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| Home > Statutes > Usa Missouri |
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USA Statutes : missouri
Title : CONTRACTS AND CONTRACTUAL RELATIONS
Chapter : Chapter 432 Contracts Required to Be in Writing
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No action shall be brought to charge any executor or
administrator, upon any special promise to answer for any debt or damages
out of his own estate, or to charge any person upon any special promise
to answer for the debt, default or miscarriage of another person, or to
charge any person upon any agreement made in consideration of marriage,
or upon any contract made for the sale of lands, tenements,
hereditaments, or an interest in or concerning them, or any lease
thereof, for a longer time than one year, or upon any agreement that is
not to be performed within one year from the making thereof, unless the
agreement upon which the action shall be brought, or some memorandum or
note thereof, shall be in writing and signed by the party to be charged
therewith, or some other person by him thereto lawfully authorized, and
no contract for the sale of lands made by an agent shall be binding upon
the principal, unless such agent is authorized in writing to make said
contract. (RSMo 1939 § 3354)
Prior revisions: 1929 § 2967; 1919 § 2169; 1909 § 2783
CROSS REFERENCES: Actions on contract barred, revived by written promise,
RSMo 516.320 Declarations of trust to be in writing or by will, RSMo
456.010 Marriage contracts affecting property to be in writing,
acknowledged, RSMo 451.220 Powers of attorney to convey real estate, how
acknowledged and proved, RSMo 442.360
Agreements Not to be Performed in Year
(1961) Plaintiff could not recover in action for breach of oral contract
for personal employment since if employment was to be for one year and to
commence thirty-seven days after agreement was made it came within the
statute of frauds and if employment was for an indefinite period then it
was terminable at will and fact that in reliance on agreement plaintiff
had quit his job would not estop defendant from denying the contract.
Morsinkhoff v. DeLuxe Laundry & Dry Cleaning Co. (A.), 344 S.W.2d 639.
(1973) Held lease required to be in writing by statute of frauds may be
rescinded by subsequent oral agreement where unexpired term of lease is
less than that period required by the statute for written agreements. Gee
v. Nieberg (A.), 501 S.W.2d 542.
(1974) Held that because contract could have been performed within a year
it was not barred by statute of frauds. Want v. Century Supply Co. (A.),
508 S.W.2d 515.
Contracts Involving Lands
(1961) Description of real estate in writing as "Vo's bldg" held
insufficient under statute. Macy v. Day (A.), 346 S.W.2d 555.
(1961) Where agreement to enter into a lease was partly in writing but
omitted a great many matters which were alleged to be in an oral part of
the agreement it was not enforceable under the frauds. Frostwood Drugs,
Inc. v. Fisher & Frichtel Construction Co. (Mo.), 352 S.W.2d 694
(1962) Plaintiff, buyer, could not recover in action for damages for
breach of alleged contract to convey realty against husband and wife, who
held the realty as tenants by the entireties, where only the husband had
signed the contract and there was no memorandum in writing signed by wife
authorizing husband to act as her agent or ratifying his actions. Austin
& Bass Builders, Inc. v. Lewis (Mo.), 359 S.W.2d 711.
(1962) Where five year lease contained option provision by which lessee
could continue as tenant under same terms and conditions for another five
years the rental to be mutually determined by the parties at time of
exercise of option, amount of rent to be charged was essential part of
the contract and oral agreement thereon was unenforceable and fact that
lessee remained in possession for 8 months and paid rent at same rate as
previously paid under lease did not exclude option clause from statute of
frauds. Rosenberg v. Gas Service Co. (A.), 363S.W.2d 20.
(1967) Mere payment of money as partial performance will not take land
sale contract out of statute of frauds. Agreement not to contest will
which was fulfilled was sufficient performance to take oral agreement to
convey land out of the statute. Alonzo v Laubert (Mo.), 418 S.W.2d 94.
(1968) The statute of frauds applies with equal force to both the
purchasers and sellers of real estate. McQueen v. Huelsing (A.), 425
S.W.2d 506.
(1971) Where written contract in evidence described the property in
question as 80 acres more or less, gave vendors' name, residence, showed
the contract related to dairy farm, and vendors lived on subject farm and
owned no other real estate, and contract executed with all parties
present on the subject farm agreeing that exact legal description could
be supplied later by real estate agent, the contract was sufficient under
statute of frauds for purposes of reformation and specific performance.
