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New York General Obligations - Title 7 - § 5-701 Agreements Required to Be in Writing

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General Obligations 
 
    § 5-701. Agreements  required  to  be  in writing. a. Every agreement,
  promise or undertaking is void, unless it or  some  note  or  memorandum
  thereof  be  in  writing,  and  subscribed  by  the  party to be charged
  therewith, or by  his  lawful  agent,  if  such  agreement,  promise  or
  undertaking:
    1. By its terms is not to be performed within one year from the making
  thereof  or  the  performance of which is not to be completed before the
  end of a lifetime;
    2. Is a special promise to answer for the debt, default or miscarriage
  of another person;
    3. Is made in consideration of marriage,  except  mutual  promises  to
  marry;
    5.  Is  a  subsequent  or  new  promise  to  pay  a debt discharged in
  bankruptcy;
    6. Notwithstanding section 2-201 of the uniform  commercial  code,  if
  the  goods  be sold at public auction, and the auctioneer at the time of
  the sale, enters in a sale book, a memorandum specifying the nature  and
  price  of  the  property  sold,  the  terms of the sale, the name of the
  purchaser, and the name of the person on  whose  account  the  sale  was
  made,  such memorandum is equivalent in effect to a note of the contract
  or sale, subscribed by the party to be charged therewith;
    9. Is  a  contract  to  assign  or  an  assignment,  with  or  without
  consideration to the promisor, of a life or health or accident insurance
  policy,  or a promise, with or without consideration to the promisor, to
  name a beneficiary of any such policy. This provision shall not apply to
  a policy of industrial life or health or accident insurance.
    10. Is a  contract  to  pay  compensation  for  services  rendered  in
  negotiating  a  loan,  or  in  negotiating the purchase, sale, exchange,
  renting or leasing of any real estate  or  interest  therein,  or  of  a
  business opportunity, business, its good will, inventory, fixtures or an
  interest therein, including a majority of the voting stock interest in a
  corporation  and  including  the  creating  of  a  partnership interest.
  "Negotiating" includes procuring an  introduction  to  a  party  to  the
  transaction  or  assisting  in  the  negotiation  or consummation of the
  transaction. This provision shall apply to a contract implied in fact or
  in law to pay reasonable compensation but shall not apply to a  contract
  to  pay  compensation  to  an  auctioneer, an attorney at law, or a duly
  licensed real estate broker or real estate salesman.
    b. Notwithstanding paragraph one of subdivision a of this section:
    1. An agreement, promise, undertaking or contract, which is  valid  in
  other  respects  and is otherwise enforceable, is not void for lack of a
  note, memorandum or other writing and is enforceable by way of action or
  defense provided that such agreement, promise, undertaking  or  contract
  is  a  qualified  financial contract as defined in paragraph two of this
  subdivision and (a) there is, as provided in  paragraph  three  of  this
  subdivision,  sufficient  evidence  to indicate that a contract has been
  made, or (b) the parties thereto, by means  of  a  prior  or  subsequent
  written contract, have agreed to be bound by the terms of such qualified
  financial  contract from the time they reach agreement (by telephone, by
  exchange of electronic messages, or otherwise) on those terms.
    2. For purposes of this subdivision, a "qualified financial  contract"
  means  an  agreement  as  to  which  each  party thereto is other than a
  natural person and which is:
    (a) for the purchase and sale of foreign exchange,  foreign  currency,
  bullion,  coin  or precious metals on a forward, spot, next-day value or
  other basis;
    (b) a contract (other than a contract for the purchase and sale  of  a
  commodity for future delivery on, or subject to the rules of, a contract

