In notices provisions in contracts, you say what’s required to give valid notice. Among other things, that involves specifying what one or more methods have to be used. The standard alternatives are giving notice by hand, by some form of mail, by FedEx or some equivalent, or by email.
Recently I’ve considered providing for email as the only means of giving notice, but I don’t feel comfortable with that. This post explains why.
Seeking Advice
It would have been futile for me to consider on my own the implications of giving notice only by email. On Twitter I issued a cry for help, and two heard the call.
One was Neil Brown (@neil_neilzone), a tech-savvy English lawyer with his own law firm, decoded.legal. The other was Meng Weng Wong, co-founder of Legalese, principal researcher at Singapore Management University’s Centre for Computational Law & Legal Tech, and, in a previous life, protocol designer and co-author of RFC4408, an email standard that is now an essential element of the Internet’s anti-spam immune system. What follows reflects my exchanges with them; you’ll find the exchanges themselves at the end of this post.
The Alternatives
Here’s all it takes to provide for notice by email only:
For a notice under this agreement to be valid, it must be in writing and delivered by email. It will be deemed to have been received when sent.
That doesn’t take into account that delivery might fail. Here’s a version that does:
For a notice under this agreement to be valid, it must be in writing and delivered by email. It will be deemed to have been received when sent, even if the sender receives a machine-generated message that delivery has failed. If a party sending an email notice under this agreement receives a machine-generated message that delivery has failed, for that notice to be valid the sender must no later than ten business days after sending the email message deliver a tangible copy of that notice with end-to-end tracking and all fees prepaid.
(The purpose of saying even if is that it gives the sender the benefit of the date they sent the email message, but only if they follow up by delivering the tangible copy. The fallback method is delivery by any organization (postal service or company) that provides tracking. Regular or certified mail? They don’t offer the same combination of speed and tracking.)
One advantage of email-only is that it would make the contract shorter, but the fallback mechanism in the quoted provision immediately above requires a few extra words plus, stated elsewhere, the addresses for delivery of the tangible copy, plus around 50 words saying that the tangible copy will be deemed to have been received if it can’t be delivered for one of various possible reasons.
The other advantage of email-only is that it’s easy: press Send and you’re done, unless you receive a message that delivery has failed. But delivery might indeed fail. If that happens, the sender might not be notified. And a message might go into a junk folder or be lost in a flooded in-box, although that would be less relevant if the email address is used only for accepting contract notices.
The way to address these concerns would be to have the intended recipient acknowledge that they received the email:
For a notice under this agreement to be valid, it must be in writing and delivered by email. It will be deemed to have been received when the party to which the email message is addressed acknowledges by notice in accordance with this section 11 (but without need for acknowledgement of the acknowledgment) having received that email message, with a read receipt or an automatic reply not constituting acknowledgment of an email message for purposes of this section 11.
If the sender of a notice in accordance with section 11(a) receives a machine-generated message that delivery has failed, or if the sender does not receive an acknowledgement in accordance with section 11(a), that notice will nevertheless be deemed to have been received when originally sent by email if no more than ten business days later the sender delivers a tangible copy of that notice with end-to-end tracking and all fees prepaid.
Of course, requiring that an email be acknowledged adds some more words. It also means you can’t just send an email and assume it has been delivered unless you receive a failure notice.
The Upshot
I prefer making it a condition to giving notice by email that the intended recipient acknowledge receipt.
That adds only a modest burden. Yes, the contract would be perhaps half a page longer (compared with email-only) or a few words longer (compared with email-only unless the sender receives a failure notice), but I don’t think that represents a meaningful burden.
Requiring acknowledgment also adds an extra step to the process. But instead of just making the process as frictionless as possible, the primary goal should be furthering the purpose the contract. If you send someone an email notice and they don’t respond promptly, that could be a sign that something is amiss. If you follow up and determine that they had missed your email, following up allowed you to rectify the situation. If you follow up and determine that they’re being uncooperative, you know to give notice by the fallback mechanism, and otherwise you proceed to do whatever is appropriate to address the change in the relationship.
