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 be enforceable. 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 "gap filler." 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 opponent, 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 truck litigation. 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. 322 West Lincoln Royal Oak, Michigan 48067 248.544.1191 Fax jpaine@cardellilaw.com cardellilaw.com |