Does this agreement have to be in writing to be enforced in Maine?
In eight listed cases, yes, and one of them catches non-competes. 33 M.R.S. § 51 bars an action in eight cases, including a promise to answer for another's debt, a contract for the sale of land, an agreement not to be performed within one year, an agreement to give property by will, and "[u]pon any agreement to refrain from carrying on or engaging in any trade, business, occupation or profession for any term of years or within any defined territory or both", unless the promise "or some memorandum or note thereof, is in writing and signed by the party to be charged therewith, or by some person thereunto lawfully authorized; but the consideration thereof need not be expressed therein, and may be proved otherwise". For goods, 11 M.R.S. § 2-201(1) opens "[e]xcept as otherwise provided in this section", sets a $500 threshold and requires "a record sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought", but adds that a record "is not insufficient because it omits or incorrectly states a term agreed upon", while capping enforcement at "the quantity of goods shown in the record". Three statutory escapes follow: between merchants an unanswered written confirmation satisfies the subsection unless objected to "within 10 days after it is received"; and a contract otherwise valid is enforceable for specially manufactured goods, to the extent a contract is admitted in pleading or testimony, and as to goods paid for and accepted or received and accepted. An email can be the writing (McClare v. Rocha), and "[a]lmost any form of writing will satisfy the statute of frauds, including receipts, letters, record books, or computer entries".
The trap
Maine's part-performance exception is narrower than the phrase suggests and it carries a heavier burden, but one element is softer than it sounds. Sullivan v. Porter: "[a] transfer of real property without a written instrument may be enforced only if the party seeking to enforce the contract proves by clear and convincing evidence that an oral contract exists and that an exception to the statute of frauds applies", and "[t]he part performance doctrine requires the party seeking to enforce the contract to establish both that she acted in partial performance of her contractual duties and that the other party made misrepresentations that induced that partial performance." The operative three-element formulation is worth reading in full, because of how it ends: the party must establish "(1) that the parties did enter into a contract; (2) that the party seeking to enforce the contract partially performed the contract; and (3) that the performance was induced by the other party's misrepresentations, which may include acquiescence or silence." So performance alone is not enough and the standard is clear and convincing, but the inducement need not be an affirmative statement; acquiescence or silence can supply it. Sullivan won: the Law Court affirmed an order of specific performance. The drafting trap is § 51(8): because an agreement to refrain from carrying on a trade or profession is inside the statute, an oral or unsigned Maine non-compete or non-solicit is unenforceable on that ground alone, before the notice and wage-floor requirements of Maine's noncompete statute are ever reached. For goods, do not treat the $500 writing requirement as the end of the analysis: the three subsection (3) escapes and the merchant-confirmation rule defeat it more often than the writing requirement is satisfied, and a party who admits the contract in testimony has made it enforceable up to the quantity admitted.
14 authorities
- statute33 M.R.S. § 51enactment date not established
The words that state the rule
Upon any agreement to refrain from carrying on or engaging in any trade, business, occupation or profession for any term of years or within any defined territory or both; the provisions of this subsection shall not apply to any such agreement made prior to August 13, 1947;
- statute33 M.R.S. § 51enactment date not established
The words that state the rule
unless the promise, contract or agreement on which such action is brought, or some memorandum or note thereof, is in writing and signed by the party to be charged therewith, or by some person thereunto lawfully authorized; but the consideration thereof need not be expressed therein, and may be proved otherwise.
- statute11 M.R.S. § 2-201enactment date not established
The words that state the rule
Except as otherwise provided in this section, a contract for the sale of goods for the price of $500 or more is not enforceable by way of action or defense unless there is a record sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought or by the party's authorized agent or broker. A record is not insufficient because it omits or incorrectly states a term agreed upon but the contract is not enforceable under this subsection beyond the quantity of goods shown in the record.
- statute11 M.R.S. § 2-201enactment date not established
The words that state the rule
Between merchants if within a reasonable time a record in confirmation of the contract and sufficient against the sender is received and the party receiving it has reason to know its contents, it satisfies the requirements of subsection (1) against the party unless notice in a record of objection to its contents is given within 10 days after it is received.
- statute11 M.R.S. § 2-201enactment date not established
The words that state the rule
A contract which does not satisfy the requirements of subsection (1) but which is valid in other respects is enforceable (a). If the goods are to be specially manufactured for the buyer and are not suitable for sale to others in the ordinary course of the seller's business and the seller, before notice of repudiation is received and under circumstances which reasonably indicate that the goods are for the buyer, has made either a substantial beginning of their manufacture or commitments for their procurement; or (b). If the party against whom enforcement is sought admits in his pleading, testimony or otherwise in court that a contract for sale was made, but the contract is not enforceable under this provision beyond the quantity of goods admitted; or (c). With respect to goods for which payment has been made and accepted or which have been received and accepted ( section 2‑606 ).
The words that state the rule
A transfer of real property without a written instrument may be enforced only if the party seeking to enforce the contract proves by clear and convincing evidence that an oral contract exists and that an exception to the statute of frauds applies.
The words that state the rule
The part performance doctrine requires the party seeking to enforce the contract to establish both that she acted in partial performance of her contractual duties and that the other party made misrepresentations that induced that partial performance.
The words that state the rule
Thus, to remove the contract from the operation of the statute of frauds pursuant to this doctrine, the party seeking to enforce the contract must establish by clear and convincing evidence 5 (1) that the parties did enter into a contract; (2) that the party seeking to enforce the contract partially performed the contract; and (3) that the performance was induced by the other party’s misrepresentations, which may include acquiescence or silence.
The words that state the rule
Finally, the trial court did not exceed the bounds of its discretion by finding that the terms of the contract were sufficiently certain to allow the court to order specific performance in the form of a purchase and sale agreement. 9 The entry is: Judgment affirmed.
The words that state the rule
Almost any form of writing will satisfy the statute of frauds, including receipts, letters, record books, or computer entries.
The words that state the rule
An email or other electronic record can constitute a signed writing based on the historically broad interpretation of the term “writing” in the statute of frauds and, separately, based on the Uniform Electronic Transactions Act (UETA), 10 M.R.S. §§ 9401-9420.
- statute33 M.R.S. § 51enactment date not established
The words that state the rule
No action shall be maintained in any of the following cases: 1. Executor or administrator. To charge an executor or administrator upon any special promise to answer damages out of his own estate; 2. Debt of another. To charge any person upon any special promise to answer for the debt, default or misdoings of another; 3. Agreement of marriage. To charge any person upon an agreement made in consideration of marriage;
- statute33 M.R.S. § 51enactment date not established
The words that state the rule
4. Contract for sale of land. Upon any contract for the sale of lands, tenements or hereditaments, or of any interest in or concerning them; 5. Agreement not to be performed within one year. Upon any agreement that is not to be performed within one year from the making thereof; 6. Contract to pay debt discharged in bankruptcy. Upon any contract to pay a debt after a discharge therefrom under the bankrupt laws of the United States, or assignment or insolvent laws of this State;
- statute33 M.R.S. § 51enactment date not established
The words that state the rule
7. Agreement to give property by will. Upon any agreement to give, bequeath or devise by will to another, any property, real, personal or mixed; 8. Agreement to refrain from carrying on any business.
“Defective” means that reading found something to correct. What you are reading is the rule as it stands after that reading.