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