1. 1 George Mason School of Law Contracts I XXII. Statute of Frauds F.H. Buckley fbuckley@gmu.edu

2. The Statute of Frauds: Why 1677? 2 Party on, dudes!

3. Why 1677? 3  Juries as fact-finders

4. Why 1677? 4  Juries as fact-finders  Interested parties not admissible as witnesses

5. Why 1677? 5  Juries as fact-finders  Interested parties not admissible as witnesses  If that made the Statute of Frauds necessary then, why do we need it now?

6. The problem: A trap for the unwary? 6

7. What’s the purpose of the SoF? 7 McIntosh at 517

8. What’s the purpose of the SoF?  Evidentiary Antifraud 88

9. What’s the purpose of the SoF?  Evidentiary Antifraud  Cautionary Reflects seriousness of contracting 99

10. What’s the purpose of the SoF?  Evidentiary Antifraud  Cautionary Reflects seriousness of contracting  Channeling Distinguishing enforceable contracts 10

11. What’s the purpose of the SoF?  Evidentiary Antifraud  Cautionary Reflects seriousness of contracting  Channeling Distinguishing enforceable contracts  [Economizing on court costs?] 11

12. The Statute of Frauds Restatement § 110  (a) a contract of an executor or administrator to answer for a duty of his decedent;  (b) a contract to answer for the duty of another (the suretyship provision);  (c) a contract made upon consideration of marriage (the marriage provision);  (d) a contract for the sale of an interest in land (the land contract provision);  (e) a contract that is not to be performed within one year from the making thereof (the one-year provision).  (2) The following classes of contracts, which were traditionally subject to the Statute of Frauds, are now governed by Statute of Frauds provisions of the Uniform Commercial Code:  (a) a contract for the sale of goods for the price of $500 or more (Uniform Commercial Code § 2-201);  (c) a contract for the sale of personal property not otherwise covered, to the extent of enforcement by way of action or defense beyond $5,000 in amount or value of remedy (Uniform Commercial Code § 1-206). 12

13. Restatement § 110 MY LEGS  M: consideration of marriage;  Y: not to be performed within one year;  L: sale of an interest in land;  E: a contract of an executor;  G: sale of goods for $500 or more;  S: a contract to answer for the duty of another (the suretyship provision) 13

14. What is the sanction for non- compliance?  Restatement § 110(1): not enforceable absent a memorandum in writing … signed by the party to be charged. 14

15. What is the sanction for non- compliance?  UCC § 2-201(1) Except as otherwise provided in this section a contract for the sale of goods for the price of $500 or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought or by his authorized agent or broker. 15

16. So when would we want to require a writing?  What do the categories of Restatement § 110 tell us?  M: consideration of marriage;  Y: not to be performed within one year;  L: sale of an interest in land;  E: a contract of an executor;  G: sale of goods for $500 or more;  S: a contract to answer for the duty of another (the suretyship provision) 16

17. The Statute of Frauds What’s its Purpose? McIntosh  Major Contracts  Possibility of a ill-considered promise 17

18. Marriage Settlements The old action for breach of promise 18

19. Marriage Settlements Restatement § 124  Within the SoF if the consideration is a “marriage or a promise to marry” unless only “mutual promises of two persons to marry each other” 19

20. Marriage Settlements  A and B promise to marry and A reneges? 20

21. Marriage Settlements  A and B promise to marry and A reneges? Not in SoF if only “mutual promises of two persons to marry each other” 21

22. Marriage Settlements A promises to settle Blackacre upon B when she marries A: Restatement 124, Illustration 1 22

23. Marriage Settlements Restatement §§ 110(1)(c), 124  A promises to settle Blackacre upon B when she marries A: Illustration 1 What does the reference to “consideration” exclude? 23

24. Marriage Settlements A promises to settle Blackacre upon B when she marries A: Illustration 1 What does the reference to “consideration” exclude?  Cf. illustration 5 24

25. Promises not to be performed within One Year  Restatement § 110(1)(e) What is the rationale for the rule? 25

26. Promises not to be performed within One Year  What is the rationale for the rule?  An aide-memoire?  Or a significant contract? 26

27. Promises not to be performed within One Year  What is the rationale for the rule?  An aide-memoire?  Or a significant contract?  Do you agree with Farnsworth at 521? 27

28. How does the one-year rule work?  “Not to be performed within one year from the making thereof” What does the Π have to assert to win in McIntosh at 515? 28

29. How does the one-year rule work?  “Not to be performed within one year from the making thereof” What does the Π have to assert to win in McIntosh?  Not terminable at will, but for a fixed term 29

30. How does the one-year rule work?  “Not to be performed within one year from the making thereof” What does the Π have to assert to win in McIntosh?  Not terminable at will, but for a fixed term  What that term might be 30

31. How does the one-year rule work?  “Not to be performed within one year from the making thereof” What does the Π have to assert to win in McIntosh?  Not terminable at will, but for a fixed term  What that term might be Gee, let’s say one year 31

