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Statute of Frauds - Internet Library of Law and Court Decisions - Updated June 17, 2008

Court holds that an e-mail sent by one merchant to another purporting to confirm an agreement to purchase goods is sufficient to satisfy the requirements for a writing contained in the Statute of Frauds, as set forth in NY UCC § 2-201(2), known as the merchant's exception.  The e-mail in question was sent to defendant by a third party on behalf of plaintiff, and had attached as a pdf file a letter on plaintiff's letterhead which closed with the typed signature of plaintiff's president.  The attached letter recited that the parties had an agreement, and set forth a quantity of items to be purchased, but not the price to be paid therefore.  The court nonetheless held that issues of fact existed as to both the existence of a contract between the parties for the purchase of the goods at issue, and its enforceability under the Statute of Frauds, which precluded the grant of defendant's motion for summary judgment, or dismissal of plaintiff's complaint.

Court holds that e-mail sent by defendant accepting plaintiff's offer to purchase real property, upon which defendant typed his name, satisfies the requirement of the Statute of Frauds that contracts for the transfer of an interest in real property be evidenced by a writing.  The Court nonetheless dismissed plaintiffs' claim, seeking specific performance of the parties' alleged agreement, because the e-mails the parties exchanged failed to contain all of the essential terms of a contract for the sale of real property.

The court denied defendants' motion to dismiss plaintiff's complaint, which sought to enforce a contract for the sale of real property between the parties based on e-mails they exchanged.  The court rejected defendants' claim that this contract was unenforceable by virtue of the Statute of Frauds, holding that e-mails typed and sent by defendant containing a salutation consisting of defendant's name can constitute writings sufficient to satisfy the statute of frauds.

Quick Hits

Court holds that an email bearing the typed name of the party to be charged can constitute a writing sufficient to satisfy the Statute of Frauds for the purposes of establishing the existence of a three year software license.  In reaching this result, the Court relied on NY General Obligations Law Section 5-701(b)(4) which provides:

The tangible written text produced by telex, telefacsimile, computer retrieval or other process by which electronic signals are transmitted by telephone or otherwise shall constitute a writing and any symbol executed or adopted by a party with a present intention to authenticate a writing shall constitute a signing.

Because the author of the email at issue had typed his name at the foot thereof, the Court held he had manifested his intention to authenticate the email in question, and hence that the email could satisfy the requirements of a writing for the purposes of the Statute of Frauds.  Said the Court:

Contrary to movant’s contentions, the January 12, email from defendant constitutes a ‘signed writing’ within the meaning of the Statute of Frauds. … Thus, the sender manifested his intention to authenticate the email for purposes of the Statute of Frauds by typing his name, “Denis” at the bottom of the January 12, 2007 email referencing the parties’ contractual agreement.’

As a result, the Court denied defendant’s motion, which sought to dismiss the complaint on the grounds of the Statute of Frauds, and allowed plaintiff to pursue discovery concerning the existence of an agreement between the parties.  In this suit, plaintiff alleged that defendant had breached a software license between the parties by refusing to license to plaintiff the software in question.

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Court holds that emails can constitute writings sufficient to satisfy the requirements of the Illinois Statute of Frauds and Uniform Commercial Code that contracts for the sale of goods for $500 or more must be evidenced by a writing signed by the party against whom enforcement is sought.  Said the Court:

Internal documents, invoices and emails can be used to satisfy the Illinois UCC statute of frauds.

However, because the internal invoices and emails presented to the Court did not adequately demonstrate that the parties had actually entered into the contract claimed by plaintiff – for the sale of 1.5 million tons of coal – the Court held plaintiff’s breach of contract claim barred by the Statute of Frauds, due to the absence of the requisite writing evidencing the oral contract of sale alleged by the plaintiff.

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Reversing the District Court, the 7th Circuit holds that emails bearing the name of the sender are writings sufficient to satisfy the Statute of Fraud’s requirement that both contracts for the sale of goods over $500, and modifications thereof, be evidenced by a writing subscribed by the party to be charged.  The Court further holds that such emails also satisfy the requirement, contained in the parties’ contract, that modifications of purchase orders be evidenced by a writing reflecting Hasbro’s consent to the modification. 

As a result, the Seventh Circuit holds that plaintiff Cloud Corp., by sending a written acknowledgment of order, increasing the quantity of product to be purchased by defendant Hasbro, modified the parties’ agreement, and bound Hasbro to accept the increased quantities reflected therein.  Cloud Corp. had made this change pursuant to Hasbro’s request that it adjust the formula it used to make the product, which in turn allowed it to make more with the materials it had on hand.  Because this change in quantity was acknowledged in several emails authored by Hasbro employees, bearing their name, the Court held the modification met the requirements of the Statute of Frauds.  Said the Court:

The quantity term in a contract for the sale of goods for more than $500 must be memorialized n a writing signed by the party sought to be held to that term, UCC section 2-201(1) and so, therefore, must a modification of that term.  UCC Section 2-209(3)  … Kathy Esposito’s emails, plus the notation that we quoted earlier signed by Maryann Ricci, another member of Hasbro’s purchasing department, satisfy the statutory requirement.  The UCC does not require that the contract itself be in writing, only that there be adequate documentary evidence of its existence and essential terms, which there was here. … But what shall we make of the fact that Kathy Esposito’s emails contained no signature? …  [L]ike the court in Shattuck v. Klotzbach, No. 011109A, 2001 WL 1839720 at *2-3 (Mass. Super. Dec. 11, 2001), we conclude without having to rely on the federal Act that the sender’s name on an email satisfies the signature requirement of the statute of frauds.

