Restat 2d of Contracts, § 110

• Restatement of the Law, Second, Contracts
• Chapter 5- The Statute of Frauds
• § 110 Classes of Contracts Covered

(1)  The following classes of contracts are subject to a statute, commonly called the Statute of Frauds, forbidding enforcement unless there is a written memorandum or an applicable exception:

(a)  a contract of an executor or administrator to answer for a duty of his decedent (the executoradministrator provision);

(b)  a contract to answer for the duty of another (the suretyship provision);

(c)  a contract made upon consideration of marriage (the marriage provision);

(d)  a contract for the sale of an interest in land (the land contract provision);

(e)  a contract that is not to be performed within one year from the making thereof (the one-year provision).
(2)  The following classes of contracts, which were traditionally subject to the Statute of Frauds, are now governed by Statute of Frauds provisions of the Uniform Commercial Code:

(a)  a contract for the sale of goods for the price of $ 500 or more (Uniform Commercial Code § 2-201);

(b)  a contract for the sale of securities (Uniform Commercial Code § 8-319);

(c)  a contract for the sale of personal property not otherwise covered, to the extent of enforcement by way of action or defense beyond $ 5,000 in amount or value of remedy (Uniform Commercial Code § 1-206).
(3)  In addition the Uniform Commercial Code requires a writing signed by the debtor for an agreement which creates or provides for a security interest in personal property or fixtures not in the possession of the secured party.
(4)  Statutes in most states provide that no acknowledgment or promise is sufficient evidence of a new or continuing contract to take a case out of the operation of a statute of limitations unless made in some writing signed by the party to be charged, but that the statute does not alter the effect of any payment of principal or interest.
(5)  In many states other classes of contracts are subject to a requirement of a writing.

Comment:

a.  Classes of contracts.  The five classes of contracts listed in Subsection (1) were included in different language in § 4 of the English Statute of Frauds, enacted in 1677. The English Statute was repealed in 1954 except for the suretyship and land contract provisions. Subsections (2) and (3) refer to four separate Statute of Frauds sections found in the Uniform Commercial Code, which displace § 4 of the Uniform Sales Act and § 17 of the English statute. The Code sections are not elaborated in this Restatement. Subsection (4) is a statement of a provision of Lord Tenterden's Act, 1828, which has been widely copied in the United States. As to the extent of enactment of these and other similar statutes, see the Statutory Note preceding this Section. The formal contracts referred to in § 6 of this Restatement are not affected by the Statute of Frauds, but in some cases are subject to separate statutes containing formal requirements.

b.  Overlap of classes.  The clauses of the English statute apply separately; one contract may be within more than one clause of the statute, and facts which except it from one class may not except it from another. Thus contracts in consideration of marriage or for the sale of land or goods may also be contracts not to be performed within a year, and the statutory requirements in one clause may be satisfiedand those of another clause unsatisfied.

Illustration:

1. A and B orally agree to marry three years later. The contract is unenforceable because not to be performed within a year, even though it is excepted from the provision for contracts in consideration of marriage.

c.  Variations in the statutes.  The English Statute of Frauds and many American statutes take the form, "No action shall be brought whereby to charge . . . unless . . . . " In some states non-complying contracts are said to be "void" or "invalid" or "not binding," but in spite of such differences there is much similarity in the interpretation given. Lord Tenterden's Act and statutes modeled on it, however, are generally construed to require the acknowledgment or promise itself to be in writing; under such statutes a subsequent memorandum does not render enforceable a prior oral promise. See § 136.

d.  Consequences of non-compliance.  The consequences of non-compliance are the subject of Topic 7, §§ 138-47. In general a contract subject to the Statute of Frauds is unenforceable if the requirements of the statute are not satisfied. See § 8. The Statute does not in general bar the remedy of restitution; indeed, recovery of benefits conferred pursuant to an unenforceable contract is a standard remedy. See § 375; Restatement of Restitution § 108. Where there has been part performance or other action in reliance on an unenforceable contract, the effect is in some situations to make the contract fully enforceable, in others to make particular remedies available. See, e.g., § 129. Even though no such rule is applicable, the circumstances may be such that justice requires enforcement of the promise. To the extent that justice so requires, the promise is then enforced by virtue of the doctrine of estoppel or by virtue of reliance on a promise notwithstanding the Statute. See § 139.

See 3 Williston, Contracts §§ 448-50, 525-34 (3d ed. 1960); 2 Corbin, Contracts §§ 275-85 (1950 & Supps. 1971 & 1980).

Comment b.  Illustration 1 is based on Brock v. Button, 187 Wash. 27, 59 P.2d 761 (1936).

Comment d.  See 3 Williston, Contracts § 533A (3d ed. 1960); 2 Corbin, Contracts § 422A (Supp. 1971); Edwards, The Statute of Frauds of the Uniform Commercial Code and the Doctrine of Estoppel, 62 Marq. L. Rev. 205 (1978); Summers, The Doctrine of Estoppel Applied to the Statute of Frauds, 79 U. Pa. L. Rev. 440 (1931); McNeill, Agreements to Reduce to Writing Contracts Within the Statute of Frauds, 15 Va. L. Rev. 553 (1928); Annots. 75 A.L.R. 650 (1931), 101 A.L.R. 923 (1936), 115 A.L.R. 152, 158 (1938), 117 A.L.R. 939 (1938), 166 A.L.R. 443 (1947), 48 A.L.R.2d 1069, 1079 (1956). But see Note, 66 Mich. L. Rev. 170 (1967). Illustrative of the several approaches to the interplay between estoppel and the Statute of Frauds are C. R. Fedrick, Inc. v. Borg-Warner Corp., 552 F.2d 852 (9th Cir. 1977); Janke Constr. Co. Inc. v. Vulcan Materials Co., 386 F. Supp. 687 (W.D. Wis. 1974), aff'd, 527 F.2d 772 (7th Cir. 1976); and Boddy v. Gray, 497 S.W.2d 600 (Tex. Civ. App. 1973), error ref.

ALR Annotations:

Joint adventure agreement for acquisition, development, or sale of land as within provision of statute of frauds governing broker's agreement for commission on real-estate sale. 48 A.L.R.2d 1042.
Statute of frauds as applicable to seller's oral warranty as to quality or condition of chattel. 40 A.L.R.2d 760.
Statute of frauds: promise by stockholder, officer, or director to pay debt of corporation. 35 A.L.R.2d 906.
Construction of statute requiring representations as to credit, etc., of another to be in writing. 32 A.L.R.2d 743.

Digest System Key Numbers:

Frauds, Statute of 1 et seq.