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II SIMPLE;fT$.#?i;,*La''*uoWe have now dealt with the contract which is valid by reason simpt"

of its form alone, ;;;;;;t ;;;h" contract which depends contra

for its validity .tpoo-th" p':"t""t" of consideration'^"'if".J^ffit"'.ontr^.i, ur" ul.o often called Parol conttacts mav.

because hey can b"';;;;-h,.o uy *ord of mouth. In certain fiii"*exceptional ases, ,o*"""t, tne law'requires writing'- ::iit-"t

;l;";;ffi i;;;i ;h" ;;itattt- oi th",p"'ol contract tselr'but

sometimes nly as""id""t"

*ithout wliich it cannot be enforced'

But it should l*"ys ;; ;"t""-i" *itd that consideration s as

necessary n these *iiu1* "'in those n which no writing is

;;ift1 ''f';;;;';il;;";;;;iv *'itt"" and not specialties'

il:;; ;"ror",ta to"tid"tution hust be proved"2the piincip"f tt"it""oJy-t"["it"-""ts oi form in simple con-

tracts aie bridflYas follows:(r) A bill of exchange or promissor-y ote must be made in writing'

rii, i, required y tt,?sir[^"f-E.'\Te'- A"t r88z'1-1]ri;lljt'*::provides that the

".|.po.r."of a bi[ bf exchange must also De ln

writing'^f -nncw

lent bv a moneylender s(z) A contract lor the repayment of money lent

by'a'moneylenc

.roi .r,fo..""ble unless"

t'ot" in writing ton''uining "Utht terms of the

.orr,ru., has been signed by th-eborrower'+

(3) Contracts of Mari'ne Insurance must be made in the form of a

*l;l';"acknowledgement f a debt barred by the Limitation'Act must

b" ? ;;;;;ilJB;;;;'d;;;'; ;' his agcnldurvauthorised'6

(s) a hir.-p',"niJ";;'";;;; pu;t "be supported v' a note or

memorandum" *"ffigi?;;"J;; t'ilhit"t "nd'uy or on be\allof

-11]parties o the agreem"t"]Ti'i' "ot"

o' memorandum must contaln certaln

i"rms of the agreement'7r One of the most common uses-nowadays f a sealed nstrument (outside

conveyances fland) It ii"i"i'

t""red covenantfor a seven ear Payment o some

charitabte bie.,, *rr"r:',i|',"ri.".'rrTrif ;";;bd to claim he iniome tax paid by

the donor in-addition o the covenanted um' .;-R;;,v. Hugtres r ZZ8),7 Term R. 35o (n')'

, +S & 46 Vict., c. 6 r, ss. 3,14 r_7" 11^-, Moneylenders ct, rgzT-Q7 & r 8 Geo'-V' c' r z)' s' 6'

s Marine rrror",,t"hti'i9'oO 1o Edw' VII' c' 4r)' s' zz'

6 Limitation ct, rgjg Q k 3 Geo' VI, c--zr) ' s ' .24'

' .;iil;;;;#e"t, isls (ic z Gco' I' c' 53)' 'e'



66 FORIVIATION OF CONTRACT

Before 1954., owever, he most important,""iT{:t of con-

tracts which't"q"it"d writing were piovided by tho^se prcified

statuter n the St"t"t" odii*d,, t 67"7' S"c:iions and I 7of the Statute-*i;;;

(which *"t" t"-""".i"Ji" laier Statutes)2 endered:t*i"lIlTofcontractunenforceableunlesstheywereevidencedbywrltlThe object of these orovisions, as the name of the Statute m-plies, was ao ot"""",'i,".td' But almost rom its inception' his

i"qrrir"-"tt ^of writing.exhibited a tendency o encourage'rather than to prevent,"dishonest ealing' Th6 attemPts .of he

iudees onsequently o circumvent he Statute' nd he nlcetles,r?

ft;;ij;;r;il- #r,i.r).,"rutted, endered ts operation oth;;;?"ry il-"ifin.ia. It became lmost niversallynpopular

