Contract Writings: Statute of Frauds Waiver

The Statute of Frauds requires that certain contracts be in writing to be enforceable or entertained. Generally, the Statute of Frauds in Missouri applies to (1) agreements not to be performed within a year, (2) contracts involving land, and (3) marriage. Section 432.010, RSMo. There are a few ways to circumvent the writing requirement, such as promissory estoppel or partial performance. Failure to properly plead the statute of frauds as an affirmative defense in litigation in defense of a breach of contract claim can also waive the requirement. Rule 55.08 provides that affirmative defenses — including the statute of frauds — must be set forth in the pleadings. Where a litigant fails to raise the statute of frauds defense in the pleadings or at trial by objecting to testimony regarding the oral contract, that party waives the defense. Norden v. Friedman, 756 S.W.2d 158, 162 (Mo. 1988).
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