Sample Critical Thinking Paper on Oral Contracts

Contracts either can be in written form or made orally. Despite their different forms, all types of contracts still follow the same three elements. These elements include an offer, acceptance, and consideration (Chirelstein, 2013). When all these elements are fulfilled in any contract whether written or oral they become legally binding. This implies that when such contracts have been breached, the required damages are supposed to pay off in full by the party that violated the contract.

 Oral contract is a spoken agreement of terms and condition between parties. In oral contracts, the contract itself is orally spoken but there may be physical or partially written evidence that the agreement was struck. Evidence may include written letters, memos, and emails sent to both parties. Oral contract is oftenly mistake for verbal contract but time to sue for a breach sometimes is shorter in oral contract (Emanuel, 2012). Witness are also preferred to be there to assure the agreement took place if any of the parties does not hold up to their side of the agreement.

Oral contracts are used to sale properties with less value like exchange of an old refrigerator with a laundry machine. The concept is only applicable if the property being sold does not fall under the statute of frauds, which generally is a law in the United States that requires same contracts to be in written form. The Statute of Frauds exclusively deals with written contracts (Emanuel, (2012). Under this statute, several different forms of written contracts can be enforced. They include contracts that deal with the lease of and sale of lands. They also deal with contracts that require payment of individual debts or bilateral contracts that are enforceable within one year. Other forms of contracts that fall in these forms of contract are those that involve execution of an individual will after their death. Therefore, it will be correct to imply that contracts that do not fall under the above statute can be legally binding if they are found orally binding. The major problem that exists with oral contracts is determining their existence. Apart from the Statute of Frauds, other contracts that cannot be orally made include those that deal with purchase of goods that are above $500 and those that deal with issues that relate to marital settlements. These forms of contracts are difficult to prove and therefore they are written to provide evidence that there were agreements made between different parties.

Enforcing Oral Contracts

Oral contracts can be enforced if there is enough evidence to support the agreement. However, the court will not enforce the contract if it is a statute of fraud and falls in same situations as transfer of properties at the owner’s death, agreement to pay another’s debt and contracts that last longer than a party’s life. Though the statute prevents same situations from being enforced, there are still same cases where the oral contract can be enforced under same conditions. (Chirelstein, 2013). The condition might be that, one party may partly comply with its terms or the plaintiff relied on the defendants promise and some detriment as a result.

It is also difficult to enforce the oral contract since in some cases both parties making it hard to differentiate between facts and false evidence of the agreement-taking place making it hard to enforce the contract may remember the facts differently. The agreement cannot be enforced if in oral contract differs with  partial written agreement hence making them two different agreements. The court reviews the facts but generally views written facts that hold up more truth and unshakeably concludes the oral contracts as being false.

Oral concept can be enforced if there is the terms and conditions that formed the agreement that turns it from being just a mere promise or saying to a legally binding contract. The oral word cannot be believed hence the need of third parties and witnesses to support his or her claim to enforce the agreement in a court of law. Furthermore, documentary evidence such as receipts, memos, emails, can be used to prove that the agreement took place.

An oral contract of an illegal activity or that prohibited by the law cannot be enforced even if it sticks out all it-required properties from evidence on paper and witness testimony (Hunter, 2015).Oral contract can be enforced if the both parties’ lawyers met and informally or partially formally cleared up all the conditions and terms of the agreement and make sure each party holds up their part. This can also be used as evidence if the agreement is breached.

Implied Contracts

Implied contract is an agreement created by the actions of the parties involved. The agreement is neither written nor spoken. In this contract, there is no verbal or written record of agreement, terms, and conditions set. Implied contract can be in form of implied warranty. Implied warranty is given by law, which means that when a product is purchased, it is guaranteed to work properly according to its specified purpose. In this contract, it is implied that both parties are working under the same agreement.

Implied contract is not a written contract, rather the law creates an obligation to ensure fairness on both parties’ sides under different circumstances. There are two types of implied contracts, contracts implied at law and contracts implied in fact.

Contracts implied at law are the law to perform a certain duty even against the persons will impose contracts (Emanuel, 2012).In this circumstance, it is seen that without the contract the other person will be treated unfairly. The contract is a quasi-contract, where the law imposes an obligation to a party or someone when the party did not intend to get into the contract or make any promise to perform any activity (Hunter, 2015). However, the action would benefit the other party and treat them fairly.

Contract implied in fact creates an obligation based on the facts of a given situation. In this contract, if the circumstances suggest that the parties had an agreement or understanding, which brought about an obligation, the law will find that they had an implied contract.

In implied contract, it may be difficult to prove the existence and terms of the contract in case of a dispute between two parties (Hunter, 2015). This is because the law only obliges one to do a certain activity by a party, not enquiring whether they wanted to be in the contract or not. Hence not caring for the one side of the parties’ interest in the contract. In some cases, in law contracts involving real estate, may not be created on an implied in fact basis.

 

References

Chirelstein, M. (2013). Chirelstein’s Concepts and Case Analysis in the Law of Contracts, 7th         (Concepts and Insights Series). West Academic.

Emanuel, S. (2012).Contracts. New York: Wolters Kluwer Law & Business.

Hunter, H. (2015). Modern Law of Contracts.