I’m asking about the common clause in contracts that is stated in the thread title. I’ve heard several different things about this clause.
I was under the impression that a subsequent oral modification would overrule this term. (Assuming that the statute of frauds isn’t implicated). Since oral and written terms are equally valid, a subsequent oral modification of the contract would simply overrule the earlier written term. (At least I thought)
But I just took the Bar midterm and got this one wrong. If this written term is binding, now and forever, what else can prevent modification to a contract?
If this term is enforceable, what is the legal basis for it? Thanks.
Not sure what you mean. You can still modify the contract. It just has to be in writing.
So…
If oral and written are equal.
And both parties agree any contract changes must be in writing.
Why do you think this part of the agreement isn’t valid?
Because by later agreeing orally to change the contract, both parties have implicitly agreed to waive the earlier provision requiring the modification to be in writing.
I thought the whole point of a written contract was that it could be evaluated based on it’s written form without having to determine what actual contract was arrived at by two people in spoken form only. Contract cases could only be determined based on the credibility of the parties and their claims about what the contract actually was. If both parties agree orally to a modification then it doesn’t really matter whether the contract is modified in writing or not, unless they eventually disagree, and then you have to go back to the written contract.
Well I understand the words you are saying, bit you do understand that basically what you are suggesting is that the “no modification” clause means absolutely nothing?
If I can orally modify it - then what is the difference between a contract with one (a written only modification clause) and a contract without one?
I’m not saying that sometimes people don’t put things into contracts that mean nothing, but this isn’t one of them.
To me - it makes a bunch of sense to have this clause - it certainly makes things easier in the long run when trying to decide disputes.
I mean what is even the point of “getting it in writing” if later on you can willy nilly modify it over the phone? Ten years later there is a dispute. What happens?
I understand oral contracts are valid as well (but not in all cases). I just don’t think that “rule” means you can’t force yourself into a written contract. You can always, in writing, change this provision. Why one would want to do so is beyond me.
If you’re doing this as MSE prep, you might want to focus less on worrying that an answer might not be absolutely and always correct and more on which is most likely to be most often given the fact pattern. I know I’m not answering the question, but I got the impression reading your post that you might be expecting more sharply defined types of situations than is likely.
I don’t know how devious the examiners are these days, but I would fully expect them to give you an uncomfortable number of questions where all of the answers suck. As usual you’ll get it down to 2 that suck least and then you have to be able to know what they’re look for that distinguishes one from the other.
I think you may have gotten tripped up on the ‘equally valid’ part. Contracts, by their very nature, dictate their own terms which includes how they should be executed (within reason and subject to exceptions like punitive vs. liquidated damage for example). So it’s not as if contracts can’t modify certain aspects of contract law - which it would seem is part of what they wanted to show here.
Essentially, I think the “no oral modifications” clause pre-empts the option to later agree to an oral modification. Both parties have agreed that the only way a modification can be binding is by a signed writing. If you are talking about a sales contract, look at UCC 2-209, which I think is what the multi-state examiners are probably going to use as the basis for the question. Note the extra signature required in certain circumstances.
The problem would be how would anyone tell the difference between a situation where both parties voluntarily made an oral agreement to change the terms and a situation where one party falsely claims that both parties made an oral agreement to change the terms? Requiring all changes be recorded in writing gives a third party something to consider if called in to determine whether or not the contracting parties have abided by the terms.
If you both agree that you want to change the contract to allow oral modifications, you can simply have a written modification striking that clause. After that, it’s your word against his.
The clause is useful and meaningful. Allowing it to be nullified orally would eliminate that usefulness and meaning.
This clause is most familiar to me as a weasel clause in consumer-corporation contracts. It basically says, “we won’t stand by anything our employees say, nothing they say is binding upon us, and if what they say can at all be contradicted by our print contract, then you can just forget you ever heard them say anything.”