Defenses to K Formation Flashcards
SOF Definition
Certain agreements must be evidenced by a writing signed by the parties sought to be bound. The writing must include the identity of the parties, the subject matter, the terms and conditions, a recital of consideration, and the signature of the party it is to be enforced against.
Writings covered by SOF-MRDOG
Marriage Real Property Debt of another Over 1 Year Goods price $500 or more
Exceptions to SOF
Performance
Sale of Goods
Real Estate Transactions
Service Contracts
Marriage (SOF)
These don’t refer to Ks to get married, but rather refer to promises to do or refrain from doing something if the parties do get married.
Real Property (SOF)
A promise creating an interest in land must be evidenced by a writing. This includes:
- Easements and leases for more than one year.
- Fixtures
- Minerals or structures if they are to be severed by the buyer.
- Mortgages and most other security liens.
Debt of Another (SOF)
A promise to answer for the debt or default of another must be evidenced by a writing.
Over 1 Year (SOF)
A promise that by its terms can’t be performed w/in one year is subject to the SOF. Capability in essences means theoretically possible w/unlimited resources. Part performance doesn’t satisfy the SOF in this case. Runs from the date of the agreement not from date of performance. A contract measured by a lifetime is not within the SOF because it is capable of performance w/in a year since a person can die at any time.
Goods over $500 (SOF)
Under the UCC, a P may satisfy or overcome the SOF in one of three ways:
- P must show there is a writing satisfying the SOF
- Between Merchants Exception-P must show there is a different writing satisfying the SOF.
- Exceptions to the SOF: a. Specifically manufactured goods, b. admissions in pleadings or in court, c. payment or delivery of goods.
P must show there is a writing satisfying the SOF (Goods $500 or more)
The writing must:
- Indicate that a K for the sale of goods has been made;
- Be signed by the party against whom enforcement is sought; and
- Must specify a quantity
Between Merchants Exception-P must show there is a different writing satisfying the SOF (Goods $500 or more)
This Doesn’t apply if either party is a non-merchant. The writing must:
- Indicate that a K was made;
- Indicate quantity; and
- Must be signed by P.
Thus, if there is a writing in confirmation of the K that is sufficient against the sender, it is satisfactory UNLESS written notice of objection to its contents is given w/in 10 days after it is received.
Exceptions to the SOF: Specifically manufactured goods (Goods $500 or more)
If the goods are to be specially manufactured for the buyer and are not suitable for sale to others in the ordinary course of the seller’s business.
Exceptions to the SOF: admissions in pleadings or in court (Goods $500 or more)
If a party against whom enforcement is sought admits in pleadings, testimony, or otherwise in court that the contract for sale was made, the K is enforceable w/out a writing, but not beyond the quantity of goods admitted.
Exceptions to the SOF: payment or delivery of goods (Goods $500 or more)
If goods are either received and accepted or paid for, the K is enforceable. But the K is not enforceable beyond the quantity of goods accepted or paid for.
SOF writing requirement
There must only be one or more writings that combined include the essential terms of the contract (including the subject matter) and that is signed by the party to be charged. The writing need not be addressed to or sent to the other party. Thus, a writing can be held against one party (the party who signed it) and not the other. The writing requirement is subject to two exceptions:
- The merchant’s confirming memo and
- A promissory estoppel
The merchant’s confirming memo
Allows a writing to be enforced against both the signer and recipient where it is:
- Between two merchants.
- One party receives signed confirmation.
- Both parties will be bound.
- Except if the recipient objects within ten days of receipt.
