Statute of Frauds Berkeley Law

					Statute of Frauds I

      Prof. Merges

Contracts – March 1, 2011
              Agenda
• Types of agreements covered:
  categories

• Other requirements

  – Writing

  – Signed
The Agreement
Both can be K’s – in the absence
          of the SoF
Statute of Frauds (SoF): History


• Common law courts, 17th C

  – Perjury; “subornation” of perjury

  – Structure and incentives
       Common provisions
Cal. Civ. Code § 1624

(a)(1) K cannot be performed w/in 1 yr.

(a)(2) Suretyship

(a)(3) Lease and other real property
  transactions
       Main Requirements
• Writing

• Signed – but by whom?

• See Cal statute, p. 259
“party sought to be charged”

• The party trying to get out of the K; the
  one the “pro-enforcement” party is
  “charging” with the K
     Why these provisions?

• 1 yr

• Suretyship

• Real property
Lord Mansfield
Chief justice of the Court of
 King's Bench from 1756 to
 1788, was the foremost
 judicial voice shaping
 English common law during
 that era.
“What is surprising about the English
 common law of the second half of the
 18th century is how much is familiar to
 us today,” he said. “Many of the basic
 ideas and principles of current
 American law were forged in this earlier
 time.”

-- Prof. James Oldham, English Common
   Law in the Age of Mansfield (U.N.C.
   Press 2004)
                Suretyship

• What is it?
       Strong v. Sheffield
• Promissory Note given by wife to
  satisfy demand made by holder of
  previous note on husband
 What was “the original deal”?
            Promise to
            repay
Mr.                      Mr.
Sheffield        $$      Strong
 What was “the second deal”?
             Promise to
             repay
Mr.                       Mr.
Sheffield         $$      Strong


Promissory       Mrs.
Note
                 Strong
    Suretyship or guarantee

• Promise to answer for debt of another
Lender
(Creditor)




             Borrower
Lender
(Creditor)




  Surety-     Borrower
  Guarantor
Lender
(Creditor)




  Surety-     Borrower
  Guarantor
Lender
(Creditor)




  Surety-     Borrower
  Guarantor
               ????
 Q: Is the agreement “within the
             statute”?

• Categories of agreements; see local
  (state) statute
CR Klewin v. Flagship Props.


• Procedural history
CR Klewin v. Flagship Props.


• Procedural history

• Certified by 2d Circuit to Sup
  Ct Connecticut
Facts
         Facts


• What was the
  agreement here?
             Agreement

• 3/86: “We’ve got a deal”
             Agreement

• 3/86: “We’ve got a deal”

• Dissatisfaction by October, 1987

• New construction mgt firm, March 1988
     Estimated duration?


• Three to 10 years
   Two certified questions

• “Indefinite duration” K and
  the “one year” clause

• Contemplated performance
  more than 1 year but no
  term stated in the K
Relevance of history
      Relevance of history

• Affects how the court interprets the
  provisions of the S o F
      Relevance of history

• Affects how the court interprets the
  provisions of the S o F

• “Courts look with disfavor” – p. 272
      Relevance of history

• Affects how the court interprets the
  provisions of the S o F

• “Courts look with disfavor” – p. 272

• Connecticut precedent: what trend?
Main question
        Main question
• “performance cannot possibly
  be peformed within one year”

• What does “possibly” mean
  here?
            Holding here

• “cannot possibly be performed within
  one year” means under the express
  terms of the contract

• The K itself rules out performance in
  less than a year

• Not surrounding facts

				
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