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However, the woman will have to get the promise in writing. Furthermore, the woman's remedy would not be to force the man to marry her, but to receive compensation for the monetary damages that she suffered as a result of the move.
While the English Act for the Prevention of Frauds and Perjuries covered the type of agreement just described, it also covered other types of promises made in contemplation of marriage. Perhaps one of the most common of those scenarios was when a woman would allege that a man promised to marry her if they engaged in certain sexual activities. A man who made such a promise might later deny it.
The final type of contract involves those contracts that cannot be completed in less than a year. An example of that type of contract is a contract for a two-year gym membership. A typical contract would provide a customer with a certain amount of gym access in exchange for a monthly payment for a certain amount of months. Even if the total amount of the contract is less than $500, because it is impossible for either the customer or the gym to fulfill their contractual obligations in a period of less than one year.
However, there is an importance difference between contracts that contemplate a performance that will take longer than one year and contracts that cannot be completed within one year. For example, a construction contract that requires the builder to erect a home within 18 months is not a contract that cannot be performed within one year. The builder could always complete the home within a one-year time period. Therefore, the contract falls outside of that area of the Statute of Frauds.
What Qualifies as a Writing
The Statute of Frauds does not require a written contract. "The common term is 'evidenced by a writing'" (Rain). Therefore, a number of different types of writings may be sufficient. The contract may be pieced together from several different documents, as long as the documents clearly refer to the same transaction.
Furthermore, the Statute of Frauds generally requires that a writing be signed by the party against whom it is to be enforced. However, many things besides an actual signature satisfy this requirement. For example, an order placed by a purchaser to a supplier on the purchaser's letterhead will be enforceable against the purchaser. Likewise, an order placed by a purchaser to a supplier that is not on company letterhead, but that was faxed from the purchaser's fax machine or sent from the purchaser's email address will probably be enforceable against the purchaser.
In many states, confirmatory memorandum, if not contradicted by the other party, can become enforceable against either party. For example, imagine that a bride has gone to a florist and looked at a certain number of floral arrangements for her wedding. She goes home to decide what type of arrangements she wants, and then calls the florist to inform him of her choice. She tells him that she wants 10 of the rose arrangements. The florist then sends a confirmation fax to the bride, stating that she has ordered 10 arrangements, consisting of roses and baby's breath, at $45 per arrangement. In many states, if the bride accepts the confirmatory memorandum without objection, it is sufficient to satisfy the Statute of Frauds.
Furthermore, to satisfy the writing requirement, the writing does not have to be mutual. If one party writes down an agreement for his own personal use, the agreement may be enforceable against that party, but not the other. This situation could arise frequently for salesmen taking orders, or people who do customized work.
Finally, given the proliferation of alternative types of media, there may no longer be a requirement of a writing in order to satisfy the Statute of Frauds. In some jurisdictions, a tape, video recording, or other form of electronic media may satisfy the writing requirement. In fact, two major pieces of legislation, the Electronic Signatures in Global and National commerce Act (E-Sign) and the Uniform Electronic Transactions Act (UETA) mandate that a contract is not to be "deemed invalid merely because it is in electronic form" (Huey, 683).
Not all contracts that appear to fall under the Statute of Frauds are unenforceable without a writing. One of the most common exceptions is for the sales of goods that are to be specially manufactured for the buyer, which are not suitable for sale to others. Another common exception is that, if a party admits the existence of a contract, he will be estopped from alleging that a contract was never made. Finally, if a party accepts or pays for goods, he loses his Statute of Frauds defense.
Take for example a woman who goes to a seamstress for a custom-made wedding dress. The parties never enter into a written contract, but the seamstress sews a wedding dress that is fitted exactly to the bride's measurements. While the seamstress is working on the dress, the bride attends a bridal show and finds a designer wedding gown at a remarkable price. The bride then attempts to cancel her order from the seamstress. Because the dress is custom-made for the bride, the seamstress will be able to enforce the contract, even though there is no writing.
There is another exemption to the Statute of Frauds. It involves where both parties to the contract are merchants, or otherwise sophisticated businessmen. In that instance, some, if not all, of the requirements of the Statute of Frauds are waived. For example, if a buyer and a seller are both involved in the same industry and the buyer regularly purchases items from the seller, the buyer might not have to provide the same type of written proof of a contract in order to show that it had a contract with the seller, even if the contract is for an amount greater than $500.
Furthermore, parties engaged in the same business may also be subject to a lesser version of the Statute of Frauds. Terms used in their business can come in as parol evidence to help explain or define parts of a written contract. For example, a buyer that places an order with a seller for "4" of an item, but really means that he is placing an order for 4 million units would probably be able to demonstrate that it was an industry standard to refer to the items in groups of a million units.
Finally, even contracts that are required to be in writing because of the Statute of Frauds can be orally modified or rescinded. Even if the original written agreement contains a clause prohibiting oral modifications, most agreements can be orally rescinded. To determine whether an oral modification is permissible, the contract created by the modifications has to be treated like the original contract. If the contract, as modified, would have to be in writing to satisfy the Statute of Fraud's requirements for an original contract, then the modification has to be in writing. In that instance, an agreement that originally does not fall under the Statute of Frauds can be transformed into an agreement requiring a writing. Furthermore, in states that have adopted the UCC, section 2-209(2) allows for a written contract to contain a binding clause prohibiting oral modifications of the original contract.
The Statute of Frauds has lasted for over 325 years. It has not lasted because of an inherent fairness, but instead because it appears to offer some clarity and certainty to contracts or agreements. The appeal of the Statute of Frauds for American jurisprudence seems to be that it offers a continual idea of what is required to form a contract across the states. The first attempt to codify the law and make it uniform across the states was the UCC. Many states have adopted the UCC, especially its sections relating to the Statute of Frauds. However, the future of the Statute of Frauds is anything but certain.
Although the Statute of Frauds lasted for almost two centuries in England, it was repealed in 1954 by the English Parliament. Even in America, which has embraced the Statute of Frauds, many judges have resisted the Statute of Frauds. The Statute of Frauds has been used by many defendants to avoid contractual obligations. For that reason, the Statute of Frauds "has come upon hard times in many legal systems" (Rain). One of the reasons that it survives in American law today is because of the certainty it provides to contractors.
As incorporated in the UCC, the Statute of Frauds helps achieve uniformity in contracts from the ground up. However, in today's global economy, there is a need for uniformity in transnational commercial law as well as domestic law (Spiedel, 166). Therefore, the United Nations Convention on Contracts for the International Sale of Goods (CISG), attempts to establish uniformity in transnational commercial contracts.
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