Randall W. Morrison, Attorney

addressed a few misconceptions in an earlier article in this newspaper on use of deadly force in self-defense situations. Some people believe that if you take deadly force against an intruder or would be felon coming in to your home, you should “drag them over the threshold” after you subdue or “neutralize” them. I suppose this is thought to be necessary to enhance your claim that your home or business was actually being invaded at the time. That “principle” is nowhere near the law…nor is it advised. In fact, it would be a crime to do so. Some folks believe that an agreement or contract must always be in writing to be enforceable. That’s not true. It is certainly helpful if there is a written agreement, but it is not always necessary. In many cases, verbal agreements or contracts can be just as enforceable as written ones. In fact, there are only a few contracts or agreements that must be in writing to be enforceable. Those contracts include an agreement to sell an interest in real property, or a lease of real property for over 1 year, agreements to pay the debt of another, and agreements for the sale of goods (personal property) over the value of $500.00. If you have an agreement with someone and it will take longer than one year to complete, it generally must be in writing to be enforceable, too. There are a couple of others but for our purposes here those are the important ones to know. The writing that the law requires to evidence or prove this contract or agreement does NOT need to be anything formal nor does it need to be signed by both parties! The writing must describe the nature or terms of the agreement and recite the consideration…i.e. what is to be done and/or what is to be paid. The writing needs only to be signed by the party to be “charged” which usually means the one having to be sued over the contract…the defendant. For example, suppose I send you a signed letter stating we have agreed that I will buy your 40 acres on Hoo Doo Pike for $50,000, or my signed letter sent to you states that we have agreed that I will buy your blue 1965 Mustang for a $10,000 and I later renege. Suppose again that my nephew, Terry owes you $100.00 for a load of firewood and he refuses to pay. I send you a signed letter stating that I will pay you the $100.00 he owes you. In any of those examples you can evidence our agreement and hold me to the contract with the introduction into evidence of my signed letter proving our agreement. But remember what I said…some contracts have to be in writing to be “enforceable”. I did NOT say some contracts have to be in writing to be legal. A verbal agreement of any kind (for a lawful purpose, of course) can be legal as between the parties. However, if there is some dispute and court action is necessary to enforce the contract, then the question might arise concerning whether it needs to be in writing to be enforceable. The law listing those contracts that must be in writing to be enforceable is generally known in most, if not all states, as the “Statute of Frauds”*….makes sense I suppose, when you think about it.

What about notarized documents? Are they always admissible in court? Does the fact that something is notarized make it “more legal”? It might… but only in the way of authentication of a signature and/or that an oath was sworn to by someone. The question on the use of notarized statements usually arises when someone wants to enter evidence or testimony of someone who can’t be present, by offering a notarized statement in place of their testimony. I hear this all the time. A client might say “I have a witness who can’t be present because of work but they are willing to give a notarized statement to the court”. It’s not admissible, it is hearsay. When a party introduces witness testimony in court, the other party or their attorney has the right to a cross examine that witness. You cannot cross examine a written statement that some 3rd party made outside of court... notarized or not. There are some very limited exceptions to this rule such as in will contest or where there is a statutory exception made for sworn accounts in debtor- creditor lawsuits, along with a few others. Just remember however, that a notarized document is a document that ONLY confirms a signature as authentic or that a statement is made under oath such as in an affidavit. Again, just because it is notarized does NOT make the statement “more legal” or admissible and it does NOT, by virtue of being notarized, make the statement any more credible.