Deulen v. Wilkinson (Mo.), 473 S.W.2d 357.
(1987) Though this section requires that a contract for the sale of real
property be evidenced by a writing, it does not require that a rescission
of such contract, if such contract is yet executory, be reduced to a
writing. Smith v. Mohan, 723 S.W.2d 94 (Mo.App. E.D.).
Evidence
(1960) Evidence held sufficient to show the part performance of oral
contract for the sale of land so as to take it out of the statute of
frauds. Anderson v. Abernathy (Mo.), 339 S.W.2d 817.
Generally
(1963) No writing or memorandum is required where the promise to assume
the debts of another is made to the debtor himself and not to the
creditor. Hafford v. Smith (A.), 369 S.W.2d 290.
(1973) Where the leading and main object of defendant's promise to
plaintiffs that he would see that they were paid was in his own interest,
the promise was not within the statute of frauds. Carvitto v. Ryle (A.),
495 S.W.2d 109.
(1974) Memorandum is sufficient to remove impediment of statute of frauds
if it sets out essential terms of agreement. Bayless Building Materials
Co. v. Peerless Land Co. (A.), 509 S.W.2d 206.
(1986) A promise need not be reduced to writing under the provisions of
this section dealing with promises to answer for the obligation of
another person, if main purpose of such promise is to serve the interests
of the promisor rather than such other person. Baron v. Lerman, 719
S.W.2d 72 (Mo.App. E.D.).
(1987) It is sufficient to plead full performance of an oral contract to
avoid a motion to dismiss under this section. Irwin v. Berrelsmeyer, 730
S.W.2d 302 (Mo.App. E.D.).
Part Performance
(1960) A parol lease for five years and parol agreement to make the lease
were within the statute of frauds and fact that lessor made improvements
during the first year conditioned upon the lease did not amount to
performance that would take the agreement out of the statute of frauds.
Newkirk v. Moley (A.), 343 S.W.2d 213.
(1964) Removal of buildings from leased tract by lessors was as referable
to written mining lease as to alleged new verbal agreement and lessor's
conduct with respect to roads and ditches cut by lessees was nonaction
rather than performance and not inconsistent with written lease, and
therefore, alleged oral agreement was not taken out of the statute of
frauds on ground of performance by lessors. Zink v. Pittsburg & Midway
Coal Mining Co. (A.), 374 S.W.2d 158.
(1964) In suit for specific performance of an alleged parol agreement
between husband and wife to keep their existing mutual and reciprocal
last wills and testaments in force and not revoke them held that there
was not part performance on part of wife sufficient to remove the alleged
parol agreement from the operation of the statute of frauds. Rookstool v.
Neaf (Mo.), 377 S.W.2d 402.
(1968) Anticipatory, preparatory, collateral, and ancillary acts
performed in reliance on a verbal contract, generally are not sufficient
part performance to call for an exception to the provisions of the
statute of frauds; but if the verbal agreement is sufficiently
established, the acts are done with the knowledge of the other party, and
if the changes in circumstances resulting from such acts are of such
nature that the consequences thereof are, or may be, disastrous, the
court may enforce the contract, even though the acts are not, strictly
speaking, in execution of the contract. Pointer v. Ward (Mo.), 429 S.W.2d
269.
(1986) A promise need not be reduced to writing under the provisions of
this section dealing with promises to answer for the obligation of
another person, if main purpose of such promise is to serve the interests
of the promisor rather than such other person. Baron v. Lerman, 719
S.W.2d 72 (Mo.App.).
(1987) It is sufficient to plead full performance of an oral contract to
avoid a motion to dismiss under this section. Irwin v. Berrelsmeyer, 730
S.W.2d 302 (Mo.App.).
(1987) Though this section requires that a contract for the sale of real
property be evidenced by a writing, it does not require that a rescission
of such contract, if such contract is yet executory, be reduced to a
writing. Smith v. Mohan, 723 S.W.2d 94 (Mo.App.).