If you could have sent an email notice without the requirement that it be acknowledged, you wouldn’t have had the benefit of that early-warning signal. In this respect, email-only is certainly easy, but it’s a little too easy.
In my everyday communications, I’ve learned not to assume that each email reaches its intended recipient. If I send something important, I ask that the recipient let me know that they received it. I don’t see why I should be satisfied with a lesser standard in contracts, where generally more is at stake.
Now, regarding my exchanges with Neil and Meng …
What Neil Brown Had to Say
Here’s what Neil said to me in an email:
A sender will not always get notice that a delivery has “failed”. And even if they do, the implications might not be clear.
For one thing, if the sender’s mailserver receives an error code from the recipient’s mailserver, it’s up to the sender’s mailserver to notify the sender. The sender themselves is unlikely to see the message from the recipient’s mailserver (as that’s a server-server thing, not a server-client thing, so unless the sender is watching the mail server logs, they won’t see it). Given that whether the sender sees the notice that delivery has failed depends on their configuration choices, should the sender be deemed to have received a notice that delivery has failed if the sender’s mailserver receives it, even it doesn’t pass it on to the sender?
And what is a failed delivery? If an email is received by my mail server, but the mail server treats it as junk mail and moves it into my junk mail folder, so I do not see it in my inbox, has it been “delivered”, even though I might never see it? (If the contract says that email is deemed delivered unless the sender receives a machine-generated notice that delivery has failed, an email delivered into a junk folder would be deemed to have been received.)
And when is an email “sent”? When the user’s mail client (e.g., the software on their iPhone) transmits the message to their mail server, or when their mail server transmits the message to the recipient’s mail server?
I think it’s significant that a savvy operator like Neil Brown isn’t comfortable with email-only:
For what it’s worth, I’ve been experimenting with email-based notices clauses, and I’ve yet to come up with one which doesn’t require a health warning for a less tech-savvy client.
The “best” position I have come up with, for a supplier in a supplier-customer relationship, is an unbalanced one:
Both parties agree that notice has been given:
– in the case of us notifying you, one clear day after the time at which we sent the email; and
– in the case of you notifying us, one clear day after you receive confirmation from us that we received your notification.(I have, however, still carved out notices relating to litigation, since email just isn’t reliable enough.)
In other words, Neil’s proposal would work for clients willing to require that the other side accept email-only notices, but not for themselves. It is, as he says, unbalanced. And he doesn’t want email-only for notices relating to litigation, but they aren’t the only sensitive kinds of notices. Assuming you’re not dealing with day-to-day communications, it would seem annoying to start distinguishing between levels of sensitivity for purposes of contract notices.
What Meng Weng Wong Had to Say
Here’s what Meng said to me in an email:
Imagine a classroom with a bespectacled kid shouting “Pick me! Pick me! I know the answer!” I’m that kid; the spectacles represent a CS degree, and the answer turns out to be as fundamental to the Internet as Donoghue v Stevenson is to the law of torts. In honor of that little snail in the bottle, let’s turn back the clock to the days of snail mail: when your options were hand delivery, certified/registered mail, courier, and … the facsimile machine. While millennials may scoff at the fax, it does have one major advantage over email: if the receiving machine is out of paper, or not turned on, the sender can’t claim the fax went through. The technical term: the fax machine (and hand delivery) are synchronous protocols; email is asynchronous, as are snail-mail and courier. If your mailman learns that your recipient has vacated the premises, your envelope would, presumably, find its way back to you. Yet notice provisions rarely deal with this eventuality, which is analogous to the email problem at hand. More on this later.
Computer scientists call this the Two Generals’ Problem. Imagine two generals, each leading half an army, need to coordinate an attack on the enemy; but they are separated by a forest inhabited by, say, man-eating spiders. Given an unreliable communication channel, how can the generals agree on a time of attack? General 1 sends a messenger: “I intend to attack Sunday after brunch; would 12:30pm be convenient for you? Please confirm you will attack at the same time, lest I blunder into battle without reinforcement; I will not attack unless you confirm.” General 2 sends back a messenger: “I confirm Sunday 12:30pm; but please confirm that you received my confirmation, for I fear this present messenger may be reduced by arachnid; I will not attack unless I receive your confirmation.” General 1: “Hey, got your text, but I now need to be sure that you got mine; sending your guy back with this message as he presumably knows the route. Or maybe he was just lucky with the spiders? Tip him extra if you get this lol.” And so on, ad infinitum.
