Nature and Form of Sales

¶ … Sales

Packaging manufactured cellophane wrapping material that was used by Kern's bakery in packaging its product. Kern's decided to change its system for packaging cookies from a tied bread bag to a tray covered with printed cellophane wrapping. R-P took measurements to determine the appropriate size for the cellophane wrapping and designed the artwork to be printed on the wrapping. After agreeing that the artwork was satisfactory, Kern placed a verbal order for the cellophane at the cost of $13.000.When the printed wrapping material was received, Kern complained that it was too short for the trays and the artwork not centered. The material however, conformed exactly to the order placed by Kern. Kern returned the material to R-P by Overnight Express. R-P sued Kern. Kern claimed that because there was no written contract, the suit was barred by the statute of frauds. What result? Consider: Effect of noncompliance, exceptions to Requirement of Writing

When asked, must a contract be in writing, one must consider nature and subject matter of the contract. "If you orally agree to purchase your brother's 1988 Ferrari that is in "mint condition" for $25,999.99, that agreement is legal." (Are there different kinds of Acceptance: Must a Contract Be in Writing? 2004) Legal, yes, but not perhaps wise. That is why, as "a general rule, however, it is wiser to have the terms written in understandable language - plain English -- to save future misinterpretations and errors. (Must a Contract Be in Writing? 2004) Alas, in this case, only the sales contract exists as contractual, factual evidence that something was agreed upon between the seller and the requester of the cellophane packaging order.

Most states have laws called statutes of frauds, listing the types of contracts that must be written in order to be enforceable, else effects of noncompliance will be enforced against the offending party, forcing them to comply with the terms of the contract, or, if they cannot so comply, then make restitution to the offended party. The purpose of such statutes of frauds is to prevent fraudulent claims from arising, in other words, fraudulent allegations of verbal contracts between aggrieved parties.

Although the laws vary from state-to-state, the most common examples of contracts that generally must be in writing are: sales of real property (such as real estate or cars); promises to pay someone's debt obligations; a contract that takes longer than one year to complete; real property leases that run for more than a year; contracts for an amount or other consideration that exceeds the state's threshold; or a contract that will go beyond the lifetime of the one performing the contract; and finally, the transfer of property upon the death of the party performing the contract. (Must a Contract Be in Writing? 2004)

However, in this case, there was no 'real property' in terms of land or durable goods, nor were any of the other typical examples met. However, a contract can be verbal and need not be held before a notary public although there is a requirement that some documents be notarized, such as a real property deed. (Need a Contract be Notarized? 2004) But unless specifically required by state or municipal law, a contract does not have to be acknowledged before a notary public and it could be argued that performance to contract specifications was implied. Implied means the acts of the parties show that the offer has been accepted, such as when both parties to a contract begin to perform the terms of the contract. (Need a Contract be in writing? 2004)