Also known as: original promise · collateral promise · original promises · collateral promises · statute of frauds · promise to answer for debt of another
Written by attorneys · grounded in primary & secondary sources — see below
2 senses
A direct undertaking by which the promisor creates a primary obligation of its own.
A direct undertaking by which the promisor creates a primary obligation of its own.
Select any source to read its text and confirm it supports the definition.
An undertaking to answer for the duty of another and falls within the suretyship provision of the statute of frauds unless the main-purpose exception applies.
Select any source to read its text and confirm it supports the definition.
An undertaking to answer for the duty of another and falls within the suretyship provision of the statute of frauds unless the main-purpose exception applies.
Each sense below has its own examples, sources, and questions.
Harper agreed with BuilderCo to pay for a home addition. BuilderCo began site work immediately after the handshake. Harper later refused, claiming no signed writing existed. Because Harper's promise ran directly to BuilderCo for its own performance, the promise was original and enforceable without a writing.
A promise is original when the promisor undertakes a direct, primary obligation to the promisee. It is collateral when the promisor merely answers for the duty of a third person. The main-purpose rule may remove a collateral promise from the statute when the promisor's primary object is to benefit itself.
Supporting sources
Logan and Kirk reached a handshake deal allowing Kirk to place hives on the farm for three harvest seasons in exchange for monthly payments. Kirk took possession and paid rent. Because the duration did not exceed one year under the controlling statute, the oral lease created an enforceable tenancy at will.
A developer recorded a declaration imposing use restrictions on every lot in a new subdivision. East Dev purchased a lot subject to the recorded servitudes. The recorded declaration satisfied the statute of frauds and created enforceable servitudes that ran with the land.
River Education and State M signed a letter naming the parties, describing two classrooms, stating a $150 per-class fee, and fixing a five-year term. State M later tried to reassign the rooms. Because the signed writing contained every required element, the lease satisfied the statute of frauds and bound State M.
East Dev took possession of a municipal building, paid monthly fees for fourteen months, and made improvements. The City later sought eviction, citing the lack of a writing for a multi-year term. Because possession and rent acceptance occurred, a month-to-month periodic tenancy arose even though the original oral statement contemplated two years.
Three partners signed a side letter reducing one partner's capital contribution after the original written agreement had been relied on by a bank. The fourth partner never consented. Because both the original and remaining periods exceeded one year, the oral modification was invalid under the statute of frauds.
Possession plus payment and acceptance of rent creates a periodic tenancy even if the original oral agreement contemplated a longer term. Substantial performance clearly referable to the lease terms can also enforce the full agreement.
The writing must identify the parties, the premises, the duration, the rent, and be signed by the party to be charged. Absence of any required element, especially duration, renders the lease unenforceable.
…Cal. App.2d 413; Cline v. Festersen, supra, 128 Cal. App.2d 380), the court expressly rejected defenses grounded upon the statute of frauds. [^maj-10]: A great variety of other arrangements are possible. The parties might keep their earnings and property separate, but agree to compensate one party for services which benefit…