Statute of Frauds Defense + More Flashcards
What 4 contracts are within the SoF?
Promises to answer for the debts of another (suretyship)
Service contract not capable of being performed within a year from the time of k.
Transfers of interest is RE
Sale of goods for $500 or more
S Store sells P paint on credit for $400. P does not pay. S sues Conviser for the $400, alleging C promised to pay for the paint. C files a motion to dismiss based on SoF.
Is C’s alleged promise within the SoF so that C has a SoF defense? Explain
No. There is not guarantee here.
How does one get through the SoF barrier?
Produce evidence of performance or a writing.
S Store sells P paint on credit to be used in painting Epstein’s house. P does not pay. S sues C alleging that C promised to pay for the paint if P did not pay. C files a motion to dismiss based on the SoF.
Is C’s alleged promise within the SoF so that C has a SoF defense? Explain
Yes. There is a guarantee here (“if P did not pay”)
S Store sells P paint on credit to be used in painting C house. P does not pay. S sues C alleging that C promised to pay for the paint if P did not pay. C files a motion to dismiss based on the SoF.
Is C’s alleged promise within the SoF so that C has a SoF defense? Explain
No. Main purpose was to benefit the guarantor, so no SoF defense.
P sues D for breach of an alleged 3-year employment k. D files a motion to dismiss based on the SoF. Is this within the SoF? Explain.
Yes. It would take 3 years to finish performing, so it is a service contract not capable of being performed within a year of the time of the k.
P sues D for breach of an alleged 3-year employment k. P claims that the 3-year deal could be terminated on 30 days’ notice. D files a motion to dismiss based on the SoF. Is this within the SoF? Explain.
Yes. The 30-day notice is IRRELEVANT. It would take 3 years to finish performing, so it is a service contract not capable of being performed within a year of the time of the k.
Kenny G sues Club A for breach of an alleged January 15, 2015 k to perform on December 24, 2016. Club A files a motion to dismiss based on the SoF. Is this within the SoF? Explain.
Yes. The date of performance was 23 months after the k, so it is a service contract not capable of being performed within a year of the time of the k.
P claims that O agreed to employ her for a year, starting next month. Is this within the SoF? Explain.
Yes. It will take 13 months to complete, so it is a service contract not capable of being performed within a year of the time of the k.
Under the SoF, capable means what?
Theoretically possible w/ unlimited resources.
P claims that D hired him to cut all of the trees on D’s land. Within SoF? Explain.
No. Capable of happening within a year.
P claims that D hired her to work for the rest of P’s life. P is only 21 and in good health. Within SoF? Explain.
No. P could die the next day. No lifetime deals are within the SoF.
P claims that D agreed to build a house on Redacer. Is this within the SoF?
No. Not a transfer of interest in RE.
P claims that D agreed to sell Reducer to P? Within SoF?
Yes. this is a transfer of RE interest.
P claims that D agreed to sell a 5-year easement on Greenacre. Within SoF? Explain.
Yes. This is a transfer of RE interest.
P claims D agreed to lease Reducer for 1 year. Within SoF? Explain.
No.
While transfers are generally within the SoF, the SoF does NOT cover leases for one year or less.
C sues E, claiming that E agreed to sell him his 73 Caddy for $500. E files a motion to dismiss based on the SOF. Within SoF?
Yes. Sale of goods for $500 or more
C sues E, claiming that E agreed to sell him his 73 Caddy for $400. E files a motion to dismiss based on the SOF. Within SoF?
No. Not a sale of goods for $500 or more.
True or False: The SoF can be satisfied by performance.
True
In transfer of real estate, the SoF be satisfied by partial performance if which two of the following three elements exist?
Improvements to the land
Payment
Possession
B claims that S orally agreed to sell BA to B for $10k. When S refused to deed BA to B, B sues for breach.
S asserts a SoF defense. B is in possession of BA and made improvements. Does S have a SoF defense?
No. 2/3
Improvements to the land x
Payment
Possession x
B claims that S orally agreed to sell BA to B for $10k. When S refused to deed BA to B, B sues for breach.
S asserts a SoF defense. B has paid $10. Does S have a SoF defense?
Yes. 1/3
Improvements to the land
Payment x
Possession
Full performance by which party satisfies the SoF?
