Definition
In the context of the Statute of Frauds, a "note or memorandum" is an informal written record of a transaction that satisfies the statute's requirement that certain contracts be evidenced in writing. The phrase does not denote a formal document — it refers to any writing, however brief or casual, that captures the essential terms of an agreement and bears the signature (or mark) of the party to be charged. The writing need not be prepared with legal formality, need not be a single document, and need not have been intended as a binding instrument at the time it was made. Its function is evidentiary: to provide reliable proof of the agreement's existence and core terms.
The writing must, however, be substantively adequate. A note or memorandum that omits an essential term — the parties, the subject matter, the price, or the consideration — will not satisfy the statute, regardless of how many other details it contains. Adequacy is measured against the specific contract at issue, not against a universal checklist.
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Common Language
Modern common usage (Wiktionary): A "note" is a brief written record or informal message. A "memorandum" is a written communication, often internal, used to convey information or record a matter for future reference.
Historical common usage (Webster's 1913): "Note" — a brief writing intended to assist the memory; a memorandum. "Memorandum" — a record of something which it is desired to remember; a brief note set down to assist the memory.
The ordinary meanings are not far from the legal meaning, but the legal context adds a critical dimension: in law, these writings are not merely aids to memory — they are instruments that trigger or defeat legal rights. A casual note scrawled on a napkin or a letter not intended as a contract can, if it contains the right terms, constitute a legally sufficient memorandum under the Statute of Frauds. Conversely, a polished document that omits an essential term will fail. Researchers should not assume that formality predicts sufficiency.
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Common Confusion
"Note or memorandum" as a Statute of Frauds term is easily conflated with two other senses of "note" that appear throughout legal literature:
First, a promissory note — a formal negotiable instrument containing an unconditional promise to pay a sum of money — is a distinct concept governed by commercial law (Article 3 of the Uniform Commercial Code and its predecessors). A promissory note may itself serve as a written memorandum for Statute of Frauds purposes, but the two concepts are not coextensive and arise from different bodies of law.
Second, "note" appears in equity and corporate finance contexts (debentures, notes payable, demand notes) with still different meanings. In historical sources especially, context must be checked before assuming which sense of "note" is operative.
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Why It Matters in Research
The phrase "note or memorandum" is a term of art tied directly to the Statute of Frauds, which means its meaning and sufficiency standards have been litigated continuously since 1677. Researchers working in historical sources will find substantial variation in what courts accepted as adequate. Early American cases were often strict, requiring the memorandum to contain all essential terms on its face; later courts became more permissive, allowing multiple writings to be read together (the "chain of documents" doctrine) and permitting limited reference to extrinsic evidence to identify subject matter.
The key research trap: Black's reference to an "informal minute or memorandum made on the spot" suggests contemporaneous drafting, but courts have long held that a memorandum may be made after the agreement is reached — sometimes well after — so long as it accurately reflects the terms. Do not read historical definitions as imposing a timing requirement.
Jurisdictional variation matters here. Different states enacted the Statute of Frauds with different language, and what counts as a sufficient memorandum for a contract for the sale of land may differ from what is required for a contract for the sale of goods (now governed by UCC § 2-201, which has its own, more relaxed writing requirement). When researching historical cases, always identify which provision of the statute was at issue.
The sufficiency question also intersects with the parol evidence rule. Bouvier's formulation — that the memorandum must be understandable "without reference to parol evidence to show intent of parties" — reflects a strict 19th-century position. Modern courts are generally more willing to allow extrinsic evidence to identify parties or property, though not to supply missing essential terms. Researchers using older treatises should treat statements about parol evidence and memorandum sufficiency as period-specific rather than universal.
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Historical Dictionary Support
Black's and Bouvier's agree on the foundational point: the note or memorandum required by the Statute of Frauds is informal in character. Neither source requires a particular form or a document prepared with contractual intent. Bouvier's is the more analytically complete of the two, identifying the core adequacy test — essential terms expressed with sufficient certainty — and signaling the limit: parol evidence cannot be used to supply what the writing omits as to the parties' intent. Black's, characteristically, is more compressed, pointing researchers toward case law without elaborating the doctrinal framework.
Both definitions, however, are silent on several developments that became critical in later doctrine: the permissibility of assembling a memorandum from multiple documents, the question of what signature or authentication suffices, and the divergence between the land-sale and goods-sale provisions. Researchers relying solely on these dictionary entries will have an accurate but incomplete picture of the doctrine, particularly for transactions arising after the mid-20th century.
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Jurisdictional Note
Every U.S. jurisdiction has a Statute of Frauds, but the specific categories of contracts covered and the sufficiency standards for the written memorandum vary by state. The UCC's writing requirement for goods contracts (§ 2-201) displaces the traditional memorandum standard in that context and applies its own rules. For real property transactions, state-specific case law governs, and results can differ substantially on questions such as whether the buyer's signature alone is sufficient or whether a real estate agent's listing agreement can serve as the memorandum.
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Encyclopedia Cross-Reference
Contracts & Commercial Law Encyclopedia: "Negotiable Instruments — Types (Notes, Drafts, Checks, Certificates of Deposit)" (contracts_151)
Property Law Encyclopedia: "Mortgages — Promissory Note and Deed of Trust" (property_55)
Business Organizations & Corporate Law Encyclopedia: "Corporate Finance — Debt Securities (Bonds, Debentures, Notes)" (business_72)
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