AMI 2425 Modification of Contract

This instruction should be followed by AMI 2402.

Do not use this instruction when the parties' contract provides that the contract may not be modified except in writing or if the contract is governed by Ark. Code Ann. § 4-2-209.

Use the bracketed words and phrases only when the contract alleged to have been modified was in writing.

”A modification of a contract, like the formation of its original terms, must meet all the elements of a contract …” In re Honeycutt, 198 B.R. 306, 311 (Bankr. E.D. Ark. 1996) (finding no modification where there was no proof that one of the parties assented to the modification); In accord with this instruction, see Leonard v. Downing, 246 Ark. 397, 438 S.W.2d 327 (1969) (finding that all the elements of a contract were present in an alleged modification of an executory contract).

The burden of proof for an oral modification of an oral contract is apparently undecided by Arkansas courts. However, those jurisdictions that have addressed the issue have held that the burden of proof is by a preponderance of the evidence. See 17B C.J.S., Contracts § 755, p. 483 (cases cited therein). The Committee has followed that authority in preparing this instruction but notes that subsequent decisions by Arkansas courts may require that this instruction be modified.

Arkansas law provides that clear and convincing evidence is required to prove the modification of a written contract by an oral agreement. Columbia Mut. Cas. Ins. Co. v. Ingraham, 47 Ark. App. 23, 883 S.W.2d 868 (1994), rev'd on other grounds, 320 Ark. 408, 896 S.W.2d 903 (1995); Amerdyne Industries, Inc. v. POM, Inc., 760 F.2d 875 (8th Cir. 1985).

The definition of “clear and convincing evidence” in this instruction is a combination of two different formulations that have been recited by the Arkansas Supreme Court. In a number of cases and a variety of contexts, the court has stated the definition as: “proof that produces a firm conviction in you that the allegation is true.” E.g., Carter v. Four Seasons Funding Corp., 351 Ark. 637, 653, 97 S.W.3d 387, 395 (2003) (usury claim); Ward v. Williams, 354 Ark. 168, 118 S.W.3d 513, 521 (2003) (oral contract for sale of land); Howell v. Scroll Technologies, 343 Ark. 297, 304, 35 S.W.3d 800, 805 (2001) (workers' compensation); Baker v. Arkansas Dept. of Human Services, 340 Ark. 42, 48, 8 S.W.3d 499, 503 (2000) (termination of parental rights). However, the court appears to intend this definition to have the same meaning as other language it has recited (“proof so clear, direct, weighty, and convincing as to enable you to come to a clear conviction of the matter asserted”) and in fact has sometimes included both formulations in the same opinion. See, e.g., Howell v. Scroll Technologies, supra; Kelly v. Kelly, 264 Ark. 865, 870, 575 S.W.2d 672, 675–676 (1979). The Committee combined language from both into a hybrid definition that appears to capture the essence of the principle.