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Chapter 7

Chapter 7. THE STATUTE OF FRAUDS.

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Chapter 7

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  1. Chapter 7

  2. THE STATUTE OF FRAUDS “No action shall be brought...upon any contract for the sale of lands, tenements, or hereditaments, or the making of any lease thereof for a longer term that one (1) year…unless the promise...or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith...” TCA 29-2-101.

  3. SATISFYING THE STATUTE OF FRAUDS • Not necessary that the writing have been produced in order to satisfy statute • As long as the writings relate to the same agreement, more than one can be used.

  4. SATISFYING THE STATUTE OF FRAUDSContents of writing • language indicating a contract has been formed • identity of the parties • description of the subject matter • signature of the party to be charged • essential terms - price, duration

  5. Statute of Frauds • Partial Performance may take a contract out of the statute of frauds. • Justifiable reliance • Purchaser has made partial payment and takes possession • Make improvements to the land • Remember that the statute only applies to executory contracts.

  6. Parol Evidence Rule • When parties express a contract in a writing that they intend to be the final expression of their rights and duties, evidence of their prior oral or written negotiations or agreements, and of their contemporaneous oral agreements that vary or change the written contract are not admissable.

  7. INTEGRATION CLAUSE This agreement sets forth the entire agreement among the parties with respect to its subject matter and supersedes and replaces all prior and contemporaneous warranties, representations, and agreements whether written or oral; and may not be amended or modified except by written agreement executed by the parties hereto.

  8. When is parol evidence admissable? • When the contract is not integrated into a single written document • To correct clerical errors • With regard to later statements (But, see integration clause) • To explain ambiguity • To prove circumstances invalidating • Existence of conditions

  9. INTERPRETATION OF CONTRACTS • Terms are interpreted against the party who wrote them • Handwritten • Typed • Printed

  10. Additional Contract Provisions • Marketable Title • Type of Deed and Estate • Earnest Money • Fixtures • Contingencies/Conditions • Inspections – structural, environmental • Financing • Proration of taxes 10

  11. Remedies for Breach • Seller’s breach – specific performance may be appropriate because the buyer will not otherwise get the benefit of the bargain. • Buyer’s breach – seller remedy. Retention of earnest money. Actual damages.

  12. Avoiding the contract • Mutual mistake of fact. • Duress • Undue Influence • Confidential relationship • Unfair advantage • Misrepresentation • Material fact • Buyer has duty to verify

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