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Author Topic: Legal "verbal" contract minutia question  (Read 719 times)

fallofftheworld

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Legal "verbal" contract minutia question
« on: March 06, 2006, 01:39:59 AM »
OK, since I know the subject line wasn't too exciting, I hope you don't think the topic will be much moreso.  This is something law nerds might somewhat get a kick out of.  That being said, this question is one of legal minutia.  It turns on the difference between two words and their strict formal definitions.

I was talking with a group services legal counsel to an undergrad university.  He deals with any issue students bring up -- provides free legal advice.  Unfortunately, I think his advice is worth what you pay for hearing it.

So I walk in to ask him a question about a delinquent tenant who is being evicted.  He owes back rent and utilities to both myself and another tenant.  The details of that aren't important.

I told the lawyer that we had an oral contract delineating that we would each take a different utility into our names to hedge liability against nonpayment.  The consequences of not having this contract/agreement in writing is obvious.  The legal methods of recovery for a contract that is dependent on significant elements not in writing are severely limited.


Question starts here:
The lawyer corrected me when I told him about this and told me I meant that we had a verbal contract not an oral contract.  I knew for a fact that this wasn't an exclusive case.  His statement bordered on complete fallacy as verbal can imply both written and spoken, while oral is not only a legitimate term but appropriate as it refers to contracts completely reliant on spoken word.  Verbal means "of having to do with words" in lay terms, in law terms the line is blurred.

There are "non-verbal, non-oral contracts" (vis a vis implied warranty) and they make the proper distinction between oral and verbal, they are not synonyms.  My question is, why, even though verbal can connote both written, partially written, and unwritten contracts that I would be corrected for saying oral contract which is synonymous with parol contract!  I know judges and lawyers have tended to use verbal more freely than that.

To make the distinction completely clear, what do you call an oral contract that is non-verbal?  If they were synonyms this would make that statement oxymoronic (logically what is, but is not) but it isn't oxymoronic, you just can't have an oral contract without words.  Syllogistically, all oral contracts are verbal contracts, but not all verbal contracts are oral contracts. However, a verbal contract that is non-oral makes perfect sense!  It is a written contract!  Hence, verbal contracts and oral contracts do not explicitly mean the same thing.

What is the community's feeling on this one?

starter

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Re: Legal "verbal" contract minutia question
« Reply #1 on: March 06, 2006, 07:20:54 PM »
I wouldn't get too caught up on the distinction.  There are only two kinds of contracts - express and implied.  It sounds like you have what is called a contract implied in fact.  These types of contracts are based on an agreement between the parties but usually lack a formal agreement in writing.

majorporcupine

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Re: Legal "verbal" contract minutia question
« Reply #2 on: March 06, 2006, 09:47:52 PM »
Right--the distinction is really between express and implied, not verbal, oral, written, etc.

fallofftheworld

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Re: Legal "verbal" contract minutia question
« Reply #3 on: March 08, 2006, 12:55:17 AM »
Maybe I'm not making myself clear, I understand the applications between types of contract differ only between express and implied but there is the fact that different labels are applied to a contract to describe the nature of it.  I did title the subject "contract minutia question."  Courts render decisions that include statements that refer to the qualitative label upon a contract, they will sometimes refer to a contract as: verbal, oral or written when discussing the express contract.

The Words and Phrases permanent edition mentions, under Verbal Contract, a court decision saying "There is no substantive difference between a written contract and a verbal contract; except one is on paper and the other is not" (I took some liberty with that as I'm going off of memory)

I read that and I understand there is no duty or remedial difference between a written and verbal contract but I'm talking about how a lawyer told me I was WRONG, incorrect, when I referred to a contract as an oral contract.

I don't mean to call you all wrong on this but you are.

You cannot have a binding oral contract for real estate transactions, or for that matter an oral contract that exceeds a certain monetary value.  You must have a written contract for those agreements exceeding the statutory ceiling for an oral contract.  The UCC has specific codes regarding oral contracts under the Statute of Frauds. 

You guys are looking at it on the wrong level.  Oral and written contracts are both express contracts and for type of REMEDY that is all of what matters.  However, the EASE of attaining the intended remedy depends on whether you are capable of substantiating the contract to the level required by any given court.  A written contract is obvious instantiation of a duty by the parties to perform.  An oral contract must have the significant crux of it substantiated by overt action or in writing or the contract cannot stand because you cannot prove duty especially if the other person tells the it never happened and that you are lying.

It is those differences to which I was referring.

fallofftheworld

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Re: Legal "verbal" contract minutia question
« Reply #4 on: March 08, 2006, 09:26:20 AM »
http://www.expertlaw.com/library/business/statute_of_frauds.html
"[1] Sometimes the phrase "verbal contract" is used to describe an unwritten or "oral" contract. As one meaning of "verbal" is "in words", in order to avoid any ambiguity it is usually best ot refer to unwritten contracts as "oral contracts"."

http://www.west.net/~smith/frauds.htm
"A partial list of contracts that are within the Statute of Frauds includes; promises to answer for the debt or duty of another, contracts not to be performed within one year from the making thereof, contracts to sell any interest in real property, contracts not to be performed within the lifetime of the promisor and the provisions of UCC 2-201 (contracts for the sale of goods for the price of $500 or more)."

