Peters, C. J.

The sole question before us in this certified appeal is whether the provision of the statute of *570frauds, General Statutes § 52-550 (a) (5),1 requiring a writing for an “agreement that is not to be performed within one year from the making thereof,” renders unenforceable an oral contract that fails to specify explicitly the time for performance when performance of that contract within one year of its making is exceedingly unlikely. This case comes to this court upon our grant of an application for certification from the United States Court of Appeals for the Second Circuit pursuant to General Statutes § 51-199a.2 C. R. Klewin, Inc. v. Flagship Properties, Inc., 936 F.2d 684 (2d Cir. 1991).

The Second Circuit has provided us with the following facts. See id., 685-86. The plaintiff, C. R. Klewin, Inc. (Klewin), is a Connecticut based corporation that provides general construction contracting and construction management services. The defendants, Flagship Properties and DKM Properties (collectively Flagship), are engaged in the business of real estate development; although located outside Connecticut, they do business together in Connecticut under the trade name Conn-Tech.

*571Flagship became the developer of a major project (ConnTech Project) in Mansfield, near the University of Connecticut’s main campus. The master plan for the project included the construction of twenty industrial buildings, a 280 room hotel and convention center, and housing for 592 graduate students and professors. The estimated total cost of the project was $120 million.

In March, 1986, Flagship representatives held a dinner meeting with Klewin representatives. Flagship was considering whether to engage Klewin to serve as construction manager on the ConnTech Project. During the discussions, Klewin advised that its fee would be 4 percent of the cost of construction plus 4 percent for its overhead and profit. This fee structure was, however, subject to change depending on when different phases of the project were to be constructed. The meeting ended with Flagship’s representative shaking hands with Klewin’s agent and saying, “You’ve got the job. We’ve got a deal.” No other specific terms or conditions were conclusively established at trial. The parties publicized the fact that an agreement had been reached and held a press conference, which was videotaped. Additionally, they ceremoniously signed, without filling in any of the blanks, an American Institute of Architects Standard Form of Agreement between Owner and Construction Manager.

Construction began May 4,1987, on the first phase of the ConnTech Project, called Celeron Square. The parties entered into a written agreement regarding the construction of this one part of the project. Construction was fully completed by the middle of October, 1987. By that time, because Flagship had become dissatisfied with Klewin’s work, it began negotiating with other contractors for the job as construction manager on the next stage of the ConnTech Project. In March, 1988, *572Flagship contracted with another contractor to perform the sitework for Celeron Square II, the next phase of the project.

After having been replaced as construction manager, Klewin filed suit in the United States District Court for the District of Connecticut, claiming (1) breach of an oral contract to perform as construction manager on all phases of the project; (2) quantum meruit recovery for services performed in anticipation of future stages of the project; and (3) detrimental reliance on Flagship’s promise to pay for preconstruction services. Flagship moved for summary judgment, claiming, inter alia, that enforcement of the alleged oral contract was barred by the statute of frauds. The district court granted summary judgment, reasoning that (1) “the contract was not of an indefinite duration or open-ended” because full performance would take place when all phases of the ConnTech Project were completed, and (2) the contract “as a matter of law” could not possibly have been performed within one year. In drawing this second conclusion, the court focused on the sheer scope of the project and Klewin’s own admission that the entire project was intended to be constructed in three to ten years.

Klewin appealed to the United States Court of Appeals for the Second Circuit. The Court of Appeals held that “the issues presented involve substantial legal questions for which there is no clear precedent under the decisions of the Connecticut Supreme Court”; id., 686; and certified to this court the following questions:3

“A. Whether under the Connecticut Statute of Frauds, Conn. Gen. Stat. § 52-550 (a) (5), an oral contract that fails to specify explicitly the time for per*573formance is a contract of ‘indefinite duration,’ as that term has been used in the applicable Connecticut precedent, and therefore outside of the Statute’s proscriptions?

“B. Whether an oral contract is unenforceable when the method of performance called for by the contract contemplates performance to be completed over a period of time that exceeds one year, yet the contract itself does not explicitly negate the possibility of performance within one year?”4 Id., 685. We answer “yes” to the first question, and “no” to the second.

I

The Connecticut statute of frauds has its origins in a 1677 English statute entitled “An Act for the preven*574tion of Fraud and Perjuries.” See 6 W. Holdsworth, A History of English Law (1927) pp. 379-84. The statute appears to have been enacted in response to developments in the common law arising out of the advent of the writ of assumpsit, which changed the general rule precluding enforcement of oral promises in the King’s courts. Thereafter, perjury and the subornation of perjury became a widespread and serious problem. Furthermore, because juries at that time decided cases on their own personal knowledge of the facts, rather than on the evidence introduced at trial, a requirement, in specified transactions, of “some memorandum or note ... in writing, and signed by the party to be charged” placed a limitation on the uncontrolled discretion of the jury. See 2 A. Corbin, Contracts (1950) § 275, pp. 2-3; 6 W. Holdsworth, supra, pp. 387-89; An Act for Prevention of Fraud and Perjuries, 29 Car. 2, c. 3, § 4 (1677), quoted in J. Perillo, “The Statute of Frauds in the Light of the Functions and Dysfunctions of Form,” 43 Fordham L. Rev. 39, 39 n.2 (1974). Although the British Parliament repealed most provisions of the statute, including the one-year provision, in 1954; see The Law Reform (Enforcement of Contracts) Act, 2 & 3 Eliz. 2, c. 34 (1954); the statute nonetheless remains the law virtually everywhere in the United States.5

Modern scholarly commentary has found much to criticize about the continued viability of the statute of frauds. The statute has been found wanting because it serves none of its purported functions very well; see J. Perillo, supra; and because it permits or compels economically wasteful behavior; seeM. Braunstein, “Remedy, Reason, and the Statute of Frauds: A Critical Economic Analysis,” 1989 Utah L. Rev. 383. It is, however, the one-year provision that is at issue in this case *575that has caused the greatest puzzlement among commentators. As Professor Farnsworth observes, “of all the provisions of the statute, it is the most difficult to rationalize.

“If the one-year provision is based on the tendency of memory to fail and of evidence to go stale with the passage of time, it is ill-contrived because the one-year period does not run from the making of the contract to the proof of the making, but from the making of the contract to the completion of performance. If an oral contract that cannot be performed within a year is broken the day after its making, the provision applies though the terms of the contract are fresh in the minds of the parties. But if an oral contract that can be performed within a year is broken and suit is not brought until nearly six years (the usual statute of limitations for contract actions) after the breach, the provision does not apply, even though the terms of the contract are no longer fresh in the minds of the parties.

“If the one-year provision is an attempt to separate significant contracts of long duration, for which writings should be required, from less significant contracts of short duration, for which writings are unnecessary, it is equally ill-contrived because the one-year period does not run from the commencement of performance to the completion of performance, but from the making of the contract to the completion of performance. If an oral contract to work for one day, 13 months from now, is broken, the provision applies, even though the duration of performance is only one day. But if an oral contract to work for a year beginning today is broken, the provision does not apply, even though the duration of performance is a full year.” 2 E. Farnsworth, Contracts (2d Ed. 1990) § 6.4, pp. 110-11; see also Goldstick v. ICM Realty, 788 F.2d 456, 464 (7th Cir. 1986); D & N Boening, Inc. v. Kirsch Beverages, Inc., 63 N.Y.2d 449, 454, 472 N.E.2d 992, *576483 N.Y.S.2d 164 (1984); 1 Restatement (Second), Contracts (1979) § 130, comment a; J. Calamari & J. Perillo, Contracts (3d Ed. 1987) § 19-18, p. 807.6

Historians have had difficulty accounting for the original inclusion of the one-year provision.7 Some years after the statute’s enactment, one English judge stated that “the design of the statute was, not to trust to the memory of witnesses for a longer time than one year.” Smith v. Westall, 1 Ld. Raym. 316, 317, 91 Eng. Rep. 1106, 1107 (1697). That explanation is, however, unpersuasive, since, as Farnsworth notes, the language of the statute is ill suited to this purpose. One eminent historian suggested that because such contracts are continuing contracts, it might be very difficult to give evidence of their formation, inasmuch as the rules of evidence of that time prohibited testimony by the parties to an action or any person who had an interest in the litigation. 6 W. Holdsworth, supra, p. 392. That argument, however, proves too much, since it would apply equally to all oral contracts regardless of the duration of their performance. The most extensive recent study of the history of English contract law offers plausible explanations for all of the other provisions, but acknowledges that this one is “curious.” A. Simpson, A History of the Common Law of Contract (1975) p. 612. More recently, it has been suggested that the provision “may have been intended to prevent oral perjury in actions of assumpsit against customers who had *577forgotten the details of their purchases.” P. Hamburger, “The Conveyancing Purposes of the Statute of Frauds,” 27 Am. J. Leg. Hist. 354, 376 n.85 (1983).

In any case, the one-year provision no longer seems to serve any purpose very well, and today its only remaining effect is arbitrarily to forestall the adjudication of possibly meritorious claims. For this reason, the courts have for many years looked on the provision with disfavor, and have sought constructions that limited its application. See, e.g., Landes Construction Co. v. Royal Bank of Canada, 833 F.2d 1365, 1370 (9th Cir. 1987) (noting policy of California courts “of restricting the application of the statute to those situations precisely covered by its language”); Cunningham v. Healthco, Inc., 824 F.2d 1448, 1455 (5th Cir. 1987) (one-year provision does not apply if the contract “conceivably” can be performed within one year); Hodge v. Evans Financial Corporation, 823 F.2d 559, 561 (D.C. Cir. 1987) (statute of frauds “has long been construed narrowly and literally”); Goldstick v. ICM Realty, supra, 464 (“Courts tend to take the concept of ‘capable of full performance’ quite literally . . . because they find the one-year limitation irksome.”).

II

Our case law in Connecticut, like that in other jurisdictions, has taken a narrow view of the one-year provision of the statute of frauds now codified as § 52-550 (a) (5). In Russell v. Slade, 12 Conn. 455, 460 (1838), this court held that “it has been repeatedly adjudged, that unless it appear from the agreement itself, that it is not to be performed within a year, the statute does not apply. . . . The statute of frauds plainly means an agreement not to be performed within the space of a year, and expressly and specifically so agreed. A contingency is not within it; nor any case that depends upon contingency. It does not extend to cases *578where the thing only may be performed within the year.” (Emphases in original; citation and internal quotation marks omitted.)

A few years later, in Clark v. Pendleton, 20 Conn. 495, 508 (1850), the statute was held not to apply to a contract that was to be performed following a voyage that both parties expected to take one and one-half years. “It is not alleged in any form, that it was made with reference to, or that its performance was to depend on the termination of a voyage which would necessarily occupy that time. It is only alleged, that it was expected by the parties, that the defendant would be absent for the period of eighteen months. But this expectation, which was only an opinion or belief of the parties, and the mental result of their private thoughts, constituted no part of the agreement itself; nor was it connected with it, so as to explain or give a construction to it, although it naturally would, and probably did, form one of the motives which induced them to make the agreement. The thing thus anticipated did not enter into the contract, as one of its terms; and according to it, as stated, the defendant, whenever he should have returned, after having embarked on the voyage, whether before or after the time during which it was thus expected to continue, would be under an obligation to perform his contract with the plaintiff. As it does not therefore appear, by its terms, as stated, that it was not to be performed within a year from the time when it was made, it is not within the statute.” (Emphases added.)

In this century, in Appleby v. Noble, 101 Conn. 54, 57, 124 A. 717 (1924), this court held that “ ‘[a] contract is not within this clause of the statute unless its terms are so drawn that it cannot by any possibility be performed fully within one year.’ ” (Emphasis added.) In Burkle v. Superflow Mfg. Co., 137 Conn. 488, 492-93, 78 A.2d 698 (1951), we delineated the line that *579separates contracts that are within the one-year provision from those that are excluded from it. “Where the time for performance is definitely fixed at more than one year, the contract is, of course, within the statute. . . . If no time is definitely fixed but full performance may occur within one year through the happening of a contingency upon which the contract depends, it is not within the statute.” (Emphases added; citations omitted.)

More recently, in Finley v. Aetna Life & Casualty Co., 202 Conn. 190, 197, 520 A.2d 208 (1987), we stated that “ ‘[u]nder the prevailing interpretation, the enforceability of a contract under the one-year provision does not turn on the actual course of subsequent events, nor on the expectations of the parties as to the probabilities. Contracts of uncertain duration are simply excluded; the provision covers only those contracts whose performance cannot possibly be completed within a year.’ (Emphasis added.) 1 Restatement (Second), Contracts, [§ 130, comment a] . . . .”

In light of this unbroken line of authority, the legislature’s decision repeatedly to reenact the provision in language virtually identical to that of the 1677 statute suggests legislative approval of the restrictive interpretation that this court has given to the one-year provision. “[T]he action of the General Assembly in re-enacting the statute, including the clause in question ... is presumed to have been done in the light of those decisions.” Turner v. Scanlon, 146 Conn. 149, 156, 148 A.2d 334 (1959); see also Ralston Purina Co. v. Board of Tax Review, 203 Conn. 425, 439-40, 525 A.2d 91 (1987).

Ill

Bearing this history in mind, we turn to the questions certified to us by the federal court. Our case law makes no distinction, with respect to exclusion from *580the statute of frauds, between contracts of uncertain or indefinite duration and contracts that contain no express terms defining the time for performance. The two certified questions therefore raise only one substantive issue. That issue can be framed as follows: in the exclusion from the statute of frauds of all contracts except those “whose performance cannot possibly be completed within a year”; (emphasis omitted) Finley v. Aetna Life & Casualty Co., supra, 197; what meaning should be attributed to the word “possibly”? One construction of “possibly” would encompass only contracts whose completion within a year would be inconsistent with the express terms of the contract. An alternate construction would include as well contracts such as the one involved in this case, in which, while no time period is expressly specified, it is (as the district court found) realistically impossible for performance to be completed within a year. We now hold that the former and not the latter is the correct interpretation. “The critical test . . . is whether‘by its terms’ the agreement is not to be performed within a year,” so that the statute will not apply where “the alleged agreement contain[s] [no] provision which directly or indirectly regulated the time for performance.” Freedman v. Chemical Construction Corporation, 43 N.Y.2d 260, 265, 372 N.E.2d 12, 401 N.Y.S.2d 176 (1977). “It is the law of this state, as it is elsewhere, that a contract is not within this clause of the statute unless its terms are so drawn that it cannot by any possibility be performed fully within one year.” (Emphasis added.) Burkle v. Superflow Mfg. Co., supra, 492.

Flagship contends, to the contrary, that the possibility to which this court referred in Burkle must be a reasonable possibility rather than a theoretical possibility. It is true that in Burkle this court rejected the argument that “since all the members of a partnership [that was a party to the contract] may possibly die *581within a year, the contract is not within the statute.” We noted that “[n]o case has come to our attention where the rule that the possibility of death within a year removes a contract from the statute has been extended to apply to the possibility of the death of more than one individual.” Id., 494. In Burkle, however, we merely refused to extend further yet another of the rules by which the effect of the provision has been limited. Burkle did not purport to change the well established rule of narrow construction of the underlying one-year provision.

Most other jurisdictions follow a similar rule requiring an express contractual provision specifying that performance will extend for more than one year. Only “[a] few jurisdictions, contrary to the great weight of authority . . . hold that the intention of the parties may put their oral agreement within the operation of the Statute.” 3 S. Williston, Contracts (3d Ed. W. Jaeger 1960) § 495, pp. 584-85. In “the leading case on this section of the Statute”; id., p. 578; the Supreme Court of the United States undertook an extensive survey of the case law up to that time and concluded that “[i]t. . . appears to have been the settled construction of this clause of the statute in England, before the Declaration of Independence, that an oral agreement which, according to the intention of the parties, as shown by the terms of the contract, might be fully performed within a year from the time it was made, was not within the statute, although the time of its performance was uncertain, and might probably extend, and be expected by the parties to extend, and did in fact extend, beyond the year. The several States of the Union, in reenacting this provision of the statute of frauds in its original words, must be taken to have adopted the known and settled construction which it had received by judicial decisions in England.” (Emphasis added.) Warner v. Texas & Pacific R. Co., 164 U.S. *582418 422-23, 17 S. Ct. 147, 41 L. Ed. 495 (1896). The agreement at issue was one in which a lumbermill agreed to provide grading and ties and the railway agreed to construct rails and a switch and maintain the switch as long as the lumbermill needed it for shipping purposes. Although the land adjoining the lumbermill contained enough lumber to run a mill for thirty years, and the lumbermill used the switch for thirteen years, the court held that the contract was not within the statute. “The parties may well have expected that the contract would continue in force for more than one year; it may have been very improbable that it would not do so; and it did in fact continue in force for a much longer time. But they made no stipulation which in terms, or by reasonable inference, required that result. The question is not what the probable, or expected, or actual performance of the contract was; but whether the contract, according to the reasonable interpretation of its terms, required that it should not be performed within the year.” (Emphasis added.) Id., 434; see also Walker v. Johnson, 96 U.S. 424, 427, 24 L. Ed. 834 (1877); McPherson v. Cox, 96 U.S. 404, 416-17, 24 L. Ed. 746 (1877).

Because the one-year provision “is an anachronism in modern life . . . we are not disposed to expand its destructive force.” Farmer v. Arabian American Oil Co., 277 F.2d 46, 51 (2d Cir. 1960). When a contract contains no express terms about the time for performance, no sound reason of policy commends judicial pursuit of a collateral inquiry into whether, at the time of the making of the contract, it was realistically possible that performance of the contract would be completed within a year.8 Such a collateral inquiry would not only expand the “destructive force” of the statute *583by extending it to contracts not plainly within its terms, but would also inevitably waste judicial resources on the resolution of an issue that has nothing to do with the merits of the case or the attainment of a just outcome.9 See 2 A. Corbin, supra, § 275, p. 14 (the statute “has been in part the cause of an immense amount of litigation as to whether a promise is within the statute or can by any remote possibility be taken out of it. This latter fact is fully evidenced by the space necessary to be devoted to the subject in this volume and by the vast number of cases to be cited”).

We therefore hold that an oral contract that does not say, in express terms, that performance is to have a specific duration beyond one year is, as a matter of law, the functional equivalent of a contract of indefinite duration for the purposes of the statute of frauds. Like *584a contract of indefinite duration, such a contract is enforceable because it is outside the proscriptive force of the statute regardless of how long completion of performance will actually take.

The first certified question is answered “yes.” The second certified question is answered “no.”

