With the speed of business communications and transactions, an e-mail can create or negate a binding contract. With this in mind, and the casual way many e-mails are drafted and sent, you should take steps to protect your business from an errant or unintended e-mail creating liability.
The legal fundamentals of contract formation, offer, acceptance and consideration (giving or receiving a benefit), are the same for implied, oral or written contracts. Since the law generally treats e-mails, even unsigned, as a writing, you should consider procedures, templates and forms to use for electronic communications and transactions so you can continue to move at higher speeds with lower risks.
Using electronic communication to constitute, confirm or clarify your contracts and commitments avoids later disputes. Standard templates for business communications can help ensure that your e-mails do not inadvertently create liability and that the key provisions of your agreement are known and accepted terms of any deal. Depending on your business, your template can refer to and incorporate standard terms and conditions of your agreements published elsewhere, create customer acknowledgements and electronic signatures, and limit your liability. Disclaimers, warnings and limitations can be consistent and properly disclosed.
If your website is a portal for sales, it should be designed to be secure and complete, with changes recorded and documented, as problems often arise long after the order is placed. Using social media to convey offers or acceptances also has risks that should be evaluated to protect your business. While these platforms give your business greater exposure, they also expose your business to greater risks and regulation.
E-mails can create, negate, evidence and clarify contracts, and clarity, consistency and control are the keys to protecting your business. Electronic communications and social media should streamline your business, and with proper planning they can, and can do so without increasing its risks.
At Brooks, Tarulis & Tibble, LLC, we assist and counsel our clients in commercial opportunities, transactions and disputes. If we can assist you, please contact me.
Douglas C Tibble
dtibble@napervillelaw.com