"Even in the absence of a sufficient memorandum of the existence of an oral contract, such a contract can be enforced where one of the parties admits the existence of a valid oral contract, where the oral promise has been partially performed, or under principles of estoppel. "

This is all I'm talking about.  There is a lot of conflicting evidence regarding the popularly used terminology and the nuance of using one form over the other (verbal or oral) for deliniation.

Ergo, if I was to tell you I had an oral contract to sell my house, you can immediately determin it would be invalid and unenforceable.  On the otherhand, if I was to tell you I had made a verbal contract to sell my home, you could not just write off my statement as unenforceable because the terminology can imply both a written or spoken or combination of the two.

jimmyjohn

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Re: Legal "verbal" contract minutia question
« Reply #5 on: March 08, 2006, 10:50:45 PM »
Since you know so much about this subject why did you bother to ask here?

You also can't have a binding verbal contract for the sale of real estate either.  Your SOF example doesn't work. If you're going to sell your house, your contract isn't enforceable until it's on paper. It doesn't matter how many verbal contracts or promises you make (unless you want to get some kind of promissory estoppel).  Telling people you have a contract because it is in writing does not create a verbal contract.  Look, verbal contracts are just that, they are verbal contracts; they are not written.  There is probably very little substantive difference in a verbal contract and an oral contract.   A court isn't going to look at the difference between a "verbal/oral" whatever you want to call it when determining a remedy unless the case implicates the SOF.  In that case, there is no K if you have a verbal OR oral contract. 

Go pick the bone with your lawyer and quit being such a little female dog on here.

slacker

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Re: Legal "verbal" contract minutia question
« Reply #6 on: March 09, 2006, 08:35:34 AM »
I think if you try to hold court opinions to this level scrutiny over the distinction you'll be sadly disillusioned in a very short period of time. I have no doubt the two terms get used interchangeably.

That said, I agree with those who've said you have an oral agreement. I also agree with those who ask if you know so much, why did you post this? It might be worth discussing a term in minutia were there something to discuss. Telling everyone "you're wrong" is not a discussion.

fallofftheworld

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Re: Legal "verbal" contract minutia question
« Reply #7 on: March 09, 2006, 11:38:24 AM »
Since you know so much about this subject why did you bother to ask here?

You also can't have a binding verbal contract for the sale of real estate either.  Your SOF example doesn't work. If you're going to sell your house, your contract isn't enforceable until it's on paper. It doesn't matter how many verbal contracts or promises you make (unless you want to get some kind of promissory estoppel).  Telling people you have a contract because it is in writing does not create a verbal contract.  Look, verbal contracts are just that, they are verbal contracts; they are not written.  There is probably very little substantive difference in a verbal contract and an oral contract.   A court isn't going to look at the difference between a "verbal/oral" whatever you want to call it when determining a remedy unless the case implicates the SOF.  In that case, there is no K if you have a verbal OR oral contract. 

Go pick the bone with your lawyer and quit being such a little female dog on here.

Jimmyjohn, you should be embarassed because you didn't actually read anything I wrote, that much is entirely obvious.  I don't know everything about the subject, don't be so cavalier.  I am insulted that you call me a "little female dog" when your entire post is entirely not only inherently idiotic but each and every thing you've said was already said by me -- you aren't correcting anything, you're restating what I said and then telling me I'm wrong.  Why don't you grow up instead of attempting to attack me personally?  You just dived into a pool not realizing I had already emptied it of water.


Reading is fundamental.


You write:

"You also can't have a binding verbal contract for the sale of real estate either."

I wrote in previous posts:

"You cannot have a binding oral contract for real estate transactions, or for that matter an oral contract that exceeds a certain monetary value.  You must have a written contract for those agreements exceeding the statutory ceiling for an oral contract.  The UCC has specific codes regarding oral contracts under the Statute of Frauds. "

"Ergo, if I was to tell you I had an oral contract to sell my house, you can immediately determine it would be invalid and unenforceable."

You write:
"There is probably very little substantive difference in a verbal contract and an oral contract."

What you wrote is a truism, don't feel proud.  On a similar avenue, I wrote a paraphrased a usage by Words and Phrases under the heading "Verbal Contracts."

"There is no substantive difference between a written contract and a verbal contract; except one is on paper and the other is not" (I took some liberty with that as I'm going off of memory)"




When you write:
"Look, verbal contracts are just that, they are verbal contracts; they are not written."

I hate to tell you this especially if you speak English as a first language and consider yourself intelligent, written contracts are still verbal contracts.  The definition of "verbal" is not limited to spoken word, just "of words, or loosely, of spoken word"  Words can be spoken or written and are still words and verbal regardless of what form they take.  Something non-verbal would be grunts, squeals and pictures depicting words or situations.  Something non-verbal isn't something written.  LEARN ENGLISH.  If you disagree with me you can prove it for yourself with any of these popular resources: Black's Law Dictionary and West's Encyclopedia of American Law or for quick reference, head to wikipedia's Contract section.  The resources of the Law Library are there to help you not seem completely asinine.

