Also known as: oral evidences · testimonial evidence · viva voce evidence
Written by attorneys · grounded in primary & secondary sources — see below
A method of proving the contents of a memorandum that satisfies the statute of frauds when the original writing has been lost or destroyed. The statute of frauds serves an evidentiary purpose but is not itself a rule of evidence. Secondary proof through an unsigned copy or oral evidence therefore remains available to establish the memorandum's terms.
Odyssey Logistics and Orchard Farms signed a three-year grain supply agreement. A fire destroyed the only executed copy. Odyssey retained an unsigned digital template matching the signed version and executives from both companies can describe the three-year term from memory. The court permits the executives to testify about the lost memorandum's contents to enforce the agreement.
Otis Olsen claims a lost memorandum satisfied the statute of frauds for a stock purchase but offers only his own recollection after the signed writing was destroyed. No documents record the terms. The court permits oral evidence describing the memorandum's contents to establish the agreement.
Select any source to read its text and confirm it supports the definition.
Odette Orozco claims a lost memorandum satisfied the statute of frauds for a housing subsidy contract that was destroyed. The agency refuses enforcement. The court permits oral evidence from both parties describing the memorandum's terms to prove the agreement existed.
Onyx O'Reilly seeks to enforce a lost memorandum after the signed writing was destroyed in a fire. The court permits oral evidence from witnesses who read the memorandum to establish its terms under the statute of frauds.
Olivia Owens offers oral evidence to prove the terms of a memorandum that was lost when records were destroyed. The court accepts the testimony describing the writing's contents to satisfy the statute of frauds.
Orion Orlov offers oral evidence describing a lost memorandum that satisfied the statute of frauds before its destruction. The court accepts the testimony to establish the memorandum's terms and enforce the agreement.
A party may use oral evidence when the original signed writing has been lost or destroyed. The statute of frauds is not a rule of evidence, so an unsigned copy or testimony describing the memorandum’s contents satisfies its purpose.
Supporting sources
No. Loss or destruction of the memorandum does not deprive it of effect. Courts may receive oral evidence or an unsigned copy to establish the memorandum’s terms.
Supporting sources
Loss or destruction does not bar enforcement. Oral evidence describing the memorandum’s contents remains admissible to prove the terms because the statute is not itself a rule of evidence.
Supporting sources
Oral evidence may establish the terms whenever the original signed writing has been lost or destroyed. An unsigned copy or testimony satisfies the statute’s evidentiary purpose.
Supporting sources
…the Framers were particularly concerned with ex parte examinations. The involvement of government officers in the production of testimonial evidence presents the same risk of the civil-law mode of criminal procedure that the Confrontation Clause was designed to prevent. Pp. 23–28. Reversed and remanded. Majority opinion…