Written is Written

31 07 2017

As we all know, the horse industry is rife with people who operate without formal written agreements with regard to all sorts of things – sales, leasing, boarding, breeding and shared ownership, among many other scenarios. Why is this? Some would say it is because the relatively small community of horse people feel a kinship with each other and believe that we should be able to trust each other to do what we say we will do. Others say it is because in the horse industry there are more than the average amounts of individuals who want to engage in unethical conduct and they do not want any written evidence of it – or perhaps more common, they want the ability to change course later and then deny what they previously promised in oral communications. Whatever the reason, the habit of a large component of the horse industry is to do things solely via oral communications or, as some say, “on a handshake.”

Many articles have been written about the risks of doing anything on a handshake, especially entering into relationships as complex, nuanced and volatile as an equine arrangement. Yet the handshake arrangements persist and I receive several calls a month involving a disagreement which arose as the direct result of one party believing an agreement was A and another party believing it was B.

What many “handshake” agreement lovers do not realize is that just because you do not have a formal written agreement that says “Contract” or “Agreement” at the top of the page with the terms spelled out, you may still have written evidence of your agreement – albeit woefully inadequate evidence. Instagram comments, Facebook posts, Facebook Messenger messages, emails, text messages and other forms of electronic communication are indeed written communication. And in the absence of a formal legal agreement documenting your arrangement, the courts will look to this ancillary written evidence to construct its best guess as to what your agreement was. It happens over and over that people send messages, emails, texts or the like while emotions are high and then regret their comments (and misstatements) later. In the contract scenario, those emotional writings can really hurt your case if they are shared with a judge and/or a jury. While those very writings may be the only written basis for a court to determine the terms of your agreement, nine times out of ten those writings are not an accurate representation of what the parties agreed to.

Lessons to be learned here? First, have a written agreement for any transaction in which you engage in the equine world, no matter how small or seemingly insignificant. Ideally you would hire an equine lawyer to draft it, but even if you do not choose to do that, at a minimum write down (a) the legal names of the parties to the agreement; (b) the terms upon which the parties agree (as clearly as possible); and (c) have everyone initial each page and sign and date the end of the document. There is a lot of risk to doing it yourself like this, but it will (hopefully) be better than nothing. Second, do not communicate about your agreement via social media or email unless (a) you are extremely careful with what you say; (b) you understand the ramifications of what you are saying; (c) you have made sure what you are saying is consistent with any other things you have written about the situation (assuming what you said before was correct); and (d) you are willing to live with the consequences if you are wrong about your decision to communicate through these avenues. In short, it’s much easier to refrain from using social media to comment on any arrangement than it is to safely navigate social media. Social media commentary is written evidence of your agreement. Likely incomplete and sometimes emotionally charged written evidence, but written evidence nonetheless. If you can print it on a piece of paper, it is written. Written by hand or by a laptop or an iphone or an ipad is written, so do not forget it and be careful with your words!

If you get into a bind and need assistance or just want to ask some general questions to avoid getting in a bind, feel free to email me at dburch@rl-law.com.  I used to answer quick questions for free if I could, but I am getting so many calls for free legal advice that I am having to start charging a little something for an initial chat! A good problem to have, I guess 🙂 Starting January 1, 2019, I’m going to be charging $99 for a 30 minute general question session. You won’t be engaging me as your lawyer and we won’t talk specific names because that requires conflicts checks, etc., but frequently I can help folks a lot in 30 minutes. Can’t guarantee it, but usually I can at least give you some direction or general thoughts about a general type of situation. If you don’t hear back from me quickly, it’s not because I don’t love you or think you have a great question or because I don’t know the answer (usually), I’m probably just really busy and haven’t had a chance to email back.  You can check out our firm’s Equine Law Group at www.rl-law.com if you’re interested, and yes, in addition to providing what I hope are interesting and informative stories and information, this blog is also an advertisement for legal services.  I have to tell you that in bold, says the State Bar.



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