A question that often arises is whether an exchange of e-mails constitutes an agreement. The answer is yes, but it is not ideal as the contractual requirement of ‘offer and acceptance’ must be met.
This means that if party A offers something to party B, and B then makes a counteroffer, there is no binding agreement unless A accepts the counteroffer.
“It is not ideal as the contractual requirement of ‘offer and acceptance’ must be met.”
The following happened in a recent case: B owed A money and they were in the process of negotiating a settlement (compromise) by exchange of e-mails. B made a settlement proposal which A accepted provided the final settlement agreement was made an order of court which condition A reflected in a settlement agreement submitted to B.
Upon receipt of the settlement agreement, B made a number of changes and made no mention of the court order requirement. This response was thus a counteroffer which was open to A to reject or accept. B argued that it was not a counteroffer but an acceptance.
The court held that as the response from B made no mention of the court order, it was not (as required by law) an unambiguous and unequivocal acceptance by B and therefore was not legally enforceable.
DISCLAIMER: Each case depends on its own facts & merits. The above does not constitute advice. Independent advice should be obtained in all instances.
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