In prior issues of A Potpourri, when discussing the requirements for the formation of a contract, we have explained the writing requirement of the Statute of Frauds. To satisfy the Statute of Frauds, a party must establish the existence of a writing for the sale of goods which is signed by the party to be bound and which specifies the quantity of goods. Since a significant amount of communications relating to commercial transactions is now being conducted through email, the question arises whether the Statute of Frauds writing requirement can be satisfied by email messages between parties.
With respect to transactions involving interstate or foreign commerce, the Electronic Signatures in Global and National Commerce Act (“Act”) provides that a contract or other record shall not be denied legal effect because of its electronic format or because an electronic signature was used in the formation of the contract. For transactions arguably not covered by the Act, courts have concluded that emails with an electronic signature can satisfy the Statute of Frauds writing requirement, as long as the emails sufficiently demonstrate the formation of an agreement.