Do emails satisfy the statute of frauds? Sometimes yes, sometimes no.
A recent Texas Supreme Court case provides a helpful explanation of the Statute of Frauds and when a party can raise an affirmative defense that a contract is unenforceable because it is not in writing.
What is the Statute of Frauds?
As a reminder, the Statute of Frauds (each state has a version of this law) provides that certain contracts must be in writing to be enforceable. One type of contract that must be in writing is a contract for the sale or purchase of real property (land). You can see Texas’s version of the law here.
The Texas Supreme Court Considered a Case where the Party Seeking to Enforce the Agreement Relied on Emails
Texas law provides that in a sale of real property (here the sale was for an easement), and a party seeks to enforce the agreement, “there must be a written memorandum which is complete within itself in every detail…”. In this case, landowners wanted to enforce the agreement to sell the easement but there was no written contract. Instead, they relied on a series of emails between themselves and the buyer.
The Court agreed that emails as a general rule can satisfy the Statute of Frauds. That is, sometimes an email exchange can contain the necessary terms of an agreement so the Statute of Frauds will be satisfied.
But in this case, no such luck for the sellers. The Court concluded that the email exchanges reflected negotiations for a future agreement that the parties contemplated. However, because much of the language in the emails was in the future tense and did not reflect a present intention to be bound by the terms of any agreement, the emails did not form a written contract.
The Emails Merely Stated Potential Contract Terms
Finding that the emails did not satisfy the Statute of Frauds, the Court explained that the emails stated at best potential contract terms. Not good enough!
According to the Texas Supreme Court, the writing must evidence the “agreement…so the contract can be ascertained.” Here, the writings referred to terms to be agreed upon at future meetings. As a result, the purported agreement was unenforceable because there was no written contract to satisfy the Statute of Frauds.
Future terms do not satisfy the Statute of Frauds
“…in preparation for the meeting…”
“…will be asking for… “