Despite the commonly held view that the world is getting more litigious, the reality is that a significant number of agreements and contracts between people are still only reached verbally.
Often, those agreements are about some very important things or involve large sums of money.
The unwillingness to document an agreement seems to come from people feeling that “having it in writing” demonstrates a mis-trust in the other person or that it will lead to an awkward conversation. That is particularly true amongst family members or close friends.
Why should you get it in writing?
The number one symptom that would reveal why you should get the agreement in writing is that the discussion about getting it in writing is too unpleasant to have. It will be much more unpleasant and destructive to the relationship to argue about what the agreement was later!
Obviously, getting it in writing is sometimes also a legal necessity. For instance, it is not possible to sell land without a written contract. Consumer protection law also sets out that some contracts, such as building contracts, insurance contracts and so forth, must be in writing.
But all too often, people still rely on a handshake or a promise. If there is no dispute later, then basically, you got away with it. However, not having it writing means that if a dispute does arise, you will need to prove not only what the terms of the agreement were but also that they have been breached.
"All too often, people still rely on a handshake or a promise."
That is sometimes extremely difficult to do, and all the court will have to go on is the history of what the parties have already done under the agreement and what both parties have to say about it what still needs to be done or should have been done instead. Needless to say, agreement between the parties by this point is rare!
There are other contracts that operate differently, depending on whether they are verbal or in writing. For example, a loan agreement in writing may allow for the registration of security of the assets of the borrower, such as a mortgage, or set out repayment installments over time. A verbal loan agreement gives no such security, and the lender can usually demand repayment of the entire loan immediately or at any point whilst the loan is outstanding. Of course, in order to do so, the lender first has to prove that the loan was made in the first place.
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