MOOT, MOCK AND DEBATE SOCIETY UNIVERSITY OF JOS: THE INDELLIBLE MARK OF THE PEN; UNLOCKING THE POWER OF WRITTEN CONTRACTS.

By BATURE NORO KEZIAH

In the digital age, where communication is increasingly reduced to fleeting keystrokes, the humble pen remains an indispensable tool for shaping the course of human affairs. From historic treaties to everyday transactions, the written word has long been the cornerstone of contractual agreements. This article delves into the significance of contracts required to be in writing, exploring the intricacies of this fundamental principle and its far-reaching implications.

DEFINITION 

A contract is defined as an agreement which the law will enforce or recognize as affecting the legal rights and duties of the parties. A contract can also be defined as a promise or set of promises the law will enforce. Tobi J.C.A, has defined a contract as an agreement between two or more parties which creates reciprocal legal obligations to do or not to do particular things. For a contract to be valid, “ there must be mutuality of purpose and intention ". The case of Odubawo v FSDM Sec. Ltd (2020) 8 NWLR (pt 1725) defines a contract as;

“ A legally binding agreement between two or more persons in which rights are acquired by one party in return for acts or forbearances of the other party. For there to be an enforceable contract, there must co-exist a precise offer, an unqualified acceptance, a legal consideration, and intent to create legal relation. In other words, there must be the mutuality of purpose and intention between the contracting parties. Put differently, there must be a meeting of the minds of the contracting parties, or consensus ad idem, on the terms of the agreement.”

STATUE OF FRAUDS ACT 1677; A HISTORICAL PERSPECTIVE 

Contracts can take various forms; formal (i.e., under seal) and informal. Informal contracts can be either written or oral. The important point is that unless there is a special statutory provision to the contrary, form has no effect whatsoever on validity and effect of contracts. However, starting with the English Statue of Frauds in 1677, specific forms have been progressively prescribed by statues for various types of contracts. For example, a lease in excess of three years must be executed under seal. Others are required to be in writing but not under seal.

The statue of Frauds has its roots in the Act for Prevention of Frauds and Perjuryes, which was passed by the English Parliament in 1677 under King Charles II.  The legislation, which stipulated that a written contract be used for transactions where a large amount of money was at stake, aimed to prevent some of the misunderstandings and fraudulent activity that can occur when relying on oral contracts. Indeed the English legal System of the time suffered from a lack of written evidence. The courts were clogged with lawsuits and cases were often settled by using professional witnesses who were paid for their testimony. Perjury and corruption became the norm. The Statue of Frauds Act was originally enacted to arrest prevailing practices whereby unscrupulous litigants pursued false or groundless claims with the aid of false evidence. The statue was intended to eliminate such arbitrariness and the attendant injustice by requiring evidence of an alleged claim in writing, before enforcing the claim. The Statue, therefore, provided that SIX categories were not to be enforceable unless they were in writing, signed by the party to be charged, I.e., the defendant. They include;

Despite being enacted over 340 years ago, the Statute of Frauds Act 1677 remains a cornerstone of contract law in many jurisdictions, including Nigeria, the United Kingdom, and the United States. Its modern relevance can be seen in several areas:

The Statute of Frauds Act 1677 was originally designed to prevent fraudulent claims by requiring certain contracts to be in writing. This protection remains essential in modern times, as it helps to prevent scams, misrepresentations, and other forms of fraudulent activity.

The Act's requirement for written contracts ensures that parties have a clear and unambiguous record of their agreement. This clarity and certainty are crucial in modern business transactions, where complex deals and agreements are commonplace.

By requiring written contracts, the Statute of Frauds Act 1677 helps to prevent disputes in litigation that may arise from misunderstandings or misinterpretations. This is particularly important in modern commerce, where the stakes are high and the consequences of such disputes can be severe.

The rise of e-commerce and digital transactions has led to an increased focus on the Statute of Frauds Act 1677. Many jurisdictions have adapted the Act to accommodate electronic contracts and signatures, ensuring that online transactions are protected and enforceable.

LEGAL CHALLENGES AND ENFORCEABILITY 

Contracts that fall under the provisions of the Staute of Frauds but fail to meet its requirements are generally unenforceable. However there are a few exceptions to the rule provided by the Statute of Frauds Act, they include;

(III)Custom or Trade Usage: In certain industries or trades, contracts may be enforceable despite the lack of writing, if the custom or trade usage is to conduct business orally.

CONCLUSION 

The Statute of Frauds Act, a centuries-old legislation, remains a cornerstone of contract law in many jurisdictions. The Act's provisions, though stringent, are designed to safeguard against fraudulent claims, ensure clarity and certainty in contracts, and prevent disputes and litigation. However, the Act's requirements can also render certain contracts unenforceable, leaving parties vulnerable to disputes and financial losses.

Through this exploration of contracts unenforceable by the Statute of Frauds Act, we have navigated the complexities of the Act's requirements. We have also examined the various exceptions to these requirements, which provide a safety net for parties who may have inadvertently failed to comply with the Act's provisions.

The implications of the Statute of Frauds Act are far-reaching, affecting not only businesses and individuals but also the broader economy. By understanding the Act's requirements and exceptions, parties can better navigate the complexities of contract law, minimizing the risk of disputes and ensuring that their agreements are enforceable.

_References_

1. Nigerian Contract Act (2022)

2. UK Statute of Frauds Act 1677

3. US Uniform Commercial Code (UCC)

4. Nigerian law of contract by Sagay (second edition)