32. How does the one-year rule work?  “Not to be performed within one year from the making thereof” What does the Π have to assert to win in McIntosh?  Not terminable at will, but for a fixed term  What that term might be  But then Δ asserts the promise is not unenforceable by virtue of the Statute of Frauds 32

33. How does the one-year rule work?  “Not to be performed within one year from the making thereof” It’s Feb. 5, 2015. I ask you to work for me from March 1, 2015 until March 1, 2016 33

34. How does the one-year rule work?  “Not to be performed within one year from the making thereof” It’s Feb. 5, 2014. I ask you to work for me from March 1, 2014 until March 1, 2015 Restatement § 130(1) Where any promise in a contract cannot be fully performed within a year from the time the contract is made, all promises in the contract are within the Statute of Frauds until one party to the contract completes his performance. 34

35. How does the one-year rule work?  “Not to be performed within one year from the making thereof” It’s Feb. 1, 2014. I ask you to repaint the ceiling of the Sistine Chapel, which likely will take five years. 35

36. How does the one-year rule work?  It’s November 1, 2012. I ask you to repaint the ceiling of the Sistine Chapel, which likely will take five years. Restatement § 130(1) Where any promise in a contract cannot be fully performed within a year from the time the contract is made 36

37. How does the one-year rule work?  “Not to be performed within one year from the making thereof” I insure your house against fire for five years without a writing. Three years have elapsed.  Restatement § 130, illustration 1. 37

38. How does the one-year rule work?  “Not to be performed within one year from the making thereof” I insure your house against fire for five years without a writing. Three years have elapsed.  Restatement § 130, illustration 1. 38

39. Land: 110(1)(d) 39 “Tis the only thing worth fighting for, worth dying for”

40. Is land different?  What do real estate agents make you do if you want to buy a house? 40

41. Is land different?  What do real estate agents make you do if you want to buy a house? Written offers throughout Closing 41

42. Is land different?  Restatement § 125 “A promise to transfer to any person any interest in land”  Qu. Present conveyances? 42

43. Is land different?  Restatement § 125 “A promise to transfer to any person any interest in land”  Qu. Present conveyances? Illustration 11 43

44. Is land different?  Restatement § 125 “A promise to transfer to any person any interest in land”  Qu. Leaseholds? Cf. 125(4) 44

45. Goods worth more than $500  Restatement § 110(2)(a) → UCC § 2- 201 a contract for the sale of goods for the price of $500 or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought or by his authorized agent or broker. A writing is not insufficient because it omits or incorrectly states a term agreed upon but the contract is not enforceable under this paragraph beyond the quantity of goods shown in such writing. 45

46. Goods worth more than $500  Restatement § 110(2)(a) → UCC § 2- 201 a contract for the sale of goods for the price of $500 or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought or by his authorized agent or broker. A writing is not insufficient because it omits or incorrectly states a term agreed upon but the contract is not enforceable under this paragraph beyond the quantity of goods shown in such writing. 46

47. Goods worth more than $500  Restatement § 110(2)(a) → UCC § 2- 201 a contract for the sale of goods for the price of $500 or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought or by his authorized agent or broker. A writing is not insufficient because it omits or incorrectly states a term agreed upon but the contract is not enforceable under this paragraph beyond the quantity of goods shown in such writing. 47

48. Suretyship (guarantor) Seller of Ferrari Idiot, Doting Parent Spendthrift Child stands surety 48

49. Suretyship Obligee Principal (obligor) 49

50. Suretyship Obligee (promisee) Surety for PrincipalPrincipal (obligor) (promisor) 50

51. Suretyship Agreements  Restatement § 112 The promisee (Ferrari seller) is an obligee of the other’s duty (owed money by the child) The promisor is a surety for the other (parent gurantees child’s debt to Ferrari owner) The promisee knows or has reason to know of the suretyship relation (Ferrari seller knows of guarantee) 51

52. Executors  Restatement § 111: “if a similar contract to answer for the duty of a living person would be within the SoF to answer for the duty of another”  Piggybacks on the suretyship provision 52

53. Executors  Restatement § 111: “if a similar contracts to answer for the duty of a living person would be within the SoF to answer for the duty of another”  Piggybacks on the suretyship provision Cf. Illustrations 1 and 2 53

54. Getting around the SoF  Estoppel  Part Performance  Note or memorandum in writing 54

55. Will estoppel work against the SoF?  Restatement § 139(1). A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce the action or forbearance is enforceable notwithstanding the Statute of Frauds if injustice can be avoided only by enforcement of the promise. The remedy granted for breach is to be limited as justice requires. 55

56. Will estoppel work against the SoF?  Restatement § 139(2) In determining whether injustice can be avoided only by enforcement of the promise, the following circumstances are significant: (a) the availability and adequacy of other remedies, particularly cancellation and restitution; (b) the definite and substantial character of the action or forbearance in relation to the remedy sought; (c) The extent to which the action of forbearance corroborates evidence of the making and terms of the promise, or the making and terms are otherwise established by clear and convincing evidence; (d) the reasonableness of the action or forbearance; (e) the extent to which the action of forbearance was foreseeable by the promisor. 56

57. Was McIntosh a proper case for estoppel? 57 Oh, the hardship!!!

58. Was McIntosh a proper case for estoppel? 58 What do you think would have happened if McIntosh had asked for a written contract?

