A fаmily business dispute caused Saul Simon and his wife Zelda to file a complaint in the Superior Court against Saul’s brother Harold Simon, his wife Jeannine and Back Bay Clothing Company, a corporation controlled by Harold. The complaint, as amended, alleges violation by the defendants of an agreement to purchase certain commercial real estate as partners (the partnership claim) and of a contrаct giving Saul and Zelda the option to rent a portion of that property once purchased (the option claim). The plaintiffs also allege fraud, breach of fiduciary duty, unjust enrichment, negligent misrepresentation, and, inevitably, violation of G. L. c. 93A.
In the cross appeals before us, Saul and Zelda essentially seek review of the allowance of the defendants’ motion for partial summary judgment on the partnership and c. 93A claims and from the direction of verdicts against them with respect to their claims of fraud and breach of fiduciary duty. 3 Harold and Jeannine appeal from a judgment on a jury verdict on the option claim assessing damages in favor of Saul and Zelda in the amount of $453,000 for loss of profits. 4
1.
The factual background.
When Harold and Jeannine had an opportunity to purchase, under a right of first refusal in their lease, the building in which they operated a men’s
Saul and Zelda helped to arrange interim financing for the purchase and actively participated in the acquisition by supplying $50,000 of the initial cash deposit of $150,000 and cosigning a $735,000 promissory note which was partially secured by a mortgage on their home. They allege that on May 31, 1983, the day before they signed the note, Harold told them that he did not want to be partners with them. Harold testified the partnership concept foundered because Saul was unwilling to make additional necessary contributions to the operation and maintenance of the building as the need arose. In any event, the parties agreed in writing, on May 31, 1983, that Harold and Jeannine would pay to Saul and Zelda a total of $250,000 by August 15, 1985, in repayment of the monies advanced by them and in appreciation for their assistance. This agreement, which the plaintiffs testified they entered into in order to maintain family harmony, was intended to supersede the partnership arrangement. Less than a week later, Harold complained to Saul and Zelda that his two-year commitment to pay $250,000 was making him ill with heart palpitations; he thought he was going to have a heart attack. Explaining they “did not want him to die over this,” Saul and Zelda entered into a substitute arrangement, in writing, whereby Harold agreed to arrange for the release of the mortgage on Saul’s and Zelda’s home, repay to them their $50,000 advance, and give them $45,000, as a “finder’s fee,” by August 31, 1983. The repayment and mortgage release were accomplished on time, but the $45,000 finder’s fee remained unpaid for over a year. On February 9, 1985, the parties entered into yet another agreement which provided
“Saul & Zelda get the option to rent the lower level of the Hope Chest store when their (the Hope Chest’s) lease expires. If they do take it, they will pay the same rate of rent per square foot that Harold is paying for his store. Saul & Zelda will do all the fixing up at their expense. Entrаnce to upper level has to be maintained from Newbury Street — similar to how it is now. Saul and Zelda have to let Harold know six month [s] ahead of time: (lease expires by May 31, 1987 so that Saul and Zelda have to let Harold know by Nov. 31 [sz'c], 1986.) Saul and Zelda cannot use the name Simon or Simon’s on anything with the Simon name as a name for their store. Too confusing.”
On September 13, 1985, Harold delivered to Saul and Zelda a check in the amount of $45,000 which сontained a statement generally releasing the defendants of all liability to the plaintiffs. Saul and Zelda endorsed the check, and at the same time, signed and returned to Harold, typewritten general release forms which Harold had submitted to them. Saul was then suffering from severe hearing and vision limitations and when Zelda attempted to “lip read” the release language to him, Harold assured Saul and Zelda that they merely were signing a receipt for the $45,000 payment and that the option remained in effect. A year later, Saul and Zelda unsuccessfully sought to exercise the option. This suit followed.
2.
The defendants’ appeal.
Having preserved the issue in their answer and during trial by their motion for a directed verdict, Harold and Jeannine argue that the option agreement does not comply with the Statute of Frauds
5
and, there
Saul and Zelda correctly do not contest the general applicability of the Statute of Frauds to the option claim. See G. L. c. 259, § 1, Fourth;
Schwanbeck
v.
