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This must depend on a state. Let's take some small state like Arkansas, or Michigan. (In my experience California, Florida, and Alaska are outliers :) . Other states have similar laws.) Arkansas is one of those states with "typical" laws. Here is an extract from the guideline

The length of time you have to file depends upon the type of claim you are bringing. If a written agreement has been broken or breached, you have five years after the date it was broken to file your complaint. If an oral agreement or contract, rent or injury to goods is involved, then you usually have three years to file your claim.

If you agree about something by a phone call, then this is a oral agreement, right? What if the other party got that call recorded? (In Arkansas it is legal to record phone calls if one party agrees to that.)

What about text messages? Are those considered a written or oral?

  • This forum is a "form of a conversation" but is written. Does the law in your particular jurisdiction or in the guideline define "written agreement?" A text message is in writing; just because it is usually or often done on a device capable of telephonic oral communication doesn't transform it into a spoken (oral) medium. Is there something I'm missing from your question? – Dave D Apr 19 '16 at 21:24
  • i think you are absolutely right. I also think it is "written" . I tend not to trust my "gut feeling", so i decided to ask experts – Emily Apr 20 '16 at 20:18
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It's not clear whether you mean that the entire agreement is carried out by text message. If you have a paper or electronic document stating what the parties will do, that is the agreement, and signatures are a conventional form of proof that there is an agreement. A handshake or a verbal statement – or text mesage – could also serve as evidence of the agreement, though there could be problems with the quality of the evidence (e.g. how do the witnesses know which piece of paper you agreed to).

There is not a huge body of law surrounding text messages (and apparently none regarding text messages and contracts). We know that a text message is not a "printed receipt" (Shlahtichman v. 800 Contacts), and that a text message is a "call" w.r.t. the Do-Not-Call law (Campbell-Ewald Company v. Jose Gomez, Keating v. Nelnet). The closest that I have been able to come in terms of a decision about whether a text message is "written" is Commonwealth v. Mulgrave 472 Mass. 170, which states that

While Massachusetts appellate courts have yet to approve admission of text messages or any other writing under the spontaneous utterance exception to the hearsay rule...

The wording "any other writing" implies that the court believes text messages to be "writing", which of course it is if you look at the plain meaning of the word "write".

Contracts can be formed and signed by email: 15 USC 7001 states that

a signature, contract, or other record relating to such transaction may not be denied legal effect, validity, or enforceability solely because it is in electronic form....a contract relating to such transaction may not be denied legal effect, validity, or enforceability solely because an electronic signature or electronic record was used in its formation

so the fact of electronic writing does not make the contract non-written.

There must be a venerable and well-known rationale behind the written / oral asymmetry, which presumably has to do with the volatility of memory which would be front and center in a dispute about oral contracts.

FRE 1001 "clarifies" that a "writing" consists of letters, words, numbers, or their equivalent set down in any form, and that a "recording" consists of letters, words, numbers, or their equivalent recorded in any manner. 15 USC 7001 also states that

An oral communication or a recording of an oral communication shall not qualify as an electronic record for purposes of this subsection except as otherwise provided under applicable law

So a recording of an oral contract would be useful to prove that there was an agreement, but would not change the fact that the contract is oral.

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An agreement via text is a written agreement.

An agreement via phone is an oral agreement. A recording of the call does not change the form of the agreement.

Irrespective of an agreement being oral or written, parties can argue about who said what and what they meant and all that. These arguments will available or unavailable under various legal doctrines but the statue of frauds is the most common. The statute of frauds is a doctrine that tells us which types of agreements must be in writing (the acronym MY LEGS helps us but I'm not going into that). In other words, certain oral agreements are not enforceable even if you have it recorded, in full HD with 7.2 surround sound and the entire church swearing on their witness accounts. See Sawyer v Mills, Sup Ct KY 2009.

You are quoting the rules for small claims court. Those are specific to that venue. They are creating some limitations on the types of cases they will hear. If you don't qualify for small claims because of some of those rules, the regular courts may be available.

  • 1
    Although, the 3 year oral vs. 5 year written time limit on all contract litigation is extremely common in the US, and in fact is the basis in Arkansas for what small claims court says in their pamphlet. – user6726 Apr 20 '16 at 5:03

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