Agreements in Writing

• Author: John D. McCamus
• Pages: 177-229

177

CHAPTER 6

AGREEMENTS IN

WRITING

A. INTRODUCTION

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

recorded in writing and executed under seal. Such undertakings could

be enforced in medieval law in an action in covenant.1 With the recogn i-

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 infor-

mal. In the modern era, then, the common law enforces agreements in

writing, whether or not under seal,3 oral agreements and agreements

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

various doctrine s relating to the formation of written agreements. First,

we examine the doctrine requiring certain agreements to be recorded

in writing and, typically, signed by the party against whom the agree-

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

that agreements must be recorded in w riting in order to be enforceable,

there are a number of statutory schemes t hat require that certain types

of agreements be written in form. The most important source of these

1 See AWB Simpson, A Histor y of the Common Law of Contract (Oxford: Claren don

Press, 1975) Part I, ch I [Simpson].

2 Ibid.

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

enforceabilit y of undertakings in some c ircumstances. See Ch apter 7.

THE LAW OF CONTR ACTS178

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 types of agreements must

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

Quite apart from a legislative requirement that certain types 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 parties 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 furnished by one party to the other in the course of negotiat-

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

whether terms set out in the wr itten document a re incor porated w ithin

the agreement between the parties. The jurisprudence relating to the

incorporation of written terms in the agreement between the parties is

the second aspect of the law relating to agreements in writing consid-

ered 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 parties 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 been

induced to enter the agreement by a prior oral underta king given by the

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

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

ined in this chapter.

B. AGREEMENTS REQUIRED 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 strategy of the statute was to require

4 1677, 29 Car I I, c 3.

Agreements i n Writing179

that certain types of agreements be recorded in writing 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 undertaking was

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

[N]o Action shall be brought whereby to charge any Executor or

Administrator upon any special Promise, to answer Damages out of

his own Est ate or whereby to ch arge the Defendant upon any special

Promise to answer for the Debt, Default or Miscarriages of another

Person or to charge any Person upon any Agr eement 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 performed within the Space of

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

such Action shall be brought, or some Memora ndum or Note ther eof,

shall be in writing, and signed by the Party to be charged therewith,

or some other Person thereunto by him lawfully authori zed.5

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

tracts for the sale of goods, wares, and merchandise for the price of

£10 and more.6 Other provisions of the statuteapply to certain kinds

of arrangements concerning trusts. Two further categories were added

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

The f‌irst category concerned undertak ings by adults to ratify otherwi se

unenforceable contracts entered into during infancy.8 The second cate-

gory consisted of misrepresentations 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

5 Ibid, s 4.

6 Ibid,s 17. The treatme nt of informal contracts for t he sale of goods under section

17 is slightly differe nt from the section 4 scheme. Sect ion 17 perm its enforcement

if the buyer has a ccepted part of the goods or provi des partial pay ment or a

deposit. Other wise a note or memorandum of the ag reement signed by the par ty

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

in many juri sdictions, including En gland and the Canadi an common law

provinces, t he threshold amount typica lly being set at $40. The provision i s not

in accord with t he expectations of many p arties and has bee n repealed in several

provinces. Se e Statute Law Amendme nt Act, SBC 1958, c 52, s 17; An Act to Re peal

the Statute of Frauds, SM 1982 –83–84, c 34, s 27; Statute Law Amen dment Act

(Governmental Man agement and Services), SO 1994, c 27, s 54.

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

8 See now, for example, Sta tute of Frauds, RSO 1990, c S.19, s 7.

9 Ibid, s 8.