All assignments of wages, salaries or earnings must be in
writing with the correct date of the assignment and the amount assigned
and the name or names of the party or parties owing the wages, salaries
and earnings so assigned; and all assignments of wages, salaries and
earnings, not earned at the time the assignment is made, shall be null
and void. (RSMo 1939 § 3356)
Prior revisions: 1929 § 2969; 1919 § 2171
CROSS REFERENCE: Assignment of wages deemed loan and subject to laws
regulating loans and punishing usury, when, RSMo 408.210
(1993) Mandatory wage deduction for nonunion school custodial and food
service workers' fair share fees for authorized collective bargaining
representative is not an assignment of wages within meaning of this
section. Schaffer v. Board of Education of St. Louis, 869 S.W.2d 163 (Mo.
App. E.D.).
No action shall be brought to charge any person upon or by
reason of any representation or assurance made concerning the character,
conduct, credit, ability, trade or dealings of any other person, unless
such representation or assurance be made in writing, and subscribed by
the party to be charged thereby, or by some person thereunto by him
lawfully authorized. (RSMo 1939 § 3357)
Prior revisions: 1929 § 2970; 1919 § 2172; 1909 § 2785
1. For the purposes of this section, the term "credit agreement"
means an agreement to lend or forbear repayment of money, to otherwise
extend credit, or to make any other financial accommodation.
2. A debtor may not maintain an action upon or a defense to a credit
agreement unless the credit agreement is in writing, provides for the
payment of interest or for other consideration, and sets forth the
relevant terms and conditions, except this subsection shall not preempt
other specific statutes that authorize additional protection for consumer
credit used in personal, family or household purposes and the limitations
on credit agreements in subsection 3 of this section.
3. (1) If a written credit agreement has been signed by a debtor,
subsection 2 of this section shall not apply to any credit agreement
between such debtor and creditor unless such written credit agreement
contains the following language in boldface ten point type: "Oral
agreements or commitments to loan money, extend credit or to forbear from
enforcing repayment of a debt including promises to extend or renew such
debt are not enforceable. To protect you (borrower(s)) and us (creditor)
from misunderstanding or disappointment, any agreements we reach covering
such matters are contained in this writing, which is the complete and
exclusive statement of the agreement between us, except as we may later
agree in writing to modify it."
(2) The provisions of this section shall not apply to credit agreements
for personal, family, or household purposes when there is already a
written contract governing the transaction, and the debtor and creditor
orally agree to defer one or more loan payments or make other credit
agreement modifications and such deferrals or modifications are limited
in duration to not more than ninety days.
4. Nothing contained in this section shall affect the enforceability by a
creditor of any promissory note, guaranty, security agreement, deed of
trust, mortgage, or other instrument, agreement, or document evidencing
or creating an obligation for the payment of money or other financial
accommodation, lien, or security interest. (L. 1990 H.B. 1788, A.L. 1992
S.B. 688)
1. For the purposes of this section, the term "credit agreement"
means an agreement to lend or forbear repayment of money, to otherwise
extend credit, or to make any other financial accommodation.
2. A debtor may not maintain an action upon or a defense, regardless of
legal theory in which it is based, in any way related to a credit
agreement unless the credit agreement is in writing, provides for the
payment of interest or for other consideration, and sets forth the
relevant terms and conditions.
3. (1) If a written credit agreement has been signed by a debtor,
subsection 2 of this section shall not apply to any credit agreement
between such debtor and creditor unless such written credit agreement
contains the following language in boldface ten-point type: "Oral
agreements or commitments to loan money, extend credit or to forbear from
enforcing repayment of a debt including promises to extend or renew such
debt are not enforceable, regardless of the legal theory upon which it is
based that is in any way related to the credit agreement. To protect you
(borrower(s)) and us (creditor) from misunderstanding or disappointment,
any agreements we reach covering such matters are contained in this
writing, which is the complete and exclusive statement of the agreement
between us, except as we may later agree in writing to modify it.".
(2) Notwithstanding any other law to the contrary in this chapter, the
provisions of this section shall apply to commercial credit agreements
only and shall not apply to credit agreements for personal, family, or
household purposes.
