By Obiter 07
It seems absurd to even contemplate, but what if you lose a contract? A contract is not like a comb, a ring or a book that you just misplace or forget where you have left it. But that is what the Philippine government seems to be claiming with respect to a major broadband contract with a Chinese company. Assuming it really happens to you, what can one do when one loses his contract?
First, you try to remember, how many copies were made? It seems so tedious signing all those copies but they do serve a purpose. Then you try to trace where those copies went to. The party with whom you signed the contract would have a copy and you can certainly ask for one. He would probably give you the contract, if not a duplicate original, then a photocopy. If the broadband contract has suddenly passed through a blackhole or on to a parallel universe, then we can always ask the Chinese counter-part for a copy. But, assuming you are now having problems with your contract’s other party and no copy is forthcoming, and he may even be inclined to deny such a contract existed, is there anything else you can do?
Well, if it’s a contract that was notarized then you can get a copy from the notary public who can even give you a certified true copy which is almost as good as the original. He is required to keep an original and to forward one to the Clerk of Court of the Regional Trial Court having jurisdiction over his office. And if that fails, a copy should be with the National Library where all the documents are later sent for filing.
But what if there is no such copy to be found and the other party denies such a contract ever existed, what can you do?
Why should contracts be written anyway? Isn’t a handshake enough? It could be, but when the handshake is denied, nothing beats an agreement in writing. But the law actually requires only certain types of contracts to be in writing.
To paraphrase, these must-be-in-writing contracts are: (1) those which state that they are not to be performed within one year from their execution; (2) a promise to answer for a debt, default or miscarriage of another (like a guarantee); (3) an agreement in consideration of marriage; (4) an agreement for the sale of personal property for P500.00 or more; (5) a lease of more than one year or the sale of real property; and (5) a representation as to the credit of a third person (Article 1403, New Civil Code). A contract covered by the foregoing classification which is not in writing cannot be enforced, so you cannot compel a party to perform it even if you both know the contract exists. The courts will not help you.
If your contract is not covered by the listing above, then it doesn’t have to be in writing and you can prove it by oral or other evidence, which simply means saying that there was such an agreement. And even if it is covered by the list above, the requirement that an agreement be in writing does not apply if the contract has been performed or observed, whether fully or partially.
So if you’ve agreed to buy a car and have paid a deposit, you can claim that there is contract even if the law requires that this be in writing. The contract has already been partially performed in that case.
Now when it is not your spouse but your very representatives in government who seem to have the penchant for losing major contracts just when you want to examine them, you may be well entitled to think of changing or replacing them. For the avoidance of doubt, we meant changing your representatives and not your spouses, as the latter are covered by, alas! a written agreement - the marriage contract. And it’s enforceable even if you misplace it by accident or hide it by design (again, the contract not the spouse).
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