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Don't Take Their Word For It - Get It in Writing

One of the biggest mistakes people make here in New Mexico and elsewhere is making agreements with others that are not in writing. In New Mexico, the law known as the “Statute of Frauds” establishes which contracts must be in writing to be enforceable by a court.

Basically, any agreement that cannot be completed within one year must be in writing. So if a homeowner hires someone to put shingles on his or her roof and the price is agreed upon by both parties, then it does not need to be in writing because it is extremely unlikely it would take a year to do the job. If the homeowner fails to pay for the work after it has been performed, then the roofer could demand payment and then sue the homeowner even if the agreement was not in writing.

By contrast, if someone plans to lease a car for three years from a dealer, then it must be in writing. If the lessee, the person leasing the car, defaults on making his or her regular payments, the dealer will not be able to sue the lessee if the agreement is not in writing.

Now, in the realm of employment contracts, the law in New Mexico is somewhat different. Only agreements to employ the person for more than two years need to be in writing.

The Statute of Frauds law in New Mexico also requires that any transaction involving the sale of goods valued at over $500 must be in writing regardless of the timeframe involved.

It is advisable to make sure every agreement is in writing. With email communication, it is very easy to communicate an offer to the person or company in which you are contracting and ask them to confirm the substance of the agreement. To satisfy the Statute of Frauds, the written instrument or memorandum must contain the following elements:

  1. The identity of the parties to the agreement
  2. Identification of the subject matter of the agreement
  3. The terms and conditions of the agreement
  4. Identification of the consideration: what each party to the agreement does for the other
  5. The signature of the party against whom enforcement of the agreement is sought

Because of the need to satisfy these elements to protect your position, you should consult with counsel who can draw up an agreement that meets these conditions. The attorneys at Giddens & Gatton Law, PC provide representation for those who want to enter into a contract. Call the Law Office of George “Dave” Giddens at (505) 633-6298 or visit the website at www.giddenslaw.com to discuss with one of our attorneys the best way of approaching a transaction you are considering.

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