Can an exchange of emails create a contract?
Short post and cannot go into too much depth for obvious reasons however I approached a company to buy a domain name, I offered £3000 to which I received a reply.
I advise that we are happy to accept your offer in the sum of £3,000 plus VAT
Excellent, that was 23rd April and I was over the moon so sent a cheque which was presented at their bank the next day and I later received an email to confirm receipt of payment and that the forms would be completed and sent on to myself, almost 4 weeks later I get a letter through the door this morning stating that
I apologise for the delay in this matter, however whilst discussing this matter with our solicitors we have been advised that we are not in a position to sell the item.
Argh, now what is just as worrying is communication with my local solicitor seems extremely at odds with what I have read, I was told:
An exchange of e mails is not sufficient to form a binding contract. I assume you did not have any written agreement other than the e mails. At first glance I would say you have no remedy here.
What?…that just doesn’t ring true, the main criteria for a contract would be
- Offer
- Acceptance
- Consideration
- Intention to create legal relations
From what I can find in reference to a binding agreement is that it can be done by email, especially seeing as they accepted my money, so now I have a refund cheque which I am unsure whether to cash as would that be acceptance of my refund, the reason I am frustrated is the domain is worth a lot more than £3k to myself especially if I could develop it.
So, don’t accept the first bit of advice you get from a solicitor!
I really need to find out whether there is a real reason they cannot sell or whether it’s a change of heart, I shall pursue it.
I am gutted, I have a list as long as my arm of deals which have not come off recently.
Related Posts:
Scott at least here in India, an email is considered by law to be official form of communication and thus any agreement done through it is official, as long as there is a digital signature present to verify the identity.
Well, that’s exactly the issue. 99.9% of emails are not digitally signed, and I’m guessing Scott’s weren’t either. Emails can be spoofed if you know your way around an MTA. So it would be hard to tie this to a binding contract
Good luck,it’s certainly worth the extra effort to see if you can get it.
I had a very similar thing yesterday with one of my advertisers, where I needed an amendment to their TOS. This is the email they sent me:
In the end I asked them to fax it to me and after reading what you just posted I’m pleased I did.
I spoke a different solicitor who agrees that in certain circumstances an exchange of emails can produce a binding contract and he has agreed to look into it for me. {shrug}
If you are trying to get the domain do not cash the cheque. Whilst it is harder to confirm a legally binding contract through email, here in the UK its quite good in the fact that the law will be on your side.
One of the biggest defences that you come across in a case like this is proof of ownership of email. Since a decision maker actually cashed your cheque into a company account not only did they acknowledge the offer and accept it. They pretty much sealed the deal by depositing the cheque.
Give em hell.
I have been advised not to cash the cheque, I have a feeling their cashing my cheque last month may be a big factor here so I’ll just get used to being 3 and a half grand lighter and no domain for a while
3.5?
Was that with VAT?
Yeah I offered £3k they replied accepting £3k+ VAT.
Hmm, I wonder seeing as I have not cashed the refund whether by law I am entitled to a receipt for the initial transaction of cashing my cheque, seeing as they are VAT registered and charged me VAT.
I hate the whole purpose of VAT for businesses.
Find a better solicitor your first one clearly does not know contract law.
There is absolutely no doubt that they entered into a contract here and an exchange of emails is more than adequate, contracts can be formed verbally or even just by responding to an advert (Google Carlill v. Carbolic Smoke Ball Company for info on that).
Thanks John, I remember doing a tiny bit of law as a trainee accountant in a past life and thought a contract can be made verbally or by letter and felt sure this case had merit with the acceptance and correspondence by email.
Palgrave’s Contract Law by Ewan McKendrick is an excellent reference on the subject.
… and I really need to get some better bedtime reading material!
The only suggestion i can give is not to encash the check and meet someone who can help you out in getting the domain name at the price you had a email contract. There is no point they can move back now since they have already recieved your complete payment.
I’m with you on this one. One possible exception, though, is if the person with whom you corresponded did not have authorization to act on behalf of the owner. You and I could establish an agreement for me to sell you Google.com, but it wouldn’t be valid because I can’t act on their behalf.
I didn’t ever think about this until the last contract I signed included a clause that stated that both parties were authorized to enter into the agreement. I thought, “Well that’s unnecessary,” but then I realized that it covered both of us for yet another thing that could go awry.
srsly.
That’s really annoying - you might find this Nominet appeal interesting reading although not particularly encouraging for your case
http://www.nic.uk/disputes/drs/appeals/?contentId=4590
The ireland dot co dot uk DRS was similar. The ‘consideration’ part of the contract is critical apparently.
My 2p.
Thks
MZ
If they are VAT registered, and you paid them VAT, then by law they have to provide a VAT receipt showing their VAT number, or a VAT invoice marked as paid, again with their VAT number. For the refund they would then have to produce a credit note. Your VAT office will confirm this if they deny it. Did you ask them why they thought they were not able to sell the domain?
They have ceased any communication with myself since the receipt of the letter with proposed refund, I cannot get any reply from them, however I have asked for a VAT receipt
At least here in the U.S., an exchange of email absolutely can create a binding contract. And their cashing of your check followed by the communication attempting to back out of the deal is great evidence of a contract.
Had a similar problem two years ago so know how you feel.
The point is an exchange of emails CAN constitute a contract, but doesn’t necessarily do so. The same is true of a verbal contract (I had a verbal agreement too, but it emerged that the person wasn’t “authorised” to make such as angreement . . . ).
Best of luck, but personally I would cash the cheque and get on with your life. There are countless opportunities out there.
I had a similar experience with my rental lease agreement - the agent sent me a rent increase notice by email and the tribunal stated that email was not a legal form of delivery. Transposing that into your situation I suppose it would relate quite well in that email would not be accepted as a method of entering into a contract.
I know this topic is a little old, but yes, it’s my experience through legal advice that email can be a vehicle for a binding contract. What’s evident here is that the contract is implicit; i.e. there would have been no deal unless the emails were sent/received. As George points out, the other party has to be legally ‘qualified’ or ‘authorised’ to enter into a contract; i.e. not a minor or not the owner or bona fide agent for the property, but I would throw £100 to another solicitor if I were you Scott. Unless of course this is now dead and buried.
Yes I did seek representation Dale, they confirmed I had a binding contract, it now turns out the Administrator had previously sold the goodwill & other intangible assets(which included the domain) so was not in a position to sell - so I am now trying to buy from the new owner. I could take the administrator for breach of contract but it would not bring me the domain so a long and frustrating episode that rumbles on, hopefully one day I can secure it!
[...] your bored and have spare time you can read about the start of my adventure here. Basically the domain PCs.co.uk was owned by a company in administration. I contacted them and [...]
Yell UK cheated me into a contract with an email that asks for a password and if you provide them with a random password in the email then you “SIGN” a contract. This is whilst the rep told me the password provided holds a specific price for the service.. Not that it binds me into a contract! Completely cheating me and my company. DO NOT DO Bussiness with Maria Baker, Sarah Jane Hornet or http://www.yell.co.uk / http://www.yell.com.