Why Have a Contract?

My father has always loved the old Chinese proverb “The faintest ink is more retentive than the best memory.” (No, that’s not the standard translation, but that is what I grew up hearing.) He also has his own saying, which I have adopted – “If it’s not in writing, it never happened.”

Both of these sayings make the same point: you have a much better chance of remembering something if it’s written down somewhere. That’s true in most any context: birthdays, shopping lists, appointments, that chocolate fudge cake recipe your spouse loves so much…

Putting things in writing is especially important if you ever have a disagreement about what was agreed on. If someone insists that you promised to bring five dozen cookies to the office holiday party, and you don’t recall ever making any such promise, it can quickly devolve into a “he said, she said,” argument (not to mention having to deal with angry, cookie-deprived coworkers for the next month). If there was a note, text or email chain on the subject, the whole ugly conversation could be finished much sooner – or avoided entirely, since you would have remembered the cookies if you had agreed in writing, right?

If matters escalate, and a neutral third party gets involved (like, say, a judge in a court of law), written evidence of what was agreed on becomes critical. Whenever there is a dispute over broken promises or unfulfilled agreements, the first thing the courts will ask is, “Is there a written contract?” (And if there is, the second, and in some cases last, thing they ask is, “What does the contract say?”) In some cases, a written agreement is required in order to have a valid contract; in others, the courts will fall back on statutory law and/or industry standards when the contract is missing, or when it’s silent on the disputed topic. Going before a judge without a written contract is rather like playing Russian roulette – you may come out fine, or you may end up in a lot of pain. A written contract makes the outcome much more certain. It’s also much more difficult for someone to deny they promised something when you can point to the exact page the promise is on.

As I already said, this can be applied to many different contexts, but I’m going to apply it to book contracts, because that’s my specialty. Authors should always, always, always have a written agreement with an agent and a publisher. They should also make sure that they read that agreement, and have a solid grasp of what the contract says before they sign anything. If it reads like an excerpt from a Greek odyssey (or possibly the Latin Vulgate), then they should find someone who can translate it for them. It can be an attorney, an agent, or their next-door neighbor, just as long as the person understands the contract and can explain it in a way that the author understands. One of the worst (and most common) mistakes authors make is signing a contract and realizing later what they agreed to (or what the publisher didn’t agree to).

A written contract puts everyone on the same page (pun intended). Make sure that all your agreements are in writing, that all the terms are clearly spelled out, and that you know exactly what you and the other person are promising to do. If you need any help with that, you are welcome to contact me at kaway@kawaylaw.com.

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