Bv the t-u*-i"fotm(Enforcement of Contracts) Act, 195413

"i""'.fafr"." pr""i.iJns, together with their re-enacting Sta-

tutes,4 were rePealed.t*o .trr."rro .ott,t"tt were, holever, exemPted from this

reoeal. These are ( l) Contracts of Guarantee's nd (z-)Contracts-fbi

,h; S;[;i t-jnit.o Section 4 of the Statute of Frauds was

left sufficie";iyl;l; io prrrrid" for formal requirements in

these wo cases:No action shallbe brought ' ' whereby o charge he.defendant pon

any special t;;lJ;t;",itt fot the debi, default'"orm-,iscarriagef an-

otfi.i p..ro.r; . . ' or uPon any- ontract or sale of lands' enements r

hereditarnentt.-ot-*u itterest'in or concerning hem; ' unless he

agreement"P;;hi;'hs.,ch

"tiot'shallbe broughtor some nemorandum

or note ,t"r.oi

rftuitU. in writing, and signed biy he p-arty o be charged

therewith t t"*" .,it"i pttto" tiitt"t"ttJby him lawfullyauthorised'

It is necessary o consider these pointsin greater detail'

Contracts of Guarantee

Guarantee The actual words of the Statute read: 'any special Promlsetoanswerforthedebt ,default ,ormiscarrtageotanotnerPersonThis is a promise of'guaranteg, 9f t"t: I:hip' It is always re-

ducible to^this form: .Deal with x, and if he does not Pay you'

I wil l . 'I z9 Cat' I, c. 3.' sa leof GiLJt i . , , r893(56 &57Yict ' ,c '7r) 's ' 4 ;Law of PropertyAct '

r9z5 (r 5 & 16 Geo V, c. :o) , s .4o (t) ''r'r'&'3 Eliz. II, c. 34. For

".o-*"rrtury on this Act see Grunfeld (tg5+)'

r7 Mod. L.R.s For he ollJ.,ir,* iews n his t pic, f:';t:Sl"*:*'ri.?;';,';f;n.

Law Revision"C;;;i:";it937),

Cmd' 5449' ar.d he First Report of the Law

ReformCommittee t951)' Cmd' 88o9'

6 see he Lu* of i"6i,".itya.t, ryzi 65& r6 Geo' V' c" zo)' s'

4o(r)'



FORM AND CONSIDERATION 67

This promise must be distinguished from a contract of in- <liffersromdemnityi that is to say, from a promise to save another harmless ndemnit

from tire result of a transactton lnto which he enters at thei.ir.stance f the promisor. The distinction is of great practicalimportance, because a contract of indemnity, unlike that of

guirantee, does not require to be evidenced by-writing of.anyIort" In a contract of guarantee there must always be threeparties in contemplation: a principal debtor (whose liabilityinay be actual or piospective),-a creditor, and a third party who,in tonsideration'of some act or promise on the part of thecreditor, promises to discharge the debtor's liability if the debtarshould ait to do so. n a conlract of ind-emnity, however, the

promisor makes himself primarily liable and undertakes todischarse he liabilitv in any event.The"case of Guiti U C;. v. Conradt affords an illustration

both of a guarantee and of an indemnity:

The plaintiff, t the request f the defendant, ccepted ills.of xchangedrawn on a firm of Demerara merchants, eceiving promise rom thedefendant hat he would, f necessary, eet he billsat maturity. Later hefirm got nto difficulties nd he defendant romised he plaintiff hat f hewo,rli uccept further batch of bills the funds should n any event beprovided.

It was held that the first promise was a guarantee, the secondan indemnity. Davey L.J. said:2

In my opinion, here s a plaindistinctionbetween promise o pay hecreditorif the principal ebtormakes efault n payment, nd a promise

to keep a personwho has entered, r is about o enterr nto a contract fliabilityindemnified gainst hat liability ndependently f the questionwhether a third person makes efaultor not.

In a contract of guarantee there must, in fact, b-e-a1 lpecta- Necessi-tion that another person wiil pay the ciebt,for which tfrg pr9-^lllil",r""-misor makes himself iiable. If the promiser makes himself krity,irprimarily liable the promise is not within the Statuter3 and need third art

not be in writing:If two come o a shop, ndone buys, nd he other, o gain him credit,

promises he seller If hi does otpayYou, zaill'rthis s a collateral nder-iaking, and void+ without writin..:,by tire Statute f Frauds: but if he,^yrrTLrt him hatte he goods, will be our ?aymaster'ror'I will see 0u

' [r8g+] Q.B. 85. 'zAt P. 896.t naibirc iod;oRobltrConbCo.v.Martin, tgoz) t 5.8. ZZa.a The word 'void' is here used o mean unenforceable'.



