Statute of Frauds

Question 1

What, if any, are the exceptions to SOF surety?

Answer 1

Surety agreements must be in writing unless…

• The agreement primarily benefit the guarantor
• the agreement is one to indemnify the creditor.

Question 2

When must a contract meet the SOF to be enforceable?

Answer 2

The contract must meet the SOF if it is a contract for…

-Marriage
-Surety (agreement to be a guarantor)
-One year - contract that is impossible to complete within a year (a year to the day after the contract is made)
-UCC for goods $500 and more
-Real Estate

Question 3

What if any, are the exceptions to the SOF real estate?

Answer 3

For real estate, a contract will be enforceable despite not meeting the SOF requirements if there is evidence of at least two of the following: full or partial payment, possession or substantial improvement by the buyer.

Question 4

What are the required elements of a writing that meets the SOF?

Answer 4

For common law: the writing must be signed by the party against whom the contract is being enforced, and contain all essential elements of the contract (PSPQ).

For UCC: the writing must be signed/initialed/on letterhead of the party against whom the contract is being enforced, it must contain the parties and quantity, and indicate there is a contract.

Importantly, the writing does not have to be formal–it can be a letter or a receipt. Multiple writings can come together to meet the SOF, so long as one writing references the other(s).

Question 5

What, if any, are the exceptions to the SOF UCC?

Answer 5

For UCC sale of goods $500+, a contract will be enforceable despite not meeting the SOF requirements if

-there is a contract for personalized goods and has made a substantial beginning in making or procuring the goods, OR

• the buyer has received or accepted the goods, OR
• the seller has received and accepted partial or full payment for the goods, OR
• when both parties are merchants, there is a confirming memo that the party contesting the contract did not object to within 10 days.

Question 6

What are the general exceptions to the SOF?

Answer 6

These include:

• judicial omission of the existence of a contract
• the elements for promissory estoppel are met

Question 7

How does the SOF impact contract modification?

Answer 7

Generally, a contract that, as modified, would fall under the SOF must meet the SOF requirements.

There are UCC exceptions, however.

• if a contract for the sale of goods falls under and meets the SOF requirements, any modification of that contract must be in good faith AND it does not need to be in writing unless it modifies subject matter or quantity terms.
• If a modification for the contract for goods must meet the SOF requirements and does not, the modification acts as a waiver of the original condition and cannot be retracted once detrimentally relied upon.

Note: courts will generally enforce an express condition that modifications must be in writing.

Question 8

What, if any, are the exceptions to the SOF for marriage?

Answer 8

A marriage contract or promise to marry someone does not need to meet the SOF.

Question 9

What are the requirements of a signed writing under the UCC?

Answer 9

Same as for common law (

Question 10

What is a suretyship and when is one enforceable?

Answer 10

A suretyship is an agreement between a guarantor and a creditor that the guarantor will guarantee the debts that a third party (the principal) owes to the creditor.

To be enforceable the suretyship agreement must satisfy the SOF and must have consideration. A suretyship agreement has consideration if:

1. The creditor conditions the loan to the principal on the guarantor’s promise that they will pay if the principal defaults.
2. The guarantor makes the promise to pay the principal’s debts upon default before or when the creditor makes the loan.