Either
Conviser and Ludacris agree that (i) Luda will write new review materials and (ii) Conviser will advertise the course as the Luda Mini Review for the next 5 years.
Is this agreement within the SoF?
Yes
Conviser and Ludacris agree that (i) Luda will write new review materials and (ii) Conviser will advertise the course as the Luda Mini Review for the next 5 years.
Luda finishes the material. Conniver continues to call the course by its original name. Luda sues Conviser for breach.
Conniver asserts a SoF defense (no k, Luda is fraudulently claiming a k). Is the SoF satisfied by Luda’s full performance? Explain
Yes
Full performance by either party satisfies the SoF
Part performance of which type of k does not satisfy the SoF?
Services.
P agrees to work for D for 3 years. P works 13 months then D fires her w/o cause. P sues D for breach. D asserts a SoF defense. Is the SoF satisfied by P’s working 13 months (i.e., P’s part performance)?
No
P agrees to work for D for 3 years. P works 13 months then D fires her w/o cause. P sues D for breach. D asserts a SoF defense.
Can P recover under k law for the 13 months of work she has done? Explain
No. There is no legally enforceable agreement.
P agrees to work for D for 3 years. P works 13 months then D fires her w/o cause. P sues D for breach. D asserts a SoF defense.
Can P recover under any theory? If yes, which one? If no, why not?
Yes, under quasi contract.
What is true of a seller’s part performance of a contract for the sale of goods (as far as satisfaction is concerned)?
A seller’s part performance satisfies the SOF, but only to the extend of the performance.
When purchase price appears in a question for the sale of goods, for what two reasons is it being included?
SOF
Damages
S orally agrees to sell 2k sacks of grits to B for $10k S delivers 600 sacks. S sues B for payment for the 600 sacks that have been delivered. Does B have a SOF defense? Explain.
No. SOF is satisfied. A seller’s part performance satisfies the SOF, but only to the extend of the performance.
S orally agrees to sell 2k sacks of grits to B for $10k S delivers 600 sacks. B sues S for failure to deliver the remaining 1400 sacks. S asserts a SOF defense. Does S have a valid defense? Explain.
Yes. B has no objective proof that S owes more sacks. The k was oral.
If the k is for the sale of goods that are to be specially manufactured, then the SOF is satisfied as soon as the seller make a . . . .
Substantial beginning.
If the k is for the sale of goods that are to be specially manufactured, then the SOF is satisfied as soon as the seller make a substantial beginning. What does this mean?
The seller has done enough work that it is clear that what she is working on is specially manufactured (i.e., custom made or MTO).
S sues B alleging B breached a k for a $500 pair of cowboy boots by telling S, after S had made a “substantial beginning” that she did not want the boots. B asserts a SOF defense. Does B have a valid defense? Explain.
No. S made a substantial beginning. S has proof of part performance.
What do we need to satisfy the SOF? (2)
A writing or some other objective proof.
“Your offfer of January 15 is hereby accepted.” S/Rust Cohle. Does this writing satisfy the SOF? Explain
No. It doesn’t meet the “all material terms” test. We are unable to determine the parties or the subject matter.
When looking to see if a writing satisfies the SOF, what test do we use?
All Material Terms test
In order to satisfy the All Material Terms test, who must sign?
The Defendant
Barbri hereby agrees to employ A as lecturer for 3 years at 12k a year. S/Mike Sims, CEO
Barbri wrongfully dismisses A. A sues for breach. Barbara asserts a SOF defense. Did the writing satisfy the SOF so that Barbri does not have a SOF defense? Explain.
Yes. All material terms present + signed by the defendant
Barbri hereby agrees to employ A as lecturer for 3 years at 12k a year. S/Mike Sims, CEO
A leaves after one year. Barbri sues for breach. A asserts a SOF defense. Did the writing satisfy the SOF so that A does not have a SOF defense? Explain.
No. The writing must be signed by D–here, A.
Does the All Material Terms test apply under Article 2?
No
Under the UCC, what must a writing do to satisfy the SOF? Must it be signed by the D?
Simply indicate that there is a k for the sale of goods and contain the quantity.
Ordinarily must be signed by D UNLESS the transaction is between two merchants when there is a delay in response.
