Ink or E-Mail: Now Equally Enforceable

Many people still consider e-mail to be an informal communication method, and, as a result, offers, counter-offers, and various settlement agreements are sent every day with the intention of merely being initial steps in a negotiation process. However, while the majority of what is sent over e-mail will never be seen in a courtroom, some of these proposed agreements are potentially binding and enforceable against their senders. Accordingly, Courts' recent acceptance of email communication as formal correspondence should leave contracting parties wary of casually negotiating legal proposals over e-mail.

Recognition of Electronic Documents

The fact that an e-mail is an electronic document does not prevent it from being enforceable because, under the Uniform Electronic Transactions Act of 1999 (“UETA”), a contract may be enforceable despite the use of an electronic record in its formation.

The UETA was formulated to remove barriers to electronic commerce by validating electronic records and signatures between parties who agree to conduct transactions by electronic means. To the extent that a state has also enacted a digital signature law, UETA is designed to support and complement that statute. Texas adopted UETA in 2001.[1]

Section 332.007(c) of the Texas Business & Commerce Code states that “[i]f a law requires a record to be in writing, an electronic record satisfies the law.”[2] This section further holds that “[i]f a law requires a signature, an electronic signature satisfies the law.”[3] Texas courts have consistently adhered to this statute when considering this issue.[4]

Notably, the issue most often encountered when determining whether e-mails constitute a writing is not whether the e-mails themselves are a writing, but rather if the signature block in an e-mail is sufficient for the email to constitute a signed writing. Under UETA, the legal requirement that a writing be signed can be satisfied with an electronic signature.[5] An “electronic signature” is “an electronic sound, symbol, or process attached to or logically associated with a record and executed or adopted by a person with the intent to sign the record.”[6] An electronic signature is “attributable to a person if it was the act of the person.”[7] The effect of an electronic signature is determined from “the context and surrounding circumstances at the time of its creation, execution, or adoption, including the parties’ agreement, if any, and otherwise as provided by law.”[8]

Recent Precedent Supporting the Use of Electronic Correspondence

In Parks v. Seybold, the appellate court affirmed a jury's finding that e-mails which concluded with “Thank you, Clyde Parks” above a block containing Parks’ full name and contact information sufficiently showed Parks signed the e-mails himself.[9] Parks asserted that because UETA applies only to transactions between parties who each of which have agreed to conduct transactions by electronic means, his signature did not meet the requirements of an electronic signature because there was no evidence of a written or other “independent” agreement showing he agreed to conduct business transactions electronically.[10] The court stressed that whether parties have agreed to conduct transactions by electronic means is a question of fact that is determined from the context and surrounding circumstances, including the parties' conduct.[11] In this regard, the court affirmed the trial court's ruling because it found that the parties' discussions, interactions, and behavior showed they agreed to transact some business electronically.[12]

Additionally, courts nationwide have held that an e-mail is “signed” if the sender's name is on an e-mail,[13] the e-mail is from the sender's e-mail address and closes with the sender's first name,[14] or the e-mail contains a header with the name of the sender, even if it does not contain a typed name at the bottom of the e-mail.[15] Accordingly, courts generally recognize that when there is overwhelming evidence that the parties' e-mails are authentic and that the information contained in them was intended by each to accurately reflect their communications with the other, no particular type of electronic signature is required.

