You agreed with a customer, vendor, or business partner to change a deal, by phone, in an email thread, or simply by how you both performed, and now the other side points to the clause saying every change must be in writing and signed. Under Minnesota law, that clause does not by itself defeat the change. Outside contracts for the sale or lease of goods, Minnesota courts apply a common-law rule that parties can change a written contract by a later oral agreement or by their conduct, even when the contract says it cannot be changed that way. In my experience, the opposite belief is a common misconception, even among attorneys. This article is part of my guide to Minnesota business contracts.

The clause still matters in a sale or lease of goods, where a statute enforces a signed clause, and Minnesota statutes require a writing for some other changes whatever the parties said. A state contract is one of them. Minn. Stat. § 16C.02, subd. 2, defines a state agency to include “any state officer, employee, board, commission, authority, department, entity, or organization of the executive branch of state government,” but not the Minnesota State Colleges and Universities. For a contract with such an agency, Minn. Stat. § 16C.05, subd. 2(a), provides that “A contract and amendments are not valid and the state is not bound by them” unless, among other conditions, “they have first been executed by the head of the agency or a delegate who is a party to the contract” and “they have been approved by the commissioner.” With or without a clause, “a party asserting the parol modification of a written contract has the burden of proving the modification by clear and convincing evidence,” as the Minnesota Supreme Court held in Merickel, covered below. Minnesota common law answers the core question. The exceptions come from the statute of frauds (Minn. Stat. § 513.01 and Minn. Stat. § 513.05) and the credit-agreement statute (Minn. Stat. § 513.33). For goods, the Uniform Commercial Code supplies the rule for sales (Minn. Stat. § 336.2-209) and for leases (Minn. Stat. § 336.2A-208).

What does a no-oral-modification clause do under Minnesota law?

Outside contracts for the sale or lease of goods, a no-oral-modification clause does not stop the parties from changing their written contract later by an oral agreement or by conduct. Minnesota courts treat the clause as one more term that the same two parties can set aside together.

The Minnesota Court of Appeals applied the rule in Larson v. Hill’s Heating & Refrigeration of Bemidji, Inc., 400 N.W.2d 777 (Minn. App. 1987). A company bought a refrigeration business and signed an employment contract with the seller. That contract said it “will not be changed orally, but only by agreement in writing signed by the party against whom enforcement of any waiver, change, modification or discharge is sought.” The buyer’s president later told the seller by phone that he did not need to come back to work. The Minnesota Court of Appeals stated the rule: “The general common law rule is that a written contract can be varied or rescinded by oral agreement of the parties, even if the contract provides that it shall not be orally varied or rescinded.” It held that the oral cancellation “was effective despite the contract’s provision against oral modification.”

The rule goes back to Lamberton v. Connecticut Fire Insurance Co., 39 Minn. 129, 39 N.W. 76 (Minn. 1888), where the Minnesota Supreme Court reasoned that “A contracting party cannot so tie his own hands, so restrict his own legal capacity for future action, that he has not the power, even with the assent of the other party, to bind or obligate himself by his further action or agreement contrary to the terms of the written contract.” In plain terms, two parties who agreed to a writing rule can also agree to drop it. Lamberton framed the point for a contract “which is not required by law to be in writing,” which is why the statute of frauds, covered below, still matters. The Lamberton court said it did “not, therefore, express any opinion concerning the effect of” a clause restricting “the power of any particular agent, or class of agents,” because the clause before it restricted every agent of the company alike. An agreement that was never written down at all raises formation questions, covered in whether a verbal contract is binding in Minnesota.

How do Minnesota courts decide whether an unwritten change happened?

The party claiming an unwritten change must prove it by clear and convincing evidence, a higher bar than the usual standard in a contract case, and the judge or jury decides whether the change happened. The Minnesota Supreme Court set the standard in Merickel v. Erickson Stores Corp., 255 Minn. 12, 95 N.W.2d 303 (Minn. 1959): “a party asserting the parol modification of a written contract has the burden of proving the modification by clear and convincing evidence.” (“Parol” means oral or otherwise outside the written document.) The court added: “The burden is not met by a mere preponderance of the evidence.”

