Does the Statute of Frauds Bar the Dailykos Contract Claim?

Dave Hoffman

Dave Hoffman is the Murray Shusterman Professor of Transactional and Business Law at Temple Law School. He specializes in law and psychology, contracts, and quantitative analysis of civil procedure. He currently teaches contracts, civil procedure, corporations, and law and economics.

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5 Responses

  1. Random 1L says:

    Payment was made and accepted, which is sufficient evidence of a contractual relationship to substitute for a writing under the Statute of Frauds.

    At least that’s what my outline says. 😀

  2. Dave Hoffman says:

    You kept your outline? That’s love!

    The fact that payment is made doesn’t do a thing to confirm the existence of the executory portion of the contract. How could it?

  3. Random 1L says:

    Check the name-I was using that outline to study just a month and a half ago. 😀

    NOTE: The payment received and accepted substitute is part of the UCC, so please assume I’m arguing from analogy here.

    The SoF defense would work had substantial performance by both parties not occurred. Let’s not turn the SoF into something ludicrous: the Court is not required to believe that R2000 delivered poll results (no matter how suspect) and Kos paid them for those poll results absent any kind of contractual relationship.

    The key here (at least as it seems from scanning the complaint) is that Kos isn’t claiming expectancy damages for polls to be performed in the future for which he had not paid. He’s claiming breach of warranty and misrepresentation on the polls for which he HAD paid. The executory nature of the future polls is irrelevant to Kos’ complaint.

  4. Dave Hoffman says:

    Don’t be embarrassed by your love for the best 1L course. I still have my 1L contracts outline from 1998, little good it did me in Scott Brewer’s class.

    In any event, looking over what the complaint is requesting, you may be right. To the extent he is seeking damages for earlier polls conducted and paid for, evidence of payment would probably satisfy — I took a very quick look at california caselaw on service contracts, so if others disagree, chime in.

  5. Random 1L says:

    No embarrassment at all. Contracts with Wild Bill Henning was a good time.
    I definitely agree that for Markos to do business in this manner is kind of foolish. The guy even has a JD, so it’s not like he doesn’t know the pitfalls of oral contracts.