68 FORMATIOI ' I OF CONTRACT

oaid ' . thisisanundertakingasforhimself 'andheshallbeintendedtobeffi;il;;t",, ""d

the oth-er o act but as his servant'I

Thus in Reader v' Kingham2 the bailiff of a County Court was

about o "rr".i "'a"illittihe efend"nt roli;1 .to-Ply n"

debt if tt e Uailif *oUa forbearo arrest he debtor' fhis was

held to u""

p,o-i;"?l;J;nity from-the.defendant o thebailiff and not one of guarant€e"since he debtor was under

no liability . ,t"^iriiiF,

*J,t"'bailiff

rilasnot authorized by

the creditbr to make this arrangement'But it .ftorrii U" iot"J tnut a promise o answer or the debt

of another, where he guaranteels merely. "til:i{ to a larger

contracturra n"ot"it" ?"f" tU3ect of the transaction, has been

held not t" U"'iritiri"itt" r".iion. So n SuftonU Co.v. Gre1,3where th" d"i;J;;;'""t"'"d into an oral arrangement with

a stockbrokJ;;;;;;J;;e business o him on the terms that

they were ,o t"-."i"" ft1f.f ftg commissions arned and to pay

hal i thelossesincurredinthe 'eventofacl ient introducedbthem failing ;;;t' it *"t held,that their promise o answer

for the a"ut o? lail'; lli""t did not fall ri'ithin the section.

It was n.id.it"l io-" *ia", transaction nd did not have obe

evidenced Ywriting'and ear The liabilitt *"^*t"ed may,be prospective t the time the

riabiritv1e1,'ir".-lti;i;.ii;;*prt' '.p'" ^o"

ayz-:? x:11:il'M-r ptov, ,i;Qlwtll gosurety orpaymentlll^1lt

servrce#rriirrt#i i" ,"nb"'"d' Yet therLmustbe a princ.iP^l -"-b1at some aint"t'"T* 1ft"t" is no suretyship' "ld

th." promrse

thoush not ii'"*titi"g *ifl n""-"'tlifGt6'i

"ttionable"Thisis

ifi".&^r"a by Mountsiephen ' Lakernan:a

The defendant was the chairman of a Local Board of Health' and the

plaintiff was a builder' It was proposed hat th.e plaintiff tt:1r]O construct

certain drains. When asked f ht huJ*y objeition to doing the work'

the plaintiff r.pii.i;h;;he had none' fiJuiatir that the defendant or the

Board would t".o-. responsible o, p.y-..tt. whereupon the defen-

dantsaid, G";;'i;;Lttpht"'. u"a at the work' and I will see you

paid.,The n."ii".p^rii"i"Jii"uili,y on the sround that they had never ,.,","d'..J; ";;:;';;;*'l* tti X5:t ';1',l ;:f;pleaded hat his statement was a promrse o uE "l:"::;::' ,:".;;;;;;hil it

"

'i,"i","of Frauds and not being in writing was

unenforceable'

r Birhn)rv' Danell-(r7o+)' r Salk' 7'r 1r894J Q.B. 285..

2 g86z), r 3 C.8., \. . t++,a (187I), L'R'Z Q'B' 196' afhrmed ub zon' Lakinan

v' Mzuttttte?h

( 824) L 'R ' 7 H'L ' t7 '




The court held that the plaintiff was entitled to succeed. heBoard had incurred no liability which could be guaranteed,and there could be no suretyship unless here was a principalJ"Ut.i- The words of the defendant, when properly construedindicated hat he would therefore be liable, not as surety, ^but

". ."i" a"Utor, by reason of his-oral p59mise. o the plaintiff'-ii,fr"r" is an'existing debt for wfiich a third party s liable

',1.:::-o the promisee, nd f ?he promisor undertakes o be answer- rnuou

"tf"f.i it, still ih.t" it no guarantee f the-terT.:.of he agree-

ment are uch as o extingiish the original iability. If .r1_says,o-X, 'Ci"" M a receipt ; full for.his-debt o.you, and I willp"v t't

"

amount,, his promise would not allwithin he Statute;I

i.i ,fr"r"-i. tro rlr"tylhip, but a substitution of one debtorfor

another. The promile must not effect a release f the originalJebtor; his iabilitymust be a continuing.liability'

The debt, defauit, or miscarriage poken of in the statute Mav ris

will include iabilities arising orrt oif oit as well as out of .o,t- fromort

tract. So n Kirkh.am - Marter:zThe defendant's on wrongfully rode the plaintiff's horse without his

leave and killed it. The defen"dani romised o. paythe plaintiff a certain

sum in consideration of his forbearing o sue his son. I hts promtse was

not evidenced y writing.

