페이지 이미지
PDF
ePub

CHAPTER IV.

OF THE FORM OF A SIMPLE CONTRACT, AND THE STATUTE

OF FRAUDS.

[ocr errors][ocr errors][merged small][merged small]
[ocr errors]

SECT. 1.–Form of Simple Contract.
W ng when As a general rule, a simple contract need not be reduced into
necessary.

writing. Where the law makes no special provision to the
contrary-where written evidence of the contract or promise is
not expressly required—such contract or promise is valid, though

it be verbal only. Land,

By the Statute of Frauds, leases for 3 years or more, contracts for
Marriage,
Guarantee, the sale of land, or in consideration of marriage, or to answer for the
Executorship. debt of another, or to do something after the expiration of a year, or

to impose a personal liability on an executor or administrator (a); Ships. by the Merchant Shipping Act, 1894, contracts for the sale or

transfer of registered ships, or shares therein (6); by the Stamp Act, Copyright. 1891, contracts of sea insurance (c); by the Copyright Act, 1842, Sale of goods. sale of copyright (d); by the Sale of Goods Act, 1893, s. 4, a contract

for the sale of goods of the value of 101. or upwards, and by the Acknowledg. Statute of Frauds Amendment Act, 1828 (e), the promise of a ment of barred debt. debtor to pay a debt barred by the Statute of Limitations ; must

in each case be in writing. Bill of

So by the Bills of Exchange Act, 1882, s. 3, giving effect to the exchange.

custom of merchants, bills of exchange and promissory notes, and
other negotiable instruments must be reduced into writing, and

signed by the parties thereto. Statement, in

Where the contract is required by the Statute of Frauds to be writing, of consideration in writing, it is essential—except in the case of guarantees " to for contract.

answer for the debt, default or miscarriage of another," which are

(a) 29 Car. 2, c. 3, s. 4, p. 76, post. (d) 5 & 6 Vict. c. 45, s. 13 ; Leyland (0) 57 & 58 Vict. c. 60, s. 24.

v. Stewart (1876), 4 Ch. D. 419. (c) 54 & 55 Vict. c. 39, s. 93.

(@) 9 Geo. 4, c. 14, s. 1.

Contract

specially excepted by the Mercantile Law Amendment Act, 1856, Ch. IV. s. 1. 19 & 20 Vict. c. 97, s. 3 (f)—that the consideration should Form of the appear upon the face of the document by which it is to be proved; (Generally). because the intention of that statute was, that the agreement should written be signed by the party chargeable therewith (g). Nor is this rule statement of

consideration. confined to cases within the Statute of Frauds; for, even where the agreement is unnecessarily in writing, still, if the parties agree that a particular instrument shall contain the terms of the contract, parol evidence cannot be given to add to or diminish from those terms (h); and it is, therefore, necessary that such instrument should contain in itself all those matters which are essential to give it validity as an agreement not under seal.

Bills of sale, by sect. 8 of the Bills of Sale Act, 1878, Bills of sale. Amendment Act, 1882, 45 & 46 Vict. c. 43, must truly set forth the consideration for which they were given, and otherwise are void in respect of personal chattels contained therein (i).

So in order to constitute a valid verbal or written agreement, Certainty the parties must express themselves in such terms that it can be required. ascertained to a reasonable degree of certainty what they mean; and if they do not, the agreement will be void (h); for neither the Court nor a jury can make an agreement for the parties. Thus, a contract for a lease, which does not show the length of the proposed term, is insufficient (I).

There are cases, however, in which, although a particular expression in a contract be of uncertain meaning, the Court will still give effect to the clause in which the uncertain expression occurs. And, accordingly, where an agreement for the exchange of advowsons contained a stipulation, that the commission of the agent who negotiated the agreement should be paid “one-third down, the remaining two-thirds when the abstract of conveyance was drawn out :” the Court held, that although it was open to argument, whether the expression “abstract of conveyance meant "abstract of title," or "draft conveyance;'

conveyance;” yet, as neither the one nor the other had ever been delivered—however uncertain the agreement might be in this respect-there was no uncertainty in the conclusion, that the period had not arrived at which the plaintiff was entitled to claim his commission (m).

(f) For law before that Act, see Wain v. Wariters (1804), 5 East, 10 ; 7 R. R. 645.

(g) See per Tindal, C.J., Laythoarp V. Bryant (1836), 3 Scott, 238, 249.

(h) Per Parke, B., Lockett v. Nicklin (1848), 2 Exch. 93, 97 ; Eden v. Blake (1845), 13 M. & W. 614, 618.