As a result, the Seventh Circuit held Hasbro liable for its failure to take delivery of the increased quantity of goods, and remanded the case to the District Court for the determination of the appropriate amount of Cloud Corp.’s damages.

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Affirming the decision of the court below, the Second Department holds that an exchange of emails does not constitute a writing sufficient to meet the requirements of CPLR 2104, which mandates that a settlement agreement resolving a lawsuit be in writing and signed by the parties (or their attorneys) to be bound by it.  Said the Court:

Contrary to the appellants’ contention, a confirmatory email sent to the plaintiffs’ former attorney by counsel to the insurer of one of the defendants, either alone or in conjunction with an email sent by the plaintiffs’ former counsel in response, did not constitute a writing sufficient to bring the purported settlement into the scope of CPLR 2104.

As a result, the Second Department affirmed the decision of the trial court, which denied defendants’ motions to enforce the settlement agreement purportedly evidenced by these emails.

It is not clear from the Court’s decision whether the emails in question bore the typed name/signature of the senders, or were otherwise signed by them.

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Court holds that emails that bear the name of the sender, either typed at the conclusion of the message, or in the email’s header, are writings sufficient to satisfy the requirements of the Missouri Statute of Frauds that contracts for the sale of goods over $500 be in writing where they were sent by individuals who had a present intention to authenticate the document as their own writing.  Finding, based on the emails before it, that the plaintiff was likely to establish that the parties had entered into contracts for the purchase and sale of hog casings, the Court issued a preliminary injunction, directing defendant to honor these contracts, and sell hog casings from two of its facilities to plaintiff International Casings Group, Inc.  

In reaching this result, the Court relied both on the applicable provisions of the UCC, and the Uniform Electronic Transactions Act, (“UETA”), which has been adopted by Missouri. 

Under the Missouri Statute of Frauds, there must be a ‘signed’ writing evidencing a contract for the sale of goods.  The UCC defines ‘signed’ to include ‘any symbol executed or adopted by a party with a present intention to authenticate a writing”  Mo. Rev. Stat. 400.2-201(39).  Under UETA, an electronic signature is defined as ‘an electronic sound, symbol, or process attached to or logically associated with a record and executed or adopted by a person with the intent to sign the record.’  Mo. Rev. Stat. Section 432.205(8).   Under UETA, ‘if a law requires a signature, an electronic signature satisfies the law.’  Mo. Rev. Stat. Section 432.230(4).
 The Court held that, under these statutes, the emails in question constituted a signed writing sufficient to satisfy the applicable requirements of the Statute of Frauds.  Said the Court:

Hence, although Pummill’s and Sanecki’s signatures were electronic, they satisfy the signature requirement of the UCC’s Statute of Frauds, so long as each had the present intention to authenticate the document.

There is overwhelming evidence that Sanecki’s and Pummill’s emails are authentic and that the information contained in them was intended by each to accurately reflect their communications with the other.  Although they do not all contain a typed name at the bottom of the emails, each email contains a header with the name of the sender.  Given the testimony at the preliminary [injunction] hearing, it is clear that Sanecki and Pummill, by hitting the send button, intended to presently authenticate and adopt the content of the emails as their own writing.  This is enough to satisfy the UCC given the breadth of its definition of signature, as well as the UETA which specifically refers to a ‘process attached to or logically associated with a record.’

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Court holds that an email bearing the sender’s name in the email address at the top of the email constitutes a writing sufficient to satisfy the Statute of Frauds’ requirement that contracts to pay brokerage commissions for the sale of a business be evidenced by a writing subscribed by the party to be charged.  The Court reached this result notwithstanding the fact that the defendant did not type or otherwise insert his name at the foot of the email at the close of his correspondence.  As a result, the Court denied defendants’ motion to dismiss the complaint on the grounds that it was barred by the Statute of Frauds, and allowed plaintiff to proceed with his claim for a finders fee arising out of his efforts to locate a buyer for defendants’ business.  In his email, defendant stated to the plaintiff that because the proposed sale of defendants’ business had “gone beyond the potential status, tell me what you want for bringing this together.”

Said the Court:

The court holds that where there is no question as to the source and authenticity of an email, the email is “signed” for purposes of the statute of frauds if defendant’s name clearly appears in the email as the sender.  As noted, Edward Price’s name appears as the sender of the “SunOpta” email.  Additionally, half an hour later, Edward sent Jerry another email concerning the SunOpta deal which was signed “Edward,” in the traditional letter writing fashion.  Thus, the court concludes that the “SunOpta” email was sufficiently signed by Edward Price to satisfy the statute of frauds signature requirement. 

