Is It Hard to Prove a Verbal Agreement?

Trying to prove a verbal agreement in court is hard but not impossible. To prove a verbal agreement, the court will examine evidence should as emails, text messages, invoices, receipts, and the parties’ conduct relating to the verbal agreement.

Brad Nakase, Attorney

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Verbal Agreement, Example

Jerry runs a carpentry business, and one of his most popular services is building treehouses for residential families. As a friendly, approachable individual, Jerry often agrees to projects in person, with a simple handshake. He does not like the formality of written contracts. One day, he meets with Bob, a customer in a nearby neighborhood. Bob would like Jerry to build a treehouse for his kids. Jerry tells Bob that the project sounds great, and that he will need to purchase the wood and tools ahead of time. They agree on the project start date, and Jerry goes ahead and spends over twenty thousand dollars on materials. The next week, Bob calls to cancel the project. Jerry informs him that they had a verbal agreement, which Bob denies. Having already spent a lot of money, Jerry wants to take Bob to court over violating their verbal agreement. But having little written evidence of their contract, Jerry wonders how hard it is to prove a verbal agreement in court.

What Is a Verbal Agreement?

A verbal agreement is a contract that is made through speech rather than being written down or physically signed. Depending on how they are formed, these agreements can be legally binding. A breach of verbal contract occurs when an involved party does not fulfill their part of the agreement. However, it can be difficult to prove breach of contract when the original agreement was formed verbally. This is because, typically, there is not much evidence available. As a result, arguments over the existence of a verbal contract can often turn into “he said, she said” scenarios. An enforceable oral contract, or agreement, is one that a court of law can impose if either party breaches a contract.

What Are the Basic Elements of a Contract?

There are four main elements of every contract that must be included in order for an agreement to be considered legitimate. Verbal, expressed, written, and implied contracts must all contain the following elements:

  • Offer
  • Acceptance
  • Intent
  • Consideration

The Offer

The offer element of a contract refers to one of the parties offering something in exchange for something else. For example, a café offers a sandwich in exchange for payment. Offers must be clear in order to make a contract valid. For example, let’s say a café is offering sandwiches with no prices listed on their menu. A customer might assume that they can create their own price or that the sandwiches are free.

The Acceptance

The acceptance element of a contract refers to one of the parties agreeing to the terms of the offer. For instance, let’s say a customer at the café hands the cashier $5 for a bacon and egg sandwich. By handing the cashier the money, the customer has officially accepted the offer. Just saying, “I want a sandwich. You pick, I don’t care,” does not qualify as acceptance. What of the cashier chooses a $6 dollar sandwich? This could create a contractual issue if the customer argues they did not agree to spend that much money. Again, just as the offer must be clear, so must the acceptance.

The Intent

The intent element of a contract refers to the fact that both parties meant to enter into an agreement. This means that both involved parties recognize and understand that they are effectively forming a legally binding contract. Another term for this is mutual assent or meeting of the minds. When one party is mentally handicapped or a minor, then mutual assent cannot be present. Under the law, minors are typically not considered able to fully comprehend the terms of a legal contract.

The Consideration

The consideration element of a contract is the service or good that is being traded between parties. If there is no consideration present, then there is a gift, not a transaction. For instance, if a café is giving out free sandwiches to firefighters on Fridays, this is considered a gift because the firefighters are not expected to pay for their lunch. When a customer, however, pays $5 for a bacon and egg sandwich and they receive a bacon and egg sandwich, then consideration has been exchanged. The contract has been fulfilled. Consideration, therefore, has to be something of value.

Are Verbal Agreements Legally Binding?

Many types of verbal agreements are considered to be legally binding, in the same way that a written contract is considered to be valid in a court of law. If a certain type of verbal contract is valid, then it is enforceable, even if there is no written evidence. However, there are some special issues that can come up with verbal agreements. These complications include the following:

  • Enforceability
  • Proof that a contract exists
  • Statute of frauds

How Are Verbal Contracts Enforced?

For a verbal agreement to be legally enforceable, a court must be able to see the basic terms and conditions of the original contract. When there is no written evidence, a court must rely instead on the verbal testimonies of the involved parties.

If the parties disagree over the terms of the contract, it can be challenging for a court to accurately assess whether there was a breach of contract.

The burden of proof for enforcing a verbal contract rests with the wronged party who is attempting to enforce the terms of the contract on the other party.

How Are Verbal Contracted Proven?

Not only must the injured party prove that the terms of a contract were broken, but they must also prove to the court that the verbal agreement existed at all. In order to prove the existence of a verbal contract, a party must provide evidence of some of the contract’s terms. If part of the agreement was already performed, it would be helpful to provide evidence of that performance. Witnesses may also be useful in proving the existence of a contract.

What Is the Statute of Frauds?

Under California law, certain kinds of contracts must be written down in order to be legally enforceable. This requirement is called the statute of frauds. Contracts that must be in writing include the following:

  • Marriage
  • Land ownership
  • Long-term
  • Wills and trusts
  • Real estate

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