It was held that this was a promise -toanswer for the 'mis-

,irr,ins"' of another within the meaning of the Statute and it

was aicordingly unenforceable.

Contacts orthe Sale of Land

The relevant portion of section 4 of the Statute of Fraudss nteresn

h"r b;;;;;pl"."h uy^t".ti"" 4; (t) of the Law of Property Act, r""d

r92S. This states:No action may be brought upon any contract for the sale or other dis-

position of land o.".,y

intErest n 1and, unless he agreement_ pon-which

such action is brought, or some memorandum or note thereof, ts tn

writing, and signed6y itt. party to be charged or by some other person

ther"uilto by him lawfully authorised'

It is conceived that the decisions on the old wording of. the

st"t.r," of Frauds are still applicable to this contfact. The

;;;air" deals with agreements'made n view of leases r sales,

I Goodman . Clarc (r8r8), r B. & Ald. zg7'2 ( r8rg) , z B. & Ald.6t3.t )*tri6nU".t

or sale of lands,enements or hereditaments, r any interest n

or concerning hem'.



70 FORMATION OF CONTRACT

but it is not always easy to say what constitutes an interest inland. Contracts #hich

^t"pt"ii-inar' to the acquisition of an

interest, or such as deal with a remote and inappreciable in-ferest, are'outside the section. Such would be an agreementwith a boarding-house keeper for board anci lodging;I to puta house into repair for a prospective tenantf or to transfershares in a banliing3 or witerworks+ comPany whic-h, thoughit possesses and, {ives no appreciable interest in the land toits shareholders.

sare f The difficulties which have arisen n interpreting this sectioncroPsmal be illustrated by reference o contracts for the sale of crops.

A distinction has been drawn as o these between'emblements'"or fructus industriales, hat is to sa/r crops produced by culti-.tr*iion, and growing grass, timber, or fruit uPon trees, whichare called f/uctus ialarales. The law now seems to be that

frucrus in,listriales are always goods and any agreement foriheir sale need not be evidenced by writing.s Fructus naturales,on the other hand, are treated as an intereit in land within theStatute unless they are to be severed from the soil before the

property in them passes o the buyer,6 or it is agreed hat theyinoita'be severed bv the purchaser under the contract ofsale.7

Forrnal Reguirentents

Require- The form required is the next point to be considered. Whatments fis meant bv the stioulation that 'the agreement or some memo-

'o'- r"nd.r- oi note th^ereoi hali be in liriting and signed by theparty to be charged therewith or sorne other person thereuntob" tti- lawfulli au:,horised'l It has been tubstantially re-enacted n section 40 ( I ) of the Law of Property Act, r gz 5, andis still operative in connexion with a contract of guarantee.Many of the decisions which will be cited with reference o itsinte rpretation were decided on portions of the Statute of Frauds

which have now been repealed, but they are no less authorita-tive in connexion with the two classes of contract which strllremain.

1 Wriglt v. Stavert r86o), z E. & E' 7zr.2

'lnge// v. Dti:e Q875), L.R. ro Q.B. tZ+.3 Hunile v. Mitclell(t8:g), rr A. & E. zo5.a Bligt v. Brezt (r836), z Y. & C. 268'

s Duppa . Malo (1669), r'Wms.

