American Contract Law for a Global Age, 2017a

endeavoured to be upheld by Perjury and Subornation of Perjury”—which became
known as the Statute of Frauds. It required that certain kinds of transactions—those
of most interest to the powerful landowners who dominated the Parliament of the
day—be 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 writing. 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 family—who made up the House of Lords and most of
the House of Commons—required that these sorts of contracts be in writing to be
enforceable.
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
______________________________________________________________________________
260 CHAPTER V: CONTRACT DEFENSES