When is it important to have a contract in writing?
Up to about $500 most people can manage to accept that they entered into a bad deal. With the addition of every zero this becomes more difficult. I am not saying that people deliberately lie but it just seems that the parties to a contract dispute will divide like two football teams depending on which side their bread is buttered. Respective families and friends act as crazed supporters. The other side is demonized as Nazis.
Where there is no written contract the goal posts shift so that the dispute takes on a “yes it is, no it isn’t” feel with the alleged facts aligning behind both sides to support their respective arguments. This is nothing new and judges decided early on that frequent disputes were “doing their head in” and insisted that some contracts needed to be in writing to try to provide some certainty, for instance guarantees and contracts for the sale of land.
So if the contract wording is clear and unambiguous, it stands unless it is absurd or you have been misled even if you intended something else and the judge knows it. Judges are not allowed to look at the surrounding circumstances which show how wrong it is and must take a blinkered approach. So lawyers normally put a small preamble in the contract to try and explain what the parties intended to do, just in case they mess it up. Also, lawyers put in an "entire contract" clause to ensure that no one says that the written document is only part of the contract.
Some modern judges will desperately and irritatingly (depending on which side you are on) seek ambiguity rather than apply a just and certain, albeit unfair ruling.
It is best to have your lawyer draw up important contracts as at least you can blame him (or to be politically correct her) if it turns sour.
Paul Brennan 2015. All rights reserved.