Saund. 75, at p. 276.6 Sali-oiGoodi Act, r 893 56 & 57 Yict., c. 7 r), s. 6z-



FORM AND CONSIDERATION 7r

(a) The forn is xr'ereQ ezsidentiarl

The form required does not go.to the existence f the cofi- Metely.

tract. The contract exists thougi it may not be clothed *111tcvidentia

the necessary orm, and the effEct of a failure to comply with

theprovisir:ns of the Statute is simply that no action can be

broueht until the omission s made good'ItYs not diftcult to illustrate this proposition. Thus, the note

in writing may be made so as to satisfylhe statute, at any timebetween he formation of the contract and the commencementof an action;I or the signature of the party-charged may beafixed even before the contract is made. For instance, oneDartv to the contract may sign a rough draft of its terms, and

lckriowledge his signature by way -of concluding the contractwhen the Eraft has" been coirected;z and an offer containingthe names of the parties and the terms of an offer signed bythe offeror will bind him even though the contract is onlyconcluded by a subsequen-t arol acceptance'3

In fact, the memoiandum need not even be a documentmade as a- ecord of the contract, but may have been intended

for some entirely different PurPos€. ft.may even happen that

one of the parties to a contracf which he has not signed mayacknowledge it in a letter which supplies his. signature andcontains

"ithesame time an announcement of his intention to

repudiate the contract.+ He has then supplied the statutory

"rrid"n.",and, as the ccntract had already been made, his

reoudiation was nugatory.'It ,""rnr, howevEr, to be settled that the writing relied- on

as taking a case out of the Statute must be in existence beforethe actio--ns brought.s

(b) Parties and subject-fttatterThe parties and the subject-matter of the contract must Th€ Parti

andpear in the note or memc,randum.DDear ln tne nofc or rrrcr l lvlarruurrr ' subiect-' th" oarties must be named, or so described as to be identi- *"i..

fied with ease and certainty. So a letter beginning 'Sir', signed::::,fied with ease nd certainty. So a letter beginning Sir', signed fi::'I Barhwort,lv. Toang r856),4 Drew. r (fourtee:r ears)'2 Stewartv. ECdowei \e74), 1,.*.9 C.P. 3r r; Koenigtblattv' weer,lr9z3f

z Ch. r r4 .3 Re*tt . Picfuley r866)' L'R. r Ex. 3+2.a Baxton v. Rast\r\72),'L.R. 7 Ex. 27gi Tlirle ll v. Canbi, Ir9r9] z K'B'

(go,"t Lrro, v. Diroz (1889), zz Q.g,D.357; Iart Bnitl U Co'v' Mettrt,

[1928] K.B.lgz.




by the party charged but not containing the name of the person

;J ;ir;; ii is adtressed, is insufficieni to satisfy the Statute;I

f"t if the letter is shown to have been contatnedrn an enveloPe

on which the name upp"^", the.two Papers-could clegarded

as one document, ".t'a'tn" '"q"itemettf satisfied'z Where oneof the parties i, ,tot'n"*"J, bri-t.i; described' oral evidence will

;";"iil; f*;h";;;t& of identificationf the descriptionp"iti.^,"'"1p*in. i"*1, lyt ^"qt

otherwise'3 o f propertyis sold bv an agent

to"U"fi"ffof the 'owner' or 'proprie.tor' t

il;';"";;"Totully that X was the owner or proprietor;a'U"iff ,.frJ."f" *"r--Jae by the agent on behalf of the lendor',

;;il;.li"nr', o, his ;f,iett'd',this"description iSht,fit111,one;i;-;;ber'of people and there would be no such certalnty

of statement ",*o.,fd render oral evidence dmissible's -"'

T;;;" prir.ip1"_i. "ppri"ato descriptions f the subject-

matter of a contra.i. Itt Plintv' Bourne:6

The plaintiffagreed o sell and the defendant o buy 'twenty-four

*r", .f ffi, i*.f,.fi, "Ilaall appurtenances hereto at Totmonslow' n

;h;;;th of Druy.ott, n the county of Stafford"

It was held that oral evidence could be admitted to identify the

hJ"B;;; i"."ipi io,-o""y

paid v one partv to another,on account f his:;;;" ;;lit Ti"ia"i" min^e' as been heldto be too uncertain "'

to tf'" respective.rightsand iabilitiesof

ifr" putti"t, to be identified Py ot"l evidence'7"^'Aiflh;;aterial

ierms of thL contract must be accurately etout in the memor""J"-' Any material erm omitted which is

of benefit solely "'".. p"ity ryay.be waived by him's U"l]lt-'

ir.iU"r"nt to ihe otherb rio both parties such as a Provrsloni;r-;;;;;; ;ossession f land sold),ro 5"statutory equlrements