(i) For very numerous cases on this

enactment, or sect. 8 of the Act of 1878,
for which it is substituted, see Chitty's
Statutes, Vol. I., tit. “Bill of Sale.'

(k) See Cooper v. Hood (1858), 28 L. J.,
Ch. 212; Guthing v. Lynn (1831), 2
B. & Ad. 232.

() Bayley V. Fitzmaurice (1857), 8 E. & B. 664.

(m) Alder v. Boyle (1847), 4 C. B. 635.

Contract

CH. 1V, S. 1. But whether the agreement be in writing, or oral, or be under
Form of the seal, it is a clear rule that no particular or technical form of
(Generally). words is required by law, or need be adopted, to give it effect (n).
No particular If the intention of the parties can be collected from the words
form of words used, that is sufficient; and it is unimportant what the form of
required.

words may be, or that the parties have expressed themselves in
ungrammatical terms. As Lord Esher, M.R., remarked of a
marine policy," to say that the language of these Lloyd's policies

can be construed according to strict grammar, is, as has been Grammar. often observed (o), impossible. The phraseology used in them is

in many respects regardless of grammar; but the meaning of it
has been understood for many years among shipowners and
mercantile men in a certain sense. Still one must examine
the language of this memorandum or warranty, and construe
it, having regard, as far as possible, to the ordinary rules of
grammar" (p).

SECT. 2.- The Statute of Frauds.

(a) Requirement of Signed Memorandum.
The Statute The Statute of Frauds, 29 Car. 2, c. 3, " for prevention of many
of Frauds.

fraudulent practices commonly endeavoured to be upheld by
perjury and subornation of perjury,” requires that the various
agreements mentioned therein shall be reduced into writing, and
that such writing shall be signed by the party to be charged

therewith or by his agent. Leases and

The 1st, 2nd, and 3rd sections of the Statute of Frauds
surrenders,
sects. 1-3. l'equire a writing signed by the parties or their agents authorised

in writing, for the creation of any lease at a rack rent for three
years or more, and a writing signed by the party assigning or
surrendering, or by his agent authorised in writing, for the making
an assignment or surrender of any lease or uncertain interest, not

being a copyhold interest, in land (2). Sect. 4.

The 4th section provides that (r)Personal liability of “No action shall be brought, -whereby to charge any executor or adminisexecutor

trator upon any special promise to answer damages out of his own estate (8) ; GuaranteeContract in

(n) See Connock v. Jones (1849), 18 is here followed, but not the numbering consideration L. J., Ex. 204.

of the sections. The 4th section is there of marriage

(0) See, c.g., per Buller, J., in Brough numbered as here, but the 17th section Sale of land- v. Whitmore (1791), 4 T. R. 210.

is there numbered “ 16.” The section Contract

1

!

1

(p) Price & Co. v. A1 Ships Small commonly numbered “16," but numbered beyond year. Damage Ins. Company (1889), 22 Q. B. D. in the Revised Statutes “17,” is repealed 580, C. A.

by the Statute Law Revision and Civil
(9) See post, Ch. XII.

Procedure Act, 1881.
() The text of the Revised Statutes (8) See post, Ch. IX., sect. 10.

!

or whereby to charge the defendant upon any special promise to answer for Ch. IV. 8. 2. the debt, de fault, or miscarriages of another person (t); or to charge any Form of the person upon any agreement made upon consideration of marriage (u); or upon

Contract

(Statute of any contract or (0) sale of lands, tenements, or hereditaments, or any interest in

Frauds). or concerning them (a); or upon any agreement that is not to be performed within the space of one year from the making thereof (y); unless the agreement upon which such action shall be brought, or 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.”

The repealed 17th section, in terms almost exactly following Contract for those of the 4th as to the kind of writing required, when of price of 102

sale of goods required at all, provided that (2)—

or upwards. "No contract for the sale of any goods, wares, or merchandizes for the price of ten pounds sterling or upwards shall be allowed to be good, except the buyer shall accept (a) part of the goods 80 sold, and actually receive the same, or give something in earnest to bind the burgain, or in part of payment, or that some note or memorandum in writing of the said bargain be made and signed by the parties to be charged by such contract or their agents thereunto lawfully authorised.

