by Bob Incollingo
In New Jersey, home improvement contracts for a purchase price in excess of $500.00, and all changes in terms and conditions of the contract, (1) have to be in writing and (2) have to be signed by all parties.1 Stray from these requirements, and the contract is illegal, because it violates the Consumer Fraud Act, as amended by the Contractors' Business Registration Act, and the Home Improvement Practices regulations.2
If a contract breaks the law or violates public policy, then the contractor (most often3) cannot enforce it. This means - with an illegal contract - that if you sue for payment of your contract price, you cannot make the defendant homeowner do what the contract requires, or pay money damages for not doing what the contract requires. If you want to enforce your right to be paid the stated price for the work, you need a legal contract. An illegal contract is unenforceable.
If you name both a husband and a wife as parties to your home improvement contract, both need to sign it. Can’t a husband or wife sign their spouse’s name for them? No, at least not with legal effect. Why? Because neither husband nor wife, by virtue of the marital relationship alone, has power to act as agent for the other.4
There are instances where a husband or a wife may be charged with performance of an obligation they did not agree to, such as where medical treatment is rendered to a spouse, or food or other household necessities are purchased. In a case like that, both spouses become liable on the debt by operation of law.5 Home improvement is not such a case. Without a power of attorney, a husband cannot sign his wife’s name on the contract and bind her to its terms. If you have only one signature on the contract, even if one spouse claims to be signing for the other, then (a) the contract is not enforceable against the spouse who did not sign it, and (b) you run the risk of the entire contract being unenforceable for illegality under consumer fraud law.
What if you get the husband on the phone and he tells you his wife can sign for him? Under the law of agency, when one spouse expressly makes the other their agent to act for them, that should be sufficient to bind them to the contract.6 While that might be sufficient in the ordinary case, the home improvement context is not the ordinary case. In the regulated business of home improvement, the consumer transaction is subject to special administrative rules. Signature of the contract by all parties is one of them. Without a valid written power of attorney extending authority to sign for the spouse, there is no work-around by oral permission.6
Keep in mind, the law requires all changes to the contract to be signed by all named parties.7 A change order signed by only one spouse is just as illegal and likely to be unenforceable in court as if it were never reduced to writing.
Bob Incollingo is a dedicated South Jersey construction attorney who litigates construction, business, and real estate cases in Gloucester County, Burlington County, and Camden County, New Jersey from his office in Cherry Hill.
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1 NJAC 13:45A-16.2 12; Effective January 8, 2024, the title of the Contractors Registration Act was amended in part to change its title to the Contractors' Business Registration Act, L. 2023, c. 237, § 25, and was otherwise amended, see L. 2023, c. 237, §§ 26 to 39; N.J.S.A. 56:8-136; As recently revised, N.J.S.A. 56:8-151 provides in relevant part:
“Section 56:8-151 - Contracts, certain, required to be in writing; contents
“a. Every home improvement contract for a purchase price in excess of $500, and all changes in the terms and conditions of the contract, shall be in writing. The contract shall be signed by all parties thereto, including the home improvement contractor licensed pursuant to P.L.2023, c.237 (C.45:5AAA-1 et al.) and shall clearly and accurately set forth in legible form and in understandable language all terms and conditions of the contract, including but not limited to:
“(1) The legal name, business address, and registration number of the contractor business, any contractor who will provide home improvement services, and the license number of the contractor licensed pursuant to P.L.2023, c.237 (C.45:5AAA-1 et al.);
“(2) ...
2 NJSA 56:8-1 et seq.; see Murnane v. Finch Landscaping, LLC, 420 N.J. Super. 331, 337 (App. Div. 2011).
3 Model Jury Charge (Civil), 4.10N "Affirmative Defenses" (Approved November 1999) 1. Legal Defenses f. Illegality Sometimes, an illegal provision or a term contrary to public policy may be severed if it does not defeat the purpose of the whole contract. Jacob v. Norris, McLaughlin & Marcus, 128 N.J. 10, 33 (1992). Also, an illegal contract may sometimes be enforced to avoid hurting a person intended to be protected by the law, or to avoid an unjust forfeiture. Marx v. Jaffe, 92 N.J. Super. 143, 146-47 (App. Div. 1966).
4 Saks & Co. v. Bennett, 12 N.J. Super. 316; 79 A.2d 479 (N.J. Super. Ct. App. Div. 1951)
5 At common law a wife, in the purchase of what has been called necessaries, is presumed to be acting as agent for her husband, and as agent for a disclosed principal she incurs no personal liability on the contract of purchase unless the credit was extended to her individually or she expressly contracted to be liable. Wilson v. Herbert, 41 N.J.L. 454, 461 (Sup. Ct. 1879); Feiner v. Boynton, 73 N.J.L. 136 (Sup. Ct. 1905); Mooney v. McMahon, 83 N.J.L. 120 (Sup. Ct. 1912); Smedley v. Sweeten, 11 N.J. Super. 39 (App. Div. 1950); Saks & Co. v. Bennett, 12 N.J. Super. 316 (App. Div. 1951); Dunham's & Co. v. Dzurinko, 125 N.J. Super. 296 (1973).
6 A valid power of attorney must be in writing. NJSA 46:2B-8.2
7 Try to get this right. A $30 change order for a $600 home improvement contract has to be in writing and signed by all parties. The price of the contract controls, not the price of the change order. That said, if the change order added to the contract exceeds the $500 threshold, you should get everything signed by everybody.
