By the common law a seal is essential to make binding all promises intended to operate without consideration and is required upon deeds, mortgages, bonds and powers of attorney regardless of the consideration.
A deed conveying the absolute title of real estate to another, or a defeasible title by way of trust or mortgage, must be under seal in many states. The very definition of a bond signifies that it is an instrument under seal; a power of attorney, that is, a formal conferring of agency upon another is always under seal, and where an agent is appointed to execute an instrument under seal, his authority must also be under seal. A seal placed on any contract makes it a formal contract or specialty although the seal is not necessary.
Modern legislation tends to minimize the distinction between sealed and unsealed instruments, yet in many States the seal still retains much of its ancient dignity.
We have seen that a promise under seal was given a weight not accorded other promises and this was because the use of the seal indicated, or was presumed to indicate, deliberation on the part of the promisor. We have said that it no longer does so. One who signs his name to a contract is doing in another way the very thing that was in olden times done when the seal was affixed. Legislation has permitted the use of a printed or written scrawl in the place of the impression on wax, and this in itself has taken from men's minds the solemnity of the act of sealing. It cannot with truth be said that there is any greater deliberation in one's mind from the fact that he forms a scrawl after his name, or writes his name before a printed scrawl. Beginning with this legislation which permits the use of the scrawl, some of the legislatures have adopted laws tending to minimize, or in some cases altogether abolish, the use and effect of the sealed instrument. Such legislation we may classify as follows:
(a) Legislation in respect to the form of bringing suit;
(b) Legislation in respect to the form of seal. This has been brought about in most states. The seal may be by scrawl with use of the words "Seal" or "L. S." contained therein. Such scrawl may be written or printed;124
(c) Legislation allowing want or failure of consideration to be shown in a court of law. Under the common law a common law court could not open up a sealed instrument for that purpose.
(d) Legislation abolishing all distinction between sealed and unsealed instruments or providing that a seal shall be unnecessary on any contract. Such legislation places all contracts on the plane of the simple contracts. It is in force in most of the states.125
B. Contracts Required by Law to Be in Writing.
Such are conveyances of real estate, negotiable instruments, promises to pay debts barred by statute of limitations, assignment of patents, etc.
124. Laws to this effect are in force in most of the states.
125. The seal is either abolished in the following states or else amounts only to a presumptive evidence of consideration which may be rebutted to defeat the contract: Alabama, Arizona, California, Idaho, Iowa, Kansas, Michigan, Minnesota, Missouri, Mississippi, Montana, Nebraska, New Mexico, Tennessee, Texas, Wyoming. In many states there is still preserved a marked distinction between sealed and unsealed instruments. The seal is necessary on certain documents and whenever used has more or less of its ancient meaning.
Some contracts cannot exist as such unless in writing because of some specific provision of the law so requiring it.
A negotiable instrument must be in writing.
A deed must be in writing.
A bond is necessarily a written instrument.
An assignment of a patent must be written.
Under some statutes, promises relied upon to prevent the running of the statute of limitations, must be in writing.
C. Contracts Not Enforceable Unless in Writing.
(a) Nature and object of Statute of Frauds.
By the English Statute of Frauds, and similar statutes patterned thereafter in this country, certain contracts are not legally enforceable unless the evidence to prove them is a writing signed by the party sought to be charged, or in case of contracts of sale or personal property, unless there is either a writing or a certain part performance.
The British Parliament in 1676 passed a statute known as the "Statute of Frauds and Perjuries," or more usually referred to simply as "The Statute of Frauds." This is perhaps the most famous and far-reaching statute not of a political nature in all English jurisprudence. It has been called the "adopted child of the common law."
The statute was fairly lengthy, concerning itself with other subjects than those of contract, but the fourth section of the statute related to various classes of contracts therein enumerated, and the seventeenth section to contracts of sale of personal property.
The requirement of the statute is that certain contracts cannot be enforced unless in writing and that sales of personal property cannot be enforced unless there is a writing, or a certain part performance. It was called the Statute of Frauds and Perjuries because the legislative motive in enacting it was to make more difficult perjured claims and perjured defenses by requiring a certain kind of proof. But if, so far as contracts are concerned, it had been called some name suggesting a certain kind of evidence, it would be less likely to confuse the student's mind.
The "statute of frauds" is, because of its title, likely to be thought of as a statute dealing with frauds generally, and this title certainly conveys to the uninitiated no suggestion of writing. The title explains the reason for the enactment of the statute arising out of the belief that suitors, by perjured testimony, either affirming the existence of contracts that did not exist, or denying the existence of those that did exist, were accomplishing fraud, and that such miscarriage of justice could be largely prevented by requiring that certain classes of contracts could not be proved unless the party seeking to enforce such a contract could produce a writing or written memorandum signed by the other party. It was not considered wise to carry this provision to all contracts, but only to certain classes thereof which, because of their peculiar nature or importance, were likely to encourage false swearing; although, it is true that some judges have pointed out that the statute also serves the purpose of preventing the proof of cases by the mistaken memory of honest men.
This statute has undoubtedly performed the office of preventing much fraud and perjury. But it has also resulted in great injustice. It prevents one who has a good case from proving it if he has neglected to obtain the evidence required by the statute, even though he may have all sorts of other evidence, and even though the other party will not deny the contract, but simply insists on this technical proof of it. And many judges have said that it has caused more fraud and more liti-gation than it ever prevented. And yet it has a firm place in our law, and very likely its advantages greatly outweigh the hardships. It has been adopted, in whole or in part, in all of our American States.
There are two sections of this statute relating to contracts, - the fourth and the seventeenth. The effect of the fourth section is to render certain contracts unenforceable unless their existence can be proved by a written memorandum signed by the party sought to be charged. The effect of the seventeenth section is to make unexecuted contracts for the sale of personal property -for a certain price or upwards unenforceable unless their existence can be proved by a written memorandum, signed by the party to be charged, or unless there has been a part performance of the contract. This section has not been in force in some of the American States, but now it has been substantially embodied in the Uniform Sales Act which is being generally adopted.
Of course these sections, when re-enacted in this country, do not necessarily retain those numbers.