Protocol designers study this problem in the context of the CAP theorem (consistency, availability, partition tolerance); I will not say much more about this, except that the Byzantine Generals’ Problem (involving any number of generals, not just two) has been mathematically proven to be a Really Hard Problem; hard enough that good solutions to it can become the basis for the very concept of blockchains like Bitcoin and entire cryptocurrency economies valued at hundreds of billions of dollars. https://bravenewgeek.com/tag/cap-theorem/page/3/ offers a good explanation with diagrams; it references widely-respected solutions to the problem of distributed consensus. The solution offered by Neil Brown, where one party is the “primary” and the other the “secondary” in terms of notice authority, is a simple, but workable, case of asymmetric roles.
One other thing. In the scenarios we’ve talked about, the parties are cooperating. Notice provisions are sometimes analyzed under adversarial conditions: I have heard stories where a party deliberately attempted to evade notice by changing their registered address daily. Anticipating such conditions, a sensible sender should reserve some way to unilaterally send valid notice; what if one of the generals converts to pacifism and in the name of the greater good quietly murders every messenger sent his way? Chaos ensues – Apocalypse Now. In the domain of asynchronous protocols, a fallback to registered or certified mail at least grants historical weight to the presumption of delivery. That presumption of delivery favors the sender – as does an email-only provision that does not require confirmation. Requiring confirmation favors the recipient, because they could start playing games. Ultimately, synchronous media are superior: the two generals simply meet in person. That’s why process servers still convey envelopes by hand. That’s why web pages are served over TCP (a connection-oriented protocol) and not UDP (a connection-less protocol). And that’s why fax machines in law firms are routinely configured to print confirmation pages.
Notice clauses are generally silent on what happens if snail mail bounces. Can the presumption of receipt-after-three-days still hold if the mail is returned to sender? Some notices ask the recipient for a consent or a decision. If the notice doesn’t go through, or the recipient times out, should the contract allow the sender to proceed as though the recipient had responded agreeably? Maybe so. As a protocol designer, it bothers me to think that some uncontactable party could hold up an entire workflow. Neal Stephenson recounts a classic tale (in In the Beginning was the Command Line) about a token ring network that crashed every time someone held down the mouse button on their Mac: because the computer was simply waiting and waiting for the mouse button to be released, it didn’t pass the token, and the entire network ground to a halt.
The opposite of a bounce is a read receipt. Modern protocols like WhatsApp display blue ticks to indicate read receipt. That doesn’t make WhatsApp a better medium for serving notice, though: uncooperative recipients can turn off read receipt in WhatsApp, and that takes us right back to the email situation.
Email (the protocol) and Gmail (the 800-pound gorilla) support read receipts to a limited degree, but it’s off by default, and you may have to hunt hard for a way to turn it on. Email marketers have a whole ’nother bag of tricks to do read receipt, but using those tricks in regular business correspondence is inadvisable: first, it feels stalkerish, and second, do you really want to find yourself explaining to a judge the intricacies of invisible 1×1-pixel PNG images on remote servers?
Don’t get me wrong. I like email. I co-founded the first commercial email service on the Internet. Many contracts I’ve signed recently allow for email notices, and I’ve signed more “consent to electronic communications” letters than I can count. But fallbacks are still important. The protocol I prefer is this: if an email doesn’t bounce, then notice is valid. If the email bounces, then you have to fail over to some form of snail mail – certified, registered, or courier. If the snail mail bounces, or the recipient doesn’t respond within the notice period, then the sender has discharged their duty and gets to proceed as they see fit.
In a subsequent exchange, Meng explained that his reservation with requiring acknowledgment was that he’s not keen on snail mail as the fallback mechanism. Delivering a tangible copy with end-to-end tracking allows you to avoid most of the uncertainty of snail mail, so Meng authorized me to say that in that case, he’s OK with requiring acknowledgment.
