Can I be held liable to a contract that was lost? Part 2.?

Question

Thanks for the excellent feedback I received to my initial question!
The owner did not officially admit that he lost my original contract. He said to me in a phone call (I called him after I was served the summons....b/c I was so shocked):"The real contract is somewhere." Well,...why didn't he use that then in his summons? I think it took nerves to take legal action with a criminal act.
I lost all respect for this man...and therefore I can't remember now where I placed the copy of the contract I signed...:) I figure the proof is upon him. He should not have done this to me...I trusted him, and he knows I am not one to bail out of an obligation. Now I realize, though, that his bad reputation is earned...he really is a crook.... . I did file a dispute of the validity of the debt at court here. It's documented, and on file.
I was just wondering why his lawyer hasn't responded to the letter I wrote, requesting the original contract and bookkeeping records so I can compare. Good sign?

Answer 1

Loss of a contract means that there is no more basis of the agreement except that the parties can re-construct its provisions.
You cannot be liable because there is no contract to speak of when it is lost.

Answer 2

As I am sure you have already been told (missed original post), virtually all contracts can be proved by "parole evidence." That means, the plaintiff can testify about the terms of the agreement, the defendant can testify, and if they agree that there was a contract, a judge or jury determines the actual terms agreed upon and whether there has been a breach. The reason that contracts should be written is so that, when there is a dispute, the parties can look at the same document which (hopefully) spells out the rights, obligations, and remedies of the parties, and both parties (between themselves and in court) can determine their obligations.

The attorney for the plaintiff does not have to respond to any request for production of document unless (1) this is a large claim, which allows "discovery", in which case you still need to send a formal document "Request for Production of Documents" with the case caption, requesting the documents. In that case, the plaintiff's and his attorney has (usually) thirty days to respond (which can be extended by the court).

He has already said he cannot find the contract, and he need only say that he has looked and cannot find it. If it is not found a reasonable period of time before the trial (what is reasonable?? whatever the judge says!), he will not be able to introduce the document in court. HOWEVER, he can still establish the contract, not only by testimony about what the terms are, but by the prior conduct of the parties and other records.

Good luck!

Answer 3

Robert Dod is right about the parol evidence rule - I would just add that there are certain types of contracts that MUST be in writing to be enforced. In short, those types of contracts are:

1) Contracts in consideration of marriage (i.e., prenups)
2) Contracts which cannot be performed in one year (i.e., 5 year lease)
3) Contracts for the sale of an interest in land
4) Contracts by the executor of a will to pay debts of the estate with his/her own money
5) Under the UCC, contracts for the sale of goods valued at $500 or more, with some exceptions
6) Contracts in which one party becomes a surety (guarantor) for another party's debt or other obligation

I don't know what kind of contract you had with this person, but if it falls under the heading of one of the above, not having a copy of the contract should work strongly in your favor.

(This is not to be construed as legal advice, and I recommend that you speak with an attorney who is admitted to practice in your jurisdiction.)

Answer 4

I would love to see this whole thing go to Judge Judy. I wonder how long it would take for him to stumble into the truth about the forged signature. My guess, and I'm no expert, is that you'll be fine. If the lawyer hasn't provided you with the requested information, you're certainly under no obligation to continue anything on your end.

Answer 5

sorrry to hear that, hope you get this figured out!