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Email, a Legally Binding Contract?
slashrot writes "Boston.com has a story on a dispute between a home buyer and seller in which they agreed on terms in a series of email messages. Superior court judge Ernest B. Murphy decided that even though these messages only contain typewritten names instead of signatures, they still constitute a binding contract. It's said to be a first in Massachusetts." The particulary look to me like a home seller trying to weasel
out of a deal, but the ramifications of the decision are substantial. This is
really worth a read.
That's ridiculous. Email can be easily forged. And I would think a legally binding contract would somehow involve a lawyer.
"ph34r my 1337 n3kk1d ski11z!" - largo of megatokyo
This means that all those companies that send me spam are bound to help me lose weight, reduce my debt, and work in the comfort of my own home!
This is terrific!
But then again, filing my taxes electronically this year, the feds accepted three pieces of information to make up the e-signature: last years tax amount, a pin (5 chars long), and my ssn
Perhaps the judge wouldn't feel so certain of the ruling if someone had sent a nastygram from his email addr, with his name typewritten to prez@whitehouse.gov
Old age and treachery almost always overcome youth and skill.
I wonder why there is even a discussion over it. A contract never needs a signature, every time you buy a quarterpounder at McD you make a contract. Even multi-million-dollar transactions at the NYSE are made without handwritten signatures. As long as it is clear who the two negotiators are there is no doubt that two declarations of intention are made.
In this case I don't think anyone doubts the authenticity of the emails (it appears to have been a long running series of emails discussing the selling and purchasing of a house, in a way that it is doubtful anyone is going to forge), but rather the defendant is claiming basically that because it wasn't a signed document that they are not bound by it. Yet just as the oft-known verbal contract, you don't have to sign a contract in many cases. Seems pretty clear to me.
The case, Shattuck v. Klotzbach, is scheduled to be heard in May in Plymouth Superior Court by Judge Ernest B. Murphy.
I guess we'll really find out the importance of being Earnest.
That's ridiculous. Email can be easily forged. And I would think a legally binding contract would somehow involve a lawyer.
Then it was incumbent upon the seller to demonstrate that the email was in fact forged. Such was not the case, he did not contest that the emails were in fact from him, he merely argued that the emails do not represent a legally binding contract.
I think the seller and his lawyer would have been wise to contest the emails on the grounds of forgery (wise, though sleazy). Lacking a real signature it is impossible to prove the emails are not fogeries.
I think this is also a point of warning for people who use email to discuss the terms of a contract, although such emails may at some point be legally binding, such a contract would be very weak in the face of an attack on the grounds of forgery.
-josh
Uh, what?
Regards,
levine
After all, if there isn't a dispute about whatever the messages were forged or not, then I don't see any reason for this not to be a binding contract.
What *is* the difference if I sign my name or type it?
And before you get to forging, it doesn't appear to be the case here, but email forging is not much easier than signature forging, and that can be verified by digitally signing the email.
--
Two witches watched two watches.
Which witch watched which watch?
IANAL, but I always thought any agreement could be enforced, whether it was in writing or not. I've certainly heard of verbal contracts; of course, without any written record you'll generally have trouble proving that any agreement was actually made.
While I'm sure people will bring up the risk of forged email, that isn't really any more of a legal issue than forged signatures on written contracts.
Tarsnap: Online backups for the truly paranoid
It can be forged, but the origins of the email was never in doubt. Both parties admitted they had sent the email, so the only question was whether you could have an "email contract". It does in some ways make sense, since you can have a "verbal contract", and "email contract" isn't much different.
"Information wants to be expensive" - Stewart Brand, the same guy who said "Information wants to be free"
This was just a preliminary decision by the judge NOT to dismiss the case outright. It still has to go to trial.
And I agree with the original blurb on the article...it just seems to be a case of a sleazy seller trying to back out of a deal after the terms were agreed upon. Anyone who has ever done business on ebay is familiar with this. Interesting to see the phenomenon working its way up the food chain.
The article makes a bit of a point about the email not having signatures. But "the writing is on the wall" for signatures. There are quite a number of retail outlets (Sears, Home Depot, etc.) that are now using the little electronic gadgets that collect your signature as a graphic and keep it in case they need it. This means that there are a growing number of computers that have collections of signatures in their databases. It is only a matter of time until some unscrupulous corporation starts using these to forge signatures. And it is a matter of an even shorter time after that until a victim proves in court that a signature is a forgery.
This will inevitably destroy the legal usefulness of signatures. An "electronic paper trail" such as was used in this court case will be a much more reliable proof of contract. This case is just one of the first in a series that will change the way that "proof of contract" works.
It is, of course, not terribly difficult to forge email. So we should have some fun cases to study in the next decade or so, as the courts try to come to terms with this brave new world.
Those who do study history are doomed to stand helplessly by while everyone else repeats it.
So can hand written signatures. That doesn't make them any less binding.
Besides if negotations were done by phone or f2f which is how most deals are worked out today, there would be no communication records at all....
However, I don't believe there's anything magic about a signature. Verbal contracts are often enforceable, so why not email?
It doesn't appear that either side are disputing that these emails are not authentic. Seems like it would have at least the same force as a verbal contract.
This would all be subject to various local laws. I know that in Texas, only written contracts are enforceable for real property. Verbal contracts, even when witnessed, are not.
As I said, I am not a Lawyer and I'm not giving legal advice, just making observations.
For the emails to be binding they have to examine the ISP logs really. That is assuming the ISP keeps accurate logs of traffic.
I doubt the judge assumes that nobody could impostor others in the "from" field of an email.
Tom
Someday, I'll have a real sig.
And probably the crucial issue -- and I agree with former posts, the seller looks like a weasel, smells, like weasel, probably tastes a weasel :)
Old age and treachery almost always overcome youth and skill.
From the article...
Using e-mail, Shattuck and Klotzback had settled on the price; the e-mail referred to the purchase and sale agreement that would be prepared.
Um, agreeing to prepare a contract is not the same as agreeing on a contract.
According to the article the only thing they accomplished via email is what the initial contract arrangements would be, he never agreed to sell his house.
Either I read that wrong, the article is wrong or there isn't a case.
Tom
Someday, I'll have a real sig.
Did the defendant agree that they really wrote the mail? Not only is it easy to forge email, but it is trivial to change your record of the email (the sender could edit messages in his sent folder, the receiver could edit the messages in their 'home sale' folder).
It may suck to agree to pay $1.86mil and be asked to pay $1.92mil, but it would suck just as much to ask $1.92mil and have to accept $1.86mil just because the plaintiff knows how to use vi!
I don't think email is a workable contract medium. Too trivial to alter. With a precedent that email can form a contract I don't see how anyone who wanted to weasel out of a contract would admit to "signing" the real thing rather then edit up their copy and claim that is what they "signed"!
As the chain of emails grows, the liklihood of one or both of the parties' communication being faked diminishes quickly.
