Clark_11e-AM-Ch15.doc

Clark_11e-AM-Ch15.doc - 117 C HAPTER 15 T HE S TATUTE OF F...

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Unformatted text preview: 117 C HAPTER 15 T HE S TATUTE OF F RAUDS W RITING R EQUIREMENT A NSWER TO C RITICAL A NALYSIS Q UESTION IN THE F EATURE CONTEMPORARY LEGAL DEBATESWHERE DO YOU STAND? (PAGE 313) Some observers argue that enforcing prenuptial agreements when both par- ties did not have the advice of independent counsel unduly burdens the fi- nancially weaker party to the marriage, customarily the woman. Others con- tend that allowing financially successful future spouses to protect their assets encourages more marriages to take place. Clearly, the courts are divided on the issue of whether prenuptial agreements should be upheld despite the lack of independent counsel by both parties. Should the advice of independent counsel be a requirement for a valid prenuptial agreement? What is your po- sition on this issue? Yes, independent counsel should be a requirement because, as the introduction to this question states, the absence of independent counsel can result in an undue burden on the financially weaker party to the marriage. No, independent counsel should not be a requirement because if it were, as the introduction to this ques- tions states, there would be less protection of future spouses individual assets, which would discourage marriages. A NSWER TO Q UESTIONS AT THE E NDS OF THE C ASES CASE 15.1(PAGE 306) 1A. Would an oral agreement between Sawyer and Mills to begin the bonuss installment payments on a certain dateJuly 1, 2001, for exampleand com- plete them no later than fifteen months from that date have been outside the one-year rule of the Statute of Frauds? Yes, because the agreement could have been completed within a year, with no contemplation from the parties that it definitely would not be completed outside of a year, removing the agreement from the Statute of Frauds. Even if the installment payments had exceeded the fifteen-month limit, the agreement would not have fallen within the Statute of Frauds, because at the agreements incep- tion, the parties would not have contemplated that the payments would take that long and it would have been possible for the payments to be completed within twelve months. 118 UNIT THREE: CONTRACTS AND E-CONTRACTS In the Sawyer case, however, the parties expected and agreed from the beginning that their obligations would surpass one year with the installment payments spread across 107 months. 2A. Sawyer contended that the writing requirement of the Statute of Frauds was met through the combination of the recording of the parties conversation on June 25 and the checks Mills signed to Sawyer totaling $165,000. Obviously, the court did not agree. Why not? Among other things, the recording was made se- cretly (without Millss knowledge) under informal circumstances (unlike, for example, the recording of testimony under oath as part of a court proceeding). The court also con- cluded that the checks Mills wrote to Sawyer for One Hundred Sixty-five Thousand Dollars ($165,000.00) are insufficient to meet the writing requirement. These checksDollars ($165,000....
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Clark_11e-AM-Ch15.doc - 117 C HAPTER 15 T HE S TATUTE OF F...

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