PJC Business

C ONTRACTS

PJC 101.35

PJC 101.35 Defenses—Statute of Frauds (Comment)

Agreements that must be in writing. It is a defense to the enforcement of certain contracts that the promise or agreement was not made or reflected in a writing signed by the party against whom enforcement is sought. See Tex. Bus. & Com. Code §26.01(a)(1), (a)(2) (“A promise or agreement [described in this statute] is not enforceable unless the promise or agreement, or a memorandum of it, is in writing; and signed by the person to be charged with the promise or agreement or by someone lawfully authorized to sign for him.”). Contracts that require a writing include but are not limited to a promise by an exec utor or administrator to answer for a debt due from the estate; a promise to answer for the debt of another; an agreement made on consideration of marriage; a contract for the sale of real estate; a lease of real estate for a term longer than one year; an agree ment that is not to be performed within one year of the date of making the agreement; a promise to pay a commission for an oil or gas lease, royalty, or mineral interest; and a promise of cure relating to medical care by a health-care provider. See, e.g. , Tex. Bus. & Com. Code § 26.01(b). Electronic satisfaction. Regarding the electronic satisfaction of the requirement for a writing, see the Texas Uniform Electronic Transactions Act, chapter 322 of the Texas Business and Commerce Code. Tex. Bus. & Com. Code §§ 322.001–.021. Legal question. Whether a contract falls within the statute of frauds is a legal question. Bratcher v. C.K. Dozier , 346 S.W.2d 795, 796 (Tex. 1961) (holding that duration of a contract is a legal question and not an issue for the jury to decide). But see Metromarketing Services, Inc. v. HTT Headwear, Ltd. , 15 S.W.3d 190, 196 (Tex. App.—Houston [14th Dist.] 2000, no pet.) (stating that if extrinsic evidence is dis puted about whether an agreement can be completed within one year and thus does not fall within statute of frauds, what constitutes reasonable time for completion is ques tion of fact). The defense must be raised, or it is waived; a contract subject to the statute of frauds is voidable, not void. See Tex. R. Civ. P. 94 (requiring parties to plead statute of frauds as an affirmative defense); Crill, Inc. v. Bond , 76 S.W.3d 411, 420 (Tex. App.—Dallas 2001, no writ) (holding that agreement subject to statute of frauds could not be chal lenged by third party, as it was voidable and not void). Exceptions to writing requirement. Equitable remedies exist for enforcing a promise that is otherwise unenforceable because of the statute of frauds, where appli cation of the statute of frauds would be unfair due to partial or full performance of the oral agreement or detrimental reliance. These exceptions can involve questions of fact. Adams v. Petrade International, Inc. , 754 S.W.2d 696, 705 (Tex. App.—Houston [1st Dist.] 1988, writ denied). Examples include the main purpose doctrine (see PJC 101.8); promissory estoppel (see PJC 101.41); and quantum meruit (see PJC 101.42).

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