No costs will be taxed in this court to either party.

In this opinion the other justices concurred.

OPINION OF THE COURT BY

LEVINSON, J.

This case involves an oral employment contract which allegedly violates the provision of the Statute of Frauds requiring “any agreement that is not to be performed within one year from the making thereof” to be in writing in order to be enforceable. HRS § 656-1 (5). In this action the plaintiff-employee Dick McIntosh seeks to recover damages from his employer, George Murphy and Murphy Motors, Ltd., for the breach of an alleged one-year oral employment contract.

While the facts are in sharp conflict, it appears that defendant George Murphy was in southern California during March, 1964 interviewing prospective management personnel for his Chevrolet-Oldsmobile dealerships in Hawaii. He interviewed the plaintiff twice during that time. *30The position of sales manager for one of the dealerships was fully discussed but no contract was entered into. In April, 1964 the plaintiff received a call from the general manager of Murphy Motors informing him of possible employment within thirty days if he was still available. The plaintiff indicated his continued interest and informed the manager that he would be available. Later in April, the plaintiff sent Murphy a telegram to the effect that he would arrive in Honolulu .on Sunday, April 26, 1964. Murphy then telephoned McIntosh on Saturday, April 25, 1964 to notify him that the job of assistant salés manager was open and work would begin on the following Monday, April 27, 1964. At that time McIntosh expressed surprise at the change in job title from sales manager to. assistant sales manager but reconfirmed the fáct that he was arriving in Honolulu the next day, Sunday. McIntosh arrived on Sunday, April 26,1964 and began work oh the following day, Monday, April 27, 1964.

As a consequence of his decision to work for Miirphy, McIntosh moved some of his belongings from the mainland to Hawaii, sold other possessions, leased ah apartment in Honolulu and obviously forwent any other employment opportunities. In short, the plaintiff did all those things which were incidental to changing one’s residence perma: nently. from. Los Angeles to Honolulu, a distance of approximately 2200 miles. McIntosh continued working for Murphy until July 16, 1964, approximately two and one-half months, at which time he was discharged on the grounds that he was unable to close deals with prospective customers and could not train the salesmen.

At the conclusion of the trial, the defense moved for a directed verdict arguing that the oral employment agreement was in violation of the Statute of Frauds, there being no written memorandum or note thereof. The trial court ruled that as a matter of law the contract did not come *31within the Statute, reasoning that Murphy bargained for acceptance by the actual commencement of performance by McIntosh, so that McIntosh was not bound by a contract until he came to work on Monday, April 27, 1964. Therefore, assuming that the contract was for a year’s employment, it was performablé within a year exactly to the day and no writing was required for it to be enforceable. Alternatively, the court ruled that if the agreement was made final by the telephone call between the parties on Saturday, April 25, 1964, then that part of the weekend 'which remained would not be counted in cal: culating the year, thus taking the contract out of the Statute of Frauds. With commendable candor the trial judge gave as the motivating force for the decision his desire to avoid a mechanical and unjust application of the Statute.1

The case went to the jury on the following questions: (1) whether the contract was for a year’s duration or was performable on a trial basis, thus making it terminable at the will of either party; (2) whether the plaintiff was discharged for just cause; and (3) if he was not discharged for just cause, what damages were due the plaintiff. The jury returned a verdict for the plaintiff in the sum of |12,103.40. The defendants appeal to this court on four principal grounds, three of which we find to be without merit. The remaining ground of appeal is whether the plaintiff can maintain an action on the alleged oral employment contract in light of the prohibition of the Statute of Frauds making unenforceable an oral contract that is not to be performed within one year.

*32L. TIME OF ACCEPTANCE OF THE EMPLOYMENT AGREEMENT

The defendants contend that the trial court erred in refusing to give an instruction to the jury that if the employment agreement was made more than one day before the plaintiff began performance, there could be no recovery by the plaintiff. The reason given was that a contract not to be performed within one year from its making is unenforceable if not in writing.

The defendants are correct in their argument that the time of acceptance of an offer is a question of fact for the jury to decide. But the trial court alternatively decided that even if the offer was accepted on the Saturday prior to the commencement of performance, the intervening Sunday and part of Saturday would not be counted in computing the year for the purposes of the Statute of Frauds. The judge stated that Sunday was a non-working day and only a fraction of Saturday was left which he would not count. In any event, there is no need to discuss the relative merits of either ruling since we base our decision in this case on the doctrine of equitable estoppel which was properly briefed and argued by both parties before this court, although not presented to the trial court.

II. ENFORCEMENT BY VIRTUE OF ACTION IN RELIANCE ON THE ORAL CONTRACT

In determining whether a rule of law can be fashioned and applied to a situation where an oral contract admittedly violates a strict interpretation of the Statute of Frauds, it is necessary to review the Statute itself together with its historical and modern functions. The Statute of Frauds, which requires that certain contracts be in writing in order to be legally enforceable, had its inception in the days of Charles II of England. Hawaii’s *33version of the Statute is found in HRS § 656-1 and is substantially the same as the original English Statute of Frauds.

The first English Statute was enacted almost 300 years ago to prevent “many fraudulent practices, which are commonly endeavored to be upheld by perjury and subornation of perjury”. 29 Car. 2, c. 3 (1677) . Certainly, there were compelling reasons in those days for such a law. At the time of enactment in England, the jury system was quite unreliable, rules of evidence were few, and the complaining party was disqualified as a witness so he could neither testify on direct-examination nor, more importantly, be cross-examined. Summers, The Doctrine of Estoppel and the Statute of Frauds, 79 U. Pa. L. Rev. 440, 441 (1931). The aforementioned structural and evidentiary limitations on our system of justice no longer exist.

Retention of the Statute today has nevertheless been justified on at least three grounds: (1) the Statute still serves an evidentiary function thereby lessening the danger of perjured testimony (the original rationale); (2) the requirement of a writing has a cautionary effect which causes reflection by the parties on the importance of the agreement; and (3) the writing is an easy way to distinguish enforceable contracts from those which are not, thus channelling certain transactions into written form.2

In spite of whatever utility the Statute of Frauds may still have, its applicability has been drastically limited by judicial construction over the years in order to mitigate the harshness of a mechanical application.3 Furthermore, *34learned writers continue to disparage the Statute regarding it as “a statute for promoting fraud” and a “legal anachronism”.4

. Another method of judicial circumvention of the Statute of Frauds has grown oat of the exercise of the equity powers of the courts. Such judicially imposed limitations or exceptions involved the traditional dispensing power of the equity courts to mitigate the “harsh” rule of law. When courts have enforced an oral contract in spite of the Statute, they have utilized the legal labels of “part performance” or “equitable estoppel” in granting relief. Both doctrines are said to he based on the concept of estoppel, which operates to avoid unconscionable injury. 3 Williston, Contracts § 533A at 791 (Jaeger ed. 1960), Summers, supra at 443-49; Monarco v. LoGreco, 35 Cal. 2d 621, 220 P.2d 737 (1950) (Traynor, J.).

Part performance has long been recognized in Hawaii as an equitable doctrine justifying the enforcement of an oral agreement for the conveyance of an interest in land where there has been substantial reliance by the party seeking to enforce the contract. Perreira v. Perreira, 50 Haw. 641, 447 P.2d 667 (1968) (agreement to grants life estate); Vierra v. Shipman, 26 Haw. 369 (1922) (agreement to devise land); Yee Hop v. Young Sak Cho, 25 Haw. 494 (1920) (oral lease of real property). Other courts have enforced oral contracts (including employment contracts) which failed to satisfy the section of the *35Statute making unenforceable an agreement not to be performed within a year of its making. This has occurred where the conduct of the parties gave rise to an estoppel to assert the Statute. Oxley v. Ralston Purina Co., 349 F.2d 328 (6th cir. 1965) (equitable estoppel); Alaska Airlines, Inc. v. Stephenson, 217 F.2d 295 (9th cir. 1954) (“promissory estoppel”); Seymour v. Oelrichs, 156 Cal. 782, 106 P. 88. (1909) (equitable estoppel).

It.is appropriate for modem courts to cast aside the raiments, of conceptualism which cloak the true policies underlying the reasoning behind the many decisions, enforcing contracts that violate the Statute of Frauds. There is certainly no need to resort to legal rubrics or meticulous legal formulas when better explanations are available. The policy behind enforcing an oral agreement which violated the Statute of Frauds,- as a policy of avoiding unconscionable, injury, was well set out by the California Supreme Court. In Monarco v. LoGreco, 35 Cal. 2d 621, 623, 220 P.2d 737, 739 (1950), a case which involved an action to enforce an oral contract for the conveyance of land on the grounds of 20 years performance by the promisee, the court said:

The doctrine of estoppel to assert the statute of frauds has been consistently applied by the courts of this state to prevent fraud that would result from refusal to enforce oral contracts in certain circumstances. Such fraud may inhere in the unconscionable injury that , would result from denying enforcement of the contract after one party has been induced by the other seriously to change his position in reliance on the contract ....

See also Seymour v. Oelrichs, 156 Cal. 782, 106 P. 88 (1909) (an employment contract enforced).

In seeking to frame a workable test which is flexible enough to cover diverse factual situations and also provide some reviewable standards, we find very persuasive section *36217A of the Second Restatement of Contracts.5 That section specifically covers those situations where there has been reliance on an oral contract which falls within the Statute of Frauds. Section 217A states:

(1) A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce the action or forbearance is enforceable notwithstanding the Statute of Frauds if injustice can be avoided only by enforcement of the promise. The remedy granted for breach is to be limited as justice requires.

(2) In determining whether injustice can be avoided only by enforcement of the promise, the following circumstances are significant: (a) the availability and adequacy of other remedies, particularly cancellation and restitution; (b) the definite and substantial character of the action or forbearance in relation to the remedy sought; (c) the extent to which the action or forbearance corroborates evidence of the making and terms of the promise, or the making and terms are otherwise established by clear and convincing evidence; (d) the reasonableness of the action or forbearance; (e) the extent to which the action or forbearance was forseeable by the promisor.

We think that the approach taken in the Restatement, is the proper method of giving the trial court the necessary latitude to relieve a party of the hardships of the Statute of Frauds. Other courts have used similar approaches in dealing with oral employment contracts upon which an employee had seriously relied. See Alaska Airlines, Inc. v. Stephenson, 217 F.2d 295 (9th cir. 1954); Seymour v. Oelrichs, 156 Cal. 782, 106 P. 88 (1909). This *37is to be preferred over having the trial court bend over backwards to take the contract out of the Statute of Frauds. In the present case the trial court admitted just this inclination and forthrightly followed it.

L. Richard Fried, Jr. and Ted Gamble Clause {Pratt, Moore, Bortz &Oase of counsel) for defendants-appellants.

Katsugo Miho {Fong, Miho, Ohoy & Robinson of counsel) for plaintiffs-appellees.

There is no dispute that the action of the plaintiff in moving 2200 miles from Los Angeles to Hawaii was foreseeable by the defendant. In fact, it was required to perform his duties. Injustice can only be avoided by the enforcement of the contract and the granting of money damages. No other remedy is adequate. The plaintiff found himself residing in Hawaii without a job.

It is also clear that a contract of some kind did exist. The plaintiff performed the contract for two and one-half months receiving $3,484.60 for his services. The exact length of the contract, whether terminable at will as urged by the defendant, or for a year from the time when the plaintiff started working, was up to the jury to decide.

In sum, the trial court might have found that enforcement of the contract was warranted by virtue of the plaintiff’s reliance on the defendant’s promise. Naturally, each case turns on its own facts. Certainly there is considerable discretion for a court to implement the true policy behind the Statute of Frauds, which is to prevent fraud or any other type of unconscionable injury. We therefore affirm the judgment of the trial court on the ground that the plaintiff’s reliance was such that injustice could only be avoided by enforcement of the contract.

Affirmed.

*38DISSENTING OPINION OF

ABE, J.,

WITH WHOM KOBAYASHI, J., JOINS.

Tbe majority of tbe court bas affirmed the judgment of the trial court; however, I respectfully dissent.

I.

Whether alleged contract of employment came within the Statute of Frauds:

As acknowledged by this court, the trial judge erred when as a matter of law he ruled that the alleged employment contract did not come within the Statute of Frauds; however, I cannot agree that this error was. not prejudicial as this court, intimates.

On this issue, the date that the alleged contract was entered into was all important and the date of acceptance of an offer by the plaintiff was a question of fact for the jury to decide. In other words, it. was for the. jury to determine, when. the. alleged one-year employment contract was entered into and if the jury had found that the plaintiff had accepted the offer1 more than one day. before plaintiff was to report, to work, the. contract would have come within the Statute of Frauds. and would have been unenforceable. Sinclair v. Sullivan Chevrolet Co., 31 Ill. 2d 507, 202 N.E.2d 516 (1964); Chase v. Hinkley, 126 Wis. 75, 105 N.W. 230 (1905).

II.

This court holds that though the alleged one-year employment contract came within the Statute.of Frauds, nevertheless the judgment, of the trial court is affirmed “on the ground that the plaintiff’s reliance was such that injustice could .only be avoided by. enforcement of the contract.”

I believe this court is begging the issue by its holding because to reach that conclusion, this court is ruling that *39the defendant agreed to hire the plaintiff under a one-year employment contract. The defendant has denied that the plaintiff was hired for a period of one year and has introduced into evidence testimony of . witnesses that all hiring by the defendant in the past has been on a trial basis. The defendant also testified that he had hired the plaintiff on a trial basis.

Here on one hand the plaintiff claimed that he had a one-year employment contract; on the other hand, the defendant claimed that the plaintiff had not been hired for one year but on a trial basis for so long as his services were satisfactory. I believe the Statute of Frauds was enacted to avoid the consequences this court is forcing upon the defendant. In my opinion, the legislature enacted the Statute of Frauds to negate claims such as has been made by the plaintiff in this case. But this court holds that because the plaintiff in reliance of the one-year employment contract (alleged to have been entered into by the. plaintiff, but denied by . the defendant) has changed his position, “injustice could only be avoided by enforcement of the contract.” Where is the sense of justice?

Now assuming that the defendant had agreed, to hire the plaintiff under a one-year employment contract and the contract came within the Statute of Frauds, I cannot agree,, as intimated by this court, that we should circumvent the Statute of Frauds by the exercise of the equity powers of courts. As to statutory law, the sole function of the judiciary is to interpret the statute and the judiciary should not usurp legislative power and enter into the legislative field. A. C. Chock, Ltd. v. Kaneshiro, 51 Haw. 87, 93, 451 P.2d 809 (1969); Miller v. Miller, 41 Ohio Op. 233, 83 N.E.2d 254 (Ct. C.P. 1948). Thus, if the Statute of Frauds is too harsh as intimated by this court, and it brings about undue hardship, it is for the legislature to amend or repeal the statute and not for this court to legislate.

OPINION

CORNELIA A. CLARK, C.J.,

delivered the opinion of the Court, in which

In this appeal we must determine whether the Statute of Frauds, Tenn.Code Ann. § 29-2-101(a)(4) (Supp.2011), applies to a settlement agreement requiring the transfer of an interest in real property; and, if so, whether emails exchanged by the parties’ attorneys satisfy the Statute of Frauds under the Uniform Electronic Transactions Act (“UETA”), TenmCode Ann. §§ 47-10-101 to -123 (2001 & Supp. 2011). We hold that the Statute of Frauds applies to settlement agreements requiring the transfer of an interest in real property and that the emails, along with a legal description of the property contained in the cross-claim, satisfy the Statute of Frauds. Accordingly, we affirm the judgment of the Court of Appeals enforcing the settlement agreement.

Facts and Procedural History

On January 29, 2007, Regent Investments 1, LLC (“Regent”) sued octogenarian Earline Waddle, 1 and her niece, Lorene Elrod. According to the allegations of the complaint, Regent contracted to purchase from Ms. Waddle approximately four acres of real property located at 2268 Prim Lane, in Rutherford County, Tennessee (“the Prim Lane property”), for $230,000. Regent paid Ms. Waddle $10,000 earnest money when the contract was signed. However, in preparing to close the deal, Regent learned of a quitclaim deed by which Ms. Waddle had conveyed one-half of her interest in the Prim Lane property to Ms. Elrod. Regent sued Ms. Waddle, alleging breach of contract, fraud, and intentional and negligent misrepresentation. Regent requested specific performance, $1,000,000 in damages, attorney’s fees, costs, and pre-judgment interest. Regent also asked the trial court to set aside the quitclaim deed, arguing that Ms. Elrod had wrongfully obtained her one-half interest by exercising undue influence over Ms. Waddle.

On May 14, 2007, Ms. Waddle filed a cross-claim against Ms. Elrod, also alleging that Ms. Elrod had acquired her one- *220 half interest in the Prim Lane property-through undue influence. The cross-claim included a legal description of the Prim Lane property. According to the allegations of the cross-claim, after Ms. Waddle’s husband of more than fifty years died on February 12, 2001, Ms. Elrod began frequently visiting Ms. Waddle. In early March 2001, Ms. Elrod arranged for her own attorney, whom Ms. Waddle did not know, to draft both the quitclaim deed conveying a one-half interest in the Prim Lane property to Ms. Elrod and a durable power of attorney naming Ms. Elrod as Ms. Waddle’s attorney-in-fact. On March 15, 2001, Ms. Elrod drove Ms. Waddle to the attorney’s office and persuaded her to sign both documents. Ms. Waddle alleged that she did not have the benefit of independent legal counsel prior to signing the documents, that Ms. Elrod provided no money or consideration for the interest she acquired in the Prim Lane property, that she did not willingly or knowingly intend to convey any interest in the Prim Lane property to Ms. Elrod, and that the power of attorney executed contemporaneously with the quitclaim deed created a confidential relationship giving rise to a presumption of undue influence with respect to the quitclaim deed. Ms. Waddle asked the trial court to set aside the quitclaim deed and to award her “any and all damages” caused by Ms. Elrod’s undue influence, including, and in particular, the damages resulting from Ms. Waddle’s inability to convey Regent marketable title to the Prim Lane property. 2

On July 10, 2007, Ms. Elrod filed an answer to the cross-claim, denying all allegations of undue influence and wrongdoing and arguing that the assistance she had provided Ms. Waddle served as consideration for the quitclaim deed.

On April 28, 2009, Regent agreed to dismiss with prejudice its claims against Ms. Waddle and Ms. Elrod. In exchange, Ms. Waddle agreed 3 to return Regent’s $10,000 earnest money, and both Ms. Waddle and Ms. Elrod agreed that Regent would not be responsible for any portion of the court costs 4 Ms. Waddle’s cross-claim against Ms. Elrod remained pending, however, with a jury trial scheduled for June 2 to June 4, 2009.

