Does this agreement have to be in writing to be enforceable in Virginia?
Only in the nine cases Va. Code § 11-2 names (though § 11-1 separately makes certain unwritten real-estate and goods contracts void as to purchasers for value and creditors), and then the writing must be signed by the party to be charged. "Unless a promise, contract, agreement, representation, assurance, or ratification, or some memorandum or note thereof, is in writing and signed by the party to be charged or his agent, no action shall be brought in any of the following cases", and the ones a commercial drafter meets are the guaranty, "4. To charge any person upon a promise to answer for the debt, default, or misdoings of another;", and "6. Upon any contract for the sale of real estate, or for the lease thereof for more than a year; 7. Upon any agreement or contract for services to be performed in the sale of real estate by a party defined in § 54.1-2100; 8. Upon any agreement that is not to be performed within a year; or 9. Upon any agreement or promise to lend money or extend credit in an aggregate amount of $25,000 or more." The section adds that "The consideration need not be set forth or expressed in the writing, and it may be proved (where a consideration is necessary) by other evidence." Part performance can take a case out of the statute in equity. For a parol contract to devise land Phillips states three cumulative elements: "To prevail, the promisee must establish: (1) that the parol agreement relied on is 'certain and definite in its terms,' (2) that his acts of part performance were done 'in pursuance of the agreement proved,' and (3) that the agreement has been 'so far executed that a refusal of full execution would operate a fraud' upon him" (Virginia Home for Boys & Girls v. Phillips), and the same opinion's Conclusion restates that test as two elements: "Part performance may only be relied on to take the case out of the Statute of Frauds when the claimant establishes that the parol agreement is 'certain and definite in its terms' and that his part performance was done 'in pursuance of the agreement proved.'" It is Moorman, on an oral sale of realty rather than a parol contract to devise land, that carries the requirement beyond the devise case and holds that the proof "must be clear and convincing".
The trap
The $25,000 credit threshold in subdivision 9 is the one most often missed, and, on its words, it is an aggregate-amount test on a promise to lend or extend credit rather than on a loan actually made. Two more Virginia points. The signature requirement runs against "the party to be charged", so the absence of the claimant's own signature is not the problem: the defendant's is. And the part-performance escape is much narrower in practice than in statement. Moorman is the Virginia case on e-mails and faxes, and it is cited for the wrong thing: the Supreme Court of Virginia held the e-mails, faxes and draft agreements insufficient because the drafts themselves required the signatures of the entire family and the one family member corresponding had no authority to bind the rest, and then said expressly that it found "no reason to address whether David Moorman 'signed' any of the correspondence between the parties by the act of typing his name in an e-mail or facsimile message." Whether a typed name in an e-mail is a signature under § 11-2 is therefore an OPEN question in Virginia after Moorman, not a settled no. What Moorman did decide on part performance is that surveying, engineering and soil-study work was not done "in pursuance of the purported agreement", and the result followed: the Court held "the evidence is insufficient to establish that Blackstock undertook any actions in furtherance of the purported contract so as to remove this case from the bar of the statute of frauds".
13 authorities
- statuteVa. Code § 11-2enactment date not established
The words that state the rule
Unless a promise, contract, agreement, representation, assurance, or ratification, or some memorandum or note thereof, is in writing and signed by the party to be charged or his agent, no action shall be brought in any of the following cases: 1. To charge any person upon or by reason of a representation or assurance concerning the character, conduct, credit, ability, trade, or dealings of another, to the intent or purpose that such other may obtain thereby, credit, money, or goods; 2. To charge any person upon a promise made after attaining the age of majority, to pay a debt contracted during infancy, or upon a ratification after attaining the age of majority, of a promise or simple contract made during infancy; 3. To charge a personal representative upon a promise to answer any debt or damages out of his own estate; 4. To charge any person upon a promise to answer for the debt, default, or misdoings of another; 5. Upon any agreement made upon consideration of marriage;
- statuteVa. Code § 11-2enactment date not established
The words that state the rule
6. Upon any contract for the sale of real estate, or for the lease thereof for more than a year; 7. Upon any agreement or contract for services to be performed in the sale of real estate by a party defined in § 54.1-2100 ; 8. Upon any agreement that is not to be performed within a year; or 9. Upon any agreement or promise to lend money or extend credit in an aggregate amount of $25,000 or more.
