Does email constitute a signed contract?
Posted by Steve Burgess at 5/29/2008 9:06 AM 
Categories: Law, E-Discovery, Real Estate Law, statute of frauds
Categories: Law, E-Discovery, Real Estate Law, statute of frauds
Does email constitute a signed contract?The Statute of Frauds is law with a track record of more than 300 years. Originally passed in England in 1667, the standard requires that contracts of particular type be in writing and be signed. These include contracts such as marriage contracts, wills, goods of a value greater than a given amount, debt guarantors, land transfers, and contracts that will take more than a year to perform. But in the age of email and electronic information, the question arises as to the legitimacy of electronic signatures and email as the basis for satisfying the Statute of Frauds.The Federal government now allows for the use of electronic signatures on student aid applications, tax returns, and SEC filings. Certainly many business agreements are made through websites and electronic mail. But business is usually ahead of the curve vs law, as law must be created to catch up with such innovations after the fact, to deal with disputes.
One court in New York has dealt with the issue (in 2004) by stating that an email exchange that shows a meeting of the minds in a real estate transaction would constitute a contract (although the case in question, Rosenfeld v. Zerneck, was found not to have documented a meeting of the minds due to only one party having signed off on an email, in which he referenced only a spoken agreement).
Since that decision, New York courts and the Supreme Court have had varied interpretations of the Statute holding a times that a types signature at the end of an email is a valid contractual signature, at other times that it is the content of the email or email exchange that indicates intent and approval. The courts have also indicated that instant messages may under some circumstances be considered contractual.
Clearly, courts are still coming to terms with the evolving electronic landscape with regard to contract law. Read more here.
One court in New York has dealt with the issue (in 2004) by stating that an email exchange that shows a meeting of the minds in a real estate transaction would constitute a contract (although the case in question, Rosenfeld v. Zerneck, was found not to have documented a meeting of the minds due to only one party having signed off on an email, in which he referenced only a spoken agreement).
Since that decision, New York courts and the Supreme Court have had varied interpretations of the Statute holding a times that a types signature at the end of an email is a valid contractual signature, at other times that it is the content of the email or email exchange that indicates intent and approval. The courts have also indicated that instant messages may under some circumstances be considered contractual.
Clearly, courts are still coming to terms with the evolving electronic landscape with regard to contract law. Read more here.
A recent Massachusetts Superior Court case serves as an important reminder that parties may amend a contract by their subsequent actions, even if the contract states that it may only be amended in writing. The court held that an exchange of e-mails between parties to a contract constituted a written amendment of the contract, even though the e-mails did not specifically mention the contract itself. As a result, parties to a contract should be cautious about making statements, verbally or by e-mail, that could later be interpreted as a waiver or amendment to the contract.
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Angelina
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I think email can be used as a substitute for the regular signed contracts. With many of the businesses being carried online, emails help in faster communication and faster implementation leading to faster execution. Security wise, email agreements might be a bit vulnerable, but then everyone always checks the authenticity of the party to be collaborated with.
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I hope you don't mind my reviving an old topic.. I have a genuine interest here.
I understand that email *may* be considered binding due to x,y,z circumstances, but my question centers around validity/potential forgery.
Have the courts (or anyone else for that matter) come to grips with a way to ensure that an email is:
a) valid - was it ever actually sent?
b) unaltered - no one has added or removed content
c) authentic - neither party has forged the reply mail of the other
To play devil's advocate for a moment, suppose you claim that an email exchange between us constitutes a binding contract/agreement. Can I not simply deny that the exchange ever took place? How can we prove that you sent me those mails and that I *actually* replied to them?
Thanks for you thoughts,
J.
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J., thanks for your thoughtful questions and sorry for the tardy reply.
Courts and computer forensics experts, including myself, all spend a fair bit of time on all three questions. More often, in my experience, it has to do with whether or not an email was actually sent or whether an attachment was actually attached, or whether these were received by the intended recipient.
Some of the things that get looked at are deleted files, mailboxes, or remnants on the user's hard disk, or sometimes even on a mail server. Often the ISP or service provider is called upon (generally via a subpoena) to authenticate the movement through their network of the email in question. It doesn't always get proven one way or the other. The court or the parties are often looking at the preponderance of evidence to make a judgment call in the absence of hard and fast proof. But the presence of drafts of given emails, especially a missing one found as a deleted file or as a remnant in unallocated space, is often convincing.
As to your specific question, the answer is: sure it can come down to a game of "he said, she said” (or "he said, he said", "they said, we said", etc.). Then we dig through the hard drives, subpoena records of the ISPs, and maybe get some proof or indication. The truth isn't always found, but hopefully enough is to have the case be won on the side of truth.
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Quite inspiring,
emails shouldnt constitute a contract, its just not reliable enough, anybody can just hack into an email account...
Thanks for writing about it
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I think the point is how to determine authenticity. In this case, the judge said the email had the appearance of authenticity as it conformed to other email authentically sent by him. It's an interesting balance - law in the field of electronic communications continues to evolve as fast as it can - slower than the technology certainly, but it pretty much has to lag the technology in order to address it. Still, there are bound to be bad decisions.
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Everyone always checks the authenticity of the party to be collaborated with.
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