Practical Law

In Neocleous v Rees a court found that an automatically generated email footer (containing the name and contact details of the sender) constituted a signature for the purposes of the legal requirement that a contract for the sale or disposal of an interest in land must be signed by or on behalf of each party. The judge said that the footer was included in the email as the result of a conscious decision to include it and the recipient had no reason to think that the presence of the name as a signature was unknown to the sender. The fact that the sender had used the words “Many Thanks” before the footer showed an intention to connect his name in the footer with the contents of the email.

Emails have, for some time now, been the primary method of communication between parties to commercial transactions with many organisations becoming “paper free” or “paper light”. This has its advantages and disadvantages. There is a rumour that in the 12 months following a decision to go “paper free” by a large company in the transport sector, the organisation’s use of paper quadrupled. People were printing out documents because (in the days when screen resolution was not what it is now) they preferred to read a hard copy. They then shredded the paper so as not to offend the “tidy desk” policy. If the document needed to be reviewed at a later date, it was printed again, and again and again…

One of the problems with email is the dedicated inbox that can only be accessed by the recipient. An email sent to somebody who is on holiday might get an automated reply boldly declaring that “I will not be reviewing emails” but this does not mean that the message has not been sent. In the old days, paper versions of legal proceedings were sometimes posted immediately before the Christmas holidays in the hope that nobody would open the post until after the time for acknowledgement of service had to be filed – resulting in a default judgment. As a young lawyer, I was occasionally given keys to various client offices over the holiday period and asked to check for any legal proceedings served by post. This was known as “writ patrol”.  It then morphed into “adjudication patrol” after the Construction Act 1996 came into force.

Carrying out these patrols with multiple email inboxes is not really practical, so many organisations (particularly in-house legal departments) started putting notices in their communications and contracts that the service of legal proceedings was not accepted by email. This was expanded to provisions in agreements stating that contractual notices (especially those requiring a response within a specific period of time) could not be sent by email.

The Neocleous case got me thinking whether people will start adding some extra words to their auto-signature saying that the signature is not a “signature” for the purposes of land transactions. This might be extended to all contracts including construction contracts, some of which are entered into accidentally, incompletely or not all – leading to the Scheme for Construction Contracts 1998 applying or even a quantum meruit claim.

Although lawyers would obviously prefer contracts to be entered into “properly”, such a statement in an email would be a double-edged sword. It would be difficult to predict in advance whether (under future circumstances) you would (or would not) want a particular email to be capable of concluding the contract. For many, I think that this idea will be dropped into the “too difficult box”.

As email becomes a bit “last century”, I wonder if we will see the same discussions in relation to the messaging capabilities of social media, texting, WhatsApp and the like.

These are clearly the days of the advent of electronic contracts and signatures but the process is by no means complete. Interesting times. More to follow.

In the meantime let’s heed the warning from Tom Tom Club by saying what we mean and meaning what we say.