SMU Law Review Forum


The “sufficient writing” requirements of the Statute of Frauds were formulated with bargain-based contracts in mind. It is often difficult if not impossible for persons to meet those requirements for reliance-based contracts, since this would require them to produce a writing signed by the promisor that not only sufficiently evidenced the promise, but also provided sufficient evidence of the other elements of such reliance-based contracts: the foreseeability of their subsequent reliance upon the promise, the fact of their reliance, and that failure to enforce the promise would be unjust.

There are several ways that courts can avoid the harsh results of applying the usual Statute of Frauds sufficient writing criteria to reliance-based contracts: (1) regard promises made binding through reliance as not constituting “contracts” subject to the Statute of Frauds, (2) relax the sufficient writing requirement for reliance-based contracts to require only evidence that the promise was made, or (3) estop the promisor from asserting a Statute of Frauds defense, under appropriate circumstances. This short article argues that the third approach is the best one for courts to pursue, and that sufficient guidance for courts as to when to apply estoppel is provided by Section 139 of the Restatement (Second) of Contracts.

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