Friday, October 19, 2007

When and Why You Should "Get it in Writing"

Copyright 2007 Tonya M. Evans-Walls (). Limited license granted to copy and distribute this post provided such copying and distributing is of the entire post, including author's copyright and contact information.

DISCLAIMER: The author is not engaged in rendering legal or other professional services as a result of the information contained in this article, nor is this article meant to constitute legal or other professional advice. If legal or other professional assistance is required, the services of an attorney should be sought to discuss your individual needs since all legal issues are fact-specific.
[An excerpt from chapter 1 "Get It In Writing" of Contracts Companion for Writers, by Tonya M. Evans-Walls (Legal Write Publications 2007). To order visit or your favorite bookseller.]

From the moment we wake up until the moment we go to sleep, our days are filled with negotiations and agreements—with family (especially kids!), friends, co-workers, employers and employees, salespeople, and even (or particularly) our adversaries. No relationship, whether personal or professional, is immune from this certainty. From politics to pee wee football, our country and, indeed, our world turn on negotiating rights and responsibilities of various parties for innumerable purposes.

We participate in the give-and-take of negotiations basically to get what we want. But negotiations are rarely a zero sum game so, in the famous words of the Rolling Stones, "You can't always get what you want." Therefore, two goals exist in making contracts with others: to maximize what we receive from others and to minimize what we have to give up or do in return. And this reality is certainly present in the world of writing and publishing. But, as you will learn in chapter 2, not all agreements are legally enforceable contracts.

I am often asked (by people who obviously do not watch People's Court) whether it is necessary to write down every agreement and sign on the dotted line. The simple answer (which you rarely hear from a lawyer) is no, or at least not necessarily. As you will learn in this book, you need not reduce an agreement to a writing signed by the parties for a legally binding contract to exist, except for agreements required by law to be in writing, like the purchase or sale of real estate or a long-term lease. As long as a verbal agreement contains both the essential and the material elements of a contract (offer, acceptance, consideration, intent to contract, legal capacity to contract, and a legal object of contract, as discussed more fully in chapter 2), that verbal agreement will constitute a binding and legally enforceable agreement, also known as a contract.

Essentially, the term "contract" means a legally enforceable agreement between two competent parties. "Competent" means the contracting parties must be of age and in their right minds. And each party agrees to exchange something of value, like money, for goods or services, for example. Of course, with oral contracts, the hard part is proving the terms if something does not go as planned or if someone fails to perform as expected.

So to be prudent, particularly regarding important agreements you would want to enforce in court or through some other legal proceeding if the other party failed to live up to her end of the bargain, it is best to put your business arrangements in writing because a well-written writing signed by all parties can serve as a clear record of the agreed-upon terms and conditions, and can help to avoid misunderstandings and miscommunications. The absence of a clearly written agreement beforehand is the stuff that protracted litigation, ruined relationships, and whopper legal fees are made of. And it is always amazing how fuzzy someone's memory can be when a deal goes badly and a misunderstanding develops or someone believes she didn't get what she bargained for. This is especially true when the deal involves valuable and unique literary or artistic works and services.

Even if you do not have a formal writing replete with fancy legalese, at a minimum you should send a confirmatory e-mail or letter stating your understanding of the agreement. This will at least memorialize your understanding of your and the other party's rights and responsibilities, and give the other party an opportunity to respond and to clarify potential issues up front, if there is a difference of opinion.
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