Written vs. Implied Contracts: Ensuring Legal Protection and Enforceability

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Written vs. Implied Contracts: Ensuring Legal Protection and Enforceability

Written vs. Implied Contracts: Ensuring Legal Protection and Enforceability


In the realm of employment law, contracts serve as crucial legal instruments that define the rights and obligations of both employers and employees. Employment contracts can be categorized as either written or implied, each with its own implications for legal protection and enforceability. This article explores the differences between written and implied contracts, their importance in the employment relationship, and the measures to ensure legal protection and enforceability.

Written Contracts: Clarity and Precision
Written contracts are formal agreements that explicitly outline the terms and conditions of employment. These contracts are typically drafted and signed by both parties, offering a high level of clarity, precision, and detail. Some key advantages of written contracts include:

a) Clear Communication: Written contracts provide clear communication by clearly defining the rights, responsibilities, and expectations of both employers and employees. This reduces the potential for misunderstandings or disputes regarding the terms of employment.

b) Contractual Certainty: Written contracts offer contractual certainty, as the terms are explicitly stated and agreed upon by both parties. This clarity helps avoid potential conflicts by ensuring that all parties are aware of their obligations.

c) Legal Enforceability: Written contracts carry a high level of legal enforceability. In case of a breach, parties can refer to the written agreement to establish the terms of the contract and seek remedies or legal action if necessary.

Implied Contracts: Based on Conduct and Custom
Implied contracts, also known as unwritten contracts, are formed through the conduct and actions of the parties involved, rather than explicit written or oral agreements. These contracts arise when certain actions or practices create a reasonable expectation of employment terms. Key aspects of implied contracts include:

a) Mutual Understanding: Implied contracts are based on the understanding between the employer and employee, often resulting from established practices, past dealings, or industry customs.

b) Implied Terms: While implied contracts may not have the same level of detail as written contracts, they still carry legal significance. They often include implied terms such as an understanding of job duties, compensation, and other customary expectations.

c) Subject to Interpretation: Implied contracts can be subject to interpretation, as the terms are not explicitly defined. This can lead to disagreements or disputes over the specifics of the employment arrangement.

Ensuring Legal Protection and Enforceability
To ensure legal protection and enforceability, it is essential to take appropriate measures for both written and implied contracts:

a) Written Contracts:

i. Drafting and Review: Written contracts should be drafted with precision, clarity, and consideration of applicable employment laws. It is advisable to have an experienced employment law attorney review and provide guidance during the drafting process.

ii. Comprehensive Coverage: A well-drafted written contract should cover essential terms such as job responsibilities, compensation, benefits, working hours, termination procedures, confidentiality, non-compete agreements, and dispute resolution mechanisms.

iii. Signature and Acknowledgment: Both parties should sign the written contract to signify their agreement and acknowledgment of the terms. This helps establish the parties’ intent and strengthens the enforceability of the contract.

b) Implied Contracts:

i. Documentation: While implied contracts are not explicitly written, it is advisable to maintain documentation that supports the existence of an implied agreement. This can include emails, performance reviews, or other records that reflect the understanding and practices between the parties.

ii. Consistent Practices: Employers should maintain consistent practices in line with the implied terms of the employment relationship. This helps establish a pattern of behavior that supports the existence of an implied contract.

iii. Customary Expectations: Parties should be aware of industry customs and practices to ensure that implied contracts align with commonly accepted employment standards.

Importance of Legal Advice
Seeking legal advice from an experienced employment law attorney is crucial when dealing with written or implied contracts. An attorney can:

a) Draft, Review, and Negotiate Contracts: An attorney can assist in drafting, reviewing, and negotiating written contracts to ensure compliance with employment laws and protect the rights of both parties.

b) Assess and Establish Implied Contracts: An attorney can help assess the existence of implied contracts based on the parties’ conduct and industry customs, ensuring that the implied terms are clear and enforceable.

c) Provide Guidance on Enforceability: An attorney can provide guidance on the enforceability of both written and implied contracts, helping parties understand their rights and obligations.


Written and implied contracts both play important roles in employment relationships, offering different levels of legal protection and enforceability. While written contracts provide clear communication and legal certainty, implied contracts can arise through the parties’ conduct and customary practices. To ensure legal protection and enforceability, it is crucial to draft written contracts with precision, seek legal advice, and maintain documentation for implied contracts. An experienced employment law attorney can provide guidance, draft or review contracts, and protect the rights of both employers and employees.

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