Can an email be a binding contract?

Factual Questions
1

I was just wondering if an email between two private parties could ever be
considered a legally binding document/contract?

Say we are casual friends and I bought
something for you at your email request while on vacation and it cost a hundred dollars. Let’s say that you wrote in your email, “just pay for it and I will reimburse you when you get back.”
When I got back off vacation I had it delivered to you and you refused to pay the hundred. So now my question is:

If I had a copy of the entire text of your promissory email to show to a judge, is there any possibility that it would hold up in a court of law as a binding contract so that I could eventually get my money from you?

And no the example above is not mine I just made it up.

Yours truly,
aha

2

WAG: The judge could subpoena your ISP, which could have archived the mail server?

Your brain-in-a-jar,
Myron

Imbibo, ergo sum.

3

According to the UCC, an offer and subsequent acceptance constitutes a legally binding contract.

It is conceivable that e-mail might be used to evidence the terms and conditions of said offer and acceptance.

–Kalél
TheHungerSite.com
“If our lives are indeed the sum-total of the choices we’ve made, then we cannot change who we are; but with every new choice we’re given, we can change who we’re going to be.”

4

An email message would be pretty shaky evidence. It’s incredibly easy to spoof or send messages from phony addresses. I actually exploit that to get around some limitations of my own ISP when I’m not actually connected to the cable modem. My outgoing messages when I’m at work or on the road are sent from a server that I don’t even have an account on.

5

Are you asking if the email could be attributed to someone strongly enough to be used as evidence? As in, if I threatened to kill you in email, would you be able to have me arrested?

Or do you want to know, assuming the email is strongly correlated with the supposed sender, is that enough to make a valid contract.

As for #1, email is pretty hard to forge to make it look like it comes (to the trained eye) from someone specific. It’s trivial to forge untraceable email. If the email originated from your IP address, and your ISP had logs of it (they do), then it would be pretty good proof.

As for the acceptance… Hmmm. I know it could be enough. I get a lot of contracts via email and get paid on completion, but then these people are long-term clients. I’m pretty sure you have to reply via the same means, or in person, to make a contract valid. If I called you to offer, you’d have to call back or talk to me in person, to accept. (Or, to be able to force me to accept your acceptance… if I want you to accept, I wouldn’t fight it.)

But, assuming the email is proven to be from both parties, and you offered and I accepted via email… I think it would be binding. I think you I might have problems forcing you to accept, if for instance, you offer me a contract, then change your mind, but before you tell me, I accept. I think I’d have a hard time forcing you. But, once I accept, especially if you acknowledge, I think it’d be valid. If you entered into the contract knowing that it would be invalid, or intending to break it, I think you could probably be charged with fraud.

But, the example you used doesn’t appear to be a contract. You didn’t get anything for doing this, so it appears to be a friendly offer, not a contract. In a contract both parties must get at least token consideration, hence the cliched $1.

As for really determining ID, if I sign a message with PGP or any similar public key crypto, it’s astronomically unlikely (literally, 10^50th kind of thing) that you could have forged that. You’d have to have stolen my key somehow. So, it’s even better evidence. But I don’t know if digital signatures are yet recognized by US/Canadian courts.

So, mostly guessed, but I hope it helps a bit.

6

a contract can be verbal, written etc. what counts is not the medium but the proof. the paper is just proof and even a written contract can be disputed with the argument that it is forged. If the other party accepts it, then there is no need to prove it. If the other party denies it, then it is up to you to prove it.

If you prove we had a contract (by any means, like witneses) then you have a contract. If you cannot prove it, then, you cannot prove it. if it was by email you could use whatever means you consider the judge would find credible. A printout is better than nothing. The other party could point out you are computer expert and can easily forge it. A digital signature would make a pretty heavy argument for you The judge will make up her own mind as to what side is more credible. But even a verbal contract is a contract if you can prove it. (The statute of frauds requires certain contracts to be in writing of they are void)

7

Some contracts are required to be in writing, such as contracts for land sales. You can research the specifics of that for your state. Whether e-mail would be considered a written contract is, I think, still up in the air. Remember, it isn’t just your computer that holds a record of the e-mail; it often remains on record with your e-mail service.

