Quick question re statute of frauds

(Study Tips, Dealing With Stress, Maintaining a Social Life, Financial Aid, Internships, Bar Exam, Careers in Law . . . )
Lupton Pittman
Posts: 31
Joined: Fri Jun 05, 2009 12:32 am

Quick question re statute of frauds

Postby Lupton Pittman » Sun Dec 12, 2010 4:56 pm

When dealing with a contract not to be performed within a year of its making, what if it is to be substantially performed (say, 90% construction of a house, enough so as to provide suitable living conditions)? Is this not a statute of frauds case because the contract will be substantially performed within a year, or does it have to be 100% performed within a year?

User avatar
joobacca
Posts: 282
Joined: Tue Jun 17, 2008 10:49 am

Re: Quick question re statute of frauds

Postby joobacca » Sun Dec 12, 2010 4:59 pm

reliance or unjust enrichment?
edit: 90% of house done? isn't that substantial compliance? and so buyer gets to knock off whatever damages but pays the rest?

User avatar
Kiersten1985
Posts: 784
Joined: Fri Jul 31, 2009 3:36 pm

Re: Quick question re statute of frauds

Postby Kiersten1985 » Sun Dec 12, 2010 5:02 pm

If the K cannot be 100% completed w/in 1 year, then it must be in writing. If a party breaches after 90% performance, then the injured party can likely sue off the contract for restitution or reliance damages. Expectation damages (e.g. cost of completion or diminutive value) is less likely to be awarded off the contract.

Lupton Pittman
Posts: 31
Joined: Fri Jun 05, 2009 12:32 am

Re: Quick question re statute of frauds

Postby Lupton Pittman » Sun Dec 12, 2010 5:05 pm

?

I'm just trying to figure out if this contract would be a statue of frauds case, because at the time of its making it is understood that the house will not be completed within a year. (It's my understanding that if a contract cannot be performed within one year, statute of frauds applies and it must be in writing.) So my question is if performance within a year means full performance, or just substantial performance.

Lupton Pittman
Posts: 31
Joined: Fri Jun 05, 2009 12:32 am

Re: Quick question re statute of frauds

Postby Lupton Pittman » Sun Dec 12, 2010 5:07 pm

Sorry for the confusion guys, I was just confused about the 100% v. 90% part, I wasn't even getting into if anyone breached.

User avatar
straxen
Posts: 135
Joined: Thu Nov 19, 2009 3:39 am

Re: Quick question re statute of frauds

Postby straxen » Sun Dec 12, 2010 5:11 pm

If the Contract could have conceivably been completely performed within one year, the statute of frauds does not apply. So to say 90% was done in a year might suggest as a factual matter that it could have been performed within one year. But it does not matter, from what I understand, whether the contract ultimately is performed within a year or not.

Lupton Pittman
Posts: 31
Joined: Fri Jun 05, 2009 12:32 am

Re: Quick question re statute of frauds

Postby Lupton Pittman » Sun Dec 12, 2010 5:17 pm

bingo, I got it now. Thanks guys.

User avatar
mths
Posts: 1098
Joined: Tue Nov 02, 2010 11:24 am

Re: Quick question re statute of frauds

Postby mths » Sun Dec 12, 2010 5:19 pm

Lupton Pittman wrote:When dealing with a contract not to be performed within a year of its making, what if it is to be substantially performed (say, 90% construction of a house, enough so as to provide suitable living conditions)? Is this not a statute of frauds case because the contract will be substantially performed within a year, or does it have to be 100% performed within a year?

The rule is that the statute of frauds won't apply if the contract can be performed within a year. So basically if I make a k with you for a lifetime, this would not trigger the statute of frauds because I could die in less than a year and therefore the k could technically be performed within a year. However, if I make a k with you for exactly 1 year and 1 day then it's invalid (if its a k where the statute of frauds applies of course)

but for 90% performance you have other remedies even without a valid k

Edit: lol did not look past the first post -- superfluous analysis

User avatar
kswiss
Posts: 391
Joined: Wed Dec 09, 2009 1:58 am

Re: Quick question re statute of frauds

Postby kswiss » Sun Dec 12, 2010 7:37 pm

I think that the court would just say that even though it might not be feasible to perform within a year, it is still possible. Most courts try to disregard the SoF in every way possible, so unless it can't be performed by its terms within a year then the SoF wouldn't appy.

Also, the SoF is there as evidence of assent. If there is evidence that that other party paid on the contract or something, then the SoF wouldn't be performing its function. Reliance on a K (performance of 90% of the work in this case) is also a SoF defense. If the breaching party knew that the other party was performing and didn't stop them, then it shows that they manifested assent to the K, and would probably be estopped from a SoF defense.

User avatar
JCougar
Posts: 3175
Joined: Tue Dec 30, 2008 8:47 pm

Re: Quick question re statute of frauds

Postby JCougar » Mon Dec 13, 2010 12:58 am

straxen wrote:If the Contract could have conceivably been completely performed within one year, the statute of frauds does not apply. So to say 90% was done in a year might suggest as a factual matter that it could have been performed within one year. But it does not matter, from what I understand, whether the contract ultimately is performed within a year or not.


This.

User avatar
JCougar
Posts: 3175
Joined: Tue Dec 30, 2008 8:47 pm

Re: Quick question re statute of frauds

Postby JCougar » Mon Dec 13, 2010 12:59 am

kswiss wrote:Also, the SoF is there as evidence of assent. If there is evidence that that other party paid on the contract or something, then the SoF wouldn't be performing its function. Reliance on a K (performance of 90% of the work in this case) is also a SoF defense. If the breaching party knew that the other party was performing and didn't stop them, then it shows that they manifested assent to the K, and would probably be estopped from a SoF defense.


and this.




Return to “Forum for Law School Students”

Who is online

Users browsing this forum: Egzon, MSNbot Media and 2 guests