The Statute of Frauds is ancient legislation adopted in Ontario in the nineteenth century from the law of England. The legislation requires that an agreement for the sale of land must be in writing and signed by the parties. The purpose of the legislation is to prevent fraudulent dealings in land based on perjured oral evidence when attempting to enforce an oral agreement for the sale of land through the courts. Thus, a real estate deal made by a handshake over a kitchen table without something in writing will not be enforceable. Evidence at trial that “he told me he would sell this piece of land to me for ten dollars” is not acceptable without something in writing.
This does not mean the seller and buyer must enter into a formal agreement of purchase and sale like the agreements real estate agents prepare. According to the Supreme Court of Canada, a binding and enforceable contract for the sale of land is created when the written agreement, signed by the parties, contains all of the essential terms of a contract for the sale of land, namely “the parties, the price, and the property.” The terms of the agreement must be clear and precise. The land description must be accurate, the sale price specific, and the parties must be identified. In other words, there must be nothing left to negotiate between the parties. If there is some further agreement required to be reached between the parties to establish a consensus ad idem, a “meeting of the minds,” then the courts will view the agreement as an “agreement to agree.” There is one exception. If the agreement contains a provision that a formal agreement of purchase and sale must be drawn up and executed by the parties, the courts will, nevertheless, hold that such a provision does not alter the binding validity of the original written agreement.
Many of us live in a world of emails. Does an exchange of emails comply with the writing requirement of the Statute of Frauds? One court has addressed the issue this way: “Although the definition of a writing in the legislation includes a traditional paper document, it does not exclude representations of language in other media. Because electronic communications can be letters or characters formed on the screen to record or communicate ideas as visible signs and can be legible characters that represent words and letters as well as form the conveyance of meaning, it would seem that the plain meaning of the word ‘written’ does not exclude all electronic communications.” The court added that the emails exchanged between the parties were available in evidence in printed form on paper. An emailed signature has also been accepted by the courts to satisfy the requirement that the writing be signed.