Yesterday’s class on contract law prompted a number of students to ask variations on the same question: why does the law allow oral contracts? Wouldn’t one of the parties just lie in court about the contract’s terms? You can restate the question more broadly to ask why do courts allow witness testimony? Whether it’s two parties to an oral contract offering competing testimony about the contract’s existence or terms, or two divorced spouses in a child custody proceeding offering competing testimony about their relationship to the child, or a supervisor and employee offering competing testimony in a sexual-harassment suit, the issue is the same. A short answer is that our law has always allowed oral contracts unless the contract’s subject matter is governed by the Statute of Frauds, in which case the contract must be evidenced by a writing. If the terms are disputed then the law’s adversarial process deals with it as it does with any competing oral testimony. Attorneys subject the witness to direct and cross-examination and the jury or judge evaluate the witnesses’s credibility with the tools we use every day to decide whether to someone is telling the truth: body language, tone of voice, eye movement, nervous tics, uneasy laughter, etc.
This question involves what I call the proof versus right problem: do not confuse whether a person can prove her case at trial with whether she suffered a legal wrong and has a cause of action. In Introduction to Law I focus on the substantive issue–whether a person’s legal rights have been violated–not the proof issue–how difficult will it be to prove a fact at trial. Do people lie in court? Yes. Do people get away with lying in court? Yes, but most people don’t lie particularly well.