Three practical rules follow from the cases:

  1. The fact-finder decides. “While a written contract may be modified by the parties’ subsequent conduct, whether such a modification occurred is a question for the factfinder,” the Court of Appeals held in Poser v. Abel, 510 N.W.2d 224 (Minn. App. 1994). In Larson, the trial judge first announced from the bench that the employment contract was breached, then reviewed the evidence and found instead that the parties had agreed to cancel it, crediting the seller’s witnesses over the buyer’s owner, and the Court of Appeals deferred to that credibility finding.
  2. A failed negotiation does not by itself change the contract. Merickel held that “When preliminary negotiations for a valid agreement to modify an existing contractual provision fail, it does not necessarily follow that the parties have thereby mutually agreed to forego or waive a performance of the original obligation.”
  3. A renewal after expiration is different. In Bolander v. Bolander, 703 N.W.2d 529 (Minn. App. 2005), the court held that “the existence of a renewed or extended contract for services, after the expiration of the term specified in the parties’ written contract, must be established by the preponderance of the evidence.”

A change also needs the ordinary parts of an agreement, such as agreed terms, covered in the elements an enforceable modification needs. In Merickel, the trial court noted that the parties never agreed on what the added construction would cost, and the Minnesota Supreme Court held that the claimed change was not proved by clear and convincing evidence.

What evidence proves an oral or email change to a contract?

The Minnesota cases that found an unwritten change relied on what the parties did after it: payments made and accepted on the new terms, the absence of any demand under the old terms, testimony from people who heard the agreement, and admissions. Messages written at the time are useful because they show the terms without depending on memory.

In Thoe v. Rasmussen, 322 N.W.2d 775 (Minn. 1982), sellers under a contract for deed accepted monthly payments from a later buyer of part of the land instead of the lump-sum share the contract required. They never demanded the lump sum, and they signed the resale contract themselves. The Minnesota Supreme Court restated the standard (“Parol evidence that modifies the terms of a written agreement must be clear and convincing”) and held, as a matter of law, that the sellers had agreed to the substitute payments. In Larson, the court found the seller’s account “corroborated somewhat” by other witnesses, and the trial court had called the testimony about a mutual agreement not to enforce the contract “most persuasive” after weighing credibility. In Tonka Tours, Inc. v. Chadima, 372 N.W.2d 723 (Minn. 1985), the buyer’s own trial testimony about the closing proved the change, and the court noted that “Admissions are sufficient to vitiate a claimed statute of frauds defense.”

Evidence can also defeat a claimed change. In one commission dispute I analyzed, the company’s main defense was that the sales representative had accepted reduced commission payments for years. The evidence that answered that defense was the representative’s written objections to management, which showed the representative had not accepted the lower rate.

If you are relying on an unwritten change, I suggest gathering these items before the dispute grows, because they are the kinds of evidence the cases above relied on:

  • Emails, texts, and letters that state the new terms or refer to them.
  • Invoices, statements, and payment records showing performance on the new terms.
  • The names of people who heard the agreement or saw both sides act on it.
  • Any later message from the other side that treats the change as settled.

When does the statute of frauds still require the change to be in writing?

A change to a contract that the statute of frauds covers needs a writing, whatever the contract’s own clause says, unless the change only alters the time or method of performing a completed contract. The Minnesota Supreme Court said in Rooney v. Dayton-Hudson Corp., 310 Minn. 256, 246 N.W.2d 170 (Minn. 1976) that it had “recognized that a contract subject to the statute of frauds could not be modified orally.”

Two sections cover the business contracts most likely to be affected:

  1. Contracts that cannot be performed within a year. Under Minn. Stat. § 513.01, clause (1), “No action shall be maintained, in either of the following cases, upon any agreement, unless such agreement, or some note or memorandum thereof, expressing the consideration, is in writing, and subscribed by the party charged therewith.” The first case listed is “every agreement that by its terms is not to be performed within one year from the making thereof.” A multi-year supply, services, or distribution contract can fall here.
  2. Long leases and land. Under Minn. Stat. § 513.05, “Every contract for the leasing for a longer period than one year or for the sale of any lands, or any interest in lands, shall be void unless the contract, or some note or memorandum thereof, expressing the consideration, is in writing and subscribed by the party by whom the lease or sale is to be made.”

In plain terms, under § 513.01 the writing must be signed by the person you would need to enforce the change against, and under § 513.05 by the party leasing or selling the land, though a “note or memorandum” can be enough. In Thoe, however, the Minnesota Supreme Court held that “an oral agreement that modifies the method or time for performance is valid and not subject to the statute of frauds,” and Rooney described “the critical distinction between the contract of sale and its performance, the former being within the statute and the latter without.” Under Thoe, an agreed extension of a payment date or an agreed substitute way of paying is “not subject to the statute of frauds”; a change to the price or the term of a covered contract may be. Rooney limited that rule to the performance of a completed contract and applied the statute to an option to buy land, holding that “the offer of sale embodied in the option agreement could not be extended other than in writing and therefore any action on the underlying contract of sale is barred by the statute of frauds.”

