Anderson Spring Outline - STATUTE OF FRAUDS Three separate areas of inquiry(1 Whether transaction at issue is required by statute to be in writing

Anderson Spring Outline - STATUTE OF FRAUDS Three separate...

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STATUTE OF FRAUDS Three separate areas of inquiry (1) Whether transaction at issue is required by statute to be in writing? Categories under §110 (a) A K of an executor or administrator to answer for a duty of his decedent (executor-administrator provision) Applies only to promises by the executor to pay the debts of the estate w/ his own money and not to other agreements he makes as a representative of the estate (b) A K to answer for the duty of another (suretyship provision) A person promises to be responsible for the debt or other obligation of a 3 rd party – Construction K Ex A subcontractor posts a performance bond under which a 3 rd party bonding company (surety) guarantees the sub’s performance Ex A contractor/owner posts a payment bond under which a 3 rd party bonding company (surety) guarantees subs will be paid Exception: Primary purpose exception If the primary purpose of the surety is to protect his own interests, rather than those of the primary obligor, then the promise does not have to be in writing – Yarbro Case – emphasizes that the surety’s liability is limited by the actual promise he made (c) A K made upon consideration of marriage (marriage provision) Does not apply to promises of marriage b/r prospective marital partners – only applies to 3 rd parties Ex Father’s promise of dowry (d) A K for the sale of an interest in land (land K provision) Require a writing Agreement to buy or sell land Modifications of real estate mortgages Agreement to devise land No writing required Agreements affecting boundary lines Most leases of a short duration (one to three years) (e) A K that is not to be performed within one year from the making thereof (one-year provision)
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A K that does not specifically state a time that is more than one year is not w/in the statute even if the time for completion of the K is very likely to be more than one year Ex K to build a commercial building that does not state a time for completion greater than one year is not w/in the statute even if it is likely that the K will not be completed w/ in one year Exception: TX Court will make a determination of what is a reasonable time to complete performance of the K – court looks at circumstances surrounding the adoption of the agreement, subject matter of K, and situation of parties Anderson like the minority opinion that lifetime K’s where death is specified as a terminating event are not w/in the statute This rule does not apply to K’s for the sale of goods Category under UCC §2-201 (f) A K for sales of goods > $500 All that is necessary is a writing sufficient to indicate that a K has been made The writing need not be the K itself Signature is required only from the person against whom enforcement is sought A “letterhead” constitutes a signature Writing must only state the
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