Writing

  1. Statute of Frauds
  2. Requires certain kinds of contracts to be in writing (exception to the general rule that oral contracts are enforceable)
  3. Applies only to executory contracts (contracts where the parties have not completely performed)
  4. Contracts that do not comply are unenforceable
  5. Contracts Within (Covered By) the Statute of Frauds
  6. Promises to perform the obligation of another
  7. Collateral contract: one person (guarantor) agrees to pay the debt that a second person (principal debtor) owes to a third person (obligee) if the principal debtor fails to perform
  8. Note: the promise to pay applies only if the principal debtor fails to pay
  9. EXCEPTION: no writing is required if the main purpose of the promise by the guarantor is to obtain some personal economic advantage
  10. Sales of an interest in land
  11. Applies broadly to any transaction effecting an interest in land, including
  12. Mortgage of real estate
  13. Creation of an easement
  14. Permission of mining on land
  15. EXCEPTIONS: no writing is required if
  16. Full performance by vendor: the seller has completely performed (I.e., delivered the deed to land); or
  17. Part performance by vendee: the buyer clearly relies on the oral contract and changed his or her position in reliance (such as paying all or part of the price and building substantial improvements)
  18. Will not permit buyer to receive damages, only specific performance (conveyance of the land)
  19. Agreements that cannot be performed within one year
  20. Tested from the date the contract comes into existence
  21. Contracts for an indefinite period of time are not within the Statute of Frauds because they can be theoretically completed within one year
  22. In most states, a contract “for life” need not be in writing because the performer could die within a year from the agreement and, thus, have fully performed within one year
  23. Sales of goods for $500 or more
  24. UCC governs
  25. Includes agreements to modify existing contracts with a modified price of $500 or more
  26. Promises by an executor or administrator of an estate to pay for the estate’s debts from personal funds: if decedent’s debts cannot be covered by the estate and the executor promises to pay creditors from her own funds, the promise must be in writing
  27. Contracts in consideration of marriage
  28. Prenuptial agreements (between the future spouses) involving matters such as transfers of property upon divorce or death must be in writing
  29. Additionally, a promise by a third person for a benefit in exchange for the promisee’s agreement to marry another must be in writing
  30. Meeting the Requirements of the Statute of Frauds
  31. Nature of writing
  32. Essential terms must be in writing
  33. Common law
  34. Identity of the parties
  35. Subject matter of the contract (described with reasonable certainty)
  36. UCC
  37. Quantity of goods sold
  38. Must be signed by the party against whom the agreement is being enforced (any writing, mark, initials, stamp, engraving, or other symbol will suffice as long as the party so intended)
  39. Writing can consist of many writings combined
  40. UCC and alternative requirements: if there is no signed written memorandum, the UCC will find the Statute to be satisfied by any of the following
  41. Confirmatory memorandum between merchants (as long as other party receives and does not object within 10 days of receipt)
  42. Part payment or part delivery (satisfies the Statute only for the quantity that has been delivered)
  43. Admission in pleadings or court
  44. Specially manufactured goods (seller must have made a substantial beginning in manufacturing or procuring the goods)
  45. Promissory estoppel: courts have recently allowed the doctrine of promissory estoppel to allow some parties to recover for oral contracts in violation of the Statute of Frauds
  46. Parol Evidence Rule
  47. Definitions
  48. Parol evidence: written or spoken statements not contained in the written contract
  49. Complete integration: complete and final statement of agreement
  50. Partial integration: final but not complete agreement
  51. Merger clause: provision in contract stating that the writing is the complete integration
  52. Scope
  53. Bars the use of prior or contemporaneous statements to add to, alter, or contradict the terms of a contract that is a complete integration
  54. Does not apply to oral contracts or writings that are not intended as complete or partial integrations
  55. Excludes only evidence of statements prior to or during the signing of the written contract, not after
  56. Applies to both common law and UCC contracts
  57. Admissible Parol Evidence: evidence offered to explain the writing or to challenge the underlying contractual obligation (but not to contradict the terms) is admissible, specifically
  58. Additional terms in a partially integrated agreement
  59. Explanation of ambiguities in complete integration
  60. Circumstances invalidating the contract in complete integration
  61. Existence of a condition necessary for the contract to take effect in complete integration
  62. Subsequent agreements in complete integration
  63. Interpretation of Contracts: court will first attempt to discover the principal objective and then
  64. Ordinary words will be given their usual meaning
  65. Technical words will be given their technical meaning
  66. Specific terms following general terms will be presumed to qualify the general terms
  67. Ambiguities will be resolved against drafter of the contract