Which contracts must be in writing in Oregon?
Under ORS 41.580(1), in the listed cases the agreement is void unless it, or some note or memorandum of it expressing the consideration, is in writing and subscribed by the party to be charged or its lawfully authorized agent. The list includes an agreement that by its terms is not to be performed within a year from its making; an agreement to answer for the debt, default or miscarriage of another; an agreement upon consideration of marriage other than mutual promises to marry; an agreement for leasing for longer than one year or for the sale of real property or any interest in it; an agreement concerning real property made by an agent of the party sought to be charged, unless the agent's authority is in writing; an agreement authorizing or employing an agent or broker to sell or purchase real estate for a compensation or commission, which is not void for failure to state a consideration if the writing identifies the property, authorizes the sale and states the commission with reasonable certainty; and an agreement, promise or commitment to lend money, extend credit, forbear on a debt, modify or amend credit terms, release a guarantor or cosigner, or make another financial accommodation on existing credit (41.580(1)(h)), which by its own terms does not apply if no party to the agreement is a financial institution as defined in ORS 706.008, a consumer finance company licensed under ORS chapter 725 or a mortgage banker as defined in ORS 86A.100, and does not apply to a loan or extension of credit to a natural person that is primarily for personal, family or household purposes and not for business or agricultural purposes, or that is secured solely by residential property of one to four dwelling units one of which is the debtor's primary residence. For (1)(h), defenses and exceptions created by statute or recognized by the courts do not apply except as 41.580(2) provides: an agreement is enforceable up to the dollar amount the party admits in court, and a party may still prove modification of the time of repayment (41.580(2)). For goods, except as 72.2010 otherwise provides, a contract for the sale of goods for $500 or more is not enforceable by way of action or defense unless there is a record sufficient to indicate a contract for sale, signed by the party against whom enforcement is sought or its authorized agent or broker, and it is not enforceable beyond the quantity of goods shown (ORS 72.2010(1)). What 'otherwise provided' means there is three things: between merchants a confirming record that is sufficient against the sender satisfies subsection (1) unless the recipient objects in a record within 10 days; and a contract failing subsection (1) is still enforceable for specially manufactured goods on which the seller has substantially begun or made procurement commitments, to the extent of a quantity admitted in pleading, testimony or otherwise in court, and as to goods paid for and accepted or received and accepted (72.2010(2)-(3)). A lender within (1)(h) also has a duty of its own: not later than the time the loan or credit is initially made it must include, in the loan document or a separate document identifying it, an underlined or 10-point bold statement substantially to the effect that most such agreements must be in writing, express consideration and be signed by the lender to be enforceable (41.580(3)).
The trap
An oral promise by a bank, licensed consumer finance company or mortgage banker to extend, modify or forbear on a business loan falls within 41.580(1)(h), and 41.580(2)(a) excludes the usual statutory and judge-made exceptions for that category apart from the in-court admission and repayment-time rules in (2)(b)-(c). In a sale of goods the writing requirement is softer than it reads: a merchant that receives a confirming record and says nothing for 10 days is bound by it (72.2010(2)), and an admission in court, part payment and acceptance, or a substantial beginning on specially manufactured goods each take the contract out of subsection (1) (72.2010(3)).
9 authorities
- statuteORS 41.580enactment date not established
The words that state the rule
In the following cases the agreement is void unless it, or some note or memorandum thereof, expressing the consideration, is in writing and subscribed by the party to be charged, or by the lawfully authorized agent of the party; evidence, therefore, of the agreement shall not be received other than the writing, or secondary evidence of its contents in the cases prescribed by law: (a) An agreement that by its terms is not to be performed within a year from the making. (b) An agreement to answer for the debt, default or miscarriage of another. (c) An agreement by an executor or administrator to pay the debts of the testator or intestate out of the estate of the executor or administrator. (d) An agreement made upon consideration of marriage, other than a mutual promise to marry. (e) An agreement for the leasing for a longer period than one year, or for the sale of real property, or of any interest therein.
- statuteORS 41.580enactment date not established
The words that state the rule
An agreement concerning real property made by an agent of the party sought to be charged unless the authority of the agent is in writing. (g) An agreement authorizing or employing an agent or broker to sell or purchase real estate for a compensation or commission; but if the note or memorandum of the agreement is in writing and subscribed by the party to be charged, or by the lawfully authorized agent of the party, and contains a description of the property sufficient for identification, and authorizes or employs the agent or broker to sell the property, and expresses with reasonable certainty the amount of the commission or compensation to be paid, the agreement shall not be void for failure to state a consideration.
- statuteORS 41.580enactment date not established
The words that state the rule
An agreement, promise or commitment to lend money, to otherwise extend credit, to forbear with respect to the repayment of any debt payable in money, to modify or amend the terms under which the person has lent money or otherwise extended credit, to release any guarantor or cosigner or to make any other financial accommodation pertaining to an existing debt or other extension of credit.
- statuteORS 41.580enactment date not established
The words that state the rule
This paragraph does not apply: (A) If no party to the agreement, promise or commitment is a financial institution as defined in ORS 706.008, a consumer finance company licensed under ORS chapter 725 or a mortgage banker as defined in ORS 86A.100; or (B) To a loan of money or extension of credit to a natural person which is primarily for personal, family or household purposes and not for business or agricultural purposes or which is secured solely by residential property consisting of one to four dwelling units, one of which is the primary residence of the debtor.
- statuteORS 41.580enactment date not established
The words that state the rule
Except as provided in this subsection, defenses and exceptions created by provisions of the Oregon Revised Statutes or recognized by the courts of this state do not apply to subsection (1)(h) of this section. (b) An agreement, promise or commitment which does not satisfy the requirements of subsection (1)(h) of this section, but which is valid in other respects, is enforceable if the party against whom enforcement is sought admits in the party’s pleading, testimony or otherwise in court that the agreement, promise or commitment was made. The agreement is not enforceable under this paragraph beyond the dollar amount admitted. (c) Nothing in subsection (1)(h) of this section precludes a party from seeking to prove the modification of any term relating to the time of repayment.
- statuteORS 72.2010enactment 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 authorized agent or broker of the party. 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.
- statuteORS 41.580enactment date not established
The words that state the rule
If a financial institution as defined in ORS 706.008, a consumer finance company licensed under ORS chapter 725 or a mortgage banker as defined in ORS 86A.100 lends money or extends credit, and subsection (1)(h) of this section applies to the loan or extension of credit, the financial institution, consumer finance company or mortgage banker shall, not later than the time the loan or extension of credit is initially made, include within the loan or credit document, or within a separate document which identifies the loan or extension of credit, a statement which is underlined or in at least 10-point bold type and which is substantially to the following effect:
- statuteORS 41.580enactment date not established
The words that state the rule
Under Oregon law, most agreements, promises and commitments made by us concerning loans and other credit extensions which are not for personal, family or household purposes or secured solely by the borrower’s residence must be in writing, express consideration and be signed by us to be enforceable.
- statuteORS 72.2010enactment 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) of this section against the party unless notice in a record of objection to its contents is given within 10 days after it is received. (3) A contract that does not satisfy the requirements of subsection (1) of this section but that 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 that 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 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 that have been received and accepted in accordance with ORS 72.6060.
“Defective” means that reading found something to correct. What you are reading is the rule as it stands after that reading.