K SoF - MBE
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What are the 6 categories of agreements governed by the SoF?
- (1) marriage
- (2) K not to be performed w/in 1 year of its making
- (3) sale of land
- (4) executor or administrator
- (5) guarantee or suretyship
- (6) sale of goods of $500 or more
The year at issue under the 1 year provision is measured from what?
the date of making the K rather than the beginning of performance
What is the test for determining whether a particular K is to be performed w/in 1 year of the making thereof?
whether at the point of formation is it at all possible to complete the required performance w/in a years time
Does it matter if the K can breaced w/in a year when determining if the SoF applies?
no only whether it can be performed w/in 1 year
Are lifetime or permanent K of employment governed by the SoF?
no b/c death is possible w/in 1 year of formation
Is the K for the future sale of land governed by the SoF?
yes and it requires a signed writing
Is the present conveyance of land promised for money governed by the SoF?
Are real estate brokerage agreements governed by the SoF?
no b/c these are service K
Do leases of real property fall under the SoF?
yes b/c a leasehold is an interest in land
What are the 2 exceptions to the general rule that a promise to answer for the debt of a 3P is subject to the SoF and must be in writing?
- (1) creditor discharges the original debtor from his obligation on the faith of the guarantee by a 3P to pay the debt
- (2) Main Purpose Doctrine
What is the main purpose doctrine regading guarantees or suretyships?
The main purpose of the guarantor is to protect his own economic interests
What are the 3 questions to ask when analzying a problem under the SoF?
- (1) Is the K w/in the SoF?
- (2) Is the SoF satisfied?
- (3) Is there an alternative basis for enforcement?
The SoF is an exception to what general rule?
that K generally need not be in writing; oral and written agreements are equally enforceable
If a K is governed by the SoF then what is required for enforcement?
evidenced by a writing and signed by the party against whom enforcement is sought
Who has a SoF defense?
a party who doesn't sign a K that is governed by the SoF
If the agreement doesn't fall under the SoF then is a signed writing required for enforcement?
no and an oral K is enforceable
What is the result if the SoF isn't satisfied?
the party seeking enforcement will lose unless there is a work around
Under the writing requirement, is it required that the parties put their entire agreement in writing?
no only need some mem of the agreement which can be made before, during or after the agreement
What types of memos have been held to satisfy the CL writing requirement?
- (1) letter from one of the parties to a 3P describing the agreement
- (2) written offer, acceptance of which formed the K
- (3) letter from one of the parties repudiating but so admitting the agreement
What terms are required in the writing?
- (1) identity of the parties to the X
- (2) nature and subject matter of the K
- (3) essential terms of the agreement such as price and date for performance
What does the older case law suggest is the required description under the land provision?
a formal legal description of the land (i.e. - metes & bounds)
What do the more current decisions suggest is the required description under the land provision?
an address or some other description of the property may suffice
Is the actual full signature of the party against whom enforcement is sought necessary under the signature requirement?
What is required under the signature requirement?
any symbol or mark used with the intention to authenticate the writing
Does the writing have to be a single document?
no and several documents may be tacked together to satisfy all the necessary requirements
When tacking together multiple documents, is it sufficient if all the documents are signed or if a signed document incorporates the unsigned documents by reference?
When tacking together multiple documents, if the unsigned documents aren't incorporated by reference in a signed document, what is needed to satisfy the SoF?
- (1) must be at least one signed writing unambiguously establishing a K relationship b/t the parites
- (2) signed and unsigned docs clearly refer to the same subject matter
- (3) must be C&C evidence of acquiescence to the unsigned doc by the party against whom enforcement is sought
In the context of the land provision, part performance requires the showing of all or some of what?
- (1) payment of all or part of the purchase price
- (2) taking of possession
- (3) making substantial improvements to the property
Regarding 1 year K, how does an oral K not to be performed w/in 1 year become enforceable?
when it is fully performed
Will partial performance of an oral K not to be performed w/in 1 year make it enforceable?
What is a possible work around in the 1 year K context when there is an oral K that has been partially performed?
Can the UCC SoF be satisfied by partial performance of a sale of goods K?
What are the 2 possible alternative basis for enforcement of a K that fails to satisfy the SoF?
