"Oral" is derived from the Latin word, os, meaning mouth. "'Oral' means spoken in the sense that the mouth is used to articulate words or sounds." People v. Gonzalez, 2 Cal. 5th 1138, 1142 (2017). "Oral" is often confused with "verbal" which means consisting of words. In Gonzalez, the California Supreme Court found that a hand gesture unaccompanied by words or sound, does not qualify as a "statement, made verbally". Hence, the defendant could not be guilty of violating a statute making it a crime to threaten great bodily injury or death "with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat . . . ." Pen. Code, § 422(a).
"Verbal" is derived from that Latin word meaning a word. Many writers, however, use "verbal" to refer to a contract that is not in writing. As the estimable H.W. Fowler points out, however:
"Written contracts and protests consist of words no less than spoken ones, and we have had for more than 300 years another adjective - oral - with which to distinguish the spoken word from the written."
A Dictionary of Modern English Usage, 674 (2nd ed. 1965). Thus, I agree with Fowler that to use "verbal" to refer to contracts not in writing creates potential ambiguity and should be eschewed.
Perhaps understanding the potential for confusion, the California legislature has not used the word "verbal" in the Corporations Code while using "oral" to refer to spoken, as opposed to written words. See, e.g., Cal. Corp. Code § 800 ("the court shall consider such evidence, written or oral . . ."). In contrast, "oral" never appears in William Shakespeare's plays or poems, but "verbal" does make an occasional appearance. See, e.g., King Lear, Act IV, scene 3 ("Made she no verbal question?").
Against the charge that it is excessively pedantic to distinguish between "oral" and "verbal", I again cite Fowler: "the supersession of oral [by verbal] is not yet so complete that those whose care for the niceties of language leads them to prefer it need fear a charge of pedantry".