4. Nothing contained in this section shall affect the enforceability by a
creditor of any promissory note, guaranty, security agreement, deed of
trust, mortgage, or other instrument, agreement, or document evidencing
or creating an obligation for the payment of money or other financial
accommodation, lien, or security interest. (L. 2004 H.B. 959)
All leases, estates, interests of freehold or term of years, or
any uncertain interest of, in, to or out of any messuages, lands,
tenements or hereditaments, made or created by livery and seisin only, or
by parole, and not put in writing and signed by the parties so making or
creating the same, or their agents lawfully authorized by writing, shall
have the force and effect of leases or estates at will only, and shall
not, either in law or equity, be deemed or taken to have any other or
greater force. (RSMo 1939 § 3352)
Prior revisions: 1929 § 2965; 1919 § 2167; 1909 § 2781
(1957) To meet the requirements of this section, a lease may be made up
of several writings such as letters, etc., and it is not necessary that
all of such writings be signed by lessor and lessee. Midland Realty Co.
v. Manzella (A.), 308 S.W.2d 326.
No leases, estates, interests, either of freehold or term of
years, or any uncertain interest of, in, to or out of any messuages,
lands, tenements or hereditaments, shall at any time hereafter be
assigned, granted or surrendered, unless it be by deed or note in
writing, signed by the party so assigning, granting or surrendering the
same, or their agents lawfully authorized by writing, or by operation of
law. (RSMo 1939 § 3353)
Prior revisions: 1929 § 2966; 1919 § 2168; 1909 § 2782
No county, city, town, village, school township, school district
or other municipal corporation shall make any contract, unless the same
shall be within the scope of its powers or be expressly authorized by
law, nor unless such contract be made upon a consideration wholly to be
performed or executed subsequent to the making of the contract; and such
contract, including the consideration, shall be in writing and dated when
made, and shall be subscribed by the parties thereto, or their agents
authorized by law and duly appointed and authorized in writing.
Notwithstanding the foregoing, any home rule city with more than sixty
thousand three hundred but fewer than sixty thousand four hundred
inhabitants which after January 1, 2003, has committed or agreed in
writing to provide sewer service or has in fact directly or indirectly
provided such service to any homes within a subdivision shall give its
customers two years prior written notice of its intent to discontinue
service and during such two-year period shall continue to connect and
provide sanitary sewer service to all homes constructed in such
subdivision. In no event shall any sewer service connected prior to the
expiration of such two-year period be discontinued. (RSMo 1939 § 3349,
A.L. 2005 S.B. 462)
Prior revisions: 1929 § 2962; 1919 § 2164; 1909 § 2778
Effective 6-29-05
CROSS REFERENCE: Execution of county contracts, RSMo 50.660
(1961) Where city's "Notice to Bidders" required a lump sum bid for
construction of sewerage system "including approximately 18,000 cubic
yards of earth work" for lagoon, whereas the completion of the project
actually required 36,000 cubic yards of earth, the contractor was
entitled to recover in an action which is sui generis but which sounds in
tort, and contract statute did not apply. Clark v. City of Humansville,
Mo. (A.), 348 S.W.2d 369.
(1963) Where engineers performed services in connection with construction
additional to that covered by terms of contract between city and
engineers, out-of-pocket expenses incurred by engineers in connection
therewith were not payable on ground of emergency situation justifying
omission of written contract. Needles v. Kansas City (Mo.), 371 S.W.2d
300.
(1966) The terms of this section are expressly made applicable to
counties, and the requirement that the terms of contracts therein
referred to be in writing is mandatory and not merely directory. Thies v.
St. Louis County (Mo.), 402 S.W.2d 376.
(1967) The requirements of this section are mandatory, not directory, and
where there was no express written contract giving a water district
exclusive right to furnish and sell water in the district, no such
contract can be implied. Jackson Co. Public Water Supply District No. 1
v. Ong Aircraft Corp., 409 S.W.2d 226.
(1970) This section is mandatory and not merely directory. Hoevelman v.
Reorganized Sch. D. R. 2 of Crawford Co. (A.), 452 S.W.2d 298.
(1975) Held that ordinance which authorized mayor to enter contract with
state highway commission but silent as to costs or details was not a
valid authorization. State ex rel. State Highway Commission v. City of
Sullivan (A.), 529 S.W.2d 186.
(1976) Contract of city with state highway commission whereby city agreed
to pay fifty percent of the right-of-way costs of highway through city,
estimated in the contract to be $32,500, was not ultra vires in that it
did not specify exact amount of the consideration as required by this
section since standard was provided whereby the consideration to be paid
by city would be definitely determined. State ex rel. Highway Commission
v. City of Washington (Mo.), 533 S.W.2d 555.