When you write:
"A court isn't going to look at the difference between a "verbal/oral" whatever you want to call it when determining a remedy unless the case implicates the SOF"

I had already written above:

"Oral and written contracts are both express contracts and for type of REMEDY that is all of what matters.  However, the EASE of attaining the intended remedy depends on whether you are capable of substantiating the contract to the level required by any given court.A written contract is obvious instantiation of a duty by the parties to perform.  An oral contract must have the significant crux of it substantiated by overt action or in writing or the contract cannot stand because you cannot prove duty especially if the other person tells the it never happened and that you are lying."


Finally, please provide any evidence you can WHY you thought this:
"Telling people you have a contract because it is in writing does not create a verbal contract."

That is by far the stupidest comment I have ever read on these boards!


I'm done with you jimmyjohn unless you have anything credible to say in your defence.


Slacker -- trust me I understand that.  I completely understand that this level of scrutiny will not serve any real courtroom purpose.  You are very right, there are many people who use the terms interchangeably.  They are often used indiscriminatly and in most situations there is no qualitative difference in application -- they can, in circumscribed situations be synonymous.  However, as my example stated in the last post: verbal is an ambiguous label for a contract.  The only thing we can determine of the nature of any contract by anyone saying it is verbal and different than written is that some portion greater than zero percent is not in writing, you CANNOT conclude that it is 100% spoken, oral, parol and that there is no writing if someone just tells you it is verbal -- you can infer and you can inductively assume, like Jimmyjohn did.  That is the major difference between every nickle and dime lawyer out there and the legal scholars, very few people care.  I am by no means even close to a legal scholar but at least I care about getting it right.  Am I entirely correct?  Probably not, and probably not by a long shot.  However, if I am asking a question and someone cannot answer it, a petty "why are you bothering to even ask it?" says, between the lines, "I can't answer you so I'm just going to complain." 

My question was and still is: I was told that I was WRONG, incorrect, for having said I had an oral contract.  Am I wrong and if so, why?

Conceivably, both starter and majorporcupine were answering on the level that regardless of me saying oral or verbal, it is either an express contract or implied contract.  If that was the case entirely in a nutshell, I wouldn't have been told I was incorrect.  Hence, there is obviously another, further, stage of analysis required. 

I was dissatisfied with the specificity of their answer and replied to ask for further analysis on a subjective level that would lead to any understanding of why I could conceivably be told I was wrong. 

Jimmyjohn has approached it with one sentence: "A court isn't going to look at the difference between a 'verbal/oral' whatever you want to call it."  While I am sure that is the truth, it is completely inapplicable to my problem.  Someone did look at the difference, the legal counsel I approached.  He told me it was different and that I  was incorrect in making my distinction.  Whether a court would look at the difference is not applicable to our current situation.  This is similar to you bringing evidence in court that is immaterial to your case.

jimmyjohn

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Re: Legal "verbal" contract minutia question
« Reply #8 on: March 09, 2006, 10:43:17 PM »
"Jimmyjohn has approached it with one sentence: "A court isn't going to look at the difference between a 'verbal/oral' whatever you want to call it."  While I am sure that is the truth, it is completely inapplicable to my problem.  Someone did look at the difference, the legal counsel I approached.  He told me it was different and that I  was incorrect in making my distinction.  Whether a court would look at the difference is not applicable to our current situation.  This is similar to you bringing evidence in court that is immaterial to your case."

Are you actually in need of legal advice?  Because this lawyer that you talked to isn't worth the paper that his JD is written on.  Maybe you can be cut some slack since you (and I) are a 1L.  But if you really think this "distinction" means anything other than a debate over semantics, you are going down the wrong path.  I don't really need to read anything you wrote because it doesn't make a d**mn bit of difference in the eyes of the law.  Either your contract is written or its oral, or else implied from the surroundings.  The contract you describe isn't a written contract, it's an oral contract, as you said originally.  If you can find me some precedent for a verbal/oral dichotomy I'll admit I am wrong.  Until then, you wasting your time with these ridiculous diatribes.

J D

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Re: Legal "verbal" contract minutia question
« Reply #9 on: March 10, 2006, 12:16:08 AM »
There might be some value in distinguishing contracts that are in spoken words from those that are neither spoken, nor written, nor in words (basically, implied contracts, a common example being a restaurant order; you don't write out or orally state a promise to pay for the food you're about to eat when you give your order to the waiter, but everyone understands that you are bound to pay for the food you order.  It's a contract that's implied from the context and the circumstances; nothing need be stated, it's already understood by everyone what's going on).  But I don't think the distinction is meaningful in most cases.  I think the most important distinctions are: 1) is it express or implied, and 2) if it is express, is it in written or oral/parol form.  It might be more helpful to separate the inquiry into two steps, like that, so nothing gets confused.
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