There is a very widespread misconception that contracts must be in writing, and signed, before they are enforceable in court as binding on the parties. This is flat out wrong. The general rule is that offerees can show their acceptance of a contract offer by ANY means that are "reasonable under the circumstances." That includes oral agreements.
But there are important exceptions. There are many "statutes of frauds" -- the term comes from the original Statute of Frauds that was enacted by the English Parliament in 1677 -- that require that certain kinds of contracts be documented in writing, and signed by the parties, before courts will enforce them. Sales of real property, for example, require signed writings. More relevant for our purposes, in the United States, under the Uniform Commercial Code, any contract for the sale of goods for a price greater than $500 requires a signed writing.
So suppose our hypothetical agreement with XYZ for delivery of their newsletter involved payment of $500, rather than $5, for each issue. Is our purely electronic communication "in writing"? Have we "signed" the agreement?
You might think that the law, having had several hundred years to sort out these questions, would have given us sufficiently precise definitions of these terms to allow us to apply them with clarity to this new context. You would be wrong. As to whether or not this is in writing or not, there have not been any cases regarding whether a file that exists in a computer's memory is "written" for purposes of the statute of frauds; most commentators think that the answer is probably "yes" (and we tend to agree), but we might have to wait until courts have a chance to look more closely at this before we can be certain.
And similarly, with regard to the question about whether or not our clickwrap contract has been "signed," the law has suggestions, but no clear answer as yet. The Uniform Commercial Code itself defines "signed" as including "*any* symbol executed or adopted by a party with present intention to authenticate a writing." We know, for example, that a letterhead on a faxed document constitutes a "signature" for purposes of the statute of frauds, and that is likely to mean that your "signature file," or perhaps even the header information automatically inserted by your electronic mail or browser software, could be sufficient; but we'll see if courts accept that extension of this venerable concept.
authors:
| Larry Lessig | David Post | Eugene Volokh |
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