From ASOS orders to WhatsApp threads, it’s safe to say that we (at least us gen Ys) comfortably communicate online. So why the hesitation to allow notices under a contract to be served by email?
Sure, there are the usual concerns of how to prove receipt of the email in IT terms (did your email make it through the hyper-sensitive quarantine filter?) and getting around ostensible authority with email signatures (surely your computer and email was hacked?); but is this really different to letters lost in the post, forgery or the fax machine spontaneously combusting? We think not.
Two years on from the reforms to the Electronic Transactions Act 1999 (NSW) debate ensues over whether an email is as reliable as a fax machine (in any event, many faxes are now sent and received by email). This is a rare example of the law catching up to technology before the masses do.
In an age where commerce is increasingly conducted online, parties to a contract should safely be able to use email as a method of giving notice. Drawing both from common sense and the little body of case law on the area, some guidelines when using emails to give notices are as follows:
- ensure the contract expressly states that notices may be given by email;
- ensure the contract specifies when a notice by email is deemed to be accepted (when it is received by the recipient? or when it is sent by the author?); and
- ensure all parties are comfortable with communicating through email (as opposed to a history of only corresponding through letters and/or fax).
The clearer the contract is on the use of email for notices, the less room for argument down the track. Oh and of course, it’s paperless, is Co2 free and costs less than a raven, so everyone wins! In short – get with the times people.