Crafting Enforceable Verbal Contracts

Chelsea Lankford • February 16, 2024

Shake on It? The Art and Intricacy of Verbal Agreements in Texas

Navigating the legal terrain of verbal contracts in Texas is akin to traversing a complex labyrinth. These contracts, although not penned, hold as much legal weight as their written counterparts, provided they adhere to specific legal benchmarks. In Texas, an agreement sealed with a mere handshake can bear significant legal implications, yet the challenge often lies in substantiating its existence and the stipulations within in a court of law.

Crafting Enforceable Verbal Contracts in the Texas

In Texas, for an oral agreement to be legally binding and enforceable, it must include several key elements. Firstly, there must be a clear offer by one party and an unequivocal acceptance by the other, ensuring mutual consent, which is the foundation of any valid contract. The exchange of something of value, known as consideration, is required, highlighting the reciprocal nature of the contract where each party pledges to provide a benefit or service. Moreover, the agreement necessitates the free and informed consent of all parties involved, without any form of coercion, duress, or undue influence, to guarantee a "meeting of the minds."

Additionally, individuals entering into the agreement must possess the legal capacity, meaning they are of legal age and have the mental ability to comprehend the terms and implications of the agreement. The purpose of the agreement must also be lawful, as contracts aimed at facilitating illegal activities are invalid and unenforceable under Texas law. Finally, the terms of the contract should be sufficiently clear to define the obligations and expectations of each party. The clarity and specificity of these terms are vital to the enforceability of oral agreements, although achieving this can be particularly challenging without written documentation."

Verbal agreements in the Lone Star State must encompass several critical elements to be deemed enforceable:

Offer and acceptance are pivotal elements in the formation of a valid contract, serving as the foundation of mutual consent between parties. This principle dictates that a contract only comes into existence when one party makes a clear and definite offer, and the other party responds with an unequivocal acceptance. This exchange signifies not just the agreement to the terms but also the intent to enter into a binding legal relationship.

The process of offer and acceptance is a critical step in ensuring that all parties have a mutual understanding and agreement on the terms of the contract. The offer must be communicated effectively, outlining the conditions and specifics with enough clarity to be accepted. Similarly, acceptance must be absolute and conform to the terms of the offer, without any variations, for the contract to be considered valid. This ensures that there is a "meeting of the minds," a common agreement on the deal's specifics and intentions.

Understanding offer and acceptance is essential for anyone involved in contractual agreements. It underscores the importance of clarity, communication, and mutual consent in contract law, highlighting how agreements are formed based on clear propositions and affirmative responses. This fundamental concept ensures that contracts are established on a solid foundation of agreed terms, safeguarding the interests of all parties involved.

By focusing on these critical aspects of contract law, individuals and entities can better navigate the complexities of legal agreements, ensuring that their contracts are enforceable and reflect the shared intentions of all parties.

Consideration is a fundamental concept in contractual agreements, necessitating an exchange of value that binds the parties legally. This cornerstone principle underlines the essence of a contract, highlighting that for an agreement to be enforceable, each party must commit to offering something of value. Whether it involves tangible goods, services, or intangible benefits, consideration validates the reciprocal nature of the contract, ensuring that every party has a vested interest in fulfilling their part of the deal.

To be considered valid, the consideration must be clearly defined and legally acceptable. It serves as the driving force behind the contract's existence, confirming that all involved parties have agreed to the terms not merely in principle but through the promise of delivering specific, agreed-upon benefits or services. This aspect of contractual law ensures that agreements are not one-sided but are based on mutual commitments, fostering fairness and balance in the exchange.

Understanding the role of consideration is crucial for anyone entering into a contractual agreement. It reinforces the concept that contracts are more than just verbal or written promises; they are structured exchanges that require the identification and provision of value by all participants. As such, consideration is not merely a legal formality but a testament to the reciprocal nature of agreements, integral to their validity and enforceability.

