When Is Email Received?

A recent English case considered when an email message is received, for the purpose of accepting an offer of a contract. Thomas v BPE Solicitors, [20100 EWHC 306 (Ch). (The relevant parts of a very long decision are at paras 85 – 90.)

In short, the court held that the postal rule did not apply to an email, as it had been established by authority that it did not apply to other instantaneous forms of communication, like telexes (Entores [1955] 2 Q.B. 327 and Brinkibon [1983] 2 A.C. 34). That said, was the mail received for legal purposes when it was presumably received in fact in the computer of the addressee, namely Friday evening at 6, or only when the offices opened after the long weekend, i.e. Tuesday morning at, say, 9?

The answer was that it depended … on the expectations of the parties. In this case, the parties were in the final throes (they thought) of negotiating a substantial share purchase agreement, and the deal was expected to close that day, even after hours. Thus the court held that the sender could reasonably have expected that the addressee would still be at his office at that hour, and the email was delivered then. (As it happened, the addressee had left on vacation. However, the court’s ruling that the email did not constitute a legally binding acceptance saved the vacationer from a finding of professional negligence for the loss of the deal.)

A few lessons:

i) The content still matters. (See also Leoppky v Meston 2008 ABQB 45, where a chain of emails was held capable of satisfying the Statute of Frauds for a signed transfer of land, but the content made it clear that the deal was subject to legal advice.)

ii) The mailbox rule really doesn’t apply to email. (We did not deal with that in the Uniform Electronic Commerce Act, though we were invited to do so, on the ground that it was a rule of substantive law and the UECA dealt with form.)

iii) If the mailbox rule does not apply, then it matters when the message may actually come to the attention of the relevant party (or solicitor or agent etc).

iv) It may help the parties to decide on the rules for their e-messages – back to the trading partner agreements of the days of Electronic Data Interchange, perhaps, or at least something to set out the reasonable hours for communication. Lots of rules of civil procedure, including Ontario’s, specify that electronic messages received in the addressee’s machine after a particular time, like 4:30 p.m., are deemed to be received the next day.

This kind of agreement could override legal rules like that in s. 23 of the UECA that e-messages are presumed to be received when they enter the information system designated by the addressee to receive such messages. (If England had adopted that rule from the UN Model Law on Electronic Commerce, would the case have turned out differently, or would sending the message at 6 p.m. on the Friday before a summer long weekend rebut the presumption of receipt?)

v) The UECA and similar statutes deal only with when the physical message is received and not with its legal effect, which may turn on other facts. But how long can one avoid checking for messages? How long can one sit and stare at a postal envelope in one’s in-box before one is deemed to have received it?

vi) Some commentators have noted that if the addressee had activated his ‘out of office notice’ feature, that might have negated the apparent receipt of the message on Friday night (and perhaps rebutted the UECA’s presumption.) The judge noted that the parties had not been using Blackberries (or similar mobile communications devices). If they had been, the court would have found it easier to hold that the messages had been received Friday at 6. BUT does that mean that if one has a BB or similar, then one is bound in law to check it at all times? Someone referred to ‘silicon handcuffs’…

I may have to rework my article, “Receiving Electronic Messages”, from (2000), 15 Banking and Finance LR 473, but not very much.

What do you think? Is there a Canadian case on the time of receipt of an email?