- (1) restitution
- (2) promissory estoppel
When is promissory estoppel available in the SoF context?
if there has been detrimental reliance for losses suffered on the faith of an oral K that is unenforceable
What is the easy case regarding PE and the SoF?
where a party to an oral K w/in the SoF promises the other party that he will create a signed writing and the other party relies by not taking steps to satisfy the SoF...PE applies if the promising party doesn't create such a signed writing
What is the hard case regarding PE and the SoF?
where no specific assurances for creating a signed writing are made but the reliance is simply instead on the underlying K itself
How do the slim majority of courts hold regading the hard cases for PE?
PE is available in these circumstances if there is strong evidence of reliance
How do a substantial minority of courts hold regarding the hard cases for PE?
CL PE is preempted by the SoF
What are the 5 ways to satisfy the UCC SoF?
- (1) signed writing
- (2) merchant confirmation
- (3) in-court admission
- (4) part performance
- (5) substantial reliance by S of specially manufactured goods
What are the requirements for satisfying the UCC SoF with a signed writing?
- (1) a writing
- (2) signed by the party against whom enforcement is sought
- (3) sufficient to indicate that a K for sale has been made b/t the parties
According to the majority of courts do electronic communications satisfy the requirements of the UCC?
What is the one required term under the UCC for a signed writing?
quantity and the K is unenforceable beyond the quantity stated in the writing
Under the UCC if there is no quantity term the K is unenforceable unless one of 2 exceptions apply
- (1) where other language in the writing provides an unambiguous basis for measuring quantity
- (2) output or requirement K which satisfy the requirement under the UCC
Does a written offer satisfy the writing requirement under the UCC?
no b/c insufficient to show that K has been made
When will a written offer satisfy the writing requirement under the UCC?
when it meets the requirements of the Firm Offer rule then it is enforceable against the one making the firm offer
Under the UCC the SoF may satisfied by a Merchant's Confirmation if what 4 requirements are met?
- (1) confirmation is sufficient against the sender
- (2) writing is in confirmation of the K
- (3) confirmation must be sent w/in a reasonable time of formation
- (4) confirmation must be based on a real agreement or discussion b/t the parties and must be actually received
What must the recipient of a merchant confirmation due under the UCC to keep his SoF defense?
send a written notice of objection w/in 10 days of receipt
The UCC SoF is satisfied via an in-court admission when what happens?
a party admits in his pleading, testimony, or otherwise in court that a K for sale was made
Regarding an in-court admission under the UCC, the K is only enforceable up to how much?
the quantity admitted
Despite the absence of a signed writing, an otherwise valid K is enforceable under the UCC via partial performance with respect to what?
- (1) goods for which payment has been both made and accepted
- (2) goods which have been both received and accepted
The partial performance exception under the UCC doesn't apply unless what?
there are actions by both parties indicating that the K exists
If the K involves divisible goods and partial performance is being applied under the UCC, how much of the K is enforceable?
up to the quantity actually delievered and paid for
If the K involves indivisible goods and partial performance is being applied under the UCC, what is the effect?
partial performance renders the K fully enforceable
SoF is satisfied when dealing with specially manufactured goods when what 5 elements are present?
- (1) goods specially manufactured for B
- (2) goods not suitable for sale to others
- (3) S has substantially begun to manufacture
- (4) actions undertaken to begin manufacture indicate that goods are for the B
- (5) actions undertaken occurred b4 S received notice of B revocation
What are the 2 critical concerns regarding specially manufactured goods and UCC SoF?
- (1) can the M resell the ordinary course of business?
- (2) was the M's detrimental reliance completely b4 notification of B w/drawl?
What is the majority court stance on PE if a party has detrimentally relied on an oral K whose enforcement is barred by the UCC SoF?
PE is available if a strong case is shown
What is the minority court stance on PE if a party has detrimentally relied on an oral K whose enforcement is barred by the UCC SoF?
the express language of UCC SoF precludes PE
What is the on PE regarding construction Ks under the UCC?
virtually all courts have protected a GC via PE even if the oral subK in question is for goods of $500 or more
What is the only effect of a successful SoF defence?
defeats the enforcement of the K against the non-signing party
IF a K is barred by the SoF, for what other purposes might it still be valid and enforceable?
- (1) oral K may provide evidence for establishing an element of a legal claim apart from breach of K
- (2) oral K may provide evidence of establishing a defense to a legal claim apart from a breach
- (3) oral K may provide evidence of the value of services already rendered
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