Lost Writings And The Statute Of Frauds

In 1677, the English Parliament enacted a law establishing a legal principle that was eventually adopted by all of the future states of its nascent colonies – the Statute of Frauds.

Nevada has adopted this same principle in NRS 111.205(1):

No estate or interest in lands, other than for leases for a term not exceeding 1 year, nor any trust or power over or concerning lands, or in any manner relating thereto, shall be created, granted, assigned, surrendered or declared after December 2, 1861, unless by act or operation of law, or by deed or conveyance, in writing, subscribed by the party creating, granting, assigning, surrendering or declaring the same, or by the party’s lawful agent thereunto authorized in writing.

What happens if the agreement is lost?  Does the agreement become “unwritten” for purposes of litigation?  Does the Statute of Frauds preclude its enforcement?  Earlier this month, the Nevada Supreme Court decided that a lost contract is still a writing sufficient to meet the requirements of NRS 111.205, Khan v. Bakhsh, 129 Nev. Adv. Rep. 57 (2013):

 The admissibility of evidence concerning a written agreement is not affected by the subsequent loss or destruction of such an agreement.  Its loss or destruction does not render it “unwritten” and the evidence of its existence and terms barred by the statute of frauds. Id.  Indeed, when one party allegedly stole or destroyed the agreement, as the Khans allege Bakhsh did here, that party may not use the statute of frauds to sanction his obliteration of the agreement to the detriment of the other party.

 

Topics:  Admissibility, Evidence, Statute of Frauds, Writing Requirement

Published In: Civil Procedure Updates, General Business Updates, Commercial Real Estate Updates, Residential Real Estate Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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