The day before trial, Ms. Elrod’s attorney, Mr. Gregory Reed, advised Ms. Ha-gan, counsel for Ms. Waddle, that Ms. Elrod was willing to return her one-half interest in the Prim Lane property to avoid going to trial if Ms. Waddle would settle the case and release all other claims against her. Through her attorney, Ms. Waddle agreed to settle the case on the condition that she would not be responsible for any of the court costs. Around 4:00 p.m., Mr. Reed advised Ms. Hagan that Ms. Elrod had agreed to settle the case with Ms. Waddle’s condition. At 4:34 p.m., Ms. Hagan sent the following email to Mr. Reed:

Greg,

This confirms that we have settled this case on the following terms:

*221 Elrod deeds property interest back to Waddle, Both [sic] parties sign full release, Waddle bears no court costs.

Let me know if I have correctly stated our agreement.

Thanks,

Mary Beth

At 5:02 p.m., Mr. Reed responded:

That is the agreement. I understand that you will draft the deed and take a shot at the court’s order. No admission of guilt is to be included.

Greg Reed

The attorneys thereafter advised the trial court of the terms of the agreement. Believing that a settlement had been reached and that a written order memorializing the settlement would be entered later, the trial court cancelled the jury trial and excused prospective jurors. Counsel for Ms. Waddle prepared and forwarded the settlement documents to counsel for Ms. Elrod. Ms. Waddle, understanding that the settlement had returned sole ownership of the Prim Lane property to her, paid all outstanding property taxes. Approximately three weeks later, however, Ms. Elrod advised her attorney that she had changed her mind and no longer wanted to settle the case. When Ms. Elrod refused to sign the settlement documents, Mr. Reed moved to withdraw from further representation, and the trial court granted Mr. Reed’s motion.

On July 13, 2009, Ms. Waddle filed a motion asking the trial court to enforce the settlement agreement. On September 2, 2009, Ms. Elrod filed a response, arguing that the discussions on June 1, 2009, resulted merely in an agreement to agree, with many important material terms unresolved. Alternatively, Ms. Elrod argued that the Statute of Frauds, Tenn.Code Ann. § 29-2-101 (Supp.2011), bars enforcement of the settlement agreement because it required the transfer of an interest in real property and was not evidenced by a writing signed by Ms. Elrod or her attorney describing with specificity the terms of the agreement and the property at issue. Relying on the Uniform Electronic Transactions Act (“UETA”), see Tenn.Code Ann. §§ 47-10-101 to -123 (2001 & Supp.2011), Ms. Waddle argued in response that the email from Ms. Elrod’s attorney, which confirmed the terms of the settlement and included Mr. Reed’s typewritten name, constituted a writing signed by an agent of the party to be charged and satisfied the Statute of Frauds.

Following a hearing, the trial court entered an order on September 15, 2009, enforcing the settlement agreement. The trial court found that Ms. Elrod had agreed through her attorney and authorized agent to settle the case on the terms set out in the June 1, 2009 email. As a result, the trial court divested Ms. Elrod of any right, title, or interest in the Prim Lane property and vested ownership of the property in Ms. Waddle. The trial court also dismissed with prejudice Ms. Waddle’s remaining claims against Ms. El-rod, ordered each party to bear her own attorney’s fees and discretionary costs, and taxed court costs to Ms. Waddle. The trial court’s order did not expressly address either Ms. Elrod’s argument that the Statute of Frauds precluded enforcement of the settlement or Ms. Waddle’s argument that the emails constituted writings signed by the party to be charged under the UETA and satisfied the Statute of Frauds.

Ms. Elrod appealed, but she did not challenge the trial court’s factual finding that the parties had reached an agreement to settle the case. Rather, she argued that the Statute of Frauds precludes enforcement of the settlement agreement. The Court of Appeals rejected this argument and affirmed the trial court’s judg *222 ment enforcing the settlement agreement, 5 reasoning that the Statute of Frauds applies only to “any contract for the sale of lands,” TenmCode Ann. § 29-2-101(a)(4) (emphasis added), and does not apply to a settlement agreement requiring the transfer of an interest in real property. Waddle v. Elrod, No. M2009-02142-COA-R3-CV, 2011 WL 1661772, at *2 (Tenn.Ct.App. Apr. 29, 2011).

We granted Ms. Elrod’s application for permission to appeal.

Standard of Review

The issue before this Court is whether the Statute of Frauds applies to a settlement agreement that requires the transfer of an interest in real property. This is an issue of statutory construction, which we review de novo with no presumption of correctness. See Brundage v. Cumberland Cnty., 357 S.W.3d 361, 364 (Tenn.2011). Similarly, whether a writing is sufficient to satisfy the Statute of Frauds is a question of law subject to de novo review. Blair v. Brownson, 197 S.W.3d 681, 683 (Tenn.2006) (citing Holms v. Johnston, 59 Tenn. (12 Heisk.) 155, 155 (1873)).

Analysis

As the Court of Appeals recognized, Ms. Elrod does not dispute that the parties reached an agreemént; 6 rather, she argues that the Statute of Frauds applies and precludes enforcement of the settlement agreement because it required the transfer of an interest in real property. In contrast, Ms. Waddle argues that the Court of Appeals’ judgment should be affirmed because the relevant portion of the Statute of Frauds applies only to contracts for the sale of land. Alternatively, Ms. Waddle maintains that the emails counsel exchanged and the legal description of the Prim Lane property in Ms. Waddle’s cross-claim satisfy the Statute of Frauds.

A settlement agreement made during the course of litigation is a contract between the parties, and as such, contract law governs disputes concerning the formation, construction, and enforceability of the settlement agreement. See Barnes v. Barnes, 193 S.W.3d 495, 498 (Tenn.2006); Ledbetter v. Ledbetter, 163 S.W.3d 681, 685 (Tenn.2005); Sweeten v. Trade Envelopes, Inc., 938 S.W.2d 383, 385 (Tenn.1996); Envtl. Abatement, Inc. v. Astrum R.E. Corp., 27 S.W.3d 530, 539 (Tenn.Ct.App.2000). Like other contracts, a settlement agreement may be subject to the Statute of Frauds. The Statute of Frauds precludes actions to enforce certain types of parol contracts unless the action is supported by written evidence of the parties’ agreement. TenmCode Ann. § 29-2- *223 101(a); Harris v. Morgan, 157 Tenn. 140, 7 S.W.2d 53, 57 (1928); Huffine, 257 S.W. at 89; Shedd v. Gaylord Entm’t Co., 118 S.W.3d 695, 697 (Tenn.Ct.App.2003); GRW Enters., Inc. v. Davis, 797 S.W.2d 606, 611 (Tenn.Ct.App.1990).

The settlement agreement in the present case requires a conveyance of real property. With respect to real property, Tennessee’s Statute of Frauds provides:

No action shall be brought ... [u]pon any contract for the sale of lands, tenements, or hereditaments, ... unless the promise or agreement, upon which such 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 lawfully authorized by such party. In a contract for the sale of lands, tenements, or hereditaments, the party to be charged is the party against whom enforcement of the contract is sought.

Tenn. Code Ann. § 29-2-101 (a)(4) (Supp. 2011). 7

The primary purpose of the Statute of Frauds is to reduce the risk of fraud and perjury associated with oral testimony. See, e.g., Cobble, 230 S.W.2d at 196; Yates v. Skaggs, 187 Tenn. 149, 213 S.W.2d 41, 43 (1948). The Statute of Frauds also fosters certainty in transactions by ensuring that contract formation is not “based upon loose statements or innuendoes long after witnesses have become unavailable or when memories of the precise agreement have been dimmed by the passage of time.” Price, 682 S.W.2d at 932 (citing Boutwell v. Lewis Bros. Lumber Co., 27 Tenn.App. 460, 182 S.W.2d 1, 3 (1944)). Another purpose of the Statute of Frauds is to protect property owners against “hasty or inconsiderate agreements concerning a valuable species of property” and “misunderstandings as to the nature and extent of such agreements.” Brandel v. Moore Mortg. & Inv. Co., 774 S.W.2d 600, 604 (Tenn.Ct.App.1989).

While this Court has long emphasized that the Statute of Frauds should be strictly adhered to and construed to accomplish its intended purposes, Newman v. Carroll, 11 Tenn. (3 Yer.) 18, 26 (1832), the Statute of Frauds is an affirmative defense. See Tenn. R. Civ. P. 8.03. In other words, parol agreements within the Statute of Frauds are not void ab initio, and enforcement of such agreements may be barred only if a party pleads the Statute of Frauds. See, e.g., Cobble, 230 S.W.2d at 196; Bailey v. Henry, 125 Tenn. 390, 143 S.W. 1124, 1127 (1912); Brakefield v. Anderson, 87 Tenn. 206, 10 S.W. 360, 361 (1889). Parties may choose to abide by parol contracts for the sale of land. Bailey, 143 S.W. at 1127 (“[I]f the parties themselves choose to execute the contract, third parties cannot object.”); Brakefield, 10 S.W. at 361 (“Such a contract may be enforced by the consent and upon the application of both parties.”). Indeed, the Statute of Frauds “was not enacted for the purpose of permitting a person to avoid a contract. Its object was not to grant a privilege to a person to refuse to perform what he has agreed to do. It was *224 not enacted as a shield to the dishonest...." Cobble, 230 S.W.2d at 196.

The word “sale,” used in the statutory phrase “contract for the sale of lands, tenements, or hereditaments,” 8 has long been broadly interpreted to mean any alienation of real property, including even a donation of realty. Bailey, 143 S.W. at 1127. This Court has previously explained that such a broad construction is consistent both with the purposes of the Statute of Frauds and with the common law understanding of the term:

The word “sale” in our statute of frauds (section 3142, Shannon’s Code 9 ) means alienation, and an action on a parol contract made by the owner binding him to give or donate land to another, would, we think, fall within the terms of that statute. A contrary holding would open a wide door to perjury and fraud, and defeat, as we think, one of the purposes of the statute.

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Plaintiff insists that a parol donee of land does not, in legal contemplation, stand upon a parity with a parol vendee.... We cannot assent to this proposition. ... At common law the word “purchase” in its largest and most extensive sense is defined by Littleton to be the possession of lands and tenements which a man hath as by his own act or agreement, and not by descent by any of his ancestors or kindred. In this sense it is contradistinguished from acquisition by right of blood, and includes every other method of coming to an estate but merely that of inheritance, wherein the title is vested in a person, not by his own act or agreement, but by the single operation of law. And says Mr. Blackstone: “Purchase, indeed, in its vulgar and confined acceptation, is applied only to such acquisitions of land as are to be obtained by way of bargain and sale for money, or some other valuable consideration; but this falls far short of the legal idea of purchase, for if I give land freely to another, he is in the eyes of the law a purchaser, and falls within Littleton’s definition, for he comes to the estate by his own agreement; that is, he consents to the gift.”

Bailey, 143 S.W. at 1127-28 (footnote added).

In the century since Bailey, the Tennessee General Assembly has not amended the Statute of Frauds to ascribe a more narrow meaning to the word “sale.” Relying on a legal dictionary, Ms. Waddle asks this Court to construe “sale” as meaning “[t]he transfer of property or title for a price ... in money paid or promised.” See Black’s Law Dictionary 1364 (8th ed.2004) (emphasis added). However, Ms. Waddle has failed to provide any persuasive rationale for óverruling Bailey, and we decline to do so. Applying Bailey, we conclude that the Court of Appeals erred by holding that the Statute of Frauds does not apply to this settlement agreement.

While this Court has not previously decided whether the Statute of Frauds applies to settlement agreements requiring the transfer of an interest in real property, *225 Tennessee courts have suggested in dicta that such settlement agreements are subject to-the Statute of Frauds. See Ledbetter, 1 63 S.W.3d at 686 n. 2 (“We note from the record that the proposed marital dissolution agreement contemplated transfer of title to real property, possibly implicating the application of the Statute of Frauds. However, because neither party has raised the issue nor briefed it, we pretermit it.” (citation omitted)); Carroway v. Anderson, 20 Tenn. (1 Hum.) 61, 62-63 (1839) (holding that the Statute of Frauds does not require the pleadings to allege the existence of a writing showing “that the defendant would pay the plaintiff a certain price per acre for all the land included within certain specified limits” in order to settle a lawsuit, but commenting that, “to give validity to [such] an agreement ..., a writing is necessary”); Ballew v. Ballew, No. W2005-00337-COA-R3-CV, 2006 WL 709198, at *4 n. 1 (Tenn.Ct.App. Mar. 22, 2006) (suggesting that the Statute of Frauds applied to the divorce settlement agreement that required one spouse to sell his share of the marital home to the other spouse, but refusing to apply the Statute of Frauds because neither party raised it in the trial court).

Consistent with the rule applied by a majority of jurisdictions, we hereby hold that the Statute of Frauds applies to any settlement agreement requiring a transfer of an interest in real property. See, e.g., Nicholson v. Barab, 233 Cal.App.3d 1671, 285 Cal.Rptr. 441, 447-49 (1991) (holding that the Statute of Frauds applies to parol judicially supervised settlement agreements requiring the transfer of an interest in real property); Perimeter Inv., Inc. v. Amerifirst Dev. Co., 423 So.2d 586, 587 (Fla.Dist.Ct.App.1982) (holding that the Statute of Frauds applies to parol settlement agreements requiring the transfer of an interest in real property); Ogden v. Griffith, 149 Idaho 489, 236 P.3d 1249, 1253 (2010) (applying the Statute of Frauds to a settlement agreement that called for a deed of trust but concluding that equitable estoppel permitted enforcement of the agreement); Schmidt v. White, 43 S.W.3d 871, 874 (Mo.Ct.App.2001) (holding that a settlement agreement involving the transfer of an interest in real property is subject to the Statute of Frauds); Omaha Nat’l Bank of Omaha v. Mullenax, 211 Neb. 830, 320 N.W.2d 755, 758 (1982) (“An alleged oral compromise and settlement agreement [involving a transfer of an interest in real property and] not made in open court is unenforceable where it is in violation of the [S]tatute of [F]rauds or in violation of a court rule requiring all stipulations and agreements of counsel or parties to a suit to be in writing, signed by the parties or their attorneys.”); Byblos Corp. v. Salem Farm Realty Trust, 141 N.H. 726, 692 A.2d 514, 516-17 (1997) (“[W]hen a settlement agreement includes the transfer of an interest in land, it necessarily implicates the [S]tatute of [F]rauds.”); Gogel v. Blazofsky, 187 Pa.Super. 32, 142 A.2d 313, 316 (1958) (“We therefore hold that the alleged oral [settlement] agreement [requiring a conveyance of realty] was unenforceable as being within the Statute of Frauds.”); Mangum v. Turner, 255 S.W.3d 223, 227 (Tex.Ct.App.2008) (reciting the general rule, but refusing to apply the Statute of Frauds because the settlement at issue did not involve the transfer of an interest in real property); see also 37 C.J.S. Frauds, Statute of § 104 (2008); 15B Am.Jur.2d Compromise and Settlement § 16 (2011). As the Nebraska Supreme Court explained: “It would be strange indeed if an agreement which would be unenforceable under the [S]tatute of [F]rauds ... were to become enforceable simply because the matter involved in the settlement agree *226 ment was pending as a lawsuit in court.” Mullenax, 320 N.W.2d at 758.

We emphasize, however, that in determining whether the Statute of Frauds applies, courts must consider the terms of the settlement agreement, not the subject matter of the litigation. Settlement agreements arising from litigation that involves real property are subject to the Statute of Frauds only if the terms of the settlement agreement require the transfer of an interest in real property. See, e.g., Meyer v. Lipe, 14 S.W.3d 117, 120 (Mo.Ct.App.2000) (explaining that the Statute of Frauds does not apply to settlements which fix a disputed or uncertain boundary line because no conveyance of land or passage of title is involved, only an effort to clarify and give effect to the title the parties already possess); Mangum, 255 S.W.3d at 227 (refusing to apply the Statute of Frauds in a suit seeking rescission of three deeds because the terms of the settlement did not require the transfer of a real property interest). Because the settlement agreement herein required Ms. Elrod to transfer her one-half interest in the Prim Lane property to Ms. Waddle, the Statute of Frauds applies.

We next consider whether the Statute of Frauds bars enforcement of the settlement agreement at issue in this appeal. As already explained, parol contracts are enforceable if “some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith, or some other person lawfully authorized by such party.” Tenn.Code Ann. § 29-2-101(a)(4). The Statute of Frauds does not require a written contract, only a written memorandum or note evidencing the parties’ agreement. Huffine, 257 S.W. at 89. Additionally, while the writing required by the' Statute of Frauds must contain the essential terms of the contract, it need not be in a single document. See Lambert v. Home Fed. Sav. & Loan Ass’n, 481 S.W.2d 770, 773 (Tenn.1972). As this Court explained in Lambert:

The general rule is that the memorandum, in order to satisfy the statute, must contain the essential terms of the contract, expressed with such certainty that they may be understood from the memorandum itself or some other writing to which it refers or with which it is connected, without resorting to parol evidence. A memorandum disclosing merely that a contract had been made, without showing what the contract is, is not sufficient to satisfy the requirement of the Statute of Frauds that there be a memorandum in writing of the contract.

Id. (quoting 49 Am.Jur. Statute of Frauds § 353, 363-64); see also Blair v. Snodgrass, 33 Tenn. (1 Sneed) 1, 25 (1853) (“The contract must be in writing, be certain in its terms, and be signed by the party to be charged with its performance. The form of the instrument is perfectly immaterial, as the statute of frauds merely requires that the contract, ‘or some memorandum or note thereof, shall be in writing.’ But the written evidence of the contract must be reasonably certain in itself, as to the estate intended to be sold, and the terms of sale, as parol evidence to supply a writing defective in this respect is inadmissible.”); Williams v. Buntin, 4 TenmApp. 340, 347 (1927) (“[T]he memorandum or note required ... may be in two or more papers.... [I]t is not required that each paper of itself be sufficient in content to satisfy the statute.”).

