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October 23, 2008

The Statute of Frauds: What is a "writing"?

I teach property, and of course one topic we cover is the statute of frauds. Generally, a state will require contracts for the sale of land to be "in writing." What is interesting to me is the split on what "writing" means. Some courts interpret "writing," for example, to require that the writing must clearly describe the land, without reference to any extrinsic evidence; others hold that so long as there's some writing, extrinsic evidence is almost always admissible to firm up which land is in issue; finally, others adopt a middle interpretation, holding that the description has to be reasonably clear (an amorphous test), and if so it's a "key" that opens the door to extrinsic evidence.

It's interesting that even at this very basic, ancient level, we have splits. I wonder if anyone's ever traced them back to the sources -- policy, purpose, (can't be textual), or what...

October 23, 2008 in Current Affairs | Permalink

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