Not satisfied with having prompted my recent foray into fax terminology, reader David Baghdassarian posted to that item the following comment on providing for notice by email:
As for email notices, the problem I have is that there is too much room for an email to inadvertently be deleted or overlooked, email server to crash, email to be stuck in a spam filter, lost in cyberspace, never sent due to some weird system error, etc. for me to allow for its use as a method of notice at this time. I have allowed for email to be used to provide periodic financial reporting that may be required under an agreement simply for convenience, but for notices of default and the like, delivery of email to a recipient and proof of its receipt is not yet reliable enough for me. And I am a techno-geek who was previously a system administrator. (Maybe that’s why I am so averse to email—I know what can happen to it in transit and how emails and email receipts can be altered.)
I suspect that many readers would endorse David’s take. But let’s look at this further.
My preferred form of notices provision states in one subsection the one or more methods that the parties may use to deliver notices to each other, and it says in another subsection when any given notice would be deemed effective. You’d use the latter subsection to mitigate the risk of a given notice somehow going astray.
So if you provide for notice by email, you could mitigate the risks posed by the problems David mentions by specifying that an email wouldn’t be deemed received unless the receipient were to acknowledge receipt.
But what kind of acknowledgment? Users of Outlook and, I gather, some other email applications could rely on a “read receipt” requested by the sender. A read receipt is a notification that the receiving email client (a technical word for a kind of computer application) sends to the sender of an email as soon as the recipient opens the email, marks the email as read, or deletes the email without opening it.
But read receipts are problematic. As noted on Wikipedia, requesting a receipt doesn’t guarantee that you’ll get one: not all email applications support read receipts, and users can generally disable that function. Failure to receive a read receipt would require the sender to deliver notice by some other means; it wouldn’t pose any risk for the recipient. But it would be a problem for the recipient if a read receipt were issued for a given message even if it hadn’t been read. That apparently does happen: according to Microsoft Support, “Regardless of the options you select, some e-mail servers will never return a receipt and others may always return a receipt, regardless of whether or not the message has been read.”
So if you provide for notice by email, say that an email notice would be effective only when the receipient acknowledges receipt, and don’t specify that receipt of a delivery status notification in response to a read receipt constitutes acknowledgement. In fact, you might want to make it clear that it doesn’t constitute acknowledgement. Here’s some prototype language:
A notice or other communication under this agreement will be deemed to have been received as follows: … if it is delivered by email, when the recipient, by an email sent to the email address for the sender stated in this section X or by a notice delivered by another method in accordance with this section X, acknowledges having received that email, with an automatic “read receipt” not constituting acknowledgment of an email for purposes of this section X; …
Obviously, this language would allow the recepient simply to ignore any email. That’s why you wouldn’t want to make email the only means of delivering notice. I have in mind that email would be the quickest and cheapest way of giving notice, with FedEx as a backup in case a message disappears down a cyberspace black hole or the receipient refuses to cooperate. Trying email first shouldn’t cost the sender anything, in time or money: if after a couple of hours the receipient hasn’t send an email acknowledging receipt, you could send the notice by FedEx. To increase the odds of an email acknowledgment, the sender should call the recipient to alert them to the email.
What I wouldn’t want to do is specify that email notice would be effective only if the sender sends the recipient by regular mail a copy of any email. That would be cumbersome.
As noted by Chad in a comment to the post on fax terminology, any email address specified in a notices provision should be a generic one. And contract parties should put in place systems to make sure that any emails sent to that address are quickly read and routed to the appropriate persons.
To summarize, I think that if you provide for acknowledgment as described above, giving notice by email becomes entirely feasible. At any rate, notice provisions that contemplate email notices are easier to find than when I last checked, around three years ago.
The above discussion relates to potentially sensitive notices. But if, as David noted in his comment, a contract provides for the parties to exchange commercial information in the ordinary course of business, it would make sense to provide a separate, more relaxed regime for how that information is to be exchanged.
By the way, I prefer email over e-mail. The New York Times prefers e-mail, but if email is good enough for Google, it’s good enough for me.
[Update: Thanks to comments to this post, I learned about RPost. (I guess I've been living under a rock!) It appears that if the sender uses RPost when sending an email, that removes the uncertainty as to whether the recipient actually received the email.
But how might that affect contract language? Perhaps the simplest thing to do would be to specify that the only kind of email notice that is permitted is email using RPost. Regarding when an email would be deemed effective, here's some language you could use (I used a couple of concepts included in some model language that RPost was kind enough to send me):
A notice or other communication under this agreement will be deemed to have been received as follows: ... if it is delivered by email and the sender uses RPost, when the authorized electronic mail agent of the recipient accepted that email message, with the delivery status of at least "delivered to mail server," as stated in the RPost "Registered Receipt" received by the sender with respect to that email message; ...
Or you could have two different standards, one for email with RPost, one without, but that might be overkill.
In any event, this is new stuff. I'm open to suggestions.]