Formal and Evidentiary requirements Flashcards
Statute of frauds Act 1695
Statute of frauds Act 1695 requires before certain contracts can be enforced
against a person, it is necessary that the terms of the contract should be in writing and signed by
that person.
5 categories set out:
- Contract to answer for the debt of another;
- Contract made in consideration of marriage;
- Sale of land/interest therein;
- Sale of goods worth more than £10;
- Contract not intended to be performed within 1 year.
what are two cases that are examples of Contract to answer for the debt of another
In Kirkham v Marter the plaintiff suffered loss as a result of the Defendant’s negligence. The Defendant’s father had agreed orally to compensate the plaintiff for this loss, but when the plaintiff sued upon that agreement the action failed for non- compliance with the
Statute of Frauds.
Fennell v Mulcahy , a tenant of the plaintiff landlord had fallen into arrears on their rent and the plaintiff seized his tenant’s goods. The defendant stepped in and agreed to pay off the tenant s debts if the landlord returned the goods and still was not paid. The tenant never came good on the arrears and so the plaintiff landlord sued the defendant on his agreement to cover the tenant’s debt. action failed for non-compliance with statue of frauds
Contract made in consideration of marriage;
Must be signed/evidenced in writing: You will get x property upon marriage.
- Saunders v. Cramer
Written memorandum was sufficient; the money became owing on marriage.
Contracts for the Sale of Land or interest therein
S.51 Land and Conveyancing Law Reform Act 2009
No action can be brought for sale of land or other disposition unless there is a written agreement/ memorandum
signed by the person the action is to be brought again. This does not affect equitable intervention and no payment
is needed.
Scully v. Corboy 1950
Agreement to let meadow was for crops rather than interest – part payment was acceptable. IE No memo needed.
what are the two exceptions to the contracts for sale of land to be evidenced in writing
- licenses do not create any interest in or concerning land
- Landlord and tenant contracts from year to yer or for any shorter
Contracts that will not be performed within one year
The policy behind this latest category is located in the fear that oral testimony based on memories stretching back more than a year may prove unreliable, when a verbal contract is sought to be
enforced or denied.
Does not apply where intention was there for within a year, but got delayed e.g Hynes v. Hynes
- Naughton v. Limestone Land
Oral agreement to work for def for years was unenforceable – it was going to last more than 1 year.
Sale of Goods worth more than £10
S.4 Sale of goods act 1893
Contracts for the sale of goods which exceeds £10 should be evidenced in writing: otherwise, such contracts are not enforceable unless the buyer
(a) accepts and receives part of the goods sold,
(b) gives something earnest to bind the bargain, or
(c) makes part payment
what are two case examples that explains (a) accepts and receives part of the goods sold?
Trudax Ireland v. Irish Grain Board
- Acceptance of 1800 tonnes out of 12,000 tonnes was sufficient to have contract.
Hapton v. McCarthy 1882
- Intention from purchaser I necessary. Here, it was delivered to warehouse, collection was awaited. Oral only and no acceptance meant there was no enforceable contract.
describe “ the buyer has given something in earnest to bind the bargain”
Clark surmises that where a buyer gives over his business card as a gesture of good faith, he is giving something in earnest and can therefore be held liable.
Clark and McDermott seem to
agree that giving a credit card over the phone/internet would probably count as giving something earnest as well.
Farr, smith and Co messers - an earnest was described as something that must be a tangible thing
what counts as a signature?
it is now well established that this will be satisfied by the use of any mark by way of a signature
(such as a rubber stamp, etc.) and by the use of headed notepaper (on the basis that the heading
is adopted as a signature e.g Casey v Irish Intercontinental Bank, where a solicitors
letterhead served as a signature).
part performance as an exception to the statue of frauds
a defendant cannot benefit from a plaintiff’s performance of his half of the bargain, and
then rely on the Statute when called on to fulfil his own obligations.
First, there must be a concluded oral contract.
Second, the plaintiff must have acted in a way which showed his intention to perform that
contract.
Third, it must be shown that the defendant induced such acts of part performance or stood by while they were being performed.
Fourth and finally, it must be shown that it would be unconscionable and a breach of good faith to allow the defendant to rely upon the terms of the Statute to prevent performance of the contract.
contents of the memorandum
Goodly v. Power:
Maguire CJ held that you need the 3 ps and any essential terms. But this does not include terms implied by law.
Parties
Bacon & Co. v. Kavanagh
- The use of the words you and your employment was sufficient. It is not necessary that the actual names of the
parties should appear in the memorandum, but if the parties are sufficiently described or indicated, or refer to so that there is no real doubt as the identity statute is satisfied.
- Keena v. Coughlan & ors.
Emails were not acceptable as they said to the purchaser rather than indicated parties. There was also a note
signed, but it didn’t indicate who the parties were and who was the witness etc. Not accepted.
Property
- Must be readily identifiable.
Guardian Builders Ltd v. Partick Kelly & Park Cromane Ltd
- Here, it was not explicitly stated, but with the oral evidence and previous map out of the area, it was sufficient.
Price
- Black v. Grealy
Memo that only referred to money owing after the deposit was paid was inadequate.
Must list total consideration.
Other essential terms
- Subjective test, based on the evidence.
Stinson v. Owens
Need not have every term – just the ones that are essential in the views of the parties themselves.
Mullhall v. Haren
- A memorandum does not satisfy the statute of frauds unless it contains recognition of an oral agreement. Must be
express or implied recognition.
Casey v. Irish Continental Bank
- Must be signed by the person to be charged – who It is to be relied against. V. loose requirement, here it was
headed paper and the E Commerce act 2009 provides an e-signature will suffice.
Joinder of documents
McDermott notes that there are 4 requirements:
- Existence of document signed by party to be charged or his agent;
- Express or implied reference to the other document
- Second document was created before the first
- When read together, they form a complete memorandum.
Subject to contract
Can be used but only before the oral agreement is concluded - O’Flaherty v. Arvan property
Thompson v. The King
- Where the subject to contract is used after the agreement is concluded – that document may not be used to satisfy
the statute.
