Contracts made by email?

Interesting comments are made by Mr Justice David Richards, on the making of a land contract by email, in the recent insolvency case of Green (Liquidator of Stealth Construction Ltd) v Ireland [2011] EWHC 1305 (Ch) in which he said that an email and its reply, taken together, could constitute a single document for the purpose of section 2, Law of Property (Miscellaneous Provisions) Act 1989: “In my view, this is right where, as here, the second email is sent as a reply and so creates a string, as opposed to be simply a new email referring to an earlier email. It is the electronic equivalent of a hard copy letter signed by the sender being itself signed by the addressee.” Where was the signature, as required by section 2? The judge did not hold that the document had been signed, but he did not dismiss the acceptance by the liquidator in the case “adopting the reasoning of HHJ Pelling QC in J.Pereira Fernandes SA v Mehta [2006] 1 WLR 1543 in the context of the statutory requirements for a guarantee, that [the parties], by inserting their names at the end of the emails sent by them respectively, had ‘signed’ them for the purposes of s.2.” Ultimately, no contract was found to exist since the emails did not incorporate all the terms which the parties had expressly agreed, as required by section 2. Eventually, electronic communications may be held by a court to amount to documents that can be signed so as to form a binding land contract. This case seems to have assumed that J.Pereira Fernandes SA v Mehta can be applied to section 2 LP(MP)A 1989, whereas that case actually applied to section 4 Statute of Frauds 1677. For the time being, we still have the protection of the Court of Appeal decision in Firstpost Homes Ltd v Johnson [1995] 1 WLR 1567 which indicates that the concept of signing a contract is what the man or woman in the street would understand to be meant by it. But at some point soon, where the justice of the case requires it, we will probably see a judicial drift away from the basic requirement for a wet-ink signature. And that might be dangerous for the unsuspecting.