- statuteVa. Code § 11-2enactment date not established
The words that state the rule
The consideration need not be set forth or expressed in the writing, and it may be proved (where a consideration is necessary) by other evidence.
The words that state the rule
A parol contract to devise land may, however, be taken out of the Statute of Frauds by evidence of part performance on the promisee’s part. To prevail, the promisee must establish: (1) that the parol agreement relied on is “certain and definite in its terms,” (2) that his acts of part performance were done “in pursuance of the agreement proved,” and (3) that the agreement has been “so far executed that a refusal of full execution would operate a fraud” upon him.
The words that state the rule
In reviewing a claim for specific performance of an oral contract for the purchase and sale of real property, “the evidence relied upon to establish the contract and its part performance by the party seeking to enforce it must be clear and convincing.”
The words that state the rule
For these reasons, we hold that the circuit court erred in finding that the various notes and memoranda between the Moormans and Blackstock regarding the purported oral contract for the sale of the Moormans’ farm were sufficient to satisfy 17 the statute of frauds.
The words that state the rule
Blackstock’s testimony at trial demonstrates that he did not actually engage in the acts of surveying, engineering, performing soil studies, and purchasing the Heatwole property, in pursuance of the purported agreement.
The words that state the rule
In so holding, we find no reason to address whether David Moorman “signed” any of the correspondence between the parties by the act of typing his name in an e-mail or facsimile message.
The words that state the rule
And perhaps most importantly, Blackstock’s own formalized draft agreements required the signatures of the entire Moorman family, rather than the signature of David, acting as the agent of the Moorman family.
The words that state the rule
We therefore disagree with the circuit court’s findings, and hold that the evidence is insufficient to establish that Blackstock undertook any actions in furtherance of the purported contract so as to remove this case from the bar of the statute of frauds. 20 CONCLUSION For these reasons, we hold that the circuit court erred in finding that various notes, memoranda, and draft agreements circulated between the Moormans and Blackstock were sufficient to satisfy the statute of frauds. We also hold that the circuit court erred in finding that David Moorman acted as the agent of the Moorman family. We further hold that the circuit court erred in granting specific performance based upon equitable estoppel and part performance of the purported oral contract. In so holding, we find no need to address any other assignment of error. Accordingly, the judgment of the circuit court will be reversed and final judgment will be entered in favor of the Moormans. Reversed and final judgment.
- statuteVa. Code § 11-1enactment date not established
The words that state the rule
Every contract, not in writing, made in respect to real estate or goods and chattels in consideration of marriage, or made for the conveyance or sale of real estate, or a term therein of more than five years, and, except as otherwise provided in § 8.2-402 of the Uniform Commercial Code, every bill of sale or contract for the sale of goods and chattels when the possession is allowed to remain with the seller, shall be void, both at law and in equity, as to purchasers for value and without notice and creditors; provided, however, that if any such contract or bill of sale as is mentioned in this section creates a security interest as defined in the Uniform Commercial Code, its validity and enforceability shall be governed by the provisions of that Code.
The words that state the rule
Because Phillips failed to carry the burden of proving corroboration imposed upon him by the Dead Man’s Statute, his claim also fails to satisfy the Statute of Frauds. As noted above, Code § 11-2(6) applies to parol contracts to devise land. Part performance may only be relied on to take the case out of the Statute of Frauds when the claimant establishes that the parol agreement is “certain and definite in its terms” and that his part performance was done “in pursuance of the agreement proved.”
The words that state the rule
We conclude that the circuit court erred in granting specific performance of the parol agreement and will accordingly reverse the judgment appealed from and enter final judgment in favor of the Home.
“Defective” means that reading found something to correct. What you are reading is the rule as it stands after that reading.