What makes a legal document "Valid and Enforceable"?

In today’s world, there is no way to avoid dealing with contracts, legal agreements, documents, and other legal instruments on a regular basis, especially if you own a small business. When we need to put something in writing to formalize a commitment or agreement between two or more people or companies, our main concern is that it is legally enforceable if one of the parties to the agreement does not comply with its terms and conditions. Another important consideration is the cost of putting the relevant terms and conditions in writing. Before deciding whether to create an agreement ourselves; use a legal form; or hire a lawyer, we want to make sure that the end result is legally valid and enforceable.

For all of us who aren’t lawyers, getting a simple answer to even the most basic legal question can be both difficult and costly. Sometimes it seems that there is some kind of conspiracy to prevent us from being able to meet our basic legal needs more simply and cheaply so that we can save our legal dollars for more complex matters. So what we really want to know is how to legally protect ourselves in the most cost-effective way possible. So what makes a legal agreement valid and enforceable?

That sounds like a pretty easy question, right? Mistaken! My interaction with the legal community began while I was still in college working part-time as a paralegal on title work. Although I had taken some paralegal courses, I received my hands-on training from both a junior attorney and an experienced paralegal at the firm where I worked. The quality of my training differed substantially depending on who was doing the training. Every time I asked the lawyer a question, I received long lectures but few direct answers. For meaningful training, my time was much better spent with Anita, the paralegal, who always gave me real answers to my questions so she could do my job.

In the decades since my job as a paralegal, I have retained countless attorneys for business and personal matters. From time to time over the years I have tried various attorneys to give me a straight answer to that very important question: what makes a legal instrument legal and enforceable? I don’t know if it’s because lawyers take a secret oath like magicians never to reveal the secrets of their profession or for some other unfathomable reason, but each response I received reminded me of the non-responses I used to receive from the young lawyer. from my paralegal days. That is, until recently, when I met a highly respected and recently retired attorney who had specialized in contract law. He shared the following with me:

• If you were to give three written agreements (a) one written collectively by the justices of the US Supreme Court, (b) one on a pre-created form, and (c) one written in crayon by the parties to the agreement, could Not claim ANY of them as valid and enforceable. He explained that only courts had the legal capacity to declare all or part of an agreement as legally valid and enforceable. Furthermore, courts intervene only if an agreement is legally challenged by one of the parties or by an external entity with legal capacity (something the court also decides). If no one questions an agreement and all parties abide by its terms and conditions, the issue is not relevant.
• No matter who creates a legal agreement, it can be challenged at any time, for any reason.
• The more “frank” and clearly written the document, regardless of who created it, the more likely it is that courts will uphold its terms and conditions if challenged.

The bottom line is that paying a lawyer to draft simple contracts and agreements is not a panacea and the premium you pay does not guarantee that it will remain “legally valid and enforceable” if challenged.

Now that I have a better understanding of the issues involved, I’m much more willing to use pre-built forms. I am also more likely to create my own simple agreements and authorizations when circumstances allow. There are many alternatives to consider when deciding which approach to take in addressing your legal needs. Take the time to consider the various tools available before deciding which solution best suits your circumstances and budget.