Statute of Frauds Flashcards
a contract that violates SOF is ____?
unenforceable (most states)
minority hold that a contract that violates SOF is ____?
void
if a contract is NOT properly supported by a writing, you say that it….?
violates the SOF or
is within the SOF
(both mean not enforceable)
exceptions
- part performance
- fraud
- estoppel
part performance exception to sof
(shaughnessy v. eldsmo)
- contract
- possession
- payment
- reference
contract
contract exists, eg valid offer, acceptance & consideration
possession
purchaser in possession of the property w. consent of seller
payment
purchaser paid all or part of the consideration according to the agreement
reference
purchaser’s actions only make sense because there was a contract of sale (makes sense its a K & not another transaction)
when its not in writing court will do either of these….
1) not enforce contract or
2) void (no legal effect/doesnt exist.
general rule, anything that affects real title….
has to be in writing
quantum meroit
“on the merits”
rare time when court will get involved- people so screwed, ct will se it right.
are there exceptions if juris declares K void?
NO
are there exceptions if declare K unenforceable?
YES
if contract is void do not go thru…..
the part performance exceptions
How diff courts view PART PERFORMANCE exception to SOF
- possession alone is sufficient
- posession + paymetn is sufficient
- possession + made valueable & lasting improvements
- possession + change of position by purchaser that irreparable injury will result(3/4)
- NO ACT of p/p recog (void states)
w/out possession part perf. will _____.
FAIL
burns v. mcCormick
Fraud
based on
- intentionally or neg. made material misrepresentation of fact
- jusitfiably relied upon,
- which causes injury
Fraud requires what burden of proof?
clear & convincing evidence
Rule 9 & Fraud
a heightened pleading standard
time, place, what said, specific
Estoppel exception of SOF
a reasonable & detrimental reliance on an oral real estate contract will take it out of the SOF. (minority view)
(if allow estoppel, means dont care about SOF anymore) :(
why may have SOF outlived its usefulness?
increase cost of real estate transactions (other countries dont need an atty to do transfer real est.)
who’s job is it to change the SOF
legislature
can the seller take an oral contract out of the statute?
- usually the PURCHASER”S conduct that supports the 3 exceptions (fraud, estoppel, p/p)
- most jurisd use theory of mutuality of remedy
mutuality of remedy
both parties to a contract should have the same remedies available to them
(to allow seller to take the contract out of SOF)
*if one party can, fair allow other too. -MANY States use
if the statute is used as an instrument of fraud….?
most states will enforce the contract.
fraud exception to SOF
why is fraud so difficult to establish?
because the two parties are presumed adverse to each other & requires the injured party to have right to rely on the other party & req. clear & convincing evid.
where there has been a reas. reliance on an ORAL contract by the party SEEKING ENFORCEMENT & the party has so changed his position that injustice can only be avoided by enforcement. (oral contract taken out of SOF)
Estoppel (exception to SOF)
Does the statute state that real estate CONTRACTS be in writing?
NOOOOO!!!
“agreement or some memorandum or not thereof, shall be in writing.”
SOF requires signature of both parties on contract or memorandum? true or false?
FALSE. must be signed by the “PARTY BEING CHARGED” (against whom enforcement is sought)
must be IN the signed memorandum?
- identity of parties
- identity of real esatate bieng conveyed
- purchase price, payment terms & closing date (most states)
- very conserv jurisd= “all” material terms of contract must be specified
Binder rule in King. v. Wenger
if the parties execute a binder w/intent that it be a binding real estate contract, the courts will enforce it
- can be true even if were going to replace binder later w/executed contract
- often works to detriment of the purchaser
Must a binder comply w/sof?
YES
however in rescission allowed in most jurisd
Rescission
contract rescinded
1) an agreement to kill that agreement
or 2) agreement to modify that agreement
if you want a binder, you want to write this on it….
“binder subject to approval by an attorney.”
(rescission) Most jurisdiciton will allow an executory real estate contract to be rescinded _____?
orally
executory real estate contract
one that has not yet been performed
will the rescission rule apply to an executed contract?
NO, cuz rescission of executed r/est contract requires the re/est be reconveyed back to the seller, thus triggering SOF.
must modifications of real estate contracts be in writing?
in general, yes
executed => canceled =
very rare
Modification must be in writing? true/false?
true, generally
Some states limit the modification to the _______ itself.
real estate conveyance
not the peripheral issues
agreement to change terms w/ purchaser seeking morg….in writing?
yes
agreement to sell washer/dryer w/house……
not need to be in writing
typically the parties agree that modifications & Rescission rights……..?
be in writing.
& courts will enforce