:-)
When you send an email, you can fake the headers, but if you have repeated two way communication, including quoted material, it's obvious you have a communication between two verifiable email addresses.
The questions then become:
1. Do the email addresses track back to the individuals in question?
2. Did the parties involved in the dispute engage in this conversation together, or not?
3. Could someone else have had complete send/receive control of the email account in question at the time over the time of the disputed conversation? (Man in the middle attack possibly?)
Claiming one did not send emails when one did is a dangerous game when testimony under oath comes into play.
What we have is a case of a "verbal" contract, though with written transcription as evidence.
The judge may be breaking some interesting ground with this decision, but I don't think he's too far off the mark.
And yes, digital verifiable signatures would be better.
I get there, and the person and her brother basically shove the animals in my boyfriend's truck, without me really getting to see them. Right then, red flags should have gone up in my head, but I had talked to the seller extensively and thought I could trust her.
I get the animals home, and it is clear that they are not at all what they were made out to be. One of the ferrets was extremely unfriendly and agressive, every time I would go near her, she would bite me, and she drew blood consistently. I emailed the girl back the next afternoon (a little less than 24 hours later, Michigan state law allows 72 hours to back out of a contract), telling her that I was backing out of the contract due to her untruthfulness. She emailed me back saying that she had contacted her lawyer (on a sunday, no less) and fed me a bunch of legal mumbo jumbo as to why she wouldn't take them back.
Turns out, the girl wasn't even 18 (she had lied to me). I tried to call her parents several times but was never able to get into contact with them. I wanted to take it to small claims court and get my money back, but I didn't think that the emails alone would be enough to prove my side, and finally just let it go and sold the ferrets to someone experienced with agressive ones, for a substantial loss.
I wish I would have known that my emails would have held up in court, I don't even think her parents had a clue what was going on. Ovbiously, it was partially my fault for being so trusting, but I found it hard to believe that someone I had talked to so extensively (probably 50k worth of email) would be so dishonest.
I learned my lesson from the experience, but knowing that my emails could have backed up my story might have made for a different ending for me.
Yes, email can be forged, ISP logs are a bit harder.
:-)]...
Just because an email has "joe@blow.com" in the "From" field doesn't mean blow.com will have the email [or at least the transaction] in the log.
And no, contracts do not require lawyers. When you buy something with a credit card you sign the slip agreeing to the debit from your credit account. Without the signed slip the transaction is technically void even though its removed from your account automatically. Trust me, I worked for a pharmacy [as a cashier no less...
Tom
Someday, I'll have a real sig.
One thing that worries me about this decision is that I'm not sure whether your average judge knows how easy it is to forge emails. I could come to court with a bunch of ASCII that I claim you sent me. If the judge isn't techno-savvy he'll think that's "proof" that you sent it. The other thing that bothers me is mentioned in the article. People think about email as an informal medium like conversation. They'll be afraid to use it if they think that it's legally the same as writing a formal contract. Or they'll have to put a stupid .sig: "this email does not represent a legally binding contract."
Instead of "Click here to agree to the Microsoft EULA", I guess we'll start seeing "Type your full name here to agree to the Microsoft EULA".
Although I'm certainly no MA lawyer (or any kind of lawyer).
In most day-to-day contracts, no one cares if you sign your name in cursive. As long as you make some kind of mark that definately identifies you as a party to it, that's enough. Even printed names are sufficient, so email headers ought to work fine.
The signature requirement is not a formality to closing a contract, though it can act as one. Rather, it is intended to ensure that people aren't accidently made parties or not made parties. This objection is only valid if he claims someone else was trying to sell his house, and pretending to be him.
The only tricky bit is whether or not property contracts require certain formalities that this doesn't comply with. Sounds like there aren't any, though.
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
This is my opinion, IANAL.
Verbal or implied contracts are valid in many jurisdictions. When you order food at a restaurant, you have entered into an implied contract to pay for the meal.
If you make a verbal contract or agreement you are also bound by it, however it is difficult to prove and dispute. "I didn't say that" can easily shift the burden of proof.
Email should come out as a documented verbal contract, not as strong as a signed notarized contract, but at least at the level of implied or verbal.
To avoid this you have to be careful what you say ALWAYS. If the seller had just put any disclaimers that this wasn't a final agreement to sell, or that he had to check with his wife, or look into some other issues, he'd probaly be okay.
Personally, when I explain a simplified situation (big part of my job) I always add a nice disclaimer, that this advice/opinion is dependant on many assumptions and specifics to this application. You would be surprised how often people take "what you said" and apply it to something else.
IANAL, but in many states a handshake is a legally binding contract as as any verbal agreement-- all that is required is an agreement of terms of exchange. Now, verbal contracts are not very enfoceable because they are hard to prove that they exist, and email may be a bit easier to prove, but because it can be easily forged. If you did not write the email and it was forged, then it is more like a verbal contract. If I deny writing the email, then there is no proof of assent. That is where witnesses come in handy (and why most contracts are signed by them).
LedgerSMB: Open source Accounting/ERP
Nope, sorry, a legally binding contract does not need to have a lawyer involved at all. Think of how much worse the world would be if this were true! IANAL, but I believe you need the following to have a legally binding contract:
1) An agreement as to the goods being sold. A & B must both understand the contract to cover the same thing, and they must both have the same understanding of the thing.
2) An offer
3) An acceptance of that offer
Now if the the goods are worth more than a certain amount, a written contract may be necessary and there are a lot of clarifications. But certainly no lawyer is needed.
Someone who did better than I did in Contracts in Law School can get into the specifics. Just don't forget to mention Rose of Aberlone.
My concern is the legal ramifications of this case. If email were to become legally binding as a form of contract negotiation and agreement, will we begin to see many e-mails begin with legalese that's as complicated as a Microsoft EULA? I can see it now... Overnight, e-mail from lawyers would multiply in length by over 300%, making email servers perform double duty. Maybe an exaggeration, but lawyers are a cautious bunch.
Here is a question for you: How can email be legally binding by adding your full name to the end of the email, but I still can't fax contracts with a clearly legible signature? At least, last I heard, you could do that for intent, but the actual document had to still be snail-mailed. Here's another good question: Don't most contracts have to be signed by a public notary or a witness? Maybe this isn't the case for realestate purchases.
One final question: If the plaintiff wins, does that mean that all the "super" deals I can get from those who spam me would now be legally binding? If so, great! I've always wanted to "Be Debtfree at no cost to you..."or "Be in a positive cash flow in 48 hours", or even "Add 3-6 inches to your penis with this miracle pill."
Said Beth Mitchell, a partner in the Boston law firm Nutter McClennen & Fish
:-)
No wonder he lost, he was being defended by a squirrel and a fish...
Actually, the first thing that came to my mind was a MST3k sketch where Tom Servo and Crow play a game of squirrel and some sort of under water creature
Episode was number 816, Prince of Space
/ex
This struck me as a weird ruling at first, then I realized the judge actually has a better insight into the situation than us!