S sues B for breach of an alleged k to buy grits for $500. The only writing is the following:
I agree to buy 100 pounds of grits. S/B.
Does the writing satisfy the SOF? Explain.
Yes. This writing indicates that there is a k for the sale of goods and contain the quantity. It is signed by the D.
Under the UCC, it doesn’t matter what the price is.
S, a grits distributor, receives the following fax from B, a grits store:
As we agreed during our phone conversation today, you will be sending me 200 sacks of grits. S/B.
S does not respond. S never sends the grits. B sues S for breach. S asserts a SOF defense. Has the SOF been satisfied even though S did not sign anything? Explain.
Yes, SOF is satisfied here. Since both parties are merchants, S’s failure to respond negates the need for the defendant to sign.
True of False. If D asserting a SOF defense admits in a pleading or testimony that he had entered into an agreement with the plaintiff, the SOF is satisfied.
True
True or False: The plaintiff’s reliance on D’s oral promise to put the agreement in writing cannot estop D from asserting a SOF defense?
False
When must a party submit written proof of authorization to enter into a k for someone else? What do we say the requirement is called
If the k to be signed is within the SOF.
The requirement is called “equal dignity.” The authorization must be of EQUAL DIGNITY with the k.
L sues SS for breach of a 1 year lease that Epstein signed, claiming that he was authorized to act on SS’s behalf. SS files a motion for SJ asserting that the law requires written evidence of Epstein’s authority.
Does k law require written evidence of Epstein’s authority to act on behalf of SS? Explain.
No. This is a one year apartment lease, so not within the SOF. Thus, the k does not have to be signed. No written evidence of authority is needed.
L sues SS for breach of a 2 year lease that Epstein signed, claiming that he was authorized to act on SS’s behalf. SS files a motion for SJ asserting that the law requires written evidence of Epstein’s authority.
Does k law require written evidence of Epstein’s authority to act on behalf of SS? Explain.
Yes. This k is within the SOF, so written evidence of authority is needed. (2 year lease within SOF)
When do we need written proof of k modification?
When the alleged change would be within the SOF.
T leases a building from L for 1 year. L claims they later agreed to increase the term to 3 years. Does k law require written evidence of the alleged mod? Explain.
Yes. The modified term brings the k within the SOF, so we need written evidence.
T leases a building to L for 3 years. T claims that they agreed to reduce the duration to 1 year. Does k law require written evidence of the alleged mod? Explain.
No. Modified term is not within the SOF, so no written evidence needed.
C contracts to buy 600 bottles of Thunderbird wine from E for $600. C later claims that they agreed to modify the k to reduce the price to $2. Does k law require written evidence of the alleged mod? Explain.
No. The modified term is no longer within the SOF, despite the ridiculousness of the decrease.
Under CL, contract provisions requiring that all modifications be in writing are/aren’t effective.
Aren’t
R employs E for 11 months. They sign a k. It provides that all mods must be in writing. E claims that they later agreed to reduce the term to 10 months. R alleges that there was no such later agreement. Is a writing required as a matter of law? Explain
No. Under CL, k provisions requiring that all mods be in writing are NOT effective.
R employs E for 11 months. They sign a k. It provides that all mods must be in writing. E claims that they later agreed to reduce the term to 24 months. R alleges that there was no such later agreement. Is a writing required as a matter of law? Explain
Yes. Mod comes within the SOF, so a writing is needed.
Under the UCC, contract provisions requiring that all mods be in writing are/aren’t effective.
Are UNLESS waived.
E sells his Caddy to C for $400. They sign a k providing that all mods must be writing. E claims that they later agreed to raise the price to $499. C refuses to pay $499. Is a writing required as a matter of law? Explain.
Yes. Under the UCC, contract provisions requiring that all mods be in writing are effective unless waived. No waiver here.
Is a k enforceable that contains illegal subject matte?
No
If the subject matter of a k is illegal, when can the agreement be enforceable?
If the plaintiff did not have reason to know of D’s illegal purpose.
D contracts with Delta for a nonrefundable plane ticket to fly from Miami to Chicago in order to kill Conviser. If Dexter does not pay for the ticket, can Delta recover from Dexter for breach? Explain.
Yes. The subject matter is simply flying. Delta did not know of Dexter’s illegal intent.
Can courts refuse to enforce a k on public policy grounds?
