What follows are our general observations and opinions. This is not legal advice, it is not a definitive statement of California law, and every situation depends on its own facts.
A contract is generally enforceable in California when there are parties capable of contracting, mutual consent, a lawful object, and consideration — that is the framework the Civil Code sets out, as we read it. Most agreements that businesses actually sign clear that bar easily. Signatures, a written document and a price are usually enough to get there.
So the more useful question is not whether a contract exists. It is whether the contract says what you think it says, and whether the specific term you are relying on will hold up. In our experience disputes almost never turn on whether an agreement was formed. They turn on ambiguity, on a term a court will not enforce as written, or on a formality nobody thought applied.
The Four Elements, and Where They Actually Bite
Capacity is rarely an issue between businesses, though signing authority is — an agreement signed by someone without authority to bind the entity is a real problem, and it is worth confirming who is signing and in what capacity.
Mutual consent means the parties agreed to the same thing. Where it fails, it usually fails because the documents disagree: a purchase order and an acknowledgement with conflicting terms, or a term sheet whose provisions contradict the definitive agreement that followed. Consideration means each side gives something of legal value; a promise to do what you were already obliged to do is thin ground.
Lawful object is the one that quietly voids terms. Our reading of Civil Code section 1668 is that a contract cannot exempt a party from responsibility for their own fraud, wilful injury to another, or violation of law, whether wilful or negligent — which is why the broadest exculpatory clauses do not survive contact with a court.
Written, Oral, and the Ones That Must Be Written
Oral contracts are generally enforceable in California, and we have seen them enforced. The difficulty is evidentiary rather than legal: proving terms nobody wrote down, usually years later, with two sincere witnesses remembering differently.
Certain agreements must be in writing under the statute of frauds — real property transfers and leases beyond a year, agreements not to be performed within a year, guarantees of another’s debt, and others. We have written about that separately. Two things worth noting here: the limitations period on a written contract is longer than on an oral one, and an oral modification of a written contract can be problematic where the contract itself requires modifications to be in writing.
Terms That Get Struck or Narrowed
These are the provisions we look at first when someone asks whether an agreement will hold:
- Liquidated damages. Enforceable in the commercial context on our reading of Civil Code section 1671 unless the challenging party shows the provision was unreasonable under the circumstances existing when the contract was made — a comparatively permissive standard, but not an unlimited one.
- Limitation of liability and exculpatory clauses. Generally workable between sophisticated commercial parties, subject to the section 1668 limits above.
- Indemnity. Enforceable, but the scope is read closely, and an indemnity intended to cover the indemnified party’s own negligence needs to say so clearly.
- Unconscionability. Courts assess both how the contract was formed and how one-sided its terms are. This arises most often with adhesion contracts rather than negotiated commercial agreements.
- Arbitration clauses. Broadly enforceable, but the details — cost allocation, forum, mutuality — get scrutinised.
- Conditions precedent. Not unenforceable, but frequently fatal to a claim, because a party that failed to satisfy a condition often cannot enforce the obligation it unlocked.
The Boilerplate That Decides Cases
The provisions at the back of the agreement are the ones our clients have most often never read, and they carry more weight than their placement suggests.
The integration clause determines whether anything said during negotiation can be used to vary the written terms. The notice provision dictates how a termination or a claim must be delivered — and defective notice can sink an otherwise valid termination. Attorney fee provisions determine who funds a dispute, which frequently determines whether a dispute happens at all. Governing law and venue decide where an argument is had and at what cost. Assignment and change-of-control provisions decide whether the agreement survives a sale of the business.
Our view is that a party reading a contract only for price and scope is reading about a third of the document that matters.
Practical Points for Los Angeles Businesses
Two recur. The first is entity formality: signing personally when you meant to sign for the company, or signing for an entity whose name on the agreement does not match its registered name, both create avoidable arguments. Check the exact registered name and sign in a stated capacity.
The second is the battle of the forms. A quote, a purchase order and an invoice, each carrying different standard terms on the back, is an extremely common pattern among suppliers and service businesses here, and it generates disputes about which terms actually govern. Deciding that deliberately at the outset costs very little; resolving it afterwards does not.
Fees
Contract drafting, review and negotiation is handled on an hourly or flat-fee basis rather than a contingency. For a defined review we can usually quote a flat fee once we have seen the document, and the arrangement is confirmed in writing before we begin.
If you have an agreement you are about to sign, or one you are relying on and are no longer sure about, we are glad to read it and tell you where it is strong and where it is not. Call us at (310) 556-9692.
Related reading: our contracts resource page, along with which California contracts must be in writing; what you are agreeing to in an indemnification clause; and what belongs in a California LLC operating agreement.
This article reflects our general views and opinions rather than legal advice, and it is not a definitive statement of California law. Reading it does not create an attorney-client relationship between you and our firm. Every matter turns on its own facts, and we would encourage you to speak with a lawyer about yours.
TALK TO A LOS ANGELES ATTORNEY
Tell us what is happening and we will get back to you. Your consultation is free, and we will tell you honestly whether we think you have a case worth pursuing.