8

Since I have heard of uncorroborated verbal contracts upeld as legal in court cases (as in, “He said it, your honor”; “No I didn’t, your honor”) at the disgression of a judge, it wouldn’t surprise me if an e-mail coould be admissible as evidence.

I imagine the judge’s personal opinion would come into play for this, as it does with verbal contracts, AFAIK.

Yer pal,
Satan

9

As has been suggested above, there are two issues here: how probative is an e-mail printout of the fact that such an e-mail was sent, and can an offer and acceptance sent by e-mail and supported by valid consideration be a contract?

I think you’re asking the second question.

Dredging up long-suppressed memories of school and civil law… sure. Putting problems of proof aside, it’s just as possible to create a contract by e-mail as it is real mail. (I recall going through endless scenarios in class about when an offer is accepted, what happens if two letters cross in the mail, and so forth.)

Contrary to what someone suggested above, there was most certainly consideration in the OP: the “something” bought for and delivered to the person who had been on vacation. I would say a contract was formed.

Even if it wasn’t, the purchaser could recover under a tort theory of unjust enrichment, maybe, or some sort of promissory estoppel. Right, guys who know civil law better than I?

  • Rick
10

Sure, the aha is providing consideration, but what consideration is the friend providing? I would assume that “reimburse” means “pay face value”, not “pay you for the product and your labor”.

A related question; you know how there are those windows that pop up on some programs and basically say “If you don’t press the ‘agree’ button below, you can’t use this program”? If you press the “agree” button, does that constitute a contract?

11

The Ryan mentioned what I was talking about, there’s no value for the person bringing the thing back. But as Bricker said, there’s bound to be something you can sue about.

TheRyan, I doubt that EULAs are enforceable, but there’s a question about it.

My take on it is that EULAs aren’t shown to the person before they purchase the software, so for one, there’s no consent. Then when you do see the EULA you own the software, and it’s offering you the right to use the software, so because you already OWN it, there’s no consideration. And then they force you to say yes to use what you own, so your agreement is coerced.

There’s probably other reasons it’s not binding too…

The most telling thing, in my opinion, is that the ‘software companies’ (a lobby of MS and a bunch others) is pushing for the UCITA (I think) which will make EULAs binding. This suggests that they doubt they’d hold up in court without a new law.

But, this has many dangerous consequences, if you’re able to agree to a license you’ve never seen, etc.

But as is, no. Except in some cases where you could be expected to know the contents of the agreement before purchase. (The only successful case I know of involved someone who had previously purchased the software and thus would know, but who was also very close to copyright violation, so the court might have been looking at that, not the license.)

So, buy the workstation version of NT and apply the server version registry patch, at this point, I think it’s legal. But, MS could break you, just by throwing lawyers, so it’s probably best to avoid trying, publicly at least.

12

FWIW I have received a few contracts via email. In each case I had to sign the agreement in front of a notary public and send it back by registered mail.
In one case I was told don’t email or FAX it back.
If you want the thing to run smoothly it seems like you wouldn’t want to create a situation that would have to be decided by a judge.

13

I had a website contract with a lawyer. Everything was handled via email. I sent him his final invoice.

And waited. And waited. And sent more copies. And waited. And waited.

He still hasn’t paid, and has told me he won’t pay. He doesn’t “have” to, he claims. He claims now that my trip to gather all the needed info and get a short vacation (we were supposedly “friends,” ha) was my payment for the website, despite the emails where we set up the contract saying definitely otherwise.

And I’m still $1200 short.

14

I know that in certain parts of the financial services industry the contract is only binding once both parties have a physically signed hard-copy, regardless of the medium that the transaction was conducted through (phone, internet etc).

Useful link - Internet contracts - legal issues

Crusoe Takes A Trip

15

Lots of issues here.

