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"the mortgagees" the vendors are sufficiently identified for the purpose of the statute.
Signatures may be in any medium-ink or pencil, printed or stamped-and even a mark or initials will be sufficient. The only necessary signature is that of the party to be charged or his duly authorized agent; although of course, as a rule, both parties sign. To be a sufficient signature, it must be evident that it is intended to relate to the whole document, although it need not necessarily be at the end, for if the party to be charged has written out the document himself and his name appears in any part of it, that is within the statute. So that where a person drew up an agreement in his own handwriting commencing "I, A.B. agree and his name was not at the end, this was held to be a sufficient signature to satisfy the provisions of the statute; but such a signature is not sufficient for, say, a Will (a matter, of course, outside the present work), where there must be not only the signature at the end, but also the signatures of two witnesses who both sign as having seen the testator sign the Will.
Who may sign the Memorandum ?-If the person who signs the memorandum is an agent it will be a question of fact as to whether he was an agent for the purpose of binding his principal. This will depend on the circumstances; but it is essential that he should sign as a party and not as a witness. It is permissible for a person to be agent for both parties, but if he himself is a party he cannot sign as agent for the other. Auctioneers are agents for both parties in a public sale, and they bind both parties by their signature. They are, in the first place, agents for the vendor; and, on the fall of the hammer, become also agents for the buyer, and this authority cannot be revoked. As a rule such authority does not extend to the auctioneer's clerk; but, under the circumstances of a party assenting expressly or impliedly, he will be bound by the signature of the clerk.
Part-performance. If a contract falling under Section 4 of the Statute of Frauds has been partly performed, such partperformance being clearly attributable to the existence of the contract, then, if the contract is one which might be the subject of a decree of specific performance (e.g., sale of land), the absence of writing may not necessarily prevent an action being brought; but a contract complying with the section or with the Sale of Goods Act may not be varied in its terms by an agreement either oral or in writing which does not itself comply with the statute, although it was held in the case of Morris v. Baron and Co. (1918) that a subsequent parol contract, even if not in writing, may operate as express or implied rescission of the previous contract.
Guarantees.-A guarantee, or the promise to answer for the debt, default or miscarriage of another, must be evidenced by a written memorandum; but, as mentioned above, it is not necessary that a statement of the consideration should appear, although there must be consideration of some kind. [For further discussion on this point, see Chapter 10 (k).]
In the leading case of Birkmyr v. Darnell (1704), such a promise is within the statute only if the other person remains liable, otherwise it is not within the statute and need not be in writing. So if A enters a shop and asks the shopkeeper to supply goods to B, saying " If he does not pay for them I will," here B is primarily liable and remains liable, and A will not be called upon to pay unless B fails to do so. This is a guarantee, and therefore needs to be in writing; but if A had simply asked for goods to be supplied to B and said, " Charge them to me," that is an agreement on A's part to pay and not a guarantee, and does not therefore fall within the statute.
Agreement in consideration of marriage means an agreement having some bearing on the marriage, such as a marriage settlement, and it does not include the actual promise to marry.
Any interest in lands, tenements, and hereditaments is a matter connected with property law, and is therefore not within the province of this work; but it has been held that the section applies to all contracts concerning lands, and not only to contracts for sale. It may be noted, too, that it was decided in Driver v. Broad (1893) that a debenture of a company giving a floating charge "over all property of the company whatsoever," where the property consisted in part of leaseholds, was an interest in lands.
Agreement not to be performed within a year means one which cannot, or which it is intended shall not, be performed on either side within the year; and the mere fact of its being capable of being so performed, if the intention is that it shall not be, is not sufficient to take it outside the statute; but it is otherwise if it is to be performed by one party within the year, so that where, as in Donnellan v. Read (1832), A, a tenant of land, verbally promised that if his landlord would lay out £50 on improvements he would pay £5 a year more rent for the next fourteen years, it was held that as the £50 was to be laid out at once, that is, the whole of the agreement by one party to be carried out within the year, the statute did not apply and writing was not necessary. A contract for a definite period of more than a year, but which is subject to a clause by which it can be determined within the year by notice by either party, is within the section; but not
(k) See post, p. 225.
one which is for an indefinite period which may or may not come to an end within the year, according to circumstances, as was decided in the case of Hanau v. Ehrlich (1911). If the engagement of a servant is to commence immediately and continue for one year, there is no necessity for the writing as evidence; but if to commence at any later date and to continue for a year certain, the contract falls within the statute. In the case of Smith v. Gold Coast and Ashanti Explorers, Ltd. (1903), it was decided that no memorandum or note in writing was necessary where the employment was to commence on the day following that upon which the agreement was made, as the law takes no account of fractions of a day; but it is necessary where the employment is to commence on any later day.
Agreements for the sale of goods cannot be enforced unless made in accordance with this section, that is, if the agreement is not to be performed within the year, even though there has been "acceptance and receipt" of part of the goods under Section 4 of the Sale of Goods Act. (1)
On a point of procedure, it may be noted that the Statute of Frauds must be specially pleaded where it is intended to rely on it as a defence.
