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Response or Comment

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One of the most striking examples of judicial legislation is that process whereby courts of equity, from the end of the seventeenth century onwards, have in no small measure re-written the Statute of Frauds. Exception was added to exception until the doctrine kmown as "part performance" became firmly established. The doctrine was not evolved consistently and the basis of some applications of it is obscure. One who follows Sir Edward Frys admirable but futile attempt (Fry, SPECIFIC PERFORMANCE (ed. 5) §§ 580, ff.) to systematize the variant decisions of the English courts must feel doubtful whether any single theory will explain all the intricacies of part performance. Mr. Pomeroy sought to support the doctrine upon the all-embracing principle of fraud (Pomeroy, CONTRACTS (ed. 2) §§ 103, 104), but unless it be fraud to fail to carry out a promise deliberately made when another has acted upon it, this explanation fails.