What Happens If You Can’t Find the Original Contract and Need to File a Breach of Contract Lawsuit?

"Sorry, no contract, no case."

That's what Sarah's competitor told her when they stopped paying for $50,000 worth of custom software, software her small dev shop had already delivered. The contract? Lost in a crashed hard drive.

Three months later, Sarah won her case. She never found the original contract.

Most people assume a missing contract means a dead end. They're wrong. In fact, courts regularly enforce agreements even when the paperwork has vanished, if you know how to prove your case.

When you're in Sarah's shoes, you’ve been wronged. You had a business deal with clear terms and a mutual understanding, and now the other side has completely dropped the ball. Maybe they didn’t deliver the services. Maybe they missed payments. Maybe they just ghosted you.

You know this is a breach of contract.

But when you go to dig up the original agreement...it’s missing.

What now?

This isn’t just frustrating. It can feel paralyzing. But the good news? Losing the physical contract doesn’t mean you’ve lost your rights.

What really happens when the original contract is missing? What can you do about it if you still need to take legal action?

The Law Doesn’t Always Require Paper

In today’s world, many contracts are created and agreed upon electronically. Courts recognize emails, PDFs, scanned copies, and even a string of texts as potentially enforceable agreements.

Under the law, what matters is that there was a “meeting of the minds.” Did both parties intend to agree? Were the key terms (like services, pricing, and timeline) understood and agreed upon?

Even if you don’t have the original document, you may still have:

A scanned copy or PDF
Email threads discussing the deal
Invoices or receipts
Bank transfers or Venmo payments
Text messages confirming terms
Witnesses who saw or heard the agreement

All of these can help show that a valid contract existed.

The Four Pillars: What Actually Matters to the Court

Most people obsess over finding the perfect contract. But here's what judges actually care about:

A Valid Contract Existed
You don’t need a physical contract. But you do need evidence of an agreement (written, verbal, or implied).
You Held Up Your End of the Deal
You did what you promised. Delivered the service. Paid what you owed. Sent what you said you’d send.
They Didn’t Deliver
The other party broke a clear promise, missed a deadline, or failed to follow through.
You Were Harmed Because of It
Financially, emotionally, or operationally, there’s a cost to their breach. And you can prove it.

In most states, you have between 3-6 years to bring a breach of contract case. But don't wait. Evidence gets weaker every month, and courts look more favorably on parties who act promptly.

Pursuing a breach of contract case typically costs $3,000 - $15,000 in legal fees. Without a physical contract, expect to be on the higher end.

These are the same elements of any contract dispute. Missing paperwork just means you may have to be more resourceful in showing what happened.

What Happens in Court Without a Physical Contract?

Courts don’t throw out your case just because you can’t produce a crisp, signed original.

Instead, the court will evaluate:

The credibility of both parties
Any supporting documents or digital records
Whether the terms are clear enough to enforce
How both sides behaved during the relationship (Did they act like a contract existed?)
Industry standards (especially if it was a handshake deal or verbal contract)

Think of it like building a puzzle. Each piece (email, invoice, text) isn’t the whole picture, but enough pieces can reveal the full image.

In some cases, courts may even enforce a contract based on conduct, what’s called an “implied-in-fact contract.” If both parties behaved like there was a deal in place, that can carry legal weight.

A Word of Caution: The Burden Is On You

If you’re the one bringing the lawsuit, the burden is on you to prove your case. Missing documents can make things more complicated, but not impossible.

Here’s what to do right away:

Gather every shred of evidence: emails, screenshots, payment records, anything that proves there was an agreement and that you followed through.
Document the timeline: Write out when the agreement started, what each party agreed to do, and when things started to go wrong.
Talk to witnesses: If anyone else was involved or knew about the deal, their testimony may help back you up.
Work with an attorney: A seasoned business lawyer can help you organize your case, evaluate your claim, and even reconstruct the contract based on available evidence.

What If the Contract Was Oral?

Surprisingly, not all contracts need to be in writing. Many everyday agreements, like hiring a contractor, paying for services, or renting equipment, can be valid even if they’re verbal.

The catch? Verbal contracts are harder to prove.

That’s where circumstantial evidence (like payments, emails, or text confirmations) becomes key. If there was enough back-and-forth to show agreement, a court may enforce it, even if nothing was formally signed.

However, certain contracts must be in writing under the law, such as:

Real estate sales
Agreements that last more than one year
Guarantees of someone else’s debt

These are known as “Statute of Frauds” contracts. If your case involves one of these, and you have no written evidence at all, the case may be harder to win.

Can You Recreate the Contract?

Yes, and this is more common than you’d think.

Here’s how:

Use copies (drafts, prior versions, emails with attachments)
Pull language from your invoice or proposal
Show industry standards or templates you used at the time
Provide digital signatures, e-signed platforms (like DocuSign), or confirmation emails

In some cases, courts accept a reconstructed version of the contract, especially if both parties initially agreed and started working under those terms.

Practical Tip: Always Keep a Digital Trail

Losing an original contract is frustrating, but it’s also a wake-up call.

If you’re a small business owner or family decision-maker, this is your cue to:

Store all contracts in a secure cloud folder
Save emails and attachments that show client agreements
Use digital signing tools that keep records
Screenshot text or DM agreements (especially for informal deals)
Send post-agreement “recap” emails (e.g., “Just confirming our deal...”)

You don’t need to be a legal expert, but building these habits can protect your business if things ever go sideways.

You Still Have Rights, Even Without the Paper

Too many people give up on pursuing a valid claim just because the original contract is lost.

Don’t make that mistake.

If you had a real agreement, followed through on your end, and got burned, you may have a strong case.

Missing paperwork doesn’t mean missing justice.

➡️ Learn more about breach of contract and grab my free book, How Contracts Become Lawsuits.