Contracts That Must Be in Writing 必须以书面订立的合同

 

Contracts That Must Be in Writing 必须以书面订立的合同
I agree to mow your lawn. You agree to pay me $25. I mow your lawn you give me $15. I threaten to sue. After all, we did have an oral contract. Is it enforceable? Usually, it is, but the party seeking to enforce it must establish the existence of the contract as well as its actual terms. Naturally, when the parties have no written documents or memoranda about the contract, only oral testimony can be used in court to establish the existence of the terms of the contract. The problem with oral testimony is that parties are sometimes willing to perjure themselves in order to win lawsuits. This led to an early English statue that some contracts must be in writing to be enforceable. This act was known as “an act for the prevention of frauds and perjuries.” It became more commonly known as the statute of frauds. 我同意替你刈(yi)草坪。你答应付给我25美元。我刈了你的草坪。你给了15美元。我以起诉要挟。我们之间毕竟是有个口头合同的。这个合同能强制执行吗?通常是能强制执行的,但要求执行的一方必须证明合同以及合同实际条款之存在。很自然,当事人没有有关合同的书面文件或备忘录时,法庭上能使用口头证言以证实合同条款的存在。这就导致英国早年的一项制定法:某些合同必须是书面的才能执行。这项由国会通过的法律称作《欺诈与伪证防治法》。该法后来就通称为“欺诈防治条例”了。
   
Today, almost every state has a statute of frauds, modeled after the English act. The actual name is misleading since it neither applies to fraud nor invalidates any type of contract. Rather, it denies enforceability to certain contracts that do not comply with its requirements. Although the statutes vary slightly from state to state, with certain exceptions they all require the following types of contracts to be in writing or evidenced by a written memorandum: 时至今日,美国诸州均有其以该英国法为模式的欺诈防治法。这个实际上在使用的名称是令人误解的,因为它即与欺诈无涉,又不使任何一种合同无效。它只是对某些不符合该法规定的合同不予强制执行而已。虽然这种欺诈防治法各州略有不同,但除某些例外情况,各州无不规定下列各种合同必须以书面订立或由书面的备忘录佐证:
1. Contracts involving an interest in land 1. 涉及土地利益的合同;
2. Contracts that cannot by their terms be performed within one year from date of formation 2. 按条款规定不能在订立之日起一年内履行的各种合同;
3. Collateral contracts such as promises to answer for the debt or duty of another and promises by the administrator or executor of an estate to pay a debt of the estate personally, that is, out of his or her own pocket 3. 诸如允诺为他人债务或义务作保或遗产管理人、遗产执行人允诺有个人(即自己掏腰包)偿还遗产债务等伴随合同;
4. Promises made in consideration of marriage 4. 以结婚为原因的允诺;
5. Contracts for the sale of goods for more than $500 5. 价金超过500美元的商品买卖合同。
   
A contract calling for the sale of land is not enforceable unless it is in writing or evidenced by a written memorandum. Land is real property and includes all physical objects that are permanently attached to the soil, such as building, plants trees, and the soil itself. The statute of frauds operates as a defense to the enforcement of an oral contract for the sale of land. If S contracts orally to sell Blackacre to B but later decides not to sell, B cannot enforce the contract. Likewise, if B refuses to close the deal, S cannot force B to pay for the land by bringing a lawsuit. The statute of frauds is a defense to the enforcement of this type of oral contract. 规定要进行土地买卖的合同,非以书面订立或由书面备忘录佐证,不得强制执行。土地为不动产,包括永久附属于土地的一切实物,如建筑物、植物、树木和土壤本身。欺诈防治法的作用就是针对要求执行口头土地买卖合同而提出抗辩。如果S口头约定把勃勒克格产业出售给B后又决定不卖了,那么B是不能强制执行该合同的。同样,如果B已拒不成交,S也不能提起诉讼强制B某支付地价。欺诈防治法,是有人对这类口头合同要求强制执行而提出辩护的依据。
   
The statute of frauds applied not only to the sale of land but also to the sale or transfer of any interest in land. A life estate is an ownership interest in land as security for the repayment of a loan. The transfer of this security interest is also required to be in writing to be enforceable. 欺诈防治法不仅适用于土地买卖,而且也适用于任何土地权利的出售或转让。终身产权是保证返还贷款的土地所有权利益。这一担保利益的转让也必须以书面形式为之使能强制执行。
   