Mutual consent is a foundational principle requiring that all parties involved in a contract freely and knowingly agree to the terms without any form of coercion, duress, or undue influence. It establishes the critical 'meeting of the minds,' ensuring that each party's agreement is informed and voluntary. This concept underscores the importance of transparency and voluntary participation in contractual agreements, making it a cornerstone for the validity and enforceability of contracts. Understanding mutual consent is vital for anyone entering into legal agreements, as it directly impacts the contract's legitimacy and legal standing."

Capacity in Contract Law: Legal capacity is a fundamental requirement for all parties entering into a contract. This principle asserts that individuals must be of legal age and have the necessary mental capacity to fully comprehend the terms, conditions, and consequences of the agreement they are engaging in. The presence of legal capacity ensures that all parties are capable of making informed decisions and understanding their obligations and rights under the contract. Without sufficient capacity, contracts can be deemed void or voidable, protecting individuals who might not be able to fully understand or consent to legal agreements.

At the core of every enforceable contract in Texas is the principle of "Lawful Purpose." This fundamental requirement ensures that the agreement's objectives are in compliance with legal standards and public policy. Under Texas law, for a contract to be considered valid and binding, its purpose and the means to achieve it must not violate any statutes, regulations, or ethical norms.

The concept of a lawful purpose serves as a critical filter, distinguishing legitimate agreements from those designed to facilitate or conceal illegal activities. Contracts without a lawful purpose are deemed void ab initio, meaning they are considered invalid from the outset and have no legal effect. This provision safeguards the integrity of contractual relationships by preventing the law from being used as a tool to enforce illicit objectives.

For individuals and entities entering into contracts, understanding the importance of a lawful purpose is paramount. It underscores the need for due diligence in ensuring that the agreement's goals are not only clear but also within the bounds of legality. This includes a thorough review of relevant Texas statutes and regulations to confirm that the contract does not inadvertently contravene legal requirements.

In essence, the requirement of a lawful purpose under Texas law is a cornerstone of contractual validity. It reinforces the legal framework within which agreements must operate, promoting fairness, transparency, and accountability in all contractual dealings. By ensuring that contracts serve legitimate objectives, the principle of lawful purpose upholds the rule of law and protects the interests of all parties involved.

Specificity in contract terms refers to the clarity and detail with which the obligations and expectations of each party involved in the agreement are outlined. This principle is fundamental to the enforceability of both verbal and written agreements. Achieving a high level of specificity can be particularly challenging in verbal agreements, where the absence of written documentation increases the risk of misunderstandings and disputes. Specificity ensures that all parties have a clear understanding of their responsibilities, thereby reducing ambiguity and potential legal conflicts. For a contract to be effective and enforceable, it must clearly define terms, conditions, and the scope of agreements, highlighting the critical role of specificity in legal and business transactions.

Navigating the Evidential Maze of Verbal Contracts

The crux of the matter with verbal contracts is not about their legal validity but the evidential challenges they present. Some of those challenges are:

Memory and Interpretation Issues:

Human memory reliability: Memories can fade over time, leading to different recollections of the agreement.
Discrepancies in accounts: Parties may have genuinely different memories of what was agreed upon.

Witness Credibility:

Questionable reliability: Witness accounts can suffer from memory issues and subjective interpretations.
Bias and interest: Witnesses may have personal biases or vested interests in the dispute's outcome.

Role of Supporting Evidence:

Importance of written communication: Emails, texts, or notes related to the agreement can help reconstruct terms but must be clear and relevant.
Challenges in acceptance: Ensuring that such communications are accepted as valid evidence can be difficult.

Proving the Existence of a Contract:

Indirect evidence reliance: In the absence of a written agreement, parties often rely on actions consistent with an agreement's existence, which can be circumstantial.
Interpretation of actions: Actions taken by parties (e.g., exchange of goods or services) may be open to interpretation.

Legal Standards for Evidence:

Variability in standards: Legal standards for what constitutes sufficient evidence can vary, complicating the process.
Requirement for legal expertise: Navigating these standards often requires understanding what evidence is admissible and how to present it effectively.

