Formal and Evidentiary Requirements Flashcards
Statute of Frauds (Ireland) Act 1965
What contracts does it apply to and under what section?
S.2 lists four main types of contracts it applies to:
Debts of another: Contracts to pay the debts of another
Marriage: Contracts where consideration is to be marriage
>1 Year: Contracts that will not be performed within a year
Tierney v Marshall [1857]: a contract not intended to operate for 12 years’ not enforced due to lack of written evidence.
Land: Contracts for the sale of land or an interest therein
These must be in writing or some memorandum or note and signed by the party its against.
Statute of Frauds (Ireland) Act 1965 - S.2 and LCLRA
What changes have come in re land?
S.51 Land and Conveyancing Law Reform Act repeals and re-enacts s.2 in relation to land:
No action shall be brought to enforce any contract for the sale or other disposition of land unless the agreement, or some memorandum or note of it, is in writing and signed.
Subsection (i) doesn’t affect the law relating to part performance.
Payment of a deposit in money isn’t necessary for an enforceable contract (unless provision)
Statute of Frauds (Ireland) Act 1965 - Fructus Naturales and Industriales
What is the general distinction between these?
Fructus Naturales (part of/fruits of land) v Fructus Industriales (not part of land - artificial)
Industriales never come under the SOF.
Naturales comes under the SGA 1893 unless they’re over €12, then they come under the SOF
If they exceed €12, they must meet stringent requirement such as a note/memo being signed: thus its better to classify the contract as a sale of goods rather than sale of interest in land
Goods in excess of €12 must be evidenced in writing in acc with s.4 SGA 1893 and s.13 SOF.
The Memorandum
General rule?
Doc need not specifically be memo: must be either (a) Written contract or (b) Concluded oral agreement evidence in writing + must have come into existence before the action seeking to enforce it has started
The Memorandum
Tradax Ltd v Irish Grain Board [1984]
Part of a letter that sought to reject the agreement was used successfully as part of the memo
The Memorandum
Re Hoyle [1893]
Held courts not looking for intention of the parties, only evidence of one that he’s entered into it
Electronic Commerce Act 2000: Emails can now constitute a memorandum
Contents of the Memorandum
What are the required contents of a memorandum?
It must contain the 3 Ps (parties, property and price) and the ETs (essential terms): 3Ps + ETs
Godley v Power [1961]: Memorandum lacked an essential requirement so didn’t satisfy SOFs.
Contents of the Memorandum - Parties
What is the rule re parties?
Parties: The memo must contain the names of both parties/describe them so readily identifiable
Contents of the Memorandum - Parties
Guardian Builders Ltd v Kelly [1981]
K wanted to sell a site he owned so appt agent to organise the sale. Oral agreement made w G and the area of land to be sold was marked on a map. Agreed G would get possession within 3 mths
A told G he’d get K’s solicitor to do a written contract. A then wrote letter typed by his secretary.
Was agreement made? G relied on letter by sec on headed notepaper as a memo.
Held the parties were identifiable despite only first name being used and error in name of K’s co
Test is whether they were readily identifiable and they were.
Contents of the Memorandum - Property
Guardian Builders Ltd v Kelly [1981]:
Must be a description of the property
Held the property was readily identifiable
Contents of the Memorandum - Price
General rule?
The memo must state the consideration paid for the land;
For sale of land, consideration generally comes in the form of a deposit as well as purchase price. If the memo refers to the balance payable after the buyer has paid a deposit in a way that means the record states inaccurately the whole consideration, the memo may be defective
Contents of the Memorandum - Price
Black v Grealy [1977]
B contracted to buy prop for £46k. G arranged for B to pay £6k deposit in advance so the memo noted a price of £40k. B asked and G said the memo would be sorted.
G then refused to sell so B sued for the equitable remedy of specific performance
Held they agreed the full price wouldn’t be disclosed and the balance after deposit paid would be
the price (40k). So, memo not a record of the oral agreement just one in acc w one aspect of it.
Contents of the Memorandum - Essential Terms
What is the general rule?
If the 3Ps are set out, then most contracts are enforceable unless, on the evidence, it’s clear the parties intended additional provisions to be essential terms.
Friel: Whether a term is essential is a subjective test: Stinson v Owens [1973]: What did the parties intend?
Contents of the Memorandum - Essential Terms
Shirley Engineering Ltd [1999]
If it can’t be proven that they reached an oral agreement on all of the other essential terms, then the agreement is void for uncertainty and the Q of the memo is moot. But, if there’s evidence these essential terms were agreed then, while valid, the agreement will not be enforceable unless evidence in writing:
Held no concluded oral agreement entered into when they failed to agree on the payment of a deposit
Held even if there had been a concluded oral agreement, it didn’t necessarily mean it must be considered an essential term of the contract: it is to be determined on a case by case basis.
Contents of the Memorandum - Essential Terms
Supermacs Ireland & McDonagh v Katesan Ltd [2000]
Thus a memo need not contain all the terms agreed bw them, just terms deemed essential to its conclusion:
S claimed an enforceable agreement to buy 6 fast-food restaurants existed between them, but K said this should be struck out on basis there was no concluded agreement on the question of a deposit.
Sought to rely on Boyle v Lee where SC held this failure affected the validity of the agreement.
Supermacs was distinguished on basis that in Boyle the parties discussed the material term of the amount of a deposit to be paid and had not yet agreed what it should be. This failure was fatal.
