October 27, 2026
An oral contract may be enforceable. But there are reasons why the old saying is that an oral contract is worth the paper it is written on.”
THE ISSUE
The problem is how do you prove that certainty through only oral evidence?
We have written before about the need for solid evidence to win your case, and in particular, the value of documents as evidence. By definition, an oral contract lacks that evidence.
THE CASE
This is illustrated by the decision of the Ontario Court of Appeal in Victim Services Toronto v. Dabrowski , denying an appeal from the judgment of a Superior Court judge on an application.
The case dealt with a whether there was an enforceable agreement about either the custody or transfer of legal ownership of a dog, Dandy, to take effect following Dandy’s retirement from work as a therapy dog.
We have commented recently on the judges dislike family law disputes about ownership of cats. No such disdain was shown in this case, perhaps because it was a dog, but more likely because it was a therapy dog, not a pet. The underlying principles remain the same – animals are property, and ownership or control is governed by the law of contract.
The application judge ordered that Dandy be returned to the applicant victim services organization. The Court of Appeal commented on the judge’s careful review of the record. In an application, there is not normally any oral evidence. The case is decided based on affidavits, and transcripts of cross-examinations held outside court before the hearing. This is part of the “record”.
The judge stated that there was not certainty as to the essential terms of the contract. In particular, they pointed out that:
- it was unclear whether the agreement was about ownership or custody;
- there was no agreement about responsibility for costs of Dandy’s care;
- there was no certainty as to the end date of the arrangement;
- there was no schedule for taking care of Dandy;
- there was no discussion of consideration (that is, payment or some sort of exchange of value).
The absence of consideration alone is enough reason for a judge to decide that there is no binding contract. Not every promise or agreement is enforceable. Consideration is essential to show that the parties the parties treated the situation seriously enough to create a binding contract.
Oral discussions also often leave it unclear whether or not the negotiations result in a final agreement. Negotiations alone do not necessarily mean that there was a contract.
TAKEAWAYS
- Evidence is always needed to win your case.
- This includes oral contracts.
- One problem with oral contracts is that often the only evidence is the recollection of the parties, and their actions.
- Another problem is that recollections may vary.
- Even where recollections match, they my not recall enough details to prove the essential terms of a contract.
- What are the essential terms may vary, but they always require agreement on price, what is being exchanged or provided, (the subject of the contract); duration, and consideration.
- Reducing these terms to writing is a better way to make sure that your deal is enforceable.
- For important agreements, having a lawyer assist in reducing that agreement to writing will help ensure that those essential terms have actually been agreed to.
- A written agreement is also more reliable, or better, evidence, than your recollection.
WHAT WEILERS LLP CAN DO TO HELP YOU
Weilers LLP has a corporate team that, in addition to being trusted advisors and deal makers, is equipped to document your corporate activity, including key contracts, at predictable and manageable costs to give you peace of mind.
If a dispute arises about your rights, our litigation team has extensive experience in resolving disputes, including taking them to court in a timely and cost-effective fashion, when necessary.
Whether you need help documenting your agreement, understanding your rights under an existing contract, or enforcing that contract, feel free to contact us to see if we are the right lawyers for you.