Many people are under a mistaken assumption that an agreement is unenforceable if the parties have not signed a written contract.  As a civil trial attorney, I am frequently asked a question that goes something like: “I don’t have a written contract, so I can’t make him pay me, right?”  I also hear this question from the opposite side: “Can’t I just do what I want because there is no written contract?”  The answer to both these questions is usually that an agreement is enforceable, regardless of whether there is a signed written agreement.

Elements of a Contract

“Generally, formation of a contract requires an offer, an acceptance, and consideration.” Cea v. Hoffman, 2012 UT App 101, ¶ 24 (Utah App. 2012).  An offer is simply one party proposing what will be done.  An acceptance comes from the other party agreeing to the proposed terms, and though a signature is a generally understood form of acceptance, it is not the exclusive manner to accept an offer.  Consideration exists if both parties provide something of value.

Contracts can be created orally, in writing, or over a series of writings and/or conversations.

Contract formation can get quite a bit more complicated, but generally speaking, if both sides agree to do something, then a contract has been formed.

Essential Terms

In order for a contract to exist, the parties have to agree to the essential terms. “An agreement cannot be enforced if its terms are indefinite.”  Richard Barton Enters. v. Tsern, 928 P.2d 368, 373 (Utah 1996).  In other words, a contract does not exist if the terms are so undefined that a court could not determine what each side was required to do (though reasonable terms can sometimes be inserted or implied).

What if there is still no contract?

            If you don’t have a written or oral contract, you may still enforce an agreement through promissory estoppel or quantum meruit.  Generally, the law has provisions into place to compel people to live up to their promises.  If you believe that you are owed something, there is usually an argument for you to make.

 

As always, if you have any questions about your situation, you are welcome to contact one of Whiting & Jardine’s breach of contract lawyers for legal advice.

For more specific information about this particular subject, please call my office at 801-691-7770 for a free consultation or see the following web pages:

  1. Whiting & Jardine, LLC Home Page: www.WhitingJardine.com
  2. Transactions: http://whitingjardine.com/services.php?part=transactions
  3. Breach of Contract Litigation: http://whitingjardine.com/practice_areas.php?part=breach
  4. Contract Negotiation & Drafting: http://whitingjardine.com/practice_areas.php?part=contract

Disclaimer: This blog is for general information and educational purposes only.  Nothing in this blog should be construed as legal advice for any particular situation.  The statements in this blog may be generalized, contain speculation, be based on opinion, or be made inaccurate by updates or clarifications to the law.  No attorney-client relationship is created by virtue of this blog.  To receive competent legal advice for your situation, you should seek competent, licensed legal counsel in the appropriate jurisdiction and practice area.

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