Ask Jeff

Must contracts be in writing?

Not all of them, but it is a good idea to have written contracts for your dealings with galleries and clients.

Without knowing it, we enter into contracts all of the time. You walk into Utrecht or Pearl and buy a tube of cobalt blue paint for $12.95. On the wall you see a poster stating that all returns must be in 10 days with receipt. You hand over the cash, are given the paint and a receipt, and you leave. You have just entered into and, absent a return of the paint, fulfilled a contract, without ever signing any written document marked contract

Why? Because such transactions have all of the elements required by law to form contracts. There must be an offer (here, the offer of the tube of paint at a specific price with clear return requirements), an acceptance of that offer (you take the paint off the rack and bring it to the cashier), "consideration" exchanged for the offer (your $12.95), and the necessary terms of the contract must be stated with sufficient clarity. Similarly, when you offer to paint a portrait of another at a set price with payment terms and sitting requirements set, and your client accepts, you have entered into a contract with clear terms. When you take a painting to a gallery for a thirty-day consignment, and the gallery owner tells you that he will take 50% of the sale price if sold, and you leave the painting with her to sell, you have entered into a contract

The law only requires that certain contracts be in writing to be enforceable in the courts. These include contracts for the sale or lease of a house or other real estate, contracts that by their own terms cannot be performed within one year, and the sale of "goods" valued at over $500 (your artwork may or may not be a "good" for this purpose). Otherwise, oral contracts are enforceable in the courts. It's just a question of being able to prove the terms of the contract when nothing is written down. Not impossible, but hard to do. In future columns, we'll explore what needs to be set down in your written contracts, what remedies you may have for breach of contract, and perhaps how to prove that you have an oral contract.