Also known as: part performance · partial performance exception · part-performance exception · statute of frauds part performance · part performance doctrine
Written by attorneys · grounded in primary & secondary sources — see below
An exception to the statute of frauds that permits recovery in restitution for benefits conferred by part performance when a contract has been avoided on grounds such as mistake or misrepresentation. The claim is not treated as an action upon the contract. The rule applies after avoidance on any statutory ground and allows recovery of the reasonable value of improvements or other benefits conferred.
Priya Prasad paid two installments on an oral land contract with Parker Phillips before discovering a mutual mistake about the parcel's boundaries. She avoided the contract and sought return of the payments. The court awarded restitution because her payments constituted part performance that conferred a measurable benefit on Phillips.
Perry Pratt relied on a paving subcontractor's oral bid when submitting his own prime contract proposal. After winning the job he ordered the subcontractor to begin work. The subcontractor attempted to withdraw. The court enforced the bid because Pratt's preparation and award of the prime contract constituted part performance that made the offer irrevocable.
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Pedro Pacheco purchased a lot in a subdivision and began constructing a home in reliance on an oral promise that all lots would be subject to uniform building restrictions. Later buyers sought to ignore the restrictions. The court applied the part performance exception and enforced the restrictions against the later purchasers.
Piper Patel sold her business and moved in to care for an elderly neighbor after an oral promise that the house would pass to her at death. She provided daily care for five months until the neighbor died. The court refused to enforce the promise because the caregiving did not unequivocally refer to a contract for the land.
Paula Pierce occupied and improved family farmland for years after an oral agreement with her siblings that she would receive title upon paying off the mortgage. When the siblings later denied the agreement she sued for specific performance. The court enforced the oral promise because her long-term possession and mortgage payments constituted sufficient part performance.
Patriot Insurance tendered a deposit check noting the purchase price and property address after an oral agreement to buy land from Prosperity Investments. The buyer then incurred survey and attorney fees. When the seller refused to convey the court ordered specific performance because the check and subsequent expenditures supplied part performance that satisfied the statute of frauds.
Many courts limit the exception to contracts for the sale of land. Some jurisdictions refuse to extend it to other statute-of-frauds categories such as contracts not performable within one year.
The performance must be unequivocally referable to the alleged oral contract. Acts that are equally consistent with some other explanation will not suffice.
Some courts restrict the exception to equitable claims for specific performance. Others permit damages when the part performance also satisfies the evidentiary function of the statute.
Payment by itself is usually insufficient unless accompanied by possession or improvements that clearly refer to the contract.
…of the requested performance is given, the offeror will not revoke his offer, and that if tender is made it will be accepted. Part performance or tender may thus furnish consideration for the subsidiary promise. Moreover, merely acting in justifiable reliance on an offer may in some cases serve as sufficient reason for making a…