Can your email disclaimer get you out of an unintended contract?

It is a reasonably well-known fact that most types of agreement may be entered into using electronic means; for example, by way of email, or even instant messaging applications, such as WhatsApp. Certain types of agreements, namely agreements for the sale of immovable property, wills and bills of exchange, may not be generated electronically.

It has also been established that the terms of an existing agreement may be varied electronically and an agreement may be cancelled by way of data messages. Our courts have ruled that if an agreement provides for the variation or cancellation of an agreement to be reduced to writing and signed by both contracting parties, an email will meet the requirement of writing, and the typewritten names of the parties at the foot of their emails which are used to identify the parties will constitute signatures.

We would therefore all be well-advised to take care in our electronic communications, especially in instances where business negotiations take place via email or other electronic means. If an agreement is not intended to be entered into in the course of such negotiations, this should be explicitly stated.

In the case of correspondence via email, can an email disclaimer which contains a statement that the communication shall not result in the conclusion of an agreement, be enforced?

Email disclaimers, like all information sent and received using electronic means in South Africa, are governed by the Electronic Communications and Transactions Act No. 25 of 2002 (“ECTA”). The general principle, in terms of ECTA, is that email disclaimers have legal force and effect.

Email disclaimers have, however, become overused as they tend to be automatically attached to every email that is sent, regardless of the content of the email. Thus, the efficacy of email disclaimers has become questionable.

In order for an email disclaimer to be enforceable, it should be used sparingly and only when it is appropriate to do so. Furthermore, an email disclaimer should be carefully drafted and, like any other disclaimer, should only address the risks that are actually applicable to the business concerned rather than attempting to be overly broad in their scope.

Every business should undertake a review of its information communication and technology policy, which should contain, among other things, an email usage policy. The email usage policy should make employees aware of the content and meaning of email disclaimers, so as to ensure that employees’ intentions when sending emails are aligned with the provisions of the email disclaimer.

Lastly, in order to ensure that contracts are not entered into unintentionally when conducting negotiations via email, the drafter of an email should make reference to the email disclaimer and draw the recipient’s attention thereto.

All businesses should have a suitably qualified legal practitioner assist them with the drafting of an email disclaimer as well as the necessary information communication and technology policy, so as to ensure that these are both suitable and enforceable.