The weirdness is the "Statute of Frauds." Verbal contracts are not binding in a handful of situations, and sales of Real Property are one of them. (Real Property is real estate, easements, etc., transactions that still need to be traceable hundreds of years from now.) In these cases you *must* have a written contract.
But then I remembered that a "written" contract just means that it was reduced to "tangible" form. This usually means something written on paper, but email is just as good as long as all parties stipulate that the contents of the messages have not been altered. (If the messages where PGP-signed, this wouldn't be an issue since you could detect alterations. Otherwise paper is still a far better choice.)
Contracts need to be signed, though, and email isn't signed is it? Then I remember the research I did when a few particularly clueless individuals gave me grief about my illegible signature.
According to the UCC, a "signature" is any tangible mark indicating consent. Nowhere does it say it has to be a cursive representation of your own name in your own hand. It could be printed, it could be completely illegible. It could be a mechanical reproduction applied by your secretary with a "signing machine." This is also why your bank will cash one of your "unsigned" checks - if you hand-wrote the rest of the information, *that* becomes your signature since it indicates an intent to pay. Viewing the bodies of email as self-signing, in a legal sense, isn't a far stretch. In this particular situation (negotiating terms of a contract), the alternative is to believe that one party was attempting to defraud the other.
The only remaining question is whether the other party is who they claim to be, but this isn't a one-off message. This was an exchange that discussed something personally known to both parties (the property being sold), so the risk of impersonation is low. More importantly, it sounds like the issue is whether email can be viewed as a written contract, not whether any of the messages were forged.
For every complex problem there is an answer that is clear, simple, and wrong. -- H L Mencken
An e-mail contract is a written contract so it would only make sense that it is legally binding as long as someone is not saying it is forged.
--MD--
Contracts never need to be in writing. However, enforcing contracts is another matter. Real esate contracts are unenforceable unless they are in writing and signed. This is called the Statute of Frauds (i.e. certain kinds of contracts, including real estate, must be in writing if you want to be able to force the other party to abide by the terms of the contract in court). The part of the article that is odd is that the court appears to think that the email between the husband-owner and the buyer was sufficient to bind the wife-owner because she is referred to. That goes against the Statute of Frauds because the entire point of it is to make the agreement explicit rather than implicit. If there is nothng explicit to show her acquiescence to the agreement and she does co-own the property, I'll be stunned if this court or, more to the point, an appeals court finds that an enforceable contract exists.
Q:How many libertarians does it take to stop a Panzer division? A:None. Obviously market forces will take care of it.
telnet to port 25 of a mail server...
/no/ clue on how email actually works.
/proof/ the emails were actually sent... Of course, thats not proof that the text in the body of the emails is the same as what is being presented heh. It doesn't mention the people using public/private keys in the email, so its doubtfull they used PGP, etc..
:)
helo hostname.net
MAIL FROM:bgates@microsoft.com
RCPT TO:bob@iwantmyemail.org
data
Subject: I want to give you free money
text goes here
.
Ok, so lets think about this... something this easy to forge (Well, if you really want to get annoying about it, you could check the SMTP server the person is sending through (and they IP of their own connection), but quite a few people use different internet services then where their domain is hosted), is being considered a legally binding document.... You can specify a different MAIL FROM field in any email client, by simply changing the address listed as well, youe email address in there (I find the above method quite easy, although it doesn't include all of the headers most clients send along with their message(s), but I'm lazy and didnt want to type that out also) I am willing to bet that the judge has
However... On the same token, if you can match the emails that were sent to logs from the SMTP server that person relayed them through (assuming its not your own mail server), and the logs of the receiving mail server (again, assuming its not your own mail server, and the IP that you sent the message from shows up as your account when you look at the radius logs (or whatever is applicable for your type of connection), then I could see that being
An easy way to disprove someone saying that an email they were sent is different from the one the person says they sent is to compare the message size(s) to what the MTA's on both sides logged the message as. Chances are no one even thought about that when they were writing up the forgery
I find this quite amusing though...
"One of the very unfortunate things about this is that by allowing consumers to casually enter into what might be the most legally important transaction of their life, consumers are not benefitted," Lapatin said.
IANAL - It seems to me that there was NOTHING casual about this transaction. When you buy a house, there is a large group of steps you go through before the P+S. There is however, an agreement that happens before that signing. This seller clearly made that agreement, and asked for the paperwork, and deposit check. He had already agreed to sell at that price. I'm not sure if this is a case of legally binding emails, as much as how much of a scumbag the seller is.
Fortunately, seeing as the person could afford a house for almost (pinky raises to cheek) 2 MILLION dollars, he could afford a good lawyer to make more fodder for us!
-Spack
This might mean those companies are bound to remove you from their mailing lists if they offer to do so at the end of their messages--which most do.
But then, I'm not a lawyer... Anybody with some legal background have thoughts on this?
IANAL, but I believe the most important thing in a contract is that the two parties have a "meeting of the minds." Which is to say that both parties agree to a set of terms, and understand what they're agreeing to. This is how verbal contracts can exist. Signatures just make it unequivocal that you agree, but a set of email messages where two parties clearly come to an agreement ought to suffice.
As too often happens, the newspaper report leaves out much detail that might help us laypeople assess whether this judgement is consistent with justice, or is just a fluke.
In my (much lower priced) real estate dealings, the price negotiation has always been done by phone with a realtor or two in between. The price negotiation merely established the number that would appear on the Purchase&Sale agreement, which would have various other contingencies written into it. The price negotiation would never be considered the whole contract, but it would be binding in the sense that no other number could appear on the P&S.
In this situation, it appears as if the seller had another buyer on the line. Whether the negotiation of a backup contract would be in bad faith would depend on how you conducted yourself. The internal evidence from the quoted emails was that the seller implied that once the price was settled on, no other steps were required before closing the deal.
I think if I were deciding this case, I'd have wanted to punish the seller for bad faith negotiation but ultimated decided that the buyer did not yet have a valid contract -- probably on the basis that the contract isn't valid until consideration (the ernest money is offered and accepted).
This is an example of why you should cryptographically sign your emails, whether that be with PGP, S/MIME, or something else.
In this case, it would have made the plaintiff's case easier to prove, which seems like a bad thing if you're the defendant, but perhaps the defendant would have thought more carefully about what he was saying if he knew it could be proven he said it.
But more importantly, in countries where digital sigs carry the same legal force as paper sigs (such as the United States), signing all your emails establishes an identity trail so that, if somebody else later forges an email with a forged signature, you can show a body of evidence that you use a different signature, and that therefore it isn't yours, it's just one that says your name.
Since there isn't a "digital driver's license" to use to "prove" the validity of an esig, this body of evidence could be very useful to you in court.
Remember the recent episode of identity theft Nick Petreley experienced? In part, this happened because he didn't establish an electronic identity in one place where he had a chance. In his case, it was a web account, not a digital sig, but a digital sig case could be far worse, because it would almost HAVE to involve the courts to be resolved.
