John G. Browning Aug. 19, 2014, 11:01am

From time to time, I’ve had an opposing party claim that he was going to “wipe his backside” with a legal document like a contract.  Rude, yes, but what if a contract was actually written on toilet paper?  Would it still be enforceable?  If a contract is required to be reduced to writing (and not all of them are), does it matter what it’s written on?

It is a question that the legal system has had to deal with from time to time.  According to a recent ethics opinion by the Law Society of Saskatchewan (Canada), attorney Ron Cherkewich was directed by a judicial officer to provide a written retainer agreement so that she could rule on his request for legal fees.  Cherkewich refused, saying he “did not do” written retainer agreements.  Later on, this hearing officer repeated the request, at which point Cherkewich allegedly “became very upset and angry,” questioned her experience, and made comments indicating that someone could shove a certain opinion about fee agreements up a certain orifice.  After further discussion, attorney Cherkewich met privately with his client.

When the lawyer returned with a “smug and happy” look on his face, he produced a “piece of toilet paper with handwriting on it.”  The Law Society found that the gesture was designed to personally humiliate the hearing officer, and considered it to be “conduct unbecoming” a member of the legal profession.  Cherkewich (who at the time of that hearing had been practicing for 44 years) maintained it was just a “dumb joke” intended to relieve tension, but the Law Society didn’t share his sense of humor.  It reprimanded Cherkewich and ordered him to pay a $500 fine and costs of $10,000 for bringing “the administration of justice into disrepute.”

Here in the United States, we’re not as concerned with the niceties.  Contracts written on wrapping paper, chalk slates, and even paper grocery bags have been upheld by courts—provided they are signed and have the critical details filled in.  In 2000, a Pennsylvania court tossed out the $755,000 sale of a Chinese restaurant that was written on a cocktail napkin—not because it was an unusual medium for such a transaction, but because the cocktail napkin admitted into evidence was not signed and failed to make it clear who was buying and who was selling.  In entertainment law circles, the 2004 9th Circuit case of Grosso v. Miramax Film Corp. ushered in a whole new wave of claims from would-be scriptwriters and show developers for their “idea submissions”—pitches, concepts, and thoughts about new entertainment projects that might have been documented more informally on things like cocktail napkins, for instance.  As one lawyer characterized the implications of the Grosso decision, “It could be written on a napkin, in smoke signals—it doesn’t matter.”

And what about those contracts that are regarded less casually—in fact, just the opposite—contracts that are actually written in blood?  I didn’t think such a thing existed outside of the movies or books in which the Devil himself, Mephistopheles, was trying to get someone to sign over his soul in a Faustian flourish.  But there really have been instances in which individuals have actually written a contract in blood, on the mistaken belief that this somehow makes it especially binding.  For those of you contemplating opening up a vein for that really special contract, don’t bother.  In a 2009 case, Kim v. Son, the California Court of Appeals rejected such a contract written in blood as unenforceable, saying “The court will refuse to enforce a gratuitous contract, even when it’s written in blood.”

So there you have it.  Feel free to sign away on a cocktail napkin, paper bag (hey, Lincoln wrote the Gettysburg Address on the back of an envelope), or just about anything (you might want to skip the toilet paper).  Just use ink rather than blood, if you don’t mind.

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