E-commerce lawyers got ridiculously excited a few weeks ago by a rare UK court case about email signatures, fully reported in today's Times. Most of us have email disclaimers and quite often auto-signatures at the bottom of emails, but what impact do they actually have legally?
Nilesh Mehta asked a colleague to send an email to solicitors acting for the claimant in a case relating to the supply of bedding products, asking for an adjoinment and offering a personal guarantee of £25,000.
There was no signature within the text of the email, but when received it did contain Mr Mehta's email address at AOL. When Mr Mehta refused to pay under the guarantee on the basis that there was no signed agreement (such a guarantee must be in writing and signed by the guarantor in order to be binding), the claimants argued that as there was an email containing an email address, that was sufficient.
When Mr Mehta asked his colleague to send the email, he knew his email address would be added to the email, and therefore knew the address would appear on the copy received by the claimant's solicitors.
The judge accepted that the email was sufficient to constitute a document in writing and considered a previous case which said that if something was inserted into a document with a view to giving authenticity to it, that could be a signature. However, as Mr Mehta's email address was inserted automatically by the internet service provider, the judge ruled that it was not sufficient to comprise a signature.
It is possible, although not completely clear, that the same would apply to all automatically inserted email signatures, regardless of whether the sender knew such a signature would be inserted. A key issue will be whether the sender intends an email to form a binding contract.
Whilst the case does not offer the answers some were hoping for, what is clear is that email users should take great care before clicking on send.
Over here on this side of the pond...we have had the ESIGN Act since 2000 (15 US Code s. 7001 et seq) which defines an "electronic signature" as an "electronic sound, symbol, or process, attached to or logically associated with a contract or other records and executed or adopted by a person with the intent to sign the record." So, of course, there's an intent element, but an email address has been held under this act (and under several state's acts) to constitute a binding signature. Indeed, we have been known to advise clients to include an email disclaimer at bottom to the effect of "This email is for informational purposes only and does not constitute the sender's acceptance of a binding contract or modification thereto."
Cheers
Carol Shepherd, Esq
Posted by: Carol Shepherd | June 08, 2006 at 07:58 PM