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Owner
Outlook: Inking the Deal with an Electronic
Signature, continued
Most
real estate professionals know that the Statute of
Frauds in each state requires that a contract for the
sale of property must be "in writing." However, with
legislation like the Uniform Electronic Transactions Act
(UETA) and the Electronic Signatures in Global and
National Commerce Act (ESIGN), there is a very distinct
difference between "in writing" and "on paper." And, in
the eyes of the law, a negotiation conducted over
e-mail, can, in fact, be perfectly binding.
With
so much on the line, how can you distinguish between a
friendly e-mail exchange in which you think you
are just discussing some terms, and one that actually
binds you to those terms? Ask yourself the following
questions:
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Do all of the material terms outlined in the e-mail
discussion reflect a meeting of the minds when
considered together? (We will discuss the “mirror
image” rule shortly.)
-
Is there a signature of someone authorized to
participate in the negotiations? (This can be
something as basic as a preset e-mail signature, so
watch out.)
If
you can answer yes to both of these questions, then you
may have a legally binding e-mail in your inbox. Combine
a thread of e-mail negotiations with a too-fast
read-and-reply on the part of a real estate agent, and
suddenly "We’ve got a deal!" takes on a whole new
meaning.
E-mail correspondence can, in fact, act as a binding
purchase agreement and E-mails can be as legitimate as
ink-on-paper contracts.
The use of disclaimers in e-mail signatures may offer
some protection. E-mail disclaimers are commonly used to
limit contractual liability where someone automatically
assumes that they have a contract with you. These days,
disclaimers are a relatively common inclusion at the
bottom of e-mails, but do they really do any good?
There's a mixed sentiment on the value they provide.
Some legal experts insist that such disclaimers are
overused and offer little, if any, real protection.
Still, others say there is no harm including them and
counter that they can offer some protection, depending
on the circumstances. Consider having an expert review
your disclaimers, should you choose to use them, to
ensure that you have taken into account all of the
latest legislation and that you are as protected as
possible.
Excerpted and adapted
from Sign Here: Contract law on E-Signatures (source:
TheCEShop.com)
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