Does this contract need to be in writing to be enforceable in Montana?
Only if it falls on Montana's statutory list: otherwise an oral contract is fully enforceable. § 28-2-901 states the default: “All contracts may be oral except such as are specially required by statute to be in writing.” The list that requires a writing, subscribed by the party to be charged or that party's agent, is in § 28-2-903(1), MCA: (a) an agreement not to be performed within a year of its making; (b) a promise to answer for another's debt, default or miscarriage (with an exception cross-referenced to § 28-11-105); (c) an agreement made in consideration of marriage other than a mutual promise to marry; (d) a lease longer than 1 year, or a sale, of real property or an interest in it; (e) an agreement employing an agent or broker to buy or sell real estate for compensation; and (f) an agreement relating to a college athlete's name, image, and likeness rights. Sale-of-goods contracts are carved OUT of this general statute entirely: § 28-2-903(4) says subsections (1) and (2) “do not apply to agreements subject to the Uniform Commercial Code,” which has its own writing requirement at § 30-2-201. For real property specifically, Montana states the SAME writing rule three separate times (§ 28-2-903(1)(d) in the general contracts title, § 30-11-111 in the licensing title, and § 70-20-101 in the property title), and Montana's courts cite all three together: Wood v. Anderson holds “Under §§ 28-2-903(1)(d), 70-20-101, and 30-11-111, MCA, an agreement for the sale of real property is invalid under the statute of frauds unless the agreement, or some note or memorandum of the agreement, is in writing and subscribed by the party to be charged.”
The trap
The absence of a signed writing is not automatically fatal for real property. Montana recognizes PART PERFORMANCE as an escape: § 30-11-111 itself says the writing requirement “does not abridge the power of any court to compel the specific performance of any agreement for the sale of real property in case of part performance of the agreement.” Wood v. Anderson relied on that doctrine, but only as a second ground, and it is worth being precise about what the case actually was. Wood's primary holding is that there WAS a writing: the Court found “sufficient indicia of mutual assent in this case to find the existence of a written, enforceable contract” assembled out of several documents, and reached part performance only “even in the absence of a written contract.” So Wood is authority for part performance, and it is not an oral-contract case. It also carries the further rule that the required “note or memorandum may consist of several writings, and…need not be in any particular form, or contain the entire contract” as long as the material terms appear “even if such terms are stated generally.” One item on the writing list is narrower than it reads: the promise to answer for another's debt in § 28-2-903(1)(b) is subject to § 28-11-105, which takes a list of guaranty-shaped promises out of the writing requirement altogether by treating them as “an original obligation of the promisor”, including a promise by “one who has received property of another upon an undertaking to apply the property pursuant to the promise.” Separately, § 28-2-902 lets a party who was defrauded into believing an oral deal was already reduced to writing enforce it anyway: a distinct, narrower doctrine from part performance. And do not assume the statute of frauds is the only bar to extrinsic proof of a writing's terms: Montana's PAROL EVIDENCE rule is a separate statute.
15 authorities
- statuteMont. Code Ann. § 28-2-901enactment date not established
The words that state the rule
All contracts may be oral except such as are specially required by statute to be in writing.
- statuteMont. Code Ann. § 28-2-903enactment date not established
The words that state the rule
an agreement for the leasing for a longer period than 1 year or for the sale of real property or of an interest in real property. The agreement, if made by an agent of the party sought to be charged, is invalid unless the authority of the agent is in writing and subscribed by the party sought to be charged.
- statuteMont. Code Ann. § 28-2-903enactment date not established
The words that state the rule
Subsections (1) and (2) do not apply to agreements subject to the Uniform Commercial Code.
- statuteMont. Code Ann. § 30-11-111enactment date not established
The words that state the rule
An agreement for the sale of real property or of any interest in real property is not valid unless the agreement, or some note or memorandum of the agreement, is in writing and subscribed by the party to be charged or the party's agent authorized in writing. However, this does not abridge the power of any court to compel the specific performance of any agreement for the sale of real property in case of part performance of the agreement.
The words that state the rule
Under §§ 28-2-903(1)(d), 70-20-101, and 30-11-111, MCA, an agreement for the sale of real property is invalid under the statute of frauds unless the agreement, or some note or memorandum of the agreement, is in writing and subscribed by the party to be charged.
The words that state the rule
We have held that the note or memorandum may consist of several writings, and that it need not be in any particular form, or contain the entire contract.
- statuteMont. Code Ann. § 28-2-902enactment date not established
The words that state the rule
Where a contract that is required by law to be in writing is prevented from being put into writing by the fraud of a party to the contract, any other party who is by the fraud led to believe that the contract is in writing and acts upon that belief to the party's prejudice may enforce it against the fraudulent party.
- statuteMont. Code Ann. § 28-2-903enactment date not established
The words that state the rule
The following agreements are invalid unless the agreement or some note or memorandum of the agreement is in writing and subscribed by the party to be charged or the party's agent: (a) an agreement that by its terms is not to be performed within a year from the making of the agreement; (b) a special promise to answer for the debt, default, or miscarriage of another, except in the cases provided for in 28-11-105 ; (c) an agreement made upon consideration of marriage other than a mutual promise to marry;
- statuteMont. Code Ann. § 28-2-903enactment date not established
The words that state the rule
(e) an agreement authorizing or employing an agent or broker to purchase or sell real estate for compensation or a commission; or (f) an agreement relating to a college athlete's student-athlete rights, as defined in 20-1-232 , including but not limited to a student's name, image, and likeness.
- statuteMont. Code Ann. § 70-20-101enactment date not established
The words that state the rule
An estate or interest in real property, other than an estate at will or for a term not exceeding 1 year, may not be created, granted, assigned, surrendered, or declared otherwise than by operation of law or a conveyance or other instrument in writing, subscribed by the party creating, granting, assigning, surrendering, or declaring it or by the party's lawful agent authorized by writing.
The words that state the rule
there exists sufficient indicia of mutual assent in this case to find the existence of a written, enforceable contract.
The words that state the rule
As long as the writing or writings include all the material terms, even if such terms are stated generally, the contract is valid.
The words that state the rule
Additionally, even in the absence of a written contract, we have “long recognized the doctrine of part performance as an exception to the Statute of Frauds.”
The words that state the rule
In the present case, the District Court concluded that Woods sufficiently performed on the contract to their detriment and in reliance on the contract.
- statuteMont. Code Ann. § 28-11-105enactment date not established
The words that state the rule
A promise to answer for the obligation of another in any of the following cases is considered an original obligation of the promisor and need not be in writing: (1) when the promise is made by one who has received property of another upon an undertaking to apply the property pursuant to the promise or by one who has received a discharge from an obligation, in whole or in part, in consideration of the promise;
“Defective” means that reading found something to correct. What you are reading is the rule as it stands after that reading.