The Evolving Role of Emails in Contract Litigation
you just landed the deal of your career
a multi-year, multi-million dollar contract.
The accomplishment feels electric, and
congratulations from your coworkers
abound. Unfortunately, the person on
the other end of that email chain did not
intend for you to land the deal, much to
your dismay. The two of you had been
negotiating via email for several weeks,
and it seemed natural to seal the deal
that way. But have you? Will your emails
hold up under scrutiny from the board or,
worse, a judge? And how could you have
ensured your intent to contract was clear
and that both of you were agreeable to
contracting via email in the first place?
Contracting by email is nothing new
to most general counsel. The E-Signature
Act, applicable to interstate dealings,
has been in effect since 2000, and
many states and countries followed soon
thereafter. What is new, however, is the
increasing willingness with which courts
are finding validity in contracts formed
via email, often with parol evidence,
negotiate, but not necessarily sign, them.
Without proper checks and measures
in place, you could find your company in
court litigating over not just who meant
what in an email, but whether a contract
exists at all.
to Keystrokes and Inboxes
is older than our U.S. common law.
Beginning in 1677, and by some accounts
earlier, with an act of English parliament,
certain contracts were required to be in
writing and signed by the party against
whom enforcement was sought, in order to
terms required performance for more
than one year, agreements to transfer
interests in real estate, wills and executor
contracts, sureties and contracts for the
sale of goods over a certain value, to name
a few. Many states codified the rule.
exceptions developed. In most states,
be in writing. For the sale of goods, later
codified in the Uniform Commercial Code,
this means quantity, as all other terms
can be determined using a reasonable
service and timing sufficient for a court
to determine the parties' intent.
writing, signed by either party.
A number of legal defenses also
developed to match commercial realities.
These include admission by the party
and promissory estoppel.
charged with specialized knowledge and/
or regularly dealing in the goods at issue
a letter of confirmation from one merchant
to which the other, having reason to know
of its contents, fails to object within a
reasonable time (typically ten days).
communication, it was only natural for
the National Board of Trial Advocacy. He is a founding member
of Cardelli Lanfear. His practice focuses on complex civil trials,
personal injury, product liability, employment, malpractice/
professional liability, commercial, and school, auto and
with the firm. Her practice focuses on commercial and
insurance litigation, high asset divorce litigation and all areas
of family law. She has been a featured author on Huff Post,
USA Today and the Associated Press.
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