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What types of Ks require a writing to be enforceable?
- a) Transfers of an interest in real property
- b) Full performance theoretically impossible to complete within one year (if full performance within one year is theoretically possible, no writing is required even if actual performance exceeds one year)
- c) Sales of goods for $500 or more ( ≥ $500) (UCC Article 2)
- d) Leases of goods where the aggregate rental amount is $ 1,000 or more ( lease ≥ $ 1,000) (UCC Article 2A, NY ONLY!)
- e) Suretyships (Exam tip: be sure that there actually is a debt to which the surety may be called to answer)
- f) Contract modifications if the contract as modified is within the SOF
- g) Misc. New York provisions (see separate card)
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Special NEW YORK K provisions that must be in writing to be enforceable
- Assignment of an insurance policy or a promise to name a beneficiary of policy.
- Promise to pay a discharged debt
- Agreement to pay a finder's fee or broker's commission (except to an attorney, auctioneer, or real estate agent)
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If a writing is required for a Sale of Goods (Art. 2), what must it contain?
- Quantity term, and
- Signed ∆ (i.e., must be signed by the party to be charged with breach)
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If a writing is required for the Lease of Goods (Art. 2A, NY ONLY), what must it contain?
- Statement that the K is for a lease
- Quantity
- Duration
- Amount of rental payments
- Signed by ∆ (i.e., the party to be charged with breach of K)
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If a writing is required for K under COMMON LAW, what must it contain?
- All material terms (e.g., who, what, duration, price), and
- Signed by ∆ (i.e., the party to be charged with breach of K)
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NY: Equal Dignities Rule
NY ONLY: An agent's authority concerning real property must be in writing or the principal must ratify.
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EXCEPTIONS to SOF: Real Property
- Interests in real estate don't require a writing if:
- Short-term leases: lease of property of a duration ≤ 1 year,
OR
Part-performance Exception: any 2 of the following is true (i) buyer is in possession of property, (ii) buyer made some payment (need not be full payment), or (iii) buyer made improvements to property.
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EXCEPTION to SOF When Performance Cannot Be Completed Within One Year
- MBE RULE: Lifetime contracts NOT within SOF.
- NY RULE: Lifetime Ks DO fall within SOF. Opposite of MBE.
FULL PERFORMANCE EXCEPTION: Party has already fully performed contract so don't need writing. Part performance is insufficient, but may be able to recover in quasi-contract.
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Exceptions to SOF for Sales of goods for $500 or more (Art. 2)
- 1) Buyer accepts or pays for goods (note, partial payment of a single item does not count)
- 2) Goods are custom-made (not suitable for sale in ordinary course of business)
- 3) Admission of a K in a judicial proceeding (e.g., deposition, testimony)
- 4) Merchant's confirmatory memo (separate card)
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What is the Merchant's Confirmatory Memo exception to the SOF?
- Exception to the SOF requirement for Art. 2 SOG that the writing be signed by the ∆.
- π can use its own signed writing to satisfy the SOF against a non-signing ∆ where ALL the following are true:
- 1) both parties are "merchants"
- 2) the writing claims a prior oral agreement
- 3) the writing is signed and has a quantity, and
- 4) there is no written objection within 10 days
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What is the Suretyship "Main Purpose" exception to the SOF?
It provides an exception to the writing requirement for a surety arrangement
Rule: If the surety's main purpose in becoming a surety was to benefit himself, then no writing is required.
NY Distinction: NY does not recognize the exception, and therefore surety arrangements in NY always require a writing.
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