parts to build axles, despite an email
confirmation between them stating
simply that the buyer agreed to the
seller's attached, unsigned, proposal.
In addition to arguing their email
exchanges were not a "signed writing,"
an argument the court quickly
rejected, the seller claimed the email
exchanges lacked essential terms one
would typically find in an automotive
supply agreement. In turning to
the email chains, spanning several
months, the court concluded the
parties contracted. The court also used
their email discussion to interpret
terms, such as payment productivity,
that the seller alleged were ambiguous
in their email confirmation. While the
parol evidence rule would preclude
evidence of a contemporaneous or
prior oral agreement, the rule did not
preclude parol and unsigned evidence
to establish the parties' intent.
Similarly, UCC §2-202 ("Final
Written Expression: Parol or Extrinsic
Evidence") states that agreed terms
may not be contradicted by evidence
or any prior agreement or of a
contemporaneous oral agreement,
but they may be explained or
supplemented (a) by course of dealing
or usage of trade
the court finds the writing to have
been intended also as a complete and
exclusive statement. Those, too, the
court can glean from emails.
Domino's Pizza.
required agreements to settle lawsuits
to be "subscribed," meaning signed
at the bottom. While the court found
the parties had signed their settlement
electronically, because the purported
agreement lacked a signature at the
bottom of the document for the party
against whom enforcement was sought,
the agreement was unenforceable.
This case serves as a reminder that the
the E-SIGN Act, the UETA and its
counterparts merely render electronic
marks signatures for substantive
law purposes.
can do to avoid an unwanted result.
person's job is to oversee all aspects
of contract formation, from negotiation
to documentation to gathering the
appropriate signatures. This person
may be a member of the legal group,
who works behind the scenes or out
in front, or a member of the business
group, who leads negotiations.
The point is to make one person
responsible for speaking on behalf
of the company when it comes to the
particular contract at hand rather
than a number of people, any one of
whom may incidentally contract.
Conditions. Many of these are carry-
overs from years past, and they may
not specify whether an electronic
signature constitutes a signature. If
they are silent, then emails suffice.
avoid the merchant's confirmation rule.
offer and counter-offer the UCC
"mirror image" acceptance rule.
electronic signature contracts and
require ink signatures. Parties are free
to do so.
and time consuming, consider
a verification software, such as
cryptography, that requires use of
passwords and unique identifiers to
affirm the person electronically signing
is, in fact, that person. Cryptography
is the science of securing information.
It is most commonly associated with
systems that scramble information and
then unscramble it.
letter immediately upon notice of a
potential contract dispute.
to prove the existence of a contract, if
signed, or the meaning of terms otherwise
ambiguous, signed or unsigned. As the
Second Circuit said in Apex Oil Co.
v. Vanguard Oil & Service Co.,
email signatures, "[W]e recognize that we
are permitting a substantial transaction
to be consummated on fragmentary
conversation and documentation.
However, it is the practice in many fields
to transact business quickly and with a
minimum of documentation... Parties
doing business with each other in such
circumstances take the risk that their
conflicting versions of conversations will
be resolved to their disfavor by a fact-
finder whose findings, even if incorrect,
are immune from appellate revision." The
more thorough your saved evidence in
support of your contract, the less risk your
company takes of an unfavorable ruling.
Otherwise, what seemed to be an
easy and efficient way to land that deal
could turn into a cumbersome, laborious
court battle arguing who meant what in
an email.
(1819), pp. 839-42.
26: 329 at 33442.
4 See, e.g., Jag Imperial, LLC v. Literski, 2012-Ohio-2863
6 Restatement (Second) of Contracts § 129.
7 Restatement (Second) of Contracts § 139.
8 UCC 2-201(2).
9 Singleton, S. (March 17, 1999). Privacy Issues In Federal
Wisc. Aug. 5, 2008).
12 See full text at http://www.uncitral.org/pdf/english/texts/
15 See also UCC § 1-205.
16 See also UCC § 2-208.
17 733 NW2d 766 (2006).
18 You can learn more at www.w3.org/Signature.
19 760 F.2d 417 (2d Cir. 1985).