Contract law and verbal agreement problem?

[Smarterchick]

I recently got involved in discussions to settle a claim with a finance company. The company made a Part 36 offer. It came after lots of discussions and correspondence but finally I decided to accept it.

 

The offer was made in writing a few weeks before I accepted and I telephoned their solicitors and spoke with the solicitor fellow who was involved from the start and I told him I accepted the offer within the time frame allowed.

 

He then told me he would get the paperwork out to me to finalise it, so I waited. I emailed him in the next 2 weeks twice asking what was happening and should I let the court or anyone know and they said no, they were awaiting instructions from the finance company on the figures. Three weeks later I received the conditions in a Tomlin Order which were contrary to the Offer they made and I objected. Now they are saying I never accepted the offer because I didn't put it in writing.

 

I am aware that a Part 36 Offer, under the CPR rules has to be accepted in writing, but I was waiting for a response from the solicitors and what I want to know here is what the weight of a Verbal contract is being made in an offer and acceptence situation like I described.

 

Verbal Contracts are legally binding, I have now got to present to the court my reasons for believing their Part 36 was accepted and whilst I have documentary proof from the solicitors supporting my position that I was waiting for them, I also need further back up to support the verbal acceptance and I'd like those who understand Contract law to point me to cases where a verbal contract has been bound in law if you can.

 

Anyone?

[DocH]

Hi smarterchick, have you done a search on the BAILII site (British and Irish Legal Information Institute - Access to Freely Available British and Irish Public Legal Information), it does include caselaw

 

 

BAILII - Search results

 

I've just done a search using the term 'verbal contracts' and got 172 returns. Bit of a slog, but may be worthwhile.

[Smarterchick]

I didn't know that existed, thank you. I'll have read through. I just need all the back-up I can get or this, they are not going to cheat me when I know I accepted.

 

Thanks

[DocH]

You're welcome. It might also be worth sending a pm to pt2537, who has access to a case law database. He may take some time to respond as he is usually extremely busy.

[Smarterchick]

Wow, that's a good start 'estoppel':

 

Estoppel is a legal doctrine of common law that has many individual rules but that generally means that any person arguing a legal position to the court should not have behaved unfairly in the matter. Estoppel complements the requirement of consideration in contract law.[citation needed] In general estoppel protects a party who would suffer detriment if each following test is met:

• A second party has done or said something to induce an expectation.
  
• The first party relied (reasonably) on the expectation ...
  
• ... and would suffer detriment if that expectation were not met.
  

Okay, this immediately fits the bill, but....this is a Part 36 offer - does that make any difference in law or legal practice?

 

I don't understand estoppel, heard of it but it's one of those words that appears meaningless as I've never ever used it before...

 

Would I be whistling up the wrong path to use this, I'm going over the lsit and if this is anything to go by I should find what I need... thank you so much..

[DocH]

..........

Edited January 22, 2009 by DocH

[Smarterchick]

Can anyone point me to legal backup for a case I have. I did a deal where a part 36 offer was offered by the Claimant in full and final on a deal and I accepted on the telephone, time dragged before their consent and Tomlin came over and the tomlin conditions compromised the Part 36 ( I don't need ANY guidance on that part) I just need to back up with some case law where a verbal contract is affective as legally binding ..nothing else

 

Ta - asap pls if you can..

[MrShed]

This is simply common law I believe.

 

A contract is a contract. There is no legal distinction between a written and a verbal contract. The only issue is with provability.

[e28bigalbexley]

Hi SC

Googled this

 

Briefing Note - Legal Binding Agreements and Verbal Contracts

In order to form a contract, the parties must agree on what either party will do under the terms of the contract; they must have the intention to form contractual relations; and there must be consideration. It is immaterial whether the contract is verbal, in writing, or partially verbal and partially written, although common sense says that recording the agreement in writing creates a document that may be referred to for its terms in the event of a dispute between the parties. Obviously, this is particularly important when disputes arise in respect of the agreement, whether the dispute arises in respect to the work to be performed or sums to be paid under the agreement. Both verbal contracts and written contracts are equally legally binding contracts, subject to the existence of the usual requirements for formation of a contract.

Certainty and Completeness of Agreement

Agreement is reached between contracting parties when an offer is made by one party which is clearly and unequivocally accepted by the other party. The offer must be sufficiently certain so as the parties know what is to be performed, and the agreement must be complete. An agreement is incomplete when an essential term has not been agreed or there are further matters to be agreed. Agreements in principle are usually considered not to be complete, as are contracts expressly stated to be ‘subject to contract’. In deciding whether a contract is complete, a court will consider a contract to be formed when, from the viewpoint of an officious bystander, the parties have agreed in the same terms on the same subject matter.

Verbal Contracts

There is no legal impediment to the parties entering into a contract based on their conduct and verbal statements or representations. When parties agree the terms of the contract by verbal statements, the binding terms of the contract are more difficult to ascertain. Usually a court will look to the history of the statements made by the parties and the performance of the parties to obtain assistance in determining what was actually agreed by the parties. Where one person however has not performed their part of the bargain, and court is left to more uncertain means in reaching a decision. Draft contract documents, emails, letters and order forms may lend assistance to deciding the terms of a verbal agreement, and courts have used similar agreements with third parties to apply a standard of reasonableness in determining the terms of the contract in the absence of writing.

In the event that a party refuses to sign a contract, it is essential to write to the person and confirm the terms of the contract as they are understood, to provide a evidence at a later date as to the terms of the agreement reached. In the absence of any other evidence these communications are may be key in assisting the resolution of disputes relating to the terms of the contract. It may be useful to know that where an verbal agreement has been reached, which is later confirmed in writing but the written document does not properly record the terms, that it may be rectified using the doctrine of rectification.

Exceptions

There are exceptions to the general rule that contracts may be verbal, for instance in respect to employment contracts, tenacy agreements and contracts for consumer credit. In some instances where writing is required, a note or memorandum will be required. In the absence of such evidence of the contract, the agreement may be void, unenforceable, or unenforceable by only one party, or on the order of a court.

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Plenty more on google.

 

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