2017 ORS 41.580¹
Statute of frauds

(1) In the following cases the agreement is void unless it, or some note or memorandum thereof, expressing the consideration, is in writing and subscribed by the party to be charged, or by the lawfully authorized agent of the party; evidence, therefore, of the agreement shall not be received other than the writing, or secondary evidence of its contents in the cases prescribed by law:

(a) An agreement that by its terms is not to be performed within a year from the making.

(b) An agreement to answer for the debt, default or miscarriage of another.

(c) An agreement by an executor or administrator to pay the debts of the testator or intestate out of the estate of the executor or administrator.

(d) An agreement made upon consideration of marriage, other than a mutual promise to marry.

(e) An agreement for the leasing for a longer period than one year, or for the sale of real property, or of any interest therein.

(f) An agreement concerning real property made by an agent of the party sought to be charged unless the authority of the agent is in writing.

(g) An agreement authorizing or employing an agent or broker to sell or purchase real estate for a compensation or commission; but if the note or memorandum of the agreement is in writing and subscribed by the party to be charged, or by the lawfully authorized agent of the party, and contains a description of the property sufficient for identification, and authorizes or employs the agent or broker to sell the property, and expresses with reasonable certainty the amount of the commission or compensation to be paid, the agreement shall not be void for failure to state a consideration.

(h) An agreement, promise or commitment to lend money, to otherwise extend credit, to forbear with respect to the repayment of any debt payable in money, to modify or amend the terms under which the person has lent money or otherwise extended credit, to release any guarantor or cosigner or to make any other financial accommodation pertaining to an existing debt or other extension of credit. This paragraph does not apply:

(A) If no party to the agreement, promise or commitment is a financial institution as defined in ORS 706.008 (Additional definitions for Bank Act), a consumer finance company licensed under ORS chapter 725 or a mortgage banker as defined in ORS 86A.100 (Definitions); or

(B) To a loan of money or extension of credit to a natural person which is primarily for personal, family or household purposes and not for business or agricultural purposes or which is secured solely by residential property consisting of one to four dwelling units, one of which is the primary residence of the debtor.

(2)(a) Except as provided in this subsection, defenses and exceptions created by provisions of the Oregon Revised Statutes or recognized by the courts of this state do not apply to subsection (1)(h) of this section.

(b) An agreement, promise or commitment which does not satisfy the requirements of subsection (1)(h) of this section, but which is valid in other respects, is enforceable if the party against whom enforcement is sought admits in the party’s pleading, testimony or otherwise in court that the agreement, promise or commitment was made. The agreement is not enforceable under this paragraph beyond the dollar amount admitted.

(c) Nothing in subsection (1)(h) of this section precludes a party from seeking to prove the modification of any term relating to the time of repayment.

(3)(a) If a financial institution as defined in ORS 706.008 (Additional definitions for Bank Act), a consumer finance company licensed under ORS chapter 725 or a mortgage banker as defined in ORS 86A.100 (Definitions) lends money or extends credit, and subsection (1)(h) of this section applies to the loan or extension of credit, the financial institution, consumer finance company or mortgage banker shall, not later than the time the loan or extension of credit is initially made, include within the loan or credit document, or within a separate document which identifies the loan or extension of credit, a statement which is underlined or in at least 10-point bold type and which is substantially to the following effect:

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Under Oregon law, most agreements, promises and commitments made by us concerning loans and other credit extensions which are not for personal, family or household purposes or secured solely by the borrower’s residence must be in writing, express consideration and be signed by us to be enforceable.

