WE know that a contract should be in writing, even though it can be verbal. When a contract exists and specifically sets out that any change to that contract must (i) be in writing and (ii) be signed by or on behalf of both parties that is all well and good – but what about email?
The High Court (in C&S Associates v Enterprise Insurance) looked at a string of emails that dealt with a contractual change to how much was paid, and over what period, to the Claimant. The contract stated “Any variation of this Agreement shall not be effective unless made in writing and signed by or on behalf of each of the Parties to this Agreement.’ The judge rightly said, that this clause was so clear that any change that had not been reduced to writing and signed off would not be valid.
The judge said that (as with any other method) email correspondence would still need to possess the other characteristics of a contract, such as offer, acceptance, a transfer of value (e.g. money), and an intention to create a binding agreement over the variation, but that it could still class as being “in writing’ for the purposes of the clause in the original contract. The original contract did not classify what it meant by “writing’.
Email signatures
The judge was clear that the clause, as drafted, did not require a manuscript physical signature, or to be on paper, or even that the same document carry the signatures on the same page. In this case, one party had an automatically inserted “electronic signature’ and the other responded “Many thanks Myles, much appreciated. Mike.’ The Court held that emails with standard, inserted, signature blocks would be sufficiently formal to satisfy the terms of the clause, and so the contract was indeed varied. It did not matter that they clearly thought that their agreement may later be reduced to a written, new, agreement; that was their own interpretation and the agreement had already been changed.
Sales teams, accounts teams, and all levels of personnel use email so frequently these days. Even with a clause in a contract requiring a written, signed agreement to vary it, if it is not very explicit as to the prescribed method, you will be at risk of having your agreements inadvertently changed, perhaps without your knowledge at an executive level. Be clear in your terms, conditions and definitions sections in contracts that “writing’ does not include email, and that “signatures’ means a physical manuscript signature, or company seal.
Kevin Rogers leads the Commercial Litigation Team at Wilson Browne Solicitors and specialises in contractual disputes, and innovative funding of those claims, often under a variety of “no-win-no-fee’ agreements backed by legal expenses for added protection.
Kevin can be contacted on 01536 410014, by email at or by visiting www.wilsonbrowne.co.uk