In this case, the High Court found that a relatively informal exchange of emails was sufficient to constitute a variation to the contract. The contract included a fairly standard clause which provided that any variation to the contract had to be in writing and signed by or on behalf of both parties. The judge held that email correspondence including standard signature blocks would be sufficient to satisfy the requirements of the clause, providing that the other legal requirements for contract formation and variation (such as intention to create legal relations) were also present.
The judge found they were so satisfied and accordingly the email exchange did constitute a variation to the contract. The clause in question was worded “Any variation of this Agreement shall not be effective unless made in writing and signed by or on behalf of each of the Parties to this Agreement.”
The judge found that it did not require manuscript signatures, paper documents or both parties to have signed the same document. An exchange of emails, where one email contained an auto-signature, were sufficient. Although it was clear from the evidence that the parties had intended to subsequently enter into a formal contract recording the variation, the decision creates the possibility that contracts may be varied unintentionally as a result of email exchanges, and thought should be given to clarifying the requirements for a formal variation when drafting such clauses.
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