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(b) The financial institution, consumer finance company or mortgage banker shall obtain the borrower’s signature on the original document described in paragraph (a) of this subsection and shall give the borrower a copy. [Amended by 1989 c.967 §§1,19; 1993 c.508 §39; 1997 c.631 §373; 2003 c.386 §1]

Notes of Decisions

In General

“Void”

Contract that by its own terms is capable of performance within one year is outside Statute of Frauds and no writing is re­quired. Sun Studs, Inc. v. Applied Theory Associates, Inc., 772 F2d 1557 (1985)

Statute of frauds does not require “delivery” of writing. D’Angelo v. Schultz, 306 Or 504, 760 P2d 866 (1988)

“Subscribed”

Unsigned agree­ment out­line arriving in same envelope as cover letter which did not by reference incorporate agree­ment and signed by patent attorney of party did not satisfy subscrip­tion require­ment of this sec­tion. Sun Studs, Inc. v. Applied Theory Associates, Inc., 772 F2d 1557 (1985)

Waiver of de­fense

Where, in trial court, no demurrer has been filed nor objec­tion raised that contract is void and unenforceable under Statute of Frauds, this conten­tion cannot be raised for first time on ap­peal. Southworth v. Oliver, 284 Or 361, 587 P2d 994 (1978)

In suit by op­tionees to obtain specific performance of written op­tion to purchase real prop­erty, where op­tionees alleged that op­tionor orally agreed to extend time for exercise of op­tion, complaint raised issue of whether landowner waived contract pro­vi­sion and was estopped to later retract waiver and rely on strict terms of contract. Davidson v. Wyatt, 289 Or 47, 609 P2d 1298 (1980)

Void Agree­ments

Scope

An oral agree­ment purporting to create rights of survivorship in real prop­erty is within the statute. Bridgman v. Stout, 10 Or App 474, 500 P2d 731 (1972)

Fiduciary rela­tionship may exist between seller and broker prior to written agree­ment authorizing or employing broker. Starkweather v. Shaffer, 262 Or 198, 497 P2d 358 (1972)

If a contract, otherwise to continue for more than a year, is by its own terms subject to termina­tion within a year, it is not within the pro­hi­bi­­tion. Frontier Ins. Agency, Inc. v. Hartford Fire Ins. Co., 262 Or 470, 499 P2d 1302 (1972)

An interest in a limited partnership may be created by parole despite the fact that the limited partnership had interests in real prop­erty. Pyle v. Wolf Corp., 354 F Supp 346 (1972)

When vendee sues for money had and received, seeking to recover pay­ment made pursuant to an agree­ment within this sec­tion, vendor is entitled to prove that vendee’s breach of the oral agree­ment harmed vendor. Golden v. Golden, 273 Or 506, 541 P2d 1397 (1975)

When the promise to pay the debt of an­oth­er is relied upon and the reliance is sought to subserve the business purposes of the promisor, the promise does not come within the purview of this sec­tion. Meader v. Orbit Inn Corp., 276 Or 921, 556 P2d 1365 (1976)

The purchase, develop­ment and sale of an apart­ment project could properly be shown by parol evidence as being within the scope of a partnership agree­ment. Harestad v. Weitzel, 272 Or 199, 536 P2d 522 (1977)

A contract which contained pro­vi­sion allowing either party to terminate 90 days after plaintiff began performance was not within this sec­tion. Thompson v. Industrial Lumber Co., 41 Or App 519, 599 P2d 468 (1979), Sup Ct review denied

Vendor’s state­ments that vendees should not settle suit to quiet title to ease­ment were admissible since that part of agree­ment, if any, did not involve transfer of real prop­erty, but rather authority to settle law suit. Marshall v. Wattles, 67 Or App 442, 678 P2d 762 (1984)

Where there was ample evidence to support finding that defendant’s main purpose in guaranteeing Wind Surfing’s debt was his own substantial, per­sonal, immediate and pecuniary interest in receiving money he had loaned Wind Surfing as general creditor, trial court was correct in holding that main purpose excep­tion to Statute of Frauds was applicable. White Stag v. Wind Surfing, Inc., 67 Or App 459, 679 P2d 312 (1984)

Where issue of fact exists as to whether written premarital agree­ment was destroyed by defendant, defendant may not invoke this sec­tion to protect fraud. Baker v. Mohr, 111 Or App 592, 826 P2d 111 (1992)

Estoppel

Allega­tion that plaintiff gave up prior posi­tion in order to take employ­ment for term in excess of one year with defendant was sufficient to state cause of ac­tion on oral agree­ment which was otherwise within statute and was sufficient to defeat defendant’s demurrer. Stevens v. Good Samaritan Hosp., 264 Or 200, 504 P2d 749 (1972)

