1 george mason school of law contracts i statute of frauds f.h. buckley [email protected]
TRANSCRIPT
Next day
Restatement §§ 1-4, 9, 17-24 Scott 201-05, 4-23
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Balance of term
Offer and Acceptance Consideration
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The Statute of Frauds
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Sometimes the law is like Pericles, sometimes like a plumber
The Statute of Frauds: Why 1677?
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Party on, dudes!
Why 1677?
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Juries as fact-finders Interested parties not admissible as
witnesses
Why 1677?
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Juries as fact-finders Interested parties not admissible as
witnesses If that made the Statute of Frauds
necessary then, why do we need it now?
What is the sanction for non-compliance?
Restatement § 110(1): not enforceable absent a note or memorandum in writing
UCC § 2-201
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The problem: A trap for the unwary?
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The Statute of FraudsWhat’s its Purpose? McIntosh
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The Statute of FraudsWhat’s its Purpose? McIntosh
Evidentiary Antifraud
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The Statute of FraudsWhat’s its Purpose? McIntosh
Evidentiary Antifraud
Cautionary Reflects seriousness of contracting
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The Statute of FraudsWhat’s its Purpose? McIntosh
Evidentiary Antifraud
Cautionary Reflects seriousness of contracting
Channeling Distinguishing enforceable contracts
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The Statute of FraudsWhat’s its Purpose? McIntosh
Evidentiary Antifraud
Cautionary Reflects seriousness of contracting
Channeling Distinguishing enforceable contracts
[Economizing on court costs?]
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So when would we want to require a writing?
What do the categories of Restatement § 110 tell us?
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The Statute of FraudsWhat’s its Purpose? McIntosh
Major Contracts
Possibility of a ill-considered promise
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The Statute of Frauds
Marriage Settlements The old action for breach of promise
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The Statute of Frauds
Marriage Settlements Restatement §§ 110(1)(c), 124
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The Statute of Frauds
Marriage Settlements Restatement §§ 110(1)(c), 124
A promises to settle Blackacre upon B when she marries A: Illustration 1 How is this different from breach of promise?
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The Statute of Frauds
Marriage Settlements Restatement §§ 110(1)(c), 124
A promises to settle Blackacre upon B when she marries A: Illustration 1 How is this different from breach of promise?
Cf. the proviso to §124
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The Statute of Frauds
Marriage Settlements Restatement §§ 110(1)(c), 124
A promises to settle Blackacre upon B when she marries A: Illustration 1 What does the reference to “consideration”
exclude?
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The Statute of Frauds
Marriage Settlements Restatement §§ 110(1)(c), 124
A promises to settle Blackacre upon B when she marries A: Illustration 1 What does the reference to “consideration”
exclude? Cf. illustration 5
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The Statute of Frauds
Marriage Settlements Suppose the parties do get married. Is
that sufficient reliance under Restatement § 124? Cf. comment d
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The Statute of Frauds
Marriage Promises not to be performed within
One Year Restatement § 110(1)(e)
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The Statute of Frauds
Marriage Promises not to be performed within
One Year What is the rationale for the rule?
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The Statute of Frauds
Marriage Promises not to be performed within
One Year What is the rationale for the rule?
An aide-memoire? Or a significant contract?
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The Statute of Frauds
Marriage Promises not to be performed within
One Year What is the rationale for the rule?
An aide-memoire? Or a significant contract? Do you agree with Farnsworth?
