Can I send my T&Cs by email?

If my customers agree to my terms and conditions by email, will I still be able to take them to court if they don’t pay?

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Alasdair Taylor's Answer

There are really two questions here:

  • first, does acceptance of the T&Cs via email constitute a valid acceptance for legal purposes;
  • second, what is the evidential value of acceptance by email.

Under English law, the general rule is that the acceptance of a contractual offer does not have to be in ink, or have to take any particular form at all.  However, some specific circumstances do have specific requirements.  For example, legal assignments of copyright have to be in writing and signed by or on behalf of the assignor.  So, if your T&Cs contained an assignment of copyright from your customers to you, then acceptance of those T&Cs by customers via email may be inadequate.  You should check with your solicitor whether there is anything in your T&Cs that means that acceptance by email will not be effective.

The evidential value of email acceptance depends upon the specific circumstances (E.g. who has access to the email account used to send the acceptance, the security measures taken in relation to that account, and so on).  We can however say that, in general terms, acceptance by email will have a lower evidential value than acceptance by written signature, and a much lower evidential value than acceptance via an independently witnessed signature.  However, it will usually have a higher evidential value than verbal acceptance.

I appreciate that this doesn’t really answer your question, but this is one of the situations where the devil is in the detail.

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