Lawyers Catching Up with the Real World: You Mean People Really Use Email?

June 19th, 2008

File this under pet peeves:  I work through a lot of agreements of all different kinds.  Every single one has a “Notices” provision.  The purpose of this language is to avoid arguments about whether notice was properly given of certain events.  It only becomes an issue when the relationship has broken down, and basically serves only to avoid arguments about the terms of the argument.

That said, 95% of the agreements I get say that notice may be delivered (i) in person, (ii) by Fedex or registered mail, or (iii) by fax with a confirmation copy by mail.

How often do you communicate by fax with people compared to email?

It’s not a huge point, but one of the items on my transaction-document checklist is to make sure that the communication methods reflect the way we actually communicate.  I have a standard paragraph I drop in to agreements that says people can provide legal notices by email (with a confirmation copy).  It takes about 30 seconds of extra time on my part and has saved a bunch of running around on the few occasions I have had to actually follow the notice procedures.

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  • That's why I've entirely stopped specifying particular transmission methods in my basic notices clause. I focus instead on establishing that the notice was in fact received (or refused): “All notices required or permitted by this Agreement: • must be in writing; • must be marked for the attention of a specific individual or position; and • are effective when received or refused by that individual or position as shown for example by delivery-service confirmation.” Knowing that s/he might have the burden of proving up receipt or refusal, the sender can choose whatever transmission method s/he deems appropriate. Depending on the circumstances, that might mean email with an automatic return receipt, or it might mean certified mail.

    (For more-detailed agreements, I also use supplemental clauses addressing, e.g., what happens if the addressee can't be found.)

    I've also found it helpful sometimes to differentiate between “ordinary” notices, on the one hand, and notices of breach or termination on the other.

  • Thanks DC. That is a clever approach.

  • Thanks DC. That is a clever approach.