• September 19, 2012

Minnesota Litigator, after an exhaustive search, has been unable to find a single judicial decision in the history of U.S. law in which a litigant had the temerity to raise the defense to a breach of contract claim that the contract was void because, at the time he entered into the contract, the litigant’s fingers were crossed.  (This is the best I could find: “[The trial judge] was entitled to take [the criminal defendant] seriously, even though (he now tells us) he had his fingers crossed behind his back.”)

(And, by the way, “crossed fingers” are actually more of a contemporaneous silent prayer for grace, mercy, or forgiveness (that is, a confession of guilt) rather than a contract-voiding maneuver.)

So, then, if the “fingers crossed” defense is so comical and child-like that it can never be raised in a U.S. court, why is the defense of “I never signed the contract” so persisent?

Of course, the answer is that signing a contract does have some legal significance.  It suggests that a deal has been reached, that it is no longer “in draft” or subject to on-going negotiation.  (It can also be an express contract term, a “condition precedent.”)

Too often, however, litigants and their counsel seem to think a signed contract has some kind of decisive all-powerful legal significance, almost like a King’s seal or the President’s signature of legislation into law.

Generally, it does not.  If you’ve reached a deal, you’ve reached a deal and your claim that you never signed the contract, by itself, will very rarely cause a court to decide otherwise.  (For a recent example of this argument which almost seems premised on childlike “magical thinking,” see the linked case here, in which U.S. District Court Judge Joan N. Ericksen held in Rehbein Environmental Solutions v. Epic Green, “It is undisputed that the parties agreed to the Terms. Their contemplation of the reduction of the Terms to a signed agreement does not absolve [the non-signing party] of the agreement it reached.”

(Also Judge Ericksen’s decision includes a useful reminder to Minnesota litigators that a “forum selection clause is viewed as a separate contract that is severable from the agreement in which it is contained.”  So if two parties execute multiple agreements that include inconsistent forum selection clauses, a dispute about agreement #2 might justifiably be brought in a forum to which the parties agreed in agreement #1.)


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