Of course, even if one or more memo-randa are produced sufficiently describing the terms of a parol agreement, the Statute of Frauds also requires that one of the writings be signed by the party to be charged or by some other person authorized to act on that party’s behalf. Tenn. *227 Code Ann. § 29-2-101(a)(4). The authority of the agent or the evidence of his agency need not be in writing, however. Johnson v. Somers, 20 Tenn. (1 Hum.) 268, 271 (1839); Texas Co. v. Aycock, 190 Tenn. 16, 227 S.W.2d 41, 44 (1950). While the Statute of Frauds does not define “signed,” many years ago the Court of Appeals considered whether a party’s printed name on a bill of sale satisfied the signature requirement. See Gessler v. Winton, 24 Tenn.App. 411, 145 S.W.2d 789 (1940). In holding that the printed name was sufficient, the Court of Appeals stated:

The [SJtatute [of Frauds] does not specify any particular form of signing. It merely requires that the party to be charged shall have signed the memorandum. It has been held that a cross mark is a good signature; also initials; even numerals, when used with the intention of constituting a signature; and a typewritten name or imprint made by a rubber stamp has the same effect; and this is equally true, though the typewriting or stamp impression be made by another, if the person to be charged has directed it.

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This has been the law in England for more than a century, and has been followed quite generally in this country.

Id. at 794 (citations and internal quotation marks omitted).

While Gessler predates email, its holding appears broad enough to encompass typed names appearing in emails. However, we need not rely upon Gessler to determine whether the email that includes the name of Ms. Elrod’s attorney satisfies the Statute of Frauds requirement of a writing signed by the party to be charged. In 2001 the General Assembly enacted the UETA. Ms. Waddle relied upon the UETA in the trial court when arguing that the email constituted a writing for purposes of the Statute of Frauds and that Mr. Reed’s name on the email constituted the signature of an agent of Ms. Elrod, the party to be charged. She has continued to advance these arguments on appeal. 10

The UETA “applies to electronic records and electronic signatures relating to a transaction.” TenmCode Ann. § 47-10-103(a). 11 The General Assembly has declared that the UETA:

must be construed and applied to:

(1) Facilitate electronic transactions consistent with other applicable law;

(2) Be consistent with reasonable practices concerning electronic transactions and with the continued expansion of those practices; and

(3) Effectuate its general purpose to make uniform the law with respect to the subject of [the UETA] among states enacting it.

Tenn.Code Ann. § 47-10-106. The UETA does not require parties to conduct transactions by electronic means. Tenn.Code Ann. § 47-10-105(a). Rather, the UETA governs “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, ta- *228 eluding the parties’ conduct.” Tenn.Code Ann. § 47 — 10—105(a)—(b). “Transaction means an action or set of actions occurring between two (2) or more persons relating to the conduct of business, commercial, or governmental affairs.” Tenn.Code Ann. § 47-10-102(16). Under the UETA:

(a) A record or signature may not be denied legal effect or enforceability solely because it is in electronic form.

(b) A contract may not be denied legal effect or enforceability solely because an electronic record was used in its formation.

(c) If a law requires a record to be in writing, an electronic.record satisfies the law.

(d) If a law requires a signature, an electronic signature satisfies the law.

Tenn.Code Ann. § 47 — 10—107(a)—(d). “Electronic signature” includes “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.” Tenn.Code Ann. § 47-10-102(8); see also id. cmt. 7 (“[T]he mere inclusion of one’s name as part of an email message” qualifies as an electronic signature “so long as in each case the signer executed or adopted the symbol with the intent to sign.”).

Applying the foregoing principles, we conclude that the Statute of Frauds does not bar enforcement of the settlement agreement at issue in this appeal. The parties, through their attorneys, evidenced an intent to finalize the settlement by electronic means; thus, the UETA applies. See, e.g., Crestwood Shops, L.L.C. v. Hilkene, 197 S.W.3d 641, 651-53 (Mo.Ct.App.2006) (holding that the UETA applied because the parties manifested their intent to conduct business by email). Pursuant to section 47-10-107(c), the emails counsel exchanged constitute a signed memorandum, note, or writing for purposes of the Statute of Frauds.

Additionally, under the principles discussed in Lambert, the emails, considered along with the legal description of the Prim Lane property in the cross-claim, described the terms of the parol agreement with sufficient specificity to satisfy the Statute of Frauds. In particular, the emails described the following four material terms of the settlement: (1) Ms. Elrod would convey her interest “in the property” back to Ms. Waddle; (2) each party would sign a release giving up any claims she may have had against the other party; (3) Ms. Waddle would not be responsible for court costs; and (4) Ms. Elrod would not admit guilt. Ms. Elrod’s attorney confirmed the settlement, responding electronically “[t]hat is our agreement.” While the emails referred only to “the property,” the Prim Lane property was the only realty at issue in the litigation, and Ms. Waddle’s cross-claim included a full legal description of the Prim Lane property. 12 As stated in Lambert, a writing is sufficient if the terms of the agreement may be understood either from the writing itself or from some other writing connected with it. The emails and cross-claim satisfy this standard.

Furthermore, although Ms. Elrod did not sign the email, there is no dispute that Mr. Reed was acting as her agent when he negotiated the settlement. Had he written his signature on a printed version of the email, rather than typed his name at the *229 end of the email, his signature would undoubtedly have been sufficient to satisfy the Statute of Frauds. The UETA, recognizing that all sorts of transactions are now routinely conducted by electronic means on a daily basis, obviates the need for a handwritten signature. Mr. Reed’s typed name at the end of the email constitutes an “electronic signature.” Tenn. Code Ann. § 47-10-107(d). As the agent of Ms. Elrod, Mr. Reed’s electronic signature on the email confirming the terms of the settlement agreement satisfies the signature requirement of the Statute of Frauds. See Kloian v. Domino’s Pizza, L.L.C., 273 Mich.App. 449, 733 N.W.2d 766, 774 (2006); Hilkene, 197 S.W.3d at 652-53; Williamson v. Delsener, 59 A.D.3d 291, 874 N.Y.S.2d 41, 41-42 (2009).

Conclusion

The Statute of Frauds applies to settlement agreements requiring the transfer of an interest in real property. However, the Statute of Frauds does not bar enforcement of the settlement agreement at issue in this appeal. The emails counsel for the parties exchanged, along with the legal description of the Prim Lane property included in the cross-claim, constitute a sufficiently definite writing, note, or memorandum, and the email confirming the terms of the settlement agreement included the electronic signature of the attorney and authorized agent of Ms. Elrod, the party to be charged. Thus, on these alternate grounds we affirm the Court of Appeals’ judgment enforcing the settlement agreement, including the taxing of court costs to Ms. Elrod. Costs of this appeal also are taxed to Ms. Elrod, for which execution may issue if necessary.

The opinion of the Court was delivered by

Jacobs, J.

The judgment entered in the Law Division, as modified in an unreported opinion of the Appellate Division, directed that the appellants Donald P. Krobatsch and Estella Krobatsch, his wife, pay the sum of $4,250 to the plaintiff Natalie Weintraub and the sum of $2,550 to the defendant The Serafín Agency, Inc. We granted certification on the application of the appellants. 63 N. J. 498 (1973).

The procedural steps below need not be dealt with at this point, other than to note that oral testimony was never taken and the matter was disposed of by summary judgment on the basis of meagre pleadings and conclusory affidavits. Eor present purposes we must resolve doubts in favor of the appellants • and must accept their factual allegations, along with the- inferences most favorable to- them. See Ruvolo v. *447American Cas. Co., 39 N. J. 490, 499 (1963); Frank Rizzo, Inc. v. Alatsas, 27 N. J. 400, 405 (1958); Heuter v. Coastal Air Lines, Inc., 12 N. J. Super. 490, 495 (App. Div. 1951). -On that approach the following appears:

Mrs. Weintraub owned and occupied a six-year-old English-town home which she placed in the hands of a real estate broker (The Serafín Agency, Inc.) for sale. The Krobatsches were interested in purchasing the home, examined it while it was illuminated and found it suitable. On June 30, 1971 Mrs. Weintraub, as seller, and the Krobatsehes, as purchasers, entered into a contract for the sale of the property for $42,500. The contract provided that the purchasers had inspected the property and were fully satisfied with its physical condition, that no representations had been made and that no responsibility was assumed by the seller as to the present or future condition of the premises. A deposit of $4,250 was sent by the purchasers to the broker to be held in escrow pending the closing of the transaction. The purchasers requested that the seller have the house fumigated and that was done. A fire after the signing of the contract caused damage but the purchasers indicated readiness that there be adjustment at closing.

During the evening of August 25, 1971, prior to closing, the purchasers entered the house, then unoccupied, and as they turned the lights on they were, as described in their petition for certification, “astonished to see roaches literally running in all directions, up the walls, drapes, etc.” On the following day their attorney wrote a letter to Mrs. Weintraub, care of her New York law firm, advising that on the previous day “it was discovered that the house is infested with vermin despite the fact that an exterminator has only recently serviced the house” and asserting that “the presence of vermin in such great quantities, particularly after the exterminator was done, rendered the house as unfit for human habitation at this time and therefore, the contract is rescinded.” On September 2, 1971 an exterminator wrote to Mr. Krobatseh advising that he had examined the premises *448and that “cockroaches were found to have infested the entire house.” He said he could eliminate them for a relatively modest charge by two treatments with a twenty-one day interval but that it would be necessary to remove the carpeting “to properly treat all the infested areas.”

Mrs. Weintraub rejected the rescission by the purchasers and filed an action in the Law Division joining them and the broker as defendants. Though she originally sought specific performance she later confined her claim to damages in the sum of $4,250, representing the deposit held in escrow by the broker. The broker filed an answer and counterclaim seeking payment of its commission in the sum of $2,550. There were opposing motions for summary judgment by the purchasers and Mrs. Weintraub, along with a motion for summary judgment by the broker for its commission. At the argument on the motions it was evident that the purchasers were claiming fraudulent concealment or nondisclosure by the seller as the basis for th’eir rescission. Thus at one point their attorney said: “Your honor, I would point out, and it is in my clients’ affidavit, every time that they inspected this house prior to this time every light in the place was illuminated. Now, these insects are nocturnal by nature and that is not a point I think I have to prove through someone. I think Webster’s dictionary is sufficient. By keeping the lights on it keeps them out of sight. These sellers had to know they had this problem. You could not live in a house this infested without knowing about it.”

The Law Division denied the motion by the purchasers for summary judgment but granted Mrs. Weintraub’s motion and directed that the purchasers pay her the sum of $4,250. It further directed that the deposit monies held in escrow by the broker be paid to Mrs. Weintraub in satisfaction of her judgment against the purchasers. See Oliver v. Lawson, 92 N. J. Super. 331, 333 (App. Div. 1966), cerlif. denied, 48 N. J. 574 (1967). It denied the broker’s summary judgment motion for its commission but held that matter for trial. On *449appeal, the Appellate División sustained the summary judgment in Mrs. Weintraub’s favor but disagreed with the Law Division’s holding that the broker’s claim must await trial. It considered that since the purchasers were summarily held to have been in default in rescinding rather than in proceeding with the closing, they were responsible for the commission. See Ellsworth Dobbs, Inc. v. Johnson, 50 N. J. 528, 558-62 (1967). Accordingly, it modified the Law Division’s judgment to the end that the purchasers were directed to pay not only the sum of $4,250 to Mrs. Weintraub but also the sum of $2,550 to the broker.

Before us the purchasers contend that they were entitled to a trial on the issue of whether there was fraudulent concealment or nondisclosure entitling them to rescind; if there was then clearly they were under no liability to either the seller or the broker and would be entitled to the return of their deposit held by the broker in escrow. See Keen v. James, 39 N. J. Eq. 527, 540 (E. & A. 1885), where Justice Dixon, speaking for the then Court of last resort, pointed out that “silence may be fraudulent” and that relief may be granted to one contractual party where the other suppresses facts which he, “ hinder the circumstances, is bound in conscience and duty to disclose to the other party, and in respect to which he cannot, innocently, be silent.’ ” 39 N. J. Eq. at 540-41. See also Grossman Furniture Co. v. Pierre, 119 N. J. Super. 411, 420 (Essex Co. Ct. 1972); Heuter v. Coastal Air Lines, Inc., supra, 12 N. J. Super, at 495-97; 12 Williston, Contracts § 1498 (3d ed. 1970); Prosser, Torts 695-99 (4th ed. 1971); Keeton, “Fraud — Concealment and Non-Disclosure,” 15 Tex. L. Rev. 1 (1936); Goldfarb, “Fraud and Nondisclosure in the Vendor-Purchaser Relation,” 8 Wes. Res. L. Rev. 5 (1956).

Mrs. Weintraub asserts that she was unaware of the infestation and the Krobatsches acknowledge that, if that was so, then there was no fraudulent concealment or nondisclosure on her part and their claim must fall. But the purchasers allege that she was in fact aware of the infestation and at *450this stage of the proceedings we must assume that to be true. S'he contends, however, that even if she were fully aware she would have been under no duty to speak and that consequently no complaint by the purchasers may legally be grounded on her silence. She relies primarily on cases such as Swinton v. Whitinsville Sav. Bank, 311 Mass. 677, 42 N. E. 2d 808, 141 A. L. R. 965 (1942), and Taylor v. Heisinger, 39 Misc. 2d 955, 242 N. Y. S. 2d 281 (Sup. Ct. 1963). Taylor is not really pertinent since there the court found that the seller had “no demonstrated nor- inferable knowledge of the condition complained of.” 242 N. Y. S. 2d at 286. Sivinton is pertinent but, as Dean Prosser has noted (Prosser, supra at 696), it is one of a line of “singularly unappetizing cases” which are surely out of tune with our times.

In Swinion the plaintiff purchased a house from the defendant and after he occupied it he found it to be infested with termites. The defendant had made no verbal or written representations but the plaintiff, asserting that the defendant knew of the termites and was under a duty to speak, filed a complaint for damages grounded on fraudulent concealment. The Supreme Judicial Court of Massachusetts sustained a demurrer to the complaint and entered judgment for the defendant. In the course of its opinion the court acknowledged that “the plaintiff possesses a certain appeal to the moral sense” but concluded that the law has not “reached the point of imposing upon the frailties of human nature a standard so idealistic as this.” 42 N. E. 2d at 808-809. That was written several decades ago and we are far from certain that it represents views held by the current members of the Massachusetts court. See Kannavos v. Annino, 356 Mass. 42, 247 N. E. 2d 708, 711 (1969). In any event we are certain that it does not represent our sense of justice or fair dealing and it has understandably been rejected in persuasive opinions elsewhere. See Obde v. Schlemeyer, 56 Wash. 2d 449, 353 P. 2d 672 (1960); Loghry v. Capel, 257 Iowa 285, 132 N. W. 2d 417 (1965); Williams v. Benson, 3 Mich. App. 9, 141 N. W. 2d 650 (1966); Sorrell v. Young, 6 Wash. App. 220, *451491 P. 2d 1312 (1971); Lawson v. Citizens & Southern National Bank of S. C., 259 S. C. 477, 193 S. E. 2d 124 (1972); cf. Clauser v. Taylor, 44 Cal. App. 2d 453, 112 P. 2d 661 (1941); Simmons v. Evans, 185 Tenn. 282, 206 S. W. 2d 295 (1947); Piazzini v. Jessup, 153 Cal. App. 2d 58, 314 P. 2d 196 (1957); Rich v. Rankl, 6 Conn. Cir. 185, 269 A. 2d 84, 88 (1969); Ford v. Broussard, 248 So. 2d 629 (La. App. 1971). See also Restatement 2d, Torts § 551 (Tent. Draft No. 12 (1966)); Keeton, “Rights of Disappointed Purchasers,” 32 Tex. L. Rev. 1 (1953); cf. Bixby, “Let the. Seller Beware: Remedies for the Purdhase of a Defective Home,” 49 J. Urban Law 533 (1971); Haskell, “The Case for an Implied Warranty of Quality in Sales of Real Prop-, erty,” 53 Geo. L. J. 633 (1965); Note, “Implied Warranties, in Sales of Real Estate ■— The Trend to Abolish Caveat Emptor,” 22 DePaul L. Rev. 510 (1972).

In Obde v. Schlemeyer, supra, 56 Wash. 2d 449, 353 P. 2d 672, the defendants sold an apartment house to the plaintiffs. The house was termite infested but that-fact was not disclosed by the sellers to the purchasers who later sued for damages alleging fraudulent concealment. The sellers contended that they were under no obligation whatever to speak out and they relied heavily on the decision of the Massachusetts court in Swinton (311 Mass. 677, 42 N. E. 2d 808, 141 A. L. R. 965). The Supreme Court of Washington flatly rejected their contention, holding that though the parties had dealt at arms length the sellers were under “a duty to inform the plaintiffs of the termite condition” of which they were fully aware. 353 P. 2d at 674; cf. Hughes v. Stusser, 68 Wash. 2d 707, 415 P. 2d 89, 92 (1966). In the course of its opinion the court quoted approvingly from Dean Keeton’s article supra, in 15 Tex. L. Rev. 1. There the author first expressed his thought that when Lord Cairns suggested in Peek v. Gurney, L. R. 6 H. L. 377 (1873), that there was no duty to disclose facts, no matter how “morally censurable” (at 403), he was expressing nineteenth century law as shaped by an individualistic philosophy based on freedom. *452of contracts and unconcerned with morals. He then made the following comments which fairly embody a. currently acceptable principle on which the holding in OI de may be said to be grounded:

In the present stage of the law, the decisions show a drawing away from this idea, and there can be seen an attempt by many courts to reach a just result in so far as possible, but yet maintaining the degree of certainty which the law must have. The statement may often be found that if either party to a contract of sale conceals or suppresses a material fact which he is in good faith bound to disclose then his silence is fraudulent.

The attitude of the courts toward nondisclosure is undergoing a change and contrary to Lord Cairns’ famous remark it would seem that the object of the law in these cases should be to impose on parties to the transaction a duty to speak whenever justice, equity, and fair dealing demand it. This statement is made only with reference to instances where the party to be charged is an actor in the transaction. This duty to speak does not result from an implied representation by silence, but exists because a refusal to speak constitutes unfair conduct. 15 Tex. L. Rev. at 31.

