A lot of businesses carry out a bulk of their daily communications through email and it can be easy to assume that email . This makes it easy to assume that email can be a valid form of communication when under a contract. However, this is not necessarily the case. Even if emails are allowed, there are major consequences for the sending party.
When does such a question rise?
Such a question arises where one party wishes to exercise a right under a contract, and the other challenges the validity of the notice. For instance the notice can be for either of the following scenarios/situations:
- A claim for a payment.
- Claims in respect of a change order or a variation of sorts.
- Claim for time extension.
- Exercising the option or another contractual right.
- A notice of contract termination.
- Notice of dispute.
If a notice is not given in the required manner, it might not be effective and this can result in the sender effectively losing the right they attempted to exercise. Or maybe in other cases, they may have some other adverse consequences.
Is it possible to send notices by email?
Most of the time sending a notice by email is dependent on the circumstances and nature of the contract. The terms of the contract can answer this question. There also can be situations and circumstances where, due to a pattern of conduit between the parties, an email could be taken to be valid despite the contract’s terms.
However, in invariable terms, the contract’s terms will always be the best place to start when checking the viability of sending notices by email.
Is the contract saying something? If so, then what is it?
The contract might include a notice provision which addresses either some or all of the following information:
- How notices can be sent (delivered by hand, courier, email, post, fax etc.).
- Where should the notices be sent?
- When a notice will be taken to be received.
- Are there any exceptions present?
Construction claims experts explain that a contract which allows the use of email may often include exceptions for specific notices and require them to be sent by another channel. For instance, a contract might require that a notice of dispute be delivered either by hand or registered mail service/address.
Some contracts might express the permission of using email, while others may expressly be against using email.
If a contract is silent on usage of email (i.e. does not specify the use of email) or where a contract is not able to clearly define when service by email can be effective, the electronic transactions legislation might provide the answer.
In case if email is permissible, are there any additional requirements to learn about?
A contract might sometimes allow provision for service by email, but can set further conditions which should be met to help email become a valid form of service. For instance, the contract might require the following:
- The notice be sent to a specific email address (or addresses).
- The notice should also be sent by post (or another form) within a certain time period (a certain number of days).
- Or the sender must request a receipt that proves the notice has been read.
Where a specific procedure for sending emails is prescribed, as the sender, it should be assumed that it is followed diligently.
What to do if the contract is silent on emails?
This issue is likely to be resolved by electronic transactions legislation. According to expert services providers, such legislation exists in Australia and all of its states. Similar acts might exist in other countries, particularly the United States of America, Canada, United Kingdom, France, Turkey, Greece, the United Arab Emirates, Japan, Korea Republic and The Philippines among many.
The Australian legislation provides that, as a general rule of thumb, any transaction (a contract notice included in one) cannot be invalid just because it took place by means of electronic communication like email.
The brief point here is that wherever the contract is silent, though there may be exceptions, email will generally be an effective and trustworthy channel of communication. This is true in terms for providing contract notices.