American Contract Law for a Global Age, 2017a

Unit 14
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CONTRACT DEFENSES
Part Two
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The Statute of Frauds
FOCUS OF THIS UNIT
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
today.
Begin When Writing Was Rare. In the early days of English law—the 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
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UNIT 14: THE STATUTE OF FRAUDS 259