In Sorrell v. Young, supra, the Court of Appeals of Washington reeently applied the holding in Obde v. Schlemeyer, supra, to a ease where the sellers sold a residential lot to the buyers without disclosing that the lot had been filled. The buyers’ evidence indicated the following: when the sellers originally acquired the lot it was below street grade and had been partially filled. They completed the filling and kept the lot until they considered it salable. At the time of the sale the fact that the land had been filled was not apparent. The sellers did not mention it at all and the buyers made no inquiry. The buyers sought a building permit and were told that expensive soil tests would be required, that piling would be necessary and that there was no assurance that a house could be built even if piling was installed. The court held that the buyers’ evidence, if accepted, would support a right to rescind. In the course of its opinion it had this to say:

... by the turn of the century, Washington had recognized that “the tendency of the more recent cases has been to restrict rather *453than extend the doctrine of caveat emptor.” Wooddy v. Benton Water Co., 54 Wash. 124, 127, 102 P. 1054, 1056 (1909). And, “[a]s would be expected when change in the law is taking place, there is no unanimity” in the decisions of other jurisdictions. Keeton, Rights of Disappointed Purchasers, 32 Tex. L. Rev. 1, 4 (1953). However, there is an “amorphous tendency” on the part of most courts to grant relief to a purchaser for nondisclosure of facts which would probably affect the purchaser’s decision to purchase. W. Prosser, Torts § 101 (3d. ed. 1964). And consistent with Restatement of Torts § 551, comment 6 (1938), relief by way of rescission is more readily granted than damages. W. Prosser, Torts § 105 (3d ed. 1964). 491 P. 2d at 1314.

In Loghry v. Capel, supra, the plaintiffs purchased a duplex from the defendants. They examined the house briefly on two occasions and signed a document stating that they accepted the property in its “present condition.” 132 N. W. 2cü at 419. They made no inquiry about the subsoil and were not told that the house had been constructed on filled ground. They filed an action for damages charging that the sellers had fraudulently failed to disclose that the duplex was constructed on improperly compacted filled ground. The jury found in their favor and the verdict was sustained on appeal in an opinion which pointed out that “fraud may consist of concealment of a material fact.” 132 N. W. 2d at 419. The purchasers’ stipulation that they accepted the property in its present condition could not be invoked to bar their claim. See Wolford v. Freeman, 150 Neb. 537, 35 N. W. 2d 98 (1948), where the court pointed out that the purchase of property “as is” does not bar rescission grounded on fraudulent conduct of the seller. 35 N. W. 2d at 103.

In Simmons v. Evans, supra, the defendants owned a home which was serviced by a local water company. The company supplied water during the daytime but not at night. The defendants sold their home to the plaintiffs but made no mention of the limitation on the water service. The plaintiffs filed an action to rescind their purchase but the lower court dismissed it on the ground that the defendants had not made anjr written or verbal representations and the plaintiffs had “inspected the property, knew the source of the water sup*454ply, and could have made specific inquiry of these defendants or ascertained from other sources the true situation and, therefore, are estopped.” 206 8. W. 2d at 296. The dismissal was reversed on appeal in an opinion which took note of the general rule that “ ‘one may be guilty of fraud by his silence, as where it is expressly incumbent upon him to speak concerning material matters that are entirely within his own knowledge.’” 206 8. W. 2d at 296. With respect to the plaintiffs’ failure to ascertain the water situation before their purchase the court stated that the plaintiffs were surely not required “to make a night inspection in order to ascertain whether the water situation with reference to this residence was different from what it was during the day.” 206 8. W. 2d at 297.

In Saporta v. Barbagelata, 220 Cal. App. 2d 463, 33 Cal. Rptr. 661 (1963), the plaintiffs sought to rescind their purchase of a house on the ground that they were defrauded by the seller’s real estate agent or broker, “by reason of the concealment and nondisclosure that said house contained an extensive termite and fungus infestation, and by certain representations that said house was not so infested.” A summary judgment against the plaintiffs was granted by the trial judge but was reversed on appeal in an opinion which set forth the following which we consider of particular pertinence to the present stage of litigation in the matter before us:

The principles controlling the conduct of a real estate agent or broker in the sale of real estate are well established in this state. He is not only liable to a buyer for his affirmative and intentional misrepresentations to a buyer, but he is also liable for mere nondisclosure to the buyer of defects known to him and unknown and unobservable by the buyer. (Lingsch v. Savage, 213 Cal. App. 2d 729, 29 Cal. Rptr. 201; Crawford v. Nastos, 182 Cal. App. 2d 659, 665, 6 Cal. Rptr. 425; Rothstein v. Janss Investment Corp., 45 Cal. App. 2d 64, 73, 113 P. 2d 465; Rogers v. Warden, 20 Cal. 2d 286, 289, 125 P. 2d 7.) The underlying settled rule is that every person connected with a fraud is liable for the full amount of the damages and the wrongdoers, if any, are jointly and severally liable. (Crawford v. Nastos, supra, 182 Cal. App. 2d p. 665, 6 Cal. Rptr. p. 429; *455Swasey v. deL’Etanche, 17 Cal. App. 2d 713, 718, 62 P. 2d 753; Ross v. George Pepperdine Foundation, 174 Cal. App. 2d 135, 141-142, 344 P. 2d 368). Whether a matter not disclosed by a real estate broker or agent is of sufficient materiality to affect the desirability or value of the property sold, and thus make him liable for fraudulent nondisclosure, depends upon the facts of each case. (Lingsch v. Savage, supra, 213 Cal. App. 2d 729, 29 Cal. Rptr. p. 205.) In the case at bench we have allegations which present triable issues of fact tendered not only on the basis of positive misstatements and misrepresentations of fact allegedly made by Dolman, but also the alleged suppression and nondisclosure of facts known to him and unknown and unobservable by plaintiffs. 33 Cal. Rptr. at 667.

As in Suporta, supra, the purchasers here were entitled to withstand the seller’s motion for summary judgment. They should have been permitted to proceed with their efforts to establish by testimony that they were equitably entitled to rescind because the house was extensively infested in the manner described by them, the seller was well aware of the infestation, and the seller deliberately concealed or failed to disclose the condition because of the likelihood that it would defeat the transaction. The seller may of course defend factually as well as legally and since the matter is primarily equitable in nature the factual as well as legal disputes will be for the trial judge alone. See Hubbard v. International Mercantile Agency, 68 N. J. Eq. 434, 436 (Ch. 1904); Keuper v. Pyramid Bond & Mortgage Corp., 117 N. J. Eq. 110, 114-115 (E. & A. 1934); cf. Steiner v. Stein, 2 N. J. 367 (1949); Bilotti v. Accurate Forming Corp., 39 N. J. 184, 198-199 (1963).

If the trial judge finds such deliberate concealment or nondisclosure of the latent infestation not observable by the purchasers on their inspection, he will still be called upon to determine whether, in the light of the full presentation before him, the concealment or nondisclosure was of such significant nature as to justify rescission. Minor conditions which ordinary sellers and purchasers would reasonably disregard as of little or no materiality in the transaction would clearly not call for judicial intervention. While the described condition may not have been quite as major as in the termite *456cases which were concerned with structural impairments, to the purchasers here it apparently was of such magnitude and was so repulsive as to cause them to rescind immediately though they had earlier indicated readiness that there he adjustment at closing for damage resulting from a fire which occurred after the contract was signed. We are not prepared at his time to say that on their showing they acted either unreasonably or without equitable justification.

Our courts have come a long way since the days when the judicial emphasis was on formal rules and ancient precedents rather than on modern concepts of justice and fair dealing. While admittedly our law has progressed more slowly in the real property field than in other fields, there have been notable stirrings even there. See Schipper v. Levitt & Sons, Inc., 44 N. J. 70 (1965); Reste Realty Corporation v. Cooper, 53 N. J. 444 (1969); cf. Marini v. Ireland, 56 N. J. 130 (1970); Totten v. Gruzen, et al., 52 N. J. 202 (1968). In Schipper we elevated the duties of the builder-vendor in the sale of its homes and in the course of our opinion we repeatedly stressed that our law should be based on current notions of what is “right and just.” 44 N. J. at 90. In Reste we expressed similar thoughts in connection with the lease of real property. We there noted that despite the lessee’s acceptance of the premises in their “present condition” (a stipulation comparable to that of the purchasers in their contract here), the landlord was under a duty to disclose a material latent condition, known to him but unobservable by the tenant; we pointed out that in the circumstances “it would be a wholly inequitable application of caveat emptor to charge her with knowledge of it.” 53 N. J. at 453-454. Both Schipper and Reste were departures from earlier decisions which are nonetheless still relied on by the seller here. No purpose would now be served by pursuing any discussion of those earlier decisions since we are satisfied that current principles grounded on justice and fair dealing, embraced throughout this opinion, clearly call for a full trial below; *457to that end the judgment entered in the Appellate Division is:

Reversed and remanded.

For reversal and remandment — Acting Chief Justice Jacobs, Justices Hall, Sullivan, Pashman and Clivvokd and Judge Convoke—6.

For affirmance—Hone.

OPINION

ESPINOSA, Chief Judge.

¶ 1 Plaintiff/appellant the Estate of Martha Nelson, through its copersonal representatives Edward Franz and Kenneth Newman, *565 appeals from a summary judgment in favor of defendants/appellees Carl and Anne Rice in the Estate’s action seeking rescission or reformation of the sale of two paintings to the Rices. The Estate argues that these remedies are required because the sale was based upon a mutual mistake. The Estate also contends that enforcing the sale “contract” would be unconscionable. We affirm.

Facts and Procedural History

¶ 2 We view the evidence and all reasonable inferences therefrom in the light most favorable to the party opposing the summary judgment. Hill-Shafer Partnership v. Chil-son Family Trust, 165 Ariz. 469, 799 P.2d 810 (1990). After Martha Nelson died in February 1996, Newman and Franz, the cop-ersonal representatives of her estate, employed Judith McKenzie-Larson to appraise the Estate’s personal property in preparation for an estate sale. McKenzie-Larson told them that she did not appraise fine art and that, if she saw any, they would need to hire. an additional appraiser. McKenzie-Larson did not report finding any fine art, and relying on her silence and her appraisal, Newman and Franz priced and sold the Estate’s personal property.

¶ 3 Responding to a newspaper advertisement, Carl Rice attended the public estate sale and paid the asking price of $60 for two oil paintings. Although Carl had bought and sold some art, he was not an educated purchaser, had never made more than $55 on any single piece, and had bought many pieces that had “turned out to be frauds, forgeries or ... to have been [created] by less popular artists.” He assumed the paintings were not originals given their price and the fact that the Estate was managed by professionals, but was attracted to the subject matter of one of the paintings and the frame of the other. At home, he compared the signatures on the paintings to those in a book of artists’ signatures, noticing they “appeared to be similar” to that of Martin Johnson Heade. As they had done in the past, the Rices sent pictures of the paintings to Christie’s in New York, hoping they might be Heade’s work. Christie’s authenticated the . paintings, Magnolia Blossoms on Blue Velvet and Cherokee Roses, as paintings by Heade and offered to sell them on consignment. Christie’s subsequently sold the paintings at auction for $1,072,000. After subtracting the buyer’s premium and the commission, the Rices realized $911,780 from the sale.

¶ 4 Newman and Franz learned about the sale in February 1997 and thereafter sued McKenzie-Larson on behalf of the Estate, believing she was entirely responsible for the Estate’s loss. The following November, they settled the lawsuit because McKenzie-Larson had no assets with which to pay damages. During 1997, the Rices paid income taxes of $337,000 on the profit from the sale of the paintings, purchased a home, created a family trust, and spent some of the funds on living expenses.

¶ 5 The Estate sued the Rices in late January 1998, alleging the sale contract should be rescinded or reformed on grounds of mutual mistake and unconscionability. In its subsequent motion for summary judgment, the Estate argued the parties were not aware the transaction had involved fine art, believing instead that the items exchanged were “relatively valueless, wall decorations.” In their opposition and cross-motion, the Rices argued the Estate bore the risk of mistake, the doctrine of laches precluded reformation of the contract, and unconscionability was not a basis for rescission. The trial court concluded that, although the parties had been mistaken about the value of the paintings, the Estate bore the risk of that mistake. The court ruled the contract was not unconscionable, finding the parties had not negotiated Carl’s paying the prices the Estate had set. Accordingly, the court denied the Estate’s motion for summary judgment and granted the Rices’ cross-motion. The Estate’s motion for new trial was denied, and this appeal followed.

Standard of Review

¶ 6 Summary judgment is proper when the evidence presented by the party opposing the motion has so little probative value, given the required burden of proof, that reasonable jurors could not agree with the opposing party’s conclusions. Orme School v. Reeves, 166 Ariz. 301, 802 P.2d 1000 *566 (1990). We determine de novo whether any genuine issues of material fact exist and whether the trial court erred in applying the law. Construction Developers, Inc. v. City of Phoenix, 194 Ariz. 165, 978 P.2d 650 (App.1998); Toy v. Katz, 192 Ariz. 73, 961 P.2d 1021 (App.1997).

Mutual Mistake

¶ 7 The Estate first argues that it established a mutual mistake sufficient to permit the reformation or rescission of the sale of the paintings to the Rices. 1 A party seeking to rescind a contract on the basis of mutual mistake must show by clear and convincing evidence that the agreement should be set aside. Emmons v. Superior Court, 192 Ariz. 509, 968 P.2d 582 (App.1998). A contract may be rescinded on the ground of a mutual mistake as to a “ ‘basic assumption on which both parties made the contract.’ ” Renner v. Kehl, 150 Ariz. 94, 97, 722 P.2d 262, 265 (1986), quoting Restatement (Second) of Contracts § 152 cmt. b (1979). Furthermore, the parties’ mutual mistake must have had “ ‘such a material effect on the agreed exchange of performances as to upset the very bases of the contract.’” Id., quoting Restatement § 152 cmt. a. However, the mistake must not be one on which the party seeking relief bears the risk under the rules stated in § 154(b) of the Restatement. Emmons-, Restatement § 152.

¶ 8 In concluding that the Estate was not entitled to rescind the sale, the trial court found that, although a mistake had existed as to the value of the paintings, the Estate bore the risk of that mistake under § 154(b) of the Restatement, citing the example in comment a. Section 154(b) states that a party bears the risk of mistake when “he is aware, at the time the contract is made, that he has only limited knowledge with respect to the facts to which the mistake relates but treats his limited knowledge as sufficient.” In explaining that provision, the Washington Supreme Court stated, “In such a situation there is no mistake. Instead, there is an awareness of uncertainty or conscious ignorance of the future.” Bennett v. Shinoda Floral, Inc., 108 Wash.2d 386, 739 P.2d 648, 653-54 (1987); see also State Farm Fire & Cos. Co. v. Pacific Rent-All, Inc., 90 Hawaii 315, 978 P.2d 753 (1999).

¶ 9 The Estate contends neither party bore the risk of mistake, arguing that § 154 and comment a are not applicable to these facts. In the example in comment a, the risk of mistake is allocated to the seller when the buyer discovers valuable mineral deposits on property priced and purchased as farmland. Even were we to accept the Estate’s argument that this example is not analogous, comment c clearly applies here and states:

Conscious ignorance. Even though the mistaken party did not agree to bear the risk, he may have been aware when he made the contract that his knowledge with respect to the facts to which the mistake relates was limited. If he was not only so aware that his knowledge was limited but undertook to perform in the face of that awareness, he bears the risk of the mistake. It is sometimes said in such a situation that, in a sense, there was not mistake but “conscious ignorance.”

¶ 10 Through its personal representatives, the Estate hired two appraisers, MeKenzie-Larson and an Indian art expert, to evaluate the Estate’s collection of Indian art and artifacts. MeKenzie-Larson specifically told Newman that she did not appraise fine art. In his deposition, Newman testified that he had not been concerned that McKenzie-Larson had no expertise in fine art, believing the Estate contained nothing of “significant value” except the house and the Indian art collection. Despite the knowledge that the Estate contained framed art other than the Indian art, and that MeKenzie-Larson was not qualified to appraise fine art, the personal representatives relied on her to notify them of any fine art or whether a fine arts *567 appraiser was needed. Because McKenzie-Larson did not say they needed an additional appraiser, Newman and Franz did not hire anyone qualified to appraise fine art. By relying on the opinion of someone who was admittedly unqualified to appraise fine art to determine its existence, the personal representatives consciously ignored the possibility that the Estate’s assets might include fine art, thus assuming that risk. See Klas v. Van Wagoner, 829 P.2d 135, 141 n. 8 (Utah App.1992) (real estate buyers not entitled to rescind sale contract because they bore risk of mistake as to property’s value; by hiring architects, decorators, and electricians to examine realty, but failing to have it appraised, purchasers executed sale contract knowing they “had only ‘limited knowledge’ with respect to the value of the home”). Accordingly, the trial court correctly found that the Estate bore the risk of mistake as to the paintings’ value. 2

¶ 11 The Estate asserts that the facts here are similar to those in Renner, in which real estate buyers sued to rescind a contract for acreage upon which they wished to commercially grow jojoba after discovering the water supply was inadequate for that purpose. The supreme court concluded that the buyers could rescind the contract based upon mutual mistake because both the buyers and the sellers had believed there was an adequate water supply, a basic assumption underlying formation of the contract. The parties’ failure to thoroughly investigate the water supply did not preclude rescission when “the risk of mistake was not allocated among the parties.” 150 Ariz. at 97 n. 2, 722 P.2d at 265 n. 2. The Estate’s reliance on Renner is unavailing because, as stated above, the Estate bore the risk of mistake based on its own conscious ignorance. 3

¶ 12 Furthermore, under Restatement § 154(c), the court may allocate the risk of mistake to one party “on the ground that it is reasonable in the circumstances to do so.” In making this determination, “the court will consider the purposes of the parties and will have recourse to its own general knowledge of human behavior in bargain transactions.” Restatement § 154 cmt. d. Here, the Estate had had ample opportunity to discover what it was selling and failed to do so; instead, it ignored the possibility that the paintings were valuable and attempted to take action only after learning of their worth as a result of the efforts of the Rices. Under these circumstances, the Estate was a victim of its own folly and it was reasonable for the court to allocate to it the burden of its mistake.

Unconscionability

¶ 13 The Estate also argues that enforcement of the “contract” to sell the paintings is unconscionable. The determination of a contract’s unconscionability is for the trial court as a matter of law. Maxwell v. Fidelity Financial Services, Inc., 184 Ariz. 82, 907 P.2d 51 (1995). We review that ruling de novo. Samaritan Health Sys. v. Superior Court, 194 Ariz. 284, 981 P.2d 584 (App.1998). “ ‘Unconscionability includes both procedural unconscionability, i.e., something wrong in the bargaining process, and substantive unconscionability, i.e., the contract terms per se.’ ” Phoenix Baptist Hosp. & Medical Ctr., Inc. v. Aiken, 179 Ariz. 289, 293, 877 P.2d 1345, 1349 (App.1994), quoting Pacific Am. Leasing Corp. v. S.P.E. Bldg. Sys., 152 Ariz. 96, 103, 730 P.2d 273, 280 (App.1986).

