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CHAPTER 11

The Statute of Frauds

§11.1 INTRODUCTION

As a general rule, the law gives effect to oral contracts. Although it is almost always a good idea to record a contract (whether in a physical writing or in some other retrievable form) to facilitate proof of the fact and terms of agreement, for many contracts this record is not a prerequisite to validity or enforceability. However, certain types of contract fall outside this general rule and must be written or otherwise recorded and signed to be enforceable. The requirement of a written record for specified types of contracts1 entered the law of England just over 300 years ago, through a statutory enactment during the reign of King Charles II. As originally conceived and as applied until the advent of electronic media, the statute contemplated that writing and signature would be in tangible form on paper. The rapid advance of communications technology has required the adaptation of “writing” and “signature” to take account of communication by other, particularly electronic, media. This change is reflected both in court opinions that recognize the recording and signature of contracts in retrievable electronic form as the legal equivalent of writing and signature on paper, and in state and federal statutes that make electronic signatures effective. (This is discussed further in section 11.3.) Therefore, unless the context indicates otherwise, assume that the words “written” and “writing” include other means of recording.

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