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T H E P R I M E R U S P A R A D I G M
Be Careful What You Type:
The Evolving Role of Emails in Contract Litigation
With a few swift clicks of the keyboard,
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,
from employees charged with the task to
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.
Signatures: From Pen and Paper
to Keystrokes and Inboxes
The contract signature requirement
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
be enforceable.
1
These included contracts
for marriage, for services that by their
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.
2
However, over time, a number of
exceptions developed. In most states,
only the material terms of a contract must
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
"gap filler."
3
For services, this means
the identification of the parties, the
service and timing sufficient for a court
to determine the parties' intent.
4
Thus,
not all terms need be in writing or, if in
writing, signed by either party.
A number of legal defenses also
developed to match commercial realities.
These include admission by the party
opponent,
5
partial performance consistent
with the terms of the alleged contract
and promissory estoppel.
6
Additionally,
between merchants that is, parties
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).
8
With the advancement of electronic
communication, it was only natural for
North America United States
Thomas G. Cardelli is a board certified civil trial lawyer with
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
truck litigation.
Jennifer M. Paine is a civil and domestic litigation attorney
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.
Cardelli Lanfear P.C.
322 West Lincoln
Royal Oak, Michigan 48067
248.850.2179 Phone
248.544.1191 Fax
tcardelli@cardellilaw.com
jpaine@cardellilaw.com
cardellilaw.com
Thomas G. Cardelli
Jennifer M. Paine