Contracts in Writing

Question 1

If some contracts are not in writing =>

Answer 1

they are not enforceable

Question 2

Statutes of fraud

Answer 2

Require that certain contracts be evidenced by a satisfactory writing

*These statutes are the prime refuge of the scoundrel who has made a deal and then seeks to welch on it

Question 3

Wisconsin Agreements: all have to be in writing

Answer 3

Every agreement that by its terms is not to be performed within one year from the making thereof

Every special promise to answer for the debt, default or miscarriaige of another person

Every agreement, promise or undertaking made upon consideration of marriage, except mutual promises to marry

Question 4

Other general observations about contracts

Answer 4

1. Most contracts do not have to be evidenced by a writing
2. “Important” contracts should be evidenced by a writing regardless of whether or not a statute requires a writing
3. Did the parties intend that they would have no contract unless and until a written contract was signed and delivered?

Question 5

Guarantee (or suretyship) contracts

“If X doesn’t pay, I will pay…”

Answer 5

Applies to collateral (or secondary) promise - promisor not primarily liable, but only liable if the party whose performance is guaranteed fails to perform

*must be in writing

Question 6

Exception - main purpose doctrine

Answer 6

Where the object of the guarantor is to obtain an economic benefit that he or she did not previously share

interests closely aligned

*must be in writing

Question 7

Contracts involving interests in Real Estate

Answer 7

Must be in writing

types of contracts (purchase/sale, mortgage, leases, easements, licenses, etc.)

exception: real estate lease with a term of one year or less

Question 8

Contracts incapable of performance within one year from the date made

Answer 8

Must be in writing

One year from the date performance is to begin

Question 9

Key point about writing of contracts

Answer 9

Writing need not be a formal document nor must all terms be include din single writing (can draw several writings together to prove existnce of contract)

not a lot of formalities

Question 10

Writings include

Answer 10

1. Identification of parties
2. Identification of subject matter and consideration
3. “signed” by the party against whom enforcement is sought

*signature - any mark or symbol intended to ahtenticate

Question 11

What will satisfy writing requirement?

Answer 11

Written agreements

Letters

Daybook notations

other writings - whether or not the parties intended the writing to have legal consequence

Question 12

Effect of an under-oath admission that contract exists

Answer 12

contract is still not enforceable in a majority of jurisdictions

Question 13

Equitable recovery based on promissory estoppel

Answer 13

may be available to avoid an unjust result from a contract being declared unenforceable

i.e. the party against whom enforcement is sought is unjustly enriched by being able to avoid contractual responsibility

Question 14

Partial performance exception - no writing required if buyer has:

Answer 14

Generally limited to sales of real estate

1. made a partial payment of the price
2. taken possession of the real estate
3. added substntial improvements (constructed a building)

Question 15

Sales of Goods Statute of Frauds

Answer 15

a. application - sale of goods with a price of $500 or more
b. contracts for services not covered - mixed contracts?
- what is the primary purpose?

Question 16

Writing required - very lenient requirements- the writing must

Answer 16

1. evidence contractual intent
2. be “signed” by party to be charged with performance (the “scoundrel”)
3. specify some quantity of goods

Question 17

Use of confirmations between merchants

Answer 17

1. merchant only section
2. party desiring contract must prove oral contract in fact was formed
3. if recipient of confirmation fials to respond to it in writing within 10 days after receiving it, he is bound by the confirmation even though he did not sign it
4. receipt of confirmation

Question 18

Exceptions to any writing requirment under 2-201

Answer 18

1. oral contract for specifically manufactured goods (must prove oral contract in fact existed)
2. admission under oath by party against whom enforcement is sought
3. partial acceptance or payment by buyer in an installment contract situation
4. one year rule could still cause contract even if these exist

Question 19

Modifications of contracts

Does the contract, as modified, have to be in writing?

Answer 19

Yes, if price is $500 or more after modification

Question 20

1-206

Answer 20

other personal intangible property 5,000 limit

Question 21

8-319

Answer 21

securities

Question 22

9-203

Answer 22

security agreements

Question 23

2A - 201

Answer 23

leases of goods

Question 24

Use of customary forms

Answer 24

Minimizes risk of failing to comply with a statute of frauds

banking forms, real estate forms, broker’s forms, computer generated receipts at retail stores

Question 25

Biggest risk

Answer 25

transactions that are not entered into in well-established business environments

Question 26

Electronic “record”

Answer 26

satisfies the writing requriement

Question 27

electronic signature

Answer 27

satisfies the signature requirment

cliking an i agree button

Question 28

Parol Evidence Rule

Answer 28

Only important if disputed contract is in writing

Generally the product of numerous different types of communications between the parties

parol evidence refers to anything (besides contract) that was said, done or written BEFORE the parties signed the contract or as they signed it

Contract must have been intended to be complete and final expression of agreement

Question 29

Exceptions to the inadmissiibility of evidence baased on parol evidence rule

Answer 29

1. party written, partly oral contracts (parties did not intend that the written portin of the contract be integrated)
2. collateral errors
3. lack of capacity (minority)
4. defense of fraud , misrepresentation, duress, undue influence
5. existence of conditions which make conditional a party’s obligations under a contract
6. a later agreement
7. clarify an ambiguity