Statute of Frauds: Contracts That Must Be in Writing

The statute of frauds is a state law requiring certain categories of contracts to be in writing and signed by the party to be charged. The doctrine traces to the English Statute of Frauds of 1677 and survives in some form in every U.S. state, primarily codified in the Uniform Commercial Code § 2-201 for sales of goods and in state statutes for other categories. The statute is an affirmative defense: a defendant who pleads it in the answer may defeat a contract claim that depends on an unwritten agreement falling within a covered category. Understanding which contracts must be written, what writing satisfies the statute, and which exceptions apply is essential for any contract drafting or litigation.

Categories of Contracts Within the Statute

Category	Mnemonic	Source
Marriage contracts (consideration of marriage)	M	State statute
Contracts not performable within one year	Y (year)	State statute
Land or interest in land	L	State statute
Executor or administrator personal liability	E	State statute
Goods of $500 or more	G	UCC § 2-201
Suretyship (promise to answer for another's debt)	S	State statute

The traditional teaching mnemonic "MY LEGS" captures the six categories.

What Writing Satisfies the Statute

The statute does not require a formal contract. The Restatement (Second) of Contracts § 131 and UCC § 2-201 require only a writing that (1) is signed by the party to be charged, (2) reasonably identifies the subject matter, (3) indicates that a contract has been made, and (4) states essential terms (parties, subject, quantity for goods). A writing can be informal and comprise multiple documents read together. Email signatures, electronically signed documents, and even text messages have been held to satisfy the statute under E-SIGN and the Uniform Electronic Transactions Act when the parties intended to authenticate the writing. The Supreme Court of New Jersey held in Conley v. Conley and similar cases that a series of emails can collectively satisfy the statute provided the essential terms are present.

Exceptions That Save Unwritten Contracts

• Part performance. In land contracts, partial payment plus possession or improvements may take the contract outside the statute.
• Promissory estoppel. Reasonable, foreseeable reliance on the promise that produces detriment may bar the statute defense even without writing.
• Specially manufactured goods. UCC § 2-201(3)(a) excepts goods specially manufactured for the buyer that the seller has substantially begun.
• Admission. UCC § 2-201(3)(b) excepts a contract where the party charged admits in pleading or court testimony that the contract was made.
• Receipt and acceptance. UCC § 2-201(3)(c) makes a goods contract enforceable to the extent of payment made and accepted or goods received and accepted.
• Merchant memo. UCC § 2-201(2) imposes liability on a merchant who fails to object to a written confirmation within 10 days.

Pleading and Defending the Defense

The statute of frauds is an affirmative defense under Federal Rule of Civil Procedure 8(c). Failure to plead it in the answer waives it. A defendant whose statute-of-frauds defense appears on the face of the complaint may file a Rule 12(b)(6) motion to dismiss procedure. Plaintiffs anticipating the defense should plead the existence of writing, exceptions, or the absence of statute coverage in detail. The plaintiff also bears the burden of producing the writing or evidence of an exception at summary judgment standard.

Strategic Implications for Contract Drafting

The simplest cure is to put every material contract in writing. For commercial transactions, the costs of drafting are trivial relative to the cost of an unenforceable agreement. The writing should identify the parties, describe the subject matter, state essential terms, and be signed by all parties. For email-only deals, include a clear acceptance line and a signature block. The writing should also address governing law, venue, integration, and the basic dispute-resolution mechanism. A well-drafted breach of contract letter identifying the writing and the breach is a far stronger pre-suit posture than relying on an unwritten understanding.

Frequently Asked Questions

What is the Statute of Frauds in simple terms?

The statute of frauds is a state law requiring certain types of contracts to be in writing and signed by the party against whom enforcement is sought. The traditional categories are marriage, year-plus contracts, land, executor's personal-liability promises, sales of goods of $500 or more, and suretyship. An oral contract within a covered category is unenforceable unless an exception (part performance, promissory estoppel, specially manufactured goods, admission) applies.

What are the four (4) requirements of a valid enforceable contract?

Most jurisdictions require offer, acceptance, consideration, and mutual assent (with capacity sometimes listed as a fifth or absorbed into mutual assent). For contracts within the statute of frauds, a fifth requirement applies: a writing signed by the party to be charged that identifies the subject matter, indicates a contract was made, and states the essential terms. A contract that satisfies all four formation requirements may still be unenforceable if it falls within the statute of frauds and lacks the required writing.

What is the Statute of Frauds Act?

The original Statute of Frauds Act was enacted by the English Parliament in 1677 to require writings for certain contracts in order to prevent fraud and perjury. American jurisdictions adopted the statute by colonial-era reception statutes and have since codified the rule by state legislation. The Uniform Commercial Code § 2-201, adopted in every state except Louisiana, now governs the statute of frauds for sales of goods. State statutes govern the other categories.

What is the Statute of Frauds for dummies?

The shortest accurate version is: certain important contracts must be in writing to be enforceable. The traditional categories (marriage, year-plus, land, executor, goods over $500, suretyship) are remembered with the mnemonic "MY LEGS." A contract within a category but not in writing is unenforceable unless an exception applies. The lesson for everyday practice is straightforward: put it in writing, get it signed, and keep a copy.