Get it in writing!
Written by Kerry S. Doolittle   
Thursday, 15 April 2010

Get it in writing!  What, you may be wondering?  Everything!

I cannot count the number of times a client tells me the parties had agreed to some specific term, but signed the contract without writing that term down.  Then the other side had a convenient memory lapse or simply a different understanding of what the unwritten "agreement" really meant.

My rule of thumb, if something is important enough to for you to mention, discuss and agree to during negotiations, then it is important enough to write it down on the contract before signing.

And please read a contract before you sign it.  Signing a contract without reading it does not give you any legal excuse or defense.

This advice applies to any kind of agreement, a purchase contract, a lease, a construction contract, an employment contract, a simple promissory note, absolutely everything.

If the person you are dealing with talks a good game, but never seems to get around to putting anything on paper, you might want to consider why.  Someone who does not want to be pinned down in writing, may be setting you up for a fall.  Here is a classic example.  An owner rushes out to a job site and tells the builder to change something on the job, and it has to be done immediately, do not worry about the cost, we will work that out later.  When later comes, the owner refuses to pay the cost of that change order because he did not sign a change order, no amount was discussed, that charge is way too much, etc.  Often the builder does not get paid because he did not get it in writing. 

How should the builder handle that situation?  One suggestion, the builder should immediately write the details of the owner's instructions about the change, any estimated range of costs, and the owner's oral commitment to be responsible for the costs of labor and materials on whatever basis applies, and then fax or email (or both) that summary to the owner along with the statement, "This is a change being made in a very big hurry.  We do not have time to price it out in more detail.  This email confirms my understanding of the agreement reached this morning between us that you are assuming full responsibility for this change order and directing me to proceed immediately.  I will prepare a formal change order at a later date.  If you disagree in any way with my recollection or understanding of this matter please contact me immediately by phone and confirm in writing by ____.  If I do not hear from you by then, I will rely on this understanding of our agreement in proceeding to make the requested changes."  The owner's silence becomes a tacit agreement to the terms.  If the owner disagrees, this written communication puts the burden on the owner to respond.  When the matter is disputed later, this written communication becomes the builder's proof of the agreement.

The writing can be as simple as a quick email, "You called this morning and told me to paint the kitchen fire truck red.  If that is not correct, contact me immediately because I am going to rely on your instructions."  In the few seconds it takes to type and send that email, or write it down and fax it, you have created a paper trail.

If you are selling your home and plan to keep the curtains, write on the contract "Seller will keep all curtains."   

Writing it down performs two very important functions.  First, it creates proof of the agreement in the event any dispute should arise.  That helps to resolve a dispute quickly.  Second, it helps to clarify if you and the other party are thinking the same thing.  Often you say what you mean but the other party hears what he means, and the two meanings may be quite different.  When it is written down, you both have to look at the writing to make sure it says what you mean.  That will sometimes bring out before the contract is signed that you are thinking two different things and gives you an opportunity to resolve the ambiguity before signing, which avoids a later dispute over that issue.

A lot of what I do as an attorney is fix the problems caused when things were not written down or were poorly written.  Don't worry though, I will not say I told you so (too often).

Kerry S. Doolittle