A. Introduction

• Author: John D. McCamus
• Profession: Professor of Law. Osgoode Hall Law School, York University
• Pages: 160-161

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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.¹With the recognition of other kinds of claims, in particular, the action in assumpsit,²the common law developed the capacity to enforce a much broader range of types of undertakings, including those that were merely oral or informal. In the modern era, then, the common law enforces agreements in writing, whether or not under seal,³oral agreements and agreements that are partly oral and partly in writing. In this chapter, we consider various doctrines 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 agreement is to be enforced. Although the common law no longer requires that agreements must be recorded in writing in order to be enforceable, there are a number of statutory schemes that require that certain types of agreements be written in form. The most important source of

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these rules is the English Statute of Frauds of 1677⁴and, 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 written 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 agreement in writing. Where the parties have a common intention to do so, their contractual relationship will normally be constituted by the written agreement. In many circumstances, however, a written document will be furnished by one party to the other in the course of negotiating or concluding an agreement and the question may then arise as to whether terms set out in the written document are incorporated within 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 considered 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...