The statute of frauds is an affirmative defense in a breach of contract suit that, where applicable, renders a contract unenforceable.[1] It exists to “prevent fraud and perjury in certain kinds of transactions by requiring agreements to be set out in a writing signed by the parties.”[2] In order to be enforceable, a contract that is subject to the statute of frauds must be in writing and signed by the person to be charged with the promise or agreement (or by someone lawfully authorized to sign for them).

The statute, in other words, bars claims arising out of unenforceable oral promises, unless the defendant’s fraud prevented the necessary writing.[3] If contract provisions that are subject to the statute of frauds are not severable from those outside the statute, the entire contract is unenforceable unless it satisfies the statute.[4]The question of whether the statute of frauds applies is a matter of law.[5] The statute of frauds does not apply to a fully executed contract.[6] Generally, the statute of frauds applies to contracts regarding marriage, suretyship, sales of real estate, goods priced at $500.00 or more under the Uniform Commerical Code (UCC), and contracts that are not performable in one year. There are, however, a few applications that are specific to Texas.

Texas-Specific Statute of Frauds Considerations

In Texas, the statute of frauds is located in chapter 26 of the Texas Business and Commerce code. Section 26.01(b) applies the statute to contracts regarding: marriage (“or on consideration of nonmarital conjugal cohabitation”), suretyship, contracts that are not to be performed within one year from the date of making the agreement, promises by an executor or administrator to answer out of his own estate for any debt or damage due from his testator or intestate, certain medical arrangements, and sales of real estate or leases of real estate for a term longer than one-year,[7] and certain payments related to mineral interests.

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