Here, evidence showed the Q as to the amt of the deposit was not deemed essential to the conclusion of the contract that involved a franchise agreement i.e. involved sale of assets other than real property
Held payment of a deposit is not necessarily an essential term (now in s.51 LCLRA 2009).
Also held if a term would be implied into the contract by law, no need for it be evidenced in the memo
No completion date agreed here: held the court could imply a term it be done in a ‘reasonable time’.
Failure to expressly agree this not an essential term / didn’t render contract void for uncertainty.
Contents of the Memorandum - Must Contain Signature of Person Charged
Casey v Irish Intercontinental Bank [1979]:
Headed paper sufficient.
Electronic Commerce Act 2000: Electronic signature is sufficient for the SOF.
Contents of the Memorandum - Joinder of Documents
Kelly v Ross [1980]:
Two or more docs may make a memo, but the signed doc must make sufficient reference to all other docs:
Court refused to join 9 docs as they ones signed didn’t refer to the remaining ones and there was insufficient material on the signed items to constitute a valid memo of its own.
Contents of the Memorandum - Joinder of Documents
McQuad v Lynam [1965]:
Sales receipt w a loan application sufficient.
“Subject to Contract”
General rule?
Where the contract contains ‘subject to contract’, it may not be a valid memo. Can be effective 2 ways:
May be used as evidence there was no agreement in existence, or
May be included in the memo of the oral agreement to deny enforceability of the oral agreement
“Subject to Contract”
Casey v Irish Intercontinental Bank [1979]
The phrase “STC” was only introduced after an oral agreement concluding the contract of sale was
completed. Held the contract had come into existence already. Not effective.
“Subject to Contract”
Kelly v Park Hall School [1979] Deviation
Where a doc containing all the necessary requirements contains ‘STC’, it may not constitute a valid memo: Orally agreed a contract for sale of land. P’s solicitor wrote letter, while confirming the terms, asserted the terms had been agreed ‘subject to contract’. P refused to go through with sale and K sued.
Held the words ‘STC’ were ambiguous and as a result meaningless under the circs. Enforced.
“Subject to Contract”
Mulhall v Haren [1981] Restoration
Suggested inclusion of ‘STC’ meant the final agreement would be completed at a later date.
Examined previous cases and confined them to their facts. He reaffirmed the general rule in the area: a note/memo is sufficient to satisfy the SOF only where it acknowledges the existence of a contract.
“Subject to Contract”
Boyle v Lee [1992]:
Reaffirmed the position and held Kelly should not be followed.
“Subject to Contract”
Jodifern v Fitzgerald [1999]: Reaffirmed Boyle
Also noted the effectiveness of ‘STC’ depends on where it is included in the doc.
If it’s at the top, then clearly it is subject to a further contract being drawn up. If it’s in the body of the doc, then it’s a matter of construction of the writing as a whole’.
However, McDermott asserts if its included at all there’s no concluded contract
“Subject to Contract”
O’Connor v P Elliott Ltd [2010]: The phrase ‘without prejudice’
Held this only grants privilege where it’s attached to the correspondence that sought to resolve an ongoing dispute i.e. a settlement offer. Held no dispute ongoing at the time the letters were written so
the privilege given by ‘WP’ didn’t apply to this case
“Subject to Contract”
What is Gazumping
The inclusion of ‘STC’ also facilitated gazumping: allows the seller, who’s still not bound by the contract (while it’s subject to contract), that receives a higher offer to go back and demand more.
Exception: The Equitable Doctrine of Part Performance
General Rule?
The requirement for evidence in writing will be sidestepped where there’s evidence of part-performance to prevent unconscionable behaviour by the defendant. Acts of part performance serve as evidence that a contract has been agreed and thus that it should be enforced.
Exception: The Equitable Doctrine of Part Performance
Lowry v Reid [1927] NI
M made agreement w son if he transferred his farm to his bro along w £200 she’d leave her property to him. He acted on this basis. Did it, moved in w bro. But no note/memo as evidence to satisfy the SOF.
While M made a will that reflected the agreement, she later revoked it. Left w mere life estate.
Successfully sued for specific perf: part performance can be applied to prove existence of oral contract
Exception: The Equitable Doctrine of Part Performance
Law Reform Commission (1999), noting LR. Mackie v Wilde [1997]:
In Ireland it has been accepted the payment of a booking deposit before completing a formal contract is not an act of part-performance, as per the LR.
Mackie v Wilde [1997] Ireland: Set out the requirements to claim part-performance:
A concluded oral contract/agreement
The plaintiff acted on it in a way showing an intention to perform the contract
The defendant induced such acts or stood by while they were being performed
It would be unconscionable to allow the defendant rely on the SOF to prevent performance.
Exception: The Equitable Doctrine of Part Performance - Acts of Part Performance
Kingswood Estate v Anderson [1963]
K persuaded A to move out of where she was residing and into new accommodation. Further, K promised that A and her son could stay in the new accomm for as long as they both lived.
Despite fact the contract not evidenced in writing, held enforceable due to part performance on part of
A and her son in moving from one place of residence to another.
Exception: The Equitable Doctrine of Part Performance - Burden and Standard of Proof
Silver Wraith v Siuicre Eireann [1989]:
Held the onus of proof is on the party seeking to rely on the acts of part performance to show the contract’s enforceable. Standard of proof: ‘as a matter of probability’.
Exception: The Equitable Doctrine of Part Performance - Waiver
General Rule?
Where there is a memo but it’s missing a specific term that is entirely for the benefit of the P alone, then it’s open to P to waive that term and sue to enforce the remainder of the contract.
