Remedy, Reason, and the Statute of Frauds: A Critical Economic Analysis

The statute of frauds, which is in effect in every American jurisdiction, provides that certain contracts must be in writing to be enforceable. The statute is not uniformly enforced, and it has many exceptions. The reasons traditionally offered by courts and commentators for these exceptions are inadequate. Traditional explanations posit that the courts create exceptions to the statute of frauds if (1) it is necessary to prevent the statute from being used as a shield for fraud, or (2) the evidentiary purpose of the statute is satisfied by evidence of the existence of the alleged contract that is at least as reliable as a writing.

Such explanations are inadequate because they do not explain what the courts actually do.