Teaching Assistants: Wayne Barnes on the Judicial Admission Exception to the Statute of Frauds

The various rules we call the Statute of Frauds (SoF) provide that certain contracts have to be in writing in order to be enforceable.  The doctrine, as its name suggests, renders nugatory fraudulent claims of an oral contract.  However, parties who know of the SoF can abuse it.  They can evade contractual obligations by refusing to reduce them to writing.  The law has adjusted in response to such sharp practices, creating numerous exceptions to the SoF.  Nowadays, a contract within the SoF has to be in writing unless the the party seeking enforcement can provide evidence (other than a writing) that a contract was formed.  

A judicial admission of the existence of a contract certainly provides such evidence, or so you would think.  It does so by statute with regard to the sale of goods, but only to the extent of the admission (see UCC § 2-201(3)(b).  But as Wayne Barnes (pictured) discusses in this article, forthcoming in the Wake Forest Law Review, the rule is still not absolute with respect to contracts governed by the common law.  In fact, as recently as 1951, throughout the United States, one could admit to a contractual obligation in a judicial proceeding and yet still assert an SoF defense to liability.  One could do so in all but eleven U.S. jurisdictions in 1991.  The life of the law, etc. . . .

Professor Barnes’ article updates scholarship since the last survey of the issue in 1991 and promotes the positions that states should adopt the judicial admission exception in non-UCC contexts.  The traditional defense of the refusal to adopt a judicial admission exception is that the exception encourages parties to commit perjury.  I find such reasoning stupefying.  Parties are under a legal obligation to honor their contractual obligations or pay damages.  They are also under a legal obligation to give truthful testimony in legal proceedings.  Both are independent duties subject to independent enforcement.  Either legal proceedings are a mechanism to force parties to admit to their oral obligations or they become a mechanism to make fraudulent or duplicitous conduct lawful.  

Would you like to know how many states have adopted the judicial exception to the SoF in non-UCC contexts since 1991?  Well, you’ll have to read the article!