§ 1972.Effect of § 1971; power of court; creation of trust
Title 2. Of the Kinds and Degrees of Evidence · Chapter 6. Indispensable Evidence · Last amended 1987 · Last verified July 29, 2026
Full Text of § 1972
Plain-English Summary
A strict writing requirement like Section 1971's can produce unfair results if applied without any give, and this section supplies the two recognized outs. First, courts keep their equitable power to order specific performance of an agreement touching real property where the parties have already partly performed it, even though the agreement itself was never put in writing the way Section 1971 would otherwise demand.
Second, the writing requirement doesn't reach trusts created under Division 9 of the Probate Code, nor does it stop a trust from arising, or from being extinguished, by implication or by operation of law. Trusts follow their own statute of frauds rules under the Probate Code, so Section 1971 isn't read to add a competing, conflicting requirement on top of them.
Frequently Asked Questions
Does Section 1971 stop a court from enforcing a partly performed oral real estate agreement?
No. Section 1972 preserves the court's power to order specific performance where the agreement has already been partly performed.
Does the real property statute of frauds in Section 1971 apply to trusts?
No. Section 1972 says Section 1971 doesn't affect the creation of a trust under Probate Code Division 9, or a trust arising or ending by implication or operation of law.
Why does the law carve out part performance?
To prevent a party from using the writing requirement to escape an agreement the parties have already substantially carried out.
Amendment History
(Enacted in 1872. Amended by Stats.1986, c. 820, § 20, operative July 1, 1987.)