I get questions at presentations about whether businesses or individuals can make a contract without an attorney.
You absolutely can, but whether you should is another matter.
What Elements Do An Effective Contract Have?
A contract has three key elements: (1) an offer, (2) acceptance of that offer, and (3) consideration (meaning that there is something of value that is given or promised for something of value). This can be written or (in some situations) oral and be enforceable. That is all there is to be an enforceable contract.
An Example To Consider
If Cassie has a cupcake store and she asks Dave to come work in her cupcake store at $20 per hour, Dave says “okay”, that is a contract. Cassie offers for Dave to work for $20 per hour, Dave accepts, the consideration is Dave’s work (valuable) for Cassie’s money (valuable). That’s a contract. That means that if Dave works for four hours and Cassie only pays him $60, she has breached the contract and Dave can attempt to enforce it.
So you can have a contract without an attorney, or even in writing. But should you? In the above example, Dave might have trouble enforcing his contract with Cassie – it is his word against her word. This is why a written contract can be so important. This contract also doesn’t discuss the expectations of the parties or contingencies if something goes wrong. If Dave does a bad job, can Cassie not pay him? Dave comes in to work at 4 p.m. expecting to work for four hours – but Cassie’s Cupcakes closes at 6 p.m. Dave didn’t know that – could he enforce his side of the bargain? If Dave hits a customer at hour three, can Cassie refuse to pay him for that day due to the damages? If Dave does try to enforce his agreement, where can he enforce it?
Why It Is Best To Have An Attorney Write Your Contract
Contracts can be entered into at any time by anyone – but for a good contract that sets the tone of the relationship and protects your rights, it may be better to discuss that contract with an attorney.
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by Samantha Peaslee