In instances of alleged breach, the onus is on the plaintiff to demonstrate the presence of all contractual elements and that a failure to fulfill the agreement resulted in damages. The evidence brought forth must compellingly argue the existence and the breach of the verbal contract, which can range from demonstrating actions taken in reliance on the contract to presenting corroborative communications and witness testimony. How Long Is the Statute of Limitations for an Oral Agreement in Texas? Verbal contracts in Texas are subject to the same limitations as written contracts. There is a four-year statute of limitations in Texas on filing a breach of contract action for both written and oral agreements.

Contracts That Must Be Written and Cannot be Oral

In Texas, the legal requirement for certain contracts to be in writing is dictated by the Statute of Frauds. This measure is crucial for preventing disputes and ensuring clarity in agreements that have significant legal and financial implications. Specifically, the statute mandates that the following types of contracts must be documented in writing and signed by the party or parties to be charged:

Contracts that must be written:

• Wills and Trusts

• Guarantee for Another's Debt

• Marriage Agreement (excluding common law marriages)

• Real Estate Sales

• Contracts Lasting More Than One Year

• Real Estate Leases Over One Year

• Oil or Gas Mining Lease

• Medical Care Warranties by Healthcare Providers

• Securities Sales (recommended for non-market private securities transactions)

• Sales of Goods Valued at $500 or More

The Statute of Frauds plays a pivotal role in ensuring that all parties have a clear understanding of their commitments, thereby minimizing the risk of legal disputes. To be enforceable under this statute, not only must the contract be in writing, but it also must be signed by the party against whom enforcement is sought. This requirement underscores the importance of formal documentation in upholding the integrity and enforceability of significant contractual agreements.

Security Sales Exception To Statute Frauds - Section 8.113 Texas Statutes Business and Commerce Code

With the increasing use of electronic communication, the traditional statute of frauds is unsuited to the realities of the securities business. In securities transactions, any benefits the statute of frauds may provide in filtering out fraudulent claims are outweighed by the obstacles it places on the development of modern commercial practices in the securities industry. Simply put, there are other methods and means for confirming the sale in a high-paced, automated environment such that a full written agreement is archaic. Section 8.113 of the Texas Business and Commerce Code addresses this issue by providing an exception for securities sales. It ensures that contracts or agreements for the sale of securities are enforceable even if they are not in writing, as long as there is a sufficient record of the transaction. This adapts the legal framework to better align with the rapid, electronic nature of modern securities trading.

Pecans and Promises: A Nutty Tale of An Oral Agreement

In a neighborhood known for its plentiful pecan trees, neighbors Mr. Roger and Mr. Smith find themselves in an informal agreement over the sale of pecans. With the fall season bringing a heavy harvest, Mr. Roger verbally agrees to sell Mr. Smith 100 pounds of pecans for $50, a deal they both find agreeable and fair. This agreement encompasses all the critical elements of a contract: Mr. Roger’s offer, Mr. Smith's acceptance, the mutual exchange of consideration ($50 for the pecans), and the clear mutual consent and understanding of the terms involved. As the weeks pass, both neighbors act based on their agreement; Mr. Roger holds off on selling the pecans to anyone else, while Mr. Smith plans to use the nuts for baking pies to sell at a local market.

However, as the harvest season approaches, Mr. Roger decides to renege on their agreement, preferring a more lucrative offer, the situation starts to get complicated. Mr. Smith, who relied on this verbal agreement, faces not just the loss of expected goods but also potential damage to business plans and commitments made to customers. This scenario illustrates the enforceability challenges and potential for disputes inherent in verbal contracts. Without written evidence, such as emails or text messages, or even witness testimony to their agreement, proving the existence of the contract and any resultant damages from its breach becomes significantly challenging. Without the right evidence, Mr. Smith is forced to make everything but his famous pecan pies due to Mr. Roger's breach of their oral agreement, a change that causes Mr. Smith to lose out on substantial monies.

