Contract by Email
writing.kemitchell.com
writing.kemitchell.com
The problem with verbal contracts is that it's hard to produce evidence about such contracts, if it comes to enforcement.
Email would be OK, if the agreement were assigned to the custody of some mutually-trusted party. It's no good if the parties to the agreement each save their copy of the text/plain agreement on their own corporate mailserver.
Nit: Strictly speaking a written contract is a "verbal" contract, because in this context, verbal means, in essence, using words, as opposed to, say, gestures or drawings. ("Verbal" derives from the Latin verbum. [1])
[0] https://www.investopedia.com/terms/s/statute-of-frauds.asp
I found that part pretty amusing
Practical evidence is not technical proof. Methods of technical proof don’t cover all the potential legal challenges.
The goal is establishing terms before judge or jury. Do that and the court can enforce.
I have developed my signature so that nobody can replicate it fluently. I also use special one off archival ink that nobody else in the world has.
Emails do not have any default mechanism like that, especially if they only rest on servers of the interested parties. Emails are just bytes and can be easily edited.
I've seen contracts where parties initialed each page. Don't ask me why. I don't think I've ever seen a contract of more than one page signed on each page.
I own several bottles of Noodler's ink. If I ever sue on a paper contract, I expect I'll be sending a scan or a photocopy into evidence.
There's nothing magical about pen and ink, new or old. We just have a longer history with it. Everything's just evidence.
When you sign multi page document you sign every page. This is standard legal practice.
When I receive negotiated contract for signing it is usual to expect the contract has already been at the very least initialed on every page by the other party. And I always initial every page of the contract whether the other party did it or not.
Signing every page is not required for the contract to be enforceable but is standard practice.
And it is idiotic, of course.
> I have developed my signature so that nobody can replicate it fluently.
Robots that hold and move a pen have been created to forge signatures.
> I also use special one off archival ink that nobody else in the world has.
I’m not sure if you’re being serious or not because this is absolutely hilarious, but in the event that you are, does this have any purpose? You could use this excuse to secretly “poison” a contract that you intend on breaking (by using a normal pen to sign it).
> Emails do not have any default mechanism like that, especially if they only rest on servers of the interested parties.
Gmail accounts are free and support DKIM. If both parties conduct business over Gmail, those messages have irrevocable sender authenticity. This inability to refute the contents of an email spelled disaster in the USA for the Democratic political party during their 2016 presidential campaign.
Also stuck thinking gmail is involved in every email exchange. It is not.
A DKIM signature attests that some subset of the headers (typically including the From: header) are "authentic". The mailserver cannot attest the authenticity of the sender; it cannot attest more than it knows, which is that the logged-in account is allowed to send mail using that sender address. It can't attest who was using the account.
DKIM is a spam-prevention scheme. It doesn't provide non-repudiability.
"smart contract" is a buzzword (incidentally, you may notice that it is not literally buzzing).
The parent comment is like saying "I'm just happy to see something about crypto that's actually about cryptography"
But since you want to be serious, let's bikeshed this: What word would you rather we use, in place of "smart contract," to refer to the small programs that run on the blockchain?
A contract is a legally binding statement describing a promise or promises among parties to execute one or more actions. But they are NOT the actions themselves, again, they are a document relating to the actions.
"Smart contracts" are THE ACTIONS THEMSELVES. They're deliverables, they're payments, they're executions of code, but they're NOT CONTRACTS, by any sense of how we've always traditionally used the word.
Which it isn't. You could put a sign on the machine, contact so-and-so if it steals your money, we will definitely repay you. That would be a contract.
Not gonna happen anytime soon; at the end of the day what lawyers do is work on "when humans being human disagree on things where the stakes are big," not "writing things clearly like a computer."
To make this all concrete, a vending machine offers a smart contract to its customers. The vending machine "knows" how much money has been deposited in it, and that lets it be "smart" about when to uphold its end of the bargain and dispense snacks.
More precisely, you are using it in a way that is fundamentally different from how the law uses it, and I believe that doing so is harmful (i.e. this isn't about being a language prescriptivist, it's about confusing people in ways that will likely mess them up.)
In the vending machine hypothetical, the part that people are calling the "smart contract" is the physical workings of the machine itself; it detects the presence of a bill, it takes it, gears turn, and a soda comes out.
There is nothing here about obligations, promises, who is owed what. It's just a machine. And thus should not be called a contract. The contract is the legal obligations that are carried with it.
But also, on p9, the author points out that "it may be silly to think of a vending machine in this way, but when, for example, somebody is sickened by a defective can of Coke and issues arise relating to warranties that apply to the sales of goods, the legal status of those ubiquitous, small-potatoes transactions matters." The article goes on to critique the "just a machine[,] and thus not should be called a contract" view which you espouse.
[1] https://engagedscholarship.csuohio.edu/cgi/viewcontent.cgi?a...
(Kyle, thanks for the shout-out in TFA.)
There is in fact a U.S. law that defines “writing” in some parts of the law to encompass electronic communication in some manner as well. So some federal laws that required certain kinds of agreement to be in “writing”, like, IIRC, exclusive copyright licensing, now permit electronic communication.
