Slashdot Mirror
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!'"
... so does this mean that laws made in Britain prior to the US Constitution are binding now in the USA? I think I am confused and I have not RTA so maybe someone could enlighten me.
- Andrew
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Editors, RTFA. This is not about email signatures in the sense of the things people like to put after the "-- " at the end of their emails to add a personal touch; it's about regular signatures (signing your name), and it's about the fact that the LACK of a name or signature in an email means that an email CANNOT be a valid "written offer".
The only thing this means is that if you include your name in your signature (the email signature again, i.e., the part after the "-- "), whatever you wrote in your email can be treated the same way as something you wrote in a regular letter that you signed with your name.
But that's neither surprising nor worrying - quite the opposite. The implicit statement in the story summary that the disclaimers some companies like to put into emails could somehow constitute a valid contract is a big, fat piece of Slash-FUD.
Speaking of which, I propose the term "Slash-FUD" for intentional FUD in and intentionally misleading summaries and headlines of Slashdot stories - the problem seems to have grown so large in recent years that I think it deserves a special name. Death to Slash-FUD! Let that be our battle cry.
quidquid latine dictum sit altum videtur.
On the other hand, I think email is not admissible as 'proof' in a court of law, since it is too easy to forge and email and/or muck up the sender information. So, even if an email includes a clever sig and/or statement to the effect that it is a binding contract between the sender and the recipient, it is highly possible it would be thrown out of court, as it does not constitute admissible evidence.
At least, I am almost certain that's the case in my area... Napoleonic code and all that. YMMV, IANAL, etc...
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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.
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Since the statute predates the Constitution of the U.S., a clever lawyer could argue it applies here equally.
How could a clever lawyer argue that, exactly? Didn't we have a big war a couple hundred years ago so that English laws would no longer apply in America?
Yes. Apparently some folks on slashdot have made jokes involving taking off every "sig" for great justice. The hilarity comes from the fact that "sig" rhymes with "zig" and they are making this pun from within their "sig". It was that joke which was a reference to the earlier joke from Zero Wing.
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We better all prey Slashdot sigs don't count! Otherwise we're all going to have a lot of problems.
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We had a little bit of a scuffle about 230 years ago that made us no longer subject to British laws.
I'm trying to remember the name of that, it had some sorta name... I think Nintendo has something to do with it.
-JesseNothing says "unprofessional job" like wrinkles in your duct tape.
"Since the statute predates the Constitution of the U.S., a clever lawyer could argue it applies here equally."
So THAT explains why whenever I order tea from Boston, I still have to send a tax to Britain.
Thanks for clearing that up.
(And just to be even clearer, while our legal system has its foundations in the English common law, we um, modify it with our own statutes and common law now. It's a little thing called independence.)
IANAL, but IAALS (i am a law student). Although a grade school history class should be enough to know that the statement in the summary was way off... hmmmm...
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.
Seems to me The Reg has drawn exactly the opposite conclusions the judge's decision supports.
The judge ruled that the name in the header did not constitute the name required for a binding contract, because it was put their automatically as a matter of course.
I think that similarly, a crappy e-mail signature disclaimer would be ruled completely invalid and not contractually binding, precisely because it is placed there as a matter of course, even when completely inappropriate.
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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.
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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If the court interprets what is known as an "email signature" as a "signature", the court is deeply confused about how signatures are added. An email signature is more like pre-printed stationery.
...the question is whether he can do so successfully. That is, whether the judge will rule in his favor.
I don't think "common law" means at all the same thing as an explicit statute, where Congress has set down in writing what the rule is. In those cases, the court is bound to enforce the law as written, regardless of whether or not it's the way things are usually done. Statute can break entirely new ground, make things illegal which were legal before (e.g. cocaine) or legal which were illegal before (e.g. abortion).
Not so with common law. I believe "common law" just translates to "what we've always mostly done." It's just a short way to imply that what people have almost always done, on their own, spontaneously, in response to a given situation should, after a long enough time, acquire much the force of written law. Especially when "what the people have done" has been ratified by repeated and consistent judicial decisions that agree with the tradition.
It's a way to recognize that all law derives ultimately from the will of the people, and in certain situations people have expressed that will directly, without the need for legislaturely lawyers to write it down on parchment in curly script. Hence, the idea of "common law" is a constraint on the judiciary, telling them that, in the absence of explicit written law, they can't just decide cases before them on the basis of their personal whim. They can't just say: well, there's no written law here, so I'll rule as I see fit. Instead, they are obliged to recognize as law that "law" which is merely implied in long social traditions and the body of prior related judicial decisions.
So from this POV could a lawyer successfully argue that English common law supercedes the Constitution? Of course not. Written statute always trumps unwritten common law. Common law is only used when there is no written law to provide guidance.
Could a lawyer successfully argue that English common law supercedes post-1776 American common law? Not any more than he could argue that the speed limit on highways should still be 55 MPH because the 1970s era 55-MPH laws predate the later laws allowing the speed limit to be higher. The later law always controls, even when it's common law.
So what's left? Only that a lawyer could successfully argue that in the absence of any relevant written statute, and the absence of any unique post-1776 American tradition, the court should consider the traditions in England prior to the Revolution. That doesn't sound very scary, or unreasonable.
"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.