The Form of the Contract Chapter 15.1 The Form of the Contract Given the immanent repeal of the Contracts Enforcement Act at least so far as it applies to land this will probably not form a major part of a course in future.

At common law there are no formal requirements for a simple contract. Oral contracts or contracts concluded by conduct are as binding as those in writing. Reference the difference between deeds and simple contracts might be made by way of revision.

By legislation certain contracts are required to be: in writing, or evidenced in writing, An example of a contract required to be in writing would be Hire Purchase contracts s5 HP Act 1971 Where the contract is required to be evidenced in writing is exemplified, at present, by the Contracts Enforcement Act 1956 and contracts falling under s2

= Where the contract is required to be in writing NO WRITING NO CONTRACT.

Where the contract is required to be evidenced in writing ORAL CONTRACT UNENFORCEABLE WRITTEN EVIDENCE OF THE CONTRACT Where evidence in writing is required the parties can make a valid oral contract but if one of the parties reneges on it they cannot be sued unless they, or their agent have signed a written note or memorandum. ENFORCEABLE

The Contracts Enforcement Act 1956

Section 2(1) the Contracts Sales of land Other dispositions of land including leases and grants of easements Contracts to mortgage land Guarantee of another’s debt or other obligation This may be summarised as all contracts to do with interests in land and guarantees

Section 2(2) the requirement for enforceability No contract to which this section applies shall be enforceable by action unless the contract or some memorandum or note thereof is in writing and is signed by the party to be charged therewith or by some other person lawfully authorised by him. This may be used also to show a technique for reading such provisions with understanding

For an agreement to, say, sell a piece of land to be enforceable, there must be EITHER

a written agreement for sale and purchase of the land in question, This the normal way of disposing of land by way of sale. The purchaser sends the purchaser a signed copy of the agreement which is offer to buy the vendor accepts by signing the agreement. OR

a valid oral contract for the sale of land,

a written note or memorandum of the agreement which the party being sued on it must have signed. It is not necessary to have both signatures.

The memorandum must contain all the material terms of the agreement. Hawkins v. Price [1947] 1 All ER 689

The signature of the defendant need not be a conventional signature but must indicate an intention to authenticate the contents of the memorandum. Cohen v. Roche [1927] 1 KB 169

Where there not a sufficient note or memorandum the oral contract may be used as a defence. For example if the purchaser resiles from the oral agreement then the vendor may rely on the oral contract to resist a demand for the return of any deposit that may have bben paid.

The equitable doctrine of part performance While the common law prevents the Act being abused by liberally interpreting the requirements of the Act, Equity developed the doctrine of part performance.

Where one party to a valid oral agreement, say, for the sale of land has substantially performed their part of the contract, equity will not permit the other party to rely on the Act to avoid their obligations under the oral contract where it would be unfair or inequitable to do so. Kingswood Estates Ltd v. Anderson [1962] 3 All ER 593