Failure to allege the non-compliance with the statute of frauds in a motion to dismiss or an answer is not a total waiver in an action

As a general rule, defenses and objections not pleaded in either a motion to dismiss or an answer are deemed waived.1 The Rules of Court provides that a motion to dismiss may be made if the claim on which the action is founded is unenforceable under the provisions of the statute of frauds.2 If a defendant fails to allege the non-compliance of the plaintiff with the statute of frauds, this defense is generally deemed waived.

A motion to dismiss invoking the Statute of Frauds may be filed even if the absence of compliance does not appear on the face of the complaint. Such absence may be the subject of proof in the motion stage of the proceedings.3 However, the statute of frauds is applicable only to executory contracts, not to contracts that are totally or partially performed.4

However, the statute of frauds simply provides for the manner in which contracts under it shall be proved.5 It does not attempt to make such contracts invalid if not executed in writing, but only makes ineffective the action for specific performance. The contract exists and is valid. The effect of noncompliance with the statute is that no action can be proved unless the requirement is complied with. Oral evidence of the contract will be excluded upon timely objection. 6 Hence, the objection against the non-compliance with the statute of frauds can still be raised in trial. But if the parties to the action, during the trial, make no objection to the admissibility of oral evidence to support the contract and permit the contract to be proved orally, it will be just as binding as if it had been reduced to writing. 7

1 2

Rules of Court, Rule 9, Sec. 1. Rules of Court, Rule 16, Sec. 1. 3 Yuvienco v. Dacuycuy, G.R. No. L-55048, May 27, 1981. 4 Carbonell v. Poncio, G.R. No. L-11231, May 12, 1958. 5 Tolentino, Commentaries and Jurisprudence on the Civil Code of the Philippines, 617 (1991). 6 Ibid. 7 Ibid.