A contract does not always have to be in writing to be enforceable in New York. Most people, including business owners, might think it has to be in writing, but it does not. It must be an agreement, between at least two parties, where each has committed to give up something in order to get something back, and everyone has agreed on the important terms. Those terms, and that agreement, however, do not have to be set down on paper, where each side has signed on the proverbial dotted line. It might be nice to have such a signed document, which is known as an express contract; it might make it easier to prove that there is a contract and what its terms are; but you can still have a valid, enforceable contract without it, if that is what the parties want. In other words, in order to enforce a contract, what you need is a contract, not a writing which shows there is a contract.
In New York, a contract is binding if there is an offer, acceptance, consideration, mutual assent, an intent to be bound, and both sides agree on all of the essential terms. See Kowalchuk v. Stroup, 61 A.D.3d 118, 121 (First Dept. 2009). Parties can enter into a binding contract even without committing their agreement to a fully executed written document. See Bear Stearns Inv. Products, Inc. v. Hitachi Auto. Products (USA), Inc., 401 B.R. 598, 617 (S.D.N.Y. 2009). A contract may be implied in fact from the facts and circumstances surrounding the dispute and the intention of the parties as indicated by their conduct. See Yankee Lake Pres. Ass’n, Inc. v. Stein, 68 A.D.3d 1603, 1604-05 (3rd Dept. 2009); and Matter of Boice, 226 A.D.2d 908, 909 (3rd Dept. 1996). In other words, the parties can be shown to have entered into a binding contract because they acted like they entered into a binding contract.