No contract is engraved in stone. You and the IC can always modify or amend your contract if circumstances change. You can even agree to call the whole thing off and cancel your agreement.
EXAMPLE: Barbara, an IC well digger, agrees to dig a 50-foot-deep well on property owned by Kate for $2,000. After digging ten feet, Barbara hits solid rock that no one knew was there. To complete the well, she’ll have to lease expensive heavy equipment. To defray the added expense, she asks Kate to pay her $4,000 instead of $2,000 for the work. Kate agrees. Barbara and Kate have amended their original agreement.
Neither you nor the IC is ever obligated to accept a proposed modification to your contract. Either of you can always say no and accept the consequences, which at its most dire, may mean a court battle over breaking the original contract. However, you’re usually better off reaching some sort of accommodation with the IC, unless he or she is totally unreasonable.
Unless your contract is one that must be in writing to be legally valid—most commonly, an agreement that can’t be performed in less than one year—it can usually be modified by an oral agreement. In other words, you need not write down the changes.
EXAMPLE: Art signs a contract with Zeno to build an addition to his house. Halfway through the project, Art decides that he wants Zeno to do some extra work not covered by their original agreement. Art and Zeno have a telephone conversation in which Zeno agrees to do the extra work for extra money. Although nothing is put in writing, their change to their original agreement is legally enforceable.
In the real world, people make changes to their contracts all the time and never write them down. The flexibility afforded by such an informal approach to contract amendments might be just what you want. However, you should be aware that misunderstandings and disputes can arise from this approach. It’s always best to have some sort of writing showing what you’ve agreed to do. You can do this informally. For example, you can simply send a confirming letter following a telephone call with an IC summarizing the changes you both agreed to make. Be sure to keep a copy for your files. Or if the amendment involves a contract provision that is very important—the IC’s payment, for example—you can insist on a written amendment signed by you and the IC.
You may if you wish, however, add a provision to the contract requiring that all amendments be in writing signed by you and the IC before they become effective. You can still negotiate changes by phone or fax, but they won’t take effect until you and the IC sign a formal amendment to the agreement. This eliminates even the possibility of orally amending the agreement. This approach requires more time and paperwork, but provides you with the security of knowing that it will be impossible for the IC to legally enforce any claimed oral amendment to the agreement.
Suggested Language
Modifying the Agreement
This Agreement may be amended only by a writing signed by both Client and Contractor.