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GAZETTE
APRIL 1980
When is a Contract —
An Addendum
By John F. Buckley
Since the publication of "When is a Contract" some
further Court decisions on the subject discussed there
have been given and the writer has delivered himself of a
lecture on the topic to a Joint Meeting of the Dublin
Solicitors' Bar Association and the General Practices
Section of the Royal Institution of Chartered Surveyors,
which led to a most useful and enlightening (for the writer
at least) question and discussion session. The contribu-
tion of Ian French, F.R.I.C.S., to the Joint Meeting
appears earlier in this issue and the summary of the
writer's talk and of the question and discussion session
may be a useful addendum.
In view of the confusion of thought which abounds in
all discussions on the topic, it may be salutary to refer
back to the reasons for the introduction of the Statute of
Frauds - what was the mischief it was intended to
counter?
The Statute introduced a rule of evidence - not a piece
of substantive law - "for the prevention of many
fraudulent practices which are commonly endeavoured to
be upheld by perjury and subornation of perjury" at a
time when neither the Plaintiff nor the Defendant were
allowed to give evidence in an action to set up a contract.
Like many well meaning pieces of legislation it has not
always achieved the aims of its promoters. Professor
Farrand has referred to "nearly three centuries of general
abuse and judicial evasion". Sir Raymond Walton says
ft may be doubted however, whether in the long run, it
did not do more to abet frauds than to prevent them, as it
enabled unscrupulous vendors or purchasers to resile
from deliberate, but oral bargains".
It may be helpful to consider the actual wording of
Section 2 of the Statute of Frauds (Ireland) 1695 so far as
•t relates to contracts for the sale of land. ". . . no action
shall be brought whereby to charge . . ., any person . . . of
any contract or sale of lands, tenements or heredita-
ments, or any interest in or concerning them . . . unless
the agreement upon which such action shall be brought,
°r some memorandum or note thereof, shall be in writing,
and signed by the party to be charged therewith, or some
other person thereunto by him lawfully authorised."
If is clear that the memorandum must record a
completed agreement and it is common to refer to the
essential terms as "the 4 Ps":
(1) the Parties;
(2) the Property;
(3) the Price;
(4) the other Provisions.
(1) The Parties must be ascertainable not necessarily
stated, but not so vague as merely "the Vendor" or "the
Owner";
(2) The Property need only be so described as to be
identifiable - even "my house" may be sufficient. The
interest being sold need not be defined. It will be taken
that an unencumbered freehold is implied, unless the
Plaintiff knew that some lesser interest was in sale
(Timmins v. Moreland Street Property Company (1958)
Ch. 110);
(3) The Price, or the method of its ascertainment, must
be stated - "at a fair price" - "at a reasonable
valuation" have been held to be sufficient.
(4) The other Provisions - only if there are no other
provisions agreed can the omission of them leave the
memorandum in order. In Kelly v. Park Hall School no
date for the signing of the contract was agreed and the
Court held that this was unnecessary.
The Court will be willing to imply terms into agree-
ments, such as that vacant possession will be given on
completion; or that completion must take place within a
reasonable time; but there is one significant exception to
what can be implied and that is where the agreement is
alleged to be one for the taking of a lease. In such a case
the date of commencement of the lease must be agreed or
ascertained. The Supreme Court, in O'Flaherty v. Arvan
Properties, has recently confirmed this.
It is possible for the parties setting up the agreement to
waive certain provisions. If the memorandum were
complete without a provision exclusively benefiting the
Plaintiff (and not a material one), the Plaintiff can waive it
and the memorandum will stand.
If the memorandum is complete without a stipulation
to the detriment of the Plaintiff, he may submit to it and
the memorandum will stand.
The equitable procedure known as rectification is avail-
able if a term has been omitted from the agreement by
common mistake.
The equitable doctrine of part performance may be
invoked by a party, even where there is no note or
memorandum in writing but, before this doctrine can
operate, the following conditions must apply.
(1) there is proper parol evidence of the agreement;
(2) the contract is one which can be enforced by the
Court;
(3) the acts of part performance must be such as to
render it a fraud in the defendant to take advantage of
an oral contract;
(4) the acts of part performance on the Plaintiffs part
must be referable to some contract and may be
referable to the one alleged. Acts of part performance
which have been held to be sufficient are the taking of
possession by the Plaintiff, or the carrying out of
substantial alterations by the Plaintiff. Until recently,
it was firmly believed that the mere payment of
money was not of itself a sufficient act of part
performance, but there are signs that this doctrine
may no longer be as firm as it was thought to be.
On the question left unanswered between the some-
what conflicting decisions of the Court of Appeal in
England in Law v. Jones and Tiverston Estates v. Wear-
well, Mr. Justice Hamilton, in his judgement in the case of
Mclnerney v. Roper, interpreted the judgement of Mr.
Justice Henchy in Kelly v. Park Hall School as confirm-
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