This blog is part one of a three-part series about contracts. Part 1. What is a contract (implied/explicit)?; Part 2. Why should we contract?; Part 3. What should we include (a bare minimum) in our contracts?
Ready? Let’s dive into what makes a contract, and is it valid.
There are contracts in fact (written and executed) and implied contracts (those based on actions and course of conduct). However, not every contract is legally enforceable. For example, Dwight and Angela’s contract to have a baby (unless we are all in the Matrix and unplugged) or, more importantly, the alternative Angela presented during mediation for the couple to engage in “Intercourse to completion five individual times” agreement. You know, just in case you have been wondering about it for the past ten years, these both would be non-enforceable agreements. However, not all contracts are written down and signed by both parties.
Although most attorneys will tell you always to get a written contract, if you don’t have a written contract, it doesn’t exclude you from requiring someone to perform or someone expecting something of you. For example, you discuss with your neighbor that you would be willing to pay their son $2.00 to mow your lawn. Then you forget about it, and two weeks later, you come home to a freshly cut grass. When the neighbor’s son comes asking for his $2.00, you need to pay. I mean, pay him his $2.00 or risk him gathering up a bike gang of other lawnmowers to hunt you down at night. I am pretty sure Lane Meyer learned it was better to pay the $2.00, but I digress. The implied contract included all four elements of a written contract: 1. Offer (I will pay you if you mow my lawn); 2. Acceptance (I agree to your terms and will mow your lawn); 3. Consideration (each party needs to put in something- money, time, goods, or a payable note, and in this example, the boy mowed the lawn using his time and equipment); and 4. Compliance with law and public policy (there is no law prohibiting you from paying minors to mow your lawn).
A written contract also requires the same four elements. However, there are generally more specific terms and conditions to guide performance or lack of performance. A written contract’s acceptance is frequently simply the signature on the contract. Many written contracts are ones we never read and will probably never know the extent of our agreement. For example, the contract you sign when you start attending a gym or the contract you agree to when you download new software for your phone. These are called adhesion contracts and frequently are entirely one-sided. If you don’t sign the gym contract (without amendments), you will not get to use their equipment. They hold all the bargaining power, and you as the consumer have none. Most contracts are relatively simple and just a few pages. The loan agreement with your bank is a hundred pages (give or take a few) but still adheres to the four-part test: Part 1. The bank sets out terms for the loan of money for your property, 2. You agree to the terms, 3. The bank pays for the property, and 4. Public policy is in support of people owning homes.
And likely the craziest most detailed contract I can think of is the Roommate Agreement. I am pretty sure that Sheldon Cooper couldn’t have addressed every possible situation in the Roommate Agreement, but it seems like he was able to include all sorts of hypotheticals including what happens if they become Zombies, if either one of the roommates visits Cern, or what to do if body snatchers appear. The contract also includes various provisions that govern the use of the apartment- the temperature the thermostat is required to be set to, who gets to use the bathroom at what time, and what the process is when a roommate wishes to have an overnight guest. The roommate agreement also satisfies the 4 part test to whether a contract exists- 1. The offer to have Leonard as a roommate, 2. Acceptance including signatures by both parties to the Agreement, 3. Consideration of Leonard paying rent and living in the apartment, and 4. The argument of whether the Agreement violates public policy is anyone’s guess. However, people can agree to weird things-so, it likely would stand (and if Priya didn’t make the argument why should I??). Okay, just a few points that would be deemed to be either against public policy (killing people if you think they are zombies) or maybe outside the law (you can’t force another person to Switzerland with you), but most of the contract would be deemed sufficient.
Contracts are generally a flexible vehicle where parties can pretty much agree to anything. (Okay as discussed above you can’t contract to anything illegal or against public policy). Most of the time, any agreement between two adults will be enforceable if it meets all the basics elements of a contract. This is great because it provides a VERY flexible place to be creative with what governs your relationship and other parties.