Yes
A k exempts a party from intentional or reckless conduct. How can the court shoot down?
Public policy grounds.
A k contains a covenant not to compete. It lacks a reasonable need or reasonable time and place limits? Enforceable?
No, void on public policy grounds.
What five elements are usually needed to void a contract due to misrepresentation?
A statement of “fact” before the k
By one of the contracting parties
That is false
That is fraudulent or material AND
Induces the k.
S tells B that Redacre has no environmental problems. S honestly believes what she said to be true, but Redacre has a lot of environmental problems.
B agrees to buy Redacre in reliance on S’s representation. Can B rescind? Explain.
Yes. No wrongdoing is required for material misrepresentations. All elements of misrepresentation are present.
A statement of “fact” before the k
By one of the contracting parties
That is false
That is fraudulent or material AND
Induces the k.
Does a person making a k have a duty to disclose what he knows? Any exceptions?
No
If one party has a fiduciary-like relationship to another party, then must disclose.
Does a person making a k have a duty to refrain from concealment?
Yes.
S sells his horse, X, to B. S knew that Mr. Ed was lame but did not tell B. Can B rescind? Explain
No. Nondisclosure don’t matter. This is not considered concealment.
What are the elements of economic duress?
A bad guy making improper threats (usually threat to breach a k)
A vulnerable guy with no reasonable alternative but to succumb to the bad guy’s threats.
D has a k to sell 1k pounds of kosher grits to P for Chanukah sales in 2015 for $2k. D refuses to perform this k until P agrees to pay $2.5k instead of $2k. P has no other source of kosher grits, so he agrees in writing to pay $2.5k. D delivers.
Can P get out of the agreement to pay the additional $500? Explain.
Yes. This is a classic example of economic duress. D threatened to breach and P has no other reasonable alternative.
What do we look for in undue influence situations?
A special relationship between the parties AND improper persuasion of the weaker party.
What are the two basic tests for unconscionability? Which is procedural and which is substantive?
Unfair surprise (procedural)
Oppressive terms (substantive)
When do the unconscionability tests apply? i.e., what point in time do they look at?
At the time the agreement was made.
B and S contract for cotton to be delivered on the Peerless. B intends the October Peerless; S intends the December Peerless. Neither B nor S knows that there are two ships with the name Peerless. Can S enforce an agreement to buy the cotton on the December Peerless? Explain
No. There is ambiguity as to a material term, each party attached a different meaning to that term, and neither had reason to know that the term was open to at least two reasonable interpretations.
When can ambiguity in the words of agreement operate to void the deal? (3 elements)
There is ambiguity as to a material term (two or more reasonable interpretations)
Each party attached a different meaning to that term, and
neither had reason to know that the term was open to at least two reasonable interpretations.
B and S contract for cotton to be delivered on the Peerless. B intends the October Peerless; S intends the December Peerless. B knows that there are two ships with the name Peerless, but S is in the dark.
Can S enforce an agreement to buy the cotton on the December Peerless? Explain
Yes. When one party knows that the term is open to at least two reasonable interpretations and does not cure the ambiguity, then there is a k under the terms as understood by the unknowing party.
Relief for mutual mistake is only available IF . . . (4)
Both parties are indeed mistaken about a fact
The fact is an EXISTING fact
The fact is material AND
The person seeking relief does not bear the risk of mistake.
S and B k for the sale of a cow. The bill of sale provides “sale of barren cow for $80.” Cow turned out to be fertile and S refuses to deliver Cow. When B sues for breach, S asserts a mistake defense. Is there a mistake so that the k can be voided by S? Explain.
No. S could have had a vet examine the Cow and the vet would have been able to determine that the Cow was not barren. Thus, S bears the risk of mistake here. No mistake defense.
For unilateral contracts, there will be relief for mistake only in situations in which the other party . . .
What is this called?
Had reason to know of the mistake
This is called a “palpable mistake.”
BRI gets bids from ten vendors for new hoodies. Nine of the bids were for more than $100k. The other bid by X which BRI received was for $30k because X made a clerical error. Can X rescind the k because of its unilateral mistake? Explain.
Yes. BRI had reason to know of this “palpable mistake.” $30 was unreasonably low. Apply the palpable mistake doctrine for unilateral contracts.
