| _____________________________ Tom Stilp JD, MBA/MM, LLM, MSC “A verbal contract is worth about as much as the paper it’s written on.” Movie Producer Samuel Goldwyn Based on the fundamental belief in freedom of contract and honoring the legal intentions of competent contracting parties, there exists an almost sacred concern in our law for protection of the integrity of a written contract. A written contract is thought to be more reliable evidence of the parties’ intentions than recollection, past conversation, or material outside of the contract. The Illinois Supreme Court has commented: “The object of judicial construction . . . is to determine the intent of the parties and to carry it out, but it is not the function of a court to modify the document or create new terms different from those to which the parties have agreed.” Northern Trust Co. v. Tarre, 86 Ill.2d 441, 427 N.E.2d 1217, 1221, 56 Ill.Dec. 671 (1981). The question arises, what is the value of a writing when the words therein have lost their meaning? When movie producer Sam Goldwyn was asked the value of an oral contract, he reputedly advised, “A verbal contract is worth about as much as the paper it’s written on.” Yes, many types of verbal agreements are enforceable assuming the terms can be proven, but written agreements are far superior to verbal agreements, and are subject to fewer defenses affecting enforcement. Although a written agreement is preferrable, there are problems with written agreements. A writing is fully integrated when the parties intend it to be a final and complete expression of the agreement between them. Naturally, the essential question becomes: When is a written instrument considered to be complete or fully integrated? Although it may appear that the integrity of a written contract is impugned when the court is called upon to aid in interpretation of the agreement, if the agreement is incomplete or ambiguous, the parties to the contract are at fault for causing problems with their writing. The parties had within their power the opportunity to draft a complete and clear document (to the extent that the English language permits), but they failed. The law and the courts cannot be criticized for intervening and supposedly denigrating the solemnity of the parties’ writing if the writing is genuinely incomplete or unclear and, therefore, requires interpretation. Having drafted countless agreements over the years, and having litigated incomplete or ambiguous agreements drafted by others, the value of a properly prepared agreement far exceeds the time, cost and aggravation of later disputes. |
