It is not unusual for a contract, such as a lease, real estate purchase agreement, or a distributorship agreement, to contain a provision which provides that any notice required to be given under the agreement must be in writing. There are also numerous statutes which require notice in writing be given in order to comply with the statute. As individuals rely more and more on e-mail communications, the question may arise whether a notice sent by e-mail complies with the written notice requirement of a contract or statute.
The answer to such a question depends on the contract or statute which imposes the written notice requirement. If the contract or statute specifically states that a notice sent electronically will satisfy the written notice requirement, then e-mail notice is satisfactory. The answer is less certain, however, when the contract or statute is silent on the issue of electronic notice. In some circumstances, an individual can rely on the Federal Electronic Signature in Global and National Commerce Act (“Electronic Signature Act”) and/or the Illinois Electronic Commerce Security Act (“Electronic Commerce Act”) to assert a notice sent electronically satisfies the written notice requirement.
The Federal Electronic Signature Act states as follows:
Notwithstanding any statute, regulation, or other rule of law . . ., with respect to any transaction in or affecting interstate or foreign commerce,
(1) a signature, contract, or other record relating to such transaction may not be denied legal effect, validity, or enforceability solely because it is in electronic form; and
(2) a contract relating to such transaction may not be denied legal effect, validity, or enforceability solely because an electronic signature or electronic record was used in its formation.
Excluded from the provisions of the Electronic Signature Act are wills, family law statutes, the Uniform Commercial Code, cancellation notices for utilities and insurance policies, product recall notices and hazardous material warnings.
The Illinois Electronic Commerce Act states “(w)here a rule of law requires information to be ‘written’ or ‘in writing,’ or provide for certain consequences if it is not, an electronic record satisfies that rule of law.” Excluded from the Electronic Commerce Act are wills and certain documents which transfer title.
While the aforementioned statutes authorize the use of electronic communications to satisfy a written notice requirement, any doubt whether a written notice was properly given can be avoided by also providing the notice in writing.