¶ 14 Citing Maxwell, the Estate contends this is a case of substantive unconscionability, which concerns the actual terms of the contract and the relative fairness of the parties’ obligations. Indicia of substantive unconscionability include one-sided terms that oppress or unfairly surprise an *568 innocent party, an overall imbalance in the obligations and rights imposed by the bargain, and significant cost-price disparity. Maxwell. Unconscionability is determined as of the time the parties entered into the contract. See id.; cf. A.R.S. § 47-2302.

¶ 15 In refusing to rescind the sale on the basis of unconscionability, the trial court stated that, “[w]hile the results of the transaction may seem unconscionable to the [Estate] in hindsight, the terms of the contract certainly were not.” We agree. The transaction involved no negotiation, the Estate dictated the terms of the contract by naming a price for each painting, and Carl paid the asking prices. “ ‘Courts should not assume an overly paternalistic attitude toward the parties to a contract by relieving one or another of them of the consequences of what is at worst a bad bargain ... and in declaring the [contract] at issue here unconscionable, we would be doing exactly that.’ ” Pacific Am. Leasing, 152 Ariz. at 103, 730 P.2d at 280, quoting Dillman and Assocs., Inc. v. Capitol Leasing Co., 110 Ill.App.3d 335, 66 Ill.Dec. 39, 442 N.E.2d 311, 317 (1982). See also State ex rel. State Highway & Transp. Dep’t v. Garley, 111 N.M. 383, 806 P.2d 32 (1991); Park Valley Corp. v. Bagley, 635 P.2d 65 (Utah 1981).

¶ 16 Affirmed. In our discretion, we deny the Rices’ request for attorney’s fees on appeal.

Opinion

STEIN, J.

Jean M. Simes (Simes) died of cancer less than four months after purchasing an annuity that provided for monthly benefit payments as long as she lived. Plaintiffs Carol Grenall and Mike Sutton, the administrators of her estate (the Estate), sought to rescind the annuity based on a mistake of fact, namely, that Simes was unaware at the time of the contract that she was terminally ill. The trial court granted summary judgment in favor of the issuing company, defendant United of Omaha Life Insurance Company (United). We affirm because plaintiffs failed to establish an essential element for rescission based on mistake of fact.

Factual and Procedural Background

The essential facts are undisputed for purposes of appeal:

Simes submitted a signed annuity application to United’s agent on October 2, 2001, along with a single premium of $321,131. United then issued a policy for a single premium immediate annuity, effective the date of Simes’s application. Simes received a copy of the policy six weeks after her application. The cover page of the annuity policy includes the following provision: “READ YOUR POLICY CAREFULLY, ffl It includes the provisions on the following pages, [f ] If you are not satisfied with your policy, return it to us or our agent within 30 days after you receive it. We will refund the single premium and cancel the policy as of its date of issue.” Among the provisions that followed, the annuity policy provided for monthly payments of $3,000 to Simes for “life only”—specifically, a “life contingent payable ... as long as the annuitant lives.”

On January 25, 2002, after receiving three benefit payments, Simes was diagnosed with ovarian cancer. She died less than a week later on January 30, 2002. United stopped making annuity payments in April 2003 when it learned of her death.

*191 The Estate filed suit against United, alleging two causes of action, for breach of contract and declaratory relief, in a form complaint. The breach of contract claim alleges that United had refused to make payments under the terms of the annuity “until the sum of the benefit payments equals the single premium.” The declaratory relief cause of action seeks resolution of a dispute between the parties as to their respective rights under the annuity policy.

United moved for summary judgment, claiming the terms of the contract provided for a life annuity and did not require a refund of the premium to the Estate. Accordingly, United maintained it was entitled to summary judgment on the breach of contract and declaratory relief causes of action. In its opposition to the motion, the Estate characterized the annuity as a contract of adhesion and raised issues of procedural and substantive unconscionability.

The trial court granted summary judgment on the breach of contract cause of action, concluding that the undisputed facts showed that United had not breached the payment option to which the parties agreed, as the contract required monthly benefit payments only during Simes’s lifetime. 1 The court denied the motion as to the declaratory relief cause of action, concluding that the evidence raised triable issues of material fact as to whether Simes made a unilateral mistake in agreeing to the life annuity payment option, justifying reformation, and whether surrounding circumstances justified rescission and restitution based on a mistake of fact or a mistake of law. 2

After additional discovery, United renewed its motion for summary judgment on the declaratory relief cause of action, arguing that the Estate could not prevail on the factual issues identified in the trial court’s prior order. United asserted that there was no evidence of a mistake by Simes or of what was in her mind when she purchased the annuity. In its opposition, the Estate raised a single claim for rescission based on a mistake of fact. Specifically, the Estate produced evidence that Simes did not know she had a terminal illness when she entered the annuity contract or during the statutory rescission period. The Estate also argued that the contract was procedurally and *192 substantively unconscionable. United responded with authority rejecting rescission of annuity contracts under these circumstances.

The trial court granted summary judgment in favor of United, concluding that Simes’s undetected cancer did not constitute a mistake of fact rendering enforcement unconscionable. The trial court noted that purchasers of annuities assume the risk of dying before recouping their investments and concluded it was reasonably foreseeable that Simes would die before the benefit payments matched her premium. Under these circumstances, the trial court held that it was reasonable to allocate to Simes the risk of a mistake regarding her health and life expectancy.

Judgment in favor of United was entered on June 15, 2007. The Estate filed a timely notice of appeal. United filed a motion to dismiss and for sanctions simultaneously with its respondent’s brief. This court deferred a ruling on the motion pending its decision on the merits. 3

Discussion

An appellate court reviews a grant of summary judgment de novo, as it raises only questions of law regarding the construction and effect of the arguments and evidence before the trial judge. (Knight v. Hayward Unified School Dist. (2005) 132 Cal.App.4th 121, 128 [33 Cal.Rptr.3d 287]; see Kolodge v. Boyd (2001) 88 Cal.App.4th 349, 355-356 [105 Cal.Rptr.2d 749].) Summary judgment is proper if there is no triable issue as to any material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 [107 Cal.Rptr.2d 841, 24 P.3d 493].) In this case, the parties agree that the material facts are undisputed for purposes of appeal. Based on these undisputed facts, United contends it is entitled to judgment as a matter of law on the Estate’s rescission claim.

The facts on which the Estate relied below purport to show the following: (1) Simes did not know at the time of her application and during the statutory rescission period that she had terminal ovarian cancer that would result in her death four months later; (2) Simes’s illness affected her ability to make decisions; and (3) Simes did not receive a copy of the annuity policy until mid-November 2001. The sole issue argued by the Estate on appeal is whether these facts provide a legal basis for rescission of the life ánnuity *193 contract based on a mistake of fact. We hold, as a matter of law, that they do not, for the following reasons.

California law permits rescission of a contract when a party’s consent is given by mistake. (Civ. Code, § 1689, subd. (b)(1); Donovan v. RRL Corp. (2001) 26 Cal.4th 261, 278 [109 Cal.Rptr.2d 807, 27 P.3d 702] (Donovan).) On this basis, the Estate asserts a right to rescind the annuity policy, alleging that Simes would not have entered the contract but for a mistake of fact, specifically, the terminal illness she did not know she had. (2) A mistake of fact may consist of a “[b]elief in the present existence of a thing material to the contract, which does not exist.” (Civ. Code, § 1577, subd. 2.) 4 The alleged mistake therefore may be characterized as Simes’s erroneous belief at the time of the contract that she was in good health and had a reasonable life expectancy.

A mistake of this nature does not support a claim for rescission. The Estate asserts a unilateral mistake and offers no evidence that United had reason to know of or caused the mistake. Accordingly, to prevail at trial, the Estate would have been required to prove the following: (1) Simes was mistaken regarding a basic assumption upon which she made the contract; (2) the mistake materially affected the agreed exchange of performances in a way that was adverse to Simes; (3) Simes did not bear the risk of the mistake; and (4) the effect of the mistake was such that enforcement of the contract would be unconscionable. (See Donovan, supra, 26 Cal.4th at p. 278.) The facts on which the Estate relies demonstrate that it cannot establish the third of these elements. 5

We conclude, based on the nature of the contract and the alleged mistake, that Simes bore the risk of the mistake, as a matter of law. A contracting party bears the risk of a mistake when the agreement so provides or when the party is aware of having only limited knowledge of the facts relating to the mistake but treats this limited knowledge as sufficient. (Donovan, supra, 26 Cal.4th at p. 283, citing Rest.2d Contracts, § 154.) Additionally, the court may allocate the risk to a party because it is reasonable under the circumstances to do so. (Donovan, at p. 283.) The contract in this case does not expressly assign the risk of the alleged mistake. Nonetheless, parties who contract for “life contingent” benefits necessarily do so based on limited knowledge of the very facts about which Simes was mistaken. We cannot fix the length of our lives or even the state of our health *194 with certainty, and the parties knew that their expectations in this regard were at best an educated guess. Indeed, life annuity contracts are read “in the light of the knowledge of all mankind, that death may come tomorrow.” (Rishel v. Pacific Mut. Life Ins. Co. of California (10th Cir. 1935) 78 F.2d 881, 883 (Rishel).)

The allocation of this risk to Simes is reasonable because such risks are an inherent part of life annuity contracts, which reflect, at their essence, a longevity wager measured by average life expectancy. (See Rest.2d Contracts, § 154, illus. 3, p. 405 [reasonable allocation of risk that annuitant has incurable disease and will live no more than a year]; see also Stockett v. Penn Mutual Life Ins. Co. (1954) 82 R.I. 172 [106 A.2d 741, 744] [contract not based on life expectancy of particular annuitant, but on “the average life expectancy of a specified group within which the individual may reasonably be included”].) Annuitants who survive the average life expectancy receive benefits beyond the premium; those who die earlier do not recoup their investments. Both risks are contemplated by the parties and, indeed, are an integral part of their bargain. (See Guthrie v. Times-Mirror Co. (1975) 51 Cal.App.3d 879, 885 [124 Cal.Rptr. 577] [“Where parties are aware at the time the contract is entered into that a doubt exists in regard to a certain matter and contract on that assumption, the risk of the existence of the doubtful matter is assumed as an element of the bargain”].) 6

Accordingly, California courts have rejected challenges to such contracts on the ground that death came unexpectedly early. (See Coyne v. Pacific Mut. Life Ins. Co. (1935) 8 Cal.App.2d 104, 109 [47 P.2d 1079] (Coyne) [rejecting failure of consideration where annuitant committed suicide before first payment, finding he “ran the risk of such an event”]; Gold v. Salem Lutheran Home Assn. (1959) 53 Cal.2d 289, 291 (Gold) [rejecting doctrine of frustration where resident died before performance of life care contract began, finding this was a reasonably foreseeable risk assumed by the parties]; Sipes v. Equitable Life Assur. Society of the United States (N.D.Cal. 1996) 1996 U.S.Dist. Lexis 12325, *12 [rejecting failure to disclose to woman in her 80’s that life annuity was bad investment, as annuitants are presumed to know they may die before receiving substantial benefits].)

California law is consistent with that of other jurisdictions. (See, e.g., Rishel, supra, 78 F.2d at p. 883 [“An annuitant, for a sum certain, shares the risk of outliving his expectancy with others .... In a sense, if he lives longer than the average of his age, he wins; not so long, he loses . . . .”]; Tabachinslcy v. Guardian Life Insurance Company (N.Y.Misc. 1956) *195 147 N.Y.S.2d 719, 721 [same]; Moses v. Manufacturers Life Insurance Company (D.S.C. 1968) 298 F.Supp. 321, 325 [the parties contemplated both the possibility that the purchaser would die before reaching her life expectancy and that she would live beyond it]; Guthmann v. La Vida Llena (1985) 103 N.M. 506, 513 [709 P.2d 675] [upholding retirement home’s retention of residency fee on resident’s death, as resident took the risk of dying sooner than expected]; see also 1 Appleman, Insurance Law and Practice (rev. ed. 1981) Annuities, § 86, pp. 306-307 [“the mere fact that the annuitant dies shortly after the contract is entered into, or after one or two payments only have been made, does not justify the setting aside of the contract, as that is one of the risks contemplated by such a form of investment”].)

The Estate does not offer any direct argument contesting allocation of the risk to Simes and simply challenges the California cases on which the trial court relied. The Estate attempts to distinguish Coyne and Gold on the basis that they involved an unknown risk of death in the future while Simes made a mistake about an existing fact—a fatal illness that cut her life expectancy to four months. This distinction, though factually accurate, is not significant. As noted above, the result in each of these cases turns on the nature of the contract and the risks contemplated by the parties, specifically, the risk of an early death. (See Coyne, supra, 8 Cal.App.2d at p. 109; Gold, supra, 53 Cal.2d at pp. 291-292 [parties “clearly assumed the risk of variation of the life span from that predicted by the mortality tables”].)

Although no California case directly addresses rescission based on a mistake about an annuitant’s health at the time of the contract, other jurisdictions have refused to rescind in this context. For example, in Aldrich v. Travelers Ins. Co. (1944) 317 Mass. 86 [56 N.E.2d 888], an annuitant who had terminal cancer at the time of the contract died a little over a year later, and her estate sought to rescind based on mutual mistake and unconscionability. The Supreme Court of Massachusetts concluded that both parties had assumed the decedent’s health warranted a reasonable expectation of life, but, as reasonable persons, knew this could be wrong and that she might “have within her body a condition that could cause her early death . . . .” (See id., 56 N.E.2d at p. 889.) The court found that the parties entered into a contract “with reference to this very risk,” assumed the risks relating to the timing of her death, and were “satisfied to do business on this basis.” (Ibid.) The court refused to allow rescission “merely because the known and assumed risk turned out to be greater than either or both [sides] expected it to be.” (Ibid.)

Likewise, in Woodworth v. Prudential Insurance Co. (N.Y.App.Div. 1939) 258 A.D. 103 [15 N.Y.S.2d 541], the annuitant’s estate sought rescission based on a unilateral mistake of fact, alleging that at the time of the contract, he was “wholly unaware that he was then suffering from serious constitutional diseases which would cause his death in less than two years.” (Ibid.) *196 The court rejected rescission, finding that the parties had contemplated “the very possibility that here happened”—that the annuitant might die before his average life expectancy and receive a small fraction of the purchase price. (See 258 A.D. at p. 543; see also Rishel, supra, 78 F.2d at p. 887 [“An annuity contract cannot be avoided because ... it develops that [the annuitant’s] health was so impaired when the contract was written that his expectancy was less than the average.”]; Meyer’s Executor v. Huber (Ky.Ct.App. 1955) 280 S.W.2d 157 [rejecting rescission claim based on alleged mistake about state of health and life expectancy]; Davis v. Equitable Life Assurance Society of the United States (1939) 280 N.Y. 656 [20 N.E.2d 1017] [although the decedent had cancer when he purchased the annuity, the “contract contemplated such contingency as arose”].)

Our sister states recognize that allocation of the risk to the annuitant in these circumstances is not only reasonable but a practical necessity. “It is difficult to see how any company could carry on an annuity business if the estate of an annuitant could rescind whenever it turned out that the condition of his health did not ‘warrant a reasonable expectation of life.’ ” (Aldrich v. Travelers Ins. Co., supra, 56 N.E.2d at p. 889.) Indeed, “[i]f insurance companies never profited from an annuity contract, how could [they] afford to pay those whose lives exceeded the averages upon which their rates were based?” (Moses v. Manufacturers Life Insurance Company, supra, 298 F.Supp. at p. 326; see Woodworth v. Prudential Ins. Co. of America, supra, 15 N.Y.S.2d at p. 544 [because unpaid balance becomes part of required reserve fund for the benefit of all annuitants in the class, companies would not be able to write contracts or assure proper reserves if they were required to issue refunds “upon proof after death of unknown illness when the contracts were written”].)

In light of these authorities, we hold that Simes bore the risk of the alleged mistake regarding her health and life expectancy at the time of the annuity contract. Because the Estate cannot establish an essential element of its rescission claim, summary judgment is proper. (See Code Civ. Proc., § 437c, subd. (o)(l); Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 849 [defendant may meet its burden to show cause of action is without merit by demonstrating that plaintiff cannot establish one or more essential elements].) Accordingly, we need not discuss the other elements of this claim or decide the additional grounds for affirmance urged by United in its respondent’s brief and its related motion to dismiss.

Finally, although we reject the Estate’s arguments, because there is no California authority directly on point, we do not find them so wholly devoid of merit as to warrant the imposition of sanctions.

*197 Disposition

The judgment is affirmed with costs to United.

Marchiano, P. L, and Swager, J., concurred.

OPINION

FELDMAN, Justice.

¶ 1 We granted review to determine whether the restrictive covenant between Dr. Steven Farber and Valley Medical Specialists is enforceable. We hold that it is not. Public policy concerns in this case outweigh Valley Medical’s protectable interests in enforcing the agreement. We thus vacate the court of appeals’ opinion, affirm the trial court’s judgment, and remand to the court of appeals to resolve any remaining issues. We have jurisdiction pursuant to Arizona Constitution article VI, § 5(3) and A.R.S. § 12-120.24.

FACTS AND PROCEDURAL HISTORY

¶2 In 1985, Valley Medical Specialists (“VMS”), a professional corporation, hired Steven S. Farber, D.O., an internist and pulmonologist who, among other things, treated *365 AIDS and HIV-positive patients and performed brachytherapy — a procedure that radiates the inside of the lung in lung cancer patients. Brachytherapy can only be performed at certain hospitals that have the necessary equipment. A few years after joining VMS, Dr. Farber became a shareholder and subsequently a minority officer and director. In 1991, the three directors, including Dr. Farber, entered into new stock and employment agreements. The employment agreement contained a restrictive covenant, the scope of which was amended over time.

¶3 In 1994, Dr. Farber left VMS and began practicing within the area defined by the restrictive covenant, which at that time read as follows:

The parties recognize that the duties to be rendered under the terms of this Agreement by the Employee are special, unique and of an extraordinary character. The Employee, in consideration of the compensation to be paid to him pursuant to the terms of this Agreement, expressly agrees to the following restrictive covenants:

(a) The Employee shall not, directly or indirectly:

(i) Request any present or future patients of the Employer to curtail or cancel their professional affiliation with the Employer;

(ii) Either separately, jointly, or in association with others, establish, engage in, or become interested in, as an employee, owner, partner, shareholder or otherwise, or furnish any information to, work for, or assist in any manner, anyone competing with, or who may compete with the Employer in the practice of medicine.