Wouldn't you rather have more evidence in your favor, not less?
This means:
"I reserve my right not to be compelled to perform under any contract or commercial agreement that I did not enter knowingly, voluntarily and intentionally. And furthermore, I do not accept the liability of the compelled benefit of any unrevealed contract or commercial agreement."
This is a simple 1st year law school question.
There are no magic words of words or secret handshakes needed to form a contract you simply need 3 things (each with subparts):
Here, the trier of fact (judge or jury) felt that the emails constituted a showing of mutual assent. Mutual assent is traditionally shown by an (1) offer and an (2) acceptance.
The prima facie case for offer is:
And the prima facie case for acceptance is:
Of course you need to have not terminated the offer before acceptance. And, meeting each of these elements is a question of fact. So, the judge/jury listen to witnesses and evidence and decide what really happened. This is where "the email was forged" defense comes in, because it negates the YOU made the offer/acceptance.
Even if you meet the mutual assent element of the traditional contract test, you still need to meet the other two elements.
So, it is not unreasonable that an email, and handshake or even a pinky-swear would form a binding contract, if that is what you used to get to mutual assent.
Yeah, PGP didn't sell well. The terminology was confusing, the product expensive for the perceived value from Joe Average's perspective. If someone could package PGP (better still, GPG) make it simple enough for a quasi-Luddite to use (automatic keyring management, signing, and signature verification, easy one-touch crypto), and promote its acceptance substantially better than NAI did PGP, this issue would become moot with a few short sessions in the legislatures and a couple of court battles.
As one of the previous posters pointed out since this is a sale of real estate, there are Statue of Fraud issues here (which I neglected, B- for me). Please refer to the SoF post above.
Not mine. I sign every one digitally. They can be forged, but only if you break into my box and hack my GnuPG secret keyring passphrase.
Walk into court with a forged email from me, and I'll walk in with my sent-mail folder, showing I've signed every email for a long time, with every exception being documentable as to why.
Oh, maybe the US government could forge my signature, but then again, they could also hold a gun to my head and make me sign anyway.
When I file for patents and/or trademarks at the United States patent and trademark office here, they accept /yournamehere/ as a legally binding signature for patent work. I don't see why this can't apply to email.
1) The authenticity of the emails is not being disputed
2) There is a substantial electronic paper trail, making forgery much less likely
3) If email sent from A matches email received by B, and vice versa, then that further validates authenticity
4) Expert witnesses can be called to say that the logs files on the relevant ISPs clearly show that the emails are valid
So, like all law, the chances are likely that even if the authenticity of the emails was challenged, the Jury would find in favour of them being authentic.
Win $10k in court, send another email with a autorespond virus in it to some more helpless M$ customers.
This
And I would think a legally binding contract would somehow involve a lawyer.
Hey, if EULA's are legally binding despite the fact that no sane person would actually agree to such a one-sided deal, E-Mail exchange has got to be 10^40 times stronger grounds for establishing a legal contract.
It states:
Certain seems to be satified here.Sig: What Happened To The Censorware Project (censorware.org)
It is not impossible to prove that the emails were genuine. People have a "voice" in email just as they have in real life, and it's difficult to fake the 'voice' just as it's difficult to forge a signature.
Think about it. We all have the words we misspell frequently, the misplaced punctuation, the way of phrasing things, our capitalization or lack thereof, and words we unwittingly switch. (There-their, effects-affects) People have been 'caught' by their writing style before (I'm thinking Unibomber?)
If there are enough emails over a long enough period of time, then forgery becomes quite impossible. On the other hand- forgery is easy to fake--Simply alter your way of writing and avoid the things you usually say-- throw in a few mispelled words that you never would have 'accidentally' mispelled, misplace a few commas. Just randomly. It might throw someone off track if you say "Hey, that doesn't match my 'print'."
Of course there's still records from your ISP. I think it would be easier to falsely claim a verbal contract.
-Sara
IANAL -- I am not a lawyer.
Several people have commented already that email is "easy to forge." It is if you only have one side of the conversation. Easily fixed. We already know from literally hundreds of cases that e-mail is discoverable in a lawsuit. So as Plaintiff I would demand "all electronic mail purporting to be to or from account@domain.name on any computer owned by Defeadant", take all my messages to and from the Defendant and get it on CD-ROM, and when I have both CD-ROMs together start matching my e-mail list with his e-mail list. Because you can demonstrate that there was indeed a conversation, you can then verify the authenticity of the e-mail exchange.
For mail stored electronically, there is a wealth of verifying information contained in the headers to a mail message. You have the path the mail took through the Internet, so that it's tracable to the first Internet-connected Mail Transfer Agent, and sometimes even to the originating computer if the MTAs do their job of adding Received: header lines properly. Depending on the level of logging at the various MTAs, you may well be able to obtain third-party verification of the transfers, the length of the letters, and the purported From: and To: headers. Successfully forging every little piece of information is possible, but it's hard to also jerrymander the server logs and the electronic copies on the other side. Very persusasive in an argument of authenticity.
Think why there has traditionally been signatures on documents. The point was to ensure the identities of the parties, that the parties had the intent to enter into contract, and that the parties were aware of the contract. The signature provides all three points.
Now, with the e-mail exchange, do we have a contract? That would depend. In order to have a contract, you need: an offer; an unqualified acceptance; specificity as to subject matter; and, consideration. That's one thing the judge will have to decide.
Now, how many people save all their electronic mail at home? I know that more than 3/4 of my non-spam mail ends up in the electronic trash can, which is religiously emptied multiple times a day. That said, *any* incoming business traffic gets filed in a mailbox folder specific to the client. All outgoing traffic is saved automatically by my mail client in the "Out box", timestamped with the time the MUA sends the mail to my MTA. In turn, the backup system takes the mail and saves it to a file server, and eventually makes it to a back-up CD.
Now for the fly in the ointment: was there the required intent to contract on the part of both parties? This is where part of the argument may well lie. Did the seller in question, in the reasonable belief that the ONLY valid contract was one one paper signed by both parties, intend during the e-mail exchange to enter into contract by virtue of the e-mail? I believe the seller could argue that the e-mail discussions were preliminary negotiations, and not the contract itself, based on his belief that until he puts pen to paper there is no contract. The argument isn't perfect, but with the right support it should win.
Ah, but dung heaps rarely attract only a single fly. The Plaintiff Buyer may well have a complaint against Defendant seller because, according to the article, the two parties did agree to terms and had MADE A SPECIFIC PROMISE to each other to execute a real estate contract. Now we go to the intent of Plaintiff and what Plaintiff did because of the promise. Things get sticky, because if Plaintiff did something (like sell his/her existing house in anticipation of being able to move into Defendant's house) then there is a problem.
A lot of the judge's decision is going to turn on MASS law, both statute and case law, and I'm a long way from that state. I'll let people who know the law in the neighborhood discuss these points further.
In any event, this case will test some legal precepts about electronic mail and how to verify its authenticity. Well worth studying.
