Title 53 — CONTRACTS

The provisions of the general law on transfers concerning the delivery of grants, absolute and conditional, apply to all written contracts. Source: CivC 1877, § 923; CL 1887, § 3547; RCivC 1903, § 1241; RC 1919, § 862; SDC 1939, § 10.0608.

All contracts may be oral except such as are specially required by statute to be in writing. Source: CivC 1877, § 918; CL 1887, § 3542; RCivC 1903, § 1236; RC 1919, § 853; SDC 1939, § 10.0602.

The following contracts are not enforceable by action unless the contract or some memorandum thereof is in writing and subscribed by the party to be charged or his agent, as authorized in writing: (1) An agreement that by its terms is not to be performed within a year from the ma…

Where a contract which is required by law to be in writing is prevented from being put into writing by the fraud of a party thereto, any other party who is by such fraud led to believe that it is in writing and acts upon such belief to his prejudice may enforce it against the fra…

When a sale is made by public auction of any real or personal property, an entry by the auctioneer, or actual clerk of the sale, in his sale book at the time of the sale, of the kind of property sold and description thereof sufficient for identification, the terms of sale, the pr…

The execution of a contract in writing, whether the law requires it to be written or not, supersedes all the oral negotiations or stipulations concerning its matter which preceded or accompanied the execution of the instrument. Source: CivC 1877, § 921; CL 1887, § 3545; RCivC 190…

A contract not in writing may be altered in any respect by consent of the parties, in writing, without a new consideration, and is extinguished thereby to the extent of the alteration. Source: CivC 1877, § 968; CL 1887, § 3592; RCivC 1903, § 1286; RC 1919, § 907; SDC 1939, § 10.0…

A contract in writing may be altered by a contract in writing without a new consideration or by an executed oral agreement, and not otherwise. Source: CivC 1877, § 969; CL 1887, § 3593; RCivC 1903, § 1287; RC 1919, § 908; SDC 1939, § 10.0806.

A contract provision contrary to an express provision of law or to the policy of express law, though not expressly prohibited or otherwise contrary to good morals, is unlawful. Source: CivC 1877, § 953; CL 1887, § 3577; RCivC 1903, § 1271; RC 1919, § 892; SDC 1939, § 10.0701.

Partners may, upon or in anticipation of a dissolution of the partnership, agree that none of them will carry on a similar business within the same municipality where the partnership business has been transacted or within a specified part thereof. Source: CivC 1877, § 961; CL 188…

Except as otherwise provided in § 53-9-11.2 , an employee may agree with an employer at the time of employment or at any time during employment not to engage directly or indirectly in the same business or profession as that of the employer for any period not exceeding two years f…

For purposes of § 53-9-11.2 , a practitioner means: (1) A physician licensed in accordance with chapter 36-4 ; (2) A physician assistant licensed in accordance with chapter 36-4A ; (3) A paramedic or emergency medical technician licensed in accordance with chapter 36-4B ; (4) A r…

Notwithstanding § 53-9-11 , a provision of a contract, entered into on or after July 1, 2023, is voidable if it restricts a practitioner, as defined in § 53-9-11 .1, from practicing or otherwise providing professional services in accordance with the applicable scope of practice, …

Any independent contractor who is an insurance producer as defined in subdivision 58-1-2(16) and is a captive agent who is not an independent agent and who works exclusively for a single insurance company or an affiliated group of insurance companies, even if the single insurance…

A provision in a contract is void and unenforceable if it in any way: (1) Coerces, compels, or attempts to compel a pregnant woman to undergo an abortion; (2) Results in a breach of any term of the contract if a pregnant woman refuses to undergo an abortion; or (3) Results in the…

Any contract: (1) In which the whole or any part of the contractual consideration is money or other valuable consideration, won or lost as a result of the outcome of any game of any kind, under any name or by any means; or (2) In which the contract is for the repayment of money o…

All contracts which have for their object, directly or indirectly, to exempt anyone from responsibility for his own fraud or willful injury to the person or property of another or from violation of law whether willful or negligent, are against the policy of the law. Source: CivC …

Penalties imposed by contract for any nonperformance thereof are void. This section does not void obligations penal in form such as heretofore have been commonly used, but it voids their penal clauses. Source: CivC 1877, § 955; CL 1887, § 3579; RCivC 1903, § 1273; RC 1919, § 894;…

Every contract in which amount of damage or compensation for breach of an obligation is determined in anticipation thereof is void to that extent except the parties may agree therein upon an amount presumed to be the damage for breach in cases where it would be impracticable or e…

Every provision in a contract restricting a party from enforcing his rights under it by usual legal proceedings in ordinary tribunals, or limiting his time to do so, is void. However, agreements to submit controversies to arbitration, as authorized by the Uniform Arbitration Act,…

Any contract provision which limits a party's time for enforcing his rights under a surety contract entered into prior to July 1, 1988, is hereby cured, legalized and validated as fully as if such contract provision had been entered into pursuant to §

Every contract in restraint of marriage of any person other than a minor is void. Source: CivC 1877, § 962; CL 1887, § 3586; RCivC 1903, § 1280; RC 1919, § 901; SDC 1939, § 10.0707.

