In response to our “You’ve Got MAIL, AND a Contract?!” blog posting in May, one of our favorite Tilting readers asked for any tips on avoiding an e-mail signature that creates a written agreement.

Disclaiming Signatures. The Tilting team is not aware of any authoritative recommendation for language disclaiming the creation of an enforceable contract by the exchange of e-mails. In fact, the general intent of relatively recent electronic communications statutes is to facilitate business transactions by permitting enforceable electronic contracts, not to hinder them. Having said that, businesses may wish to avoid creating an enforceable contract unless one is expressly intended. Probably the most simple response is just to say that in a disclaimer or signature at the bottom of each e-mail.

For example, the following might suffice:

No Binding Agreement. This e-mail, taken by itself or with others, is neither an offer nor an acceptance of any terms or conditions that might become an agreement. Only written terms and conditions on paper and executed in ink by hand and by an authorized person, may become a binding agreement, notwithstanding any electronic communications or transactions statutes that may suggest otherwise.

However, if the parties do wish to transact by e-mail communications, it would be prudent to eliminate the following language from any e-mail intending to cement an enforceable agreement.

OUR OWN DISCLAIMER! No Surprise, Right? As far as we know, no Texas court has written on this issue, nor is there a specific Texas statute. These are practical business thoughts only and definitely ARE NOT LEGAL ADVICE.

  • Good Advice– to or not to contract, that is the question and being clear is great advice.