e-Claire

Here's a Hypothetical Question for Ya

I was just wondering, hypothetically, what avenues of recourse a person might have available when an oral contract has been breeched. Anyone willing to give some tips and pointers on this hypothetical situation and help me win one of those "what if..." discussions? [My email is on the sidebar, if you prefer.]

1. There really isn’t anything complicated about this one, for purposes of “what if” discussions, at any rate:  the simple answer is, an oral contract is a contract in the State of California, so you can sue on it, and the way you evaluate it is just like any other contract action:  is it worth the trouble to recover—particularly taking into account that you can never be sure of recovering even if you are able to get a judgment.  This is a complicated area, in which a lawyer’s experience with what strategies work is invaluable, and you should take counsel if there is any doubt in your mind.

   Is that what you were asking for?

   Posted by  on  10/26/03  at  07:14 AM

2. It just occurred to me to add that there are no special qualifications an “oral contract” must meet that any other contract must meet. 

   Where this kind of a question gets complicated is if you are holding an asset of the other party and want to seize that asset.  At this point, it can become [i] very [i] hairy indeed, and I would not even contemplate it without advice of counsel.

   Posted by  on  10/26/03  at  07:16 AM

3. You’d have an actual contract, if you lived in Europe, specifically Germany.
   In the United States, you just have to look at the Terry Schiavo case to see that without proper paperwork, legal process to prove an unwritten point can be a nightmare.

   Posted by Pietro  on  10/27/03  at  05:18 AM

4. Some contracts are required to be in writing to be enforceable.  Others can be oral.  On those, you can file an action in court and upon proof you can get a judgment.  It is a bit more difficult to prove the terms of an oral contract.

   Depending on the amount at issue, you may be able to go to small claims court.  For anything other than that, you will need to contact a litigation lawyer.

   There are Judicial Counsel forms for contract actions, so the pleading stage should not be expensive.  The expense starts in discovery - depositions and interrogatories.  Trials are quite expensive.  So, the amount at issue needs to be significant to justify the expense.  Also, after you obtain a judgment you will need to enforce it - so you need to make sure that the opponent has a source of wealth to reach before embarking on an expensive process.

   You probably do not have an attorneys’ fees provision so the fee to you lawyer is just money gone.

   Posted by Breaker  on  10/27/03  at  12:25 PM

5. Thanks for the help, y’all.

   It seems that, as usual, the legal system is just too complex and unwieldy to be of any practical use. 

   I can’t believe I argued this hypothesis—must’ve been the pizza fumes!

   Posted by Claire  on  10/28/03  at  08:06 AM

<< Back to main