Chapter 15: Contracts in Writing – Flashcards
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Statute of frauds
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specifies those contracts that must be in writing to be enforceable. Include: (1) promises to answer for the duty of another; (2) promises of an executor or administrator to answer personally for a duty of the decedent whose funds he is administering; (3) agreements upon consideration of marriage; (4) agreements for the transfer of an interest of land; (5) agreements not to be performed within one year
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Suretyship provision
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the promise to pay the debts of another. Applies to the contractual promise by a surety (promisor) to a creditor (promisee) to perform the duties or obligations of a third person (principal debtor) if the principal debtor does not perform
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Surety
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person who promises to pay the debt of another
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Principal debtor
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person whose debt is being supported
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Collateral promise
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undertaking to be secondarily liable; that is, liable if the principal debtor does not perform
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Original promise
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promise to become primarily liable; (then the statute of frauds t apply) making the debt one's own
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Main purpose
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object of promisor/surety is to provide an economic benefit for herself.
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Executor/Administrator
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person appointed to settle a decedent's estate
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Executor-administrator provision
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applies to promises to answer personally for a duty of the decedent
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Marriage provision
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applies to promises in consideration of marriage but not to mutual promises to marry
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Land contract provision
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applies to promises to transfer any right, privilege, power, or immunity in real property
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Part performance
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in applying this exception, many states require the transferee to have paid a portion or all of the purchase price and either to have taken possession of the real estate or to have started to make valuable land improvements
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One-year provision
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applies to contracts that cannot be performed in one year--have to be in writing
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Possibility tests
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if it is possible for the agreement to be performed within one year it is not within the statute of frauds
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Full performance by one party
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makes the promise of the other party enforceable under majority view
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Sale of goods
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a contract for the sale of goods for the price of $500 or more must be evidenced by a writing to be enforceable
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Admission
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an admission in pleadings, testimony, or otherwise in court makes the contract enforceable for the quantity of goods admitted
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Specially manufactured goods
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an ora contract for specially manufactured goods i enforceable
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Delivery or payment and acceptance
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validates the contract only for the goods that have been accepted or for which payment has been made
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Modification or rescission of contracts within the statute of frauds
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oral contracts modifying existing contracts are unenforceable if the resulting contract is within the statute of frauds
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Compliance: general contract law
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the writing or writings must (1) specify the parties to the contract; (2) specify the subject matter and essential terms; and (3) be signed by the party to be charged or by her agent
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Compliance: sale of goods
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the writing or writings must (1) be sufficient to indicate that a contract has been made between the parties; (2) be signed by the party against whom enforcement is sought or by her authorized agent; and (3) specify the quantity of goods to be sold
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Full performance
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statute does not apply to executed contracts. After all the promises of an oral contract have been performed by all the parties, the statute of frauds no longer applies.
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Restitution
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is available in quasi-contract for benefits conferred in reliance on the oral contract
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Promissory estoppel
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oral contracts will be enforced where the party seeking enforcement has reasonably and justifiably relied on the promise and the court can avoid injustice only be enforcement
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Parol evidence rule
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excludes inconsistent prior and contemporaneous oral and written agreements not incorporated into an integrated contract. exclude varying or changing parol (speech)
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Integrated contract
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complete and exclusive agreement of the parties
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Situations Parol Rule does not apply
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(1) partly written/partly oral contract; (2) typographical error; (3) lack of contractual capacity--would become void/able; (4) a defense of fraud-- would become void/able or enforceable; (5) condition precedent to which the parties agreed orally at the time of the execution of the written agreement and to which the entire agreement was made subject; (6) subsequent mutual rescission or modification; (7) parol evidence is admissible to explain ambiguous terms to provide understanding
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Course of dealing
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previous conduct between parties
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Usage of trade
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practice engaged in by the trade or industry
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Course of performance
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conduct between the parties concerning performance of the particular contract
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Interpretation
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construction or meaning given the contract