As you can see, while Texas law upholds the validity of verbal agreements, the intricacies involved in proving such contracts necessitate a cautious approach even between neighbors. Understanding the legal framework, recognizing which contracts require written form, and meticulously documenting agreements, even those that start verbally, are essential steps in safeguarding against future disputes. In the realm of verbal agreements, it's not merely about what was agreed upon but what can be conclusively proven in the face of legal scrutiny. Our contract attorneys can help you enforce oral and written agreements.

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Copyright and Translated Content: Who Owns the Creative Rights?

By John Wilson • February 19, 2025

Copyright and Translated Content: Who Owns the Creative Rights? Understanding Copyright Law and Translation Copyright law protects creative work and bestows sole authority over the work upon the creators. For example, the owner of the work of a novel has the right over the work under the concept of the right under the copyright. Courts have found that “the degree of protection afforded by the copyright is measured by what is actually copyrightable in the publication and not by the entire publication.” See, e.g., Dorsey v. Old Sur. Life Ins. Co., 98 F.2d 872, 873 (10th Cir. 1938) (emphasis added). For translations, the situation is not very clear. Translations involve creative judgments over word translation and not the translation of mere words. Hence the knowledge about the applicability of the concept of the right over the work is essential for establishing the right over the work. For example, a Court in the Northern District of California stated that: “ the determinative question is whether Plaintiff holds a valid copyright. ” Signo Trading Intern. Ltd. v. Gordon, 535 F. Supp. 362, 363 (N.D. Cal. 1981). The Signo Trading Court dismissed Plaintiff’s infringement claims because plaintiff did not have a valid copyright as a matter of law in the translations and transliterations at issue because they lacked the “requisite originality.” Id. at 365. Can Translation Be Considered a Creative Process? The Practice of Translating Translation goes beyond the replacement of one word by the equivalent word from the source text. Translating literary work, poetry, and fiction with deeper meanings beyond the surface text is a complex, artistic process. Translating books like The Iliad, for instance, requires the practice of artistic translation to translate the emotions, thoughts, and the culture correctly. Technical Translations and Legal Translations Conversely, technical writing and texts for the law need less creativity and instead value correctness over all else. These writing forms require strict adherence to the original sense, leaving very little room for artistic interpretation. Translations for these writing forms thus typically involve less creative contribution and less potential for the work being protected by copyright. Why Is Creativity Important for Translations for Copyright? Originality when translating For a work to be subject to copyright, some creativity, however slight, is essential. Even when the translation is taken from the work, the translation also includes some creative work by the translator. This creativity can make the translation subject to copyright. A derivative work must “recast, transform[], or adapt[]” a preexisting work and “consist[] of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship.” Id. In other words, it must change or alter the pre-existing work’s content and must itself be an original work of authorship. The Supreme Court stated that “ [t]he sine qua non of copyright is originality ” and that “ [t]o qualify for copyright protection, a work must be original to the author. ” Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 361 (1991) at 345. “Original, as the term is used in copyright, means only that the work was independently created by the author (as opposed to copied from other works), and that it possesses at least some minimal degree of creativity.” Id. (citing 1 M. Nimmer & D. Nimmer, Copyright §§ 2.01[A], [B] (1990)). In granting a Rule 12 motion to dismiss, the Signo Trading Court held that: " It is inconceivable that anyone could copyright a single word or a commonly used short phrase, in any language. It is also inconceivable that a valid copyright could be obtained for a phonetic spelling, using standard Roman letters, of such words or phrases. Although lists of words and translations of larger works may be copyrightable, Plaintiff cannot claim credit for any of the elements which make those things copyrightable. For these reasons, Plaintiff does not hold a valid copyright on the translations or transliterations ... " Signo Trading, 535 F. Supp. at 365. The Problem of the Derivative Work However, translations are generally "derivative works" - derived from the work of another. Because of this, the owner or author of the work is generally required to agree to the translation. Translations made illegally can be held under the classification of copyright violations, even when the translator has added creative elements. Who Has the Right over the Translated Work? Employer-Commissioned Translations Ownership of the copyright for the translation work varies. If the translation is commissioned by the owner of the original work, the owner will retain the right. Even when the translator adds creativity by passing over the original emotions and thoughts, the owner will not necessarily lose the right over the translation work. In some circumstances, the translation work can be accredited by the translator without them holding the right over the work. Independent Translations If a translation is performed independently by the translator, the translator can even be identified as the co-author of the translation. Nevertheless, the author typically has the underlying copyright, restricting the translator’s right over the work. Creative Translations from the Public Domain In certain cases, a translation may be creative enough to warrant its own copyright. For example, a translator adapting a classic work or a book in the public domain into modern language may introduce enough originality to qualify for copyright protection. However, direct, word-for-word translations are typically not considered original enough to receive new copyright protection. What About Machine Translations? The Human Creativity Copyright Requirement Machine-generated translations, including those produced by platforms like OpenAI , operate through advanced algorithms that replicate language patterns rather than capture the human touch. Unlike translations crafted by human translators who often infuse cultural insight and genuine emotion into the work, OpenAI's output is rooted in statistical patterns and data. Consequently, while these translations are impressively efficient and accurate, they typically fall short of the originality required for copyright protection. This distinction underscores the human creativity requirement needed to secure a valid copyright . Ultimately, although machine-generated translations serve as powerful tools, they do not offer the same legal and creative protections as those provided by human translators. The Bottom Line: Navigating Copyright in Translations Translations occupy the middle ground under the law of the copyright. Albeit the right of the original author generally has the right under the copyright, the right under the copyright can also be claimed by the translator provided the translation is creative enough. Central considerations here include the creativity the translator has added, the nature of the work being translated, and whether the work is under the public domain. These considerations establish the right of the owner under the copyright for the translation. Why Wilson Whitaker Rynell for Your Copyright Work? At Wilson Whitaker Rynell, our professional lawyers specialize in the practice of copyright law and copyright litigation , including the complex subject matter of translation work. We can provide you with advice about the ownership of your work under the provisions of the copyright, and protect your creative property. If you are the author, the publisher, or the translator, you can rely upon the advice from our firm. Copyright Translation FAQS