A contract is only valid as long as both parties stick to it. If there's a disagreement, it's up to a court to figure it out. That's where you get into risk mitigation. If you are comfortable with a court making a determination based on an exchange over email, then great. Courts see email as a valid form of proving one's identity. If you want to go further to reduce the risk that a court invalidates the contract, you can do things like having witnesses, wet ink, notaries, etc. Obviously for a contract with low material value, it's not a big deal. Signing a multi-million dollar contract? People start taking whatever measures they can to ensure things are air tight.
A lot of tech people think risk mitigation is only verifying somebody's identity, but a court could decide a contract is invalid because the person signing it had no idea what was inside. So there's a lot more to it.
Because the document at that link can change. What can work is if there is a hash of the data, and you hope that the data is still there at the link. Better if you have the actual data that was signed. Which means, we're back to actual documents.
What we SHOULD have, however, is a github for lawyers.
The document at the link is a PDF, so the "the document is changeable" problem could be addressed by downloading the PDF and attaching it to the email agreement to serve as the record copy.
TFA also points out that the document is at the Internet Archive: https://web.archive.org/web/*/https://waypointnda.com/3.0.0
EDIT: Each party presumably will have email records with the PDF attachment — and if the attachments don't agree, then the parties' lawyers will be busy. But again, how likely is that to happen, and how much time and money do you want to spend to prevent it? At some point you hit diminishing returns (and OCD behavior).
It was a really great talk. Not sure if there is an English version somewhere:
Seems to be: https://media.ccc.de/v/31c3_-_6558_-_de_-_saal_g_-_201412282...
Direct: https://cdn.media.ccc.de/congress/2014/h264-hd/31c3-6558-de-...
Which has german/english dual audio, but defaults to german (so presumably google ruined the english track on upload). If your video player doesn't support picking audio, you can probably fiddle with ffmpeg to strip out the german track.
One of the advantages of a fixed reference document is that, apart from confirming that you have that document, you don't have to read it to know what it says — and to have a sufficient degree of comfort that the other side isn't trying to sneak something past you.
In contrast, if Party A (or its lawyer) copies and pastes the contents of a reference document into an email, then Party B will have to read the thing, which will take time and, if a lawyer is involved, cost money in legal fees.
An analog that comes to mind is the INCOTERMS rules for shipping goods: If you agree that the goods will be shipped DDP (Delivered Duty Paid), or EXW (Ex Works), or whatever, then you know what you're getting, without having to read the rule again to be sure the other party isn't trying to slip something in on you.
Another analogy is arbitration: If you agree to the American Arbitration Association's rules for commercial arbitration, then all concerned can go to the AAA Website to get a reference copy.
Remember who we're talking about here: Lawyers and business people — too many of whom don't even know how to use Microsoft Word "properly." [0]
(You have no idea how many contract drafts I review in Word where the drafter used 'Normal' style for everything and just bold-faced the headings; used blank lines to put spacing between paragraphs; and didn't know how to do automatic paragraph numbering.)
[0] Obligatory link to the famous comment about Dropbox's launch: https://news.ycombinator.com/item?id=9224
IME it seems to be trivially easy to have things removed from the Internet Archive.
>How can I exclude or remove my site's pages from the Wayback Machine?
>You can send an email request for us to review to info@archive.org with the URL (web address) in the text of your message.
https://help.archive.org/hc/en-us/articles/360004651732-Usin...
It used to be trivial to hide existing content in their index from being viewable (for your domains). They entirely changed that a number of years ago.
1. Multiple parties
2. Consideration: all parties must get something out of it. You may have an agreement where you don't get something out of it, but you cannot have a contract where you get nothing out of it.
3. Offer, acceptance, and mutual assent. One must make the offer, the other(s) must accept, and all have to see eye-to-eye.
4. Legality: you can't make a contract to perform illegal acts. A contract with an assassin is not legally a contract -- one cannot be found in breach of this contract by a court of law no matter what (though bringing the suit may incriminate you for conspiracy to commit murder).
5. Parties legally able to enter contracts. Minors can't enter contracts.
For product R&D in Biotech (non-California at least), NDA's are nearly universal and never optional. You don't sign, you don't work.
You will quickly find that at outright refusal to sign an NDA will very quickly limit your business options, especially when negotiating between corporate entities.
Also consider if the tables were turned and it was you who had the mountains of IP and other liabilities that would be shielded by an NDA.
I've been asked to sign NDAs. "Hey, i got this cool idea, sign my NDA". The couple times I've done that have been... not worth the effort, and never amount to anything. But they're still some mental overhead I have to keep account of for a while.
"We're bringing you in to project X, and we've agreed to payment terms, and project length. Sign this NDA preventing you from sharing our corporate secrets (with some reasonable definition of 'secret') to work on the project". I've generally no problem with those sorts - they are a part of real project/work/life, and generally money is attached.
I've given up dealing with the first sort, and have "lost out on some big opportunities" (their words, not mine) because of the refusal. I've managed to eke out a living nonetheless.
Check the Survival section.
"No reverse engineering" for 5 years after the 1 year contract terminates (everything under the Confidential Information section).
Not signing that. Will have to consider uninstalling email apps from my phone, so I don't accidentally agree to one of these when I'm behind on sleep. (https://www.sleepfoundation.org/sleep-deprivation/lack-of-sl...)