Identity Theft Statutes - Assignment Example

Identity Theft Statutes Introduction According to Barnett (2005, p. 168), statutes of frauds is the requirements that the conditions of a contract be put in writing with adequate details in order to ensure there is evidence of the relationship between the parties and ensure efficient enforcement of the contract. It further requires that all the parties involved in the agreement and bound by similar conditions append their signature as a declaration that they agree to be bound by those conditions (Yackle 2007, p. 65). Statues of frauds enable the parties to recognize their obligations and perform in accordance to the agreed terms. The statute includes the names of the contracting parties as well as the terms and conditions contract requirements (Catherine 2004, 48). Therefore, the status of fraud serves to protect the parties to the contract from deception by the other party if in case one of them decides to avoid performing either part or all of their liabilities in the agreement (Miller, Harvey & Parry 1998, p.364). Therefore, it is essential for the parties to ensure they include statues of frauds in their contract to ensure that effective discharge of their duties s a means of improving business performances and reduce the legal cases arising from failure of contract performance. Structure of the report This report will explore the purpose of statutes of frauds and what it entails. It also explores the impact the statutes of fraud will have in a contract and when the parties to the contract may find it essential to establish statutes of frauds. In addition, the study will focus on conditions under which the statute of fraud may be ignored during the implementation of the contract. Finally, it will focus on the effects of court cases in the situation where the parities had signed statutes of contract by studying the court cases in which it was applied. Controversial issues involving statutes of frauds The main significance of the statutes of fraud is to ensure there is evidence of the existence of a contract between parties and assure them of the performance of the contract (Catherine 2004, 48). Whereas the statutes were established to reduce the cases of deception among the contracting parties and provides evidence to the court when solving disputes the statutes does not cover most of the contracts especially the contracts of services which are accomplished in less than a year (James 2003, p. 18). The controversy in this requirement is that most of the contracts which do not fall within the statutes are the most rampant in day-to-day life. Furthermore, such contracts involve parties who are mainly inexperienced and have little time to follow the main details of the agreement. This exposes such parties to deceptions hence causing increasing in lawsuits against the offenders. This is contrary to the agreements falling within statutes because those agreements basically calls for more attention from the parties since they either involve more resources or serious long term commitment hence parties will generally be more cautious to avoid falling prey of the fraudsters. Another argument in the use of statutes is its inadequacy of coverage of the issues to do with land (Barnett 2005, p. 254). For example, the issues involving partnership of buying the land or any other arrangement in which a person is involved in purchase of land on behalf of another person is not catered for in the statutes and is considered to fall outside the statute of frauds. Therefore, this causes inadequacy of coverage of the issue to do with land contract therefore limiting the application of the statutes due to inability to prevent all deceptions that may arise from land contracts. Legal issues involving the statutes of frauds According to Barnett (2005, p. 436), the court ruling in the case of Davis v. Meyer, 1 S.W. 95 (Ark., 1886) the contract for the sale of goods is not merely enforced because the party is merely in possession of goods or has promised to pay for the goods (Catherine 2004, 48). In this case, Frank Tomlinson was indebted to both Davis and Meyer (parties to a contract). Frank sold supplies to Meyer which was separately packaged. Since the sale was o credit there was no money paid. Tomlinson requested to deliver the supplies to a warehouse located in town, but he mortgaged the merchandise to Davis, Mallory & Co., for the debt he owned the company. Davis was informed of the transaction involving Meyer of the same supplies but did not recognize that deal. He sold the goods as if they were his own, which made Meyer to sue Davis for improper use of his property. The court held that Meyer was entitled to recover the value of goods that were separated from the rest of the supplies but not for the tobacco and guns packaged with the supplies though Meyer was unaware of. Delivery of goods alone does not give someone right for the performance of the contract unless if the person has paid for the goods. In case one of the parties fail to perform effectively according to the stated requirements, the other party can use the statues of frauds as an evidence of the condition of the contract to prove that the other party has indeed failed to perform according to the agreement (Barnett 2005, p. 487). In this case, the court may be able to make a concrete decision regarding to whether the offending party should continue with performance of the remaining part of the contract or whether to compensate the offended party and terminate the contract. Although the statues of fraud is drafted before the agreement becomes effective, the statute only becomes effective the moment one of the parties breaches the agreement by either discharging his or her obligations of the contract partially or by absolutely failing to perform their duties (Barnett 2005, p.546). The plaintiff must specify to the court the misconduct of the defendant that amounts to breach of statues of fraud. On the other hand, it is the duty of the defendant to prove to the court that they actually discharged their duties as required in the contract agreement otherwise they will be held liable for the failing to perform their duties. The defendant may only be able to escape the penalty for failing due to non performance of the contract if he or she can prove that the part of the contract they failed was not part of the statute agreement. In Campbell v. Campbell, a man promised his son that after his death his son would take the possession of the