Formalities in Law
FORMALITIES
Common law has no form requirements for contracts: oral contracts are enforceable
Consequences of failure of complying with formal requirements vary from statute to statute but include penalties, fines and civil consequences ie. Non-enforceability of contract Legislation imposes formal requirements for certain types of contract (this goes beyond the common law) ; e.g.:
Consumer credit (has to have warnings, and writing)
Sale of motor vehicle (needs written work of purchasing car before registering)
Residential tenancy (lease drafted signed by vendor/real-estate agent and seller)
Building contract (needs to be in writing)
Reasons for form requirements: 1. When parties have got written evidence, it makes life for courts easier in comparison to oral contracts-usually more serious= increases enforceability, provides reliable evidence that contract has been made allowing easily identifiable terms .Reduces controversy and time 2. Promotions caution, drawing attention of parties to the potentially serious consequences of the agreement 3. Protection of the vulnerable party: Forces stronger party to set out terms they wish to impose in a form that makes the terms more likely to to be understood, and harsh or important terms more likely to be noticed by the vulnerable party. 4. Channelling function: Helps to identify particular types of transactions and to mark them as enforceable or unenforceable
Most known historical source for the requirement of writing is the English STATUTE OF FRAUDS 1677, which found its way into the law of most common law jurisdictions
-No action should be brought on contracts of particular types unless the agreement or some memorandum or not the agreement was in writing and signed
-Designed to prevent fraudulent claims being made on the basis of false evidence (Was created at a time where a party could pay a witness to provide a false testimony of a verbal agreement between the parties in
Common law has no form requirements for contracts: oral contracts are enforceable
Consequences of failure of complying with formal requirements vary from statute to statute but include penalties, fines and civil consequences ie. Non-enforceability of contract Legislation imposes formal requirements for certain types of contract (this goes beyond the common law) ; e.g.:
Consumer credit (has to have warnings, and writing)
Sale of motor vehicle (needs written work of purchasing car before registering)
Residential tenancy (lease drafted signed by vendor/real-estate agent and seller)
Building contract (needs to be in writing)
Reasons for form requirements: 1. When parties have got written evidence, it makes life for courts easier in comparison to oral contracts-usually more serious= increases enforceability, provides reliable evidence that contract has been made allowing easily identifiable terms .Reduces controversy and time 2. Promotions caution, drawing attention of parties to the potentially serious consequences of the agreement 3. Protection of the vulnerable party: Forces stronger party to set out terms they wish to impose in a form that makes the terms more likely to to be understood, and harsh or important terms more likely to be noticed by the vulnerable party. 4. Channelling function: Helps to identify particular types of transactions and to mark them as enforceable or unenforceable
Most known historical source for the requirement of writing is the English STATUTE OF FRAUDS 1677, which found its way into the law of most common law jurisdictions
-No action should be brought on contracts of particular types unless the agreement or some memorandum or not the agreement was in writing and signed
-Designed to prevent fraudulent claims being made on the basis of false evidence (Was created at a time where a party could pay a witness to provide a false testimony of a verbal agreement between the parties in