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Statute of Frauds I

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 SoF. Statute of Frauds (SoF): History. Common law courts, 17 th C

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Statute of Frauds I

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

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

  3. The Agreement

  4. Both can be K’s – in the absence of the SoF

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

  6. 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

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

  8. “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

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

  10. Lord Mansfield

  11. 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.

  12. “What is surprising about the English common law of the second half of the 18th 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)

  13. Suretyship • What is it?

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

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

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

  17. Suretyship or guarantee • Promise to answer for debt of another

  18. Lender (Creditor) Borrower

  19. Lender (Creditor) Surety-Guarantor Borrower

  20. Lender (Creditor) Surety-Guarantor Borrower

  21. Lender (Creditor) Surety-Guarantor Borrower ????

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

  23. CR Klewin v. Flagship Props. • Procedural history

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

  25. Facts

  26. Facts • What was the agreement here?

  27. Agreement • 3/86: “We’ve got a deal”

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

  29. Estimated duration? • Three to 10 years

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

  31. Relevance of history

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

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

  34. 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?

  35. Main question

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

  37. 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

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