Statute of Frauds
The doctrine that certain categories of contracts are unenforceable unless evidenced by a writing signed by the party to be charged. Texas codifies the statute of frauds for general contracts at Tex. Bus. & Com. Code Ch. 26 and for sales of goods at § 2.201.
The statute of frauds is the doctrine that certain categories of contracts are unenforceable unless evidenced by a writing signed by the party to be charged. Texas codifies the statute of frauds for general contracts at Tex. Bus. & Com. Code Chapter 26 and for sales of goods at § 2.201.
Categories requiring a writing (§ 26.01)
(1) Promises by an executor or administrator to answer for the estate's debt out of the executor's own estate; (2) promises to answer for the debt, default or miscarriage of another (suretyship, guaranty); (3) agreements made on consideration of marriage or of nonmarital conjugal cohabitation; (4) contracts for the sale of real estate; (5) leases of real estate for a term longer than one year; (6) agreements not to be performed within one year from the date of making; (7) promises to pay a commission for the sale or purchase of an oil or gas mining lease, an oil or gas royalty, minerals or a mineral interest; (8) agreements, promises, contracts or warranties of cure relating to medical care made by a physician or health care provider. Separately, § 26.02 requires a signed writing for a loan agreement with a financial institution involving more than $50,000, if the institution gave the conspicuous notice the section prescribes. Real estate brokerage commissions require a signed writing under Tex. Occ. Code § 1101.806(c).
Sale of goods (§ 2.201)
Contracts for the sale of goods for $500 or more must be evidenced by a writing, with several exceptions (specially manufactured goods, admission in litigation, partial performance, merchant confirmation rule). See Sale of Goods.
Required writing
The writing need not be a single document or a formal contract. For a sale of goods, it need only indicate that a contract was made and be signed by the party to be charged, and it is enforceable only up to the quantity stated (§ 2.201(a)). For agreements under Chapter 26, the writing must contain the essential terms of the agreement, so that the contract can be ascertained without resort to oral testimony (Cohen v. McCutchin, 565 S.W.2d 230 (Tex. 1978)). An exchange of emails, text messages, or other electronic communications can satisfy the requirement under the Texas Uniform Electronic Transactions Act (Tex. Bus. & Com. Code Ch. 322) if the parties agreed to conduct the transaction electronically, which can be inferred from context and conduct (§ 322.005(b)). The record must still be signed, electronically or otherwise, by the party to be charged.
Main purpose doctrine
A common-law exception to the suretyship/guaranty writing requirement: where the guarantor's primary purpose in promising to pay another's debt is to advance the guarantor's own economic interest, the oral promise may be enforceable.
The statute of frauds is an affirmative defense that must be pleaded (Tex. R. Civ. P. 94). Most disputes turn on whether the writing is sufficient and whether the party to be charged signed it. Modern electronic communication has made the "writing" element easier to satisfy than in earlier eras. The doctrine remains a meaningful trap for oral side agreements modifying written contracts.
Companion article: Contract Disputes in Texas
Practice guide: Breach of Contract in Texas