I often have clients ask me if a debt collector has to show a signed contract in a credit card lawsuit case.

“I don’t remember signing anything!” they tell me.  Then they ask “It’s not a contract if it wasn’t signed, right?”

Wrong. A contract can exist even if you don’t sign anything. In fact, courts can enforce oral agreements as contracts.

What is a contract?

The Second Restatement of Contracts defines a contract as “promise or set of promises for the breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty.”  RESTATEMENT (SECOND) OF CONTRACTS § 1 (1981).

This is a word, lawyerly way of saying that a contract is a promise which a court can enforce. Not all promises are contracts, however.

Georgia law defines a contract as “an agreement between two or more parties for the doing or not doing of some specified thing.” O.C.G.A. 13-1-1.

A contract must have (1) subject matter, (2) consideration, and (3) be formed by the mutual assent of all parties.  O.C.G.A. § 13-3-1; Cline v. Lee, 260 Ga. App. 164, 168, 581 S.E.2d 558, 562 (2003).

Subject matter is, well, the subject of the contract. A credit card contract is about the opening of a revolving credit card account with various terms and conditions placed on it.

Consideration is something of value given to the other side. It does not necessarily need to be money. A bank provides something of value if it loans you the money when you make a purchase.

Mutual assent means that both parties agreed to the same terms. This means both parties had to understand and agree to the terms of the contract. This is measured under an objective standard—in other words, if a reasonable person would have understood the terms then a party can be bound, even if the actual party did not.

Why Georgia courts do not require debt collectors to show a signed agreement or contract in credit card lawsuits

A debt collector will cite Davis v. Discover Bank,  277 Ga. App. 864, 627 S.E.2d 819 (2006), to support its claim that it does not need to produce a signed agreement. In Davis, the court held that a credit card was a written contract. Once a credit card makes a consumer an offer by providing them the card, the consumer accepts the offer by using the card. The court then states that it is the card itself which is the contract.

If this sounds odd it is because Davis does not actually stand for the proposition that a debt collector does not have to produce a contract in a credit card lawsuit. Davis actually dealt with the statute of limitations in credit card cases. (6 years because it is a written contract.)

However, the court’s analysis appears to imply that use of a card is sufficient to prove the existence of a contract. This is both right and wrong.

Then a written contract helps, but is not necessary

Debt collectors will have a much easier case proving the existence of a contract if the contract is in writing. Otherwise, the terms of the agreement come into questions. While a debt collector may not have to show a signed agreement, it should have to establish the terms of the agreement.

This can be done by providing the Credit Agreement which applied to the account. These are rarely “signed” contracts, but the actions of a consumer (defendant, debtor) in using a credit card can bind them to the terms just as if they had signed an agreement.

Conclusion

Contract cases like credit card lawsuits may seem easy to understand at first. However, when you learn more about them then you begin to see how nuanced and complicated they can be.

If a debt collector possesses a signed contract then it would certainly be easier to prove their case. However, it is not necessary. A debt collector may be able to establish the existence of a contract even without a signed document.

If you want to know more about what a debt collector needs, you should read my post on The Anatomy of Georgia Credit Card Lawsuits. You may also find my post on the burden of proof in a Georgia credit card lawsuit to be helpful.