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the statute of frauds is not really a statute at all it's actually a common law doctrine which you'll find in the Restatement second of contracts published in 1981 and it's codified in most states through the Uniform Commercial Code and it's not really about fraud either so what is it the statute of frauds is simply a list of rules for when a signed writing is required if that signed writing is required and not present a contract may not be enforceable unless certain exceptions are allowed the statute of frauds exists for three primary reasons it cautions people against making contracts you might think twice before you put your signature on something it forces certain types of contracts to be channeled into a certain type of contract a signed contract or written memorandum and that memorandum is evidence of the agreement making it easier for courts to understand how it should be enforced in law school you might be presented with statute of frauds problems in multiple-choice and essay questions here's how you should think about answering them first is the contract within the statute of frauds we first look at the classes of contracts that require a signed writing a contract can be part of more than one class and each class has specific exceptions we then ask what kind of writing is required and state the rules for it and see if it exists here's a flowchart diagram from Koons and chomp G's contracts a contemporary approach casebook we begin by asking whether or not the statute of frauds deals with this kind of contract if the answer is yes we asked if the exemptions to that particular class of contract which puts it in the statute of frauds applies to take it back out again if the statute of frauds does not apply then we simply go through our usual contract analysis remember that the statute of frauds prevents enforcement of a contract it never makes a contract enforceable it's a defense which can be raised by someone who doesn't want that contract to be enforced so if we fall within and exception to the statute of frauds or if the statute of frauds does not apply we still have to look for offer acceptance consideration and the lack of any defenses before we can even be sure we actually have a contract in addition if the contract falls within the statute of frauds and is not subject to an exemption there - we have to look for a writing that satisfies the statute of frauds if we don't have such a writing the contract is not enforceable unless we can apply an equitable doctrine there are several classes of contracts that require a signed writing these are the common ones some courts don't respect all of these the Uniform Commercial Code which is the law in 49 states says that contracts for sales of goods with a total bill of $500 or more must be signed which requires a memorandum that evidence is a contractor fit for sale of goods authenticated by the party to be charged that specifies a quantity the UCC again requires one a memorandum that evidences a contract for the sale of goods - that is signed by the party to be charged and three specifies a quantity a few things to note about the UCC it does not have to be signed by both parties when both parties are merchants when one merchant sends a confirmatory memorandum and when the receiving merchant does not give notice of objection within 10 days of receipt moving to the Restatement which is common law and most but not all jurisdictions we have five categories an executor or administrator is someone who manages the estate of a person who has died these contracts are within the statute of frauds if a contract made by the person who died when that person was living would have been within the statute of frauds surety is guaranteeing the tort or debt obligations of another for example Debby commits a tort against Charlie Suzie promises Charlie orally for consideration to pay Charlie the damages to which Charlie has suffered from the tort if Debbie fails to do so Sally's promise is within the statute of fraud since Debbie is under a direct contract duty to Charlie and Sally's promise is to perform Debbie's duty if Debbie fails to do so marriage contracts are for promises where at least part of the consideration is marriage that is not the same as a marriage contract but a contract the consideration for which at least in part is marriage the big example is a prenuptial agreement a prenup a prenup is going to be covered under the statute of frauds we will require a signed writing but not an agreement which consists only of mutual promises to marry each other so a engagement agreement is not within the statute of frauds land contracts are generally required to be evidenced by a signed writing and this actually includes most leases not just sales of land not just buying a house but renting an apartment the exception is short-term leases less than one year are generally exempt so sales of land and lease agreements for more than one year require a signed writing there's one catch with the short-term lease exemption and it has to do with the next exemption on the list the one-year exemption which we'll discuss in more detail because it confuses many students the one-year exemption holds that where any promise in a contract cannot be fully performed within a year from the time the contract is made all promises in the contract are within the statute of frauds until one party to the contract completes his performance in other words performance is required one year from the making here of so a contract to mow the lawn for 364 days is not within the statute of frauds a contract to mow the lawn for one day 13 months from now is within the statute of frauds if it's at all possible for the contract to be fully performed within a year then it does not fall under the 1-year provision the exception to this is lease agreements for less than a year never fall within the statute of frauds even if they begin in the future so a lease agreement to rent