Reliance by promisee, to his detri­ment, on oral agree­ment may cause promisor to be estopped from asserting statute of frauds. Stevens v. Good Samaritan Hosp., 264 Or 200, 504 P2d 749 (1972)

Under evidence that consultant, in reliance on oral promise, spent two years securing supplies for woodchip purchaser, purchaser was estopped from asserting Statute of Frauds with respect to consultant’s ac­tion for unpaid com­mis­sions and anticipatory breach of contract. Gray v. Mitsui and Co., Inc., 434 F Supp 1071 (1977)

In ac­tion at law, party may be estopped, in appropriate circumstances, from asserting Statute of Frauds. Siegner v. Interstate Produc­tion Credit Assn., 109 Or App 417, 820 P2d 20 (1991)

No agree­ment was formed where county staff expressed encourage­ment for project but applicant knew negotia­tions could not ripen into enforceable agree­ment without com­mis­sioners’ approval of permit. J.J. & L. Properties, Inc. v. Henry, 122 Or App 395, 858 P2d 161 (1993), Sup Ct review denied

Expression of considera­tion

Viewed as a whole, the written earnest money agree­ment for the sale of corporate stock and mortgaged realty clearly indicated that the value of the land conveyed served as considera­tion for the assump­tion of the mortgage, so that the letter between the parties did not violate this sec­tion. U.S. v. Pollard, 524 F2d 808 (1975)

Leases

An oral agree­ment to pay rentals to the lessor for life and then to the defendant, purporting only to shift the pay­ment of rent from the lessor to a third per­son, did not conflict with the objectives of this sec­tion and was therefore valid. Watters v. Watters, 270 Or 673, 528 P2d 1347 (1974)

Membership agree­ments granting hunting and fishing rights in prop­erty were enforceable where descrip­tion of prop­erty, in light of extrinsic evidence, applied with reasonable certainty to single, identifiable piece of prop­erty. High v. Davis, 283 Or 315, 584 P2d 725 (1978)

This sec­tion is not applicable to an agree­ment to provide a lease. Ralston v. Spoor, 39 Or App 883, 593 P2d 1285 (1979), Sup Ct review denied

Where defendant’s agent in leasing space for mobile home to plaintiff on month-to-month basis, promised orally to secure county approval for permanent loca­tion of mobile home in space, contract did not create interest in real prop­erty and was not subject to statute of frauds. Abraham v. Kendall, 69 Or App 341, 686 P2d 428 (1984)

Statute of frauds did not bar plaintiff’s claim for breach of contract, despite failure to specify loca­tion of subject lands where arguably invalid pro­vi­sion of contract had been fully performed. Willamette Quarries v. Wodtli, 308 Or 406, 781 P2d 1196 (1989)

Note or memorandum

Written agree­ment for broker to sell real estate must contain descrip­tion of prop­erty, authoriza­tion to sell and amount of broker’s com­mis­sion, but need not contain a term such as seller agreeing to repair sidewalk. Ward Cook, Inc. v. B-OK, Inc., 261 Or 227, 493 P2d 136 (1972)

Letter from defendant’s predecessor in title to plaintiff which sought permission to allow cars from plaintiff’s prop­erty to pass on to prop­erty of predecessor for benefit of predecessor, in considera­tion of which predecessor would do certain things for plaintiffs which did not include granting of ease­ment or servitude over defendant’s prop­erty for benefit of plaintiff’s prop­erty was not sufficient memorandum to charge defendant’s prop­erty with ease­ment or servitude. Corey v. United Savings Bank, 52 Or App 263, 628 P2d 739 (1981), Sup Ct review denied

Statute of frauds does not require “delivery” of writing. D’Angelo v. Schultz, 306 Or 504, 760 P2d 866 (1988)

Agree­ments concerning real prop­erty

Specific performance of real prop­erty sales contract was properly denied where board of trustees’ attorney, who negotiated contract which board later rejected, did not have written authority to accept offer. Coleman v. Parry Center, 43 Or App 775, 604 P2d 424 (1979), Sup Ct review denied

