From ASOS orders to WhatsApp threads, it's safe to
say that we (at least us gen Ys) comfortably communicate online. So
why the hesitation to allow notices under a contract to be served
Sure, there are the usual concerns of how to prove receipt of
the email in IT terms (did your email make it through the
hyper-sensitive quarantine filter?) and getting around ostensible
authority with email signatures (surely your computer and email was
hacked?); but is this really different to letters lost in the post,
forgery or the fax machine spontaneously combusting? We think
Two years on from the reforms to the Electronic Transactions
Act 1999 (NSW) debate ensues over whether an email is as
reliable as a fax machine (in any event, many faxes are now sent
and received by email). This is a rare example of the law catching
up to technology before the masses do.
In an age where commerce is increasingly conducted online,
parties to a contract should safely be able to use email as a
method of giving notice. Drawing both from common sense and the
little body of case law on the area, some guidelines when using
emails to give notices are as follows:
ensure the contract expressly states that notices may be given
ensure the contract specifies when a notice by email is deemed
to be accepted (when it is received by the recipient? or when it is
sent by the author?); and
ensure all parties are comfortable with communicating through
email (as opposed to a history of only corresponding through
letters and/or fax).
The clearer the contract is on the use of email for notices, the
less room for argument down the track. Oh and of course, it's
paperless, is Co2 free and costs less than a raven, so everyone
wins! In short – get with the times people.
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quite proud of it really.
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On 12th November 2016, new laws will commence to protect small businesses from unfair terms in standard form contracts.
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