Which agreements must be in writing to be enforceable in Delaware?
No action shall be brought to charge a person upon: an agreement made upon consideration of marriage; a contract or sale of lands, tenements or hereditaments or any interest in or concerning them; an agreement not to be performed within one year from the making of it; or an agreement to answer for the debt, default or miscarriage of another in any sum of the value of $25 and upwards, unless the contract is reduced to writing, or a memorandum or note of it is signed by the party to be charged, or by another person lawfully authorized IN WRITING by that party. An exception applies for goods, wares and merchandise sold and delivered, money loaned, and other matters properly chargeable in an account, where the plaintiff's oath or affirmation together with a regularly and fairly kept record may be given in evidence instead. Two further subsections a drafter must not miss. A commitment to loan money or extend credit above $100,000, not primarily for personal, family or household purposes and made by someone in the lending business, is invalid unless it is in writing and subscribed by the party to be charged or that party's agent; a loan secured solely by residential property of one to four dwelling units is deemed to be for household purposes and so falls outside that rule. And the section defines 'writing' to include microphotography, photography and photostating, so a copy is equally competent as evidence as the original, but on three conditions, not two: the copy must have been regularly made and kept in the course of business, the original must be inaccessible or have been destroyed or otherwise disposed of in good faith in the regular course of business, and the mode of making the copy must have been such as to justify its admission as a true copy of the original.
The trap
Two Delaware-specific details a drafter used to other states will miss. The suretyship category carries a dollar floor of $25 and upwards, so very small guarantees fall outside it. And the authority of an agent who signs for the party to be charged must itself be IN WRITING: an orally authorised signatory does not satisfy the section, which is stricter than the Texas analogue (Tex. Bus. & Com. Code § 26.01) that asks only for someone 'lawfully authorized'.
3 authorities
The words that state the rule
(a) No action shall be brought to charge any person upon any agreement made upon consideration of marriage, or upon any contract or sale of lands, tenements, or hereditaments, or any interest in or concerning them, or upon any agreement that is not to be performed within the space of 1 year from the making thereof, or to charge any person to answer for the debt, default, or miscarriage, of another, in any sum of the value of $25 and upwards, unless the contract is reduced to writing, or some memorandum, or notes thereof, are signed by the party to be charged therewith, or some other person thereunto by the party lawfully authorized in writing; except for goods, wares and merchandise, sold and delivered, money loaned and other matters which are properly chargeable in an account, in which case the oath or affirmation of the plaintiff, together with a record regularly and fairly kept, shall be allowed to be given in evidence in order to charge the defendant with the sums therein contained.
- statute6 Del. C. § 2714enactment date not established
The words that state the rule
(b) A contract, promise, undertaking or commitment to loan money or to grant or extend credit, or any modification thereof, in an amount greater than $100,000, not primarily for personal, family, or household purposes, made by a person engaged in the business of lending or arranging for the lending of money or the extending of credit shall be invalid unless it or some note or memorandum thereof is in writing and subscribed by the party to be charged or by the party’s agent. For purposes of this section, a contract, promise, undertaking or commitment to loan money secured solely by residential property consisting of 1 to 4 dwelling units shall be deemed to be for personal, family or household purposes.
- statute6 Del. C. § 2714enactment date not established
The words that state the rule
(c) For the purposes of this section, “writing” includes microphotography, photography and photostating, and a microphotographic, photographic or photostatic copy of any agreement covered by this section. Such copy or copies having been regularly made and kept in the course of business, shall be equally competent as evidence as the original of such agreement, where the original is inaccessible or has been destroyed or otherwise disposed of in good faith in the regular course of business and where the mode of making such microphotograph, photograph or photostat was such as to justify its admission as a true copy of the original.
“Defective” means that reading found something to correct. What you are reading is the rule as it stands after that reading.