§ 5-701 — Agreements required to be in writing

§ 5-701. Agreements required to be in writing. a. Every agreement,\npromise or undertaking is void, unless it or some note or memorandum\nthereof be in writing, and subscribed by the party to be charged\ntherewith, or by his lawful agent, if such agreement, promise or\nundertaking:\n 1. By its terms is not to be performed within one year from the making\nthereof or the performance of which is not to be completed before the\nend of a lifetime;\n 2. Is a special promise to answer for the debt, default or miscarriage\nof another person;\n 3. Is made in consideration of marriage, except mutual promises to\nmarry;\n 5. Is a subsequent or new promise to pay a debt discharged in\nbankruptcy;\n 6. Notwithstanding section 2-201 of the uniform commercial code, if\nthe goods be sold at public auction, and the auctioneer at the time of\nthe sale, enters in a sale book, a memorandum specifying the nature and\nprice of the property sold, the terms of the sale, the name of the\npurchaser, and the name of the person on whose account the sale was\nmade, such memorandum is equivalent in effect to a note of the contract\nor sale, subscribed by the party to be charged therewith;\n 9. Is a contract to assign or an assignment, with or without\nconsideration to the promisor, of a life or health or accident insurance\npolicy, or a promise, with or without consideration to the promisor, to\nname a beneficiary of any such policy. This provision shall not apply to\na policy of industrial life or health or accident insurance.\n 10. Is a contract to pay compensation for services rendered in\nnegotiating a loan, or in negotiating the purchase, sale, exchange,\nrenting or leasing of any real estate or interest therein, or of a\nbusiness opportunity, business, its good will, inventory, fixtures or an\ninterest therein, including a majority of the voting stock interest in a\ncorporation and including the creating of a partnership interest.\n"Negotiating" includes procuring an introduction to a party to the\ntransaction or assisting in the negotiation or consummation of the\ntransaction. This provision shall apply to a contract implied in fact or\nin law to pay reasonable compensation but shall not apply to a contract\nto pay compensation to an auctioneer, an attorney at law, or a duly\nlicensed real estate broker or real estate salesman.\n b. Notwithstanding paragraph one of subdivision a of this section:\n 1. An agreement, promise, undertaking or contract, which is valid in\nother respects and is otherwise enforceable, is not void for lack of a\nnote, memorandum or other writing and is enforceable by way of action or\ndefense provided that such agreement, promise, undertaking or contract\nis a qualified financial contract as defined in paragraph two of this\nsubdivision and (a) there is, as provided in paragraph three of this\nsubdivision, sufficient evidence to indicate that a contract has been\nmade, or (b) the parties thereto, by means of a prior or subsequent\nwritten contract, have agreed to be bound by the terms of such qualified\nfinancial contract from the time they reach agreement (by telephone, by\nexchange of electronic messages, or otherwise) on those terms.\n 2. For purposes of this subdivision, a "qualified financial contract"\nmeans an agreement as to which each party thereto is other than a\nnatural person and which is:\n (a) for the purchase and sale of foreign exchange, foreign currency,\nbullion, coin or precious metals on a forward, spot, next-day value or\nother basis;\n (b) a contract (other than a contract for the purchase and sale of a\ncommodity for future delivery on, or subject to the rules of, a contract\nmarket or board of trade) for the purchase, sale or transfer of any\ncommodity or any similar good, article, service, right, or interest\nwhich is presently or in the future becomes the subject of dealing in\nthe forward contract trade, or any product or byproduct thereof, with a\nmaturity date more than two days after the date the contract is entered\ninto;\n (c) for the purchase and sale of currency, or interbank deposits\ndenominated in United States dollars;\n (d) for a currency option, currency swap or cross-currency rate swap;\n (e) for a commodity swap or a commodity option (other than an option\ncontract traded on, or subject to the rules of a contract market or\nboard of trade);\n (f) for a rate swap, basis swap, forward rate transaction, or an\ninterest rate option;\n (g) for a security-index swap or option or a security (or securities)\nprice swap or option;\n (h) an agreement which involves any other similar transaction relating\nto a price or index (including, without limitation, any transaction or\nagreement involving any combination of the foregoing, any cap, floor,\ncollar or similar transaction with respect to a rate, commodity price,\ncommodity index, security (or securities) price, security-index or other\nprice index);\n (i) for the assignment, sale, trade, participation or exchange of\nindebtedness or claims relating thereto arising in the course of the\nclaimant's business or profession (including but not limited to\ncommercial and/or bank loans, choses in action arising under or in\nconnection with loan agreements and private notes, and including forward\nsales), but only to the extent that such indebtedness or obligation was\nnot incurred by a natural person primarily for personal, family or\nhousehold purposes; or\n (j) an option with respect to any of the foregoing.\n 3. There is sufficient evidence that a contract has been made if:\n (a) There is evidence of electronic communication (including, without\nlimitation, the recording of a telephone call or the tangible written\ntext produced by computer retrieval), admissible in evidence under the\nlaws of this state, sufficient to indicate that in such communication a\ncontract was made between the parties;\n (b) A confirmation in writing sufficient to indicate that a contract\nhas been made between the parties and sufficient against the sender is\nreceived by the party against whom enforcement is sought no later than\nthe fifth business day after such contract is made (or such other period\nof time as the parties may agree in writing) and the sender does not\nreceive, on or before the third business day after such receipt (or such\nother period of time as the parties may agree in writing), written\nobjection to a material term of the confirmation; for purposes of this\nsubparagraph, a confirmation or an objection thereto is received at the\ntime there has been actual receipt by an individual responsible for the\ntransaction or, if earlier, at the time there has been constructive\nreceipt which is the time actual receipt by such an individual would\nhave occurred if the receiving party, as an organization, has exercised\nreasonable diligence; and a "business day" for the purposes of this\nsubparagraph is a day on which both parties are open and transacting\nbusiness of the kind involved in that qualified financial contract which\nis the subject of the confirmation;\n (c) The party against whom enforcement is sought admits in its\npleading, testimony or otherwise in court that a contract was made; or\n (d) There is a note, memorandum or other writing sufficient to\nindicate that a contract has been made, signed by the party against whom\nenforcement is sought or by its authorized agent or broker.\n For purposes of this paragraph evidence of an electronic communication\nindicating the making therein of a contract or a confirmation,\nadmission, note, memorandum or writing is not insufficient because it\nomits or incorrectly states one or more material terms agreed upon, so\nlong as such evidence provides a reasonable basis for concluding that a\ncontract was made.\n 4. For purposes of this subdivision, the tangible written text\nproduced by telex, telefacsimile, computer retrieval or other process by\nwhich electronic signals are transmitted by telephone or otherwise shall\nconstitute a writing and any symbol executed or adopted by a party with\nthe present intention to authenticate a writing shall constitute a\nsigning. The confirmation and notice of objection referred to in\nsubparagraph (b) of paragraph three of this subdivision may be\ncommunicated by means of telex, telefacsimile, computer or other similar\nprocess by which electronic signals are transmitted by telephone or\notherwise, provided that a party claiming to have communicated in such a\nmanner shall, unless the parties have otherwise agreed in writing, have\nthe burden of establishing actual or constructive receipt by the other\nparty as set forth in subparagraph (b) of paragraph three of this\nsubdivision.\n