Negotiations via Email - an Introduction

Despite their informal nature, emails can create binding obligations. Perhaps the most important concept to keep in mind is that the basic principles applicable to the making of a contract by electronic means are no different to the basic principles applicable to contracts formed orally or in writing on paper. As stated in section 8 of the Electronic Transactions Act 2002, “information is not denied its legal effect solely because it is in electronic form”. The five basic elements required to establish a legally enforceable contract are summarised as follows.

Offer

An offer is a definite undertaking by one party to another setting out the terms on which it is prepared to deal and is made with the intention that it will be binding as soon as it is accepted. The two elements required to form an offer are, (a), that the terms presented are sufficiently clear to allow a contract to be formed merely by acceptance without further negotiation (although such negotiation may still occur); and, (b), there is an intention of the offeror to be legally bound (this may be inferred from words or conduct). A statement which lacks either or both of these components will constitute a mere “invitation to treat”.

Intention

There is a well-established presumption in law that parties to a business agreement intend to be legally bound. Courts will usually draw inferences from the words or conduct of the parties to establish intention and, if satisfied, will do its best to give effect to that intention. Considering this, the best way to protect yourself when engaging in business negotiations via email is to state at the outset that an agreement is not binding until such time as a formal agreement is entered into.

Certainty of terms

Certainty of terms is another necessary element of formation. A contract may be deemed unenforceable if key terms are not settled at the time the offer and acceptance are made. It is important to note, however, that commercial contracts rarely fail on grounds of uncertainty, as courts are usually able to discern appropriate terms from the circumstances of the contract or by reference to market practice or other objective standards.

Consideration

In common law jurisdictions such as Australia and New Zealand, a contract is not binding unless supported by consideration, except where made by deed. In the commercial context, the contract will need to be supported by something of value. This could be a promise to provide goods or services, a promise to pay for goods or services, or the foregoing of a benefit (e.g. forbearance to sue).

Acceptance

A general principle of contract law is that a contract is formed at the time that acceptance is communicated by the offeror to the offeree. This acceptance must be full, unequivocal acceptance and must not include the introduction of any new terms. Anything less than this is likely to be treated by the courts as a rejection or counter-offer.