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Court holds that a License Agreement that appears on-screen in a pop-up window is a writing within the meaning of the Federal Arbitration Act (“FAA”).  As such, the Court directs plaintiffs, in accordance with the terms of their License Agreement with RealNetworks, to arbitrate their claims that RealNetworks was impermissibly invading their privacy and trespassing on their property by secretly monitoring the listening and internet usage habits of users of its products.

To be enforceable under the FAA, an arbitration agreement must be contained in a writing.  Popular dictionaries at the time of the statute’s enactment defined a writing as “1.  the act or art of forming letters or characters on paper, wood, stone, or other material, for the purpose of recording the ideas which characters and words express, or of communicating them to others by visible signs. 2.  Anything written or printed; anything expressed in characters or letters.”  Relying on this definition, the Court held that a license agreement that appeared on screen was such a writing, because it constituted letters or characters formed on screen to record or communicate ideas, and could be easily printed and/or saved.  Notably, the court reached this latter conclusion despite the absence of a print or save button on the pop-up window in which the License terms appeared.  It was sufficient, held the court, that the user’s computer allowed him to right click his mouse over the terms of the License agreement, and copy and paste them into a word processing program.  The Court also noted that, once accepted by the user, the License Terms were downloaded to his computer, and stored in a file titled either  “RealPlayer License Agreement” or “RealJukebox License Agreement” depending on the product used.  As such, held the Court, the agreement between the parties qualified as a written arbitration agreement, which could be enforced in accordance with the FAA.

Finally, the court rejected the intervenor’s challenge to the Arbitration agreement on the grounds of procedural and substantive unconscionability.  As a result, the Court affirmed its earlier decision, and directed plaintiffs to arbitrate their disputes with RealNetworks.

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Court holds that emails bearing the typed name of an authorized agent of the party to be charged are writings sufficient to meet the requirements of the Maine Statute of Frauds, which mandates that agreements not to be performed within one year be evidenced by a writing.  In this case, the agreement in question was a purported exclusive distributorship between the parties for the sale of wood care products in a designated territory.  Said the Court:

Courts in other jurisdictions have held that emails satisfy the writing and signature requirements of the statutes of fraud. …  In the absence of any suggestion by the defendant that Gooding lacked authority to make the representations in his emails or that he did not intend to bind the defendant, I conclude that his emails are sufficient under Maine law to meet the requirements of section 51 [of the statute of frauds].

As a result, the Court rejected defendant’s motion to dismiss plaintiff’s breach of contract claims, on statute of fraud grounds. 

Nonetheless, finding plaintiff failed to pay for goods delivered, the Court awarded defendant judgment on its counterclaim seeking recovery for such nonpayment.  The Court also dismissed so much of plaintiff’s complaint which sought specific performance of the parties’ alleged distributorship agreement, finding that it had been terminated by an email exchange between the parties, initiated by plaintiff’s transmission of an email proclaiming that “I have to assume that by your refusal to provide a letter of our agreement, you do realize it is over.  Period. … we are done.”  Left for another day was the question of whether plaintiff was due any damages as a result defendant’s alleged breach of the parties’ agreement prior to its termination by plaintiff.

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Affirming the decision of the court below, the First Department holds that an email bearing the signature of the party to be charged can constitute a writing sufficient to satisfy the requirements of the Statute of Frauds.  Accordingly the First Department affirmed the holding of the Trial Court that an email exchange between the parties modified the terms of plaintiff’s written three year employment agreement.  Said the Court:

The emails from plaintiff constitute ‘signed writings’ within the meaning of the statute of frauds, since plaintiff’s name at the end of his email signified his intent to authenticate the contents.  Similarly, Bloom’s name at the end of his email constituted a ‘signed writing’ and satisfied the requirement of section 13(d) of the employment agreement that any modification be signed by all parties.

It should be noted that each of the emails in question “bore the typed name of the sender at the foot of the message.”

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Disagreeing with Rosenfeld v. Zerneck, 4 Misc. 3d 193 (Sup. Ct. Kings 2004), the Court holds that an email bearing the typed name of the sender is insufficient to constitute the necessary “writing subscribed by the party to be charged …” NY Gen. Oblig. Law Section 5-703(2) required by the statute of frauds for valid contracts for the sale of real property. 

In reaching this result, the Court relied on amendments to the NY Gen. Obligations Law, Section 5-701(b)(4), which provide that such emails can satisfy the statute’s requirements for such a writing in “qualified financial contracts.”  This section provides:  “For purposes of this subdivision, the tangible written text produced by telex, telefacsimile, computer retrieval or other process by which electronic signals are transmitted … shall constitute a writing.”  Because Section 5-701(b)(4) was not made applicable to real estate contracts, the Court concluded the Legislature intended to treat them differently. 

The Court accordingly dismissed plaintiff’s claim for specific performance of a contract providing for its purchase of real property, because it was predicated on an email exchange between the parties, and thus, according to the Court, did not pass muster under the Statute of Frauds, and NY General Obligation Law Section 5-703(2), which requires that such contracts be evidenced by a writing signed by the party to be charged, here the defendant.

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