If an executory contract is within the Statute of Frauds and is in writing or a proper written memorandum has at some time been made, a subsequent oral agreement to rescind the contract is effectual if the oral agreement fulfills the requisites of a contract at common law. The Statute of Frauds does not mention contracts of rescission or discharge and such contracts are, therefore, not affected by its terms.12 It should be noticed, however, that if a contract has been partly executed by the transfer of either real or personal property, an agreement of rescission which contemplates not simply a discharge of unexecuted obligations but a retransfer of the property must certainly be within the section of the statute relating to sales of land or that relating to sales of goods.13 Whether a mere executory written contract to buy and sell real estate creates such an interest in the property on the part of the buyer, and a rescission of the contract such a retransfer as to require a writing has been previously considered.14 Even though personal properly has been transferred to the buyer, yet if the agreement to rescind was paid for with anything other than an executory promise, or if anything was done in accordance with the agreement which could operate as an accord and satisfaction, the original agreement doubtless would be effectually discharged.15 But if an interest in real property is transferred to the buyer, as the section of the statute relating to such property provides for no other way of making the agreement enforceable except by a writing, the contract of rescission would seem unenforceable unless in writing or unless there was such part performance, under the equitable doctrine which goes by that name, as to validate an oral agreement.16

10Goes v. Lord Nugent, 5 B. & Ad. 68, 64. See further, infra, Sec. 1828.

11 See infra, Sec. 1846.

12 Goes v. Lord Nugent, 6 B. ft Ad. 68, 66; Morris v. Baron, [1918] A. C. 1; Wubchner v. Ward, 115 Ind. 219, 17 N. E. 273. It is, however, broadly stated in Gerard-Fillio Co. v. MoNair,

68 Wash. 321, 123 Pac. 462, 466, that contracts required to be in writing can only be rescinded or modified by a writing. In foot the contract in question related to land. See 'supra, Sec. 491.

13 Wubchner v. Ward, 115 Ind. 219, 17 N. E. 273.