  1. Can people enter into a contract through an exchange of e-mails? ** Sure. Contracts can be formed verbally, in writing, by hand signals, or any other communications means possible. There are a few types of agreements that must be in writing under the various statutes of frauds. **

  2. When do the statutes of frauds apply?
    ** Every state that I am familiar with has several of these. Illinois has 5 or 6, IIRC. The three that commonly come up deal with sales of real estate, sales of goods above $500, and guarantys of another person’s debt. **

  3. If a statute of frauds applies, will e-mail count as a writing? ** Probably. Actually, most statutes of frauds don’t require a formal written contract. Instead, there must be “a writing” signed by the person to be bound (in other words, the defendant). That can be a letter or other written communication and I see no reason why an e-mail (if it was sufficiently definite) wouldn’t suffice. (the signature requirement isn’t limited to handwritten signatures.) **

  4. What happens if the defendant denies sending the e-mail or otherwise claims that it has been forged? ** Same thing that would happen if a defendant claimed a written contract was forged or if he denied entering into a verbal contract. The judge (or jury) would consider any supporting evidence that existed and assess each witness’ credibility and make a ruling. **

16

Agree with Ryan’s analysis. There’s no consideration here, and therefore no contract. There are other legal remedies (estoppel, possibly fraud) that might provide a remedy here, though.

Ryan’s question describes a click-wrap agreement. They are generally enforceable. There is a recent case that just came down last month which distinguishes this situation (where the user of the site clicks on the “I agree” button) and a situation where the site presented the conditions of using the site on a separate page, but did not require overt agreement. The court ruled that, under these circumstances, no contract was formed.

17

My overly short to this question is yes.

For decades, contracts have been formed and documented through telegrams and telex. Those are fundamentally no different from e-mails, with many of the same problems of documentation and authenticity that e-mails provide. There is no reason to exclude a contract from being a “written” contract (where written contract is required).

An exception would be those documents or agreements that require a signature before witnesses, a notary, or a written signature to be filed. (Examples include deeds, wills, etc.)

18

Random, that’s my analysis too, no valid contract, thus of course, not enforceable.

You mention that click-wrap licenses are generally enforceable…

If you go to a website, or download shareware, something where you haven’t bought anything and thus have no expectation of being able to use a product freely, then yes, the license probably would be valid because it would be able to offer you use of the site/program.

If you paid for the product before being told about the license, I still maintain that click-throughs are completely unenforceable. I’d be interested in evidence to the contrary though. (In a case where the user had no knowledge of the contents of the contract before purchase.)

19

EXCUSE ME?? What in the world makes y’all think there is no consideration on the part of both parties???

Black’s Law Dictionary

Now, aha is on vacation. He is asked to buy something. His friend promises to repay him when he gets back. Does the fact he doesn’t make a profit on the deal exclude what each does as consideration? Most decidedly not.

Consideration by aha: Promise to buy the item.

Consideration by aha’s friend: Promise to repay aha for the cost of doing so.
Does aha promise to do something he can otherwise refuse to do? Yes. Does his friend promise to do something that induces aha to do what he is promising to do? Yes.
Aha would have the contractural remedy of requiring the reimbursement for breach of contract.

As for other causes of action, what would they be? How would aha’s friend be unjustly enriched if he refuses to pay aha for the item (and, presumably, aha refuses to give it to him)? Where is the fraud?
Consideration is not equal to profit or gain, folks. Failure to understand that is a sure way to a 55 on your final exam. :wink:

20

WhiteNight: Yes, if you own a piece of software, you can do as you darn well please with it. The catch is, that you don’t own most of the software on your computer. In almost all cases anymore, the software company retains ownership of the software itself, and what they sell you is only a license to use a copy of the software. This is also what allows them to crack down on piracy, BTW… If you did own a piece of software (say, for instance, that you wrote it yourself), it’d be perfectly legal, ethical, etc. to get out your CD burner and hand out copies to all your friends.

Anyway, it’s this retention of ownership is what lets the company put in EULAs-- in order to be allowed to use the program, you must purchace the license AND agree to its terms.

“There are only two things that are infinite: The Universe, and human stupidity-- and I’m not sure about the Universe”
–A. Einstein