Bill Long 12/7/05
Entering the Morass of 19th Century Interpretation
I have the strange feeling as I try to understand the history of nearly every concept I study that there really is not clarity in the cases or the concept, even though law has historically prided itself on clear rules and lucid reasoning. Well, that indeed would be an interesting study. Did judges in the 18th and 19th centuries, for example, think that they were bringing consistency to law or that it was their task to effect such consistency? Today we support the notion of the predictability of law almost without question. We may be living in worlds of deception (regarding how "fixed" the law actually is), but at least that is the mental world in which many of us live. But how about judges of 150 or 250 years ago? The question is now out there...
Introducing the Statute
The purpose of this and the next essay or two is to explore some pressure points of interpretation of the statute of frauds as it relates to the sale of goods. I want to focus on 19th century and early 20th century cases in order to understand the context for the promulgation of the UCC in the 1950s. We know or should know that the statute was enacted in 1677, the 18th year of the reign of Charles II. But, interestingly enough, the statute is known as 29 Car. II, ch. 3, sec. 17. What? Charles II never reigned 29 years. Why is 1677 considered, for statutory purposes, to the be the 29th year of a man who only reigned 25 years? We know that Charles II's father, Charles I, lost his head (literally) in 1649, which led to an "interregnum" of 11 years, during which time there was a civil war and the Protectorate of Oliver Cromwell. Finally, the Restoration of Charles II in 1660 led to renewed prosperity and loosening of some of the Puritan scruples and rules of Cromwell and his ilk. So, history teaches us that there was no king in England for 11 years. But law doesn't agree with that. It assumes that there never was a time when England lacked a monarch. Thus, the 1st regnal year of Charles II, for purposes of statutory numbering, is 1650. A nice bit of mythology is here, don't you agree?
Well, that statute, passed in 1677, in general required that all contracts in six specific areas be reduced to writing. These were (1) contracs involving the sale of an interest in land; (2) contracts, the performance of which extended beyond one year; (3) contracts where one promises to be a surety; (4) promises the consideration for which is marriage [now that deserves some essays...]; (5) contracts for the sale of goods worth more than 10 pounds sterling [increased in later days] and (6) certain promises by executors and administrators, specifically a promise of an executor to andminister the debt of a defendant. My concern here and in the following essays is only with (5).
Sales of Goods and the Statute of Frauds
So, it seems to be an easy enough determination to make that if you have a sale of goods or contract for the sale of goods for more than the statutory limit it must, in order to be legally enforceable, be in a written form. Thus, a contract for the sale of goods for $600 must be in writing or, if not, the buyer can successfully claim that no contract was ever made. We say that such a claim would be "within the statute of frauds," which means that the defendant in a suit for payment can interpose the defense of the statute of frauds and have no liability for the contract. How simple can you get? Well, if you stay around law long enough, you realize that it can make almost everything difficult, even things that are seemingly crystal clear.*
[*Time, and concern for my mental health, does not permit a demonstration of how law and legal scholarship really has a field day when things are not seemingly crystal clear. I only intend here to show how law manages to make clear things murky, or in reversing words of the season, it makes plain places rough and every place made low into a mountain or hill.]
As we enter into the world of the statute of frauds, I want to indicate a number of areas where problems tended to arise in its interpretation in the 19th century. The first thing to understand is that the statute under consideration in each jurisdiction may not be the same as in other jurisdictions. One of the problems with the 19th century cases is that the court never quotes the statute it is construing. We don't know, for example, whether the state had adopted all parts of section 4 of the original statute or not (I give the statute as found in the USA of 1906 here). A second issue, dealt with in the next essay, has to do with the interpretation of the difference between a sale of goods and a contract for services. In today's terminology this is called a "hybrid" transaction, but it was faced no less urgently by people 150 years ago. This is a threshold question, one that has to be decided before you can decide whether the transaction is "within" the statute.
A third area that will run through the cases is whether a transaction concerns an interest in land or a sale of goods. The UCC tends to clear this issue up, but I think it is touching and not a bit discouraging to read the history of the cases to determine if growing timber, or hops, or rocks, or turnips, or grass are considered goods or realty for purposes of the statute of frauds. Then, there is always the issue of "results-oriented" jurisprudence as you work through some of the old cases. We know that often courts seem to reach the "right result" even if they don't have a good "legal" ground to do it. We see this tendency in cases regarding the statute of frauds.
Thus, we need to pay close attention to the facts of each case and try to understand the "moves" that courts make in order to help us read and understand the statute. The next essay explores the problem of how courts dealt with sales vs. service in the 19th century with respect to the statute of frauds.
Copyright © 2004-2008 William R.Long