(in) Disclose the identity of any past, present or future patients of the Employer to any other person, firm or corporation engaged in a medical practice the same as, similar to or in general competition with the medical services provided by the Employer.

(iv) Either separately, jointly or in association with others provide medical care or medical assistance for any person or persons who were patients or [sic] Employer during the period that Employee was in the hire of Employer.

(d) The restrictive covenants set forth herein shall continue during the term of this Agreement and for a period of three (3) years after the date of termination, for any reason, of this Agreement. The restrictive covenants set forth herein shall be binding upon the Employee in that geographical area encompassed within the boundaries measured by a five (5) mile radius of any office maintained or utilized by Employer at the time of execution of the Agreement or at any time thereafter.

(e) The Employee agrees that a violation on his part of any covenant set forth in this Paragraph 17 will cause such damage to the Employer as will be irreparable and for that reason, that Employee further agrees that the Employer shall be entitled, as a matter of right, and upon notice as provided in Paragraph 20 hereof, to an injunction from any court of competent jurisdiction, restraining any further violation of said covenants by Employee, his corporation, employees, partners or agents. Such right to injunctive remedies shall be in addition to and cumulative with any other rights and remedies the Employer may have pursuant to this Agreement or law, including, specifically with regard to the covenants set forth in subparagraph 17(a) above, the recovery of liquidated damages equal to forty percent (40%) of the gross receipts received for medical services provided by the Employee, or any employee, associate, partner, or corporation of the Employee during the term of this Agreement and for a period of three (3) years after the date of termination, for any reason, of this Agreement. The Employee expressly acknowledges and agrees that the covenants and agreement contained in *366 this Paragraph 17 are minimum and reasonable in scope and are necessary to protect the legitimate interest of the Employer and its goodwill.

(Emphasis added.)

¶4 VMS filed a complaint against Dr. Farber seeking (1) preliminary and permanent injunctions enjoining Dr. Farber from violating the restrictive covenant, (2) liquidated damages for breach of the employment agreement, and (3) damages for breach of fiduciary duty, conversion of patient files and confidential information, and intentional interference with contractual and/or business relations.

¶ 5 Following six days of testimony and argument, the trial court denied VMS’s request for a preliminary injunction, finding that the restrictive covenant violated public policy or, alternatively, was unenforceable because it was too broad. Specifically, the court found that: any covenant over six months would be unreasonable; the five-mile radius from each of the three VMS offices was unreasonable because it covered a total of 235 square miles; and the restriction was unreasonable because it did not provide an exception for emergency medical aid and was not limited to pulmonology.

¶ 6 The court of appeals reversed, concluding that a modified covenant was reasonable. Valley Med. Specialists v. Farber, 190 Ariz. 563, 950 P.2d 1184 (App.1997). The court noted that there were eight hospitals outside the restricted area where Dr. Farber could practice. Id. at 567, 950 P.2d at 1188. Although the covenant made no exceptions for emergency medicine, the court held that the severability clause permitted the trial court to modify the covenant so Dr. Farber could provide emergency services within the restricted area. Id. (citing Phoenix Orthopaedic Surgeons, Ltd. v. Peairs (“Peairs”), 164 Ariz. 54, 61, 790 P.2d 752, 759 (App.1989)). Moreover, VMS was allowed to stipulate that Dr. Farber could perform brachytherapy and treat AIDS and HIV patients within the restricted area, again even though the covenant contained no such exceptions. Valley Med. Specialists, 190 Ariz. at 567, 950 P.2d at 1188.

¶ 7 The court of appeals found the restriction, when so modified, reasonable as to time and place. Although non-emergency patients might be required to travel further to see Dr. Farber, they could continue to see him if they were willing to drive that far. Id. at 567-68, 950 P.2d at 1188-89. Three years was reasonable because the record contained testimony that it might take Dr. Farber’s replacement three to five years to develop his pulmonary practice referral sources to the level they were when Dr. Farber resigned. Id.

¶ 8 The court found that the restrictive covenant did not violate public policy, believing that courts must not unnecessarily restrict the freedom of contract. Id. at 568, 950 P.2d at 1189. Moreover, the record was void of any evidence that the availability of pulmonologists in the restricted area would be inadequate without Dr. Farber. Id.

DISCUSSION

A. Standard of review

¶ 9 There is some dispute over what standard of review should be applied to the trial court’s decision. Dr. Farber contends the court of appeals usurped the trial court’s discretion by applying a de novo standard. Granting or denying a preliminary injunction is within the sound discretion of the trial court, and its decision will not be reversed absent an abuse of that discretion. Financial Assocs., Inc. v. Hub Properties, Inc., 143 Ariz. 543, 545, 694 P.2d 831, 833 (App.1984). The trial judge’s factual findings are reviewed on a clearly erroneous standard. See Rule 52(a), Ariz.R.Civ.P.

¶ 10 VMS contends, however, that the court of appeals correctly applied a de novo standard. Mixed findings of fact and law are reviewed de novo. Indeed, some courts have held that the determination of whether a restrictive covenant is reasonable is a question of law. See, e.g., Gann v. Morris, 122 Ariz. 517, 518, 596 P.2d 43, 44 (App.1979); Raymundo v. Hammond Clinic Ass’n, 449 N.E.2d 276, 280 (Ind.1983).

¶ 11 It is true that the ultimate question of reasonableness is a question of *367 law. But reasonableness is a fact-intensive inquiry that depends on weighing the totality of the circumstances. Bryceland v. Northey, 160 Ariz. 213, 217, 772 P.2d 36, 40 (App.1989) (“Each ease hinges on its own particular facts.”); Olliver/Pilcher Ins. v. Daniels, 148 Ariz. 530, 532, 715 P.2d 1218, 1220 (1986). Thus, we will give substantial deference both to the trial court’s findings of fact and its application of law to fact, reviewing the former on a clearly erroneous standard and the latter for abuse of discretion.

B. History of restrictive covenants

¶ 12 A brief reference to basic principles is appropriate. Historically, covenants not to compete were viewed as restraints of trade and were invalid at common law. Ohio Urology, Inc. v. Poll, 72 Ohio App.3d 446, 594 N.E.2d 1027, 1031 (1991); see generally Harlan M. Blake, Employee Agreements not to Compete, 73 Harv. L. Rev. 625 (1960); Serena L. Kafker, Golden Handcuffs: Enforceability of Noncompetition Clauses in Professional Partnership Agreements of Accountants, Physicians, and Attorneys, 31 Am. Bus. L J. 31, 33 (1993). Eventually, ancillary restraints, such as those incident to employment or partnership agreements, were enforced under the rule of reason. See Restatement (Second) of Contracts § 188 (hereinafter “Restatement”). Given the public interest in doctor-patient relationships, the validity of restrictive covenants between physicians was carefully examined long ago in Mandeville v. Harman:

The rule is not that a limited restraint is good, but that it may be good. It is valid when the restraint is reasonable; and the restraint is reasonable when it imposes no shackle upon the one party which is not beneficial to the other.

The authorities are uniform that such contracts are valid when the restraint they impose is reasonable, and the test to be applied, ... is this: To consider whether the restraint is such only as to afford a fair protection to the interest of the party in favor of whom it is given, and not so large as to interfere with the interest of the public. Whatever restraint is larger than the necessary protection of the party can be of no benefit to either; it can only be oppressive, and, if oppressive, it is, in the eye of the law, unreasonable and void, on the ground of public policy, as being injurious to the interests of the public.

42 N.J. Eq. 185, 7 A. 37, 38-39 (1886) (citations omitted); see also Karlin v. Weinberg, 77 N.J. 408, 390 A.2d 1161, 1165 (1978). To be enforced, the restriction must do more than simply prohibit fair competition by the employee. Bryceland, 160 Ariz. at 216, 772 P.2d at 39. In other words, a covenant not to compete is invalid unless it protects some legitimate interest beyond the employer’s desire to protect itself from competition. Amex Distrib. Co. v. Mascari, 150 Ariz. 510, 518, 724 P.2d 596, 604 (App.1986). The legitimate purpose of post-employment restraints is “to prevent competitive use, for a time, of information or relationships which pertain peculiarly to the employer and which the employee acquired in the course of the employment.” Blake, supra, 73 Harv. L. Rev. at 647. Despite the freedom to contract, the law does not favor restrictive covenants. Ohio Urology, Inc., 594 N.E.2d at 1031. This disfavor is particularly strong concerning such covenants among physicians because the practice of medicine affects the public to a much greater extent. Id. In fact, “[f]or the past 60 years, the American Medical Association (AMA) has consistently taken the position that noncompetition agreements between physicians impact negatively on patient care.” Paula Berg, Judicial Enforcement of Covenants not to Compete Between Physicians: Protecting Doctors’ Interests at Patients’ Expense, 45 Rutgers L. Rev. 1, 6 (1992).

C. Level of scrutiny — public policy considerations

¶ 13 We first address the level of scrutiny that should be afforded to this restrictive covenant. Dr. Farber argues that this contract is simply an employer-employee agreement and thus the restrictive covenant should be strictly construed against the employer. See Amex Distrib. Co., 150 Ariz. at 514, 724 P.2d at 600 (noting employer-employee restrictive covenants are disfavored and strictly construed against the employer). This was the approach taken by *368 the trial court. VMS contends that this is more akin to the sale of a business; thus, the noncompete provision should not be strictly construed against it. See id. (courts more lenient in enforcing restrictive covenants connected to sale of business because of need to effectively transfer goodwill). Finding the agreement here not on all fours with either approach, the court of appeals applied a standard “somewhere between” the two. Valley Med. Specialists, 190 Ariz. at 566, 950 P.2d at 1187.

¶ 14 Although this agreement is between partners, it is more analogous to an employer-employee agreement than a sale of a business. See Restatement § 188 cmt. h (“A rule similar to that applicable to an employee or agent applies to a partner who makes a promise not to compete that is ancillary to the partnership agreement or to an agreement by which he disposes of his partnership interest.”). Many of the concerns present in the sale of a business are not present or are reduced where, as here, a physician leaves a medical group, even when that physician is a partner. When a business is sold, the value of that business’s goodwill usually figures significantly into the purchase price. The buyer therefore deserves some protection from competition from the former owner.' See Kafker, supra, 31 Am. Bus. L.J. at 33. A restraint accompanying the sale of a business is necessary for the buyer to get the full goodwill value for which it has paid. Blake, supra, 73 Harv. L. Rev. at 647.

¶ 15 It is true that in this case, unlike typical employer-employee agreements, Dr. Farber may not have been at a bargaining disadvantage, which is one of the reasons such restrictive covenants are strictly construed. See, e.g., Rash v. Toccoa Clinic Med. Assocs., 253 Ga. 322, 320 S.E.2d 170, 172-73 (1984). Unequal bargaining power may be a factor to consider when examining the hardship on the departing employee. But in cases involving the professions, public policy concerns may outweigh any protectable interest the remaining firm members may have. Thus, this ease does not turn on the hardship to Dr. Farber.

¶ 16 By restricting a physician’s practice of medicine, this covenant involves strong public policy implications and must be closely scrutinized. See Peairs, 164 Ariz. at 60, 790 P.2d at 758; Ohio Urology, Inc., 594 N.E.2d at 1032 (restrictive covenant in medical context “strictly construed in favor of professional mobility and access to medical care and facilities”). Although stopping short of banning restrictive covenants between physicians, the American Medical Association (“AMA”) “discourages” such covenants, finding they are not in the public interest.

The Council on Ethical and Judicial Affairs discourages any agreement between physicians which restricts the right of a physician to practice medicine for a specified period of time or in a specified area upon termination of employment or a partnership or a corporate agreement. Such restrictive agreements are not in the public interest.

1989 Current Opinions of the Council on Ethical and Judicial Affairs, Section 9.02 (hereinafter “AMA Opinions”). In addition, the AMA recognizes that free choice of doctors is the right of every patient, and free competition among physicians is a prerequisite of optimal care and ethical practice. See AMA Opinions, Section 9.06; Ohio Urology, Inc., 594 N.E.2d at 1030.

¶ 17 For similar reasons, restrictive covenants are prohibited between attorneys. See Dwyer v. Jung, 133 N.J.Super. 343, 336 A.2d 498, 501 (Ct. Ch. Div.), aff'd, 137 N.J.Super. 135, 348 A.2d 208 (App.Div.1975); Cohen v. Lord, Day & Lord, 75 N.Y.2d 95, 551 N.Y.S.2d 157, 550 N.E.2d 410, 410-11 (1989). In 1969, the American Bar Association adopted a code of professional conduct that contained a disciplinary rule prohibiting restrictive covenants between attorneys. See Berg, supra, 45 Rutgers L. Rev. at 37. The ethical rules adopted by this court provide:

A lawyer shall not participate in offering or making:

(a) a partnership or employment agreement that restricts the rights of a lawyer to practice after termination of the relationship except an agreement concerning benefits upon retirement; or

(b) an agreement in which a restriction on the lawyers right to practice is part of *369 the settlement of a controversy between private parties.

Ethical Rule (“ER”) 5.6, Arizona Rules of Professional Conduct, Rule 42, Ariz.R.Sup. Ct.

¶ 18 Restrictive covenants between lawyers limit not only their professional autonomy but also the client’s freedom to choose a lawyer. See ER 5.6 cmt. We do not, of course, enact ethical rules for the medical profession, but given the view of the AMA to which we have previously alluded, we believe the principle behind prohibiting restrictive covenants in the legal profession is relevant.

Commercial standards may not be used to evaluate the reasonableness of lawyer restrictive covenants. Strong public policy considerations preclude their applicability. In that sense lawyer restrictions are injurious to the public interest. A client is always entitled to be represented by counsel of his own choosing. The attorney-client relationship is consensual, highly fiduciary on the part of counsel, and he may do nothing which restricts the right of the client to repose confidence in any counsel of his choice. No concept of the practice of law is more deeply rooted.

Dwyer, 336 A.2d at 500.

¶ 19 We therefore conclude that the doctor-patient relationship is special and entitled to unique protection. It cannot be easily or accurately compared to relationships in the commercial context. In light of the great public policy interest involved in covenants not to compete between physicians, each agreement will be strictly construed for reasonableness. 1

D. Reasonableness of covenant

¶20 Reasonableness is a fact-intensive inquiry that depends on the totality of the circumstances. Bryceland, 160 Ariz. at 217, 772 P.2d at 40 (“Each case hinges on its own particular facts.”); Olliver/Pilcher Ins., 148 Ariz. at 532, 715 P.2d at 1220. A restriction is unreasonable and thus will not be enforced: (1) if the restraint is greater than necessary to protect the employer’s legitimate interest; or (2) if that interest is outweighed by the hardship to the employee and the likely injury to the public. See Restatement § 188 cmt. a.; see also Blake, supra, 73 Harv. L. Rev. at 648-49; Ferdinand S. Tinio, Annotation, Validity and Construction of Contractual Restrictions on Right of Medical Practitioner to Practice, Incident to Partnership Agreement, 62 A.L.R.3d 970, 984 (1975). Thus, in the present case, the reasonableness inquiry requires us to examine the interests of the employer, employee, patients, and public in general. See 62 A.L.R.3d at 976; see also Peairs, 164 Ariz. at 57, 790 P.2d at 755; Amex Distrib. Co., 150 Ariz. at 514, 724 P.2d at 600 (accommodating right to work, right to contract, and public’s right to competition); see generally Blake, supra. Balancing these competing interests is no easy task and no exact formula can be used. See Restatement § 188 cmt. a.

¶ 21 In holding this restrictive covenant enforceable, the court of appeals relied heavily on Peairs, noting the restriction here was “very similar to the one in Peairs, which restricted a doctor from practicing orthopedic medicine and surgery within a five-mile radius of each of three offices for three years.” Valley Med. Specialists, 190 Ariz. at 567, 950 P.2d at 1188. As noted, however, each case must be decided on its own unique facts. Bryceland, 160 Ariz. at 217, 772 P.2d at 40. Here, the facts are sufficiently distinguishable from Peairs to warrant different treatment. For instance, in Peairs the three offices were “clustered,” and the total restricted area was thus much smaller. 164 Ariz. at 60, 790 P.2d at 758. The Peairs restrictive covenant prevented the practice of “orthopedic medicine and surgery.” Id. at 56, 790 P.2d at 754. Here, however, the covenant prohibited Dr. Farber from providing any and all forms of “medical care,” including not only pulmonology, but emergency medicine, brachytherapy treatment, and HIV-positive and AIDS patient care. *370 Finally, the trial court in Peairs granted the preliminary injunction, while the trial court here denied it. Because we review the grant or denial of a preliminary injunction for abuse of discretion, the trial judge’s ruling after hearing the evidence in both cases is another factor that distinguishes the two cases.

E. VMS’s protectable interest

¶22 VMS contends, and the court of appeals agreed, that it has a protectable interest in its patients and referral sources. In the commercial context, it is clear that employers have a legitimate interest in retaining their customer base. See, e.g., Bryceland, 160 Ariz. at 217, 772 P.2d at 40. “The employer’s point of view is that the company’s clientele is an asset of value which has been acquired by virtue of effort and expenditures over a period of time, and which should be protected as a form of property.” Blake, supra, 73 Harv. L. Rev. at 654. In the medical context, however, the personal relationship between doctor and patient, as well as the patient’s freedom to see a particular doctor, affects the extent of the employer’s interest. See Ohio Urology Inc., 594 N.E.2d at 1031-32. “The practice of a physician is a thing so purely personal, depending so absolutely on the confidence reposed in his personal skill and ability, that when he ceases to exist it necessarily ceases also____” Mandeville, 7 A. at 40-41 (holding medical practice’s patient base is not protectable interest); see also Berg, supra, 45 Rutgers L. Rev. at 17.

¶ 23 Even in the commercial context, the employer’s interest in its customer base is balanced with the employee’s right to the customers. Where the employee took an active role and brought customers with him or her to the job, courts are more reluctant to enforce restrictive covenants. Blake, supra, 73 Harv. L. Rev. at 664, 667. Dr. Farber was a pulmonologist. He did not learn his skills from VMS. Restrictive covenants are designed to protect an employer’s customer base by preventing “a skilled employee from leaving an employer and, based on his skill acquired from that employment, luring away the employer’s clients or business while the employer is vulnerable — that is — before the employer has had a chance to replace the employee with someone qualified to do the job.” Bryceland, 160 Ariz. at 217, 772 P.2d at 40. These facts support the trial judge’s conclusion that VMS’s interest in protecting its patient base was outweighed by other factors.

