We wanted to bring to your attention that courts are beginning to recognize e-mail transmissions as binding on their senders under certain circumstances. This could lead to the unintended consequences of a binding contract.

The Recent Opinion:

In a unanimous opinion at the beginning of April, the Appellate Division, First Department, held that e-mails sent between two individuals negotiating modifications to a written agreement fell within the Statute of Frauds and effectively modified their written agreement. The court found the e-mails to be enforceable because the printed name at the end of each message signified the writer's "intent to authenticate its contents."

Often, contracts will contain a provision allowing modifications or amendments only by a writing signed by the parties. In this case, Stevens v. Publicis S.A., such a provision existed. However, the court found that the parties' language in their e-mails unequivocally stated their intentions, including a clear offer of the modification terms, an acceptance and immediate reply - all in furtherance of the proposed changes.

What this Means for You:

Please be as cautious in your e-mails as you would when negotiating an agreement. The decision indicates that you may be bound to your words in an e-mail if your name or electronic signature is printed within.

To give yourself more freedom in your e-mails, and to protect yourself from inadvertent agreements, standard contract clauses requiring that amendments be in writing will need to specify that e-mails with a typed name and/or signature block do not amount to a signed writing, and are not meant to constitute a binding agreement.