The statute of frauds is a defense the party resisting the change must raise in the trial court. In Larson, the employer argued it only on appeal, and the court refused because “they did not raise this argument below, and we will not consider it for the first time on appeal.” The full list of covered contracts is in which contracts Minnesota requires in writing, and the statute’s exceptions are covered in exceptions to the Minnesota statute of frauds.

How does Minnesota’s credit-agreement statute treat an oral payment plan?

When the contract is a loan or other credit arrangement, an unwritten payment plan or forbearance agreement gives the debtor no claim to enforce it. Under Minn. Stat. § 513.33, subd. 2, “A debtor may not maintain an action on a credit agreement unless the agreement is in writing, expresses consideration, sets forth the relevant terms and conditions, and is signed by the creditor and the debtor.”

The statute reaches beyond the original loan:

  • The definition is broad. Subdivision 1 defines a “credit agreement” as “an agreement to lend or forbear repayment of money, goods, or things in action, to otherwise extend credit, or to make any other financial accommodation.” The definition does not limit itself to banks.
  • Extensions count. Under subdivision 3, a creditor’s agreement to take actions “such as entering into a new credit agreement, forbearing from exercising remedies under prior credit agreements, or extending installments due under prior credit agreements” does not create a new credit agreement “unless the agreement satisfies the requirements of subdivision 2.”

The Court of Appeals applied the statute in Carlson v. Estes, 458 N.W.2d 123 (Minn. App. 1990). Borrowers claimed their bank orally agreed to take a lump sum and lower the interest rate on the balance. The court called that “essentially an agreement to forbear repayment of money and clearly constitutes a financial accommodation,” and it affirmed dismissal of that claim. The statute limits the debtor’s action, so a borrower or customer on the receiving end of a payment plan carries the risk. I suggest putting any payment plan with a lender or other creditor in a document both sides sign, because subdivision 2 bars the debtor’s claim on an unsigned plan.

How are no-oral-modification clauses treated in contracts for the sale of goods?

In a contract for the sale of goods, a signed no-oral-modification clause is enforceable, which reverses the common-law rule. Under subsection (2) of Minn. Stat. § 336.2-209, “A signed agreement which excludes modification or rescission except by a signed writing or other signed record cannot be otherwise modified or rescinded, but except as between merchants such a requirement on a form supplied by the merchant must be separately signed by the other party.” For a lease of goods, subsection (2) of Minn. Stat. § 336.2A-208 provides that “A signed lease agreement that excludes modification or rescission except by a signed record may not be otherwise modified or rescinded, but, except as between merchants, this requirement on a form supplied by a merchant must be separately signed by the other party,” and subsection (3) provides that an attempt that fails that requirement “may operate as a waiver.”

The Minnesota Supreme Court applied the section in Valspar Refinish, Inc. v. Gaylord’s, Inc., 764 N.W.2d 359 (Minn. 2009). A paint supplier and a truck-bed lid manufacturer had a five-year supply contract that could be changed “only in a written document signed by both parties.” The court held that “A sales contract clause that requires all contract changes to be in writing is enforceable.” The goods rules work this way:

  1. Waiver is the exception. Subsection (4) provides that “Although an attempt at modification or rescission does not satisfy the requirements of subsection (2) or (3) it can operate as a waiver.” Valspar called that exception narrow: “any waiver under subsection 2-209(4) must satisfy the rules and principles of Minnesota law regarding waiver.” The supplier’s meetings with the manufacturer to fix paint problems were not a waiver, because “cooperation between businesses to resolve product performance issues under a contract, without more, is insufficient to raise an issue of fact regarding waiver of express terms of an agreement.”
  2. The statute of frauds applies to the contract as changed. Subsection (3) requires that “The requirements of the statute of frauds section of this article (section 336.2-201) must be satisfied if the contract as modified is within its provisions.” Under Minn. Stat. § 336.2-201, subsection (1), that section reaches “a contract for the sale of goods for the price of $500 or more.” Between merchants, subsection (2) of that section lets a confirming record that binds the sender also satisfy the statute against the recipient. That rule applies if the recipient receives it within a reasonable time and has reason to know its contents, unless the recipient objects in a record within the period that subsection sets.
  3. A waiver can be withdrawn. Under subsection (5), “A party who has made a waiver affecting an executory portion of the contract may retract the waiver by reasonable notification received by the other party that strict performance will be required of any term waived, unless the retraction would be unjust in view of a material change of position in reliance on the waiver.”
  4. Conduct still counts, subject to section 336.2-209. Under Minn. Stat. § 336.1-303, subsection (f), “Subject to section 336.2-209, a course of performance is relevant to show a waiver or modification of any term inconsistent with the course of performance.”

