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Using Verbal Agreements to Modify Written Construction Contracts


As a smart business person, and someone experienced in construction projects, you likely know enough about construction law to figure out that it’s best that your contracts be in writing. That’s not to say that oral agreements are never enforceable–they often are–but because of the complexity and nature of the construction industry, a written understanding of the duties, responsibilities and expectations of all parties, is the best practice.

Where most people end up with construction law related problems is in verbal agreements that alter written agreements, or with verbal agreements that never make it into written agreements.

Now, the expectations of the parties are different than what is in the written agreement. Are these verbal alterations, additions or modifications, or these initial understandings that never made it into the written contracts, enforceable?

Parol Evidence

The answer is generally no. Verbal representation before the contract is entered into–for example, someone promises something, and that promise never makes it into the written agreement signed by the parties-are legally presumed to have already been included or excluded from the written agreement. In other words, it is assumed that whatever the parties discussed, eventually made it into the contract or were purposefully excluded from it. That means parties can’t later try to enforce those agreements.

These verbal promises, explanations, ro alterations to written agreements are barred by what is known as the parol evidence rule. As a general rule, when a contract is a full and complete understanding of the parties, verbal evidence that alters, adds to or changes the written agreement are not enforceable.

Sometimes Verbal Evidence is Admissible

One time that external, verbal evidence can alter or change a written contract, is if the contract is not a full expression of the agreement between the parties.

For example, if the contract does not say anything about change orders, or alterations to the original contract, verbal evidence of the understanding of the parties could be admissible. The verbal evidence is not affecting or altering anything that’s already in the agreement, and it could be said that without that information, the construction contract is incomplete.

A good rule of thumb is that if a verbal agreement or understanding contradicts an explicit term or subject in the contract it is inadmissible. If it does not, it may be admissible.

Vagueness or Ambiguity

Parol evidence can also be used to define a term or provision in a contract, if the contract is vague or ambiguous. Carefully drafted written construction agreements hopefully won’t have the problem, but it does happen that parties can’t agree on a term in a construction law contract. The court can rely on the parties’ oral dealings and understandings, to clarify terms that may not be clear from the face of the contract.

Call our Fort Lauderdale construction attorneys at Sweeney Law P.A. at 954 440-3993 for a consultation or help with your construction law problems.



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