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, 17 th 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”? Mr. Sheffield Mr. Strong $$ Promise to repay

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

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

18. Lender (Creditor) Borrower

19. Lender (Creditor) Borrower Surety- Guarantor

20. Lender (Creditor) Borrower Surety- Guarantor

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

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

27. Facts

28. What was the agreement here?

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

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

31. Estimated duration? Three to 10 years

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

33. Relevance of history

34. Affects how the court interprets the provisions of the S o F

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

36. 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?

37. Main question

38. “performance cannot possibly be peformed within one year” What does “possibly” mean here?

39. 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