¶ 24 We agree with VMS, however, that it has a protectable interest in its referral sources. See Medical Specialists, Inc. v. Sleweon, 652 N.E.2d 517, 523 (Ind.App.1995) (“Clearly, the continued success of [a specialty] practice, which is dependent upon patient referrals, is a legitimate interest worthy of protection.”); Ballesteros v. Johnson, 812 S.W.2d 217, 223 (Mo.App.1991).

F. Scope of the restrictive covenant

¶25 The restriction cannot be greater than necessary to protect VMS’s legitimate interests. A restraint’s scope is defined by its duration and geographic area. The frequency of contact between doctors and their patients affects the permissible length of the restraint. Blake, supra, 73 Harv. L. Rev. at 659. The • idea is to give the employer a reasonable amount of time to overcome the former employee’s loss, usually by hiring a replacement and giving that replacement time to establish a working relationship. Id. Even in the commercial context, “[w]hen the restraint is for the purpose of protecting customer relationships, its duration is reasonable only if it is no longer than necessary for the employer to put a new man on the job and for the new employee to have a reasonable opportunity to demonstrate his effectiveness to the customers.” Amex Distrib. Co., 150 Ariz. at 518, 724 P.2d at 604 (quoting Blake, supra, 73 Harv. L. Rev. at 677).

¶26 In this case, the trial judge found that the three-year period was an unreasonable duration because

all of the experts agree that the practice of pulmonology entails treating patients with chronic conditions which require more hos.pital care than office care and which requires regular contact with the treating physician at least once within each six-month period so that any provision over six months is onerous and unnecessary to pro *371 tect VMS’s economic interests where virtually all of Dr. Farber’s VMS patients had an opportunity by late 1994 or early 1995 (Farber left September 12, 1994) to decide which pulmonologist ... they would consult for their ongoing treatment!!]

On this record, we cannot say this factual finding was clearly erroneous. The three-year duration is unreasonable.

¶27 The activity prohibited by the restraint also defines the covenant’s scope. The restraint must be limited to the particular speciality of the present employment. See Blake, supra, 73 Harv. L. Rev. at 676. On its face, the restriction here is not limited to internal medicine or even pulmonology. It precludes any type of practice, even in fields that do not compete with VMS. Thus, we agree with the trial judge that this restriction is too broad. Compare Peairs, 164 Ariz. at 56, 790 P.2d at 754 (upholding injunction that enforced restrictive covenant preventing doctor from practicing only orthopaedic medicine and orthopaedic surgery).

G. Public policy

¶ 28 The court of appeals held that the restrictive covenant does not violate public policy, pointing out that the record contains nothing to suggest there will be a lack of pulmonologists in the restricted area if Dr. Farber is precluded from practicing there. Even if we assume other pulmonologists will be available to cover Dr. Farber’s patients, we disagree with this view. It ignores the significant interests of individual patients within the restricted area. Kafker, supra, 31 Am. Bus. L.J. at 39-40. A court must evaluate the extent to which enforcing the covenant would foreclose patients from seeing the departing physician if they desire to do so. See Karlin, 390 A.2d at 1170; see also AMA Opinions, Section 9.06.

¶ 29 Concluding that patients’ right to see the doctor of their choice is entitled to substantial protection, VMS’s protectable interests here are comparatively minimal. See Berg, supra, 45 Rutgers L. Rev. at 15-36. The geographic scope of this covenant encompasses approximately 235 square miles, making it very difficult for Dr. Farber’s existing patients to continue treatment with him if they so desire. After six days of testimony, the trial judge concluded that this restrictive covenant was unreasonably broad and against public policy. Specifically, the judge found:

(1) the three year duration was unreasonable because pulmonology patients typically require contact with the treating physician once every six months. Thus, a restriction over six months is unnecessary to protect VMS’s economic interests. Patients would have had opportunity within approximately six months to decide which doctor to see for continuing treatment;

(2) the five mile radius was unreasonable because with the three offices, the restriction covered more than 235 square miles;

(3) the restriction was unreasonable because it did not expressly provide for an exception for emergency medical treatment;

(4) the restriction was overly broad because it is not limited to pulmonology;

(5) the covenant violates public policy because of the sensitive and personal nature of the doctor-patient relationship.

Given the facts and the principles discussed, that finding is well supported factually and legally.

H. Severance — the blue pencil rule

¶ 30 This contract contains a severance clause. 2 The court of appeals ac *372 cepted a stipulation by VMS that the restriction would not prohibit Dr. Farber from treating HIV-positive and AIDS patients or from performing brachytherapy. On its face, however, the restriction is broader than that, restricting him from providing “medical care or medical assistance for any person or persons who were patients or [sic] Employer during the period that Employee was in the hire of Employer.” Arizona courts will “blue pencil” restrictive covenants, eliminating grammatically severable, unreasonable provisions. See Amex Distrib. Co., 150 Ariz. at 514, 724 P.2d at 600; Olliver/Pilcher Ins., 148 Ariz. at 533, 715 P.2d at 1221 (“If it is clear from its terms that a contract was intended to be severable, the court can enforce the lawful part and ignore the unlawful part.”). Here, however, the modifications go further than cutting grammatically severable portions. The court of appeals, in essence, rewrote the agreement in an attempt to make it enforceable. This goes too far. “Where the severability of the agreement is not evident from the contract itself, the court cannot create a new agreement for the parties to uphold the contract.” Olliver/Pilcher Ins., 148 Ariz. at 533, 715 P.2d at 1221.

¶31 Even the blue pencil rule has its critics. For every agreement that makes its way to court, many more do not. Thus, the words of the covenant have an in terrorem effect on departing employees. See Blake, supra, 73 Harv. L. Rev. at 682-83. Employers may therefore create ominous covenants, knowing that if the words are challenged, courts will modify the agreement to make it enforceable. Id. Although we will tolerate ignoring severable portions of a covenant to make it more reasonable, we will not permit courts to add terms or rewrite provisions.

¶ 32 In modifying the agreement, the court of appeals cited Peairs, which indeed allowed the trial court to alter the restrictive covenant in a contract “between medical professionals whose services are necessary for the welfare of the public.” 164 Ariz. at 61, 790 P.2d at 759. We disapprove of the portion of Peairs that permits courts to rewrite and create a restrictive covenant significantly different from that created by the parties.

CONCLUSION

¶33 We hold that the restrictive covenant between Dr. Farber and VMS cannot be enforced. Valley Medical Specialists’ interest in enforcing the restriction is outweighed by the likely injury to patients and the public in general. See Restatement § 188. In so holding, we need not reach the question of the hardship imposed on Dr. Farber. The public policy implications here are enough to invalidate this particular agreement. We stop short of holding that restrictive covenants between physicians will never be enforced, but caution that such restrictions will be strictly construed. The burden is on the party wishing to enforce the covenant to demonstrate that the restraint is no greater than necessary to protect the employer’s legitimate interest, and that such interest is not outweighed by the hardship to the employee and the likely injury to the public. Here VMS has not met that burden. The restriction fails because its public policy implications outweigh the legitimate interests of VMS.

¶ 34 Dr. Farber listed in his petition for review several issues “presented to, but not decided by, the court of appeals.” Valley Medical Specialists’ response also contained “additional issues if the court accepts review.” None of the issues were briefed in this court. We thus remand to the court of appeals for a determination of those issues that are capable of decision and still need to be decided.

QUINN, Associate Judge.

Appellant, a person of limited education separated from her husband, is maintaining herself and her seven children by means of public assistance. During the period 1957-1962 she had a continuous course of dealings with appellee from which she purchased many household articles on the installment plan. These included sheets, curtains, rugs, chairs, a chest of drawers, beds, mattresses, a washing machine, and a stereo set. In 1963 appellee filed a complaint in replevin for possession of all the items purchased by appellant, alleging that her payments were in default and that it retained title to the goods according to the sales contracts. By the writ of replevin appellee obtained a bed, chest of drawers, washing machine, and the stereo set. After hearing testimony and examining the contracts, the trial court entered judgment for appellee.

Appellant’s principal contentions on appeal are (1) there was a lack of meeting of the minds, and (2) the contracts were against public policy.

Appellant signed fourteen contracts in all. They were approximately six inches in length and each contained a long paragraph in extremely fine print. One of the sentences in this paragraph provided that payments, after the first purchase, were to be prorated on all purchases then outstanding. Mathematically, this had the effect of keeping a balance due on all items until the time balance was completely eliminated. It meant that title to the first purchase, remained in appellee until the fourteenth purchase, made some five years later, was fully paid.

At trial appellant testified that she understood the agreements to mean that when payments on the running account were sufficient to balance the amount due on an individual item, the item became hers. She testified that most of the purchases were made at her home; that the contracts were signed in blank; that she did not read the instruments; and that she was not provided with a copy. She admitted, however, that she did not ask anyone to read or explain the contracts to her.

*916We have stated that “one who refrains from reading a contract and in conscious ignorance of its terms voluntarily assents thereto will not be relieved from his bad bargain.” Bob Wilson, Inc. v. Swann, D.C.Mun.App., 168 A.2d 198, 199 (1961). “One who signs a contract has a duty to read it and is obligated according to its terms.” Hollywood Credit Clothing Co. v. Gibson, D.C.App., 188 A.2d 348, 349 (1963). “It is as much the duty of a person who cannot read the language in which a contract is written to have someone read it to him before he signs it, as it is the duty of one who can read to peruse it himself before signing it.” Stern v. Moneyweight Scale Co., 42 App.D.C. 162, 165 (1914).

A careful review of the record shows that appellant’s assent was not obtained “by fraud or even misrepresentation falling short of fraud.” Hollywood Credit Clothing Co. v. Gibson, supra. This is not a case of mutual misunderstanding but a unilateral mistake. Under these circumstances, appellant’s first contention is without merit.

Appellant’s second argument presents a more serious question. The record reveals that prior to the last purchase appellant had reduced the balance in her account to $164. The last purchase, a stereo set, raised the balance due to $678. Significantly, at the time of this and the preceding purchases, appellee was aware of appellant’s financial position. The reverse side of the stereo contract listed the name of appellant’s social worker and her $218 monthly stipend from the government. Nevertheless, with full knowledge that appellant had to feed, clothe and support both herself and seven children on this amount, appellee sold her a $514 stereo set.

We cannot condemn too strongly appellee’s conduct. It raises serious questions of sharp practice and irresponsible business dealings. A review of the legislation in the District of Columbia affecting retail sales and the pertinent decisions of the highest court in this jurisdiction disclose, however, no ground upon which this court can declare the contracts in question contrary to public policy. We note that were the Maryland Retail Installment Sales Act, Art. 83 §§ 128-153, or its equivalent, in force in the District of Columbia, we could grant appellant appropriate relief. We think Congress should consider corrective legislation to protect the public from such exploitive contracts as were utilized in the case at bar.

Affirmed.

J. SHELLY WRIGHT, Circuit Judge:

Appellee, Walker-Thomas Furniture Company, operates a retail furniture store in the District of Columbia. During the period from 1957 to 1962 each appellant in these cases purchased a number of household items from Walker-Thomas, for which payment was to be made in installments. The terms of each purchase were contained in a printed form contract which set forth the value of the purchased item and purported to lease the item to appellant for a stipulated monthly rent payment. The contract then provided, in substance, that title would remain in Walker-Thomas until the total of all the monthly payments made equaled the stated value of the item, at which time appellants could take title. In the event of a default in the payment of any monthly installment, Walker-Thomas could repossess the item.

The contract further provided that “the amount of each periodical installment payment to be made by [purchaser] to the Company under this present lease shall be inclusive of and not in addition to the amount of each installment payment to be made by [purchaser] under such prior leases, bills or accounts; and all payments now and hereafter made by [:purchaser] shall be credited pro rata on all outstanding leases, bills and accounts due the Company by [purchaser] at the time each such payment is made.” Emphasis added.) The effect of this rather obscure provision was to keep a balance due on every item purchased until the balance due on all items, whenever purchased, was liquidated. As a result, the debt incurred at the time of purchase of each item was secured by the right to repossess all the items previously purchased by the same purchaser, and each new item purchased automatically became subject to a security interest arising out of the previous dealings.

On May 12, 1962, appellant Thorne purchased an item described as a Daveno, three tables, and two lamps, having total stated value of $391.10. Shortly thereafter, he defaulted on his monthly payments and appellee sought to replevy all the items purchased since the first transaction in 1958. Similarly, on April 17, 1962, appellant Williams bought a stereo set of stated value of $514.95.1 She too defaulted shortly thereafter, and appellee sought to replevy all the items purchased since December, 1957. The Court of General Sessions granted judgment for appellee. The District of Columbia Court of Appeals affirmed, and we granted appellants’ motion for leave to appeal to this court.

Appellants’ principal contention, rejected by both the trial and the appellate courts below, is that these contracts, or at least some of them, are unconscionable and, hence, not enforceable. In its opin*448ion in Williams v. Walker-Thomas Furniture Company, 198 A.2d 914, 916 (1964), the District of Columbia Court of Appeals explained its rejection of this contention as follows:

“Appellant’s second argument presents a more serious question. The record reveals that prior to the last purchase appellant had reduced the balance in her account to $164. The last purchase, a stereo set, raised the balance due to $678. Significantly, at the time of this and the preceding ■ purchases, appellee was aware of appellant’s financial position. The reverse side of the stereo contract listed the name of appellant’s social worker and her $218 monthly stipend from the government. Nevertheless, with full knowledge that appellant had to feed, clothe and support both herself and seven children on this amount, appellee sold her a $514 stereo set.

“We cannot condemn too strongly appellee’s conduct. It raises serious questions of sharp practice and irresponsible business dealings. A review of the legislation in the District of Columbia affecting retail sales and the pertinent decisions of the highest court in this jurisdiction disclose, however, no ground upon which this court can declare the contracts in question contrary to public policy. We note that were the Maryland Retail Installment Sales Act, Art. 83 §§ 128-153, or its equivalent, in force in the District of Columbia, we could grant appellant appropriate relief. We think Congress should consider corrective legislation to protect the public from such exploitive contracts as were utilized in the case at bar.”

We do not agree that the court lacked the power to refuse enforcement to contracts found to be unconscionable. In other jurisdictions, it has been held as a matter of common law that unconscionable contracts are not enforceable.2 While no decision of this court so holding has been found, the notion that an unconscionable bargain should not be given full enforcement is by no means novel. In Scott v. United States, 79 U.S. (12 Wall.) 443, 445, 20 L.Ed. 438 (1870), the Supreme Court stated:

“ * * * If a contract be unreasonable and unconscionable, but not void for fraud, a court of law will give to the party who sues for its breach damages, not according to its letter, but only such as he is equitably entitled to. * * * ”3

Since we have never adopted or rejected such a rule,4 the question here presented is actually one of first impression.

Congress has recently enacted the Uniform Commercial Code, which specifically provides that the court may refuse to enforce a contract which it finds to be unconscionable at the time it was made. 28 D.C.Code § 2-302 (Supp. IV 1965). The enactment of this section, which occurred subsequent to the contracts here in suit, does not mean that *449the common law of the District of Columbia was otherwise at the time of enactment, nor does it preclude the court from adopting a similar rule in the exercise of its powers to develop the common law for the District of Columbia. In fact, in view of the absence of prior authority on the point, we consider the congressional adoption of § 2-302 persuasive authority for following the rationale of the cases from which the section is explicitly derived.5 Accordingly, we hold that where the element of unconscionability is present at the time a contract is made, the contract should not be enforced.

Unconscionability has generally been recognized to include an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party.6 Whether a meaningful choice is present in a particular case can only be determined by consideration of all the circumstances surrounding the transaction. In many cases the meaningfulness of the choice is negated by a gross inequality of bargaining power.7 The manner in which the contract was entered is also relevant to this consideration. Did each party to the contract, considering his obvious education or lack of it, have a reasonable opportunity to understand the terms of the contract, or were the important terms hidden in a maze of fine print and minimized by deceptive sales practices? Ordinarily, one who signs an agreement without full knowledge of its terms might be held to assume the risk that he has entered a one-sided bargain.8 But when a party of little bargaining power, and hence little real choice, signs a commercially unreasonable contract with little or no knowledge of its terms, it is hardly likely that his consent, or even an objective manifestation of his consent, was ever given to all the terms. In such a case the usual rule that the terms of the *450agreement are not to be questioned9 should be abandoned and the court should consider whether the terms of the contract are so unfair that enforcement should be withheld.10

In determining reasonableness or fairness, the primary concern must be with the terms of the contract considered in light of the circumstances existing when the contract was made. The test is not simple, nor can it be mechanically applied. The terms are to be considered “in the light of the general commercial background and the commercial needs of the particular trade or ease.”11 Corbin suggests the test' as being whether the terms are “so extreme as to appear unconscionable according to the mores and business practices of the time and place.” 1 Corbin, op. cit. supra Note 2.12 We think this formulation correctly states the test to be applied in those cases where no meaningful choice was exercised upon entering the contract.

Because the trial court and the appellate court did not feel that enforcement could be refused, no findings were made on the possible unconscionability of the contracts in these cases. Since the record is not sufficient for our deciding the issue as a matter of law, the cases must be remanded to the trial court for further proceedings.

So ordered.

DANAHER, Circuit Judge

(dissenting) :

The District of Columbia Court of Appeals obviously was as unhappy about the situation here presented as any of us can possibly be. Its opinion in the Williams case, quoted in the majority text, concludes: “We think Congress should consider corrective legislation to protect the public from such exploitive contracts as were utilized in the case at bar.”

My view is thus summed up by an able court which made no finding that there had actually been sharp practice. Rather the appellant seems to have known precisely where she stood.

There are many aspects of public policy here involved. What is a luxury to some may seem an outright necessity to others. Is public oversight to be required of the expenditures of relief funds? A washing machine, e. g., in the hands of a relief client might become a fruitful source of income. Many relief clients may well need credit, and certain business establishments will take long chances on the sale of items, expecting their pricing policies will afford a degree of protection commensurate with the risk. Perhaps a remedy when necessary will be found within the provisions of the “Loan Shark” law, D.C.Code §§ 26-601 et seq. (1961).

I mention such matters only to emphasize the desirability of a cautious approach to any such problem, particularly since the law for so long has allowed parties such great latitude in making their own contracts. I dare say there must annually be thousands upon thousands of installment credit transactions in this jurisdiction, and one can only speculate *451as to the efféct the decision in these cases will have.1

I join the District of Columbia Court of Appeals in its disposition of the issues.