george mason school of law
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George Mason School of Law. Contracts I Statute of Frauds F.H. Buckley [email protected]. Why 1677?. Party on, dudes!. Why 1677?. Juries as fact-finders Interested parties not admissible as witnesses. Why 1677?. Juries as fact-finders Interested parties not admissible as witnesses - PowerPoint PPT PresentationTRANSCRIPT
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 And that made the Statute of Frauds
necessary because….?
Why 1677?
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Juries as fact-finders Interested parties not admissible as
witnesses And that made the Statute of Frauds
necessary because….? And if it did, why do we need it now?
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 Cautionary Channeling
Can you think of a fourth reason, unconnected to the protection of the parties?
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A trap for the unwary?
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The Statute of Frauds
Marriage The old action for breach of promise
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The Statute of Frauds
Marriage Restatement § 124
A promises to settle Blackacre upon B when she marries C?
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The Statute of Frauds
Marriage Restatement § 124
Illustrations 1, 3, 5
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The Statute of Frauds
Marriage Restatement § 124
Illustrations 1, 3, 5 Restatement § 90(2)
Illustration 18
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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 kind of promises were these in
1677?
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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 § 112-14
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Suretyship
Obligee
Principal (obligor)
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Suretyship
Obligee (promisee)
Surety (promisor) Principal (obligor)
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Colonial Finance in Virginia
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 Not unenforceable by virtue of the Statute
of Frauds
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Do salesmen have tenure?
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Ron Popeil and the Veg-o-matic
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How does the one-year rule work?
“Not to be performed within one year from the making thereof” I ask you to work for me on January 10,
2010, with the expectation that the work will be completed by January 10, 2011
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How does the one-year rule work?
“Not to be performed within one year from the making thereof” I ask you to work for me on January 10,
2010, with the expectation that the work will be completed by January 10, 2011 Restatement § 130
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How does the one-year rule work?
“Not to be performed within one year from the making thereof” I ask you to work for me on January 10,
2010, with the expectation that the work MIGHT be completed by January 10, 2011 Restatement § 130
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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
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McIntosh
What kind of recovery for McIntosh?
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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?
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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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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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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Next day
Restatement §§ 1-4, 9, 17-24Scott 201-05, 4-23Restatement §§ 26, 33Scott 205-15
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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”
Compare UCC § 2-201(1) Signed by or on behalf of the party to be
charged Evidences existence of a contract But not above quantity of goods shown
in the writing
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A trap for the unwary?
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Monetti
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Melform products
Monetti
How was the first writing “signed” in Monetti?
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Monetti
How was the first writing “signed” in Monetti? Typed initials “SS” on Steve Schneider’s
draft terms
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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” in Monetti? 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: how to tell them
apart?
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Monetti
What about the internal memo 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 (?)
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Monetti
What was the part performance? Restatement §§ 139, 145 UCC § 2-201(3)(c)
Does this mean the agreement is enforceable?
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When does Art. 2 apply?
A sale of inventory or a distributorship agreement? UCC § 2-102 A general or a nominate contract?
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