Legal Landmines — Emails + “From” Field = A $400,000 Contract
Electronic contracts are easily made.
An email without a typed signature can support an enforceable electronic contract because the sender’s name in the “From” line of the email is a signature according to the First District Texas Court of Appeals in Khoury v. Tomlinson (Dec. 22, 2106). Following are relevant excerpts of those emails.
Subject Re: agreement
From: Prentis Tomlinson
Date: Monday, January 16, 2012 8:32 AM
“We are in agreement and I am working on… the financial documents you requested….”
***
From: John Khoury
Date: January 16, 2012 3:47 PM
“Prentiss, to recap our meeting in Houston on Monday January 9, 2012….:
1. You confirmed your intention to repay the $400,000 loan….
[2 through 4 omitted here for brevity]
Please confirm this agreement. Also, please make the regular payment for January
Thank You for honoring your word….
Best Regards,
John Khoury”
Most courts recognize that emails can create contracts. To overcome this obstacle, Mr. Tomlinson argued that he had not “signed” his email. The court, citing several authorities, ruled that Mr. Tomlinson’s name in the “From” line of the email was his signature, an electronic contract was formed, and Mr. Tomlinson breached the contract.
As this case demonstrates, affirmative actions should be taken to avoid contracting by email or other electronic communication. Those wanting to avoid electronic contracts should discuss with legal counsel using electronic contract disclaimers and avoiding words typically used to form contracts (such as offer, propose, accept, agree, etc.). Those interested in forming electronic contracts should discuss with legal counsel alternatives superior to litigation for proving signatures.
JD