land (Barnett 2005, p. 347). The will his father wrote did not mention his son as heir though they both lived in the farm and continued with their activities till the death of the father. The court therefore ruled that in this case the executor of the will cannot deny that the son had right to the ownership of the land though the will of the father stated otherwise. The decision by the court was to compensate the son for the time and resources invested in the farm following the fathers promise to grant the farm to his son and they both lived in the same farm. The court prevented deception of the son by the father through in execution of the verbal promise. The statutes of frauds of 1677 used in United States apply only to specific areas and cannot be applied in all contracts. It applies in specific situations that due to their sensitivity in nature of as a result of long term commitment make the parties prone to deception by the other parties (Barnett, 2005, p. 254). An example of such contracts is one that binds parties for a period of more than one year but is enforceable for a specific period of time. It also applies to the agreements in which one of the parties acts as a guarantor for another party’s liability of debt (Yackle 2007, p. 112). In addition, statutes of frauds will also apply in the agreements where one person accepts to be liable for the liabilities of another person in execution of that person’s will after the death of the maker of the will or in agreement involving the transfer of property in land to another person either through sale, mortgaging or easement (James 2003, p. 31). Finally, according to Catherine (2004, 118), statutes of frauds will be applied in agreements for the sale of goods in which Uniform Commercial Code are applicable. As the statutes continue to undergo modifications, United States of America has also found applicability of statutes of frauds insurance agreements where the contract reaches maturity before the death of the assured person. When the court is deciding a case involving breach of contract, they basically consider the terms of agreement that have been put in writing as part of statutes of fraud (Catherine 2004, 114). However, in some situations the court does not rely on entirely on the issues stipulated in the statutes of fraud if it does not exist. This is because in doing so, one party to the contract may gain at the expense of the other by failing to discharge his or her obligation in the contract (Miller, Harvey & Parry 1998, p.345). This may occur in the event where one person barely does nothing as part of his or her obligation in the contract while the other party may have spent a lot of time and resources in performing his or her duties according to the agreement. However, since the contract between those parties was oral and not stipulated in the statutes of frauds, the person who performed his or her part may lose all the resources used in performing that part (James 2003, p. 37). Therefore, it is for this reason that the court does not entirely rely on the statutes of frauds, but instead they examine the part of the contract performed by each party or by one of the m in accordance to the terms of agreement. When making decision, the court considers that partial performance of the terms of agreement as an evidence that there was such an agreement existing between the parties hence one of the party committed his or her time and resources in an attempt to fulfill their obligations (Miller, Harvey & Parry 1998, p.403). However, the plaintiff must give prove to the court that the part of performance was actually something of value and not a mere plan to deceive the court in order to gain from a non existing claim of an agreement (Barnett 2005, 236). For example, in an agreement involving real property, taking of possession of the property and making part payment for the property is enough evidence for the existence of a oral contract hence the court will not require a statutes of fraud in order to establish whether there was such an agreement between the parties or whether this was a scheme to defraud the other party. In some situations, a party to the contract may carry out his or her duties on accordance to the requirement of the statutes of fraud, but later it is discovered that the contract was unlawful (Catherine 2004, 121). In this situation, the person will not be able to recover the resources utilized in the performance of the duty since the agreement was voidable (James 2003, p. 42). However, if on the other hand a person performed either partially or absolutely his or her obligations in the contract which was made through a word of mouth by not relying on the statutes of fraud, then that person will be able to regain the resources spent in carrying out his or her duties (Barnett 2005, p 537). The value for the services to be claimed should be realistic n regard to the amount of work done in performance of the contract. Another issue that may arise in a contract is where a person may perform the obligations of a contract that was formed orally and such performance resulted to a serious defects that can only be corrected by discharge of the duties by all the parties, the court may apply equitable estoppels in order to prevent the other party from applying statutes of frauds as a means of avoiding performing their duties in the agreement (Barnett 2005, p. 271). Conclusion Statues of frauds are implemented in order to prevent deception of one party by the other. Therefore, in the event where one of the parties has done something in reliance to the agreement whether written or verbal, the decision by the court will be made in such a way that it will not disadvantage one party at the expense of the other. Bibliography Barnett, R 2005, Restoring the Lost Constitution: The Presumption of Liberty; Princeton University Press, Princeton, NJ, pp. 154-357 Catherine, P 2004, Identity Theft Statutes: Which Will Protect Americans the Most? Albany Law Journal Review, Vol. 67(4). Pp. 43-124 James, S 2003, When Actions Speak Louder Than Words: The Case for a Quasi-Estopped Exception to the Statute of Frauds: The Review of Litigation Journal, Vol. 22(1). Pp. 6- 45 Miller, C Harvey B & Parry, D 1998, Consumer and Trading Law: Text, Cases, and Materials; Oxford University Press, Oxford. Pp. 243-546 Yackle, L 2007, Regulatory Rights: Supreme Court Activism, the Public Interest, and the Making of Constitutional Law: University of Chicago Press, Chicago. Pp. 21-164 Read More