Vail Law: Here’s a look at the ‘statute of frauds’
Vail, CO, Colorado
The word “fraud” conjures up deceit. In fact, “fraud” may be defined as “an intentional perversion of the truth for the purpose of inducing another in reliance upon it to part with some valuable thing belonging to him or to surrender a legal right.”
When you think of fraud, you think of Bernie Madoff or something of the like. Swindlers, con men and Ponzi artists come to mind. Naturally, if I say “statute of frauds,” your mind wanders to the purely wicked, the nefarious. Clearly, a “statute of frauds” must deal with…. well… fraud, right? Well, not so much.
A little background before we leap to logical – if not entirely accurate – conclusions.
First, what is a statue?
There are two grand categories of the law, what’s know as statutory law and what’s know as the “common” law. “Common law” derives from cases tried before the courts. It arises – literally – through “trial” and error and like some exotic Darwinian species adapts and morphs over time.
Statutory law is, on the other hand, legislative law. While it too may adapt over time, statutory law is not directly dependent upon the courts. After going through its partisan gymnastics, when the legislature finally gets around to adopting one law or another, it is encoded as a statue. Of course Court decisions may – and often do – prompt legislative action.
With this in mind, then, let’s return to the subject of this column, the “statute of frauds” which, you’d think, must deal with legislation about fraud. Instead, it’s an exotic species – like a giraffe – that sits within a taxonomic family all its own.
Rather than a statute legislated into being by the states, the statue of frauds derives from an English statute enacted in 1677. It has been adopted, in more or less modified form, in nearly all of the United States.
It holds that no suit or action may be maintained on certain classes of contracts or engagements unless there is a note or memorandum of it in writing, signed by the party to be charged or by his authorized agent.
Broadly speaking, most things – even legal agreements – don’t absolutely have to be in writing. These are referred to trade as “oral contracts.”
Samuel Goldwyn is reputed to have once said that, “oral contracts aren’t worth the paper they’re printed on.” Nonetheless, oral contracts are generally every bit as enforceable as written contracts. Except when they’re not. And there’s another rub. The terms of an oral contract are harder to prove. Often, substantially so.
Which leads us back to the statute of frauds which, in its essence says, “some things – some agreements – to be legally enforceable must be written down and must be signed.”
So what contracts must be in writing? While it varies somewhat state-to-state, the following generally applies:
• Contracts in consideration of marriage.
• Contracts which cannot be performed within one year.
• Contracts for the transfer of an interest in land.
Contracts by the executor of a will to pay a debt of the estate with their own money.
• Contracts for the sale of goods above a certain value.
• Contracts in which one party acts as guarantor for another party’s debt or other obligation.
All of this was, and is, intended to – you guessed it – reduce the risk of fraud. And so it comes full circle. The statute of frauds, while a slippery little beast, is in the final analysis aligned with keeping transactions on the up and up.
Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices in the Vail Valley. His practice areas include business and commercial transactions, real estate and development, homeowner’s associations, family law and divorce and civil litigation. He may be heard on Wednesday nights at 7 p.m. on KZYR radio (97.7 FM) as host of “Community Focus.” Robbins can be reached at 970-926-4461 or at email@example.com.