Key Takeaways

  • The Statute of Frauds outlines specific types of contracts that must be in writing to be legally enforceable.
  • These include contracts related to land, marriage, long-term obligations, debt guarantees, and high-value goods.
  • Contracts involving estate executors, real estate agents, and non-compete clauses may also require written documentation in certain jurisdictions.
  • Written contracts reduce ambiguity and offer better legal protection compared to oral agreements.
  • Failure to document these contracts in writing can render them void or voidable, depending on the jurisdiction and circumstances.

What Contracts Must be in Writing to be Enforceable

What contracts must be in writing to be enforceable is a common question among anyone entering into a contract, whether it is a written or verbal contract. There are certain types of contracts that must be in writing in order for them to be valid and enforceable. Such writing requirements are generally contained in some contract laws known as the statute of frauds. These rules are in place to prevent contract fraud by requiring the agreement be in writing. The key reason for this is due to the fact that written contracts are more reliable than oral contracts.

Why the Statute of Frauds Requires Written Contracts

The Statute of Frauds is a legal doctrine that originated in 17th-century English law and remains in force across U.S. jurisdictions today. Its purpose is to prevent fraud and misunderstandings by requiring that certain agreements be memorialized in writing and signed by the parties involved. While oral agreements can be legally binding, the statute identifies specific contracts that are not enforceable unless written. This protects all parties by ensuring a clear record of terms and intentions.

Written contracts provide evidence in court, clarify obligations, and reduce the potential for disputes. In particular, they are essential where the stakes are high, the terms are complex, or performance extends over long durations.

Contracts Requiring Writing

The following types of contracts must be in writing in order for them to be enforceable. If these agreements are verbally made, the contract will be void or voidable:

  1. Sale or transfer of land
  2. Sale of goods costing more than $500
  3. Contracts that involve performance that can’t be finished within a one-year timeframe
  4. Contracts that will still be outstanding after one of the parties has passed away
  5. Marriage and other family law contracts, i.e., prenuptial, post-nuptial, child custody, alimony, etc.
  6. Surety contracts, which involve someone’s promise to repay the other party’s debt on his or her behalf

The above-mentioned contracts must identify the basic conditions and terms of the agreement, clearly indicate who the parties are and what other responsibilities they have, and also provide the subject matter of the agreement, i.e., sale of goods or services.

Sale or Transfer of Land

For the sale or transfer of land, this includes not only a contract regarding land, but also mineral rights, mortgage contracts, and other options to purchase property. Keep in mind that regarding leases, states have varying laws but often offer exceptions for a lease contract that is limited to less than one year.

Goods Costing More than $500

According to the Uniform Commercial Code (UCC), any sale of goods that cost more than $500 must be in writing. The only exceptions to this rule include those contracts for sales that were already accepted by the buyer, contracts in which partial payments were already made, and contracts to manufacture certain specialty goods.

Contracts for More than One Year

If the service(s) under the contract cannot be satisfied within a one-year timeframe, the contract must be written. But a contract with an indefinite duration doesn’t have to be in writing.

Contracts with Unlimited Duration

As previously noted, if the contract is indefinite, meaning that there is no end date, then it need not be in writing. However, if the contract is expected to outlive one or more of the parties involved in the contract, then it must be in writing in order for it to be enforceable.

Family Law Contracts

Most, if not all, family law contracts must be in writing. For example, a prenuptial or post-nuptial agreement will not be enforced if it is merely a verbal agreement. Similarly, child custody and alimony contracts are only valid and enforceable if they are in writing and signed by both parties.

Paying Someone Else’s Debt

If you are entering into a surety contract whereby you are promising to pay another’s debt, this agreement will need to be in writing. An example of this would be if a party is promising a creditor that it will pay the debtor’s outstanding debt. However, if the promise is made from the person promising to make payment to the actual debtor, that promise need not be in writing.

Additional Contracts Often Requiring Written Form

Beyond the commonly known categories, here are more contract types that typically need to be in writing under either the Statute of Frauds or other state-specific regulations:

  • Executor Contracts: Promises made by an estate executor to personally cover estate debts must be written to be enforceable.
  • Real Estate Agent Contracts: Agreements to pay a commission to a real estate broker or agent often require a signed writing, depending on state law.
  • Non-Compete and Confidentiality Agreements: While not universally required to be written, many states enforce these only if they are documented and signed.
  • Lease Agreements Over One Year: Though some short-term leases may be enforceable orally, leases longer than one year generally require written documentation.
  • Loan Agreements with High Value: If the loan amount exceeds a statutory threshold, written agreements are typically necessary to protect both lender and borrower.

Courts may recognize exceptions in cases of partial performance or promissory estoppel, but those are evaluated on a case-by-case basis.

Void vs. Voidable

If any one of the above contracts is not in writing, the agreement itself will be either void or voidable. Void means that the contract was never in existence. This means that the parties will walk away from the agreement as if it never existed in the first place. Voidable, however, means that the contract can be made void by either party wishing to no longer act under the contract. For example, if John and Sue engage in a verbal agreement for a child custody arrangement, and the court determines that the contract is voidable as opposed to void, then at any point in time, John or Sue can deem the verbal agreement void and walk away without breaching the contract.

Best Practices for Enforceable Written Contracts

To ensure your written contract is enforceable, it should include:

  • Names and signatures of all parties involved
  • A clear statement of consideration (what each party is providing or receiving)
  • Specific terms and obligations, including deadlines and payment amounts
  • Any conditions or contingencies that affect the agreement
  • Language demonstrating mutual agreement and intent to be bound

Courts typically look for these elements to confirm the legitimacy of the agreement. Also, always check local statutes, as states may impose additional writing requirements or formalities (e.g., notarization or witness signatures).

Frequently Asked Questions

1. What are the 5 types of contracts that must be in writing? Contracts involving the sale of land, goods over $500, marriage-related agreements, contracts lasting over one year, and suretyship (paying someone else’s debt) must be in writing.

2. Is a verbal contract ever legally enforceable? Yes, many verbal agreements are enforceable, but not if they fall under the Statute of Frauds or specific state rules requiring writing.

3. Does a contract need to be notarized to be enforceable? Not usually. A contract generally only needs signatures, but notarization can add credibility or be required for certain legal documents like real estate deeds.

4. What happens if a required written contract is only verbal? The contract may be deemed void or voidable. Courts may refuse to enforce it unless an exception like partial performance applies.

5. Can texts or emails count as a written contract? Yes, electronic communications can satisfy the writing requirement under the E-SIGN Act and UETA, if they contain the necessary contract elements and indicate agreement by both parties.

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