Federal-Mogul Corp.,
412 Mass 703, 709 (1992) (“[a]ny рromise involving real property is enforceable only if that promise meets the requirements of the Statute of Frauds. . . .”). See also
First Natl. Bank of Boston
v.
Fairhaven Amusement Co.,
Whether a writing satisfies the Statute of Frauds is a question of law. Schwanbeck v. Federal-Mogul Corp., supra at 709-710. It is a court’s function, therefore, to determine what provisions are essential to an agreement sought to be enforced and whether an omitted provision can be supplied by implication. In the absence of a mutual mistake permitting reformation, the omission of an essential term, not supplied by reasonable implication, renders the memorandum insufficient. Restatement (Second) of Contracts § 131 comment g (1979).
In the case of a lease or an agreemеnt to lease, the duration of the leasehold interest is central to that undertaking. “It is an essential element in a lease for a term that there be a demise for a period definitely fixed or at least capable of definite ascertainment.”
Farris
v.
Hershfield,
During the trial, the judge permitted Saul to testify, over objection, to discussions concerning the length of the contemplated lease and instructed the jury that it was their responsibility to determine its term.
6
While attendant circumstances and oral communications may be shown by parol evidеnce to interpret and apply language
used
in a writing,
Tzitzon Realty Co.
v.
Mustonen,
On appeal, Saul and Zelda for the first time claim that the defendants are estopped to deny the enforceability of the option agreement. They rely on trial evidence which reasonably could be construed as supporting the proposition that they risked their home and savings and twice agreed to reduced financial benefits in reliance on Harold’s representation that thе option was theirs. Such evidence, coupled with proof that the defendants’ promise of an option was intended to induce the reactions it elicited and a jury determination that injustice could be avoided only by enforcement of the promise,
Usually, we decline to address an argument that was not preserved at trial.
Royal Indem. Co.
v.
Blakely,
Early in the trial, thе judge indicated that he believed the option document satisfied the Statute of Frauds and that it was for the jury to determine the length of the lease contemplated by the agreement. Having the advantage of that favorable judicial stance, the plaintiffs would have been ill-advised to press an estoppel theory, which, by definition, assumes the facial validity of the Statute of Frauds defense.
Had the judge concluded, as have we, that the writing relied upon by the plaintiffs does not satisfy the Statute of Frauds, the plaintiffs would have had the opportunity to persuade the jury that the defendants, in fairness, nevertheless should be estopped from using the statute to bar their claim. If the jury was so persuaded, they then, untrammeled by the rigid strictures of that statute, could have considered evidence of attendant circumstances and oral communications, such as those set forth in note 6,
supra,
9
to determine whether the parties had defined the essential terms of the lease sufficiently to make binding the option agreement or whether the purported option was too indefinite to enforce. See
Geo W. Wilcox, Inc.
v.
Shell E. Petroleum Prods., Inc.,
3.
The plaintiffs’ appeal,
a.
The partnership claims.
Whatever the status of the partnership agreement prior to the time that Saul and Zelda accepted the check for $45,000, their endorsement of that check, with its broad release language, together with their signing of separate release forms containing similarly broad language, effectively terminated any claim to a proprietary interest in the building. The clear and uncontradicted thrust of the factual allegations in the materiаls properly before the judge at the time of his allowance of the defendants’ motion for summary judgment is that while the option agreement was not encompassed, or intended to be encompassed in the release provisions, any claim to a partnership interest in the building effectively and clearly was released. The averments of fraud and misrepresentation, as they apply to the partnership claims, аre not supported by allegations of specific fact as required by Mass.R.Civ.P. 56(e),
Saul and Zelda unconvincingly attempt to connect and intertwine the partnership agreement with the option agreement to support their contention that there existed between the parties an unexecuted accord. Under their theory, the refusal of Harold and Jeannine to honor the option agreement revived the partnership agreement, notwithstanding the release documents. Sеe
Peters
v.
Wallach,
b.
The G. L. c. 93A claim.