Where lease is re­quired to be in writing, sub­se­quent oral modifica­tion of lease terms is ineffective. Washington Square, Inc. v. First Lady Beauty Salons, 290 Or 753, 625 P2d 1311 (1981)

Grantors’ conveyance of ease­ment pursuant to oral contract takes contract out of the statute and therefore this sec­tion does not bar grantors from proving oral promise made by grantee’s agent to induce grantors’ promise to convey although agent had no written authority to make the promise. Wiggins v. Barrett & Associates, 295 Or 679, 669 P2d 1132 (1983)

Absence of writing is de­fense to enforc­ment of contract, not challenge to existence of contract and, generally, neither offer nor acceptance need be in writing to make contract, even for sale of real prop­erty. D’Angelo v. Schultz, 110 Or App 445, 823 P2d 997 (1992)

Require­ment for written authoriza­tion applies to employee of municipal corpora­tion. Capital Develop­ment Co. v. Port of Astoria, 109 F3d 516 (9th Cir. 1997)

Where partial performance has occurred in oral contract involving mutual exchange of interests in real prop­erty, only equitable remedies are available against nonperforming party. Parthenon Construc­tion and Design, Inc. v. Neuman, 166 Or App 172, 999 P2d 1169 (2000)

Where services agree­ment re­quired purchase of land from third party and arrange­ment for transfer of deed from third party to party other than purchaser, services agree­ment was agree­ment for sale of real prop­erty. Outback Contracting, Inc. v. Stone Southwest, Inc., 167 Or App 98, 1 P3d 469 (2000), Sup Ct review denied

Oral acceptance, modifica­tion or abandon­ment

Oral modifica­tion which eliminated certain prop­erty from sale was not within statute of frauds. Norris, Beggs & Simpson v. Eastgate Theatres, Inc., 261 Or 56, 491 P2d 1018 (1971)

Oral modifica­tion of written contract is not ineffective unless modifica­tion resulted in new agree­ment which would itself be within statute of frauds. Norris, Beggs & Simpson v. Eastgate Theatres, Inc., 261 Or 56, 491 P2d 1018 (1971)

Terms of brokerage agree­ment not re­quired by the statute of frauds to be in writing may be orally modified. Sipe v. Pearson, 276 Or 715, 556 P2d 654 (1976)

Oral agree­ment that broker will pay com­mis­sion to salesman who is agent of broker is void if broker purchases the prop­erty in his or her individual capacity. Ehler v. Peck, 286 Or 523, 595 P2d 1245 (1979)

Part performance

Like Parol Evidence Rule, Statute of Frauds is seldom applied according to its literal terms and contract void under literal reading of statute is rendered enforceable in equity if party seeking to avoid statute has partially performed oral contract. Siegner v. Interstate Produc­tion Credit Assn., 109 Or App 417, 820 P2d 20 (1991)

Before partially performed oral contract will be enforced in full, court must find there are equitable grounds for en­force­­ment. Martin v. Allbritton, 124 Or App 345, 862 P2d 569 (1993); Oltmanns v. Lewis, 135 Or App 35, 898 P2d 772 (1995)

Taking pos­ses­sion of real prop­erty and making valuable improve­ments either in reliance on oral promise or following parol gift is sufficient part performance to place agree­ment outside Statute of Frauds. Conradi v. Perkins, 149 Or App 149, 941 P2d 1083 (1997), Sup Ct review denied

Where cotenant claims that pos­ses­sion of jointly owned land is evidence of partial performance of oral contract for transfer of land, there must be change in rela­tionship between parties that would draw observer’s atten­tion and indicate contract had been made. Aylett v. Aylett, 185 Or App 563, 60 P3d 1114 (2003)

Law Review Cita­tions

28 WLR 223 (1992)

1 Legislative Counsel Committee, CHAPTER 41—Evidence Generally, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors041.­html (2017) (last ac­cessed Mar. 30, 2018).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2017, Chapter 41, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano041.­html (2017) (last ac­cessed Mar. 30, 2018).
 
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent.