1 george mason school of law contracts ii statute of frauds f.h. buckley fbuckley@gmu.edu
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George Mason School of Law
Contracts II
Statute of Frauds
F.H. Buckley
fbuckley@gmu.edu
Why 1677?
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Party on, dudes!
Why 1677?
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Juries as fact-finders Interested parties not admissible as
witnesses
Why 1677?
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Juries as fact-finders Interested parties not admissible as
witnesses And that made the Statute of Frauds
necessary because….?
Why 1677?
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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?
The Statute of Frauds
Marriage The old action for breach of promise
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The Statute of Frauds
Marriage The old action for breach of promise Restatement § 124, illustration 1 Restatement § 90(2)
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The Statute of Frauds
Marriage Promises not to be performed within
One Year What kind of promises were these?
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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?
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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?
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The Statute of Frauds
Marriage Promises not to be performed within
One Year Land
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“Tis the only thing worth 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
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The Statute of Frauds
Marriage Promises not to be performed within
One Year Land Executor’s Assumption of Liability Goods worth more than [$500]
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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
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Colonial Finance in Virginia
The Statute of Frauds29 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
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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
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A trap for the unwary?
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The Statute of FraudsWhat’s its Purpose? McIntosh
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The Statute of FraudsWhat’s its Purpose? McIntosh
Evidentiary Antifraud
2020
The Statute of FraudsWhat’s its Purpose? McIntosh
Evidentiary Antifraud
Cautionary Reflects seriousness of contracting
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The Statute of FraudsWhat’s its Purpose? McIntosh
Evidentiary Antifraud
Cautionary Reflects seriousness of contracting
Channeling Settling terms
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The Statute of FraudsWhat’s its Purpose? McIntosh
Evidentiary Cautionary Channeling
Can you think of a fourth reason, unconnected to the protection of the parties?
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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?
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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
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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
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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
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Do salesmen have tenure?
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Ron Popeil and the Veg-o-matic
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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
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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
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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
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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.
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McIntosh
What is estoppel? And promissory estoppel?
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McIntosh
Restatement § 139 Promisor should expect reliance Promisee does rely Non-enforcement would be unjust
Cf. Restatement § 90
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Was McIntosh a proper case for estoppel?
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What do you think would have happened if McIntosh had asked for a written contract?
Was McIntosh a proper case for estoppel?
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If you’re Murphy, how do you react to the decision?
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Is land different?
What do real estate agents make you do if you want to buy a house?
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Is land different?
What do real estate agents make you do if you want to buy a house? Written offers throughout Closing
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What happened in Schwedes?
Sale by seller--No real estate agent
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What happened in Schwedes?
Sale by seller--No real estate agent What, if anything, constituted promisee
reliance?
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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
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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?
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Can you distinguish Schwedes from McIntosh?
Why was a defense of promissory estoppel explicitly rejected in Schwedes?
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Can you distinguish Schwedes from McIntosh?
Cf. Restatement § 129
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Can you distinguish Schwedes from McIntosh?
Cf. Restatement § 129 Buyer gives seller purchase price. Can
buyer have specific performance?
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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)
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Lawyer’s Ethical Duties
Should Hoover have disclosed that the sellers were dickering with another purchaser?
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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…
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Lawyer’s Ethical Duties
What about saying that sending the payment was unnecessary?
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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.
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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
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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
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The “note or memorandum in writing”
How was the first writing “signed” in Monetti?
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The “note or memorandum in writing”
How was the first writing “signed” in Monetti? Typed initials “SS” on Steve Schneider’s
draft terms
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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
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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?
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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?
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The “note or memorandum in writing”
What about the internal memo by Raymond Davis?
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The “note or memorandum in writing”
What about the internal memo? Δ’s letterhead suffices How did Π obtain this?
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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
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Monetti
What was the part performance?
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Melform products
Monetti
What was the part performance? Restatement §§ 139, 145 UCC § 2-201(3)(c)
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Monetti
What was the part performance? Restatement §§ 139, 145 UCC § 2-201(3)(c)
Does this mean the agreement is enforceable?
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When does Art. 2 apply?
A sale on inventory and a distributorship agreement A general or a nominate contract?
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George Mason School of Law
Contracts II
Terms
F.H. Buckley
fbuckley@gmu.edu
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