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George Mason School of Law

George Mason School of Law. Contracts II Statute of Frauds F.H. Buckley fbuckley@gmu.edu. Why 1677?. Party on, dudes!. Why 1677?. Juries as fact-finders Interested parties not admissible as witnesses. Why 1677?. Juries as fact-finders Interested parties not admissible as witnesses

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George Mason School of Law

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

  2. Why 1677? Party on, dudes!

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

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

  5. Why 1677? • 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

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

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

  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? 9

  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 “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

  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]

  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. Colonial Finance in Virginia

  16. The Statute of Frauds29 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

  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?

  19. The Statute of FraudsWhat’s its Purpose? McIntosh

  20. The Statute of FraudsWhat’s its Purpose? McIntosh • Evidentiary • Antifraud 20

  21. The Statute of FraudsWhat’s its Purpose? McIntosh • Evidentiary • Antifraud • Cautionary • Reflects seriousness of contracting 21

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

  23. The Statute of FraudsWhat’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?

  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? 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?

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

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

  36. Was McIntosh a proper case for estoppel? 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?

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

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

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

  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

  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?

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

  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?

  48. Lawyer’s Ethical Duties • Should Hoover have disclosed that the sellers were dickering with another purchaser? • MRPR § 1.6 A 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 § 4.3 The 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

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