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A breech of a verbal contract

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fullat

Junior Member
A breach of a verbal contract

What is the name of your state? Texas
I have a verbal agreement with some one to settle a financial issue. The agreemment was that I would pay $7000 cash and the remaining $10,000 to be paid at the sale of my house. Then we agreed that he would put that in writing and include a sentence that would release me of any obligations. However when he started writing the draft of the agreement, he change the agreement to where it says that the $10,000 should be as a promissory note against my house or it will be paid in 10 years which ever comes first. He also added that if he passed away, the money should be paid to a local charity. So, I said I don't want to put a lien against the house, since this is not a part of our agreement, and it will prevent me from taking a home equity loan. I asked him to adhere to our original agreement which does not mention anything about the promissory note or the charity. He got mad and said that he has the right to demand for all the money to be paid all at once. I do have a copy of the draft that he initially drafted and mentioned the promissory note, the 10 year limit and the charity. I don't have a draft of our initial agreement that did not mention those. I also have all the proceeding emails.

Can he change the contract the way he pleases, although I have a draft but it has not been signed, and will the court give me a lawyer if he took the case to court because he obviously can afford it but I can't?
 
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JETX

Senior Member
fullat said:
Can he change the contract the way he pleases, although I have a draft but it has not been signed
He can certainly OFFER to amend the agreement. And you can decline that offer, thereby NOT altering the terms of the previous agreement.

and will the court give me a lawyer if he took the case to court because he obviously can afford it but I can't?
Nope. That only applies in criminal cases. There is no obligation for the state to provide an attorney to answer your civil issue.
 

fullat

Junior Member
JETX said:
He can certainly OFFER to amend the agreement. And you can decline that offer, thereby NOT altering the terms of the previous agreement.


Nope. That only applies in criminal cases. There is no obligation for the state to provide an attorney to answer your civil issue.

What do I do next? Should I just sign the draft that I have although it is not the original agreement or wait till he files in court and just tell the judge? And will I be able to go to court without a lawyer in this case?
 

JETX

Senior Member
fullat said:
What do I do next?
Since you have only a verbal agreement at this time, and that is clearly subject to presentation, I would try to formalize it.
Send the other party a very nice letter (certified RRR) stating that you have decided to NOT agree to modify the existing terms. Then, restate what the existing verbal terms are.
Close with a statement like: "I intend, as I have all along, to comply with our original agreement as stated above and therefore, enclosed is my agreed next payment (or.... the next payment of $XXX will be made on (date) as per our agreement.)".

Obviously, keep copies of ALL correspondence and proof of delivery's.

Should I just sign the draft that I have although it is not the original agreement
Do not, repeat, do NOT sign anything that is NOT acceptable to you. The minute you sign anything, you are agreeing to alter any previous agreement.

And will I be able to go to court without a lawyer in this case?
You filed this is the 'small claims' section of the forum, so presumably this is a SC matter. As such, you do NOT need an attorney. However, it is important to note that if the other party has legal counsel, you will be at a disadvantage without the same.
 

JETX

Senior Member
I AM ALWAYS LIABLE said:
JetX, isn't there a Statute of Frauds problem on the original $17,000.00 verbal loan agreement?
Two things.....
1) There is nothing in the original post that would indicate that this was a loan. The OP only states that this is "a financial issue."
2) I presume your post is due to the amount of the agreement. If so, Texas law only requires that a loan greater than $50,000 be in writing (see below).
(Hell, Texans all have so much money that $17,000 is hardly worth squabbling over in the State of Texas!! We have been known to spend that much when out on a good night at the strip clubs!!).

There are other conditions that could require this agreement to be in writing. They are covered in the Texas Business & Commerce Code:
"§ 26.01. PROMISE OR AGREEMENT MUST BE IN WRITING.
(a) A promise or agreement described in Subsection (b) of this section is not enforceable unless the promise or agreement, or a memorandum of it, is
(1) in writing; and
(2) signed by the person to be charged with the promise or agreement or by someone lawfully authorized to sign for him.

(b) Subsection (a) of this section applies to:
(1) a promise by an executor or administrator to answer out of his own estate for any debt or damage due from his testator or intestate;
(2) a promise by one person to answer for the debt, default, or miscarriage of another person;
(3) an agreement made on consideration of marriage or on consideration of nonmarital conjugal cohabitation;
(4) a contract for the sale of real estate;
(5) a lease of real estate for a term longer than one year;
(6) an agreement which is not to be performed within one year from the date of making the agreement;
(7) a promise or agreement to pay a commission for the sale or purchase of:
(A) an oil or gas mining lease;
(B) an oil or gas royalty;
(C) minerals; or
(D) a mineral interest; and
(8) an agreement, promise, contract, or warranty of cure relating to medical care or results thereof made by a physician or health care provider as defined in Section 1.03, Medical Liability and Insurance Improvement Act of Texas. This section shall not apply to pharmacists.


If this is in fact a 'loan agreement', that would be covered under the following in the same Code:
"§ 26.02. LOAN AGREEMENT MUST BE IN WRITING.
(a) In this section:
(b) A loan agreement in which the amount involved in the loan agreement exceeds $50,000 in value is not enforceable unless the agreement is in writing and signed by the party to be bound or by that party's authorized representative.


These are found at: http://www.capitol.state.tx.us/statutes/docs/BC/content/htm/bc.003.00.000026.00.htm
 

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