it so much easier to prove the existence of the contract. It puts a big cramp into a weasel trying to get out of his responsibilities, when he has to face a piece of paper that lays out what each side has to do.
Do-It-Yourself Contract. Now, as a lawyer, of course I’m all for 20 page contracts, with addenda, appendices, and exhibits. I love signed contracts, with notarized signatures. But it doesn’t have to be that hard, or that expensive. You can do it yourself – it is really pretty simple. The most basic contract is just an exchange of one thing for another. “I promise to mow your lawn on Saturday for $20.” You: will mow the lawn. The other person: will pay $20. Time of performance: Saturday. Each side can add conditions (“if it is not raining,” or “provided that the lawn’s appearance meets your satisfaction”), but the basics are what each side is going to do or give up. The following is a valid contract, not even if, but especially if you do nothing: “B promises to pay me $100 if I do not smoke for the next seven days.” As anyone who knows a smoker understands, not smoking is pretty hard for someone hooked on tobacco.
Many people are afraid that putting in front of a counterpart a contract implies that the counterpart is not to be trusted. Here’s the way around that: when the counterpart says, “we don’t need it in writing, you can trust in me,” reply, “I do trust you – but I’m afraid I’ll forget the details. This is my way of making sure that you can trust me.” They usually don’t have a snappy comeback to that.
A No Signature Contract? While the consent inherent in contracts is best expressed when the contract is signed, you can still evidence that consent in a way that takes advantage of the other person’s reluctance to alienate you. Send an email to the person that has in the body the terms of the agreement, prefaced with the following “This is just to confirm the agreement that we reached today, that . . . “ and lay out the nature of the agreement. After that, put in the killer line: “If your recollection of our agreement is different, please let me know the difference as soon as possible.”
More than 95% of the time, there is no change, and your counterpart’s silence is evidence of his consent to your agreement. Later, if he tries to weasel out of the agreement, you have written evidence of his assent to the agreement. No lawyers need to get involved, and the weasel gets snared nearly every time.