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A contract is formed between two or more parties.

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Introduction

A contract is formed between two or more parties. In order for a contract to be legally binding there must be offer and acceptance. This simple basis for a contract is not as clear cut as it first appears. In certain circumstances it is often necessary for the two parties to the contract to communicate via post or by other indirect means. This practise gives rise to the problem of whether an acceptance is given when it is posted or when it is received. There is also the issue of whether or not the person posting the acceptance wilfully intended there to be a delay in delivery. The use of electronic mail further ads to the complication as the courts must decide whether or not electronic mail can be classified as instantaneous communication. Firstly, let us examine the postal rule in order to analyse its possible applications to communication by electronic means. As already stated, the two elements of a simple contract are the offer and the acceptance. The acceptance will only have effect when it is given to the offeror in response to his offer. Lord Herschell defines the postal rule as: "Where the circumstances are such that it must have been within the contemplation of the parties that ... the post might be used as a means of communicating the acceptance of an offer, the acceptance is complete as soon as it is posted."1 The ...read more.

Middle

argues an interesting point when he says "Despite operating instantaneously, it does not go directly to its destination. This is unlike other instantaneous forms of communication such as fax or telex."6 This is an important distinction and one which must be taken into account. Unlike telex, emails do sometimes have a delay and there is some risk that the email might not arrive. These attributes make email more like standard post only with a shorter delay. If this is the case then the postal rule should apply to electronic mail. The cases that are given as evidence that the postal rule does not apply to email rely upon the definition of email being 'virtually instantaneous communication' when in fact it can be argued that it is not. There are occasions when the server may not deliver the email for up to 24 hours after its being sent. However, the point is also made that in many ways email is a completely different method of communication from mail and it cannot be said that there is always a consistent delay that would cause either the offeror or offeree to bear a risk during the transit time of the acceptance. D. Capp makes an interesting point in his article entitled "You've got mail!" His conclusion is that "given the advances in communications systems since the postal rule was created, concluding that the postal rule does not apply would seem sensible."7 ...read more.

Conclusion

The fact that the question marks over email and its effect on the formation of contracts has been raised alone is evidence that it has made ascertaining the point of a contracts commencement more difficult to identify. Bibliograpy Books J.C. Smith - "The law of Contact" 4th Edition Koffman & Macdonald J.C Smith, "Smith & Thomas: A casebook on Contract" 11th Edition G.H Trietel - "The Law of Contract" 11th Edition Journals D. Capps - "You've got mail" (On LexisNexis) NLJ 153.7084(906) D. Stott - "Should the postal rule be applied to email?" (http://www.alsa.asn.au/docs/acj/1996/stott.html) Online Sources LexisNexis Used for searching for journals. Westlaw Used for cases and statute. Athens Used for accessing online sources of information. Google.co.uk Used for locating related articles and information. 1 Lord Herschell 2 Court of Appeal [1955] 2 Q.B. 327 3 Smith & Thomas , A Case Book on Contract 11th Edition 4 House of Lords [1983] 2 A.C 34 5 Ibid footnote 1 6 D. Stott "Should the Postal Acceptance Rule be applied to email?" 7 D. Capp "You've got mail" NLJ 153.7084(906) 8 (SI 2002/2013) 9 Specifically the Uniform Computer Information Transaction Act 2000 10 Court of Appeal (1879) 4 Ex. D 216 11 (1818) 1 B. & A, 681 12 1 H.L.C 381 13 Bramwell L.J in Household Fire Insurance Co. v Grant 1 H.L.C 381 ?? ?? ?? ?? ...read more.

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