(1976) Held, contract not containing required language is void and city
cannot be held liable on theory of ratification, estoppel, implied
contract or quantum meruit. Missouri International Investigators, Inc. v.
City of Pacific (A.), 545 S.W.2d 684.
(1977) Held, requirement that teacher's contract be in writing is
mandatory and must be pleaded and proved. Neal v. Junior College District
of East Central Mo. (A.), 550 S.W.2d 580.
In every case of contract entered into by any county, city,
town, village, school township, school district or other municipal
corporation, or by any officer or agent on their behalf, duplicate copies
of the same shall be executed as above provided, one of which shall be
filed in the office of the clerk of the county commission of the proper
county, or in such office or with such officer of the city, town,
village, school township, school district or other municipal corporation
as may be charged with the keeping of the contracts thereof, and shall
not be taken thence except to be used for the purposes of evidence in
some legal matter or cause; and in case of variance between such copies,
the one on file shall control in the construction of the contract. (RSMo
1939 § 3350)
Prior revisions: 1929 § 2963; 1919 § 2165; 1909 § 2779
Sections 432.200 to 432.295 shall be known and may be cited as
the "Uniform Electronic Transactions Act". (L. 2003 H.B. 254)
As used in sections 432.200 to 432.295, the following terms
shall mean:
(1) "Agreement", the bargain of the parties in fact, as found in their
language or inferred from other circumstances and from rules,
regulations, and procedures given the effect of agreements under laws
otherwise applicable to a particular transaction;
(2) "Automated transaction", a transaction conducted or performed, in
whole or in part, by electronic means or electronic records, in which the
acts or records of one or both parties are not reviewed by an individual
in the ordinary course in forming a contract, performing under an
existing contract, or fulfilling an obligation required by the
transaction;
(3) "Computer program", a set of statements or instructions to be used
directly or indirectly in an information processing system to bring about
a certain result;
(4) "Contract", the total legal obligation resulting from the parties'
agreement as affected by sections 432.200 to 432.295 and other applicable
law;
(5) "Electronic", relating to technology having electrical, digital,
magnetic, wireless, optical, electromagnetic, or similar capabilities;
(6) "Electronic agent", a computer program or an electronic or other
automated means used independently to initiate an action or respond to
electronic records or performances in whole or in part, without review or
action by an individual;
(7) "Electronic record", a record created, generated, sent, communicated,
received, or stored by electronic means;
(8) "Electronic signature", an electronic sound, symbol, or process
attached to or logically associated with a record and executed or adopted
by a person with the intent to sign the record;
(9) "Governmental agency", an executive, legislative or judicial agency,
department, board, commission, authority, institution, or instrumentality
of the federal government or of a state or of a county, municipality, or
other political subdivision of a state;
(10) "Information", data, text, images, sounds, codes, computer programs,
software, databases, or the like;
(11) "Information processing system", an electronic system for creating,
generating, sending, receiving, storing, displaying, or processing
information;
(12) "Person", an individual, corporation, business trust, estate, trust,
partnership, limited liability company, association, joint venture,
governmental agency, public corporation, or any other legal or commercial
entity;
(13) "Record", information that is inscribed on a tangible medium or that
is stored in an electronic or other medium and is retrievable in
perceivable form;
(14) "Security procedure", a procedure employed for the purpose of
verifying that an electronic signature, record, or performance is that of
a specific person or for detecting changes or errors in the information
in an electronic record. Security procedure includes a procedure that
requires the use of algorithms or other codes, identifying words or
numbers, encryption or callback, or other acknowledgment procedures;
(15) "State", a state of the United States, the District of Columbia,
Puerto Rico, the United States Virgin Islands, or any territory or
insular possession subject to the jurisdiction of the United States.
"State" includes an Indian tribe or band, or Alaskan native village,
which is recognized by federal law or formally acknowledged by a state;
(16) "Transaction", an action or set of actions occurring between two or
more persons relating to the conduct of business, commercial, or
governmental affairs. (L. 2003 H.B. 254)
1. Except as otherwise provided in subsection 2 of this section,
sections 432.200 to 432.295 apply to electronic records and electronic
signatures relating to a transaction.
