Agreements in Writing

AuthorJohn D. McCamus
Pages177-229
177
CHA PTER 6
AGREEMENTS IN
WR ITING
A. INTRODUCTION
In a much earlier era, the common law enforced only underta kings
recorded in writing and e xecuted under seal. Such undertakings could
be enforced in medieval law in an act ion 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 undert akings, including those t hat were merely oral or infor-
mal. In the modern era, t hen, the common law enforces agreements in
writing, whether or not under seal,3 oral agreements and agreements
that are partly oral and partly in wr iting. In this chapter, we consider
various doctrine s relating to the formation of written agreements. First,
we examine the doctr ine requiring cert ain 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 i n 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 167 74 and, from a Canadian
perspective, its progeny in the common law province s. Additionally,
however, there are a number of other statutes, typically of a consumer
protection nature, that require th at certain typ es of agreements must
be created in the form of a wr itten document in order to be enforceable.
Quite apart from a legislative requi rement that certain ty pes of
agreements be recorded in wr iting, it will, of course, often meet the
convenience of one or both parties to record the terms of an ag ree-
ment in writing. Where the pa rties have a common intention to do so,
their contractual relat ionship will normally be constituted by the writ-
ten agreement. In many circum stances, however, a written document
will be fur nished by one party to the other in t he course of negotiat-
ing or concluding an agreement and the question may t hen arise as to
whether terms set out in the wr itten document a re incor porated w ithin
the agreement between the par ties. The jurisprudence relating to t he
incorporation of written terms in the agreement between the par ties is
the second aspect of the law relati ng 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 wr itten
document should form the exclusive source of the terms of the contrac-
tual relationship between t he 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 re spect
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, remain s controversial. It is the third topic exam-
ined in th is chapter.
B. AGREEMENTS REQUIRED TO BE IN
WRITING: THE STATUTE OF FRAUDS
1) Introduction
Original ly 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 Writing 179
that certain t ypes 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 sha ll be brought whereby to charge any Executor or
Administ rator upon any special Promi se, to answer Dam ages out of
his own Est ate or whereby to ch arge the Defendant upon any special
Promise to an swer for the Debt, Default or Miscar riages of another
Person or to charge any Person upon any Agr eement made upon Con-
sideration of Marr iage or upon any Contract or Sale of Land s, Tene-
ments or Hereditament s, or any Interest in or concerni ng them or
upon any Agreement that i s not to be performed with in 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 w riting, and signed by t he Party to be charged t herewith,
or some other Person thereunto by hi m lawfully authori zed.5
In section 17 of the statute, similar requirements were i mposed on con-
tracts for the sale of goods, wares, and merchandise for the price of
£10 and more.6 Other provisions of t he statute apply to certain kinds
of arrangements concerning trusts. Two further categories were added
to the statute by Lord Tenterden’s Act7 in the early-nineteenth centur y.
The f‌irst category concerned undertak ings by adults to ratify otherwi se
unenforceable contracts entered into during in fancy.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 again st 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.

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