The Sale of Goods Act, 1893, 56 & 57 Vict. c. 71 (6) has Sale of Goods

Act. repealed sect. 17 of the Statute of Frauds and the amending sect. 7 of 9 Geo. 4, c. 14, and by sect. 4 re-enacted them in slightly varied terms and with an added definition as follows:

“(1) A contract for the sale of any goods (which term by sect. 62 includes all chattels personal other than things in action and money and in Scotland all corporeal moveables except money; also emblements, industrial growing crops, and things attached to or forming part of the land which are agreed to be severed before sale or under the contract of sale'] of the value of ten pounds or upwards shall not be enforceable by action unless the buyer all accept part of the goods so sold and actually receive the same, or give something in earnest to bind the contract or in part payment, or unless some note or memorandum in writing of the contract be made and signed by the party to be charged or his agent in that behalf.

(2) The provisions of this section apply to every such contract, notwithstanding that the goods may be intended to be delivered at some future time, or may not at the time of such contract be actually made, procured, or provided, or fit or ready for delivery, or some act may be requisite for the making or completing thereof, or rendering the same fit for delivery.

(3) There is an acceptance of goods within the meaning of this section Definition of when the buyer does any act in relation to the goods which recognises a pre- “acceptexisting contract of sale, whether there be an acceptance in performance of

ance." the contract or not.”

(t) See post, Ch. XVII.
(u) See post, Ch. XVIII.

(v) In the marginal notes (which are no part of a statute-see Sutton v. Sutton (1883), 22 Ch. D., at p. 513) of the Statutes of the Realın, and of the 1st and 2nd editions of the Re sed Statutes, “contract for" occurs, but in the Parliament Roll both at the House of Lords

and in the Record Office, and in a MS.
copy of the Bill, the word is clearly “or,"
not * for."

(sr) See post, Ch. XI.
(y) See post, p. 78.
(2) See note (r), p. 76.

(a) See Taylor v. Smith, [1893] 2 Q. B.
65, C. A.

(6) See post, Ch. XIII.

CH.IV. S. 2. Contracts for the sale of goods of the value of 101. or upwards,
Form of the and other contracts required to be in writing and signed, are dealt

Contract
(Statute of with in specific chapters elsewhere (see Chaps. XI., XIII., XVI.,
Frauds).

XVII., and XVIII.). Here it will be convenient to deal with

(b) Agreements not to be Performed within a Year.

What agree-
ments are
“ not to be
performed
within a
year.”

The 4th section of the Statute of Frauds requires a writing signed by the party to be charged for all contracts, the complete performance whereof is, of necessity, to extend beyond the space of a year ; the rule being, that where the agreement distinctly shows, upon the face of it, that the parties contemplated its performance to extend over a longer period than one year, the case is within the statute (c). Accordingly, the provisions of the statute render a verbal contract void, if it appears to have been the understanding of the parties at the time, that it was not to be completed within a year, although it might be and was, in fact, in part performed within that period. (All the recent cases may be found in the notes on Peter v. Compton in Smith's Leading Cases, Vol. I. of ed. 11, published in April, 1903.)

Thus, a verbal agreement to become a subscriber to the “ Boydell Shakspeare ”—being a series of prints, to be published in numbers—an undertaking which, in the contemplation of the parties, could not be performed or brought to a close for several years, was held to be void within the statute (d).

So, an agreement for the services of a clerk, with a stipulation to pay him a salary at the following rates, viz.: "for the first year, 501. ; for the second, 901.; for the third, 1101.; for the fourth, 1301.; and 1501. for the fifth and following years ” he might remain in the employment, is within the statute, and must be put in writing (e). So, an agreement for a year's service at a future day(s), even for a year from the day after the agreement (g), and an agreement to let a chattel for three years at a quarterly rent (h) are within the statute.

The date of commencement of a service and also its character must be stated in the memorandum, to satisfy the statute (i).

And the mere fact that the contract is defeasible, and that it may be defeated or put an end to within the year, does not prevent

Date.

Defeasible contracts.

[ocr errors]

(c) See per Tindal, C.J., Souch v. Strawbridge (1846), 2 C. B. 808, 815.

(d) Boydell v. Drummond (1809), 11 East, 142 ; 10 R. R. 450.

(e) Giraud v. Richmond (1846), 2 C. B. 835.

(f) Bracegirdle v. Heald (1818), i B. & Al. 722 ; Snelling v. Lord Hunting.

field (1834), 1 Cr., M. & R. 20.

(g) Dollar v. Parkington (1901), 84 L. T. 470, per Darling, J.

(1) Milsom v. Stafford (1898), 80 L. T. 590, C. A.

(i) Alcxander's Timber Co., In re (1901), 70 L. J., Ch. 767, and p. 80, infra.

« 이전계속 »