The courts of yore were willing to accept the possibility of failure when they created the mailbox rule, essentially shifting the burden to the purported recipient of non-delivery so long as the sender followed the basic protocol of how to address a letter and apply postage (and would attest as much if challenged).
How is email any different? Are your interviewees saying email is so inherently unreliable that it does not merit the same consideration of presumed delivery? Because the mailbox rule did not require certainty before the courts accepted that it was the only practical way to get anything done. So I’m wondering how much worse does email need to be before we’d not accept the same compromise and move on.
Ah, Adams v. Lindsell rears its ugly head! First, just for the record, not all jurisdictions accept the rule in A v L (e.g. Massachusetts). Second, like all legal fictions, the mailbox (well, technically, postbox, since A v L was an English case) rule was designed to achieve a policy objective, which in 1818 and throughout the Industrial Revolution was to promote commercial transactions to the advantage of a commercial party as against a customer (that’s why it’s “caveat emptor” and not “caveat vendor”; though in business-to-business relationships the rule is less clearly biased). Third, I’d wager that postal mail in England in the 19th century was remarkably efficient, and frequent, and there was pretty good reason to suppose that a letter posted in the morning would be delivered the same day. Today, not so much. However, there’s no reason to suppose today that a delivery method that comes with a certificate of delivery from the carrier was not delivered in accordance with the carrier’s receipt, which is why most contract notices go by FedEx or equivalent.
Me, I”m adamant on the “no valid notice until received” principle. I prefer Meng Weng Wong’s mode of analysis and, where email notice is permitted (which I usually stipulate, mostly because people gonna do what they gonna do, and no sense or justice in peppering contracts with “gotchas” like overly formal notice provisions) I require a secondary form of confirmation, at the least when there’s a bounce-back, and sometimes all the time. I also usually say that if the recipient refuses delivery then delivery is deemed to happen on the refusal. I’ve never seen this happen in modern times, though it’s well to take the view that formal contract notices are generally not good news for the recipient.
Another thing to take into consideration is that, in my experience and in the estimation of most of the people I’ve worked with who have had to consider the issue, courts go out of their way to forgive a purported recipient who avers non-receipt. The sender therefore will have to prove receipt no matter what.
I’m not sure in our Adams Drafting context of business to business contracts that I’m all that worried about one party being particularly better off like in the merchant-overwhelming-the-hapless-consumer context. And any well run business can get evidence to counter the proposition by showing that its own logs indicate nothing arrived (and I think the receiver should own the risk only at the point the email gets input into its servers – up until that point the sender should own the risk that the internet fails to pass the message along). At that point the court would be in a good position to decide which side puts up the better evidence. And that goes to my original proposition, that the ability to presume receipt and have a firm date of sending in most cases is a better social good than the value of demanding absolute certainty (which as Meng demonstrates above is actually impossible in many cases, so any demand for certainty merely is a decision on which side of the transaction gets the easier path to walk).
Neil’s account doesn’t square with my experience as an email server administrator. NDRs (aka “bounce” messages) will be delivered to the sender on any properly-configured mail server, usually instantly. It could be true that only a sysadmin would know *why* the message bounced, but that the message did bounce should be known to the sending party.
I agree with Meng that, once the email has been delivered to the receiving party’s server, the notice is valid, full stop. It’s the receiving party’s job to handle the routing of their notice messages; saying that notice is invalid because it was improperly routed is like saying “the mail room didn’t put it in my box, ergo it’s invalid” or “your envelope looked like junk mail, so I shredded it, ergo it’s invalid.” It’s also the receiving party’s job to do things like maintain control of their domain and their MX records, just like it’s the receiving party’s job to pay the bill to keep their PO Box.
I also agree with Meng that ideally an email notice provision would specify a fallback in case the emailed notice bounces. Ours doesn’t do that right now, but we have more leeway about who we sign contracts with, so we haven’t been building them in a particularly adversarial way.
I represent pretty tech-savvy clients, frequently across from less tech-savvy counterparties. When I control the form, it’s notice by e-mail, no confirmation, to an address provided on the signature page, below date and title. If e-mail fails, sender to fall back to the address on file with the jurisdiction under which the recipient is formed. Either side can give notice of a new e-mail address anytime.
