§656-1  Certain contracts, when actionable. 
No action shall be brought and maintained in any of the following cases:



(1)  To charge a personal representative, upon any
special promise to answer for damages out of the personal representative's own
estate;



(2)  To charge any person upon any special promise to
answer for the debt, default, or misdoings of another;



(3)  To charge any person, upon an agreement made in
consideration of marriage;



(4)  Upon any contract for the sale of lands,
tenements, or hereditaments, or of any interest in or concerning them;



(5)  Upon any agreement that is not to be performed
within one year from the making thereof;



(6)  To charge any person upon any agreement
authorizing or employing an agent or broker to purchase or sell real estate for
compensation or commission;



(7)  To charge the estate of any deceased person upon
any agreement which by its terms is not to be performed during the lifetime of
the promisor, or, in the case of agreements made prior to July 1, 1977, of an
agreement to devise or bequeath any property, or to make any provision for any
person by will; or



(8)  To charge any financial institution upon an
agreement by the financial institution to lend money or extend credit in an
amount greater than $50,000;



unless the promise, contract, or agreement, upon
which the action is brought, or some memorandum or note thereof, is in writing,
and is signed by the party to be charged therewith, or by some person thereunto
by the party in writing lawfully authorized.  The term "financial
institution" used in [paragraph] (8) means an institution domiciled in
this State whose deposits are federally insured or a financial institution
which is examined and supervised by the commissioner of financial institutions.
[CC 1859, §1053; am L 1923, c 5, §1; RL 1925, §2665; am L 1929, c 21, §1; RL
1935, §3900; RL 1945, §8721; RL 1955, §190-1; HRS §656-1; am L 1976, c 200, pt
of §1; am L 1977, c 144, §63; gen ch 1985; am L 1990, c 119, §1]



 



Cross References



 



  Oral lease of real property not exceeding one year, see
§666-4.



 



Case Notes



 



  Par. (2):  Plaintiff health care provider's claim for breach
of alleged oral contract not barred by statute of frauds, where, by orally
agreeing to cover insured's treatment, defendants were clearly advancing their
own business purpose of maintaining the business relationship with their
insured and preventing an escalation of costs with plaintiff.  58 F. Supp. 2d
1162.



  Partnership agreement has to be in writing where the
partnership is formed for purpose of transferring a specific piece of land. 
680 F. Supp. 1438.



  Third section English Statute, not enacted.  3 H. 274.  See 5
H. 600.  Parol assignment of mortgage where note and deed endorsed.  5 H. 397;
6 H. 114.  New agreement to pay interest on interest secured by mortgage not
within statute.  8 H. 742.  Trust in personalty created by parol.  5 H. 497. 
Concerning waiver of statute.  32 H. 183.  Resulting trust may be established
by parol evidence; not within statute.  2 H. 563; 6 H. 489; 34 H. 363.  See 2 H.
662.  Showing of forebearance, in and of itself, not sufficient part
performance to remove oral contract from operation of statute.  58 H. 4, 563
P.2d 391; 4 H. App. 333, 666 P.2d 617.



  Statute of frauds must be pleaded as affirmative defense
under HRCP 8(c).  45 H. 1, 361 P.2d 374.



  Where no real property interest was transferred to owner by
virtue of owner's redemption of property at IRS tax sale, statute of frauds
inapplicable.  84 H. 360 (App.), 934 P.2d 1.



  Where sole proprietorship accepted the benefits of the
telephone and other services provided by phone company in substantial reliance
on sole proprietorship's oral agreement to pay for services executed, sole
proprietorship and its sole proprietor were liable for the cost of those
services.  98 H. 462 (App.), 50 P.3d 431.



  Par. (2):  To charge person for debt, default or misdoings of
another.  Statute of frauds applies only to oral promises made to a person to
whom another is answerable.  35 H. 579, 581.  Promise to pay for goods
delivered to another is an original promise not within statute.  13 H. 212; 34
H. 875, 877.  Promise to pay debt of another under certain circumstances not
within statute.  17 H. 32, 38.  Promise to save maker of note harmless is
original promise.  19 H. 554.  Promise to pay debt of another under certain
circumstances not within statute.  Collateral and original promise, discussed. 
2 H. App. 679, 639 P.2d 426.



