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VIEWPOINT: Contract or brochure?
PAUL E. PFEIFER
Supreme Court
Published: June 18, 2013
Can an informational brochure be considered a written contract? That was the question that we had to answer in a case that came before us here – at the Supreme Court of Ohio.
The case involved a man named Mohamed Bassem Rayess, who graduated from a Syrian medical school in 1986. After completing a residency in orthopedic surgery in France, Rayess came to the United States in 1991 to obtain a medical residency.
Graduates of foreign medical schools must be certified by the Educational Commission for Foreign Medical Graduates before they can apply for medical residency in Ohio. The Commission is a not-for-profit corporation that administers various examinations to foreign-medical-school graduates to assess whether applicants are prepared to enter an accredited medical residency in the United States.
The United States Medical Licensing Examination (“USMLE”) is one of the examinations administered by the Commission, and a passing grade on Parts I and II of the exam is required for certification. Rayess received an informational pamphlet in which the Commission described Part I as a two-day multiple-choice examination “consisting of four, three-hour test books.”
The Commission approved Rayess’s application to take Part I of the USMLE on Sept. 21 and 22, 1993. Rayess took the exam, and failed it.
Almost 15 years later – on Sept. 19, 2008 – Rayess sued the Commission for breach of an express contract, alleging that the Commission had failed to administer Part I of the USMLE in accordance with the terms and conditions contained in the pamphlet by denying him the entire amount of time allowed for completing part of the examination.
Rayess voluntarily dismissed that complaint, but refiled it a year later, in October 2009, further alleging that the breach of contract caused him to fail the examination and suffer damages.
Rayess attached several exhibits to the complaint, including a copy of his application to take the USMLE, an acknowledgment of its receipt by the Commission, and a copy of the cancelled check to pay for the exam. He also included a copy of a letter he sent to the Commission requesting a transfer to a different testing site and a copy of a cancelled check for the transfer fee. Finally, he attached a copy of the informational pamphlet published by the Commission describing the testing procedures.
The Commission denied the allegations in the complaint and asserted the statute of limitations as a defense.
The trial court concluded that the documents attached to the complaint did not constitute an express written contract and that “in the event that an oral contract existed,” the six-year statute of limitations for oral contracts barred recovery.
The court of appeals saw it differently and it reversed the judgment of the trial court. After that, the case came before us for a final review.
In its appeal to our court, the Commission presented this proposition of law: A written contract cannot exist when it is based on a general informational brochure coupled with supplemental evidence to establish the obligations of the parties.
The Commission contended that the informational pamphlet did not establish any enforceable duties and that Rayess therefore failed to demonstrate the existence of an express written contract. A written contract would be governed by a 15-year statute of limitations – rather than the six-year limit for oral contracts.
The Commission noted that Rayess attached no single document setting forth all the essential elements of a contract, and it maintained that the documents on which Rayess relied couldn’t be construed as a binding and enforceable written contract, because nothing defined the obligations of the parties and because the exhibits referenced other documents that were not attached to the complaint.
For his part, Rayess argued that the informational pamphlet the Commission provided and the documents he submitted, construed together, prove the existence of an express written contact and therefore the 15-year statute of limitations governs the claim. He asserted that when the Commission failed to give him three hours to complete part of the exam, it breached the express terms of the contract.
So, back to the original question: can an informational pamphlet and an application to take an examination form an express written contract?
Our court has defined a contract as “a promise, or a set of promises.” And we have said that essential elements of a contract include an offer and acceptance. To be enforceable, “the contract must be definite and certain.”
As mentioned earlier, the statute of limitations for written contracts is 15 years, meaning that any complaint filed in court for a breach of a written contract must be made within that time period. The 15-year statute of limitations applies only when a written instrument clearly defines the obligations of the parties without implying terms and without referring to supplemental evidence to establish the express terms of the agreement.
In this case, the documents attached to the complaint did not expressly set out the parties’ mutually agreed-upon obligations in terms that are definite and certain. Rather, the Commission provided Rayess with an informational brochure describing the testing procedure, and Rayess submitted an application to take the exam. Neither the brochure nor the application imposed any express enforceable duty on the Commission or Rayess.
In writing our court’s opinion, Justice Terrence O’Donnell said, “An application to take an examination is a mere request to do so and, if approved, allows the applicant an opportunity to participate in the examination, subject to the direction of the test administrator. It is not an express written contract. And there is no language in the application materials that expressly incorporates the statements in the pamphlet as part of a contract.”
We concluded that the informational pamphlet provided by the Commission describing the certification process and the testing procedures of the examinations it administers is not a written contract, because it contains no promises and no definite, mutually agreed-upon terms setting forth the rights and duties of the parties. Therefore – by a seven-to-zero vote – we reversed the judgment of the court of appeals.
EDITOR’S NOTE: The case referred to is: Rayess v. Educational Comm. For Foreign Med. Graduates, 134 Ohio St.3d 509, 2012-Ohio-5676. Case No. 2011-1933. Decided December 6, 2012. Majority opinion written by Justice Terrence O’Donnell.