K Defenses Flashcards
Statute of Frauds
what is it?
- If the contract is formed within the SoFthen it must require an written contract.
- When this does happenyou can see if there will be a problem enforcing the contract or raising any defenses.
Statute of Frauds (SoF)
Rule
o The statute of frauds states that certain types of contracts are unenforceable unless the agreement is in writing and is signed by the party to be charged.
Therefore, SofF is a defense against enforcing of a K and must be affirmatively pled by the D
SoF
Step 1 Is the AgreementK within the Statute?
If yes–>move to step 2 on SoF writing Reqs
If no–>oral K is enforceable
SofF type
Marriage Provision
o Covers promises to transfer property in return for either a promise to marry or the actual act of marrying someone.
Ex. If you marry my son, I will give you $1000.
Ex. or like a prenuptial agreement
o Exception—Does not apply to mutual promises to marry.
SofF type
Over One-Year provision
o If the performance requires over one year or if the express terms of the K cannot be performed in less than 1 year an agreement is subject to SoF.
If it is possible to be performed within one year—even though the prospect is remoteits outside of statute, not subject to SoF
OR If a time is not stated but it is possible to perform the contract within one year (even if not probable) then the contract is not within the statute.
o Employment for Life=not applicable since employee could die under 1 Year K.
SoF type
Over One-Year Provision
o In applying the One Year Provision, courts distinguish bw the possibility of performance within 1 year & termination within 1 year
The fact that a contract may be terminated within a year is not sufficient to remove the contract from the requirements of the statute; only performance will do.
Thus, a contract for a definite duration (like five years) is subject to the statute of frauds even though it might be terminated within one year because of breach by one party or because of some excusing event, such as impossibility of performance
SoF type
Land Sale contract
o Broadly defined to include many different types of transfers including not only an ownership interest,
but also a mortgage on property,
a lease for over a year,
and the grant of an easement for over a year.
Also includes real property too.
o Include the sale of minerals or buildings on a piece of property.
o Easements of over 1 year
SoF type
Executor payment of estate’s debts
o The executor of an estate is the person appointed to distribute the assets (the “estate”) of a deceased person to the deceased’s beneficiaries.
Sometimes, a person dies owing money, and the executor (who is often a family member or a friend of the deceased) promises to pay off the deceased’s debts.
o Serves as a cautionary function to give executors pause before assuming obligations.
SoF type
Sale of Goods of $500 or more
o UCC Article 2 covers the sale of goods.
If dealing with merchants–>see rules in step 3
SoF type
Suretyship Agreements
o If the promise to answer for the debt of another person/ suretyship K was made to the creditor who to whom that debt is owed as opposed to being made to the debtor himself or to someone else –> thus a promise/suretyship K is usually held to be within the statute.
SoF type
Suretyship Agreements
The guarantor promises to pay the debt if the debtor defaults on a payment. In exchange for the guaranty, the creditor agrees to enter into an agreement (such as loaning money) with the debtor.
The promise must be made to the creditor—not the borrower—in order to be subject to the statute.
Consideration exists in such agreements even if a guarantor receives no direct benefit.
SofF Step 2
Reqs for the SofF writing
for all K’s
o A K within the SoF is enforceable if it is:
1) Signed by the party to be charged
* Party who we are looking to enforce the K against
2) Reasonably identifies subject matter of the K
3) Reasonably indicate that K was entered into by the parties
4) And state the essential terms of the K
SofF Step 2
Reqs for the SofF writing
element 4 elaborated
4) And state the essential terms of the K
* Quantity of what is being sold–>see UCC rule
* Price
* Time for performance
o Just bc one of these essential terms are missing doesn’t mean the writing isn’t enforced
o Its up to the court to determine what the missing terms should be
SoF step 2
Linking of Docs under CL and UCC
At CL, it allows the memorandum reqs of the SoF to be satisfied by linking several documents through oral testimony even though the documents do not expressly refer to each other.
* If that testimony does not convincingly connect the papers, or does not show assent to the unsigned paper,–> it is within the province of the judge to conclude, as a matter of law, that the statute has not been satisfied
SoF step 2
Linking of Docs under R2nd section 132
what is it?
- Even if there is no internal reference or physical connection, the documents may be read together if in the circumstances they clearly relate to the same transaction and the party to be charged has acquiesced in the contents of the unsigned writing