2. Sections 432.200 to 432.295 shall not apply to a transaction to the
extent it is governed by:
(1) A law governing the creation and execution of wills, codicils, or
testamentary trusts; and
(2) The uniform commercial code other than sections 400.1-107, 400.1-
206, 400.2-101 to 400.2-725, and 400.2A-101 to 400.2A-532, RSMo.
3. Sections 432.200 to 432.295 apply to an electronic record or
electronic signature otherwise excluded from the application of sections
432.200 to 432.295 under subsection 2 of this section to the extent it is
governed by a law other than those specified in subsection 2 of this
section.
4. A transaction subject to sections 432.200 to 432.295 is also subject
to other applicable substantive law. (L. 2003 H.B. 254)
Sections 432.200 to 432.295 apply to any electronic record or
electronic signature created, generated, sent, communicated, received, or
stored on or after August 28, 2003. (L. 2003 H.B. 254)
1. Sections 432.200 to 432.295 do not require a record or
signature to be created, generated, sent, communicated, received, stored,
or otherwise processed or used by electronic means or in electronic form.
2. Sections 432.200 to 432.295 apply only to transactions between parties
each of which has agreed to conduct transactions by electronic means.
Whether the parties agree to conduct a transaction by electronic means is
determined from the context and surrounding circumstances, including the
parties' conduct.
3. A party that agrees to conduct a transaction by electronic means may
refuse to conduct other transactions by electronic means. The right
granted by this subsection shall not be waived by agreement.
4. Except as otherwise provided in sections 432.200 to 432.295, the
effect of any of its provisions may be varied by agreement. The presence
in certain provisions of sections 432.200 to 432.295 of the words "unless
otherwise agreed", or words of similar import, does not imply that the
effect of other provisions shall not be varied by agreement.
5. Whether an electronic record or electronic signature has legal
consequences is determined by sections 432.200 to 432.295 and other
applicable law. (L. 2003 H.B. 254)
Sections 432.200 to 432.295 shall be construed and applied:
(1) To facilitate electronic transactions consistent with other
applicable law;
(2) To be consistent with reasonable practices concerning electronic
transactions and with the continued expansion of those practices; and
(3) To effectuate its general purpose to make uniform the law with
respect to the subject of sections 432.200 to 432.295 among states
enacting it. (L. 2003 H.B. 254)
1. A record or signature shall not be denied legal effect or
enforceability solely because it is in electronic form.
2. A contract shall not be denied legal effect or enforceability solely
because an electronic record was used in its formation.
3. If a law requires a record to be in writing, an electronic record
satisfies the law.
4. If a law requires a signature, an electronic signature satisfies the
law. (L. 2003 H.B. 254)
1. If parties have agreed to conduct a transaction by electronic
means and a law requires a person to provide, send or deliver information
in writing to another person, the requirement is satisfied if the
information is provided, sent or delivered, as the case may be, in an
electronic record capable of retention by the recipient at the time of
receipt. An electronic record is not capable of retention by the
recipient if the sender or its information processing system inhibits the
ability of the recipient to print or store the electronic record.
2. If a law other than sections 432.200 to 432.295 requires a record to
be posted or displayed in a certain manner, to be sent, communicated, or
transmitted by a specified method, or to contain information that is
formatted in a certain manner, the following rules apply:
(1) The record shall be posted or displayed in the manner specified in
the other law;
(2) Except as otherwise provided in subdivision (2) of subsection 4 of
this section, the record shall be sent, communicated, or transmitted by
the method specified in the other law;
(3) The record shall contain the information formatted in the manner
specified in the other law.
3. If a sender inhibits the ability of a recipient to store or print an
electronic record, the electronic record is not enforceable against the
recipient.
4. The requirements of this section shall not be varied by agreement, but:
(1) To the extent a law other than sections 432.200 to 432.295 requires
information to be provided, sent, or delivered in writing but permits
that requirement to be varied by agreement, the requirement under
subsection 1 of this section that the information be in the form of an
electronic record capable of retention may also be varied by agreement;
and
(2) A requirement under a law other than sections 432.200 to 432.295 to
send, communicate, or transmit a record by first class mail, postage
prepaid, may be varied by agreement to the extent permitted by the other
law. (L. 2003 H.B. 254)
1. An electronic record or electronic signature is attributable
to a person if it was the act of the person. The act of the person may be
shown in any manner, including a showing of the efficacy of any security
procedure applied to determine the person to which the electronic record
or electronic signature was attributable.
