Friday, September 29, 2023
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This Is a Contract

Author's Note: Nothing in this column should be construed as an offer, acceptance, or any form of contract. Nothing written here should be taken seriously in any way. I don't mean anything I say.


I mean it.

Or I don't.

Now on to our regularly scheduled column.

A recent article on the CorporateCounsel website tells us that courts are enforcing contracts formed mistakenly by email messages - regardless of what was meant to be said.

The headline states: "How to Avoid Forming Accidental Contracts via Email."

This might lead you to think that the article is about how to avoid forming accidental contracts by email. But no: It's mostly about courts not believing that you don't mean what you maybe said. This makes the headline ironic since it doesn't mean what you're about to read.

But I quibble. There are two suggestions toward the end of the article. It looks like there are four but if you read them, there are only two.

The first three tips tell you to add a non-contract disclaimer to all emails.

Tip One: "Business emails should state that the company intends to be bound only by a physically executed, formal written agreement."

Tip Two: "It is a best practice for emails to recite requirements such as management approval or further due diligence."

Tip Three: "Companies should consider applying automatic disclaimers to business emails."

Do you get the feeling someone was trying to fill space on that web page?

The final tip is the real head scratcher: "Companies can implement policies that restrict the use of imprecise language in business emails. Employees should be cautioned to be careful in email, to avoid terms such as 'offer' and 'accept' unless they really mean it."

So don't use imprecise terms and don't use precise ones either. Can't get in trouble that way.

Fortunately, I'm here to offer more helpful suggestions for email composition.

Never write an email.

You're right. That was too obvious.

Propose contracts. Instead of trying to weasel out of any ambiguity, be positive.

Instead of a disclaimer, use a proclaimer. Proclaim that everything you say amounts to a contract - particularly if the recipients respond in any way.

But sure to include hefty attorney fees in every message.

Snapchat. Now you see it. Now you don't.

Discovery will never be the same.

Never say anything about closing lanes of traffic. You may want to run for office some day.

Saving Money and Time: The "Question of the Week" on the ABA Journal's website last week was this oddly punctuated one: "Is the bar exam a valuable test of law grads? Or an unnecessary expense for them?"

The obvious answer is that it depends on whether or not you passed.

It seems to me, though, that it's the wrong question (yes, question singular despite the two question marks). My question would be: Is law school a valuable test for aspiring lawyers or an unnecessary expense?

It seems to me that anyone who can pass a bar exam should be allowed to skip law school and avoid loads of student debt.

It makes sense to encourage lawyers who are quick studies.

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