59. Are salesmen given tenure? 59 Ron Popeil and the Veg-o-matic 59

60. Was McIntosh a proper case for estoppel? 60 If you’re Murphy, how do you react to the decision? 60

61. Is land different?  Restatement § 125 “A promise to transfer to any person any interest in land”  What counts as reliance? Schwedes at 521 Securing financing? The offer to send the purchase price? 61

62. Part Performance and Land  Cf. Restatement § 129 The party to be charged “has so changed his position that injustice can be avoided only by specific performance” 62

63. Part Performance and Land  Restatement § 129 Buyer gives seller purchase price. Can buyer have specific performance?  Cf. Illustration 1 63

64. Part Performance and Land  Restatement § 129 Buyer gives seller purchase price. Can buyer have specific performance?  Cf. Illustration 1  Contrast Illustration 3 64

65. Can you distinguish Schwedes from McIntosh?  But cf. Restatement § 129 Buyer gives seller purchase price. Can buyer have specific performance?  Cf. Illustration 1  Contrast Illustration 3  Restatement § 139(2)(a): “the availability of other remedies” 65

66. The “note or memorandum in writing”  Restatement § 131. Unless additional requirements are prescribed by the particular statute, a contract within the Statute of Frauds is enforceable if it is evidenced by any writing, signed by or on behalf of the party to be charged, which (a) reasonably identifies the subject matter of the contract, (b) is sufficient to indicate that a contract with respect thereto has been made between the parties or offered by the signer to the other party, and (c) states with reasonable certainty the essential terms of the unperformed promises in the contract. 66

67. The UCC on the “note or memorandum in writing”  UCC § 2-201(1)(1) Except as otherwise provided in this section a contract for the sale of goods for the price of $500 or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought or by his authorized agent or broker. A writing is not insufficient because it omits or incorrectly states a term agreed upon but the contract is not enforceable under this paragraph beyond the quantity of goods shown in such writing. 67

68. The “note or memorandum in writing”  What is a signature?  Cf. Restatement § 134: “any symbol made or adopted with an intention, actual or apparent, to authenticate the writing as that of the signer” Cf. Illustrations 1 and 3 68

69. Monetti at 525 69 Melform products

70. Monetti  How was this within the SoF? 70

71. Monetti  How was this within the SoF? One year Sale of Goods? 71

72. Monetti  How was this within the SoF? One year Sale of Goods? Why might it matter which it is? 72

73. Monetti  In what sense is this not like a sale of goods? Cf. UCC 2-105(1)  Sale of goods or distributorship agreement? Which one fits better (predominant purpose)? Both statutes? A mixed contract (pick and choose)? 73

74. Monetti  Who is the party to be charged? 74

75. Monetti  How was the first writing “signed” by Anchor? 75

76. Monetti  How was the first writing “signed” by Anchor? Typed initials “SS” on Steve Schneider’s draft “Topics for Discussion” 76

77. Monetti  UCC § 1-201(37) Signed “includes any symbol executed or adopted by a party with present intention to adopt or accept a writing.”  Restatement § 134 (“any symbol made or adopted with an intention, actual or apparent, to authenticate a writing”) Illustrations 1 and 3 77

78. Monetti  How was the first writing “signed” by Anchor? Typed initials “SS” Did it matter that this was a pre- contractual draft? 78

79. Monetti  How was the first writing “signed” in Monetti? Typed initials “SS” Did it matter that this was a pre- contractual draft?  Restatement § 136: “at any time before or after the formation of the contract” 79

80. Monetti  How was the first writing “signed” in Monetti? Typed initials “SS” Did it matter that this was a pre- contractual draft?  UCC§ 2-201(1): “has been made” 80

81. Monetti  How was the first writing “signed” in Monetti? Typed initials “SS” Did it matter that this was a pre- contractual draft?  Posner’s three cases on 526: how to tell them apart? 81

82. Monetti  What about contracts accepted by email? 82

83. Monetti  UCC § 1-201(37) Signed “includes any symbol executed or adopted by a party with present intention to adopt or accept a writing.”  Restatement § 134 (“any symbol made or adopted with an intention, actual or apparent, to authenticate a writing”) 83

84. Monetti  What about the internal “summary agreement” by Raymond Davis? 84

85. Monetti  What about the internal memo? Δ’s letterhead suffices 85

86. Monetti  What about the internal memo? Δ’s letterhead suffices Is Restatement § 132 applicable?:  Several writings are integrated if one is signed and the circumstances indicate they belong to the same transaction 86

87. Monetti  What about the internal memo? Δ’s letterhead suffices How did Π obtain this? Is Restatement § 132 applicable?  Posner: probably not, since they don’t refer to each other (527)  Posner: “we are permitted to connect them” (529) 87

88. Monetti  What was the part performance? Restatement § 139(2)(b) “definite and substantial character of the action”) UCC § 2-201(3)(c) (goods “received and accepted”) 88