A business that buys, sells, or leases goods should read its contract with these sections in mind, because subsection (2) of each makes a signed clause binding in a goods sale or lease, while in a services contract the common-law rule lets the parties change the contract without a writing.

What is the difference between a modification, a waiver, and an accord and satisfaction?

A modification is a new agreement by both parties that changes the contract’s terms. A waiver is one party’s choice to give up a right the contract gives it. An accord and satisfaction settles a disputed claim when the creditor accepts a different performance in its place. Each has its own proof.

  • Modification and consideration. A modification outside the Uniform Commercial Code can fail for lack of consideration. The Minnesota Supreme Court explained the common-law rule in Tonka Tours: “if a party did or promised to do what he was already legally obligated to do, there existed no sufficient consideration to support this new promise.” The court noted that Minnesota’s Uniform Commercial Code rejects that rule for goods. Subsection (1) of Minn. Stat. § 336.2-209 provides that “An agreement modifying a contract within this article needs no consideration to be binding.” For other contracts, when a modification needs new consideration explains the common-law rule.
  • Waiver. Valspar defined waiver as the “intentional relinquishment of a known right” and held that “Knowledge and intent are essential elements of waiver.” The court added that “the intent to waive may be inferred from conduct,” so a pattern of accepting different performance without objection can be evidence of waiver.
  • Accord and satisfaction. An accord that is not fully performed does not satisfy the original claim, unless the parties agreed that the new promise itself would be the satisfaction. In Don Kral, Inc. v. Lindstrom, 286 Minn. 37, 173 N.W.2d 921 (Minn. 1970), the Minnesota Supreme Court held that “where the accord is not fully performed, the original claim is not satisfied.” The court called that rule “subject to an important qualification”: “When the parties agree that the promise itself will constitute satisfaction of the prior debt, and the new agreement is based on sufficient consideration and is accepted in satisfaction, then it discharges the original claim and is a defense to an action based upon such claim.”

A check marked “paid in full” is governed by Minn. Stat. § 336.3-311. The section applies when the payer proves that “(i) that person in good faith tendered an instrument to the claimant as full satisfaction of the claim, (ii) the amount of the claim was unliquidated or subject to a bona fide dispute, and (iii) the claimant obtained payment of the instrument.” Under subsection (b), “Unless subsection (c) applies, the claim is discharged if the person against whom the claim is asserted proves that the instrument or an accompanying written communication contained a conspicuous statement to the effect that the instrument was tendered as full satisfaction of the claim.” Subsection (c) lists two narrow exceptions. The first covers an organization that sent a conspicuous statement, within a reasonable time before the tender, that disputed payments must go to a designated person, office, or place, when the check did not go there. The second covers a claimant who proves it “tendered repayment of the amount of the instrument to the person against whom the claim is asserted” within a period the statute sets, but that paragraph “does not apply if the claimant is an organization that sent a statement complying with paragraph (1)(i).” Under subsection (d), the claim is discharged anyway if, within a reasonable time before collection began, “the claimant, or an agent of the claimant having direct responsibility with respect to the disputed obligation, knew that the instrument was tendered in full satisfaction of the claim.”

In Webb Business Promotions, Inc. v. American Electronics & Entertainment Corp., 617 N.W.2d 67 (Minn. 2000), the Minnesota Supreme Court explained that “By obtaining payment under that conspicuous statement, the creditor has communicated his agreement to the transaction.” It held “that once the elements of section 336.3-311(a) and (b) are met, mutual agreement of the parties to enter into an accord and satisfaction is presumed as a matter of law,” a presumption the creditor can try to rebut, for example by showing the offer was ambiguous. The court also held that the trial court “erred in imputing bad faith to an accord and satisfaction from conduct relating only to the underlying contract,” and it sent the case back for findings. The court also said that “It may be possible that fraud or misrepresentation relating to an underlying contract is so pervasive that the fraud infects the good faith offer of an accord.”

When does an email count as a signed writing?