??? How in hell is this "off topic"? This entire article and its threads is about a series of emails as a contract. Being able to write such emails and explicitly disallow any contractual inference is directly on point.
Idiot moderators.
- Large amounts of money.
- Contracts to pay the debts of another.
- Contracts that cannot be completed in a year.
What exactly is covered by the statute of frauds depends on the jurisdictions.Fight Spammers!
Sure, but hey, so can a signature on a piece of paper, or a recording of a telephone call.
If you make certain sorts of agreement with someone, whether they are written down on a piece of paper or not, they can constitute a legally binding contract in many places. The concept of a verbal contract wouldn't exist if everything had to be written down. If there is some disagreement and you have to fall back on the contract, then clearly someone's going to have to prove to a court that their claims (including whether or not a contract exists and what it says) are valid, but that's a very different matter.
And you would be wrong, and in need of getting a clue before discussing legal matters. There are certain things that, in certain places, must be overseen by a lawyer, or sometimes some other reputable authority; wills and such tend to fall into this group. But a lawyer is certainly not necessary to form a contract in pretty much any jurisdiction I know about. If one were, shopping would be a very tedious experience.
Insert standard disclaimer here: IANAL, if you get your legal advice on /. you're a fool, this post is not legal advice, etc.
If you disagree, post your argument. (-1, Overrated) isn't your personal censorship tool for views you don't like.
In law, what's on the lawbooks is critical. But not everything can be codified in lawbooks. Many rulings handed down by Judges are based, not on written laws, but on how past judges have ruled on similar cases.
I think this case sets a great precedent. And other Judges are likely to follow this way of thinking.
Before the Internet, there were two ways to reach agreement on something: verbally or in writing. The verbal agreement works beautifully, but only if both parties are honest and don't try to back out of the deal. That's why if you were dealing with someone unfamiliar or untrustworthy, you should get the deal on paper as soon as possible. A spoken word cannot be verified, and it therefore should almost never hold up as a binding contract.
Email strikes me as a halfway point. Let me give two examples of a deal gone bad, to illustrate why this Judge's ruling makes sense.
In the first example, you negotiate terms with me by telephone to buy my house. I lead you on a good three months. You make offers and counteroffers, and finally I tell you, "We have a deal. I hope you enjoy your new place on 123 Main St...by far the most scenic part of Elizabeth NJ."
Once we reach these terms, if you don't rush out and get me to sign a written contract, shame on you. Since all our communication is verbal, there's nothing that can stand up in a courtroom. That's how it should be. It doesn't make the seller any less sleazy, but the seller should not be held to a verbal deal since nothing can be proven.
However, if we did this exchange by email, you would have a written record of me leading you on for months. Sure, these headers might be forged, but in most cases the plaintiff could do a bit of investigating with the ISP, and get the defendent to stipulate (meaning: not contest) that the emails are genuine.
The written word should always count for more than the spoken word. It makes sense for the Judge to rule that email is a binding contract, if it is clear that the defendent has led on the plaintiff, and has in no uncertain terms written that an agreement is final.
Written contracts should always count for more than extended email correspondence. But in cases where somebody, after lengthy email correspondence, backs out of a deal, it's wise for a Judge to count those emails as a written contract.I'm generally "Interesting," "Insightful," and even "Funny" here. What the hell happens to me at parties?
You are suggesting that the attorney commit fraud on the court. Of course to prove that you did send it, they may require you to produce your computer so their experts may search it. Of course, if they were smart, they would submit a request for admission first. Then if you deny that you sent the email, they can hit you with the costs of recovering the data and investigating and deposing the ISPs to confirm that it was your email.
Fight Spammers!
Many have pointed out that it is very easy to forge e-mail. Just for reference, here's how you do it:
[~]$ telnet localhost smtp
Trying 127.0.0.1...
Connected to localhost.localdomain.
Escape character is '^]'.
220 localhost.localdomain ESMTP Sendmail
8.11.2/8.11.2; Sat, 16 Mar 2002 23:08:12 +0530
mail from: god@heaven.org
250 2.1.0 god@heaven.org... Sender ok
rcpt to: arvindn@localhost.localdomain
250 2.1.5 arvindn@localhost.localdomain...
Recipient ok
data
354 Enter mail, end with "." on a line by itself
From: god@heaven.org
I've been watching you. Your fly is down.
.
250 2.0.0 g2GHcKT32482 Message accepted for
delivery
quit
221 2.0.0 localhost.localdomain closing
connection
Connection closed by foreign host.
And that's it. Of course, replace localhost.localdomain with the intended recipient's host and domain. The mail from: line is for sendmail to verify the sender's domain and the second From: line will be interpreted by the recipient's MUA.
And that is all MUCH harder to fake than a signature. (Practice a signature for a few hours...no one who isn't an expert would be able to tell if you have any talent...and I have doubts as to whether an expert could be sure.)
I mean there are going to be a LOT of subtle patterns in the way someone writes, especially as the text gets longer and longer. With a signature, you can see all the nuances right in front of you, with writing, you could miss a lot.
I think that is an interesting possiblity you raise, about defrauding by claiming something was faked, but unless someone is a linguist, I doubt they'd be able to mask themselves well enough.
I wonder, though, if software sophisticated enough to detect a particular author, or even to fake a particular author (or provide all the information...ALL of it...neccesary to do so) has yet been written...
That was my first reaction as well. A contract can be made over ordinary text e-mail if the identity and intention is clear. Yes, an e-mail can be forged, but that is covered the same way a forged signature or impersonation. There doesn't seem to be any question of identity or intent here. After all, e-mail is just communication. Signing something just helps ensure identity, but it is not the only way to establish it.
Robotiq.com is heavily tested on animals
Thank you for agreeing to give me 10 bazillion dollars. Please deposit it in the following paypal account...
People have made contracts by telegram for over a century. Why should E-mail be different?
Either side could still raise the issue of forgery, but in this case, everyone agreed that the e-mails were genuine. So that's a nonissue here.
So, when I've had sexual discussions with women over email, where we tell each other what we want to do to each other...that is binding? OK, fine by me. I can't wait to start fulfilling these contractual obligations.
In Bushworld, they struggle to keep church and state separate in Iraq as they increasingly merge the two in America.
Of course, then, sometimes people send out long memos, or detailed documents, or whatever... Either way it's gonna be a mess.
The Mongrel Dogs Who Teach
Hm. I like the idea of faking a particular author, or easier- masking the author of origin by taking the language and translating it into a generic predetermined "pattern" somehow-- Like a program that would take a signature and convert it into arial size 12. Basically removing the authors signature style and replacing it with the signature style of the software/computer.
Sort of like writing in all block letters or typing letters into the computer- a raised level of anonomity. Not only would the handwriting be unrecognized but so would the flow.
-Sara
I'm pretty sure that, in all U.S. states, contracts for real estate sales are required to be entirely written.
