Statute of Frauds I Prof Merges Contracts March

Statute of Frauds I Prof. Merges Contracts – March 1, 2011

Agenda • Types of agreements covered: categories • Other requirements – Writing – Signed

The Agreement

Both can be K’s – in the absence of the So. F

Statute of Frauds (So. F): History • Common law courts, 17 th C – Perjury; “subornation” of perjury – Structure and incentives

Common provisions Cal. Civ. Code § 1624 (a)(1) K cannot be performed w/in 1 yr. (a)(2) Suretyship (a)(3) Lease and other real property transactions

Main Requirements • Writing • Signed – but by whom? • See Cal statute, p. 259

“party sought to be charged” • The party trying to get out of the K; the one the “pro-enforcement” party is “charging” with the K

Why these provisions? • 1 yr • Suretyship • Real property

Lord Mansfield

Chief justice of the Court of King's Bench from 1756 to 1788, was the foremost judicial voice shaping English common law during that era.

“What is surprising about the English common law of the second half of the 18 th century is how much is familiar to us today, ” he said. “Many of the basic ideas and principles of current American law were forged in this earlier time. ” -- Prof. James Oldham, English Common Law in the Age of Mansfield (U. N. C. Press 2004)

Suretyship • What is it?

Strong v. Sheffield • Promissory Note given by wife to satisfy demand made by holder of previous note on husband

What was “the original deal”? Mr. Sheffield Promise to repay $$ Mr. Strong

What was “the second deal”? Mr. Sheffield Promissory Note Promise to repay $$ Mrs. Strong Mr. Strong

Suretyship or guarantee • Promise to answer for debt of another

Lender (Creditor) Borrower

Lender (Creditor) Surety. Guarantor Borrower

Lender (Creditor) Surety. Guarantor Borrower

Lender (Creditor) Surety. Guarantor Borrower ? ?

Q: Is the agreement “within the statute”? • Categories of agreements; see local (state) statute

CR Klewin v. Flagship Props. • Procedural history

CR Klewin v. Flagship Props. • Procedural history • Certified by 2 d Circuit to Sup Ct Connecticut

Facts

Facts • What was the agreement here?

Agreement • 3/86: “We’ve got a deal”

Agreement • 3/86: “We’ve got a deal” • Dissatisfaction by October, 1987 • New construction mgt firm, March 1988

Estimated duration? • Three to 10 years

Two certified questions • “Indefinite duration” K and the “one year” clause • Contemplated performance more than 1 year but no term stated in the K

Relevance of history

Relevance of history • Affects how the court interprets the provisions of the S o F

Relevance of history • Affects how the court interprets the provisions of the S o F • “Courts look with disfavor” – p. 272

Relevance of history • Affects how the court interprets the provisions of the S o F • “Courts look with disfavor” – p. 272 • Connecticut precedent: what trend?

Main question

Main question • “performance cannot possibly be peformed within one year” • What does “possibly” mean here?

Holding here • “cannot possibly be performed within one year” means under the express terms of the contract • The K itself rules out performance in less than a year • Not surrounding facts