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Britain's 400 Years of Cyber Law
corbettw writes "There's a news piece in The Register this morning about a British high court ruling about email signatures, and whether they constitute binding contracts. Apparently, the 1677 Statute of Frauds dictates what constitutes a contract, so an email with a disclaimer in the sig could qualify under the language of the statute. Since the statute predates the Constitution of the U.S., a clever lawyer could argue it applies here equally. Maybe there's some truth to the Internet joke 'take off every sig for great justice!'"
It's ZIG. Not sig.
The statute of Frauds applies in the US for sure, as it was covered externisvely at my Uni business law class so many years ago. Wikipedia covers this pretty well:
http://en.wikipedia.org/wiki/Statute_of_frauds
Since the statute predates the Constitution of the U.S., a clever lawyer could argue it applies here equally.
The USA declared independence and is therefore independant of the British legal system. The same goes for Ireland too. do you think the 1801 Union Act still applies there because it predates their constitution? :P
In the British legal system a contract is formed when the following are all true:
For example, if you exchange e-mails with your girlfriend and you promise to take your girlfriend her to the pictures if she buys you a pint tonight, and she does, then she can sue for breach of contract if you do not take her. Notice the agreement is independant of the medium it is formed in. If some new medium communications medium existed tomorrow, contract law still applies to it.
Simon.
There's a school of thought (Justice Scalia seems to be the most prominent member of it) that says American common law includes British common prior to 1792 (I think that's the year). It probably won't matter much here, most contract law is statutory and is done under the Uniform Commercial Code (or whatever variant of it that a state has adopted), which has specific rules regarding what constitutes a contract.
I'm not a lawyer either, but from what I understand, any rulings made in British courts prior to US independence can be used as legal precedents if they're not directly contradicted by either later rulings in the US or revisions to US laws.
William of Ockham had no beard. The most likely explanation is that it was chewed off by squirrels every morning.
One of the key factors in deciding a case is the precedent set by previous court cases. That is, how other judges decided in a particular situation. When a US judge comes across a case that has no precedent in the US system, he'll sometimes look to the British system (the foundation for the American system) for precedent. If the precedent for that system agrees with the US laws, it can have a major impact on the judge's decision.
http://en.wikipedia.org/wiki/Legal_precedent
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tend to be inherited more in commonwealth countries. The US, as a rogue state that rebelled from Britian, is free to ignore all the laws it chooses. It's already guilty of high treason, from the British point of view.
By contrast, Canada explictly inherited a great deal of British law, though it has it's own laws on contracts which supercede British laws because the King/Queen of England wanted them to (to this day, no law can go into force in Canada without Royal Assent, or (recently) the consent of the Royal Designate, the Governor General).
The US is free to ignore Britian, because it rebelled. The countries that did not do so are still bound by British law.
First of, the statute of frauds is exactly that, a statute. In the U.S. ach state has its own. So whether it applies to email could vary from state to state. The original English statute does not apply in the U.S.
However, most states also adopt the UCC (which applies to sales of good vs. services), which has already been interpreted that signed emails satisfy the statute of frauds writing requirement.
This isn't that big a deal, after all, even an unsigned letterhead satisfies the statute of frauds. You still need to prove offer, acceptance, and consideration to form a contract. You could still contest an email contract if there were fraudulent emails.
It is a touch more complicated than that (which is maybe why law school is 3 years...) Anyway, here is an interesting article about the UCC that includes references to British Common Law. http://library.findlaw.com/1999/Sep/1/131122.html
I got a J.D. but never bothered to take the bar. But any intro class will explain how American and British Common law are related. It isn't worth discussing here because it will degenerate into a flame war about the war for independence...
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I'm pretty sure it's not just a "school of thought"
a tes#American_common_law
Go read the WikiPedia article: http://en.wikipedia.org/wiki/Law_of_the_United_St
Essentially, every country that had been colonized at some point by Britain uses British common law. In the case of the U.S., those precedents are overridden by any subsequently passed laws, but other than that BCL still stands.
