Defenses? Flashcards
DOES THE K FALL IN THE STATUTE OF FRAUDS?
- Land Provision: A K for the sale of an interest in land falls in the SoF
- Long term lease
- Easement: permission to use someone else’s land
- Option to buy interest in land (cannot take deal off table)
- Crops AREN’T covered
- Suretyship Provision: A promise to pay the debt of another person falls in the SoF
• Debtor/Principal: owes money
• Creditor: someone owes you money
• Surety: promises creditor – if debtor does not pay, I will
• Does not apply if surety’s main purpose in serving as surety is to protect his own economic
interests
- Executorship Provision: Promise by executor to pay pre-existing debt of the estate (debt dead
person owed) out of his own pocket (not estate money) falls in SoF - Year Long Provision: A K that cannot be performed within one year of the making of the K falls
in the SoF - Marriage Provision: A K made upon consideration of marriage falls in SoF
- Does not apply to engagement or I promise to marry you if you promise to marry me
- Does not apply for in-laws – marry, we pay for half of house
- K for sale of goods $500 or more falls in SoF
• Has to be moveable object
DOES THE K SATISFY THE STATUTE OF FRAUDS?
-Lay out basic terms of agreement with reasonable adequacy
-Writings: aggregate pieces of paper, receipts, telegrams, business records, business correspondence,
letter that repudiates oral agreement like “I really whish I had not agreed to..”
-Signature: sign away SoF defense – writing must be signed by party against whom you are trying to
enforce K – initials, personalized forms, stationary for business, electronic signature
-Other ways: tell truth under oath “I said that but there is no writing” or tape recording of person saying K there
Neither threat of considerable financial loss nor impending bankruptcy establish economic duress
Chouinard
Mere hard bargaining positions, if lawful, and the press of financial circumstances, not caused by party
against whom the K is sought to be voided will not be deemed duress
Chouinard
Baseline Test for Duress:
Assent induced by improper threat, by other party, that leaves victim with no reasonable alternative
RS 175/Batsakis
K is voidable on ground of duress when it is established that party making claim was forced to agree to it by
means of wrongful threat precluding exercise of free will
Austin
A mere threat by one party to breach the K by not delivering required items though wrongful does not in
itself constitute economic duress
Also:
*Threatened party could not obtain goods form another source of supply and
*Ordinary remedy of an
action for breach of K would not be adequate
Austin
Accord
Agreement to settle bona fide dispute (often to accept partial payment for full payment)
Satisfaction
Actually paying pursuant to accord (Execution of accord)
Legal significance: eliminate debt
entirely and wipe out dispute
A&S Theories
Old common law rule: accord did not prevent creditor form sueing for full amount
Courts tried to get around this:
• Substitution Theory:
Executor accord substitutes for old debt, creditor could only sue for
accord amount
• Suspension Theory:
Old debt suspended for fixed/reasonable period – cannot sue for full
amount. If do not satisfy in reasonable amount of time, can sue for full amount.
Promise to accept partial payment as full payment for undisputed debt is not enforceable
Foakes
Elements of A&S:
1) Bona fide dispute regarding the amount due
2) Debtor makes it clear that his/her payment must be accepted as full payment
3) Creditor clearly understands in accepting that he is accepting payment in full
Thompson
