Articles

Get It in Writing!

Too many lawsuits arise out of the parties' conflicting perceptions about the terms of their agreement. Many times, this type of conflict can be avoided by putting the agreement into writing at the beginning. Whether you are selling or buying a car, having your house painted, renting an apartment, or beginning a business venture with another person, you can protect yourself by writing out the terms and having the writing signed by anyone against whom you would like to enforce the agreement in the future.

Putting the agreement into writing captures the agreement as you intended it to be. After some time passes, you and the other parties may remember your negotiations differently. It is much easier to refer back to a written agreement than it is to argue about whose recollection is correct. In addition, the act of writing out the terms and signing the paper forces you and the others to pay closer attention to the negotiations. It will also confirm that everyone is on the same track at the time the agreement is entered.

It is also important to know that while some oral agreements are enforceable in court, Indiana law requires that other agreements be in writing in order to be enforceable. The following agreements must be in writing or a court will not enforce them against a party who fails to perform:

1. Agreements for the sale of land;

2. Agreements to guarantee or assume the debt of another or to indemnify another;

3. Agreements for the sale of goods over $500.00;

4. Agreements that cannot be performed in less than one year;

5. Agreements involving a promise made in exchange for marriage;

6. A promise or warranty of a cure relating to medical care; and

7. A promise of an executor or administrator to pay damages out of his/her own estate.

These agreements must be signed by the person against whom you wish to enforce the agreement. One exception to Indiana's requirement is a lease, which does not have to be in writing unless it exceeds three years.

Remember when you enter into a written agreement that terms you may have agreed to orally but failed to include in the writing are usually not considered part of the agreement and are not enforceable. Make sure that each term you have negotiated is included in the writing. Also make sure that if your agreement is based on any other document, you refer to that document in your written agreement and make it part of the agreement. When you are signing an agreement that someone else has prepared, it is important that you read it carefully. You will be held to what you sign, not to what was said prior to signing.

If a dispute ends up in court and the agreement contains any ambiguities, the court will construe the agreement most strongly against the person who wrote it. Therefore, if you are the one writing it, make sure that you state the terms clearly so that they say exactly what you mean them to say.

Whether your agreement is required to be in writing or not, your interests will be better protected with a written agreement than an oral agreement. With a writing, you will know that everyone has reached a mutual understanding and conflicts about the substance of the agreement will be less likely to arise. If things do go sour, you will have the documentation you need to support your position. §