Whatever you do, please don't set it to "Hemmingway". :P
Verbal and handshake agreements are binding here in Massachusetts, but real estate is an exception. The "parol evidence" rule that generally permits oral contracts does not apply to real estate. Where land is concerned, it has to be in writing. I actually had to invoke that once when a seller claimed after the fact that he had intended to change a clause in the purchase and sale agreement, and that I had orally agreed to it. He was lying, but that didn't have to be proved, because that type of contract has to be in writing.
Now Congress has legalized electronic signatures, and doesn't require any specific technology. And the authenticity here was undisputed. So holding that this email is "writing" seems pretty logical.
There would be severe consequences for any type of forgery, if it were presented in court as authentic.
Besides, the defendant didn't argue that the e-mail was faked. He just said that it wasn't legally binding. If the defendant argued that the e-mail was faked things might have gone differently, but with his admission that the conversation was authentic, that seems to solve the problem of authenticity. Dosen't it?
Other e-mails have specified the requirements for a binding contract better than I could.
___
It's the end of my comment as I know it and I feel fine.
The part of the article that is odd is that the court appears to think that the email between the husband-owner and the buyer was sufficient to bind the wife-owner because she is referred to.
How is this odd? Marriage laws frequently consider a married couple to be legally equivalent to any other kind of legal partnership... If this was the argument used no longer they lost the case.
an e-mail based contract isn't worth the over million dollar fiberoptic cables it's transmitted over.
I'm not sure if this proves her wrong.
___
It's the end of my comment as I know it and I feel fine.
By a "legal partnership" I assume you mean those entities that the law regards as a "person" suchas a corporation, partnership, etc. A married couple is composed of two persons (since wives are no longer chattel). What I meant by "odd" was that it is almost certain that the husband cannot commit the wife to the transaction without her consent. Because of the Statute of Frauds, that consent will have to be by a signed writing or it is unenfoceable. The judge, according to the article, seems to think that the wife's written consent is not necessary. If that's true, the case is a moderately interesting bit of cyberlaw but a critical bit of family and real property law.
Q:How many libertarians does it take to stop a Panzer division? A:None. Obviously market forces will take care of it.
I think this is a very good ruling. I do not think that every e-mail exchange is legally binding; either standards should be established or each case should be considered separately.
I think e-mail is legally binding in this case because it is obvious that the buyer and seller had every intention to conduct a sale together (Seller: "Once we sign the P&S we'd like to close ASAP."). If the seller was courting other buyers simultaneously, he was lying; the seller was not acting in good faith. On the other hand, the buyer was acting in good faith and the two parties went through all of the negotiations of a normal house purchase.
It is true that e-mail can be forged, but so can signatures. In fact, signatures are easier to forge than a full series of e-mails. As he should be, the judge is more interested in evaluating whether a contract (whether verbal, electronic or written) was negotiatioed and agreed upon and evaluating whether one of the parties was acting in bad faith. In this case, one party was acting in bad faith, hence that party should not be allowed to escape from the contractual obligations.
Jason
IANAL, but this seems like a good thing. The validity of the emails was not in dispute, and the fact that there was a real negotiation was not in dispute. This was simply a sleazy seller who at the last minute decided that the terms did not suit his needs. The issue that got the seller in trouble was that the negotiations were in writing, and he was not willing to perjure himself.
Allowing people to make a legally binding contract with as much ease as the sending of an e-mail may not be in consumers' best interests, some say.
This is the silly part of the story. How many cases have we seen in which sellers has tried to sell goods over the Internet only to back out using the excuse "we had no contract." This is what is bad for consumers, and has always been bad for consumer: sellers who use sleazy tactics to bring in customers, and then weasel out of the sale when the terms are not to their advantage.
In this case, buying and selling a house is an extremely complex matter, which, I suppose, is why people often pay brokers to handle the details. As far as consumer falling into traps, rhere is already protection for people who get tricked into a contract, and ways to prosecute people who use such tactics.
"She's a scientist and a lesbian. She's not going to let it slide." Orphan Black
I'd think it's the same thing with e-mail. If somehow proof can be shown that the e-mails were genuine (digital signatures, or corroborating log entries, subpoenaed hard disks, ...) then, why should e-mails be considered any less binding than oral contracts?
The only problem I see here is the importance of the purchase: this is a house being sold, after all, and for this kind of transaction, normally special procedures would be needed. Indeed, for real estate purchase, even written contracts alone are not enough, they need to be notarized. So how come the judge ruled in this case that sth which is essentially an oral contract was enough?
Somewhat along this line, the fist Tek novel by William Shatner had to have been written by Ron Goulart. Goulart, like Lafferty and Bradbury, have unique styles.
As one of the many NALs here, I just wanted to offer thanks for the legal opinion (and, no, I would not construe it as advice, etc., since, among other things, individual circumstances vary).
You could've hired me.
The point is, neither side argued forgery.
Sure it could be forged, and if you had argued that it was, then the fight would be on.
If I agree to soemthing with you, there doesn't need to be anything signed, any handshake, or any other proof to make it a binding contract.
Signed sheets of paper just make it really easy to prove that you agreed to something. That is where contracts, signatures, and witnesses come into play, to offer proof.
Say we have an agreement that we made over the phone. I don't hold up my end. You sue me. We go to court, and you say we had an agreement. If I stand up in court, and say sure I said that, but I never signed anything, you are going to win.
I was just wondering, a while back I tried selling something on ebay and talked to the guy via email and he agreed he would buy it and he won the auction. However, he never came through. Isn't that breaking a contract?
I once had a somewhat sleazy dealer "forget" to put a key clause into the written contract on a mobile home, but I read it carefully and called him on it before signing. It did get written in. I suspect that he'd actually made the price a bit more attractive than he could really afford, expecting to make it back and quite a lot more on that one change. So he scr***d himself.
There is nothing clear about this situation. Put forgery aside. Instead consider that in real estate situations, the gravity of the situation has generally meant that only signed contracts would be honored. In fact, Florida gave weight to this by requiring a jury of 12 for real estate decisions but at one time felt that it took only six to decide a capital case. In Washington, only one oral contract in real estate has been honored. Don't bet good money that this decision will stand up.
Technically, a handshake can be considered a legally binding contract. The only problem is, when you get to court and one side says something differently from the other, and there's nothing in writing to back it up, its difficult to enforce.
I'm not opposed to using email as a contract medium, as long as both sides agree that its legitimate. The problem is, when you're signing a contract for a one year ISP dialup service, its less significant if one of the parties fails to hold up their end of the bargian. When you're buying, or selling a house, car, or anything that costs more than the average person makes in a year, you want to make sure that the contract is as binding and unbreakable as possible, which means that NEITHER side should rely on email, espcially unsigned email as a legally binding contract.
Simple rule of thumb. When you're about to enter a contractual agreement, consider what will happen if the opposite party regegs on the agreement. Are you going to sue? If so, then make sure that the contract will hold up in court beyond any reasonable doubt. If you wouldn't bother sueing, then don't worry about it. A handshake is good enough. Or an email.
