How to Draft No Oral Amendment Provisions

We include the no oral amendment provision for a few reasons.

One is to prevent unintended contract changes. Another is the statute of frauds, which requires some contracts and amendments to be in writing.

I sometimes see these provisions written as, “The Parties may only amend or modify the Agreement in writing.”

I don't like this approach. Isn't every email back and forth a writing by the parties? Do you mean that every email can serve as an amendment?

Many people replace “writing by the Parties” with “a writing signed by their authorized representatives to avoid this trap.”

Better, but with electronic signature laws, you risk that signing an email with your name could satisfy this requirement.

Consider whether to add another layer of protection. You could also include “that identifies itself as an amendment of the Agreement.”
While U.S. courts generally enforce these provisions, you should know that not all do.

The law in some states allows the court to find that the parties later waived this provision through their course of conduct.

------------------------

Here's a link to the original LinkedIn post so you can read the comments.