Page:Harvard Law Review Volume 9.djvu/483

JUDICIAL REPEAL OF THE STATUTE OF FRAUDS. 455 JUDICIAL REPEAL OF THE STATUTE OF FRAUDS. THE Statute of Frauds is ostensibly a measure to prevent frauds, whether the frauds be intentional, through the me- dium of false swearing, or accidental, as the result of defective memory. In either view of the matter, the statute is remedial, and is generally professed to be construed, as it should be, to effect- uate this purpose. Its provisions are readily observed, and through all the years that it has been upon the statute-book it has undoubt- edly proved to be a great instrument of justice. But courts sometimes yield to the appeal made to their sympathies by the exigencies of special circumstances, and in this way there has gradually developed upon this bulwark of jurisprudence " a para- site, strangely coddled and nurtured by judges, who have allowed themselves from time to time to be carried away by prejudice from these special circumstances. And then the plain terms of the statute are ignored, and the very wholesome purpose of its enact- ment disregarded. This parasite is the so called doctrine that inasmuch as the statute was intended to prevent frauds, and not to assist in perpetrating them, it should not be allowed to become, according to the now popular phrase, an instrument of oppression, instead of one of defence. It will be found that this backsliding has led to numerous distinctions and exceptions, by which the beneficent aims of the statute have been often neutralized, and its very design often frustrated. These lapses are generally to be found instanced in cases where one of the parties to a contract has partly or wholly performed his part of the oral agreement, so that, if no remedy at all were provided for the party performing, the party receiving the benefit of this partial or complete performance would be said to use the statute as an instrument of oppression to retain his advantage, and therefore, it is argued, the statute should not be allowed to be interposed as a defence at all. The readiest answer to such an argument is, of course, a reference to other instances, where the law, as a matter of policy, considering only the greatest public benefit in the largest number of cases likely to arise, permits of defences that under exceptional circumstances appear arbitrary and selfish, and that also may permit to the 60