Email Disclaimers - Do They Work?

Scotland
Businesses all too often add disclaimers to the bottom of their emails.  They are included to serve a variety of functions, such as ensuring that the content of the email is identified as confidential, protecting legally priviledged information or, importantly, to state that a contract is not formed by email communications.

It is now commonly accepted that contracts can be formed via email, providing there is a valid offer and acceptance by the parties.  The ease with which a contract can be formed over email potentially leaves companies exposed to the risk that contracts may be concluded having bypassed internal procedures and standard terms usually used to protect the company.  Therefore, some companies have taken to adding a disclaimer which states that the content of the email cannot be taken to form a contract.

Recently, the Scottish Courts shed some light on whether email disclaimers are valid and enforceable.  In the case of Baillie Estates v Du Pont, the Court discussed whether an email disclaimer which attempted to limit the contractual effect of the content of the email was effective.

The facts of the case are no doubt common to the reader.  A series of informal emails had been exchanged between the two parties.  A proposal document had been attached to an email containing all the details of an order for a printing press.  Baillie responded with a simple “Go Ahead”, to which Du Pont replied “It’s on the way”.

The Court held that these short communications were sufficient to conclude the contract.

Interestingly, Du Pont’s emails had included a standard disclaimer stating that emails did not constitute a contractual offer or acceptance unless it had been specifically stated that an e-contract was intended.  Although this argument was not made before the Court, Lord Hodge noted that had Du Pont attempted to rely on its disclaimer, the Court would have considered that as it only referred to the “email”, it did not cover the attached proposal document.  Given it was the proposal document which was the offer, rather than the email itself, the disclaimer would have had no effect.

This serves to highlight the limited effect of email disclaimers. Importantly, reliance on standard disclaimer wording appears to be insufficient where draft contracts or proposal documents are appended as attachments, and a contract is concluded on the terms contained in that attachment.

The key things to remember for email disclaimers are therefore:
grey pixel they have limited legal effect;
grey pixel they will not cover any attachments to an email unless specifically worded to cover any attachments or appendices;
grey pixel you should consider specifically bringing the disclaimer to the other party’s attention, so that it will specifically apply to the situation at hand; and
grey pixel be aware that the other party to your contract may also be using email disclaimers.
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