One thing we hear all the time is that the company promised X but never did it.  Now the mineral owner wants the company to do X, but the company is refusing.

It’s a really unfortunate situation.  In general we all want to be able to trust people.  Were supposed to be able to trust people.  Everything works better when you can trust people.  Society and civilization work best when you can trust people.  But you can’t trust a company.

It’s not that the people running the company are bad or good or indifferent.  A company is made up of people who also want, are supposed to, and work better when trust can be given and received.

It’s that a company functions based off policies and procedures, not people.  The people come and go.  The policies and procedures stay.  The only way a company works over the long term is because of what is written down.

So a company can only go by what was written because that’s the nature of a company.

Even if that weren’t the case, the written paperwork is going to be the best evidence of what happened.  Some of the paperwork we’re working on today is going to be in existence long after we’re all dead.  We’ve seen a lease that was signed in 1892 that is still in effect today.  You can’t rely on people when the people aren’t there any more.  You won’t be able to show up in court and have your say 120 years from now.

You have to get it in writing.

Courts have recognized that this is the case and have said that if it isn’t written down it didn’t happen.  The following quote from a West Virginia Supreme Court case says exactly that.

In Iafolla v. Douglas Pocahontas Coal Corporation, the Court restated the well established rule that, “A written contract merges all negotiations and representations which occurred before its execution, and in the absence of fraud, mistake, or material misrepresentations extrinsic evidence cannot be used to alter or interpret language in a written contract which is otherwise plain and unambiguous on its face.”

Notice that the Court said it was a “well established” rule.  This case was from the 1970s.  The line of cases it quotes will go back to English common law, probably the 1600s or 1700s.  It doesn’t get much better “well established” than this.

So, the Court says that a “written contract merges all negotiations and representation”.  In other words, the Court assumes that what you talked about is what you wrote down.

However, you’ll notice that the sentence didn’t end there.  The Court continued on and gave some exceptions to the rule.  It did it in a roundabout kind of way, but it did it.  It said, “. . . in the absence of fraud, mistake, or material misrepresentation extrinsic evidence cannot be used to alter . . . a written contract . . . “.

With that language, the Court said that fraud, mistake, and material misrepresentations can throw into doubt whether the written paperwork is valid.

The trouble is, it’s hard to prove any of those things.  You need good witnesses or … wait for it … written documents.  In the modern world you could even use recordings of conversations (assuming that the other party knows they’re being recorded to follow the most strict rule we know of).  Emails would work, of course.

In a he-said-she-said situation it’s going to be awfully hard to convince a court that the paperwork with your signature on it is something other than what you intended to sign.

That’s why we recommend that you communicate with the landman or other company representatives by email as much as possible.  Even when you talk with them on the phone, send them an email summarizing the conversation.

Get it in writing!  If it’s not written down it didn’t happen.