An email can meet a law that requires a writing or a signature, such as the statute of frauds, if both sides agreed to do business electronically. Whether an email meets the contract’s own clause depends on the clause’s words and any notice method the contract names.

Minnesota’s Uniform Electronic Transactions Act provides in Minn. Stat. § 325L.07 that “If a law requires a record to be in writing, an electronic record satisfies the law,” and that “If a law requires a signature, an electronic signature satisfies the law.” An “electronic signature” under Minn. Stat. § 325L.02, paragraph (h), is “an electronic sound, symbol, or process attached to or logically associated with a record and executed or adopted by a person with the intent to sign the record,” and the definition turns on intent to sign, so a typed name can qualify when the sender adopts it with that intent. The act has a threshold. Under Minn. Stat. § 325L.05, paragraph (b), “This chapter applies only to transactions between parties, each of which has agreed to conduct transactions by electronic means,” judged “from the context and surrounding circumstances, including the parties’ conduct.”

The contract’s own terms still control how notices and changes must be delivered. In Valspar, the contract required written notices that were hand-delivered or mailed with proof of delivery, and the manufacturer’s complaint email did not qualify: “the parties’ agreement did not allow for e-mail notice, and even if it had, the content of Gaylord’s email notice lacked sufficient detail to satisfy the notice requirement.” More on signing electronically is in electronic signatures in Minnesota.

How can a choice-of-law clause change the answer?

The rule that an oral agreement can override a writing clause is Minnesota common law, so a contract that chooses another state’s law can bring in that state’s rule instead. In Milliken & Co. v. Eagle Packaging Co., 295 N.W.2d 377 (Minn. 1980), a personal guaranty said it was governed by New York law and could be revoked only by written notice. The guarantor claimed he revoked it orally through the creditor’s sales representative.

The Minnesota Supreme Court applied the New York statute that enforces no-oral-modification and written-termination clauses, and it held that the guarantor’s “alleged oral communications to Nicolai do not operate to satisfy that requirement under New York law.” The court reversed and directed judgment for the creditor. I suggest checking the governing-law clause before relying on an unwritten change, because it decides which state’s rule applies; how Minnesota courts treat choice-of-law clauses covers how those clauses are enforced.

How do you make a writing requirement hold up?

Outside contracts for the sale or lease of goods, the clause alone will not protect the written terms; what protects them is how each party documents and responds to proposed changes. Larson’s clause was detailed, covering “any waiver, change, modification or discharge,” and the oral cancellation still held. If you want the written terms to govern, I suggest these steps:

  1. Sign every change. I suggest putting each change in a document both sides sign that says it modifies the contract, because that one document meets each signature rule. Section 513.01 looks for a writing “expressing the consideration” and “subscribed by the party charged therewith,” and § 513.05 for one “expressing the consideration” and “subscribed by the party by whom the lease or sale is to be made.” Section 513.33 looks for one “signed by the creditor and the debtor,” and the clause may call for both signatures. Like the other two sections, § 513.33 requires that the writing express consideration, and it also requires that the writing set out the relevant terms and conditions.
  2. Answer proposals in writing. I suggest accepting or declining a proposed change by email, because a clear written decline supports the point Merickel made: failed negotiations do not by themselves mean the parties agreed to give up the original obligation.
  3. Reserve your rights when you accept different performance. When you accept a late or partial payment, I suggest saying in writing that you accept it without changing the contract, because waiver requires intent and a written reservation is evidence against it. A reservation does not protect you on a check tendered as full satisfaction of a disputed claim, because subsection (b) of Minn. Stat. § 336.1-308 provides that the reservation-of-rights rule in subsection (a) “does not apply to an accord and satisfaction,” and § 336.3-311, covered above, decides whether that check discharges the claim.
  4. Withdraw a waiver before relying on the original term. In a goods contract, subsection (5) of § 336.2-209 provides that “A party who has made a waiver affecting an executory portion of the contract may retract the waiver by reasonable notification received by the other party that strict performance will be required of any term waived, unless the retraction would be unjust in view of a material change of position in reliance on the waiver.” The executory portion is the part not yet performed. Subsection (5) applies only to goods. For other contracts, I suggest the same kind of written notice, because it records, before the next performance comes due, that you expect the original term to govern.
  5. Follow the contract’s notice method. I suggest delivering notices of default or change the way the contract requires, because Valspar shows an email can fail a requirement of hand delivery or mailing with proof of delivery.
  6. Get the clause separately signed on a merchant form. If your business sells goods on its own form to buyers who are not merchants, subsection (2) of § 336.2-209 requires the buyer to sign the writing clause separately for it to bind the buyer.
Is an emailed payment plan binding if the contract says changes must be signed?