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The Statute of Frauds
Marriage Promises not to be performed within
One Year Land
110(1)(d)
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“Tis the only thing worth fighting for, worth dying for”
The Statute of Frauds
Marriage Promises not to be performed within
One Year Land Executor’s Assumption of Liability
Restatement § 110(1)(a) No new consideration needed
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The Statute of Frauds
Marriage Promises not to be performed within
One Year Land Executor’s Assumption of Liability Goods worth more than [$500]
Restatement § 110(2)(a) → UCC § 2-201
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Restatement § 110 ff, UCC § 2-201
Marriage Promises not to be performed within
One Year Land Executor’s Assumption of Liability Goods worth more than [$500] Suretyship Agreements
Restatement § 112
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Suretyship
Obligee
Principal (obligor)
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Suretyship
Obligee (promisee)
Surety for Principal Principal (obligor)(promisor)
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Assumes a prior obligation by obligor to obligee
MY LEGS
Marriage Promises not to be performed within
One Year Land Executor’s Assumption of Liability Goods worth more than [$500] Suretyship Agreements
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How does the one-year rule work?
“Not to be performed within one year from the making thereof” What does the Π have to assert to win in
McIntosh?
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How does the one-year rule work?
“Not to be performed within one year from the making thereof” What does the Π have to assert to win in
McIntosh? Not terminable at will, but for a fixed term
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How does the one-year rule work?
“Not to be performed within one year from the making thereof” What does the Π have to assert to win in
McIntosh? Not terminable at will, but for a fixed term What that term might be
Gee, let’s say one year
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How does the one-year rule work?
“Not to be performed within one year from the making thereof” What does the Π have to assert to win in
McIntosh? Not terminable at will, but for a fixed term What that term might be But then Δ asserts the promise is not
unenforceable by virtue of the Statute of Frauds
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How does the one-year rule work?
“Not to be performed within one year from the making thereof” It’s November 1, 2011. I ask you to work for
me from January 10, 2012 until January 10, 2013
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How does the one-year rule work?
“Not to be performed within one year from the making thereof” It’s November 1, 2011. I ask you to work for
me from January 10, 2012 until January 10, 2013 Restatement § 130
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How does the one-year rule work?
“Not to be performed within one year from the making thereof” It’s November 1, 2011. I ask you to work for
me beginning on January 10, 2012, with the expectation that the work MIGHT be completed by January 10, 2013
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How does the one-year rule work?
“Not to be performed within one year from the making thereof” It’s November 1, 2011. I ask you to work for
me beginning on January 10, 2012, with the expectation that the work MIGHT be completed by January 10, 2013 Restatement § 130: cannot be performed
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How does the one-year rule work?
“Not to be performed within one year from the making thereof” I insure your house against fire for five years
without a writing. Three years have elapsed. Restatement § 130, illustration 1.
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McIntosh
What is estoppel? And promissory estoppel?
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McIntosh
Restatement § 139 Promisor should expect reliance Promisee does rely Non-enforcement would be unjust
Cf. Restatement § 90 re consideration
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Was McIntosh a proper case for estoppel?
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What do you think would have happened if McIntosh had asked for a written contract?
Are salesmen given tenure?
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Ron Popeil and the Veg-o-matic
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Was McIntosh a proper case for estoppel?
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If you’re Murphy, how do you react to the decision?
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Was McIntosh a proper case for estoppel?
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Should estoppel mimic the bargain the parties would likely have struck?
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Is land different?
What do real estate agents make you do if you want to buy a house?
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Is land different?
What do real estate agents make you do if you want to buy a house? Written offers throughout Closing
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Is land different?
Restatement § 125 Contracts to buy or sell land, not
leaseholds
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What happened in Schwedes?
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Swan River MT
What happened in Schwedes?
Sale by seller--No real estate agent
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What happened in Schwedes?
Sale by seller--No real estate agent What, if anything, constituted promisee
reliance?
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What happened in Schwedes?
Sale by seller--No real estate agent What, if anything, constituted promisee
reliance? Securing financing?
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What happened in Schwedes?
Sale by seller--No real estate agent What, if anything, constituted promisee
reliance? Securing financing? The offer to send the purchase price?
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What happened in Schwedes?
Sale by seller--No real estate agent What, if anything, constituted promisee
reliance? Securing financing? The offer to send the purchase price? Psychic reliance?
