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					    George Mason School of Law


               Contracts II

            Statute of Frauds


                F.H. Buckley
             fbuckley@gmu.edu

1
    Why 1677?

    Party
    on,
    dudes!




2
    Why 1677?
     Juries as fact-finders
     Interested parties not admissible as
     witnesses




3
    Why 1677?
     Juries as fact-finders
     Interested parties not admissible as
      witnesses
     And that made the Statute of Frauds
      necessary because….?




4
    Why 1677?
     Juries as fact-finders
     Interested parties not admissible as
      witnesses
     And that made the Statute of Frauds
      necessary because….?
       And if it did, why do we need it now?




5
    The Statute of Frauds
     Marriage
       The old action for breach of promise




6
    The Statute of Frauds
     Marriage
       The old action for breach of promise
       Restatement § 124, illustration 1
       Restatement § 90(2)




7
    The Statute of Frauds
     Marriage
     Promises not to be performed within
      One Year
       What kind of promises were these?




8
    The Statute of Frauds
     Marriage
     Promises not to be performed within
      One Year
       What kind of promises were these?
         An aide-memoire?
         Or a significant contract?




9
     The Statute of Frauds
      Marriage
      Promises not to be performed within
       One Year
        What kind of promises were these?
          An aide-memoire?
          Or a significant contract?
          Do you agree with Farnsworth?




10
     The Statute of Frauds
      Marriage
      Promises not to be performed within
       One Year
      Land




                     “Tis the only thing worth
11                   fighting for, worth dying for”
     The Statute of Frauds
      Marriage
      Promises not to be performed within
       One Year
      Land
      Executor’s Assumption of Liability
        No new consideration needed




12
     The Statute of Frauds
      Marriage
      Promises not to be performed within
       One Year
      Land
      Executor’s Assumption of Liability
      Goods worth more than [$500]




13
     Restatement § 110 ff, UCC § 2-201
      Marriage
      Promises not to be performed within
       One Year
      Land
      Executor’s Assumption of Liability
      Goods worth more than [$500]
      Suretyship Agreements
        Restatement § 113-14

14
     Colonial Finance in Virginia




15
     The Statute of Frauds
     29 Car. II (1677)

      Marriage
      Promises not to be performed within
       One Year
      Land
      Executor’s Assumption of Liability
      Goods worth more than [$500]
      Suretyship Agreements


16
     Restatement § 110 ff, UCC § 2-201
      Marriage
      Promises not to be performed within
       One Year
      Land
      Executor’s Assumption of Liability
      Goods worth more than [$500]
      Suretyship Agreements


17
     A trap for the unwary?




18
     The Statute of Frauds
     What’s its Purpose? McIntosh




19
     The Statute of Frauds
     What’s its Purpose? McIntosh


      Evidentiary
        Antifraud




20
     The Statute of Frauds
     What’s its Purpose? McIntosh


      Evidentiary
        Antifraud
      Cautionary
        Reflects seriousness of contracting




21
     The Statute of Frauds
     What’s its Purpose? McIntosh


      Evidentiary
        Antifraud
      Cautionary
        Reflects seriousness of contracting
      Channeling
        Settling terms



22
     The Statute of Frauds
     What’s its Purpose? McIntosh

      Evidentiary
      Cautionary
      Channeling

      Can you think of a fourth reason,
       unconnected to the protection of the
       parties?



23
     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?




24
     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




25
     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




26
     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
          Not unenforceable by virtue of the Statute
           of Frauds




27
     Do salesmen have tenure?




            Ron Popeil and the Veg-o-matic


28
     How does the one-year rule work?
      “Not to be performed within one year
       from the making thereof”
        I ask you to work for me on January 10,
         2010, with the expectation that the work
         will be completed by January 10, 2011




29
     How does the one-year rule work?
      “Not to be performed within one year
       from the making thereof”
        I ask you to work for me on January 10,
         2010, with the expectation that the work
         will be completed by January 10, 2011
          Restatement § 130




30
     How does the one-year rule work?
      “Not to be performed within one year
       from the making thereof”
        I ask you to work for me on January 10,
         2010, with the expectation that the work
         MIGHT be completed by January 10, 2011
          Restatement § 130




31
     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.




32
     McIntosh

      What is estoppel? And promissory
       estoppel?




33
     McIntosh

      Restatement § 139
        Promisor should expect reliance
        Promisee does rely
        Non-enforcement would be unjust


      Cf. Restatement § 90



34
     Was McIntosh a proper case for estoppel?




                         What do you think would have
                         happened if McIntosh had asked
                         for a written contract?