2. The effect of an electronic record or electronic signature attributed
to a person under subsection 1 of this section is determined from the
context and surrounding circumstances at the time of its creation,
execution, or adoption, including the parties' agreement, if any, and
otherwise as provided by law. (L. 2003 H.B. 254)
If a change or error in an electronic record occurs in a
transmission between parties to a transaction, the following rules apply:
(1) If the parties have agreed to use a security procedure to detect
changes or errors and one party has conformed to the procedure, but the
other party has not, and the nonconforming party would have detected the
change or error had that party also conformed, the conforming party may
avoid the effect of the changed or erroneous electronic record;
(2) In an automated transaction involving an individual, the individual
may avoid the effect of an electronic record that resulted from an error
made by the individual in dealing with the electronic agent of another
person if the electronic agent did not provide an opportunity for the
prevention or correction of the error and, at the time the individual
learns of the error, the individual:
(a) Promptly notifies the other person of the error and that the
individual did not intend to be bound by the electronic record received
by the other person;
(b) Takes reasonable steps, including steps that conform to the other
person's reasonable instructions, to return to the other person or, if
instructed by the other person, to destroy the consideration received, if
any, as a result of the erroneous electronic record; and
(c) Has not used or received any benefit or value from the consideration,
if any, received from the other person;
(3) If neither subdivision (1) nor subdivision (2) of this section
applies, the change or error has the effect provided by other law,
including the law of mistake, and the parties' contract, if any; and
(4) Subdivisions (2) and (3) of this section shall not be varied by
agreement. (L. 2003 H.B. 254)
If a law requires a signature or record to be notarized,
acknowledged, verified, or made under oath, the requirement is satisfied
if the electronic signature of the person authorized to perform those
acts, together with all other information required to be included by
other applicable law, is attached to or logically associated with the
signature or record. (L. 2003 H.B. 254)
1. If a law requires that a record be retained, the requirement
is satisfied by retaining an electronic record of the information in the
record which:
(1) Accurately reflects the information set forth in the record after it
was first generated in its final form as an electronic record or
otherwise; and
(2) Remains accessible for later reference.
2. A requirement to retain a record in accordance with subsection 1 of
this section does not apply to any information the sole purpose of which
is to enable the record to be sent, communicated, or received.
3. A person may satisfy subsection 1 of this section by using the
services of another person if the requirements of that subsection are
satisfied.
4. If a law requires a record to be presented or retained in its original
form, or provides consequences if the record is not presented, or
retained in its original form, that law is satisfied by an electronic
record retained in accordance with subsection 1 of this section.
5. If a law requires retention of a check, that requirement is satisfied
by retention of an electronic record of the information on the front and
back of the check in accordance with subsection 1 of this section.
6. A record retained as an electronic record in accordance with
subsection 1 of this section satisfies a law requiring a person to retain
a record for evidentiary, audit or like purposes, unless a law enacted
after August 28, 2003, specifically prohibits the use of an electronic
record for the specified purpose.
7. This section does not preclude a governmental agency of this state
from specifying additional requirements for the retention of a record
subject to the agency's jurisdiction. (L. 2003 H.B. 254)
In a proceeding, evidence of a record or signature shall not be
excluded solely because it is in electronic form. (L. 2003 H.B. 254)
In an automated transaction, the following rules apply:
(1) A contract may be formed by the interaction of electronic agents of
the parties, even if no individual was aware of or reviewed the
electronic agents' actions or the resulting terms and agreements;
(2) A contract may be formed by the interaction of an electronic agent
and an individual, acting on the individual's own behalf or for another
person, including by an interaction in which the individual performs
actions that the individual is free to refuse to perform and which the
individual knows or has reason to know will cause the electronic agent to
complete the transaction or performance;
(3) The terms of the contract are determined by the substantive law
applicable to it. (L. 2003 H.B. 254)
1. Unless otherwise agreed between the sender and the recipient,
an electronic record is sent when it:
(1) Is addressed properly or otherwise directed properly to an
information processing system that the recipient has designated or uses
for the purpose of receiving electronic records or information of the
type sent and from which the recipient is able to retrieve the electronic
record;
(2) Is in a form capable of being processed by that system; and
(3) Enters an information processing system outside the control of the
sender or of a person that sent the electronic record on behalf of the
sender or enters a region of the information processing system designated
or used by the recipient which is under the control of the recipient.