Any contract restraining exercise of a lawful profession, trade, or business is void to that extent, except as provided by §§ 53-9-9 to 53-9-12 , inclusive. Source: CivC 1877, § 959; CL 1887, § 3583; RCivC 1903, § 1277; RC 1919, § 898; SDC 1939, § 10.0706; SL 2005, ch 254 , § 1.

Any person who sells the good will of a business may agree with the buyer to refrain from carrying on a similar business within a specified county, city, or other specified area, as long as the buyer or person deriving title to the good will from the seller carries on a like busi…

An executed contract is one, the object of which is fully performed. All others are executory. Source: CivC 1877, § 952; CL 1887, § 3576; RCivC 1903, § 1270; RC 1919, § 891; SDC 1939, § 10.0103.

If no time is specified for the performance of an act, a reasonable time is allowed. If the act is capable of being done instantly, such as payment of money, it must be performed immediately when due and ascertained. Source: CivC 1877, § 948; CL 1887, § 3572; RCivC 1903, § 1266; …

Time is never considered as of the essence of the contract, unless by its terms expressly so provided. Source: CivC 1877, § 949; CL 1887, § 3573; RCivC 1903, § 1267; RC 1919, § 888; SDC 1939, § 10.0107.

A contract may be extinguished in like manner as any other obligation and also by rescission, alteration, and cancellation, as provided by statute. Source: CivC 1877, §§ 963, 964; CL 1887, §§ 3587, 3588; RCivC 1903, §§ 1281, 1282; RC 1919, §§ 902, 903; SDC 1939, § 10.0801.

A party to a contract may rescind the same in the following cases only: (1) If consent of the party rescinding or of any party jointly contracting with him was given by mistake or obtained through duress, fraud, or undue influence exercised by or with the connivance of the party …

Rescission, when not effected by consent can be accomplished only by the use, on the part of the party rescinding, of reasonable diligence to comply with §§ 53-11-4 and

The party rescinding a contract must rescind promptly, upon discovering the facts which entitle him to rescind, if he is free from duress, undue influence, or disability, and is aware of his right to rescind. Source: CivC 1877, § 967, subdiv 1; CL 1887, § 3591, subdiv 1; RCivC 19…

The party rescinding a contract must restore to the other party everything of value which he has received from him under the contract, or must offer to restore the same, upon condition that such party shall do likewise, unless the latter is unable or positively refuses to do so. …

The destruction or cancellation of a written contract or of the signatures of the parties liable thereon with intent to extinguish the obligation thereof, extinguishes it as to all the parties consenting to the act. Source: CivC 1877, § 970; CL 1887, § 3594; RCivC 1903, § 1288; R…

The intentional destruction, cancellation, or material alteration of a written contract by a party entitled to any benefit under it, or with his consent, extinguishes all the executory obligations of the contract in his favor against parties who do not consent to the act. Where a…

Terms used in this chapter mean: (1) "Agreement," the bargain of the parties in fact, as found in their language or inferred from other circumstances and from rules and procedures given the effect of agreements under laws otherwise applicable to a particular transaction; (2) "Aut…

Except as otherwise provided in this chapter, the effect of any of its provisions may be varied by agreement. The presence in certain provisions of this chapter of the words "unless otherwise agreed," or words of similar import, does not imply that the effect of other provisions …

Whether an electronic record or electronic signature has legal consequences is determined by this chapter and other applicable law. Source: SL 2000, ch 225 , § 11.

This chapter 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 effectuat…

No record or signature may be denied legal effect or enforceability solely because it is in electronic form. Source: SL 2000, ch 225 , § 13.

No contract may be denied legal effect or enforceability solely because an electronic record was used in its formation. Source: SL 2000, ch 225 , § 14.

If a law requires a record to be in writing, an electronic record satisfies the law. Source: SL 2000, ch 225 , § 15.

If a law requires a signature, an electronic signature satisfies the law. Source: SL 2000, ch 225 , § 16.

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 electr…

If a law other than this chapter 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 po…

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. Source: SL 2000, ch 225 , § 19.

Except as otherwise provided in § 53-12-3 , this chapter applies to electronic records and electronic signatures relating to a transaction. Source: SL 2000, ch 225 , § 2.

No requirement of §§ 53-12-17 to 53-12-19 , inclusive, may be varied by agreement, but: (1) To the extent a law other than this chapter requires information to be provided, sent, or delivered in writing but permits that requirement to be varied by agreement, the requirement under…

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…

The effect of an electronic record or electronic signature attributed to a person under § 53-12-21 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…

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 pa…