Why Oral Contracts Aren’t Worth The Paper They’re Written On

All you need to say is simply ‘Yes’ or ‘No’; anything beyond this comes from the evil one. (Matthew 5:37.)

Oral v. Verbal

There’s a good reason oral contracts generally aren’t worth the paper they’re written on. It’s because they’re not written at all, on paper or otherwise. Then again, with voice to text software available perhaps writing orally is becoming common. One day it might be as common as writing verbally. But oral and verbal are not identical:

  • Oral – of or pertaining to the mouth.
  • Verbal – of or pertaining to words.

An oral contract, then, is one you say out loud and a verbal contract is one you make with words. Oral contracts and written contracts are usually made with words which means both can be verbal contracts.

“Why ‘usually’?” you might ask. Because a contract is an agreement and agreements can be made with grunts and pictograms as well as with words, and they can be made with and without writing. In fact, we come to agreements with people all the time without bothering to write it down.

“I’ll get lunch today. You can pick up the tab next time.”

“OK.”

Or it could be an implied contract without any words at all. Imagine two kids at the lunch table at school. One pulls out a tuna sandwich, and holds it up for her friend because she know he likes tuna. He pulls out a package of string cheese. They swap without saying a word. The contract is complete.

Some things,though, are so important we write them down. After all, when’s the last time you paid a premium on a new insurance policy without getting the policy terms in writing?

The reason we’ve developed a body of law on contracts over the millennia  is that sometimes people won’t follow through on their promises. Today, both oral and written agreements can be enforced in court (although certain types of agreements are considered so important that writing is required).

Yes and No

The most famous contract in the Bible is the covenant between God and his people (“covenant” being a legal term of art from the law of contracts), delivered to Israel when God gave Moses the two tablets with the Ten Commandments on them.*

Centuries later, Jesus spoke of agreements and promises too. He didn’t write down a set of promises but rather gave a simple guideline for making agreements:

All you need to say is simply ‘Yes’ or ‘No’; anything beyond this comes from the evil one.(Matthew 5:37.)

I don’t think Jesus was saying you can’t elaborate on what the promise or agreement is about. You should make clear what you are saying “yes” or “no” to. But when it comes to your trustworthiness, it doesn’t add anything to say “I really promise … may I be struck by lightning … on my grandmother’s grave” or anything else. If a simple yes or no won’t work, nothing you say can make up for it.

Which makes me smile a bit when I think of people in the courtroom. Prospective jurors, for example, take an oath to answer questions truthfully as part of the jury selection process. Sometimes one will start to answer an attorney’s question with the phrase, “To be honest with you …”.

I want to interject, “I hope you’re being honest. You just took an oath.” But I refrain (usually) because I know what they mean is that they are being candid, not that they were lying before but now chose to come up with an honest response to a question.

You might think the jurors’ oath is taking things to the level Jesus said was inappropriate, that having someone swear to tell the truth under penalty of perjury must be “from the evil one.”

Perhaps, but it’s important to remember that Jesus was speaking in the Sermon on the Mount to fellow Jews, people who would be familiar with the Old Testament requirements for oath taking and with all the traditions that had arisen since Moses brought the laws down from Mount Sinai. He was telling them to get back to basics, to what God commanded and not what the religious leaders had added to it.

Also, the translation of Matthew 5:37 could also be read as “anything beyond this is from evil.” With that reading, it is easy to see why taking an oath under penalty of perjury in a secular courtroom is important. We live in a fallen world and that oath is a safeguard against the evil of lying on the witness stand.

Words and actions both can benefit from remembering that. People count on you so give them something to count on. Let your yes be yes and your no be no.

That is not from evil but from the lips of God himself, Jesus.

***

*Why two tablets? It’s not because the commandments wouldn’t fit on one. Rather, back then just as now usually a contract was written out twice so that each side kept a copy. Moses carried both sets, one he carried for Israel and the other for God as his representative to the people.

***

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14 Responses to Why Oral Contracts Aren’t Worth The Paper They’re Written On

  1. Dee Parsons says:

    Tim
    I recently read an article by a lawyer discussing church membership contracts. He said that an unsigned contract/covenant was still enforceable if you can get the person to verbally agree to it. One local church, after membership pitched a fit (probably after reading one of my posts) and were refusing to sign it, had the leaders ask them to stand up and verbally agree to the contract.

