R2d § 131: what must the writing contain?
Defenses · Oct 28
Floor. ~40 min: UCC § 2-201 exceptions + DePrince setup. The doctrine the next class assumes you have covered.
Target. ~75 min: Floor + Sherwood preview + R2d § 153 + synthesis.
(1) The following classes of contracts are subject to a statute, commonly called the Statute of Frauds, forbidding enforcement unless there is a written memorandum or an applicable exception:
(a) a contract of an executor or administrator to answer for a duty of his decedent (the executor-administrator provision);
(b) a contract to answer for the duty of another (the suretyship provision);
(c) a contract made upon consideration of marriage (the marriage provision);
(d) a contract for the sale of an interest in land (the land contract provision);
(e) a contract that is not to be performed within one year from the making thereof (the one-year provision).
(2) The following classes of contracts, which were traditionally subject to the Statute of Frauds, are now governed by Statute of Frauds provisions of the Uniform Commercial Code:
(a) a contract for the sale of goods for the price of $ 500 or more (U.C.C. § 2-201);
...
(5) In many states other classes of contracts are subject to a requirement of a writing.
Unless additional requirements are prescribed by the particular statute, a contract within the Statute of Frauds is enforceable if it is evidenced by any writing, signed by or on behalf of the party to be charged, which
(a) reasonably identifies the subject matter of the contract,
(b) is sufficient to indicate that a contract with respect thereto has been made between the parties or offered by the signer to the other party, and
(c) states with reasonable certainty the essential terms of the unperformed promises in the contract.
(1) Except as otherwise provided in this section a contract for the sale of goods for the price of $500 or more is not enforceable by way of action or defense unless there is some record sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought or by the party's authorized agent or broker. A record is not insufficient because it omits or incorrectly states a term agreed upon but the contract is not enforceable under this paragraph beyond the quantity of goods shown in such record.
(2) Between merchants if within a reasonable time a record in confirmation of the contract and sufficient against the sender is received and the party receiving it has reason to know its contents, it satisfies the requirements of subsection (1) against such party unless a record containing a notice of objection to its contents is given with 10 days after it is received.
For goods over $500, the UCC keeps a writing requirement — but adds three exceptions the common law lacks:
Outside the UCC, the common law also lets conduct substitute for a writing — especially in land contracts (R2d § 129).
Where a buyer, relying on an oral land contract, takes possession, makes improvements, and/or pays part of the price, courts will specifically enforce the oral deal.
Why these acts? Because they are unequivocally referable to a contract — conduct that makes no sense unless a deal exists. The conduct itself becomes the reliable evidence the writing would have supplied.
52 Haw. 29, 469 P.2d 177 (1970)
Supreme Court of Hawai'i
Rule. Promissory estoppel can take an oral contract out of the Statute of Frauds where the promisee has reasonably and foreseeably relied to substantial detriment, and injustice can be avoided only by enforcement.
40 Cal. 4th 757, 152 P.3d 420, 55 Cal. Rptr. 3d 116 (2007)
Supreme Court of California
Rule. A memorandum sufficient under the Statute of Frauds need only state the essential terms with reasonable certainty; extrinsic evidence may resolve ambiguity in those terms, but it may not supply or contradict essential terms missing from the writing.
A mistake is a belief that is not in accord with the facts.
We now leave the Statute of Frauds (a procedural defense — is the deal provable?) for mistake, the first substantive defense — was the deal built on a false belief?
R2d § 151: "A mistake is a belief that is not in accord with the facts."
Two cautions:
271 So. 3d 11 (Fla. Dist. Ct. App. 2018) (en banc)
District Court of Appeal of Florida, Third District
Rule. Unilateral mistake supports rescission where (1) the mistake goes to a material term, (2) enforcement would be unconscionable, (3) the mistake did not result from inexcusable lack of care, and (4) the other party can be returned to status quo. A buyer's knowledge or silence in the face of an obvious error can defeat enforcement.
66 Mich. 568, 33 N.W. 919 (1887)
Supreme Court of Michigan
Rule. A mutual mistake going to the substance of the thing bargained for, not merely to its quality, renders the contract voidable. Where both parties believed a cow to be barren and she proved fertile, the mistake went to the very nature of the bargained-for animal.
Facts. A buyer and seller orally agree on the sale of a 100-acre parcel for $750,000, closing in 90 days. The buyer wires a $50,000 earnest-money deposit. Two months later the seller sends the buyer an email confirming the price, the parcel, and the 90-day timeline. Three weeks before closing, the seller demands an additional $100,000 or 'no deal.' The buyer refuses and demands specific performance. Is the contract enforceable under the Statute of Frauds?
Vary one fact. In Sterling v. Taylor, the buyer's broker sends an unsigned escrow draft listing the property and price. Does an unsigned writing prepared by the party seeking to disprove the SoF defense help, hurt, or change nothing?
Stretch problems from the chapter.
The SoF is a gate, not a substantive bar. Today's rule: writing required for six categories; signed by party to be charged; identifies subject and essential terms with reasonable certainty. The question this rule does not fully answer: when does reliance or part performance excuse the writing requirement entirely? Class 18 picks up Sherwood v. Walker and the mistake doctrine, the first major substantive defense.
Next class: Mistake
_Defenses_ · Oct 29
Read DePrince v. Starboard and Sherwood v. Walker alongside R2d §§ 152, 153, 154. Both parties believed Sherwood's cow was barren; she was not. The mistake went to the substance of the bargain. What separates a mistake the law fixes from a mistake the law makes you live with? Come ready to answer. You may be called.