BILL NUMBER: SB 1865 CHAPTERED
BILL TEXT
CHAPTER 78
FILED WITH SECRETARY OF STATE JUNE 26, 1998
APPROVED BY GOVERNOR JUNE 25, 1998
PASSED THE ASSEMBLY JUNE 15, 1998
PASSED THE SENATE MAY 7, 1998
INTRODUCED BY Senators Maddy, Ayala, Johannessen, Johnson, and
Solis
FEBRUARY 19, 1998
An act to amend Section 1624 of the Civil Code, and to amend
Sections 1206 and 2201 of the Commercial Code, relating to contracts.
LEGISLATIVE COUNSEL'S DIGEST
SB 1865, Maddy. Contracts: statute of frauds.
Existing law provides that certain contracts are invalid unless
the contract, or some note or memorandum of the contract, is in
writing and subscribed by the party to be charged.
This bill would provide that an agreement or contract that is
valid in other respects and is otherwise enforceable is not invalid
for lack of a note, memorandum, or other writing and is enforceable
by way of action or defense if the agreement or contract is a
qualified financial contract, as defined, and there is sufficient
evidence to indicate that a contract has been made or the parties
agreed to be bound by the terms of the qualified financial contract,
as specified. The bill would make related changes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 1624 of the Civil Code is amended to read:
1624. (a) The following contracts are invalid, unless they, or
some note or memorandum thereof, are in writing and subscribed by the
party to be charged or by the party's agent:
(1) An agreement that by its terms is not to be performed within a
year from the making thereof.
(2) A special promise to answer for the debt, default, or
miscarriage of another, except in the cases provided for in Section
2794.
(3) An agreement for the leasing for a longer period than one
year, or for the sale of real property, or of an interest therein;
such an agreement, if made by an agent of the party sought to be
charged, is invalid, unless the authority of the agent is in writing,
subscribed by the party sought to be charged.
(4) An agreement authorizing or employing an agent, broker, or any
other person to purchase or sell real estate, or to lease real
estate for a longer period than one year, or to procure, introduce,
or find a purchaser or seller of real estate or a lessee or lessor of
real estate where the lease is for a longer period than one year,
for compensation or a commission.
(5) An agreement that by its terms is not to be performed during
the lifetime of the promisor.
(6) An agreement by a purchaser of real property to pay an
indebtedness secured by a mortgage or deed of trust upon the property
purchased, unless assumption of the indebtedness by the purchaser is
specifically provided for in the conveyance of the property.
(7) A contract, promise, undertaking, or commitment to loan money
or to grant or extend credit, in an amount greater than one hundred
thousand dollars ($100,000), not primarily for personal, family, or
household purposes, made by a person engaged in the business of
lending or arranging for the lending of money or extending credit.
For purposes of this section, a contract, promise, undertaking or
commitment to loan money secured solely by residential property
consisting of one to four dwelling units shall be deemed to be for
personal, family, or household purposes.
(b) Notwithstanding paragraph (1) of subdivision (a):
(1) An agreement or contract that is valid in other respects and
is otherwise enforceable is not invalid for lack of a note,
memorandum, or other writing and is enforceable by way of action or
defense, provided that the agreement or contract is a qualified
financial contract as defined in paragraph (2) and (A) there is, as
provided in paragraph (3), sufficient evidence to indicate that a
contract has been made or (B) the parties thereto by means of a prior
or subsequent written contract, have agreed to be bound by the terms
of the qualified financial contract from the time they reached
agreement (by telephone, by exchange of electronic messages, or
otherwise) on those terms.
(2) For purposes of this subdivision, a "qualified financial
contract" means an agreement as to which each party thereto is other
than a natural person and that is any of the following:
(A) For the purchase and sale of foreign exchange, foreign
currency, bullion, coin or precious metals on a forward, spot,
next-day value or other basis.
(B) A contract (other than a contract for the purchase of a
commodity for future delivery on, or subject to the rules of, a
contract market or board of trade) for the purchase, sale, or
transfer of any commodity or any similar good, article, service,
right, or interest that is presently or in the future becomes the
subject of a dealing in the forward contract trade, or any product or
byproduct thereof, with a maturity date more than two days after the
date the contract is entered into.
(C) For the purchase and sale of currency, or interbank deposits
denominated in United States dollars.
(D) For a currency option, currency swap, or cross-currency rate
swap.
(E) For a commodity swap or a commodity option (other than an
option contract traded on, or subject to the rules of a contract
market or board of trade).
(F) For a rate swap, basis swap, forward rate transaction, or an
interest rate option.
(G) For a security-index swap or option, or a security or
securities price swap or option.
(H) An agreement that involves any other similar transaction
relating to a price or index (including, without limitation, any
transaction or agreement involving any combination of the foregoing,
any cap, floor, collar, or similar transaction with respect to a
rate, commodity price, commodity index, security or securities price,
security index, other price index, or loan price).
(I) An option with respect to any of the foregoing.
(3) There is sufficient evidence that a contract has been made in
any of the following circumstances:
(A) There is evidence of an electronic communication (including,
without limitation, the recording of a telephone call or the tangible
written text produced by computer retrieval), admissible in evidence
under the laws of this state, sufficient to indicate that in the
communication a contract was made between the parties.
