Negotiations occurring over e-mail may, in certain circumstances, create a binding contract.  Two cases out of New York have held that where a meeting of the minds is evident through email correspondence, a contract can arise.

  • Naldi v. Grunberg:  Although the court ultimately determined there was no “meeting of the minds” of the parties and therefore no contract, the Supreme Court of New York, Appellate Division (which is an intermediate appellate court) stated that the terms “writing” and “subscribed” under the statute of frauds should be construed to include, records of electronic communication (such as e-mail) and electronic signatures (such as a name typed at the end of an e-mail).
  • Newmark & Co. Real Estate Inc. v. 2615 E. 17th St. Realty:  The Supreme Court of New York ruled that an e-mail under which the sending party’s name is typed can constitute a subscribed writing for purposes of satisfying the statute of frauds.

In reaching these decisions the Supreme Court of New York relied on the federal Electronic Signatures in Global and National Commerce Act (“ESIGN”) and a New York statute similar to the Uniform Electronic Transactions Act (“UTEA”), a version of which has been enacted in Colorado. 

Although Colorado courts have not yet interpreted ESIGN and Colorado’s adopted form of the UTEA yet, these cases are noteworthy because of their impact on interstate business transactions (and in particular transactions with parties in New York).  Further, Colorado’s version of the UTEA could provide a basis for similar rulings in Colorado.

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