1. 1 George Mason School of Law Contracts II Statute of Frauds F.H. Buckley fbuckley@gmu.edu

2. Why 1677? 2 Party on, dudes!

3. Why 1677? 3  Juries as fact-finders  Interested parties not admissible as witnesses

4. Why 1677? 4  Juries as fact-finders  Interested parties not admissible as witnesses  And that made the Statute of Frauds necessary because….?

5. Why 1677? 5  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?

6. The Statute of Frauds  Marriage The old action for breach of promise 6

7. The Statute of Frauds  Marriage The old action for breach of promise Restatement § 124, illustration 1 Restatement § 90(2) 7

8. The Statute of Frauds  Marriage  Promises not to be performed within One Year What kind of promises were these? 8

9. The Statute of Frauds  Marriage  Promises not to be performed within One Year What kind of promises were these?  An aide-memoire?  Or a significant contract? 99

10. The Statute of Frauds  Marriage  Promises not to be performed within One Year What kind of promises were these?  An aide-memoire?  Or a significant contract?  Do you agree with Farnsworth? 10

11. The Statute of Frauds  Marriage  Promises not to be performed within One Year  Land 11 “Tis the only thing worth fighting for, worth dying for”

12. The Statute of Frauds  Marriage  Promises not to be performed within One Year  Land  Executor’s Assumption of Liability No new consideration needed 12

13. The Statute of Frauds  Marriage  Promises not to be performed within One Year  Land  Executor’s Assumption of Liability  Goods worth more than [$500] 13

14. 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 § 113-14 14

15. 15 Colonial Finance in Virginia

16. The Statute of Frauds 29 Car. II (1677)  Marriage  Promises not to be performed within One Year  Land  Executor’s Assumption of Liability  Goods worth more than [$500]  Suretyship Agreements 16

17. 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 17

18. A trap for the unwary? 18

19. The Statute of Frauds What’s its Purpose? McIntosh 19

20. The Statute of Frauds What’s its Purpose? McIntosh  Evidentiary Antifraud 20

21. The Statute of Frauds What’s its Purpose? McIntosh  Evidentiary Antifraud  Cautionary Reflects seriousness of contracting 21

22. The Statute of Frauds What’s its Purpose? McIntosh  Evidentiary Antifraud  Cautionary Reflects seriousness of contracting  Channeling Settling terms 22

23. The Statute of Frauds What’s its Purpose? McIntosh  Evidentiary  Cautionary  Channeling  Can you think of a fourth reason, unconnected to the protection of the parties? 23

24. 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? 24

25. 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 25

26. 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 26

27. 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 27

28. Do salesmen have tenure? 28 Ron Popeil and the Veg-o-matic 28

29. 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 29

30. 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 30

31. 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 31

32. 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. 32

33. McIntosh  What is estoppel? And promissory estoppel? 33

34. McIntosh  Restatement § 139 Promisor should expect reliance Promisee does rely Non-enforcement would be unjust  Cf. Restatement § 90 34

35. Was McIntosh a proper case for estoppel? 35 What do you think would have happened if McIntosh had asked for a written contract?

36. Was McIntosh a proper case for estoppel? 36 If you’re Murphy, how do you react to the decision? 36

37. Is land different?  What do real estate agents make you do if you want to buy a house? 37

38. Is land different?  What do real estate agents make you do if you want to buy a house? Written offers throughout Closing 38

39. What happened in Schwedes?  Sale by seller--No real estate agent 39

40. What happened in Schwedes?  Sale by seller--No real estate agent What, if anything, constituted promisee reliance? 40

41. 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 41

42. What happened in Schwedes?  Sale by seller--No real estate agent What, if anything, constituted promisee reliance?  If the promisee could recover in damages for this, just what would this amount to? 42

43. Can you distinguish Schwedes from McIntosh?  Why was a defense of promissory estoppel explicitly rejected in Schwedes? 43

44. Can you distinguish Schwedes from McIntosh?  Cf. Restatement § 129 44

45. Can you distinguish Schwedes from McIntosh?  Cf. Restatement § 129 Buyer gives seller purchase price. Can buyer have specific performance? 45

46. 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) 46

47. Lawyer’s Ethical Duties  Should Hoover have disclosed that the sellers were dickering with another purchaser? 47

48. Lawyer’s Ethical Duties  Should Hoover have disclosed that the sellers were dickering with another purchaser? MRPR § 1.6A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent… 48

49. Lawyer’s Ethical Duties  What about saying that sending the payment was unnecessary? 49

50. Lawyer’s Ethical Duties  What about saying that sending the payment was unnecessary? MRPR § 4.3The 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. 50

51. 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 51

52. The “note or memorandum in writing”  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 shwon in the writing 52

53. The “note or memorandum in writing”  How was the first writing “signed” in Monetti? 53

54. The “note or memorandum in writing”  How was the first writing “signed” in Monetti? Typed initials “SS” on Steve Schneider’s draft terms 54

55. The “note or memorandum in writing”  How was the first writing “signed” in Monetti? Typed initials “SS”  UCC § 1-201(39) Signed “includes any symbol executed or adopted by a party with present intention to authenticate a writing.”  Restatement § 134, illustration 3 55

56. The “note or memorandum in writing”  How was the first writing “signed” in Monetti? Typed initials “SS” Did it matter that this was a pre- contractual draft? 56

57. The “note or memorandum in writing”  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? 57

58. The “note or memorandum in writing”  What about the internal memo by Raymond Davis? 58

59. The “note or memorandum in writing”  What about the internal memo? Δ’s letterhead suffices How did Π obtain this? 59

60. The “note or memorandum in writing”  What about the internal memo? Δ’s letterhead suffices How did Π obtain this? Restatement § 132 applicable?  Posner: they don’t refer to each other 60

61. Monetti  What was the part performance? 61 Melform products

62. Monetti  What was the part performance? Restatement §§ 139, 145 UCC § 2-201(3)(c) 62

63. Monetti  What was the part performance? Restatement §§ 139, 145 UCC § 2-201(3)(c)  Does this mean the agreement is enforceable? 63

64. When does Art. 2 apply?  A sale on inventory and a distributorship agreement A general or a nominate contract? 64

65. 65 George Mason School of Law Contracts II Terms F.H. Buckley fbuckley@gmu.edu