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The Statute of Frauds is most definately the law in the US. It is taught in every law school in the U.S. in contracts class, and it is tested on the Bar exam (at least in California).
Much of our law comes from British common law. It would not take a very clever attorney to get a court to consider English common law. It is done all the time where there is either no precident in the U.S., or it is such a long established rule of law (like the SOF), that it is taken as a fundamental underpinning of our system.
Also, the SOF is codified in the UCC for the sale of goods. So, not only is it valid under the common law, it is actually codified for a narrow set of caontracts.
BTW, this is not the point of view of some 'radical right-wingers' like Scalia, it is universally accepted by the legal community. The SOF IS the law in the U.S.
Actually Scalia OPPOSES use of non-English common law by our courts, and has bee quite outspoken about it, to the chagrin of many left-wing white-tower types.
In this case, of course, US law was partially derived from British common and statute law. Examining it can help a court deturmine just what the law is, and how it should apply. That doesn't mean that this centuries-old British statute is binding in the US, just that it's useful as a guide to understanding current contract law.
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In an attempt to stem the tide of stupid comments about the revolutionary war and everything, I would like to say that I AM a lawyer and we DO use English common law in many cases.
We try to apply newer statutory law first. If that doesn't work, we fall back on the common law. When we go to the common law, we look for cases that are similar, and we apply them, often from other English common law countries AFTER the revolution, because we assume they run the same system and want to see what they did. It works pretty well.
The effect, then, is that some really old cases are still good law in America, and how England has adapated them has some part in it. We don't always keep the old common law rule (seisen, for instance), and often we don't follow subsequent foreign interpretation (equitable servitudes), but there's a whooole lot of contract law that is heavily influenced by what other legal systems within the common law framework are doing.
I think from now on whenever I read a post on Slashdot that mocks people as idiots for not being techologically sophisticated I'm going to think of the posts on this story, virtually all of which are completely clueless about the law in a way comparable to someone who doesn't know what an operating system is and thinks Microsoft Windows is somehow an inherent part of every computer.
It works like this. The statute of frauds is an ancient English statute that requires certain contracts to be in writing in order to be valid. Most contracts do not have to be in writing to be valid. However, back in the day, Parliament decided there was so much fraud based on suspicious witnesses showing up and swearing you really did promise to sell your estate for a pittance that something had to be done. What they did was enact the statute of frauds and since then, English contracts for certain things (such as the sale of land) must be in writing to be valid. The exact scope of that is actually quite complex, but that's the basic idea.
At the time of the American revolution, much law was not in the form of statutes enacted by legislatures, but rather based on precedent, that is to say decisions previously rendered by the courts. That's part of what makes it a common law system. After the revolution, US state courts couldn't operate in a legal vacuum, so they continued to rely on English common law decisions for many years, not because they were obligated to do so, but because they had to come up with rules for dealing with situations, and English common law was a familar, readily acccessible source of such rules. Many states had reception statutes that instructed their courts to look to English common law precisely because they needed a source of law to apply and couldn't make up an entire legal system from scratch.
Obviously today American courts don't need to look at English common law anymore except in certain very rare situations as we have over 200 years of our own cases to look at now. However, we still have an analogous situation today in which the courts of one state will sometimes look at the decisions of another state for guidance where an issue is coming up for the first time. It's not because the other state's decisions are binding, but because they might have some good ideas and good reasoning that are worth adopting.
Today, most if not all states have enacted their own statute of frauds. The terms vary from state to state but the basic idea is the same, namely that certain contracts must be in writing to be valid. Whole books have been written on the statue of frauds. Visit the library of your local law school if you want to see more analysis than you ever imagined was possible on this issue.
Actually the Founding Fathers considered completely scrapping the British legal system and starting over from scratch....and decided that this was going a bit too far and would take way too much work, that the existing common law legal system that the States had been using worked not just fine but very well, and so incorporated the British common law system into the new government. Why replace a working legal system with an unknown?
And so we kept the British legal traditions in this country, except in Louisiana, where they use French legal traditions at the State level.