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Whether it’s issues surrounding custody of children, alimony, or asset division, our female divorce lawyers ensure each client receives high-quality legal advice. Our firm’s female divorce attorneys provide the highest level of personal attention, ensuring that each client’s unique needs and concerns are addressed through every step. Unique Challenges Women Face in Family Law Disputes in Texas Family law disputes can be emotionally charged and legally complex, especially for women navigating the process in Texas. Women often encounter unique challenges due to their roles in the marriage and family dynamic, particularly when it comes to child custody, child support, and the division of marital assets. Child Custody Challenges In many marriages, women take on the primary caregiving role for their children. However, when it comes to custody decisions, courts in Texas prioritize the best interests of the child over parental gender. 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By John Wilson • January 23, 2025

Understanding Writs of Execution in Texas: A Layperson’s Guide If a court determines that someone owes money to another party, the debtor—referred to as the "judgment debtor"—typically has 30 days to pay off the debt. If the debt remains unpaid after this time, the creditor, or "judgment creditor," can take legal action to enforce the payment through a Writ of Execution . This legal process, governed by Texas law, enables creditors to collect what they are owed by seizing and selling the debtor’s non-exempt assets. What Is a Writ of Execution? Under Texas Rules of Civil Procedure 629 , a Writ of Execution is a court order that authorizes a sheriff or constable to seize the debtor’s property to satisfy the debt. This writ is an essential tool for creditors when voluntary repayment has not occurred. Once the writ is issued, it is handed over to a county constable or sheriff, who is required to act “without delay” in collecting the debtor’s real and personal property. 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