The memorandum of agreement, as in the case of any other agreement under hand, if not otherwise specifically charged with duty, must be stamped with a sixpenny stamp, which must be cancelled by the party first signing the agreement. If stamped afterwards it must be by impressed stamp within fourteen days of the date of execution. Certain agreements, however, are exempt from stamping :
(1) Where the subject value is less than £5, or is incapable of pecuniary measurement.
(2) Contracts for the hire of labourers, artificers in manufactures, or menial servants.
(3) Contracts relating to the sale of goods, wares, or merchandise.
As already stated, unless a contract is under seal there must be consideration, the legal maxim being, Ex nudo pacto non oritur actio-(out of a bare agreement no action arises). Consideration is of two kinds, good and valuable. Good consideration is natural love and affection, but good consideration is not sufficient in itself to support a simple contract, which needs valuable consideration. This has been defined in the case of Currie v. Misa (1875) as "some right, interest, profit or benefit (1) See post, p. 131,
accruing to one party, or some forbearance, detriment, loss or responsibility given, suffered or undertaken by the other " in other words, a quid pro quo, that is, some equivalent given in return for a promise made, to carry it outside the sphere of a gratuitous promise. Ordinarily, such equivalent is the payment of money for goods or for doing certain work. There are several points to bear in mind in connection with consideration, viz.,
(1) Consideration need not be adequate, but it must be real. (2) It must proceed from the other party to the agreement. (3) It must be something that can, if necessary, be enforced by the law, that is to say, it must not be vague and intangible in character.
(4) The consideration must be legal.
(5) It must not consist of an act which the party is already under a legal obligation to perform.
(6) It must not be past consideration, with certain slight
Adequacy of Consideration.-In the case of Bills of Exchange, it is always presumed that a valid consideration exists, but this may be rebutted (m) and such consideration may consist of any consideration sufficient to support a simple contract or of any antecedent debt or liability. It was laid down in Bolton v. Madden (1874) that "the adequacy of the consideration is for the parties to consider at the time of making the agreement, not for the court when it is sought to be enforced." So that a contract will not be set aside by the courts on account of inadequacy of consideration unless it is so grossly inadequate as to raise a presumption of fraud. The contract will be enforced if the promise is either for the benefit of the defendant or to the trouble or prejudice of the plaintiff; so that, for instance, any of the following would be regarded as adequate consideration:a cash payment; compromising an action or forbearing to sue on request; giving up a claim which, although honestly made, could not have been enforced; or, as laid down in Carlill v. Carbolic Smoke Ball Co. (1893), an inconvenience suffered by one party at the request of the other. (n)
But, although consideration need not be adequate, it must be real; so that a promise to do what the promisee can already legally demand is not real, but, if at the request of a third party one of the parties carries out his promise this may, as between himself and the third party, be sufficient as consideration. In the case of Foakes v. Beer (1884) there was an agreement not under seal between the judgment debtor and the judgment
(m) See post, p. 108.
creditor whereby on the debtor's paying so much down on account of the judgment debt and the costs, and on condition of his paying the balance by instalments, the creditor agreed not to take any proceedings on the judgment. It was held that the agreement was nudum pactum, being without consideration. So, too, in Crocker v. Crocker (1920), where a husband made a written offer to his wife not to proceed with divorce proceedings which he had contemplated against her, it was held that there was no evidence of consideration moving from the wife, and the offer was not therefore binding on the husband.
Payment of a smaller amount is not in itself sufficient consideration to discharge the payment of a larger amount, but if a Bill of Exchange be given, or in fact anything other than legal tender, or if the smaller sum be paid by a third party, or if it be paid at a date before that on which the larger sum was due, this would be sufficient consideration-and the payment of a smaller sum may operate as satisfaction if a receipt is given under seal, for this, being a deed, would operate by way of estoppel and requires no consideration to support it. It was held in Day v. McLea (1889) that if a debtor remits a smaller sum than a larger amount, which he disputes, "in full settlement" of the creditor's demand, the creditor may give a receipt "on account" and still sue for the balance, for the fact that the creditor retained the cheque is not in itself sufficient evidence of accord and satisfaction (o). It might appear that a composition with creditors is not supported by consideration; but actually there is the mutual surrender by the creditors of their claims, and this would not therefore be the payment of a smaller sum for a greater.
Consideration must proceed from the promisee.-If A contract with B to supply goods at C's expense where C is not a party to the contract, there is no contract at all; for C could not, unless he be a party, be forced to pay for goods delivered to B. The consideration, in this case the purchase price, must move to A from B, the other party to the agreement.
Consideration must not be vague or indefinite.-It must be of such a nature as to enable the Courts to arrive at a definite conclusion as to what the parties have undertaken, and the degree to which they have incurred obligation; e.g., a promise to pay such remuneration as shall be deemed right" will not be valued by a Court; and a promise "not to bore" another person was held to be too vague to form consideration for a contract. Legality of Consideration.-Consideration must be legal, that is to say, it must not be
(o) See post, p. 59.