I’m wondering how much faith a court will put into an e-mail? Do they disregard them entirely (as they aren’t signed), take them under advisement as evidence but not binding or can an e-mail be as good as a properly signed contract?
The only real difference I see that an e-mail is not hand-signed by the sender so I don’t know how the courts view such documents.
So, if I get the following e-mail can I use it in court? [NOTE: E-mail is totally fictional.]
Now, if I do not pay Harry his $10,000 by the 10[sup]th[/sup] can Harry use this e-mail against me in a lawsuit to collect his money? More to the point does this e-mail constitute a binding contract that I’d be in breach of if I missed the stated pay-by date?
A lot of this depends on the jurisdiction you’re in. A lot of states have enacted Uniform Electronic Transaction laws which give an email a lot of binding force in contracts, etc. IANAL, but the attorneys who advise me have given me specific disclaimers to put in business-related email to make it clear that it is not a contract. In their opinion, I should either specifically deny each email is a contract or assume that it will be taken as such.
For example discussion of UETA in California: http://www.consumersunion.org/finance/899nclcwc.htm
A google search on “Uniform Electronic Transaction” along with your state should turn up more relevant info.
Some points to note: For most contracts, there’s no need for anything to be in writing at all, just a conversation can form a legally enforceable contract. An email is more formal at least than a conversation, so there are probably instances in which a contract can be formed over email.
–Cliffy Esq.
P.S. I am not licensed in your jurisdiction and I am not familiar with the facts in this instance. If this query is motivated by any more than idle curiosity, you should consult an attorney, licensed in your state, conversant with the facts and expert in this particular area of the law. I am none of these things and am not competent to render legal advice in this matter. You are not my client. I am not your lawyer.
It’s a sorry state of affairs that this disclaimer needs to be attached. I’ve been around here long enough to understand this without being told but I suppose you must include it anyway. In fact, it is a sort of answer all its own to the OP…you feel it necessary to be 100% clear that you are not rendering advice in any other fashion than a casual and non-legal way.
You might consider just adding that whole thing to your Signature line as I expect it gets tiresome writing it all the time.
Thanks though! Mostly this was just asked out of idle curiosity. However, I’ve touched on it a few times in real life such that it passes a bit beyond knowing for the sake of knowing and into real world application for me. I promise I won’t sue you over your advice in this matter!
An email may be more formal than a conversation, but it’s also much easier to forge. Most of the complaints about email-based contracts are not concerned with what was said so much as who said it and who received it. If basic email constitutes a valid contract, then I can easily spoof your mail and commit you to anything. In a conversation, we may differ on interpretation of what was said but at least both parties know who they were talking to and that the other person was responsive. By comparison, email is a guy in a mask talking to a guy in a coma.
Of course this is a technical complaint about a legal issue and is typically ignored by the people actually making the laws.
Doesn’t a contract have to have three main parts generally?
(i) Offer;
(ii) Acceptance;
(iii) Consideration (i.e. the offer is for something in return);
IANAL but that email, although covering (i) and (iii), wouldn’t seem to cover (ii) – in other words, you haven’t accepted it either formally or constructively (by which I mean acted in such a way that it reasonably appears that you accepted, such as sending your bank details by reply).
Aside from uses in hiding data from the FBI, encryption technology is used for generating digital signatures. This can guarantee (or virtually guarantee) the authenticity of an email or any electronic file. Suppose you want to generate a legally-binding contract email. You use your private key to add a signature to the email. This signature is based on the contents of the email as well as your private key. Your public key can then be used by anyone to verify that the signature applies to the email, i.e., that YOU generated the email and that it hasn’t been changed. If your business enemy were to change the contents of the email, then using your public key to verify the email would return a different checksum, and everyone would know that the email was altered or forged.
Of course, you need some type of security for your private key. And you should have your keys registered with a trusted source who confirms your identity.
You have the elements correct, but the contract isn’t the piece of paper, it’s the agreement between the two parties. Whether or not there has been offer, acceptance, and consideration depends on whether there has been a “meeting of the minds” and an intention by both parties to be bound by the terms of the agreement. The paper is just a “written commemoration” of the agreement.
Mind you, certain types of contracts absolutely have to be in writing and signed “by the party to be charged” to be enforceable, and you can’t come in and say you agreed on different terms that were on the contract you signed, but still the contact consists of more than just the writing. The writing is still just evidence of your intention to be bound by the terms of the agreement, albeit sometimes irrefutable evidence.
Excellent point.[sup]1[/sup] But note that this doesn’t mean that an email cannot meet the offer/acceptance requirements of most contracts (the legal requirement), it just means that when an email is offered as the only evidence that such a deal was actually made then the existence of the agreement is suspect – not it’s validity.
This is a common problem in the analysis of legal issues, especially by laymen. Any court case is fundamentally about two questions: “Did Dave actually do what Paul says he did?” (the evidentiary question), and “If so, does this make Dave legally liable?” (the legal question). The answer to Whack-A-Mole’s hypothetical would, given the few facts we know, probably be that an email can be a legally sufficient contract if it meets the requirements of offer, acceptance, and consideration, but that is a totally separate question from whether Harry can prove that Whack actually sent the email in question.
**
Not really; it’d be more accurate to state that the law of contracts is centuries older than email and so doesn’t exactly fit (yet) the problems of this new form of communication. But whenever someone sues on a contract allegedly agreed to by email, the defendant is welcome to explain your point to a jury and thereby require the plaintiff to prove (by a preponderance of the evidence) that the email in question was indeed sent by someone who had the authority to send it.
–Cliffy
[sup]1[/sup] Technically a conversation is easier to “forge” in the sense that I could just say “micco and I were talking last night and he admitted he was a pinko.” However, I take your point that, for someone with know-how, it’s easy to make a fake email that seems quite real, while it’s much more difficult to make up a fake conversation that is similarly good at fooling people into thinking it is valid.