CAN AN EMAIL BE A DOCUMENT WHICH IS IN WRITING AND SIGNED?
1 On the One Hand OF COURSE NOT, get a dictionary.
2 On the other hand, YES OF COURSE IT CAN why would you even ask?
What do words mean?
Always a problem for lawyers. As we know, “When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean—neither more nor less.”
So in order to understand the meaning of words, do we have to use a dictionary? Or do we have to guess what the person using the word thought was its meaning?
Here is a link -Click It -to a case in which Judges reminded themselves of just such a discussion in a case as long ago as 1803. The Freehold of a Pub in Limehouse London, served notice upon the innkeeper who was his tenant, stating that the lease of the premises was over and the Pub had to be vacated.
The Owner stated “I give you notice to quit the premises which you hold of me. . . commonly called . . . the Waterman’s Arms.”
OK but problem. – The presumably wealthy owner must have owned several public houses and got confused as to their names. What he had in mind was to end the tenancy of The Bricklayer’s Arms.
He send the notice to the tenant, at the Bricklayer’s Arms. But the Notice said, get out of the Waterman’s Arms.
The Judges said in 1803 – “By reference to the background, the notice was construed as referring to the Bricklayer’s Arms. The meaning was objectively clear to a reasonable recipient, even though the landlord had used the wrong name.”
So what’s this, used the wrong word? – OK, no problemmmo we can ignore that and pretend you didn’t.
Reginald Perrin, when he was approaching his breakdown, took this approach. He just used the word nearest to hand when the correct one escaped him. The word nearest to hand was usually parsnip. [Sometimes, two – fish slice].
OK so that’s the law, you can use the wrong words as long as we can all work out what you mean.
Yebbut and contrariwise, if the Owner has named the wrong pub, that didn’t matter, but if he had served the notice too late under the terms of the lease, that would matter. Because if a lease says six months, it doesn’t mean six weeks, does it.
“Months” not “weeks”, they’re different words. Oh look, see what I did there.
From the same 1997 case in which the 1803 case was discussed, Lord Hoffman said that ignoring the written terms of an agreement was quite different from using the wrong words. He said “If the clause had said that the notice had to be on blue paper, it would have been no good serving a notice on pink paper, however clear it might have been that the tenant wanted to terminate the lease”
OK so now we all understand, let’s move on.
If I say to you, “can I buy your car tomorrow for £2000.00” and you say “yes, come round at eight to pay me and drive it away”, we have a contract. We might even shake hands, doesn’t matter if we don’t.
But English law has always viewed contracts involving rights in Land as requiring more formality than contracts for cars and goods.
Here is the law for a land contract:-
Section 2 of the Law of Property (Miscellaneous Provisions) Act 1989
“(1) A contract for the sale or other disposition of an interest in land can only be made in writing and only by incorporating all of the terms which the parties have expressly agreed in one document or, where contracts are exchanged, in each.
(3) The documents incorporating the terms or, where contracts are exchanged, one of the documents incorporating them (but not necessarily the same one) must be signed by or on behalf of each party to the contract.
OK, we’ve got that. IN WRITING. In ONE DOCUMENT or in TWO DOCUMENTS EXCHANGED
The law was created in 1989. I was using Lotus Notes in 1989. It enabled me to send emails to a limited number of people in a group all using the same program. The idea that the formalities of a contract for the sale of land as stated above could be met by the transmission of emails would not have held much sway in 1989 I suggest.
So using the Humpty Dumpty definition, should we discover what the words mean by looking to see what was in the minds of the legislators in 1989? If so I’m thinking – written or typed paper, with signatures in ink. Certainly that what I was taught in seminars in 1989.
So how did the Courts decide in This case link here -Click it- when asked whether an email could be a written document and whether it could include a signature?
An email will pass the test of being “in writing” and being “signed” if the “signer” includes in it “their name details with the intention of designating the party to be charged, and for the purpose of making a contract which should be binding”.
So there we are, it has been settled law from as long ago as 2006 that a string of emails which are never actually printed out, can be both in writing and signed.
Even though parliament did not say this, and are presumed not to have used the wrong words in the parsnip sense, nor envisaged this result as even a possibility.
So sometimes, it’s not the words that mean whatever Humpty says he wants them to, – it’s the Law being whatever the Judges decide that acceptable commercial practice requires the Law to be, never mind either the words or the meaning of the relevant statute.
Anyway surely 2006 was long enough ago for the message to get through to everyone, that if you don’t want your email to be capable of being a binding contract in England or Wales , just add the phrase “Subject to Contract”. I mean, you can set it automatically.
Though it may seem a bit odd to your non-lawyer friends if you do, when you email them to say, “See you in the Pub at 6.00 pm – subject to contract.”
Why am I telling you all this? A friend has sent me an email with this link . -Click It- A case where the sending Solicitor intended apparently that his email should not be binding upon his client – but Oh Dear – it was. The full case is here This Link -click it- and it graphically confirms that emails are definitely well worth the paper they’re not written on.
And in spite of what some email services might tell you, once an email has been sent, it’s not retrievable.
And here’s a thought – The Royal Mail is still open for business. -Please Mr Postman- Click here
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