Legal Status of Email

Q: I know a signed fax is a legal document but what is the legal status of an email?
I am considering varying clause R1 of the ABIC SW-1 2002 to permit email correspondence without providing a signed copy transmittal. Obviously there is no ink signature and this may make the documents not legal.

A:The question of whether email is “legal” (that is, a valid form of communication) is a separate question to whether a contract may allow for email communication to be valid. In relation to the “legality” of email, the question has to be considered against a general law background (either where no contractual relationship exists between the parties communicating with each other or, if there is a contractual relationship, the terms of that relationship don’t (or don’t adequately) deal with email communications). For instance, if you and I have no existing contractual relationship, is it “legal” for me to send you a letter of demand by email? The short answer is that we won’t know until the matter has been tested in court.

By comparison, the parties to a contract are free to organise for their communications to occur however they see fit. For instance, the parties may agree that carrier pigeons, semaphore, and/or smoke signals are valid forms of communication. If the parties to a contract agree to the validity of such forms of communications, then it strikes me as highly unlikely that a court will say otherwise.

Accordingly, I can see no legal (as opposed to practical) reason why the ABIC contract may not be amended to allow for email communications without the need for a signed copy to follow by hand, fax or post. The practical problem, of course, is that it is possible for email items to fail to arrive and for the sender to be unaware that they have failed to arrive. Mind you, the problem is probably no worse than posted items failing to arrive.

The way to amend an ABIC contract to allow for email communications (without needing to worry about sending follow up copies by hand, post or fax) would involve doing two things. Firstly, the third bullet point at R1.1 would need to be amended thus: “emailing it, to that person, or attaching an electronic copy to the email. Email may be sent to the email address in item 1 of the Introduction or such other email address as may be notified (by hand, fax or mail) by one party to the other party and the architect, or by the architect to each of the parties.” Secondly, clause R2.4 would need to be amended thus: “A document sent by email is to be treated as having been received within five minutes after it is sent, unless the sender receives an error message to the effect that the email was not successfully delivered.”

The easiest way to incorporate above amendments is to work them into Schedule 2.

C L