To write or not to write

“Get it in writing!’ is the advise offered when entering into a contract. Too true. In particular when the parties have no relationship. If you want the law to back up your claim in an agreement, then it is a lot simpler if the terms are written out and both parties have signed in acknowledgement.

However, things aren’t always spelled out in a contract. A while back, in small claims court, I listened to a judge pull the rental agreement between a duplex owner and a tenant, one question at a time. It was clear he had some experience ferreting out these types of arrangements, to help settle who owed what to whom. He didn’t seem aghast that the plan at hand was verbal not written.

And before you judge, how many times have you clicked through the ‘I accept’ box without taking a moment to read what it is you are accepting? Written out yet neglected. We rush around our lives assuming the best.

Sometimes no one is clear what that ‘is’ is in particular. Technology has generated some truly stunning options, options unanticipated. When facebook provided that opportunity to reconnect with childhood friends around the world, it was intoxicating. Did I click right through the user disclosures agreeing to let their algorithms stalk my life and sell the information to advertisers? Yep. (or wait–were their any concerns of data privacy at the start?)

Written or not written. It’s not practical to put every moment of our lives into a written contract. Say you wanted to ride share with another family. You divvy up the chore, one takes the girls to girl scouts, the other to lacrosse practice. Stuff happens. Things get cancelled, rearranged, people have to be flexible.

Maybe one family does bare an larger burden. There’s no official settling of accounts, but for the relationship to sustain further commitments of work towards the children’s on-going experiences, more than likely there is some sort of make-up. Interaction continues. And this pattern can be seen in workplace groups, covering for each other or coordinating on projects. Work, exchange, work.

And when this pattern continues over a long period of time, people trust it. They rely on it. Home buyers, except for rare exceptions, diligently sign the stack of documents as indicated by the manicured finger of their closing agent. There’s no flinching at the part where the bank can foreclose for non-payment. Buyers rely on the knowledge that banks are competitive, consistent and regulated.

Consumers rely on a business climate. That many thorny issues have already been washed through mediation or courts by objectors who took their time to point out injustices. How can that be? It’s certainly not true everywhere in the world. The answer might be something like, “In the US we have institutions which allow consumers to trust the mortgage financing system.”

So in effect, institutions are the culmination of work which goes to enforce unwritten contracts on how to behave in (this case) the mortgage business. We have written contracts too, of course. But the trust in the system, the cart blanche, ‘I don’t need to have an attorney review this’ part is a trust based on social behavior and outcomes. Based on the knowledge that others have gone to bat and secured enforcement or change. That people were consistently able to work toward an outcome secured in the spirit of the transaction.

People often refer to institutions as a set of rules. I see institutions as the structure which allows work to occur and be captured in a non-fungible manner within a community. The greater the repetition, the greater the trust, the stronger the institution. We may even discover the value of unwritten contracts to far exceed the value of ones spelled out in ink on paper.

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