The law may be slow to evolve, but courts are beginning to embrace 21st century communication methods. The prospect of negotiating a deal by text message may seem like a laughing matter, but a Massachusetts court recently relied on parties’ email and text communications to determine the essential elements of an agreement for the sale of land.
In a time when parties are increasingly relying on alternative methods of communication, it is important to be mindful of the fact that when communications are reduced to writing (by email, text, tweet, or otherwise), they may be used to determine the existence and terms of a contract. In a perfect world, carefully drafted contracts would ultimately replace and supersede these informal communications. Nonetheless, parties should be careful when using alternative means of communication to negotiate a deal and they may want to consider including disclaimers with such messages, for example, “No binding agreement will be formed by this exchange. Only a mutually signed final contract will be binding on the sender.” At a minimum, a party conducting substantive negotiations via text message should consider capturing and recording those conversations and negotiations as some evidence of its discussions.
For readers interested in exploring this issue in more depth, I recommend reviewing the Court’s decision in St. John’s Holdings, LLC v. Two Electronics, LLC, No. 16 MISC 000090 (RBF), 2016 WL 1460477 (Mass Land Apr. 14, 2016).