I have no written contract with my home contractor. Can I still sue?

Taking legal action against a home contractor on the basis of an oral agreement.

Question

A few months ago, my living room flooded and my carpet was ruined. I needed a contractor to come and replace it. I looked up contractors online, and found someone with the relevant experience. She came to my house, looked around, and we agreed on a price and work schedule. We never had a written agreement. After she “finished” installing the new carpet, I realized that it was the wrong color and the wrong fabric. She also wants to charge me more than we originally agreed. Can I sue, even though we don’t have a written contract? Can she sue me?

Answer

One of the dangers of doing business without a written contract is that you can end up with he-said-she-said situations.

First of all, you can sue your contractor for breach of contract, even without a written contract, and she can sue you as well. The statute of frauds – the legal doctrine that speaks to when a contract must be written to be enforceable – generally does not bar the enforcement of a contract for the provision of services. In other words, the two of you may have created an oral contract, on the basis of which either of you can sue.

Given the small amount of money at stake, small claims court might be your best option, allowing you to proceed without hiring an attorney. See Nolo's article, "Breach of Contract Cases in Small Claims Court," for more on this.

However, an alleged oral contract does create difficult evidentiary questions for the judge. As the plaintiff (the person suing), you would have the burden of proving not only that you entered into such a contract, but that you and your contractor had agreed to a specific type of carpet, and that she then provided a different type of carpet.

The mere fact that the contractor showed up at your house and did some work (which she isn't likely to disagree with) provides a good starting point for alleging that the two of you had entered into an oral agreement. If you made any deposits or partial payments to her, evidence of this will be helpful, too.

As to the specifics, you might need to come up with additional evidence, such as emails between you and your contractor, a witness to your conversations, or perhaps even carpet swatch samples that she provided.

Similarly, if your contractor wanted to sue you for money you allegedly promised to pay, she would need to show emails or to present witnesses, or otherwise show proof of the reasonable value of her services.

One important caveat: In many states, the statute of limitations (the legal time limits on how long you can wait before suing) is different for oral contracts than it is for written contracts. Typically, the statute of limitations on oral contracts is a bit shorter, reflecting the belief that oral promises might be forgotten over time. Therefore, as a plaintiff, you should be sure to double-check the relevant statute of limitations in your state to ensure that you don’t miss your opportunity to file suit.

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