As a preliminary matter, I need to ask--are your e-mails CAN-SPAM compliant?
Assuming they are, this issue is really governed in contract law by
what is called the Statute of Frauds. The SoF says that certain types
of contracts must be in writing so that there will be some indicia or
evidence of the parties' intent to be bound, rather than just one
party's verbal assurances that there was a contract. The question you
raise is really one of whether an e-mail is a sufficient "writing" for
purposes of the Statute of Frauds. A related question is whether an
e-mail, for evidentiary purposes, sufficiently manifests a meeting of
the minds as to the subject matter of the contract such that a court
could find that a contract was made.
For example, assume you e-mail a prospect a CAN-SPAM compliant
solicitation for widgets. He e-mails back and says, "I accept your
offer to sell me 1,000 widgets for $15.99 USD, as evidenced by my
electronic signature hereinafter subscribed." [Signed] /john doe/
Then, if you printed that off and sent the widgets and if John Doe
protested and asserted no contract had been made in an effort to avoid
payment, you would adduce both the hard copy of the e-mail and proof
using subpoenaed records from his ISP that he actually got the e-mail
and actually sent the reply. But you see the problem--and this is why
it's a Statute of Frauds issue--your customer can still assert that he
never replied to your e-mail, that his e-mail account was hijacked,
that he never got your e-mail to begin with, and so on. It's all a
matter of proof and who the judge believes. This is why paper
contracts with ink signatures are still the way to go.
Another example--assume that the customer is not contesting that he
replied, but he's arguing that there was never a meeting of the
minds--that your e-mail said "widgets" and he replied and said "I
accept, but I want blodgets." If you ship him widgets and he refuses
to pay, he will argue that you never had a meeting of the minds as to
the subject matter of the contract and thus no contract was formed.
Or what if part of your e-mail is cut off and the word "widgets" is no
where to be found and the guy accepts but he thinks he's getting
"gadgets"--same problem.
So I am not saying that an e-mail contract is not enforceable. I am
not aware of any case law that says simply because a contract was made
via e-mail it is inherently invalid. Indeed, the federal E-SIGN Act
says that you cannot invalidate a contract purely on the grounds that
it was electronically signed. But the problem you will have is one of
PROOF. If you are prepared to take as many steps as necessary to
evidence to a judge that the e-mail was CAN-SPAM compliant, that the
customer actually received it and actually responded and that there
was a meeting of the minds as to subject matter, you should be OK. |