    I thought that you might find that interesting in light of this post.

    • Tim says:

      The law firm I worked at before getting on the bench had a motto: “A promise is better than a contract.” Contracts are legally enforceable, while promises might not find enforcement in a courtroom but they carry moral weight. I’m not sure from your description whether those leaders were asking for a promise or were attempting to create a contractual relationship.

      In law school we were taught that contracts become enforceable once there has been an offer, an acceptance of the offer and consideration (payment or other thing of value) given for the offer. So if I offer to bake you some cookies for a dollar and require half the money before I start baking and the other half on delivery, you can say you’ll accept or reject my offer. If you accept but don’t pay, we don’t have a contract. If you accept and then pay me half the money, we have an offer, an acceptance and consideration, so we have a contract. I am now obligated to bake the cookies. You are obligated to pay me the other half when I deliver the cookies. If I don’t bake the cookies, you can sue me for the initial payment. If I do bake the cookies and deliver them to you but you refuse to pay the balance, I can sue you for the money.

      This cookie hypothetical is straightforward, but what constitutes an offer, an acceptance and consideration takes many forms depending on what goods, services or relationship you are dealing with. I’ve never dealt with a church covenant, but I’d be interested to see what the courts that have handled such suits thought of the terms of the offer, the mode of acceptance, and what constituted the consideration.

      As for how this plays out in a particular church, that would depend on what state’s law governs the case. Some states allow contracts on matters that other states don’t, and what is required for consideration might vary as well. Anyone wanting to know about a particular contract should always get legal advice from a licensed attorney. I don’t have a law license any longer, so I’m always careful to remind people that I do not intend anything I say to be taken as legal advice anyone should follow. (See The Day I Got Disbarred for more on how I stopped being an attorney.)

  2. What’s that one in Deuteronomy? Something like if a brother-in-law fails to take care of his dead brother’s wife, he shall be deemed to have broken a contract and shall, therein and thenceforth be known forever as (duh duh dunnnn) The Man Without Sandals. Which reminds me, I was going to write a blog post on the weird bits of the bible. Just for fun.

    • Tim says:

      The passage talks of the duty of the surviving brother to the deceased brother, but I read it as a familial duty rather than a contract duty. The Family of the Unsandaled (Deuteronomy 25:10) must have sounded more ominous to folks back then than it does now.

      There’s another passage where a sandal signified a binding agreement, though. Remember Boaz taking the necessary steps to care for Ruth? (Ruth 4.) A sandal passed hands when the cousins agreed who would be the kinsmen redeemer.

  3. Laura Droege says:

    I enjoyed reading about this. A few days ago, I had explain what “perjury” is to my daughters. Then yesterday, my husband and I had to explain who a “defendant” and the “defense” are in a court case. I’m not sure why we’re talking about legal terms to a 12 and 7 year old! But since we’d read To Kill a Mockingbird with the 7 year old recently, the story was a great way to explain the terms: Tom Robinson was the defendant, Atticus was his defense, and Mayella and her father committed perjury because they lied under oath. I think that made it stick in her head a little better than if I’d tried to explain it without a familiar story; it definitely stuck in her head that lying is wrong, but sometimes in our fallen world, people lie and, sadly, other people pay the price for it.

  4. Jeannie says:

    This is really interesting, Tim; I’ve learned a lot from your post and from all the comments and replies.

    A friend of mine was married to (and later divorced from) a man who was very untrustworthy. If he reneged on a promise, he would make an excuse to the effect that he “owned” the promise, since he was the one who had made it; therefore the person he’d promised to (in this case, his wife) had no control over it. How could you ever have a relationship with a person like that?

  5. joepote01 says:

    Good post! I especially like your take on “anything beyond this is from evil.”

    This post reminded me of one I wrote a while back about Jesus ratifying the Abrahamic covenant. You might enjoy it as well: http://josephjpote.com/2014/09/covenant-seed/

  6. I’d rather an oral contract upheld than a paper contract, expense-incurred, unsigned.

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