-Restil
Play with my webcams and lights here
If I implied that it was clear that the plaintiff is just and the contract should stand then I mis-stated, because that was not my intent: Indeed, I have no opinion on whether or not this is a fair contract or if it shoudl stand. Instead, what I was saying was clear was that there was some communications and one party took it as a contract and the other didn't (i.e. There isn't an issue of the veracity of the emails coming into play), versus an issue of whether or not email is a trusted form of communications.
It's important to note that the judge hasn't said that this definately is a contract, just that there's enough evidence to make this a reasonable case. So now they get to have the actual trial.
"The question of whether a computer can think is no more interesting than that of whether a submarine can swim" -EWD
"You like the pool? Too bad, we're taking it with us."
Here in Scotland, a verbal agreement and a handshake is legally binding.
People are more honest here as a result.
:-)
Some are saying "email could be forged".
Guess what. So can contracts. So can lots of things.
A contract is a record of a negotiation. A way to show the terms to which all parties agree to. Serious contracts have witnesses also. Some are also notarized by a notary, or other 'important' people. Why? So you can't claim it was forged, or that you didn't understand the terms.
Now... this person with the email. Yes, email is easy to forge. But is the guy claiming he never wrote the emails? No. He isn't denying that he wrote these...
A contract does *not* have to be signed in ink. IT can be verbal. It can be written any which way, and it can be on the internet. In fact, it can simply be "Will you do this" "Yes"
These can all be binding. The point is whether anyone can prove they were real.
Verifiable to the two individuals sending and receiving the e-mail, not to any third party. Unless the third party checks servers that are in the headers, maybe. Without such a check either party could just make up all or part of the conversation.
Of course, if both sides agree that the e-mails were sent, I guess this isn't a problem. I consider it worrisome because the courts seem insistent on considering internet communication analogous to writing a letter, while people tend to regard it as speaking verbally.
Why would cryptographic signatures have made this easier in court? Nobody is disputing the authenticity of the emails.
They are disputing whether those emails constitute a contractual agreement.
You've already had one response reminding you of the Statute of Frauds, which I'm very surprised you would have forgotten if you're actually a lawyer. A contract for the sale of an interest in land falls under the SoF in every US jurisdiction that I know of (LA is always a little odd, so it may be an exception), and the SoF requires that a "contract or agreement upon which such action is brought, or some memorandum or note thereof, is in writing and signed by the party to be charged therewith" (Mass. Ann. Laws ch. 259, sec. 1 (2001)).
You could argue that the SoF is just a defense, not affecting whether a contract has been formed, but I disagree, and my legal dictionary seems to support this. Specifically, one of the defining characteristics of a contract is that you have a legal obligation to perform it--IOW, that it's enforceable. A "contract" for the sale of an interest in land that is not in a signed writing does not satisfy the SoF, so it isn't enforceable, so (IMO) it's not a real contract at all.
The other point I'd like to make regards consideration. You're right that each party has to give (or do) something, but just to clarify: the "something" can simply be a promise. For example, if you and I both sign a piece of paper that says you'll give me $15k and I'll give you my car, we're both bound at that point. I'm sure you knew this, but it seemed that your statement above re: consideration could be interpreted to say that it couldn't be enforced until one of us had actually performed (you'd paid me or I'd given you the car).
"Incorrect. You can, in fact, be bound to verbal contracts. It's just harder to prove."
First, he said that. But a judge has to make a decision based on whether or not he believes the conversation took place. In other words, the winner is the person who makes the most believable story.
Second, you're nitpicking a detail instead of listening to his point. It's really frustrating when somebody puts some thought into what he's saying, only to have somebody nitpick a detail. The funny thing is, he basically said what you pointed out, the whole point he was making was that email has more value than a verbal contract. If you had said 'verbal would stand on higher gruond than email because...' then you might have had an interesting piece there, but instead ya came off trying to sound smarter than him.
If you're going to respond to somebody, try to put a little more thought and explanation into it.
"Derp de derp."
This is not a new legal nut. The essence of contract law is the agreement, and how that agreement is sealed, either verbally, digitally, or with pen and ink, is irrelevant.
It's the same basis as for ebay auctions, or any other contract.
Most contracts do not require a signature as a legal precondition to their enforceability. It suffices that the plaintiff prove the elements of a contract (offer, acceptance, consideration or a substitute for consideration) and be done, although those elements are often easier to prove where there exists a written and signed contract.
However, certain contracts are only enforceable if there is a legally sufficient memorandum signed by the party against whom the contract is to be enforced. Among these contracts are those concerning the sale of an interest in real estate. The signature is a substantive requirement -- This so-called "statute of frauds" prevents enforcement of a contract, even when there is otherwise compelling evidence of a deal.
The question, then, is whether an e-mail can constitute a legally binding memorandum (is it a writing, is its content sufficient to memorialize the deal for the statute of frauds), and whether the e-mail is signed. Depending upon the e-mail -- and the devil is in the details -- the answer can be a clear and unequivocal "yes" in the United States. There is ample common law to support these cases, but the recently adopted E-SIGN legislation and the e-signature statutes adopted in many states make this a no-brainer in many case.
I don't have any fact sufficient to apply these general ideas to the given case, but that is the framework for analysis of these questions.
In short, typing your name at the end of an e-mail document can constitute a signature in many or most cases. However, this only starts the analysis -- there is also the matter of proving the alleged e-mails are authentic, and that they are unforged and unmodified. In some cases and statutes, there may also be an obligation to prove an "intent to authenticate."
Hopefully they are, else the company I work for is kind of screwed. Right now we process all our "legal" refund forms certifying that the person has removed and/or destroyed the product by that form...without it...and if it wasn't a legal document...well....a lot of people would have free software now...
GeekWares - Buy and Download Today!
You're right, but as I posted in another comment, the statute of frauds can be overriden in situations where the court would regard its enforcement to be unconscionable. Since the defendants are relying on the statute of frauds to try and gazump the plaintiffs, the judge has evidently decided that would be unconscionable.
The doctrine of unconscionable reliance on the statute of frauds is part of the branch of general law called equity. Equity developed as a fuzzy, morality-based system of jurisprudence that sought to ameliorate the sometimes harsh consequences of the common law's desire to uphold strict legal rights. As such, equity sometimes plays fast and loose with the law, binding people where no legal obligation exists. There is a maxim of equity that states, "equity looks to intent rather than to form". Although there is no form (i.e. evidence of a legally-binding agreement) to indicate the wife's consent, the judge has decided that there is evidence of intent on the wife's part, and as far as equity is concerned, that is sufficient to bind her.
We're pretty far off on a tangent here so I'm not going to quote your response. I figure you remember.
"Unconscionability" could conceivably allow the court to find that a writing satisfying the statute of frauds was not required for the enforcement of a contract concerning real property. Unconscionability can let a court do anything. But it is a high standard. The article certainly doesn't reveal anything about the wife's behavior that would so "shock the conscience" as to obviate the writing requirement. It reveals nothing at all about her behavior.
