Could your Email Disclaimer form a contract?

Email signatures and disclaimer notices are common in business and have, for a long time, addressed important matters such as confidentiality and the responsibility (or lack thereof) for virus scanning. In light of a recent High Court decision, however, the spotlight is now on another role that email notices have to play - avoiding the formation of a contract.

In the case of Neocleous v Rees, the High Court found that a lawyer had concluded a contract for the sale of land on his client’s behalf by sending an email that automatically included his name and title in the form of an email signature. This, said the court, amounted to an electronic signature. In this case, the unintentional upshot was the creation of a contract that ultimately cost the lawyer’s client a considerable amount of money.

The key question in such situations (whether in an email or any other document) is whether you took an active step to apply a mark to the document in order to authenticate it. In Neocleous v Rees, the lawyer had set up Microsoft Outlook to automatically add his name and title to his outgoing emails. The court found that he had, therefore, taken that important active step.

The question is not necessarily a simple one to answer and the case itself is by no means conclusive. What difference, for example, would it have made if the lawyer’s IT department had set up the signature? It does, however, mean that care should be taken when communicating by email, particularly where business matters are concerned.

You should update your Disclaimer to take account of this new decision. If you would like help on updating your organisation’s disclaimer please get in touch.

Article taken from SimplyDocs