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Psychic Reliance CostsBut when the cheque bounces tomorrow…
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Happy, Happy, Joy, Joy
Estoppel
Why was a defense of promissory estoppel explicitly rejected in Schwedes? Restatement § 139
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Part Performance
Cf. Restatement § 129 Buyer gives seller purchase price. Can
buyer have specific performance?
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Can you distinguish Schwedes from McIntosh?
But cf. Restatement § 129 Buyer gives seller purchase price. Can
buyer have specific performance? Cf. Illustration 1 Contrast Illustration 3 Restatement § 139(2)(a)
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Lawyer’s Ethical Duties
Should Hoover have disclosed that the sellers were dickering with another purchaser?
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Lawyer’s Ethical Duties
Should Hoover have disclosed that the sellers were dickering with another purchaser? MRPR § 1.6 A lawyer shall not reveal
information relating to the representation of a client unless the client gives informed consent…
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Lawyer’s Ethical Duties
What about saying that sending the payment was unnecessary?
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Lawyer’s Ethical Duties
What about saying that sending the payment was unnecessary? MRPR § 4.3 The lawyer shall not give legal
advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client.
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The “note or memorandum in writing”
Restatement §§ 110, 131 Signed by or on behalf of the party to be
charged Specifies subject matter Evidences existence of a contract Essential terms
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The “note or memorandum in writing”
Restatement §§ 110, 131 What is a signature?
Cf. Illustration 2
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The “note or memorandum in writing”
Restatement §§ 110, 131 What is a signature?
Cf. Illustration 2 Cf. Restatement § 134, illustrations 1 and 3
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The “note or memorandum in writing”
Compare UCC § 2-201(1) Evidences existence of a contract Signed by or on behalf of the party to be
charged But not above quantity of goods shown
in the writing
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Monetti
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Melform products
Monetti
How was this within the SoF?
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Monetti
How was this within the SoF? One year Sale of Goods?
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Monetti
How was this within the SoF? One year Sale of Goods? Why might it matter which it is?
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Monetti
In what sense is this not like a sale of goods? Cf. UCC 2-105(1)
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Monetti
In what sense is this not like a sale of goods? Cf. UCC 2-105(1)
Sale of goods or distributorship agreement? Which one fits better (predominant purpose)? Both statutes? A mixed contract (pick and choose)?
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Monetti
Who is the party to be charged?
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Monetti
How was the first writing “signed” by Anchor?
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Monetti
How was the first writing “signed” by Anchor? Typed initials “SS” on Steve Schneider’s
draft “Topics for Discussion”
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Monetti
How was the first writing “signed” in Monetti? Typed initials “SS”
UCC § 1-201(37) Signed “includes any symbol executed or adopted by a party with present intention to adopt or accept a writing.”
Restatement § 134, illustration 3
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Monetti
How was the first writing “signed” by Anchor? Typed initials “SS” Did it matter that this was a pre-
contractual draft?
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Monetti
How was the first writing “signed” in Monetti? Typed initials “SS” Did it matter that this was a pre-
contractual draft? Restatement § 136 Posner’s three cases on 529: how to tell
them apart?
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Monetti
How was the first writing “signed” in Monetti? Posner’s three cases on 529
UCC 2-201: “a contract for sale has been made:
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Monetti
What about the internal “summary agreement” by Raymond Davis?
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Monetti
What about the internal memo? Δ’s letterhead suffices How did Π obtain this?
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The “note or memorandum in writing”
What about the internal memo? Δ’s letterhead suffices How did Π obtain this? Is Restatement § 132 applicable?
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The “note or memorandum in writing”
What about the internal memo? Δ’s letterhead suffices How did Π obtain this? Is Restatement § 132 applicable?
Posner: they don’t refer to each other (530) Posner: “we are permitted to connect
them” (532)
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Monetti
What was the part performance? Restatement §§ 139(2)(b), 145 UCC § 2-201(3)(c)
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