Of course, it’s possible to make a legal contract without a lawyer. In cases where you want to save some cost in legal fees, this may come handy and helpful. Nevertheless, it’s advisable that you already know what you’re doing.
Whether the subject matter of the contract is permitted by law is not usually what people bother about—you just need to be sure that what you’ve written is enforceable.
How to make a legal contract without a lawyer
Can I make my own contract without a lawyer? Yes, you can, and having known this, the following are ways to make your legal contract count without a lawyer:
1. Know what makes a contract legal
A contract is made enforceable by a court without any magic words or phrases. Even words like “notwithstanding” or “whereas” does not acquire enforceability.
Once it is established that one party made a promise to the other, that is the only requirement to consider it as a contract. Money or something of value is legalese for consideration—it could even be a legal separation from a partner.
No enforceable contract is created if someone promises to join you for dinner on Monday because no valued consideration was exchanged. Nothing more than your good company over a meal was offered, so the promise was gratuitous.
However, if someone promises to speak at an event you are planning, for which you will pay a fee, then there’s an enforceable contract. You will pay when the person appears and makes their speech.
The court will attempt to give the injured party the benefit of the bargain if you both fail to do as promised.
2. Write out the deal
“Incompleteness” is the biggest failing of any legal contract you make without a lawyer. The promised performance is not completely described and one of the essential terms is missed, including ‘who’, ‘what’, ‘where’, and ‘when’.
The legal contract has to be written such that an absolute stranger to the deal (the judge) can read it and know what had been agreed for the contract to be enforced.
A stranger does not understand enough of the deal contained in too many self-drafted contracts. Contracts with missing terms or ambiguities can be legally enforced. However, if the intent of the parties does not correspond, the contract is at great risk after the judge fills in the missing items.
It is more expensive to enforce a fragmented contract than an incomplete one. What each party remembers but failed to write down can victimize the enforcement of the unwritten terms.
3. Identify and write down assumptions
The contrasting parties often come with a collection of assumptions about the arrangement when they appear in court. Moreover, assumptions of each party are often assumed to have been shared by the other party.
This, you can’t tell whether you are both on the same track without articulating your assumptions.
Part of the deal is formed from unwritten assumptions laid out on paper in any good contract. You sit down to negotiate or discuss if they are not shared when writing the contract. As such, writing them out becomes as important as the exercise of writing the contract.
4. Go through the what ifs
If things don’t go as expected when the contract is formed, the rights of the parties are catered for in well-drafted contracts.
- the performance is delayed because one party gets sick;
- the schedule for making materials available is not met; or
- the product doesn’t meet expectations.
More what ifs in the contract should be addressed if the contract is critical to your business, or if lots of money is involved.
It’s not worth it to extend negotiations to deal with remote possibilities if the consideration is about $800 but worth more to lay out the details if it’s about $120,000.
5. Make attorney fees provision
Your contract should provide that the injured party can obtain the attorney fees plus other damages if you expect to enforce the contract in court after a breach.
This is because unless the contract or a statute says differently, the attorney fees (whether the case is won or lost) are to be paid by each party following the American Rule. The idea of the rule is that a plaintiff should not be discouraged from going to court out of fear of prohibitive costs—Investopedia.
Obviously, it could be too expensive to go to court without the provision that grants the prevailing party the necessary fees to pay the attorney to get the contract enforced. The damage awarded may be consumed by the cost of representation.
With the above, you can now tell that who can write a contract can be “anyone”.
Can I make my own legally binding contract?
Yes, you can make your own legally binding contract without a lawyer drafting it. Generally, anyone can as long as the contract includes the legal elements and both parties are legally competent and consent to the agreement.
Will a handwritten agreement hold up in court?
Of course, a handwritten agreement or contract will hold up in court and is legally binding if they meet the necessary conditions applicable to all contracts, including mutual agreement, capacity, consideration, and legal validity. Understand that there’s no legal difference between typed and handwritten contracts in terms of being enforceable.
What are the 3 requirements for a legally binding contract?
The 3 elements of a legally binding contract include, an offer, the acceptance (when one party makes an offer, it must be accepted by the other party to be valid), and consideration. We also have capacity and legality, which are also elements of a legally binding contract.
Finally, you can draft a contract that is certain and enforceable with these principles in mind. Clarity and completeness should be your major objectives.
Consider paying an attorney for a review and repair of your document if setting up your legal contract yourself gets too daunting. At the end of the day, a contract can only be enforced if you make it work.
Read also: here’s my legal cheatsheet explaining how you can become a paralegal even though you don’t have the experience!