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From: Leichter-Jerry@cs.yale.edu
Newsgroups: comp.dcom.telecom
Subject: Re: MCI Playing "Switcheroo"
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Date: 17 Feb 90 19:42:03 GMT
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X-Telecom-Digest: Volume 10, Issue 119, message 9 of 9


Having spent a lot of time among lawyers, I'll comment on this:

In article <3962@accuvax.nwu.edu>, Mike.Riddle@p6.f666.n285.z1.fidonet.org 
(Mike Riddle) writes:

> In a recent article, John Higdon wrote that in the future we might
> have to have everything in writing.
   
> I'm not a lawyer, but as I understand it, someone alleging a verbal
> contract must be able to prove it.  That might be difficult.

Absolutely.  As a general principle in the law, verbal contracts are
valid.  (There are exceptions, but they are in very specific
circumstances and usually by statute.)  Non-lawyers often make the
mistake of assuming that there is some inherent connection between
VALIDITY and USEFULNESS.  Yes, a verbal contract is valid - once you
can prove what was agreed to.  And "prove" means "convince a court".
The burden of finding a way to convince the court is entirely up to
you.

In many cases, both sides agree that something was agreed to, but
disagree on the details.  I suppose cases arise in which one side or
another just plain denies that an agreement was ever reached.

On the surface, such cases come down to one side's word against the
other.  However, there is often evidence available.  If I claim we
reached an agree- ment for me to paint your house, and I show up with
paint, that's at least some evidence that I believed it.  If you
covered all your furniture with tarps, that's some evidence that you
also believed it.  We present all of our bits of evidence, and the
court decides which of us it believes.

> The concept of "unjust enrichment," however, might still be a problem.
> I understand that most states have a "Statute of Frauds" that requires
> some evidence of certain contracts be in writing to avoid these kinds
> of problems.  Covered contracts might include real estate, duration
> one year, or value specified amount.

The Statute of Frauds is a very old part of the Common Law which says
that verbal contracts for future performance in the amount of more
than $1000 are not enforceable.  Essentially, the Statute says that
when you are dealing with something that may remain intangible for a
while (future performance) and the amount is large enough to be worth
worrying about (the Statute goes back hundreds of years; the original
amount must have been in pounds.  $1000 200 years ago was a LOT of
money) then put the damn thing on paper.

BTW, the Statute of Frauds is not a statute - it was created, like
most of the Common Law, by judicial precedent - and, as you can see,
has nothing much to do with frauds!

As a result of the bizarre history of the Common Law, real estate is
not transfered by contract but by registration of a deed.  Hence, it
is inherently impossible to have a verbal transfer of real estate.
You CAN have a contract in which you agree to transfer a deed later,
and in fact that is the way most real estate deals work.  Such a
contract would almost certainly fall under the Statute of Frauds, even
if not otherwise regulated.

BTW, the law of 49 of the United States is based on Common Law.
Louisiana law, on the other hand, is based on the Napoleanic Codes.
There are a LOT of differences - one very obvious difference is that
under the Napoleanic Codes a criminal defendant is GUILTY until proven
INNOCENT.  I doubt this particular difference has survived in
Louisiana, but a lot of others have.

> While not a complete answer, the Statute of Frauds might at least help
> protect for excessive losses.

			-- Jerry