35
     Was McIntosh a proper case for estoppel?




                         If you’re Murphy, how do you
                         react to the decision?




36
     Is land different?

      What do real estate agents make you
       do if you want to buy a house?




37
     Is land different?

      What do real estate agents make you
       do if you want to buy a house?
        Written offers throughout
        Closing




38
     What happened in Schwedes?

      Sale by seller--No real estate agent




39
     What happened in Schwedes?

      Sale by seller--No real estate agent
        What, if anything, constituted promisee
         reliance?




40
     What happened in Schwedes?

      Sale by seller--No real estate agent
        What, if anything, constituted promisee
         reliance?
          Securing financing
          The offer to send the purchase price




41
     What happened in Schwedes?

      Sale by seller--No real estate agent
        What, if anything, constituted promisee
         reliance?
          If the promisee could recover in damages
           for this, just what would this amount to?




42
     Can you distinguish Schwedes from McIntosh?


      Why was a defense of promissory
       estoppel explicitly rejected in
       Schwedes?




43
     Can you distinguish Schwedes from McIntosh?


      Cf. Restatement § 129




44
     Can you distinguish Schwedes from McIntosh?


      Cf. Restatement § 129
        Buyer gives seller purchase price. Can
         buyer have specific performance?




45
     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)




46
     Lawyer’s Ethical Duties

      Should Hoover have disclosed that
       the sellers were dickering with
       another purchaser?




47
     Lawyer’s Ethical Duties

      Should Hoover have disclosed that
       the sellers were dickering with
       another purchaser?
        MRPR § 1.6              A lawyer shall not reveal
         information relating to the representation of a client
         unless the client gives informed consent…




48
     Lawyer’s Ethical Duties

      What about saying that sending the
       payment was unnecessary?




49
     Lawyer’s Ethical Duties

      What about saying that sending the
       payment was unnecessary?
        MRPR § 4.3              The lawyer shall not give legal
         advice to an unrepresented person, other than the
         advice to secure counsel, if the lawyer knows or
         reasonably should know that the interests of such a
         person are or have a reasonable possibility of being in
         conflict with the interests of the client.




50
     The “note or memorandum in writing”


      Restatement §§ 110, 131
        Signed by or on behalf of the party to be
         charged
        Specifies subject matter
        Evidences existence of a contract
        Essential terms




51
     The “note or memorandum in writing”


      UCC § 2-201(1)
        Signed by or on behalf of the party to be
         charged
        Evidences existence of a contract
        But not above quantity of goods shwon
         in the writing




52
     The “note or memorandum in writing”


      How was the first writing “signed” in
       Monetti?




53
     The “note or memorandum in writing”


      How was the first writing “signed” in
       Monetti?
        Typed initials “SS” on Steve Schneider’s
         draft terms




54
     The “note or memorandum in writing”


      How was the first writing “signed” in
       Monetti?
        Typed initials “SS”
          UCC § 1-201(39) Signed “includes any symbol executed
           or adopted by a party with present intention to
           authenticate a writing.”
          Restatement § 134, illustration 3




55
     The “note or memorandum in writing”


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




56
     The “note or memorandum in writing”


      How was the first writing “signed” in
       Monetti?
        Typed initials “SS”
        Did it matter that this was a pre-
         contractual draft?
          Restatement § 136
          Posner’s three cases: how to tell them
           apart?


57
     The “note or memorandum in writing”


      What about the internal memo by
       Raymond Davis?




58
     The “note or memorandum in writing”


      What about the internal memo?
        Δ’s letterhead suffices
        How did Π obtain this?




59
     The “note or memorandum in writing”


      What about the internal memo?
        Δ’s letterhead suffices
        How did Π obtain this?
        Restatement § 132 applicable?
          Posner: they don’t refer to each other




60
     Monetti
      What was the part performance?




                   Melform products
61
     Monetti
      What was the part performance?
        Restatement §§ 139, 145
        UCC § 2-201(3)(c)




62
     Monetti
      What was the part performance?
        Restatement §§ 139, 145
        UCC § 2-201(3)(c)
          Does this mean the agreement is
           enforceable?




63
     When does Art. 2 apply?

      A sale on inventory and a
       distributorship agreement
        A general or a nominate contract?




64
     George Mason School of Law


                Contracts II

                   Terms


                 F.H. Buckley
              fbuckley@gmu.edu


65

				
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