Can Emails Be Considered Enforceable?

That’s a really good question, because most people think of email as being a relatively informal way of communicating, and not necessarily the foundation of an “enforceable contract”.

However here in the United States, courts have generally held that emails can be considered enforceable contracts, even if the intended purpose was for casual negotiation.

Meaning you can unwittingly find yourself in an “enforceable contract” simply by a couple of emails!

That’s the bad news.

The good news is most people aren’t trying to “back door” you into an enforceable contract.  So if you have some email exchanges that you’re not sure about, take a minute to do a quick review and just make sure you’re ok with the arrangement…even if you did think it was “only” an email.

Assuming you are, then put together something a little more formal, that way it’s locked down and airtight.

If you aren’t, no problem either.  Just go back to the person and let them know that you’d like to address a few concerns in your original deal, and see if they’d be open to discussion.  Then when you get something you like, put THAT into a more formal arrangement.

Now let’s say you actually do want to create an enforceable contract via email, how do you do that?

No problem.  Just make sure to do the following:

  • If you are making an offer, state that it is an offer.
  • If you are rejecting an offer, you should state the rejection clearly; if you want to then make a counteroffer, follow up the rejection with the counteroffer.
  • Whether an offer or a counteroffer, your correspondence needs to specify (1) who the parties are to the agreement with specificity, (2) what is to be done by each party, (3) when it is expected to be done, (4) how much money is to be paid, if applicable, and for what purpose.
  • If you are accepting an offer, state that it is an acceptance and reiterate the terms of the offer so it is clear the offer has been accepted. Then go further and state that, by accepting the offer, the parties have an agreement. This is important because some parties may want to drag on negotiations.
  • If you have accepted an offer and do not hear back from the offering party after the acceptance, follow up with that party to confirm that they received the acceptance and to reiterate that you expect the agreement to be executed as stated.    

 

So when it comes to email and crafting agreements, just be careful, because what you say really can come back and haunt you in a court of law!