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Signed, Sealed and Delivered – Documents in the Information Age

The world has been immersed in the Information Age (a/k/a the Digital Age) for decades now.  By way of example, the Texas Uniform Electronic Transactions Act governing electronic contracts passed legislation in 2001 (effective 2002) and received little attention at the time.  The purpose of such legislation was to encourage and facilitate commerce by validating records and signatures between parties who agree to such methods.  Some of the more revolutionary aspects of this development are acceptance of electronic signature, electronic documents and e-mails.  These new concepts are loved and hated; incredibly convenient and still widely misunderstood.

Oftentimes individuals consider e-mails to be informal, non-binding communications and therefore do not give proper consideration to what are easily considered offers, counter-offers or other agreements.  If a rogue e-mail never sees the inside of a courtroom then no harm, no foul.  However, many of these communications are technically binding and enforceable against the sender and therefore, people should be cautious of casually negotiating deals over e-mail.

Some pertinent parts of the Texas Uniform Electronic Transactions Act are:

  • It does not apply to certain transactions such as wills, codicils, testamentary trusts and provisions of the Uniform Commercial Code (except sections related to sales and leasing to which it does apply).
  • It applies only to transactions between parties who have agreed to conduct transactions by electronic means; this agreement does not have to be explicit and can be inferred by context and circumstances.
  • An electronic signature can be “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”.
  • If a law requires only that an instrument be in writing and/or signed, then an electronic instrument or electronic signature satisfies that law.
  • Courts have regularly interpreted the Act such that an e-mail is “signed” if the person’s name is typed at the bottom, included in the e-mail address or has a header with the name of the sender.

In summary, it is good practice to ensure that if an e-mail has any possible perception of being an offer, counter-offer or other agreement that the drafter should clearly disclaim if such communication is not meant to be the final form of the agreement and that no party should act in reliance on the email.  Something this simple could potentially avoid a misunderstanding and unnecessary litigation.

 

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