As the judge correctly determined, the parties’ dealings with each other “do not even remotely resemble the usual arm’s-length negotiations encompassed by G. L. c. 93A.” The transactions in issue essentially were private dealings between brothers, strongly influenced by familial impulses, and withоut effect on the public interest. They were, therefore, beyond the reach of G. L. c. 93A.
Newton
v.
Moffie,
c.
Other issues.
Saul and Zelda’s argument that the release was not supported by consideration is belied by the payment of $45,000 in advance of “March, 1986,” the date specified in the February 9, 1985, agreement. Equally unpersuasive is their claim that Harold violated a fiduciary relationship with Saul, since a familial relationship, of itself, does not give rise to fiduciary оbligations.
Kelly
v.
Kelly,
The judgment for the plaintiffs on the breach of contract count is vacated and that claim is remanded for a new trial consistent with this opinion. The judgment for the defendants Harold Simon and Jeannine Simon on all other counts is affirmed. The judgment for the defendant Back Bay Clothing Company, Inc., on all counts is affirmed.
So ordered.
Notes
The judge also directed verdicts on the plaintiffs’ claims of unjust enrichment and negligent misrepresentаtion. The plaintiffs have not argued those claims in their brief. We, therefore, need not pass upon any issues relating to them. Mass.R.A.P. 16(a)(4),
Back Bay Clothing Company joined in the individual defendants’ appeal from the denial of their joint motion for award of costs and counsel fees and participated in this appeal only to the extent of arguing that a directed verdict properly had been entered in its favor. Since the denial of the motion for costs and fees was not argued to us, other than in a brief footnote, without citation to authorities or statutes, we need not review it. Mass.R.A.P. 16(a)(4),
General Laws c. 259, § 1, provides in pertinent part: “No action shall be brought:... Fourth, Upon a contract for the sale of lands, tenements or hereditaments or of any interest in or concerning them; . . . Unless the . . . contract ... is in writing and signed by the party to be charged. . . .”
SauI testified there was a discussion with the defendants to the effect that his rental period would be “ [f] or as long as [Harold] would have his store there” and that “Harold would have his store forever, and that I would have our store forever. . . .” There was also evidence that the defendants’ lease from the prior owner was for a term of fifteen years and that they ultimately leased the basement space to the Bank of Boston for five years with options to extend for up to fifteen years. There was further evidence that a lease between the defendants and Back Bay Clothing Company was entered into after Harold and Jeannine purchased the building. Saul testified that a successful retail business was related to selecting a location where the business would remain for a minimum of fifteen years. Expert testimony was admitted based on the plaintiffs’ prospective loss of profits over a fifteen-year period. Saul testified to prospеctive loss of profits over a twenty-year period.
In both his deposition and trial testimony, Harold acknowledged he had informed Saul and Zelda that their releases did not affect the option agreement. Although the point was not argued to us or at tr.ial, we note that some courts have held this type of admission sufficient to overcome a Statute of Frauds defense. See Shedd, The Judicial Admissions Exception to the Statute оf Frauds: An Update, 12 Whittier L. Rev. 131 (1991). Compare G. L. c. 106, § 2-201(3)(b). Whatever the validity of this approach, it is limited to cases in which the existence of an agreement is otherwise denied by the admitting party and does not address or overcome the absence of essential terms in the admitted agreement.
In
Loranger Constr. Corp.
v.
E.F. Hauserman Co.,
A prerequisite to the consideration of such extrinsic or “parol” evidence is a judicial determination that the entire agreement of the parties was not integrated in the option document and that the evidence is not offered to vary its terms. See
Kesslen Shoe Co.
v.
Philadelphia Fire & Marine Ins. Co.,
The parties extensively argued the question whether the plaintiffs should have been permitted to base their damage claim on proof of lost profits. If reached on retrial, proof of damages may well be reliant on a determination of the length of the lease contemplated by the parties. We, therefore, do not address the issue other than to note that proof of lost profits is permitted to the extent they are established with reasonable certainty.
Eastern Paper Box Co.
v.
Herz Manuf. Corp.,