  market  or  board  of  trade)  for the purchase, sale or transfer of any
  commodity or any similar good,  article,  service,  right,  or  interest
  which  is  presently  or in the future becomes the subject of dealing in
  the  forward contract trade, or any product or byproduct thereof, with a
  maturity date more than two days after the date the contract is  entered
  into;
    (c)  for  the  purchase  and  sale  of currency, or interbank deposits
  denominated in United States dollars;
    (d) for a currency option, currency swap or cross-currency rate swap;
    (e) for a commodity swap or a commodity option (other than  an  option
  contract  traded  on,  or  subject  to the rules of a contract market or
  board of trade);
    (f) for a rate swap, basis  swap,  forward  rate  transaction,  or  an
  interest rate option;
    (g)  for a security-index swap or option or a security (or securities)
  price swap or option;
    (h) an agreement which involves any other similar transaction relating
  to a price or index (including, without limitation, any  transaction  or
  agreement  involving  any  combination of the foregoing, any cap, floor,
  collar or similar transaction with respect to a rate,  commodity  price,
  commodity index, security (or securities) price, security-index or other
  price index);
    (i)  for  the  assignment,  sale,  trade, participation or exchange of
  indebtedness or claims relating thereto arising in  the  course  of  the
  claimant's   business  or  profession  (including  but  not  limited  to
  commercial and/or bank loans, choses  in  action  arising  under  or  in
  connection with loan agreements and private notes, and including forward
  sales),  but only to the extent that such indebtedness or obligation was
  not incurred by a natural  person  primarily  for  personal,  family  or
  household purposes; or
    (j) an option with respect to any of the foregoing.
    3. There is sufficient evidence that a contract has been made if:
    (a)  There is evidence of electronic communication (including, without
  limitation, the recording of a telephone call or  the  tangible  written
  text  produced  by computer retrieval), admissible in evidence under the
  laws of this state, sufficient to indicate that in such communication  a
  contract was made between the parties;
    (b)  A  confirmation in writing sufficient to indicate that a contract
  has been made between the parties and sufficient against the  sender  is
  received  by  the party against whom enforcement is sought no later than
  the fifth business day after such contract is made (or such other period
  of time as the parties may agree in writing) and  the  sender  does  not
  receive, on or before the third business day after such receipt (or such
  other  period  of  time  as  the  parties may agree in writing), written
  objection to a material term of the confirmation; for purposes  of  this
  subparagraph,  a confirmation or an objection thereto is received at the
  time there has been actual receipt by an individual responsible for  the
  transaction  or,  if  earlier,  at  the time there has been constructive
  receipt which is the time actual receipt by  such  an  individual  would
  have  occurred if the receiving party, as an organization, has exercised
  reasonable diligence; and a "business day"  for  the  purposes  of  this
  subparagraph  is  a  day  on which both parties are open and transacting
  business of the kind involved in that qualified financial contract which
  is the subject of the confirmation;
    (c) The party  against  whom  enforcement  is  sought  admits  in  its
  pleading, testimony or otherwise in court that a contract was made; or

    (d)  There  is  a  note,  memorandum  or  other  writing sufficient to
  indicate that a contract has been made, signed by the party against whom
  enforcement is sought or by its authorized agent or broker.
    For purposes of this paragraph evidence of an electronic communication
  indicating   the  making  therein  of  a  contract  or  a  confirmation,
  admission, note, memorandum or writing is not  insufficient  because  it
  omits  or  incorrectly states one or more material terms agreed upon, so
  long as such evidence provides a reasonable basis for concluding that  a
  contract was made.
    4.  For  purposes  of  this  subdivision,  the  tangible  written text
  produced by telex, telefacsimile, computer retrieval or other process by
  which electronic signals are transmitted by telephone or otherwise shall
  constitute a writing and any symbol executed or adopted by a party  with
  the  present  intention  to  authenticate  a  writing shall constitute a
  signing. The  confirmation  and  notice  of  objection  referred  to  in
  subparagraph   (b)  of  paragraph  three  of  this  subdivision  may  be
  communicated by means of telex, telefacsimile, computer or other similar
  process by which electronic signals  are  transmitted  by  telephone  or
  otherwise, provided that a party claiming to have communicated in such a
  manner  shall, unless the parties have otherwise agreed in writing, have
  the burden of establishing actual or constructive receipt by  the  other
  party  as  set  forth  in  subparagraph  (b)  of paragraph three of this
  subdivision.
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Last modified: February 15, 2014