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07/26/12 It's The Law: Contracts Can Be Express or Implied

It's the Law

CONTRACTS CAN BE EXPRESS OR IMPLIED

(07/26/12)

Question: I am a handyman. One of my customers recently asked me to paint his house. While I was painting, I found some other problems with the house. I told the customer that I would fix them and he did not object. Now, he will not pay for fixing them. Can I make him pay?

Answer: The answer to your question will depend on whether the court agrees you have a contract with the property owner. You have not supplied enough facts to determine if a contract exists, so I will generally discuss the different kinds of contracts that might be found in your situation.

The easiest contract to understand is an express contract. An express contract can be written or oral. In an express contract, the parties have agreed on all material terms. Your contract to paint the house was likely an express contract, under which the owner hired you to paint the house for a set price. When you complete painting, you are entitled to be paid the agreed amount.

Express contracts are the easiest to deal with as the terms are specified. In some cases, the parties may argue about the terms are ambiguous or otherwise incomplete, but generally the issue in an express contract case is focused on performance. Did one of the parties fail to do what was required under the contract?

Even where an express contract exists, extra work or material can be supplied. Where an express contract exists extra work or material can be supplied. Where no express contract exists concerning the product or service, , courts have created two additional types of contracts to try and avoid one party cheating another. They are known as contract implied-in-fact and a quasi contract or contract implied-in-law.

A contract implied-in-fact is an enforceable contract. It is based on a promise inferred from the conduct of the parties and not the actual words of any agreement. Since it is based on the circumstances and conduct of the parties, the court must interpret that conduct to determine terms of the unspoken agreement.

An implied contract can be found where one provides service or material requested by another. It can also be found where services are rendered by one for another without an express request, but with knowledge of the other and under circumstances which would reasonably include the presumption that payment would be due. In these situations, the court finds an implied contract and and implied promise to pay a reasonable amount for the services or materials provided.

In many cases, products or services are provided without an express contract.

A quasi contract is not a contract implied-in-fact but is implied in law. It is a complete fiction that creates an obligation to pay without regard to any indication of consent by word or conduct. A quasi contract can be found where one party receives a benefit under circumstances that make it unfair to retain it without payment. In other words, one party would be unjustly enriched unless payment is required.

For a judgment under quasi contracts, the plaintiff must show 1) that the plaintiff has conferred on benefit on the defendant, 2) the defendant has knowledge of the benefit, 3) the defendant has accepted or retained the benefit and 4) circumstances would make it inequitable for the defendant to retain the benefit without paying fair value for it. Because a quasi contract does not require any agreement between the parties, a plaintiff can be successful even where he has no dealings with the other party at all.

A quasi contract or a contract implied-in- law has been referred to by various names. Florida courts have referred to this "contract" as a contract implied-in- law, quasi contract, unjust enrichment, restitution, constructive contract and quantum meruit. All of these terms refer to the court's effort to avoid unfair enrichment by one party at the expense of another.

An express contract is preferable. But, where there is no express contract, all may not be lost. Circumstances of each case may provide the court what it needs to find a contract implied-in-fact or a contract implied-in-law. I recommend you meet with an experienced attorney to discuss your case in expanded detail to determine if you have a claim that may be enforced by the court. And, if you do, you can decide if the cost to pursue is worth it.

By: William G. Morris, Esquire

William G. Morris is an attorney with offices at 247 North Collier Boulevard, Marco Island, Florida. His practice covers a broad range of subjects, including civil litigation, real estate, business and corporate law, estate planning and probate, domestic relations and contracts. He writes this column periodically with respect to legal matters that frequently affect non-lawyers. The information contained in this column is not intended as legal advice and, of necessity, is generalized. For questions about specific circumstances, the reader should consult a qualified attorney.

Questions for this column can be sent to: William G. Morris, e-mail: wgmorrislaw@embarqmail.com or by fax, (239) 642-0722 or

The Marco Island Eagle

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