The Statute of Frauds

AuthorFranklin G. Snyder, Mark Edwin Burge
Unit 14
Part Two
The Statute of Frauds
The thing that lawyers call the statute of frauds is actually misnamed. In the
United States, hundreds upon hundreds of statutes of frauds are in existence because
“statute of frauds” is the term that has come to be used for any requirement that
certain legal documents be in writing to be effective. The rules on the books today
(and the vast majority of them are in the form of a statute) do, however, all descend
from a single act of Parliament that we may correctly call the Statute of Frauds, and
it is the starting point to understand writing requirements in American contract law
Begin When Writing Was Rare. In the early days of English lawthe first few
hundred years after the Norman Conquest, relatively few contracts were in writing
because relatively few people could write. In Property class, you may have heard
about conveying land by livery of seisin, the transfer or formally handing over a piece
of the sod in front of witnesses. In an age when almost no laymen (or nobles, for that
matter) could write, most deals were oral.
Over time, however, growth in trade and education meant that writings
became more common and important, and more people sought to memorialize major
transactions with a writing. This was helped by a system of creating deeds that could
be recorded, so that people (especially the tax collectors) could tell who owned what.
Writing had obvious advantages over oral transactions, since the latter depended on
memory (which could be faulty) and on the honesty of the witnesses (which was not
always perfect). Because of the intricacies of British judicial procedure, a class of
professional witnesses would actually hang around courts of law waiting for work.
They would willingly swear to anything, so long as they were paid for doing so. This
situation created fertile grounds for fraud.
Parliament Acts. In 1677, Parliament passed (with the assent of King Charles
II) “An act for prevention of many Fraudulent Practices which are commonly
endeavoured to be upheld by Perjury and Subornation of Perjury”—which became
known as the Statute of Frauds. It required that certain kinds of transactionsthose
of most interest to the powerful landowners who dominated the Parliament of the
daybe put in writing or else be unenforceable.
Land, for example, was the principal measure of wealth in England. A tenant
farmer could claim that his local landlord had promised to sell him the land he farmed
for £100. The farmer could bring in paid witnesses to swear to the deal, and the
landlord might lose. Landlords wanted these transactions in writi ng. Similarly, the
family structure of the upper classes meant that in important families there would
be a single head who, through primogeniture, would own most of the family property.
This means that anyone owed anything by a member of the family would always try
to seek some way of holding the rich head of the family liable. Thus, someone who
had loaned money to a younger son might try to prove that the head of the family had
agreed to stand surety for son’s debts, which again could easily be proved by oral
testimony. Or when the head of the family was appointed executor for a junior
member of the family who died in debt, the decedent’s creditors might claim that the
head of the family had promised to pay the creditors out of the head’s own large
fortune, rather than the deceased’s own small estate. Similarly, in a large household
with often hundreds of employees, it was easy for a butler or gardener to claim that
the head of the family had promised him a lifetime contract. Finally, given that most
marriages in upper-class families were arranged, and were accompanied by complex
financial arrangements, it was not uncommon for the family of the bride or groom to
claim that the other party’s family had orally promised to provide the new couple
with some estate or with some amount of money.
Thus, these heads of the familywho made up the House of Lords and most of
the House of Commonsrequired that these sorts of contracts be in writing to be
The English Statute Comes to America. The first American states received
the original English statute of frauds because they were English colonies when the
law was passed. Later states legislatively or judicially adopted the rules from these
first colonies. Since 1677, the idea of a writing requirement for certain contracts has
been extremely popular with legislatures, who have crafted thousands of specific
requirements that certain legal documents be put in writing to be enforceable.
The Statute FOR Frauds? A requirement of a writing sometimes does indeed
keep people from being bound by contracts to which they never agreed, and in that
regard, statutes of frauds live up to their name and prevent fraud. Consider, however,
that the writing requirement sometimes allows a party who actually has agreed to a
contract to escape liability because the agreement was not reduced to a writing. Even
if fifty eyewitnesses could accurately testify as to what the promisor orally contracted
to do, the contract would not be enforceable. Judges eventually found it irksome that
a party could escape liability on this kind of “technicality” when all the other

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