I think you need to reread your history. Many of the founders of this country had a great deal of respect for the English legal system: in theory at least. It was a particular government (that of King George III) that they were less-than-fond of. A great number of the principles enshrined in both the Declaration of Independence and later in the Constitution trace their lineage back to Britain (in particular to the Magna Carta, which the Founders would have been familiar with).
The American court system in particular was essentially of British design, and most of the early judges and lawyers had read the a lot of British common law to pass the Bar. (At lower levels, the pre- and post-revolutionary court systems probably didn't change that much.) It was very common for aspiring lawyers to read Blackstone's as part of their studies until fairly recently--in my opinion, the lack of this today is really too bad. Recall also, that many of this country's Founders were lawyers who had read the Common Law and were used to thinking in its terms: Thomas Jefferson, Samuel Adams, John Dickinson, Oliver Ellsworth, Patrick Henry, and George Mason are just a few; I'm probably forgetting a lot of others. These were men whose concepts of fairness and equality, perhaps of liberty in general, owe at least some credit to their understanding of law.
The everyday jurisprudential theories at work in the courts of England and post-revolutionary America really were about the same, on issues like torts, the definition of crime, etc. Over time there has been divergence on some issues, but there are still a lot of similarities. (More-so than between either the British or American system and a totally different theoretical foundation, like the Roman/Napoleonic Code that is the basis for the French and some other Continental systems.)
Law changes and evolves over time; it's not something that you can easily just create anew out of whole cloth. The American legal system was built on the conceptual foundations provided by Common Law, and there is nothing wrong with referring to it if precedent is needed and nothing more recent can be found. This doesn't happen often (after all, we have 200+ years of our own precedent to go through now), but occasionally some very old Common Law case can be elucidating.
This is not to say that a law is somehow automatically valid here, just because it was present in Britain prior to 1792 (that's an entirely separate branch of government anyway), or even that a court ruling there has an immediate and automatic effect here. It just means that in making arguments and looking for precedent, British case law prior to 1792 is fair game.
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Put it this way - show me the last time someone successfully used a British statute from the 17th century as valid case law in America.
Easy, and very relevant to our subject: every contract signed before the declaration of independence was still considered valid the day after. How was that contract interpreted? under the British statute even after independence and the writing of the constitution.
Hence the legal principle is there: in principle an old British statute can still have legal weight today.
Of course, in practice the answer is: very unlikely, as almost any valid law has been rewritten many times over by congress since independence.
And so we kept the British legal traditions in this country, except in Louisiana, where they use French legal traditions at the State level.
New York, the most important economic area of the young republic, based its legal traditions on the Roman-Dutch law of the Dutch republic. The influence of the Republic of the United Netherlands on American institutions is quite obvious, if only because of the federal structure and explicit self-delegation of legislative power in an explicit constitution. The very notion of having an explicit constitution is antithesis of British legal traditions. Even the Declaration of Independence is modeled on the Dutch Act of Abjuration of 1581 (together with the Union of Utrecht considered the constitution of the Dutch Republic), which was standard fare for legal practitioners in the US in those days.
Only in the course of the 19th century British common law became the dominant jurisprudence, arguably for the sake of consistency in dealing with things like property, and - more importantly - because the US gradually became a monolingual country and using foreign language jurisprudence is inefficient.
"Statute of Frauds" is a legal term of art referring to certain kinds of contracts that are not enforceable if they aren't in writing. If a contract comes within the statute of frauds, an offer to enter into it must be both in writing and "signed."
English law, as codified in the U.S. in Uniform Commercial Code section 1-201(39), says that a writing is "signed" when it contains "any symbol executed or adopted by a party with present intention to authenticate a writing."
The header was inserted when the email was sent. The sender didn't even know this was happening. Obviously, he didntt put it in, or adopt it, intending to authenticate his writing.
Therefore the offer was unenforceable.
For the same reason, if a name is accompanied by a disclaimer saying that it is not intended to authenticate a writing, this negates any "present intention to authenticate" the writing and would therefore not would satisfy the definition of "signed."
The case is no big deal. Hold your towel and Don't Panic.