Key Takeaways

  • Most contracts do not have to be in writing to be enforceable, but some must be written under the Statute of Frauds.
  • Written contracts offer stronger legal protection, clearer terms, and easier enforcement than oral agreements.
  • Common examples of contracts that must be in writing include real estate transactions, contracts lasting over one year, marriage agreements, surety agreements, and sales of goods over $500.
  • Even when writing is not required, putting agreements in writing helps prevent misunderstandings and legal disputes.
  • Exceptions exist: partial performance, admissions in court, or reliance on a promise can sometimes make oral contracts enforceable.

Do all contracts have to be in writing? Typically, unless it is required by law, contracts do not have to be in writing to be legally acceptable.

Key Elements of a Contract

There are four main elements to a contract:

  1. Offer
  2. Acceptance
  3. Consideration
  4. Meeting of the minds

An offer is a promise of one party to another to complete or avoid a future act.

Acceptance consists of the offeree providing written, oral, or actionable acceptance of the offer. Acceptance can only be established if it is accepting the full offer and its terms.

Consideration is defined as pledging an asset or assets in exchange for the requirements given in an offer.

Meeting of the minds is noted when both parties to the contract acknowledge and comply to the requirements listed within it.

Furthermore, a contract can appear in a variety of ways:

  • A single written form
  • A series of forms
  • Handwritten
  • Conversation
  • Email
  • Website

Contract Writing Requirements

Although not all contracts are required to be in writing, there are some that must provide a written document.

Typically, the statute of frauds law provides a list of contract laws pertaining to writing requirements. These laws were established for the purpose of protecting parties from contract fraud using writing requirements.

Essentially, written contracts provide physical evidence, they are more reliable than oral or performance contracts; therefore, even if a contract is not required to be in writing, it is wise to do so. This makes it so that there is physical proof of the arrangement.

Understanding the Statute of Frauds

The primary source of law governing what contracts must be in writing is the Statute of Frauds, a legal principle dating back to 17th-century English law and now codified in every U.S. state. The statute’s purpose is to prevent fraud and misunderstandings by requiring certain types of agreements to be documented and signed.

While oral agreements are generally valid, courts often require written evidence for contracts that:

  • Involve significant obligations or high-value transactions
  • Are expected to last longer than one year
  • Concern real property or interests in land
  • Pertain to marriage, surety, or debt obligations

A contract covered by the Statute of Frauds that is not in writing may be unenforceable in court, even if all other contractual elements (offer, acceptance, consideration, and mutual assent) are present.

Contracts in Writing

The statute of frauds law requires that the following contracts are only valid if they are written and signed:

  • Sale and transfer contracts for land interest
  • Long-term contracts lasting more than one year
  • Contracts for product sales worth $500 or more
  • Contracts requiring repayment of debt by an executor or administrator of a will
  • Contracts promising a party's debt or responsibility to another party
  • Marital contracts such as a prenuptial agreement

When a contract is held under the writing requirements it should include the following:

  • List of the conditions and terms of the contract
  • Names of the parties involved
  • Declare the focus of the agreement, such as the type of good or service being offered

By providing a written contract, both parties should be able to prevent future arguments over the purpose and terms of the contract.

It is strongly recommended that an attorney be hired when establishing a contract. By doing so, both parties improve their chances of preventing any common mistakes made when writing a contract.

For businesses that use contracts regularly, it is recommended that they look over them every-so-often to ensure that the current law is still applicable and that no new problems have appeared.

Exceptions to the Writing Requirement

Even if a contract falls under the Statute of Frauds, courts may enforce an oral agreement in limited circumstances. Key exceptions include:

  • Partial Performance: If one party has already begun fulfilling their part of the agreement — such as making a payment, taking possession, or providing services — courts may enforce the contract.
  • Promissory Estoppel: If one party reasonably relied on a promise to their detriment, the court may enforce the agreement to prevent injustice.
  • Admission in Court: If a party admits under oath that a contract existed, the court may accept the oral agreement as valid evidence.
  • Specially Manufactured Goods: If goods were custom-made for a buyer and cannot be sold to others, an oral sales contract may be enforceable.

These exceptions highlight the complexity of contract enforcement and why written agreements remain the safest approach.

Common Contracts That Must Be Written

Understanding which agreements legally require writing is essential for businesses and individuals. Under the Statute of Frauds and the Uniform Commercial Code (UCC), the following contracts must be in writing to be enforceable:

  1. Real estate contracts – Any sale, lease (longer than one year), or transfer of property interests.
  2. Contracts exceeding one year – Agreements that, by their terms, cannot be performed within a year of signing.
  3. Surety agreements – Promises to pay another party’s debt.
  4. Marriage-related contracts – Prenuptial and postnuptial agreements must be written.
  5. Executor promises – Agreements in which an executor agrees to pay estate debts personally.
  6. Sale of goods over $500 – Required by the UCC for most commercial transactions.

Additionally, certain employment contracts, franchise agreements, and licensing deals may require written documentation under state statutes or industry regulations.

Writer of a Contract

A writer of a contract is usually required to be mentally stable and of legal age; however, most people do not know how to properly form a contract. Sometimes even a contract regarding a simple agreement can be quite complicated.

It is often suggested that a lawyer write, or at least review, a contract because legal knowledge is typically needed when forming a contract.

Failing to Abide by Contract Writing Requirements

As mentioned previously, any contract that is held under the statute of frauds must be written.

Failing to abide by the writing requirements listed could result in hardship on both groups involved. For instance, if a contract is taken to court and the parties did not abide by the writing requirements, the court may not view the contract as legally enforceable.

However, some states consider oral contracts enforceable, even if it has not followed the writing requirements. For example, if a contract has already been started or if one of the individuals or groups involved could be harmed without the contract, it might be considered enforceable.

Legal Risks of Non-Written Agreements

Failing to document a contract that legally requires writing can have serious consequences. The most significant risk is that the agreement may be declared unenforceable, leaving parties without legal remedies if a breach occurs. This can result in:

  • Loss of payment or property without legal recourse
  • Inability to prove terms or obligations in court
  • Prolonged litigation to establish the existence and scope of the agreement

Even for contracts not covered by the Statute of Frauds, relying solely on oral promises increases the risk of misinterpretation, memory disputes, and evidentiary challenges.

Lawyers and Contract Writing

A lawyer can be a great asset regarding the formation of a contract for the following reasons:

  • He or she can provide clarity concerning the requirements of the statute of frauds.
  • He or she can form a draft and provide a review of the final contract to ensure it will be enforceable by law.

Frequently Asked Questions

  1. What contracts must be in writing to be valid?
    Contracts involving real estate, agreements lasting more than a year, surety promises, marriage agreements, executor promises, and sales of goods over $500 typically must be written.
  2. Are oral contracts ever enforceable?
    Yes. Oral contracts can be valid if they meet basic contract requirements, but they may be harder to enforce. Exceptions to writing requirements include partial performance and promissory estoppel.
  3. What happens if a required written contract is oral?
    If a contract that must be in writing is only oral, a court may refuse to enforce it, leaving parties without legal remedies.
  4. Can emails or text messages count as written contracts?
    Yes. Digital communications can serve as written contracts if they include essential terms and demonstrate clear agreement between the parties.
  5. Should all contracts be in writing even if not required?
    It’s best practice. Written contracts reduce misunderstandings, provide clear terms, and offer strong legal protection.

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