Recommendations for Parties using Email in Negotiations

Texas' adoption of the Uniform Electronic Transactions Act has made the use of e-mail practically indistinguishable from ordinary written instruments. However, courts have required e-mails to contain the signature of the drafter in order for the e-mail to be enforceable. Courts have found that an electronic signature is enforceable if the sender signs off on the e-mail with his name and if it is reasonably apparent from the parties' actions and/or context of their communications that both parties have agreed to conduct transactions electronically. Therefore, drafters and recipients should make sure signatures are clearly distinguishable from the content and contact information block in order to ensure the content communicated through the e-mail correspondence will be enforceable. Additionally, any notion of an offer, counter-offer or terms of a proposed agreement communicated via e-mail that is not meant to be the final means of agreement, should disclaim the negotiations are subject to further amendment or withdrawal. Alternatively, the drafter should disclose within the correspondence that the email is not an offer capable of acceptance, does not evidence an intention to enter into an agreement, has no operative effect until a definitive agreement is signed in writing by both parties, and that no party should act in reliance on the email or any representations of the sender until a definitive agreement is signed in writing by both parties. Following these simple recommendations can save potentially unnecessary litigation over communication which was never meant to be anything resembling a formal negotiation.

[1] See Tex. Bus. & Com. Code § 332.001 – 332.021.

[2] Tex. Bus. & Com. Code § 322.007(c).

[3] See id. at (d).

[4] See, e.g., Parks v. Seybold, No. 05-13-00694-CV, 2015 WL 448178, at *1 9Tex. App.—Dallas, July 23, 2015) (finding that e-mails served as sufficient evidence to uphold an acknowledgment of a debt); United Galvanizing, Inc. v. Imperial Zinc Corp., 2011 WL 11185 (S.D. Tex. Jan. 3, 2011) (exchange of e-mails between contracting parties may satisfy the UCC statute of frauds); D&M Edwards, Inc. v. Bio-Cide Intern., Inc., 2009 WL 102732 (N.D. Tex. Jan. 14, 2009) (e-mail was sufficient to satisfy UCC writing requirement); see also Cloud Corp. v. Hasbro, Inc., 314 F.3d 289, 296 (7th Cir. 2002) (e-mail satisfied UCC's statute of frauds because neither the UCC's words nor its purpose require a handwritten signature).

[5] Tex. Bus. & Com. Code Ann. § 322.007(c), (d); Celmer v. McGarry, 412 S.W.3d 691, 718 (Tex. App.—Dallas 2013, pet. denied).

[6] Tex. Bus. & Com. Code Ann. § 322.007(8).

[7] Id. at § 322.009(a).

[8] Id. at § 322.009(b).

[9] 2015 WL 4481768, at *5; see also Tricon Energy, Ltd. V. Vinmar Int'l, Ltd., No. 4:10-CV-05260, 2011 WL 4424802, at *11 (S.D. Tex. Sept. 21, 2011) aff'd, 718 F.3d 448 (5th Cir. 2013) (finding the fact that an e-mail's drafters typed their full names at the bottom of their e-mails served as evidence of their intent to adopt content of the e-mails as their own writings).

[10] Parks, at *5; Tex. Bus. & Com. Code Ann. § 322.005(b).

[11] Parks, at *5; Id. at (d).

[12] Id.; but see Celmer v. McGarry, 412 S.W.3d 691, 701 (Tex. App.—Dallas 2013), reh'g overruled (Nov. 21, 2013), cert. denied (Apr. 25, 2014) (finding that where one party expressly requested a writing rather than agreeing “to conduct transactions by electronic means” served as evidence to show there was no mutual consent to electronic transactions).

[13] Cloud Corp. v. Hasbro, Inc., 314 F.3d 289, 296 (7th Cir. 2002); see also Lamle v. Mattel, Inc., 394 F.3d 1355, 1362 (Fed. Cir. 2005); Williamson v. Delsener, 874 N.Y.S. 2d 41, 41 (App. Div. 2009); Shattuck v. Kltozbach, 2001 WL 1839720, at *3 (Mass. Super. Dec. 11, 2001).

[14] Copeland Corp. v. Choice Fabricators, Inc., 345 Fed. App'x 74, 77 (6th Cir. 2009).

[15] Int'l Casings Group, Inc. v. Premium Standard Farms, Inc., 358 F. Supp. 2d 863, 873 (W.D. Mo. 2005); see also Dalos v. Novaheadinc, 2008 WL 4182996, at *3 (Ariz. Ct. App. Mar. 18, 2008).