*iff i"i U"'satisfied. he consideration or the agreement must

"pp*ii" writing where he contract s one for the sale or other

ilJo*iii"" .f f"'"J, U"t by the Mercantile Law AmendmentA;i"; il;, '"tii"i'ti; ":

consideration eed not be stated

where the promts" i",'o"" 'to answer or the debt' default' or

--i..*ti"n.lof another', 'e' contracts of guarantee'

, Willia)t v. Jorlal (1817),6- -h'P' 5I7'2 Pearce . Gidner, [i897] I 8'B' 688'3 Stokesv. lticler, r9zo] I ch' aIj '

: y;::':":;;:;t:3ill:i ai?'Til'* ut sgz)zh 8r




O Several documentsThe memorandum may consist of various letters and papers, The erms

but they must be connecied and complete' mav e"*i,"ii'".r."ii"i ih^t "ll

the material erms of the contract;.1*""0.noUa be n writing, but these erms need not.appear n the ]ffi*same documentg a ilemorandum may be proved from severalDaDers or from a correspondence, but the connexion must

Lolo" , from the papers themselves.I Oral evidence s therefore butmust

"tat-i.riUf "to con'r,e'ct wo documents, but only where the signed *.::l;"

document either on the face of it expressly refers to the the ace f

",fr"r,;il-pti"aty assumes some other documentary transac- th'-

t ion:2

if voucan spellout of the document reference n it to some ther rans-

"a',ior,,you

"..at liberty o giveevidence s o what hat other ransaction

ir,".,ir'if

that other tiunruition contains ll the terms n_writing, theny6r, "t', get a sufrcient memorandum ithin the statute y reading hetwo togetner

ln Long v. Millart the plaintiff had signed a document con-taining'all the terms oi the purchase. The.only document

signed" by the defendant was a receipt for the dep.osit. .TheC6urt of-Appeal read the receipt as refer'ng to a dePosrt onan agreement o purchase and,-and admitted oral evidence o.o"rr?.t the two documents. Where, however, there is no such

"*pr"rror implied reference, the statutory requirements will

noi be fulfilled.+

(Q SignatareThe memorandum must be signedby the party to.be charg.:d lp::i::.

therewith or by some other person thereunto by htm lawtully;;.fi ' ' "

authorized.The memorandum need not be signed by both Parties, and

a Darty who has not signed it is able to enforce it against the

""?t"ioho has.s The siEnature need not be an actual subscrip-

lion'of the party's rr^-'", itmay be a mark; nor need it be in

*iiting, it iray'be printed or. siamped; nor need t be placedat the%nd of ihe d6cument, it may be at the beginning or inthe middle.

These rules are established by a number of cases urning

' Stoket . Wlzicler,r9zo] r Ch.4tt', iUid., arRussell.-at'p. r8. ' (t 879), C.P.D. 5o.* Boyieit . Druniond r8o9), r East 4z'

s Bbt v. '$erst r8zz), 6 Madd' 3r6'



7+ FORMATION OF CONTRACT

upon dificult questions of evidence and construction,I and afiirther discussion of them would be out of place here'

(Q Non-complianceFailureo It remains to consider what is th.e Position of parties who

complyhro," .entered into a contract required to be evidenced bywriting, but who have not complied with the statutory Provl-sions. Such a contract is not void, or voidable, but it cannotbe enforced bv action against a p^rty who has not signed a '

memorandum'because i'is incapible of proof'z On the otherhand, a pafty who has not signed a memorandum can enforcethe contract against one who [as.s As an oral contract is merely-

unenforceable" bv action, and not void ab initio,a vendor of

land who has releived a deposit from a purchaser under sucha contract inav forfeit the deposit if the purchaser defaults;+he is not r""king to enforce the contraCt by action, but toexercise his riehtl under a valid and subsisting contract.

