>> Don't forget that a contract is still a contract without
>> a written memorialization ...
>
> What about the statute of frauds, which requires a
> writing of contracts above a certain amount of money ?
c b, ITYWAL?
^^^^^ CB: Don't know this one (smile)
^^^^^^^
Statue of Frauds is not a defense in the case of Partial Performance. That is: if I pay you for a while and then discover the paperwork doesn't exist, I can't use the amount of money involved to completely nullify the contract.
^^^^^ CB: Correct . See "Exceptions" below * I'm just thinking that it is probably not as high as 99% of actual contracts that are not within exceptions like this to the Statute of Frauds. But you have more experience in actual contracts, maybe. I think the Statute of Frauds applies to all transactions in real property.
Must a Mortgage Be in Writing?
Wait stop the presses. I just found this in the wikipedia item
"Interestingly, with respect to securities transactions, the Uniform Commercial Code (section 8-113) has abrogated the statute of frauds. The drafters of the most recent revision commented that "with the increasing use of electronic means of communication, the statute of frauds is unsuited to the realities of the securities business."
Mortgages are secured transactions ! Je pense.
I think this means it still must be electronically communicated. Can't be completely oral.
^^^^^
[ Again, IANAL, but I think where this would come into play is if I drunkenly told you at the bar last night that I would buy your 1978 Chevy Van for $80M, you couldn't force performance the next day because you didn't get it in writing ... SoF would be a defense for me. So that's an interesting bit of old English Law, but it's not applicable here ]
^^^^^ CB: Well, even if sober, if we agree to buy/sell a car for $1000.00 (or whatever the amount which is the lower limit triggering the statute of frauds in the state where we transact), it must be in writing to be enforceable in court ( as long as I don't make partial payment, or cause it to fit some other exception *). SoF is not obsolete or archaic law. It's in the Uniform Commercial Code.
^^^^^^^
We're back where I said -- the banks have to try harder to make the case that they can foreclose due to lack of payment in the present, but the homeowner isn't going to get any money back, and it's quite likely the foreclosure will eventually go through anyway, because getting the paperwork in order isn't impossible in these cases, just potentially expensive.
^^^^^ CB: Yes. It will be interesting to see what happens. I think there may be a bit more of a problem than you say to get the chain of assignments in order, given the fly by night nature of a lot of the middle people in these transactions, but Congress already passed something "under cover of darkness" to try to slur this over for the banks. Congress can do that, by the way.
^^^^^^
Not too expensive to give up on a foreclosure, though.
However: score one for Obama for vetoing the end-run attempt.
/jordan
* http://en.wikipedia.org/wiki/Statute_of_frauds
Exceptions
An agreement may be enforced even if it does not comply with the statute of frauds in the following situations:
* Merchant Confirmation Rule, under the UCC. If one merchant sends a writing sufficient to satisfy the statute of frauds to another merchant and the receiving merchant has reason to know of the contents of the sent confirmation and does not object to the confirmation within 10 days, the confirmation is good to satisfy the statute as to both parties.
* Admission of the existence of a contract by the defendant under oath,
* Part Performance of the contract. The agreement is enforceable up to the amount already paid, delivered, etc.
* The goods were specially manufactured for the buyer and the seller either 1) began manufacturing them, or 2) entered into a third party contract for their manufacture, and the manufacturer cannot without undue burden sell the goods to another person in the seller's ordinary course of business-- for example, t-shirts with a baseball team logo or wall-to-wall carpeting for an odd-sized room.
* Promissory Estoppel can be applied when the charging party detrimentally relies on the otherwise unenforceable contract.