(B) A confirmation in writing sufficient to indicate that a
contract has been made between the parties and sufficient against the
sender is received by the party against whom enforcement is sought
no later than the fifth business day after the contract is made (or
any other period of time that the parties may agree in writing) and
the sender does not receive, on or before the third business day
after receipt (or the other period of time that the parties may agree
in writing), written objection to a material term of the
confirmation. For purposes of this subparagraph, a confirmation or
an objection thereto is received at the time there has been an actual
receipt by an individual responsible for the transaction or, if
earlier, at the time there has been constructive receipt, which is
the time actual receipt by that individual would have occurred if the
receiving party, as an organization, had exercised reasonable
diligence. For the purposes of this subparagraph, a "business day"
is a day on which both parties are open and transacting business of
the kind involved in that qualified financial contract that is the
subject of confirmation.
(C) The party against whom enforcement is sought admits in its
pleading, testimony, or otherwise in court that a contract was made.
(D) There is a note, memorandum, or other writing sufficient to
indicate that a contract has been made, signed by the party against
whom enforcement is sought or by its authorized agent or broker.
For purposes of this paragraph, evidence of an electronic
communication indicating the making in that communication of a
contract, or a confirmation, admission, note, memorandum, or writing
is not insufficient because it omits or incorrectly states one or
more material terms agreed upon, as long as the evidence provides a
reasonable basis for concluding that a contract was made.
(4) For purposes of this subdivision, the tangible written text
produced by telex, telefacsimile, computer retrieval, or other
process by which electronic signals are transmitted by telephone or
otherwise shall constitute a writing, and any symbol executed or
adopted by a party with the present intention to authenticate a
writing shall constitute a signing. The confirmation and notice of
objection referred to in subparagraph (B) of paragraph (3) may be
communicated by means of telex, telefacsimile, computer, or other
similar process by which electronic signals are transmitted by
telephone or otherwise, provided that a party claiming to have
communicated in that manner shall, unless the parties have otherwise
agreed in writing, have the burden of establishing actual or
constructive receipt by the other party as set forth in subparagraph
(B) of paragraph (3).
(c) This section does not apply to leases subject to Division 10
(commencing with Section 10101) of the Commercial Code.
SEC. 2. Section 1206 of the Commercial Code is amended to read:
1206. (1) Except in the cases described in subdivision (2) of
this section a contract for the sale of personal property is not
enforceable by way of action or defense beyond five thousand dollars
($5,000) in amount or value of remedy unless there is some writing
which indicates that a contract for sale has been made between the
parties at a defined or stated price, reasonably identifies the
subject matter, and is signed by the party against whom enforcement
is sought or by his or her authorized agent.
(2) Subdivision (1) of this section does not apply to contracts
for the sale of goods (Section 2201) nor of securities (Section 8113)
nor to security agreements (Section 9203).
(3) Subdivision (1) of this section does not apply to a qualified
financial contract as that term is defined in paragraph (2) of
subdivision (b) of Section 1624 of the Civil Code if either (a) there
is, as provided in paragraph (3) of subdivision (b) of 1624 of the
Civil Code, sufficient evidence to indicate that a contract has been
made or (b) the parties thereto, by means of a prior or subsequent
written contract, have agreed to be bound by the terms of the
qualified financial contract from the time they reach agreement (by
telephone, by exchange of electronic messages, or otherwise) on those
terms.
SEC. 3. Section 2201 of the Commercial Code is amended to read:
2201. (1) Except as otherwise provided in this section a contract
for the sale of goods for the price of five hundred dollars ($500)
or more is not enforceable by way of action or defense unless there
is some writing sufficient to indicate that a contract for sale has
been made between the parties and signed by the party against whom
enforcement is sought or by his or her authorized agent or broker. A
writing is not insufficient because it omits or incorrectly states a
term agreed upon but the contract is not enforceable under this
paragraph beyond the quantity of goods shown in the writing.
(2) Between merchants if within a reasonable time a writing in
confirmation of the contract and sufficient against the sender is
received and the party receiving it has reason to know its contents,
it satisfies the requirements of subdivision (1) against the party
unless written notice of objection to its contents is given within 10
days after it is received.
(3) A contract which does not satisfy the requirements of
subdivision (1) but which is valid in other respects is enforceable:
(a) If the goods are to be specially manufactured for the buyer
and are not suitable for sale to others in the ordinary course of the
seller's business and the seller, before notice of repudiation is
received and under circumstances which reasonably indicate that the
goods are for the buyer, has made either a substantial beginning of
their manufacture or commitments for their procurement;
(b) If the party against whom enforcement is sought admits in his
or her pleading, testimony, or otherwise in court that a contract for
sale was made, but the contract is not enforceable under this
provision beyond the quantity of goods admitted; or
(c) With respect to goods for which payment has been made and
accepted or which have been received and accepted (Section 2606).
(4) Subdivision (1) of this section does not apply to a qualified
financial contract as that term is defined in paragraph (2) of
subdivision (b) of Section 1624 of the Civil Code if either (a) there
is, as provided in paragraph (3) of subdivision (b) of 1624 of the
Civil Code, sufficient evidence to indicate that a contract has been
made or (b) the parties thereto, by means of a prior or subsequent
written contract, have agreed to be bound by the terms of the
qualified financial contract from the time they reach agreement (by
telephone, by exchange of electronic messages, or otherwise) on those
terms.