Understanding Secondary Obligations: The Importance of Written Agreements and Potential Legal Defenses

Does a secondary obligation need to be in writing? What can someone defend themselves under if sued for a secondary obligation that wasn’t written?

Yes, if the obligation isn’t written, a defense can be raised under the statute of frauds.

Whether a secondary obligation needs to be in writing or not depends on the type of obligation and the laws of the jurisdiction in which it was made. In some cases, a written agreement is required for the secondary obligation to be enforceable, while in others, an oral agreement is sufficient.

For example, some jurisdictions require contracts involving the sale of real property to be in writing and signed by both parties, including any secondary obligations arising from the sale.

If someone is sued for a secondary obligation that wasn’t written, they can potentially defend themselves on a number of grounds. One possible defense would be to argue that the secondary obligation was never agreed upon in the first place. To support this defense, the defendant would need to show evidence of the negotiations that took place prior to the agreement, such as witness testimony or emails/text messages.

Another defense may be to argue that the secondary obligation was invalid for some other reason, such as that it was based on a mistake, fraud, or duress. In this case, the defendant would need to provide evidence to support their position.

Overall, it is always advisable to consult with an attorney if you are being sued for a secondary obligation, as the specific factors that determine whether the obligation is enforceable or not will depend on the particular circumstances of your case.

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