Part Perforrnancepart

er- IJnder the equitabledoctrine of Part Performance the Courts

foffn"'o..will in certain 'cases allow a contract, even though of a kindrequired to be proved by writing, to b-eproved by oral evidence,wlien the party seeking to enf6rce the contract has done actsin perform'a":" gf his oiligations under it. The doc6ine, how-ever, ls srrrctly limited,

""ndth. conditions of its applica.tion

"r".t"t"d in a'passage n Fry on Specific Pcrformance,s wh'ch

has been udicially ippton"d,6 as follows:'

In order hus o withdraw a contract rom the operation fthe statutetseveral circumstances ust concur: first, the acts of Part performancemust be such as not only to be referable o a contract uchas hat alleged,but to be refcrable o no other title; secc dly, they must be such as orender t a fraud n the defendant o take advantage f the contract notbeing n writing; thirdly, he contract oraihich hey refer.must e suchas n-its o*r ,rJ,.-,r. s enforceable y the Court; and ourthly, there must

be properparol evidence fthe confr.ctwhich s et in by the acts ofpart

performance

We will consider each of these conditions in turn'

I See Leeman . 8tocfu, ro5 l] Ch' 94t.2 Madditon v. .l/denon (1883), 8 App. Cas. 467, at P' 488'3 Bolt v. '{\ertt

(r8zz), 6 Madd. 3t6'a Mimickeida* i. Ltiott (rg4),19 T.L.R. aa5. s (6th.ed')' $ 58o'6

Clapronilrev. Lambert,

itgrii; Ch.

356,at

P' 36I;Rawlinsot v'

'tmes'[1925] r Ch. 96, at p . I 14 .




(a) Perfornailce referable to tlte clntract

The acts of performance relied upon must of themselv€s Mustsugqest the exisience of a contract suCh as t is desired to prove, :lf,t:*.altl"ouEh they need not establish the exact terms of that COfi-ofcontratract. For example, in an old casez esterv. Foxcroftrl when.theplaintiff, in puisuance of an oral agreement for a lease, hadintered tpot, the land of the defendints'testator, pulled downexistins buildines and built new houses on the site, the Flouseof Loris orderei the defendants to execute the lease. And inRawlinson v. t{mes:2

The defendant ntered nto an oral contract with the plaintiff to takethe lease f a flat. It was agreed hat certain alterations houldbe carriedout by the plaintiff, nd,wril" thesewere being arried ut, he defendant1. *6-"nf thoueht it constantly o inspect heir progress nd o makesuggestions boui he work. On completion f the alterations, he re-pu?T"t"d he contract and set up the defence hat there was no sufficientnote or memorandum ln wrltlng.

It was held that the acts of the plaintiff, in complying with therequests of the defendant, inevitably suggested he conclusion

tha't the defendant had entered into a contract giving her someinterest in the property. They were consequerrtly acts ot partDerformanc" r.tffi.i"nt to let in oral evidence of the agreementior a iease. The reason for this requirement that the acts mustrefer to the contract is that the equitable doctrine does no morethan allow an alternative to the-statutory memorandum; thememorandum is required as evidence of the contract, and

equity requires the icts relied upon as part performanceto

futnt'ttre same unction.Conversely, acts of performance which do not of themselves ord.ctri

i"";1"; ;;; ilf*""."'of the existence of a contract will not exciude

brins the hoctrine into play. In the leading case of Maddisont ,lTdersonr hc whole dbctrine wa+ exhaustively discussed bythe F{ouse of Lords:

The appellant had served as housekeeper_to ne Alderson or many 9-b,yearswithout wages, ndshealleged hat she had done o n consideration Sbff hisor"l promisEo make a wilfleavinghera certain armhouse or life. Iq>Alderson di"d int.rt"te, having made will in her favour but having / 17omitted o get it ptop.riy att.s6d. The appellent ossessed erselfof thetitle deeds th" ptop"tiy, and Alderson'iheir-at-law brought an actionto recover hem'

I(r7or) ,

Colles, .C. o8.3 (r883), 8 App. Cas.467. " lrg"S)

r Ch.96.




It was held by the Flouse of Lords that since the appellant'scontinuance in Alderson's seryice was easily explicable withoutsupposing any contract relating to Alderson's land, it was not

"n'".twh"ich would take the allEged contract out of the statute.