  Par. (4):  Contract for sale of lands or interest therein. 
Sale under order of court not within statute.  3 H. 705.  Seal not essential to
validity of instrument for conveyance of land.  4 H. 459 and see 4 H. 515. 
Necessary elements constituting a memorandum.  4 H. 593, 598.  Signature by
"X" held sufficient.  4 H. 133.  Improvements as removing transaction
from statute.  4 H. 637.  Possession of land in buyer, when sufficient to take
case out of statute.  4 H. 593.  Specific performance of oral contract on
ground of part performance.  9 H. 117.  Bond for a deed sufficient to satisfy
statute.  18 H. 602, 609.  Gift of land held contract within statute.  6 H.
160.  Special circumstances taking sale of house out.  7 H. 755.  Agreement to
sell land must be in writing.  8 H. 649.  Easement may not be created by
parol.  21 H. 751.  Signature of defendant alone, whether vendor or vendee, is
sufficient.  9 H. 434; 13 H. 307; 29 H. 669; 34 H. 651.  Mutual restrictions on
land use similar to easements and statute applies.  44 H. 235, 353 P.2d 1007. 
Agreement of A and B that A purchase at auction for joint account of both within. 
10 H. 395.  Contract for lease or sublease within.  11 H. 181.  Part
performance of oral agreement to sublet as taking case out of statute of
frauds.  31 H. 799.  Oral acceptance by A of written offer signed by B
sufficient for specific performance against B.  13 H. 92; 13 H. 471, 475. 
Memorandum may be in form of one or more receipts or letters.  13 H. 392. 
Question of separate writings constituting the memorandum; check as
memorandum.  42 H. 485.  Parol partition of land not within.  16 H. 294.  Contract
for sale of interest in land includes leases.  23 H. 706, 709.  Under certain
circumstances parol agreement to grant lease enforceable in equity.  25 H.
494.  Oral agreement to sublet.  31 H. 799.  Parol agreement to cancel written
lease.  34 H. 1.  Insufficiency of memorandum.  206 F.2d 892.  Sufficiency of a
memorandum of contract for sale of lands.  42 H. 304.  When memorandum may be
proved as a lost document.  45 H. 1, 361 P.2d 374.  Requirement that
authorization be in writing if the instrument is signed by another, referred
to.  50 H. 189, 436 P.2d 207.  See 5 H. 650.  Oral contract becomes enforceable
if there has been part performance.  50 H. 641, 447 P.2d 667.  When two or more
writings, signed and unsigned, may be considered together.  54 H. 433, 508 P.2d
1051.  Parol contract to convey real property must be established by clear and
convincing evidence; part performance to take it out of statute requires
similar proof.  58 H. 40, 564 P.2d 144.  Appellees were bound by the terms of
agreement, notwithstanding the statute of frauds, where although there was a
written agreement signed by the parties' attorneys, there was no writing
authorizing appellees' attorney to enter into agreement.  78 H. 76, 890 P.2d
313.  Sufficiency of DROA (deposit receipt, offer and acceptance form).  5 H.
App. 581, 704 P.2d 930.



  Par. (5):  Agreement not to be performed within one year. 
Agreement to lease land for cultivation treated as a license.  3 H. 306 (single
justice).  Contract contemplating continuous telephone service for years is
within.  6 H. 589 (single justice).  Agreement to take charge of a plantation
for three years is within.  2 H. 753.  If contract could have been performed
within a year although in fact it was not, it is excepted from the statute.  5
H. 67.  See 35 H. 402, 416.  Enforcement by virtue of reliance on oral
contract.  52 H. 29, 469 P.2d 177.  Section does not bar a party from proving
the existence of the other party's alleged oral promissory representations in a
fraudulent inducement defense.  7 H. App. 473, 778 P.2d 721.



  Par. (6):  Agreement authorizing or employing agent to buy or
sell realty for compensation.  Prior law.  These cases decided prior to
addition of par. 6, in 1923.  Promise to pay real estate broker for negotiating
sale or purchase of land not within.  11 H. 463.  Agent's authority need not be
in writing.  17 H. 87.



  Par. (7):  Charging estate of decedent on agreement to be
performed after death, to devise property, or make provisions by will. 
Concerning oral contract to devise land with part performance.  26 H. 369; 27
H. 457.  Oral contract to make a will must be established by clear and
convincing evidence, and proof of part performance to take case out of statute
must be established by similar evidence.  58 H. 4, 563 P.2d 391.  Enforcement
by virtue of reliance on oral contract.  66 H. 451, 666 P.2d 582.



  Exceptions to statute:  Plaintiffs failed to present clear
and convincing evidence of existence and terms of alleged oral option
contract.  906 F. Supp. 1377.



 



Hawaii Legal Reporter Citations



 



  Real estate sales.  80-1 HLR 800595.



  Oral property settlement agreement.  82-1 HLR 820253.