法律英语：76 What Makes a Contract Valid?

Hello, and welcome to Legal Lad’s Quick and Dirty Tips for a More Lawful¹ Life. I’m your host, Adam Freedman.

And now, your daily dose of legalese: This podcast does not create an attorney-client relationship with any listener. In other words, although I am a lawyer, I’m not your lawyer. In fact, we barely know each other. If you need personalized legal advice, contact an attorney in your community.Today’s episode: What makes a contract valid²?

Confusion Over Contracts

Looking over my correspondence, I get the feeling that some people are a little confused about contracts. Pat from Alberta writes:

I work at a hardware store, and as part of our business we rent assorted³ tools. My boss mentioned to me that a rental⁴ contract is not valid unless both parties are provided with a copy, and that the agreement must be signed, in pen, in blue or black ink.   Does this hold true? Can a contract’s validity hinge on the form of the contract, or the manner in which it is signed?

Meanwhile, Lou from Florissant, MO asks me to “explain the differences between a Contract and a Letter Agreement (or other type of agreement), and when to use each.” Lou goes on to ask whether there is “any disadvantage to using plain English in a contract,” rather than traditional “legalese.”

Great questions, Pat and Lou.   The quick answer is: you guys are making this way more complicated than it needs to be -- most contracts don’t even need to be in writing, much less signed in blue ink. And, as I’ll explain, even when contracts are in writing, you can skip the legalese without making your contract any less binding⁵.

Signed, Sealed, Delivered?

The questions posed by Pat and Lou reflect a common misconception that contracts have to be printed in a certain format⁶ or written in a highly legalistic style in order to hold up in court. Generally, that just isn’t the case.

Now, Pat is from Alberta, and I can’t claim to be an expert in the law of that Canadian province. It’s possible that in Alberta, a contract must be written on a parchment scroll⁷, signed with a feather quill⁸ pen, and sealed with wax. But I doubt it.

Three Parts to a Contract

The basic law of contract is very similar in all common law countries – that is, countries that derive⁹ their legal system from England. And that includes all the US states (except Louisiana) and all Canadian provinces, except Quebec. Under the common law, you need three things to form a valid contract:

An offer by one person,
Acceptance by another person, and
A mutual¹⁰ exchange of value between the parties.
That can all be done by word of mouth; the law does not usually require that a contract be in writing. However, it is always a good idea – just like your Uncle Mort told you – to “get it in writing.” A written contract avoids getting into a “he said/she said” debate when the contractual relation breaks down.

When a Contract Must be Written

And sometimes the law does require contracts to be in writing. A 17th Century English law--known as the Statute¹¹ of Frauds-- established certain categories of contracts that must be written down, including:

Contracts for the sale of real estate, or any interest in real estate;
Contracts in which one person promises to satisfy the debt of another person; and
Contracts which cannot be performed in less than one year.
The Statute of Frauds has been adopted in virtually every common law jurisdiction¹², usually with some local variation. In the US, for example, the Uniform Commercial Code requires that contracts for the sale of goods over $500 must be in writing. There is a proposal to increase this limit to $5,000, but it has not yet been adopted by any state.

No Magical Formula

Whether you have to put your contract in writing, or whether you just think it’s a good idea to do so, there’s no magic to the format you use. The important thing is to set forth¹³ the terms of your agreement as clearly as possible. You can put it into a lengthy¹⁴ document with the word “CONTRACT” at the top of page 1, or you can put it into the form of a letter that the other party countersigns¹⁵. It’s up to you and your lawyer.

Expunge¹⁶ the Legalese!

And Lou, there’s no need to use legalese in your contract. By “legalese” I mean those annoying pseudo-precise phrases that clutter¹⁷ up most contracts. You don’t have to begin a contract with a bunch of paragraphs saying “whereas this” and “whereas that.” You don’t have to use terms like “null and void” or “aforesaid” or “hereinafter.” And you don’t have to use Latin, ever.

Fortunately, over the last few decades there has been a growing movement to use plain language in the law -- there are organizations in the United States, Britain, Canada, and other English-speaking countries promoting this cause. Many US states now require that consumer contracts, for example, insurance contracts, be written in “plain English.”

In his email, Lou mentions that some people have told him that legalese is necessary for precision. Well, there are some lawyers who would like you to believe that. After all, it helps to give the law its intimidating¹⁸ air of mystery and don’t-try-this-at-home danger.  But with the exception of a few technical legal terms like “hearsay” (which don’t usually come up in everyday contracts) there’s nothing inherently more precise about legalese.

So next time somebody wants to make a contract with you, tell him to write it down -- in plain English, please.