Property Law was a long time ago but I don't recall a single case where unconscionability was used to enforce a contract against an individual who did not themselves contribute to the unconscionable action. It is easy to imagine that someone negotiating with a husband would reasonably believe the husband's assurances that he spoke for the wife as well. But frankly it is even easier for me to believe that someone buying an extremely expensive home would know that a writing is a key requirement for enforcing such contracts.
I suspect that the article is leaving out important details. Most likely IMO, is that the emails help show how the plaintiff acted in reliance on the contract to his detriment. There are lots of cases where this additional, detrimental reliance is sufficient to get around the statute of frauds.
Q:How many libertarians does it take to stop a Panzer division? A:None. Obviously market forces will take care of it.
An e-mail "contract" is not. Digital signature algorithm is one way to "sign" an e-mail - in fact, IIRC Bill Clinton signed something into law that allowed a DSA-signed message to be treated like a signed paper document. However, a "regular" e-mail document would be like a verbal contract - it would be a loosely binding, informal agreement rather than something signed and witnessed at the county courthouse.
That's it. I'm no longer part of Team Sanity.
I would just like to point out that contracts via e-mail were allowed under the United Nations Commission on International Trade Law (UNCITRAL) Model Law on Electronic Commerce (1996) - http://www.uncitral.org/
I personally don't see the fuss about contracts via email. I'm a second year law student at The University of Melbourne and we've just covered this area of contract law. The issue is a lot easier here in Australia since we, unlike the backward yanks, do have legislation regarding contracts through electronic transactions - Electronic Transactions Act (Victoria) 1999.
I think it is a good move to allow email as a method of agreeing to contracts as long as it is done in some kind of controled manner and as long as both parties can agree on the fact that the emails do exist.
In case you didn't know, a handshake was *the first*. In Anglo-Saxon law, even oral consent constitutes a contract. As to email forgery, it can be checked from mail server logs (both the sender's and the receiver's).
It doesn't mean shit since till you accept their offer. When and if you do, then it becomes a contract - they have to deliver, you have to pay.
>And that's it.
That's nuthin'. First, the maillog will reveal your pathetic attempt of forgery, secondly, the mailer won't be what the other guy uses (he may be using MS IE, Eudora or something else, but not what you used) so they'll easily figure it out, and thirdly, they'll figure out from what host you conected to telnet server (being a genius, probably your home ADSL connection). In 48hrs they'd track you and you'd be in jail. And last, but not least, those who have an open relay, deserve to go to jail.
>Insert standard disclaimer here: IANAL, if you get your legal advice on /. you're a fool, this post is not legal advice, etc.
Look at him - (Anonymous Coward)^2! Truly pathetic...
He's anonymous and he still posts this silly disclaimers. And didn't you know emails are legally binding but /. postings aren't?
A couple days ago somebody sent me spam with the subject heading, "I owe you lunch."
Is that a legally binding contract? Maybe if I track down this asshole I can sue him (or her) for a free lunch. Better yet, I'd love to force some spammer to actually produce the hundreds of hot young girls who are horny for me.
I still don't understand why so few people use PGP. If someone wanted to present a legally binding contract, to confirm it was from them, PGP would probably be the way to go.
[insert witty comment here]
The major purpose of signatures is to prove that you and another party agreed to the same thing. You do not really need a signature to make a contract. Legally binding contracts can easily be verbal (although it seems not, in select cases).
This principle is nonrepudiation (SP?). It means that it can be reasonably proved that I agreed to something.
If two parties were carrying on some sort of email type agreement, there is a record of what each party says.
Now if one party were to allege that something had been changed or tampered with, there may be a problem, however if both parties agree that what is presented in the emails are as they wrote or recieved them, then we have a nonrepudiated agreement.
PGP signatures serve to prove that you and no one else signed a digital document (actually that assumes your passphrase hasn't been compromised). However swearing in a court of law that you wrote or said something is just as valid of method of legally proving that you said or wrote somthing.
If this is indeed what happened in this particular case, that as far as I know it doesn't matter what kind of seal, signature, mark or whatever else is on the document. Swearing that you wrote it would indeed prove legally that you did.
Once the fact that you did write it is established, it is then only a short hop to make it a legally binding document. This is done all the time for verbal agreements.
It is a good idea not to allow some high stakes agreements to be legally binding if verbal, this is because people can remember differently. In the case of email however there isn't this problem. You get the general spirit of a verbal agreement without the problems of misremembering what was agreed to, or claiming of misunderstanding.
There is a civil war coming in the United States. Remember which side has most of the guns
Hmmm. Where I come from, unconscionable reliance is backing out of a real property agreement containing all relevant details and lacking only in proper form. The actions of the vendor create an equitable estate in the property in the name of the purchaser. The only defence a third party holding a legal estate in the property can raise, IIRC, is lack of (constructive) knowledge of the dealings. The wife surely ought to have known about her husband's plans to sell the property, given the nature of their relationship.
At any rate, it would be fruitless to speculate without access to the ruling.
Can clicking an "I agree" link be considered a legaly binding contract? Or how about replying to a message? Will spammers be able to force you to pay them money by getting you to click a link before reading the fine print.
http://www.b.150m.com/
I wonder what this means for EBay's statement that all bids are binding contracts *except* real estate sales.
Ah, computer dating -- it's like pimping, but you rarely have to use the phrase "upside your head" -- Bender
I don't understand why everyone is so concerned with that email thing. Its an "aside" really.The legal question here really whether there was a meeting of the parties' minds - ie the so-called 'consensus ad idem'. For parties to be consensus ad idem they must have agreeed on (1) the subject matter of the contract, in this case the property, and (2)the selling price. Normally these two requirements are enough to conclude a contract. The contract need not take any specific form, it could be either verbal or in written. However, there is an exception to this general rule. This applies in contracts for the sale on land (also Credit agreements etc). Such contracts are not concluded until they are reduced to writing.Thus, it is not enough in such contracts that parties have fulfilled the initial two requirements (the Essentialia), if the contract is not reduced to writing it is void, ie never came to existence. The reasoning is simply - a contract for the sale of land must be in writing for lodgement with the Register of Deeds to effect transfer of ownership. In the above scenerio one could challenge the validity of the contract on two basis: (1)Material Mistake - one could argue there was no meeting of the minds/ consensus on the purchase price. (2)the contract was not reduced to writing - this is were the question of the "email" comes into operation.I suppose a clever lawyer, wishing to stretch the case, could make an issue of whether there was 'signature' and go into all sorts of definitions of that word found in various statutes. Unfortunately, that would be quite a futile exercise - the email exchange only goes to proving whether there was "Offer and Acceptance" ie in proving the first two requirements. The 'Contract', if there was indeed offer and acceptance, was never reduced to writing and there was never any registration. Neither did the parties agree that the contract would at a latter stage be reduced to writing. Its a tough contract to uphold for the plaintiff!!!