For the same reason t is well settled that the payment of a sum

of money, either as purchase monelr or as rent in advance, is-not a suficient act of part performance, for 'the payment- ofmoney is an equivocal ct, not (in.itself),.until the connectionis estiblished 6V parol testimony, indicative of a contract con-cerning land'.I b?t the other hand, 'the fact that an ingeniousmind iright suggest some other and improbable. explanationof the faJts'' is-not enough to Prevent acts from being neces-

sarily referable to the contract.(b) Fraud on the plaintif

change f The acts of part performance relied -uponmust- have been

positionperformed by tire pliintiffl he cannot.rely on acts done PI ,.h"befendant. Furthei the doctrine requires that the plaintiff' byacting on the promises of the other party-, must have changedhis p"osition for the worse, so as to render it unfair that theothei should not be bound by the contract; there w-ould other-wise be no 'equity' for the Court to enforce in his favour. Theexclusion of i money payment from admissible acts of partperformance has also been explained. n.this ground, for thehonev can be recovered back-by action if the contract is notperfoimed.3

O Contract specifical$ enforceablecontract The contract must be one which, if it were properly evi-mst,bedenced bv writine, would have been specifically enforceable.

"'Ir:'i::"1'ilhis conlition arfies from the historv bf the doctrine, whichis wholly the creation of the Courts of pguity;-and although,since the Judicature Acts, it may be administered in any Court,it still hal the limitations which were impressed upon it by the

nature of equitable lurisdiction oyer coniracts before the amal-gamation oi the Courts. Thus in Britain v. Rossiter:+

An action was brought by the plaintiff for -wrongful dismissal,n

breach f an oral contracl f sirvice not to be performed ithin the spaceof one year rom the making hereof. his wasone of the contracts hich

' Maddison. '{lderconr883),8 App.Cas. 67, erLordSelborne tP.+79'2 Broughon. |nook,[r938] Ch. 5o5, erFarwellJ. tp. 515.3

Cltaprozilre. Lamlert, i9t71 z Ch. 356.a (r882) , r Q B D z3.




the Statute of Frauds ormerly required o be proved by written evidence'

The contract had be# ;;i";;; in part'' and the doctrine of part

ffi;;;r"r. L".tta'to ditptn'" with the need or writing'

The Court of Appeal held, however' hat the doctrine did not

;;jv;'i:1?g:.yi,:-,'{.#n*,x*i,H;:ffi:ta contract of servrcethat the doctrine .

";-;;;n""at" those^contrltt-1.:Tql:lI

#ril"u; (ti';?,.i. Law o-fProperty Act' r9z5' sinceequrty

would never specrtrcally enforce a contract of guarantee'

(d) Proper evidence of tlt'e contract

There must be clear and ProPer evidence' whether oral or P'op.'

written, of the terms of the tontract, for the doctrine cannotevidenc

be used to transtor; l;; a valid contract one which would

otherwise fail for uncertaintY'The iustification iJr iiie'doctritle of part P"tfo:Ti:te-has

Ho*

been stited ,o U" iirri"Ei;i,y wili not p"t-it a statute to be *''ff"ir'd

made an inrtrrr-""t oflt'""d'; but Courts of Equit/ 2r€ oo statute

more able than Courts of Law to overrule a Statute because t

may lead to results whichare contrary to conscience' A better

exolanation oua'.""rrit^JL in* thJ role of "qlity.il supple-;i5;ffi ;; ; ;s ;il;;;;i;' ;i' de e dan is e lv''chagelffi?J""ilil;i ffil,G?;;the acts onen xecutionfthe contract, ano;;; ' ' '-"pon the contract itself"z Such acts

willbe held o U""rlood ""idd"t"

as. nynoteo.r,me:::1i9"-il;;ifi and will 5e collateral o the contract n questlon'

I I I . CONSIDERATION

Ithasakeadybeensta tedthatconsiderat ionisauniversalConsiderequisite of .o'tru'.i';;;-""d;;t""1' It wili be well' therefore' li"i"'a

to-start with a a"itiii"" oico"tideration; 1n4 w9 may'take

that which i, gi";;';i"tft J' in the case of Currie v' Misa:3

A valuable onsiderationn the sense f the law *"y,t:lttt: in some

right, interes,, ,ont, J'^["t'tfit "tt"'it'g to one party'-orsome^forbear-

;'.; il;;#;^b;;];; ;;;;;:tbtti,v gTu'n, uffLred, r undertaken v

the other.

Consideration s something one' forbolle' 9r t"tr":i9' ?-1il;;;d ;o u" ao*, forbo?ne, r suffered y the Promrsee n

I Infra,ch' xvii ') ld fi (I883) 8 App' Cas +67 pel Lord Selborne tp' 475'

2. simple contracts required to be in writing - - principles of the english law of contract a. g....

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