An easement is a legal right to use land without owning it. Easements are created expressly or implicitly. An express easement arises when the owner of land expressly agrees to allow another person to use the land. To be enforceable, this agreement must be in writing. Implied easements can arise from past conduct of the parties, and by its nature, implied, such an easement need not be in writing to be enforceable. 地役权是在对土地不拥有所有权的情况下使用土地的一种法律上的权利。地役权的设定或出于明示,或出于默示。土地所有人以明示同意准许他人使用其土地者为明示的地役权。这种协议,须以书面为之,使得强制执行。默示的地役权则来自双方当事人过去的行为而且按其性质是默示的,这种地役权毋需书面就能执行。
   
A lease is a transfer of possession of real estate for certain periods of time. Most states have statutes dealing specifically with leases apart from the statute of frauds and exempt leases of less than one year from the writing requirement, so that any lease lasting more than one year must be in writing. Some states extend this period. For example, Indiana allows lease to be oral for up to three years. 租赁是以一定的期限转让不动产的占有。大多数州除欺诈防治法外都有专门处理租赁的法律,并规定不满一年的租赁可不采取书面形式;这样,凡为其在一年以上的租赁都必须以书面订立。有些州延长了上述期限。如印第安纳州允许租期在三年内的口头租赁合同。
   
Since the statute of frauds is a defense against enforcement of an oral contract for the sale of land or an interest in land, problems arise when an oral contract has been partially performed. If the seller of land conveys title to the buyer, then the buyer’s oral promise to pay is enforceable. Conversely, if the buyer has paid part of the purchase price and taken possession of the premises or made permanent improvements to the property will be enforceable. 欺诈防治法是对要求强制执行口头的出售土地或土地利益合同的一种辩护理由,那么,当一份口头合同业已部分履行时,问题就出现了。如果土地出售人把产权转让给买方了,那么买方给付地价的口头允诺就可以强制执行。反过来说,如买方已给付部分买价并占有了上述地产或对该产业作了永久性的加工改良,那么卖方转让产权的口头允诺就能强制执行了。
   
On the other hand, when the purchase price has been paid, but the buyer has not taken possession, the parties can be returned to their original positions, so the courts will usually not grant specific performance. The test of whether specific performance will be granted is whether the parites can be returned to their original positions. If not, the courts will maneuver to find a contract that is enforceable outside the statute of frauds. 另一方面,买价虽已付清,但买方尚未取得占有,则双方都能恢复原状,法院通常不会判决实际履行。是否准予实际履行的测试标准,是双方当事人能否恢复原状。如不能恢复,法院会设法认定一个可在《欺诈防治法》之外强制执行的合同。
   
Contracts that cannot, by their own terms, be performed within one year from the date the contract is formed must be in writing to be enforceable. Since disputes over such contracts are unlikely to occur until some time after the contracts are made, resolution of these disputes is difficult unless the contract terms have been put in writing. 合同按其本身之条款不能在合同成立之日起一年内履行者,非以书面订立不得强制执行。由于这种合同纠纷在合同订立后经过一段时间才会发生,所以合同条款如未经书面订立,纠纷就难以解决。
   
In order for a particular contract to fall into this category, contract performance must be objectively impossible within a year from the date of contract formation. If the contract, by its terms, is possible (not probable) to perform within the year, the contract is not within the statute of frauds and need not be in writing. 某一个具体的合同要列入这种合同的范畴,必须是在合同成立之日起一年内客观上履行不能。如果该合同根据其条款可能(而不是大概)会在一年之内履行,那么它就不在《欺诈防治法》规定的范围之内,从而就不必用书面形式了。
   
In summary, the test to determine whether an oral contract is enforceable under the one-year rule of the statute of fraud is not whether an agreement is likely to be performed within a year from the date of making the contract. Rather, the question revolves around whether performance within a year is possible. Conversely, when performance of an oral contract is impossible during a one-year period, this provision of the statute of frauds will bar recovery on an oral contract. 总之,根据《欺诈防治法》的一年规则来判定一项口头合同能否强制执行,其测试标准不是协议能否在订约之日起一年内履行。问题的关键在于一年内履行是否可能。反过来说,如某口头合同在一年期限内是不可能履行的,那么《欺诈防治法》的这项规定就会制止根据一项口头合同而进行的追索。