Statute of Frauds

Question 1

a contract that violates SOF is ____?

Answer 1

unenforceable (most states)

Question 2

minority hold that a contract that violates SOF is ____?

Answer 2

void

Question 3

if a contract is NOT properly supported by a writing, you say that it….?

Answer 3

violates the SOF or
is within the SOF
(both mean not enforceable)

Question 4

exceptions

Answer 4

• part performance
• fraud
• estoppel

Question 5

part performance exception to sof

Answer 5

(shaughnessy v. eldsmo)

• contract
• possession
• payment
• reference

Question 6

contract

Answer 6

contract exists, eg valid offer, acceptance & consideration

Question 7

possession

Answer 7

purchaser in possession of the property w. consent of seller

Question 8

payment

Answer 8

purchaser paid all or part of the consideration according to the agreement

Question 9

reference

Answer 9

purchaser’s actions only make sense because there was a contract of sale (makes sense its a K & not another transaction)

Question 10

when its not in writing court will do either of these….

Answer 10

1) not enforce contract or

2) void (no legal effect/doesnt exist.

Question 11

general rule, anything that affects real title….

Answer 11

has to be in writing

Question 12

quantum meroit

Answer 12

“on the merits”

rare time when court will get involved- people so screwed, ct will se it right.

Question 13

are there exceptions if juris declares K void?

Answer 13

NO

Question 14

are there exceptions if declare K unenforceable?

Answer 14

YES

Question 15

if contract is void do not go thru…..

Answer 15

the part performance exceptions

Question 16

How diff courts view PART PERFORMANCE exception to SOF

Answer 16

• 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)

Question 17

w/out possession part perf. will _____.

Answer 17

FAIL

burns v. mcCormick

Question 18

Fraud

Answer 18

based on

• intentionally or neg. made material misrepresentation of fact
• jusitfiably relied upon,
• which causes injury

Question 19

Fraud requires what burden of proof?

Answer 19

clear & convincing evidence

Question 20

Rule 9 & Fraud

Answer 20

a heightened pleading standard

time, place, what said, specific

Question 21

Estoppel exception of SOF

Answer 21

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) :(

Question 22

why may have SOF outlived its usefulness?

Answer 22

increase cost of real estate transactions (other countries dont need an atty to do transfer real est.)

Question 23

who’s job is it to change the SOF

Answer 23

legislature

Question 24

can the seller take an oral contract out of the statute?

Answer 24

• usually the PURCHASER”S conduct that supports the 3 exceptions (fraud, estoppel, p/p)
• most jurisd use theory of mutuality of remedy

Question 25

mutuality of remedy

Answer 25

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

Question 26

if the statute is used as an instrument of fraud….?

Answer 26

most states will enforce the contract.

fraud exception to SOF

Question 27

why is fraud so difficult to establish?

Answer 27

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.

Question 28

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)

Answer 28

Estoppel (exception to SOF)

Question 29

Does the statute state that real estate CONTRACTS be in writing?

Answer 29

NOOOOO!!!

“agreement or some memorandum or not thereof, shall be in writing.”

Question 30

SOF requires signature of both parties on contract or memorandum? true or false?

Answer 30

FALSE. must be signed by the “PARTY BEING CHARGED” (against whom enforcement is sought)

Question 31

must be IN the signed memorandum?

Answer 31

• 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

Question 32

Binder rule in King. v. Wenger

Answer 32

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

Question 33

Must a binder comply w/sof?

Answer 33

YES

however in rescission allowed in most jurisd

Question 34

Rescission

contract rescinded

Answer 34

1) an agreement to kill that agreement

or 2) agreement to modify that agreement

Question 35

if you want a binder, you want to write this on it….

Answer 35

“binder subject to approval by an attorney.”

Question 36

(rescission) Most jurisdiciton will allow an executory real estate contract to be rescinded _____?

Answer 36

orally

Question 37

executory real estate contract

Answer 37

one that has not yet been performed

Question 38

will the rescission rule apply to an executed contract?

Answer 38

NO, cuz rescission of executed r/est contract requires the re/est be reconveyed back to the seller, thus triggering SOF.

Question 39

must modifications of real estate contracts be in writing?

Answer 39

in general, yes

Question 40

executed => canceled =

Answer 40

very rare

Question 41

Modification must be in writing? true/false?

Answer 41

true, generally

Question 42

Some states limit the modification to the _______ itself.

Answer 42

real estate conveyance

not the peripheral issues

Question 43

agreement to change terms w/ purchaser seeking morg….in writing?

Answer 43

yes

Question 44

agreement to sell washer/dryer w/house……

Answer 44

not need to be in writing

Question 45

typically the parties agree that modifications & Rescission rights……..?

Answer 45

be in writing.

& courts will enforce