It can be. Outside contracts for the sale or lease of goods, Minnesota courts enforce a later agreement despite a clause requiring signed changes, if the party relying on it proves the agreed terms by clear and convincing evidence, and an email thread stating the plan can be strong proof. The plan can still fail for lack of consideration: under the common-law rule, a party who did or promised to do only what it was already legally obligated to do gave no sufficient consideration to support the new promise. The answer also changes if the contract chooses another state’s law that enforces the clause. It changes as well if the other side is your creditor: Minn. Stat. § 513.33 bars a debtor’s claim on a creditor’s agreement extending installments or forbearing from exercising remedies unless the agreement meets the statute’s writing requirements, including signatures of both the creditor and the debtor. When the other side is a Minnesota executive-branch state agency, Minn. Stat. § 16C.05 provides that contract amendments are not valid and the state is not bound by them unless, among other conditions, they have been executed by the head of the agency or a delegate and approved by the commissioner.

Can the other side ignore our handshake change because of the writing clause?

Not on the clause alone, unless the contract is for the sale or lease of goods. Minnesota’s common-law rule lets parties change a written contract by a later oral agreement even when the contract forbids oral changes. The other side can still argue that the change was never agreed, was not proved by clear and convincing evidence, or lacked consideration. It can also argue that the statute of frauds requires a writing for this change, that Minn. Stat. § 513.33 requires a signed writing because the contract is a loan or other credit agreement, or that the contract chooses another state’s law that enforces the clause. A Minnesota executive-branch state agency can also argue that Minn. Stat. § 16C.05 makes an amendment invalid unless, among other conditions, it was executed by the head of the agency or a delegate and approved by the commissioner.

Do I give up the right to insist on the due date if I keep accepting late payments?

You risk it. The Minnesota Supreme Court treats waiver as the intentional relinquishment of a known right, and the intent to waive may be inferred from conduct, so a long pattern of accepting late payments without comment can be evidence against you. I suggest a short written note each time stating that you accept the payment without changing the contract and reserve your rights. In a goods contract, Minn. Stat. § 336.2-209 lets you retract a waiver affecting an executory portion of the contract (the part not yet performed) by reasonable notification that strict performance will be required, unless the retraction would be unjust in view of a material change of position in reliance on the waiver.

Should I cash a check marked paid in full when I dispute the amount?

Not until you decide to accept that amount as the whole claim. Under Minn. Stat. § 336.3-311, if the check was tendered in good faith on a disputed or unliquidated claim, and the check or a note with it conspicuously said it was full satisfaction, obtaining payment can discharge the entire claim. Subsection (c) has narrow exceptions, such as proving you tendered repayment of the amount within a period the statute sets, which is not available to an organization that sent a statement naming where disputed payments must go. Subsection (d) discharges the claim anyway if you, or your agent with direct responsibility for the disputed obligation, knew, within a reasonable time before collection began, that the check was tendered in full satisfaction.

Does a renewal after the contract expired need the same proof as a change?

No. In Bolander v. Bolander, the Minnesota Court of Appeals held that a renewed or extended contract for services, after the written contract’s stated term has expired, must be proved by a preponderance of the evidence, the ordinary standard in a contract case. The higher clear-and-convincing standard applies to a claimed oral change that is inconsistent with the terms of a written contract still in force.

Relying on a Writing Clause

A clause requiring every change to be in writing gives less protection in Minnesota than its words suggest. Outside contracts for the sale or lease of goods, a later oral agreement or a course of conduct can change the contract, if the party relying on it proves the change by clear and convincing evidence. Such a change can still fail for lack of consideration. A writing still controls when the statute of frauds covers the contract, when the contract is a loan or other credit agreement under § 513.33, when the contract is for the sale or lease of goods, or when the contract chooses another state’s law that enforces the clause. A writing also controls when the other party is a state agency, because Minn. Stat. § 16C.05 binds the state to an amendment only once it is executed and approved. The practical protection is in how both sides document changes and respond to them. More on drafting and enforcing agreements is in my guide to Minnesota business contracts.

If you are facing a dispute over a change that was never signed, email [email protected] with a brief description of the contract and the change, and I can tell you how Minnesota law treats it. I run a conflict check before reviewing confidential documents, so I suggest waiting to send the contract until that check is done.