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Email Terms Apply Despite Lack of Written Contract

25 July 2011

A recent case in the Court of Appeal has demonstrated that terms agreed by email can amount to a contract despite a formal contract referred to in the emails remaining unsigned. The case concerned a commodities trader and a fuel storage company that had entered into negotiations for the provision of a facility to store 3,000-4,000 cubic metres of derv fuel.

In October 2008, the commodities trader Clear plc made enquiries concerning the availability of storage capacity at Immingham Storage Company Ltd.’s facility in Immingham, Lincolnshire. Following an exchange of emails, it was established that the required storage capacity would be available from 1 May 2009 and a quotation for the storage service was sent to Clear by email.

The quotation included details of the storage availability and stipulated a minimum 12-month contract with six months’ notice of termination. It was stated that the quotation was subject to tankage availability and the approval of the Immingham board of directors. The quotation was also subject to ‘General Storage Conditions’, which were attached to the email.

The final sentence of the document was ‘A formal contract will then follow in due course’. It was signed on behalf of Immingham and contained space for a signature from Clear under the words ‘we hereby accept the terms of your quotation subject to your Board approval’.

Included in the email was a request that the quotation should be signed and returned by fax not later than 3 January 2009 in order for the storage capacity to be allocated. In the event, the document was signed with the approval of various officers of Clear and faxed back to Immingham on 5 January 2009.

Receipt of the fax was acknowledged by Immingham and a subsequent email, sent on 9 January 2009, noted its acceptance of Clear’s offer to take up 4,000 cubic metres of storage capacity at Immingham’s depot starting no later than 1 May 2009. It was also stated that a further confirmation contract would be drawn up and forwarded for signature. This was done on 23 January, when a legal adviser employed by Immingham wrote to Clear, enclosing a contract document, and stated that ‘the contract will formalise the existing situation between us as detailed in our quotation to you’. The letter requested the document be signed and a copy returned.

Clear acknowledged receipt of the document and stated that it would be signed and returned within the week, but the contract was never returned. In the event, Clear was unable to source the fuel and so made no delivery to Immingham. The storage facility was kept available for May and June, with Immingham sending invoices on 1 May and 1 June. On 25 June, Clear denied the existence of any agreement, stating that acceptance of the quotation did not constitute a formal contract.

During the initial court hearing, Clear argued that the 9 January email did not create a contract because of the inclusion of the words ‘A formal contract will then follow in due course’. This argument was rejected by the trial judge, who cited established precedent for so doing. Clear was ordered to pay damages of some £197,000.

On appeal, there was further discussion over whether the existence of a contract between the two parties was conditional upon the later provision of a subsequent ‘full contract’. The Court of Appeal held that the language of the relevant emails was quite explicit in being a ‘contract confirmation’ and the acceptance of a contractual offer. The Court also noted that there was nothing in the signed quotation stating that it was ‘subject to contract’. It followed that the subsequent formal contract, had it been signed, would have been no more than ‘further confirmation’ of the contract that already existed.

The appeal by Clear was therefore dismissed.

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