You can send questions and comments to。。。。。。or call them in to the voicemail line at 206-202-4LAW.  Please note that doing so will not create an attorney-client relationship and will be used for the purposes of this podcast only.

 

1 lawful   

adj.法律许可的，守法的，合法的

参考例句：

• It is not lawful to park in front of a hydrant.在消火栓前停车是不合法的。
• We don't recognised him to be the lawful heir.我们不承认他为合法继承人。

2 valid   

adj.有确实根据的；有效的；正当的，合法的

参考例句：

• His claim to own the house is valid.他主张对此屋的所有权有效。
• Do you have valid reasons for your absence?你的缺席有正当理由吗？

3 assorted   

adj.各种各样的，各色俱备的

参考例句：

• There's a bag of assorted sweets on the table.桌子上有一袋什锦糖果。
• He has always assorted with men of his age.他总是与和他年令相仿的人交往。

4 rental   

n.租赁，出租，出租业

参考例句：

• The yearly rental of her house is 2400 yuan.她这房子年租金是2400元。
• We can organise car rental from Chicago O'Hare Airport.我们可以安排提供从芝加哥奥黑尔机场出发的租车服务。

5 binding   

有约束力的，有效的，应遵守的

参考例句：

• The contract was not signed and has no binding force. 合同没有签署因而没有约束力。
• Both sides have agreed that the arbitration will be binding. 双方都赞同仲裁具有约束力。

6 format   

n.设计，版式；[计算机]格式，DOS命令:格式化(磁盘)，用于空盘或使用过的磁盘建立新空盘来存储数据；v.使格式化，设计，安排

参考例句：

• Please format this floppy disc.请将这张软盘格式化。
• The format of the figure is very tasteful.该图表的格式很雅致。

7 scroll   

n.卷轴，纸卷；(石刻上的)漩涡

参考例句：

• As I opened the scroll,a panorama of the Yellow River unfolded.我打开卷轴时，黄河的景象展现在眼前。
• He was presented with a scroll commemorating his achievements.他被授予一幅卷轴，以表彰其所做出的成就。

8 quill   

n.羽毛管；v.给（织物或衣服）作皱褶

参考例句：

• He wrote with a quill.他用羽毛笔写字。
• She dipped a quill in ink,and then began to write.她将羽毛笔在墨水里蘸了一下，随后开始书写。

9 derive   

v.取得；导出；引申；来自；源自；出自

参考例句：

• We derive our sustenance from the land.我们从土地获取食物。
• We shall derive much benefit from reading good novels.我们将从优秀小说中获得很大好处。

10 mutual   

adj.相互的，彼此的；共同的，共有的

参考例句：

• We must pull together for mutual interest.我们必须为相互的利益而通力合作。
• Mutual interests tied us together.相互的利害关系把我们联系在一起。

11 statute   

n.成文法，法令，法规；章程，规则，条例

参考例句：

• Protection for the consumer is laid down by statute.保障消费者利益已在法令里作了规定。
• The next section will consider this environmental statute in detail.下一部分将详细论述环境法令的问题。

12 jurisdiction   

n.司法权，审判权，管辖权，控制权

参考例句：

• It doesn't lie within my jurisdiction to set you free.我无权将你释放。
• Changzhou is under the jurisdiction of Jiangsu Province.常州隶属江苏省。

13 forth   

adv.向前；向外，往外

参考例句：

• The wind moved the trees gently back and forth.风吹得树轻轻地来回摇晃。
• He gave forth a series of works in rapid succession.他很快连续发表了一系列的作品。

14 lengthy   

adj.漫长的，冗长的

参考例句：

• We devoted a lengthy and full discussion to this topic.我们对这个题目进行了长时间的充分讨论。
• The professor wrote a lengthy book on Napoleon.教授写了一部有关拿破仑的巨著。

15 countersigns   

v.连署，副署，会签 （文件）( countersign的第三人称单数 )

参考例句：

16 expunge   

v.除去，删掉

参考例句：

• He could not expunge the incident from his memory.他无法忘掉这件事。
• Remember that you can expunge anything you find undesirable.记住，你可以除去任何你发现令你讨厌的东西。

17 clutter   

n.零乱，杂乱；vt.弄乱，把…弄得杂乱

参考例句：

• The garage is in such a clutter that we can't find anything.车库如此凌乱，我们什么也找不到。
• We'll have to clear up all this clutter.我们得把这一切凌乱的东西整理清楚。

18 intimidating   

vt.恐吓，威胁( intimidate的现在分词)

参考例句：

• They were accused of intimidating people into voting for them. 他们被控胁迫选民投他们的票。
• This kind of questioning can be very intimidating to children. 这种问话的方式可能让孩子们非常害怕。