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Articles in this section are of general information and in every situation are subject to the application and interpretation of a law, rule or factual situation that may differ. Consult us for any specific question.

The verbal modification of a contract

28 March 2018

On your lawyer’s recommendation, you have signed a written contract with your client to protect yourself in the event of a dispute. After all, it’s a long-term contract that is important to your business.

Gradually, trust has been established with your client and your contract has aged, to the point where it does not really reflect what was originally agreed. Along the way, changes were made regarding the services rendered, the prices and the applicable deadlines. Now, you are in a dispute with this client and you have to go to court. Your client falls back on the original written contract while you allege the numerous verbal changes made. Can you validly prove in court the verbal agreements made after the written contract?

Yes. But there is a big but. You will need commencement of proof. Commencement of proof is a broad concept. It must come from the other party and must make the alleged oral verbal contract probable. For example, it may be an email confirming a fact that is otherwise inconsistent with the written contract, or checks that contain certain information. Commencement of proof may even come from the behaviour of the other party during their testimony.

And if the testimony is allowed, nothing can yet be taken for sure, as it doesn’t mean the court will give credence to your side of the story, especially if it differs from the other party’s version! The result will be largely random and you better write down the changes to your contracts, even with your most loyal customers!