5. Formal and Evidentiary Requirements

cases

fabri clad v staurd

Fennell v Mulcahy

Mountstephen v lakeman

In Re The Goods of Leslie Good

tierney v marshall

Thomas v Brown

Boyle v Lee

Lowry v reid

WP McCarter & Co v Roughan

formal requirements

general rule is that there are no formalities required for the creation of a contract, it may be made in writing, orally, or even by implication from conduct

there are some exceptional cases where the law demands some formality, without which the contract may still be valid but unenforceable

statute of frauds act 1695

the existence of a valid contract does not necessarily mean that such a contract can be enforced.

validity and enforceability are distinct concepts

section 51 of the Land and Conveyancing Law Reform Act 2009 (LCLRA)

a contract for the sale/disposition of land cannot be enforced unless there is a written agreement/memorandum signed by the party being sued (or their authorised agent).

although It says that s.51(1) doesn't interfere with the equitable doctrines of part performance or other equitable doctrines.

contracts covered by statute

section 2 of the statute of frauds states the specific contracts in which the act applies to such as

• contracts to pay the debt of another

• contracts where the consideration was to be marriage

• contracts for the sale of land or an interest therein

• contracts that will not be performed within one year

fabri clad v staurd [2020]

states the statute of frauds is still fully operational save to the fact that it has been modified in relation to contracts relating to the disposition of an interest in land

indemnity vs guarantee

an indemnity is an undertaking to be liable regardless of whether another person be in default

a guarantee is an undertaking which is conditional on the default or non-performance of someone else

in other words, a contract is not a guarantee unless there is 3 parties (the creditor, the principal debtor, and the secondary debtor)

the guarantor is promising not to discharge the liability in any event, but only if the principal debtor fails to do so

where a man undertakes to do something which by law he is not obliged to perform, it shall be reduced to writing

Fennell v Mulcahy

D stepped in and agreed to pay off the tenants debt if the landlord returned the goods and was still not paid

held to be a contract of guarantee and since the agreement was not evidenced in writing it was therefore automatically void under the statute

Mountstephen v lakeman

builder was asked to perform certain construction works by chairman of the board of health in england. the builder asked if he would be paid and the chairman replied “I will see you paid”

the court held that the chairman could not be guaranteeing the Health Board’s debt as they Board had not ordered the work to be done, and so could not be described as a debtor. the sole debtor here was the Chairman

contract where the consideration was to be marriage

a marriage is a contract and does not have to be in writing, however, where somebody (e.g. a family relative) agrees to transfer property or a sum of money to an engaged couple, on the basis that they are getting married, that agreement must be in writing before it can be enforced

In Re The Goods of Leslie Good

applicant sought letters of administration over her deceased fathers estate so that she could sue her stepmother to enforce an agreement made between the stepmother and her father

the applicant was seeking to enforce a verbal agreement made in consideration of marriage and held that as the agreement was not evidenced in writing, the claim had to fall.

contracts for the sale of land or an interest therein

almost every dealing wit land must be evidenced in writing

two exceptions to this requirement are that:

• this heading does not capture mere licenses which do not create any “interest in or concerning” land

• there is a special regime for contracts creating the relationship of landlord and tenant which do not need to ve evidenced in writing as they are from year to year or for a short period

in addition to this, difficulties arise when we consider what amounts to an interest in land, it should be noted that this term is wider than it may first appear, and is not limited to the straightforward situation where an outright interest in land is being sold

for example - is the sale of crops yet to be frown, to be regarded as the sale of an interest in land so as to impose a requirement that the contract of sale should be in writing?

sale of goods act 1893

expressly includes the definition of “goods” anything attached to or forming part of the land, where that thing is agreed to be severed under the contract of sale

therefore, the enforceability of contracts to sell fructus naturales will be determined under the 1893 act and not under the Statute of Frauds

therefore contracts will generally be enforceable except where the value of the goods exceed £10, where the value of the goods does exceed £10, where the value of the goods does exceed £10 the contract will only be enforceable if

• theres a note or memorandum signed by the party to be charged or his group

• if the buyer has accepted part of the goods sold

• if the buyer has given consideration

• if the buyer has made [art payment

contracts that will not be performed within one year

the policy behind this latest category is located in the fear that oral testimony based on memories stretching back more than a year may prove unreliable, when a verbal contract is sought to be enforced or denied

tierney v marshall

The parties made an oral agreement involving wages and rent. The arrangement would take 12 years to complete because arrears had to be worked off over that period.

The court held that the agreement was unenforceable because it could not be performed within one year and there was no written evidence of it.

section 4 of the sale of goods act 1893

section 13 coupleed with section 4 requires that contracts for the sale of goods whose value exceeds £10 should be evidenced in writing, otherwise such ocntracts are not en forceable unless the buyer

a. accepts and receives part of the goods sold

b. gives something in earnest to bind the bargain

• Robert Clark states that where a buyer gives over h8is business card as a gesture of good faith, he is giving something in earnest and can therefore be held liable

c. makes part payment

• Robert Clark notes that an uncashed cheque returned to the writer thereof does not qualify as giving something in earnest because it is never accepted by the person on the other side of the bargain

contents of a memorandum

statute of frauds does not require that certain contracts be in writing, it requires that certain contracts should be evidenced in writing which is signed by the other party before they are enforceable, this includes memorandums, letters, cheques, receipts, etc

tradax (Ireland) ltd v irish grain board

a part of a letter that sought to reject the relevant agreement was used successfully as part of the memorandum

electronic commerce act 2000

a note or memorandum in writing includes electronic communications such as e-mail

the memorandum must have come into existence before the action seeking to enforce the contract was commenced

in this case, an email would suffice as writing

the 3 P’s

the memorandum must include these essential terms into the contract, without any one of these, the memorandum will not be sufficient to satisfy the Statute

• Parties to the contract

• Property to be sold

• Price to be paid

the memorandum should also include all other essential terms to the parties

signatures

this will be satisfied by the use of any mark by way of a signature (such as a rubber stamp, etc) and by the use of headed notepaper (on the basis that the heading is adopted as a signature)

under the electronic commerce act 2000 an electronic signature will be sufficient

Thomas v Brown

where a contract should be evidenced in writing but is not, then the contract is unenforceable, not void

Boyle v Lee

suppose that a letter confirms certain contractual terms, and goes on to say that the matter is subject to contract, this cannot be used as a note or memorandum where the document itself denies the existence of any contract.

part performance

part performance is an exception to the statute of frauds

it is the principle that a person will not be able to rely on the staute where to do so would allow him to gain an unfair advantage from a particular contract

a defendant cannot benefit from a plaintiffs performance of his half of the bargain, and then rely on the statute of frauds when called to fulfil his own obligations

Lowry v reid

mother undertook orally to make a will in favour of one son if he would convey his own farm to his brother, he did so but the will ultimately did not reflect the promise which was made

held that the sons act in giving up his own farm was sufficient part performance, entitling him to enforce the contract, despite the contract not being in writing

conditions for part performance

1. must be a concluded oral contract

2. plaintiff must have acted in a way which showed his intention to perform that contract

3. it must be shown that the defendant induced such acts of part performance, or stood by while they were being performed

4. must be shown that it would be unconscionable and a breach of good faith to allow the defendant to rely upon the terms of the statute to prevent performance of the contract

WP McCarter & Co v Roughan

in regard to the sale of land, entry by the purchaser is thought to be considered part performance