2. Unless otherwise agreed between a sender and the recipient, an
electronic record is received when:
(1) It enters an information processing system that the recipient has
designated or uses for the purpose of receiving electronic records or
information of the type sent and from which the recipient is able to
retrieve the electronic record; and
(2) It is in a form capable of being processed by that system.
3. Subsection 2 of this section applies even if the place the information
processing system is located is different from the place the electronic
record is deemed to be received under subsection 4 of this section.
4. Unless otherwise expressly provided in the electronic record or agreed
between the sender and the recipient, an electronic record is deemed to
be sent from the sender's place of business and to be received at the
recipient's place of business. For purposes of this subsection, the
following rules apply:
(1) If the sender or recipient has more than one place of business, the
place of business of that person is the place having the closest
relationship to the underlying transaction;
(2) If the sender or the recipient does not have a place of business, the
place of business is the sender's or recipient's residence, as the case
may be.
5. An electronic record is received under subsection 2 of this section
even if no individual is aware of its receipt.
6. Receipt of an electronic acknowledgment from an information processing
system described in subsection 2 of this section establishes that a
record was received but, by itself, does not establish that the content
sent corresponds to the content received.
7. If a person is aware that an electronic record purportedly sent under
subsection 1 of this section or purportedly received under subsection 2
of this section was not actually sent or received, the legal effect of
the sending or receipt is determined by other applicable law. Except to
the extent permitted by the other law, the requirements of this
subsection shall not be varied by agreement. (L. 2003 H.B. 254)
1. As used in this section, "transferable record" means an
electronic record that:
(1) Would be a note under sections 400.3-101 to 400.3-605, RSMo, or a
document under sections 400.7-101 to 400.7-604, RSMo, if the electronic
record were in writing; and
(2) The issuer of the electronic record expressly has agreed is a
transferable record.
2. A person has control of a transferable record if a system employed for
evidencing the transfer of interests in the transferable record reliably
establishes that person as the person to which the transferable record
was issued or transferred.
3. A system satisfies subsection 2 of this section and a person is deemed
to have control of a transferable record if the transferable record is
created, stored, and assigned in such a manner that:
(1) A single authoritative copy of the transferable record exists which
is unique, identifiable, and, except as otherwise provided in
subdivisions (4), (5), and (6) of this subsection, unalterable;
(2) The authoritative copy identifies the person asserting control as:
(a) The person to which the transferable record was issued; or
(b) If the authoritative copy indicates that the transferable record has
been transferred, the person to which the transferable record was most
recently transferred;
(3) The authoritative copy is communicated to and maintained by the
person asserting control or its designated custodian;
(4) Copies or revisions that add or change an identified assignee of the
authoritative copy can be made only with the consent of the person
asserting control;
(5) Each copy of the authoritative copy and any copy of a copy is readily
identifiable as a copy that is not the authoritative copy; and
(6) Any revision of the authoritative copy is readily identifiable as
authorized or unauthorized.
4. Except as otherwise agreed, a person having control of a transferable
record is the holder, as defined in subdivision (20) of section
400.1-201, RSMo, of the uniform commercial code, of the transferable
record and has the same rights and defenses as a holder of an equivalent
record or writing under the uniform commercial code, including, if the
applicable statutory requirements under section 400.3-302(a), 400.7- 501,
or 400.9-308, RSMo, of the uniform commercial code are satisfied, the
rights and defenses of a holder in due course, a holder to which a
negotiable document of title has been duly negotiated, or a purchaser,
respectively. Delivery, possession, and endorsement are not required to
obtain or exercise any of the rights under this subsection.
5. Except as otherwise agreed, an obligor under a transferable record has
the same rights and defenses as an equivalent obligor under equivalent
records or writings under the uniform commercial code.
6. If requested by a person against which enforcement is sought, the
person seeking to enforce the transferable record shall provide
reasonable proof that the person is in control of the transferable
record. Proof may include access to the authoritative copy of the
transferable record and related business records sufficient to review the
terms of the transferable record and to establish the identity of the
person having control of the transferable record. (L. 2003 H.B. 254)
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