Agreements in Writing

• Author: John D. McCamus
• Pages: 163-212

163

CHAP TER 6

AGR EEMENTS IN

WRITING

A. INTRODUCTION

In a much earlier era, the common law enforced only undertakings re-

corded in writing and executed under seal. Such undertakings could be

enforced in medieval law in an action in covenant.1 With the recogni-

tion of other kinds of claim s, in particular, the action in assumpsit,2 the

common law developed the capacity to enforce a much broader range

of types of undertakings, including those that were merely oral or in-

formal. In the modern era, then, t he common law enforces agreements

in writ ing, whether or not under seal,3 oral agreements and agreements

that are partly oral and partly in writing. In this chapter, we consider

various doctrines relating to the formation of written ag reements. First,

we examine the doctr ine requiring cert ain agreements to be recorded

in writing a nd, typically, signed by the part y against whom the agree-

ment is to be enforced. Although the common law no longer requires

that agreements must be recorded in wr iting in order to be enforceable,

there are a number of statutory schemes th at require that certai n types

of agreements be written in form. The most import ant source of these

1 See A.W.B. Simpson, A History of the Common Law of Contract (Oxford: Claren-

don Press, 1975) Part I, c. I [Simpson].

2Ibid.

3 As we shall see, t he seal retains an imp ortant role in determini ng the enforce-

ability of undert akings in some circumst ances. See Chapter 7.

THE LAW OF CONTR ACTS164

rules is the English Statute of Frauds of 16774 and, from a Canadian

perspective, its progeny in the common law provinces. Additionally,

however, there are a number of other statutes, typically of a consumer

protection nature, that require that certain typ es of agreements must

be created in the form of a written document in order to be enforceable.

Quite apart from a legislative requirement that certain ty pes of

agreements be recorded in writing, it will, of course, often meet the

convenience of one or both parties to record the terms of an agree-

ment in writing. Where the par ties have a common intention to do so,

their contractual relationship will normally be constituted by the writ-

ten agreement. In many circumstances, however, a written document

will be fur nished by one party to the other i n the course of negotiat-

ing or concluding an agreement and the question may then ar ise as to

whether terms set out in the wr itten document are incorporated within

the agreement between the part ies. The jurisprudence relating to t he

incorporation of written terms in the agreement between the parties

is the second aspect of the law rel ating to agreements in writing con-

sidered in this chapter.

Finally, once it is determined that a writing has been incorporated

into a particular agreement, it may then be asked whether the written

document should form the exclusive source of the terms of the contrac-

tual relationship between the parties. This question becomes a particu-

larly interesting one where the par ties have entered into an agreement

that appears, on its face, to set out a complete set of terms with respect

to the subject matter of the agreement but one of the parties has b een

induced to enter the agreement by a prior oral undertaking g iven by the

other party. The common law’s solution to problems of this kind, the

parol evidence rule, remain s controversial. It is the third topic exam-

ined in this chapter.

B. AGREEMENTS R EQUIRED TO BE IN

WRITING:

THE STATUTE OF FRAUDS

1) Introduction

Originally titled An Act for the Prevention of Frauds and Perjuries, the

basic purpose of the Statute of Frauds was to reduce the prospects for

success of perjured test imony under the procedural rules in place at the

time of its enactment. The basic strateg y of the statute was to require

4 1677, 29 Car. II, c. 3.

Agreements in Writing 165

that certain t ypes of agreements be recorded in w riting and signed by

the person against whom they would be enforced in order to provide

a strong evidentiary basis for a f‌inding that such an undert aking was

actually given. Section 4 of the 1677 legislation provided as follows:

[N]o Action shal l be brought whereby to charge any Executor or Ad-

ministr ator upon any special Promis e, to answer Damages out of his

own Estate or whereby to ch arge the Defendant upon any spe cial

Promise to ans wer for the Debt, Default or Misca rriages of anot her

Person or to ch arge any Person upon any Ag reement made upon Con-

sideration of Marriage or upon any Contract or Sale of Lands, Tene-

ments or Hereditaments, or any Interest in or concerning them or

upon any Agreement that is not to be p erformed withi n the Space of

one Year from the making t hereof unless the Agreement upon which

such Action sh all be brought, or some Memor andum or Note thereof,

shall be in w riting, and signe d by the Party to be ch arged therewith,

or some other Person thereunto by hi m lawfully authorized.5

In section 17 of the statute,similar requirements were imposed on con-

tracts for the sale of goods, ware s, and merchandise for the price of

£10 and more.6 Other provisions of the statute apply to certain ki nds

of arrangements concerning trusts. Two further categories were added

to the statute by Lord Tenterden’s Act7 in the early-nineteenth century.

The f‌irst category concerned undertak ings by adults to ratify otherwis e

unenforceable contracts entered into during inf ancy.8 The second cat-

egory consisted of misreprese ntations as to credit worthiness for which

the representor was to be held liable.9 The latter provision was added

in order to avoid circumvention of the writing requirement concerning

guarantees. It precluded actions against oral guarantors based on the

5Ibid., s. 4.

6Ibid., s. 17. The treat ment of informal contract s for the sale of goods under sect ion

17 is slightly differ ent from the section 4 scheme. Sect ion 17 perm its enforcement

if the buyer has ac cepted part of the goods or provide s partial payment or a de-

posit. Other wise a note or memorandum of the ag reement signed by the part y to

be charged is r equired. The provision mig rated to the sale of goods legi slation in

many juris dictions, including Engl and and the Canadian c ommon law provinces,

the threshold a mount typically bein g set at $40.00. The provision is not in accord

with the ex pectations of many par ties and has been rep ealed in several provin ces.

See Statute Law Amen dment Act, S.B.C. 1958, c. 52, s. 17; An Act to Repeal the Stat-

ute of Frauds, S.M. 1982–83–84, c. 34, s. 27; Statute Law Ame ndment Act (Govern-

mental Management and Services), S.O. 1994, c. 27, s. 54.

7Statute of Frauds Ame ndment Act, 1828, 9 Geo. 4, c. 14 (U.K.) ss. 5–6.

8 See now, for example, Statute of Frauds, R.S.O. 1990, c. S.19, s. 7.

9Ibid., s. 8.