an apartment for six months starting seven months from today will be concluded no sooner than 13 months from today but does not fall within the statute of frauds for any given class of contract rules that bring us into the statute of frauds there are exceptions that apply to that class and that class alone so contract requires a signed writing because it falls under two or more different classes for example a contract to buy a house 13 months from now would fall both under the land and the one-year provisions the exceptions to the UCC are specific to this provision sales of goods for $500 or more require a signed writing unless any of the following four things are true both parties are merchants and one sends a written confirmation to the other without rejection within 10 days or the goods are specially manufactured for the buyer or the party against whom enforcement of sought admits the contract for sale was made or payment has been made and the goods have been received and accepted land contracts including lease agreements that are for more than a year require a signed writing under the statute of frauds but part performance is commonly applied in land contract cases although it can be an exception to other statute of frauds classes what is part performance in the land sale context part performance includes actions like taking possession of the land and making improvements on it if you've built a house on an empty plot of land that serves an evidentiary function that you actually believe you own that land and if the other party is aware that you have taken it so the statute of frauds is less necessary in cases where we have part performance in a land sale from the perspective of evidencing a contract was made and this part performance exception applies to several other classes of agreements including prenuptial agreements which can be evidenced by marriage and promises to pay another's debts like beginning to pay those debts but the part performance exception almost never applies to the 1-year provision many students find the 1-year provision the trick is to apply keep in mind that the 1-year provision applies to any contract that cannot be fully performed within one year where complete performance is impossible that year starts the moment the contract is made not when performance starts it's a good idea to do some practice problems to understand this concept better if a party to a contract says that a writing is not required then tries to claim that contract is not enforceable because of the statute of frauds the other party who is seeking enforcement can invoke the doctrine of equitable estoppel to deny the subsequent contradictory argument that a writing is required similarly if a party promises to put an agreement into writing or promises not to require a signed writing for enforcement the other party can invoke the doctrine of promissory estoppel to prevent the promise or from raising the statute of frauds as a defense to contract enforcement these are equitable principles the remedies are likewise limited as equity fairness or justice requires take a look at Restatement second section 139 - for a list of the factors courts can consider when determining whether injustice can be avoided only by enforcement now that we understand what classes of contracts require a signed writing and the legal and equitable exceptions thereto let's look at what qualifies as a signed writing such that it will satisfy the statute of frauds when a signed writing is required that writing does not have to be made with the intention of creating a written memorandum the party didn't have to mean they were formalizing and documenting a contract rather any writing that has the appropriate content will suffice even if that writing was not intended to memorialize the agreement so what's required in the writing it has to identify the subject matter indicated contract was made and state essential terms with reasonable certainty you might note there's no requirement that the writing has to be communicated or sent to the other party nor does the memorandum need to be written before the contract was made a sufficient memorandum can be made at any time before or after the contract under the Restatement the Uniform Commercial Code seems to require that the contract is made before or at the time the contract is formed under the Restatement the writing also does not need to exist at the time of trial if the writing was created signed but subsequently lost or destroyed then an unsigned copy or oral evidence may be sufficient while most of us think is signed is equivalent to having a signature the law doesn't actually require parties to put their John Hancock on a Memorandum any symbol made or adopted with the intention actual or parent to authenticate the writing as to that of the signer will suffice this might even include your name that is automatically added to your outbound email but that's a corner case certainly having a signature block in your email seems to be made with the intention to authenticate the writing as that of yours look at Restatement section section 134 comment a for more detail it clarifies that symbols include not only signatures but also initials thumb prints and even arbitrary code signs the signature does not need to be written in blue ink although some people might prefer that in order to show the signature is not photocopy even though the Restatement allows photocopied signatures in fact the Restatement allows the signature to be written in pencil types printed made with a rubber stamp or even embossed in the paper the location the signature is also not important while it's customary to sign at the end of the document where drafters will typically place a signature block a valid signature can appear anywhere in the memorandum thanks for listening I'm professor Orenburg to study this case further read howard construction in your case book and answer the questions afterwards I look forward to discussing this with you in class