I don’t think I’ve ever seen a turn specifically objecting to this scheme, or a practical problem with it in the wild. I do occasionally see a markup changing the notice terms, but only as part a copy-and-paste bomb leveling all the general terms of my proposal.
There is no perfectly reliable messaging system. Not for the messages we intend to send. Not for messages back to us about failures to deliver what we sent. But whether it’s the US mail, FedEx, or e-mail, actual, silent failure to deliver correctly addressed messages is remarkably rare.
What failures I have seen all came down to sender or recipient error, not carrier failure. Contact leaves the company and the company deletes their address without updating counterparties. Somebody sets up a list or alias, like legal@client.com, and fails to bring those settings over to a new e-mail system. Somebody damn well received the e-mail, but got scared of it or chose to ignore it, and pretends it didn’t arrive or went to spam. Until that actually becomes a two-way conversation, and everyone involved realizes they haven’t seen an e-mail actually lost in a decade or two, and everybody knows to check spam for false positives.
We want terms that make clear that any old communication won’t do, that messages with special effect on the contract need to be sent in a special way. We want nonlawyers to tell notices apart from regular comms at a glance. We want terms that preagree what the method will be. We want a place for parties with specific routing requirements, like copies to legal based in different offices, can do their thing without completely hacking up the notices language. We don’t want notice requirements turning into games to play against each other in tricky ways. As lawyers, we don’t want terms that expect client people to do anything out of the ordinary, like send confirmations, since they won’t, and we know it.
At least with the clients I see, e-mail is how business gets done. Snail mail is how government communicates with business. Many of my clients hire mailbox services that open their inevitable snail mail, scan it, send the scan by e-mail. But every company still has to pick an in-state address, or hire a registered agent, to form their entity. The states’ systems for service of process are mandatory, and as government, they do snail mail. So that’s another, lower common denominator.
More and more registered agent copies offer scan-to-e-mail as a matter of course, for cost and complexity savings. So it’s full circle again.
I consider email to be perhaps even simpler than you’re using it: I say it’s just a form of personal delivery not appreciably different from handing over a hard copy of a letter to someone when they’re in your office.
In the normal course, I send a notice email and someone responds. That’s my proof of personal delivery. If they don’t respond, then you try the email thing again to get an acknowledgment or fall back onto the basic “sent in the mail” answer.
I think that all the discussion of bounce messages is trying to make email do more than makes sense in most situations. We don’t know how other people have their systems configured, and most of us who don’t roll our own don’t know for certain how our own systems are configured. Why add even more weight onto that system when it’s not helpful in terms of *really* resolving the question of actual/constructive receipt?
I realize that this isn’t quite the point, but I prefer at least two standards for notice, and only one will apply to any particular notice requirement. For the more serious issues (termination, indemnity demand, breach notice), I was a paper notice by Fedex. For other things, I usually care much less and am willing to take more risk on the process.
Spot on in the specific, and in the general, UK drafters wonder why US drafters so often feel the need to address remote risks in every contract.
I get the concern around all these hypothetical situations. I mean, identifying (sometimes remote) risks and advising our clients on those risks is our job. But you can only make so many comments and your client’s eyes will glaze over if you bring up every risk you identify, so it is also our job to exercise judgment as to which risks to raise and address. Unless failure to send or receive notice could materially affect my client, I usually wouldn’t go crazy on the notice provision. I prefer to include email notice, though, because I think that reflects the realities of modern commercial transactions….better to address it than be silent. If possible, I bifurcate between certified mail for important notices and certified mail or email (followed by phone call) for everything else.
One concern, though, is that there is a decent chance that the notice email address will need to be updated, and the burden of this task is obviously on the receiver. But if the receiver fails to update its email address, that is an unknowable risk to the sender, especially when notice plays a critical role under the contract. Most contracts provide that a party may update their email address, but I think it should be a strict obligation to update an email address (unless that would negatively affect my client….perhaps an actual knowledge standard?).
Blockchain is an interesting solution but even blockchains fail and go down. Someone should do a study of what notice methods fail the least. Maybe that would help to settle this.