A basic rule of contract law is that certain types of agreements must be in writing before they may be enforced.(113) Absent a writing and the signature of the party charged, a court will refuse to enforce what may be an otherwise valid agreement that fits one of the six categories of contracts within the typical American Statute of Frauds
.(114) Employed over the years to guard against fraud and discourage perjury, the Statute of Frauds
continues to require written contract in certain instances to "promote certainty and deliberation ...
Enforcing the statute of frauds
under the FAR serves three policy goals: predictability, uniformity, and lower transaction costs in the formation of government contracts.(110) Predictability in government contracts should be the paramount goal of all parties involved.
For example, in Hessenthaler, the court held that a mailgram was a "signed writing" in compliance with the statute of frauds
applicable in a real estate transaction.
The ideal way to test this hypothesis would be to observe a large number of actual deals and to code these for the variables--the duration and structure of the parties' relationship, the likely effectiveness of third party nonlegal sanctions in their business community, and the complexity of their transaction--which the theory predicts will be important in determining whether or not the parties use written contracts that comply with the requirements of the Statute of Frauds
. Unfortunately, there are at present no data from which to construct such a sample.
If fear of fraud were paramount, then a writing requirement for all gifts, expanding on the statute of frauds
, might do more good than a delivery requirement.
The Statute of Frauds
would not hinder fraud on the court if the wrongdoer could testify that both parties agreed that the Statute would not apply.
Under Arizona's statute of frauds
, "an agreement which by its terms is not to be performed during the lifetime of the promisor, or an agreement to devise or bequeath any property, or to make provision for any person by will," must be committed to writing and signed by the charged party.
The estate's more fundamental argument, however, was that the emails relied upon by Gutman did not constitute a writing that satisfied the statute of frauds
Traynor first identified the policy underlying the California statute of frauds
: "protecting estates being probated here from false claims based on alleged oral contracts to make wills." (95) But Traynor then noted that the legislature "has not spelled out the extent to which the statute of frauds
is to apply to a contract having substantial contacts with another state" and this was not a purely domestic case.
It is still too early to compose the final obituary for the Statute of Frauds
. (1) Notwithstanding its repeal in whole or in part in some common law jurisdictions, this late 17th century legislation has once again proven its adaptability, this time to the age of the Internet, and to the making of contracts for the sale of land by email communications.
The two chapters of Part I clearly and succinctly set out the distinctive history of English will-making and its place in the Church Courts, the Statute of Frauds
, and an overview of reasons behind testamentary litigation ("uncontested" probates and issues of mental capacity and coercion tie for the lead).
The statute of frauds
, in most states, makes it difficult if not impossible to enforce such an oral agreement.