Jeff Neuburger

Can I sign a contract via e-mail?
August 27, 2007

Under the laws of most if not all states, you can sign most contracts via e-mail, if you have the necessary intent to do so.

A recent judicial opinion applying New York law provides an illustration.

SD Protection, Inc. V. Del Rio

The court in SD Protection, Inc. v. Del Rio concluded that it was possible for an employee to "sign" an employment contract containing a non-compete clause via an exchange of e-mail with the employer.

Edward Del Rio was hired by SD Protection, Inc., as a field manager in its tour services business. Before Del Rio was hired, SD apparently sent him a printed contact. The printed contract contained a non-compete clause that extended for a period of five years after the end of Del Rio's employment.

Writing requirement

Under New York law (and the law of many other states), an agreement for a period of more than one year must be in writing and signed by the person against whom another party seeks to enforce it. Because the non-compete clause in the employment contract extended for more than one year, this legal rule applied.

However, neither Del Rio nor SD ever actually signed the printed contract, although they did correspond about it in e-mail. In one e-mail between them, Del Rio wrote: "Your offer is accepted. I am at your service and at your disposal. . . . Thank you for your vote of confidence and I wouldn’t let you down. Forever at your service. Eddie." In another email, he wrote, "I have absolutely no intention of ever competing with you and your company or the service the company provides."

At some point after Del Rio's first year of employment, SD brought suit, claiming that Del Rio had violated the non-compete clause by soliciting or accepting employment with a competitor, and utilized SD's proprietary information in doing so.

Del Rio responded by arguing that the non-compete clause didn't apply to him, because he had never signed it. SD argued that by writing "your offer is accepted," and "Forever at your service. Eddie" in his e-mail, he had effectively signed the contract.

The court’s decision

The court agreed in principle with SD, ruling that a party can "sign" a contract via an e-mail communication, provided that the party had the "present intention to authenticate" (i.e., "sign") the contract via e-mail.

But SD didn't win on the point completely. The court also ruled that more facts were needed to determine whether Del Rio had the intent to sign when he sent the e-mails quoted by SD. First, the court said that the fact that the written contract was unsigned suggested that Del Rio didn't intend to sign the contract by e-mail. Second, the court noted that the e-mails that were given to the court to consider were undated, therefore it wasn’t clear whether they were referring to the printed contract containing the non-compete clause. Finally, the court said that more evidence regarding the nature of the relationship between SD and Del Rio were needed, including additional e-mail communications. The court commented that "Any attempt to decipher Del Rio's intentions at this stage would be little more than guesswork."

The posts on this blog reflect the personal views of Jeffrey D. Neuburger, in his individual capacity, and do not necessarily represent the views of his law firm or his clients, and are not sponsored or endorsed by them. The information contained in this blog is provided only as general information for educational purposes, and no warranty or representation is made about the accuracy of the information provided. Blog topics may or may not be updated subsequent to their initial posting. This information is not provided in the course of an attorney-client relationship and is not intended to constitute legal advice. This blog should not be used as a substitute for competent legal advice from a licensed attorney in your state.

Posted by Jeff Neuburger on August 27, 2007 | Comments (0)