What contracts have to be in writing?

Question

I know that land sale contracts, for example, have to be in writing in most jurisdictions. What other kinds of contracts legally have to be in writing to be enforceable? (US jurisdictions preferred but any jurisdiction acceptable).

Answer 1

In most U.S. jurisdiction, contracts only need to be in writing if they're within what we call the "Statute of Frauds." The Statute of Frauds was an actual statute in England but has not -- as far as I know -- ever been enacted in any state here. Nonetheless, its rules have carried over in the common law.

The Statute of Frauds covers:

• Contracts of the sale of goods at a cost of $500 or more;
• Contracts where marriage is part of the exchange (prenuptial agreements);
• Contracts that are impossible to fulfill within a year of execution;
• Contracts for the transfer of an interest in real property;
• Contracts by an estate's executor agreeing to personally pay a debt owed by the estate; and
• Suretyships (contracts to guarantee another person's payment of a debt);

There are a some caveats people should be aware of before trying to run off and renege on an oral contract, though:

1. Even in these types of transactions, it's not always precisely correct to say that the contract has to be in writing. Instead, there may only need to be something in writing that proves the existence of the contract, made either before or after the contract was formed. So if I agree to buy your house over the phone, and then you send me an e-mail reminding me to pay up, that e-mail may be enough to satisfy the Statute of Frauds.

2. Despite the general rule that these contracts must be in writing to be enforceable, there are exceptions. The point of the rule is to avoid problems determining whether a contract exists or not, so courts may still enforce the agreement under certain circumstances that are highly suggestive of a non-written contract having been reached. There are two primary examples:

   • "Promissory estoppel": If one of the parties has taken actions to their own detriment that you wouldn't expect them to take if they hadn't already reached a contract, the court may enforce the oral contract. Imagine, for instance, someone who bought a house on a handshake and then sold their own house, or someone who quits their job after being offered a two-year employment contract.
   • "Part performance": If one of the parties starts to actually make good on the agreement in a way that a court would not expect in the absence of an agreement, the court may enforce the contract. Imagine someone moving into a house despite the lack of a written contract to buy it, or an auto dealer delivering a car without a signed contract.
3. Even if an agreement needs to be in writing, hiding/losing/destroying every written copy doesn't nullify the contract. See here for more.