Contract Acceptance

Q1 The principle in law appears to be “the instantaneous communication advantage”.

Here is one view

https://www.grin.com/document/302312

and another written by a law student:

Quoted from here https://www.lawteacher.net/free-law-essays/contract-law/contractual-acceptance-by-email.php

Instantaneous communication

It is notable, that the postal rule is often not active when it comes to instantaneous communication (Beale, 2014: 2-049). 

For instance, telephone and telex communication is not covered (Entores Ltd v Miles Far East Corp. [1955] 2 Q.B. 327; Brinkibon Ltd v Stahag Stahl und Stahlwarengesellschaft mbH [1983] 2 A.C. 34; N.V. Stoomv Maats “De Maas” v Nippon Yusen Kaisha (The Pendrecht) [1980] 2 Lloyd’s Rep. 56, 66; Gill & Duffus Landauer Ltd v London Export Corp GmbH [1982] 2 Lloyd’s Rep. 627).

The reason why the postal rule is not, generally, applied in cases with instantaneous forms of communication is that in such situations the offeree normally knows straight away that delivery has failed and can, therefore, make alternative arrangements to ensure that his acceptance is properly communicated (Entores Ltd v Miles Far East Corp.; Brinkibon Ltd v Stahag Stahl und Stahlwarengesellschaft mbH; Beale, 2014: 2-050).

This is contrasted to the situation, in which an offeree who uses post may find himself, since he may be unaware of the failure of delivery until it is too late to accept; before the offer expires or is revoked (Beale, 2014: 2-050). [Ed

The way “fax communication” is approached, could shed some light on how email should be approached. The sender of a fax knows immediately whether the fax has been received, which could place faxes in the instant communications bracket (Beale, 2014: 2-051). Indeed, it has been held that faxes are “instantaneous communication” (JSC Zestafoni Nikoladze Ferroalloy Plant v Ronly Holdings Ltd [2004] EWHC 245 (Comm), [2004] 2 Lloyd’s Rep. 335) and that if the sender knew that his fax was not delivered in full or at all, the mere sending of a fax could not amount to acceptance (JSC Zestafoni Nikoladze Ferroalloy Plant v Ronly Holdings Ltd). While a fax might appear to be delivered properly, it may have arrived in an illegible format; therefore, it has been argued that, in such cases a fax may constitute valid acceptance (as the instantaneous communication advantage is nullified) (Beale, 2014: 2-051). It has been argued that the same logic should apply to email acceptance (Beale, 2014: 2-051). Q1

Q1 Whether or not the Postal rule should apply to email communication arguably turns on whether or not it is qualitatively instantaneous, that is to say, whether it displays the characteristic of instantaneous communication which would make it unfair for the Postal rule to apply (such as the ability to instantly know if receipt has occurred).

On the point of whether e-mail is instantaneous, it has been said that it is

‘almost’ instantaneous (Counts and Martin, 1996: 1086),

‘more or less’ instantaneous (Carter, 2002: 03-360 and 03-390),

‘nearly’ instantaneous (Burnstein, 1996: 76),

‘virtually’ instantaneous (Carter and Harland, 2007: 232) and

‘absolutely’ instantaneous (Norman, 1996: 86).  

(Ed The law(yers) tend to not be very “tech” - though one wonders if this is when it suits their argument. Ever since the dawn of the internet the modus operandi have always been “never assume anything has arrived”, because there are endless technical reasons why it may not have. Modern system defences involve a vast array of checks which if failed, will cause the message to not be delivered and this is in addition to all the reasons a system simply fails to work as designed. There is no guarantee a “bounce message” will be sent.)

Furthermore, the high court - see next Q1

Q1 High Court held; the Postal rule should not apply to email communication since such communication was ‘instantaneous’

(David Baxter Edward Thomas and Peter Sandford Gander v BPE Solicitors (a firm) [2010] EWHC 306 (Ch)). Q1

Q1 However, some commentators (Ed such as me) point out that “instantaneousness” may not be the correct way to approach the issue(Mik, 2009: 17). It has been argued, the way some commentators approach “instantaneousness” is linguistically illogical since “instantaneous” should by definition mean no delay whatsoever; therefore qualifications such as “almost” or “nearly” allow for the possibility of delay, which means that “instantaneousness” is the wrong term to use (Mik, 2009: 16-18). 

This is because if one begins to consider, how much delay would render a communication non- instantaneous, then this becomes an issue of control (over the communication on the part of the sender/ offeree ) and not one of “instantaneousness” (Mik, 2009: 17). (Ed I agree)

If control is the operative factor, (Ed that is a very perspicacious point) then the Postal rule should apply, in situations where the sender loses control over the communication (cannot confirm successful delivery) at the point of sending (Mik, 2009: 18).

In terms of emails, it has been argued that email senders can determine whether delivery was successful; however, analysis of common email protocols has demonstrated a number of flaws on this argument. (Ed I’ll say!)

For instance, notifications of failed delivery (Ed i.e. a bounce message) are not automatic and depend on the sending system being set up to request them and the receiving system being set up to provide them (Mik, 2009: 19).  Further, there are noted delays in the actual issuance of failed delivery messages (Mik, 2009: 19).

Moreover, even if one focuses on “instantaneousness” rather than control, email communication could hardly be called instantaneous, since it features many steps and relays (often across the globe) and there is often a notable delay between sending and receipt (Christensen, 2001) (Ed not to mention that email sending “SMTP” servers often do not send immediately). Q1

Q1 In line with this (Ed listed in the above ) reasoning and in stark contrast to the decision of the English High Court in Thomas v BPE Solicitors, Rajah JC of the Singapore High Court  held in Chwee Kin Keong v Digilandmall.com Pte Ltd, [2004] 2 SLR 594; [2004] SGHC 71, that:

“… unlike a fax or a telephone call, it is not instantaneous. Emails are processed through servers, routers and internet service providers. Different protocols may result in messages arriving in an incomprehensible form. Arrival can also be immaterial unless a recipient accesses the email, but in this respect email does not really differ from mail that has not been opened.”  (Digilandmall:97). Q1

Q1 It is submitted that the position of the Singapore High Court is much more in tune with technical realities than the English High Court. (Ed and I heartily concur)

Please note that all this section’s “Instant transmission further research” content to this point comes from here https://www.lawteacher.net/free-law-essays/contract-law/contractual-acceptance-by-email.php Q1

These DO indicate when an im message has been delivered, although how reliable that is for the purpose of court decisions I think remains to be seen. I might observe that like fax machines (most) im systems will not function without a mobile telephone number. That seems to make them akin to fax machines, that require a receiving telephone number with a fax machine attached and ready and wllling to answer 24/7. Given the absence of reliability of internet data connections, regardless of the particular im protocol, it seems to me any control over receipt is suspect. In fact I begin to wonder if any internet system that relies on technology in place of human beings is losing any reliable control over delivery. So if delivery is not “instantaneous” the postal rule must apply. Now if that were true, it gives new meaning to checking one’s messages when contract offer and acceptances are in play.

Back in the 1980s I remember a fax coming in giving 8 minutes notice of an overdraft being payable on that demand. Back then we had “telegraphic transfer” and so the settlement was made in time. How about if it was delivered by “instant message”? That thought chills me because fax machines are/were managed by everyone present in the location of the machine. Instant messages are managed solely by the owner (holder) of the mobile device (could be a digital pad (e.g. iPad) not a phone as such) who may or may not be at work that day or week etc. Fax machines are/were not mobile and not personal, in the same way a physical mail box is neither mobile nor personal (discuss).

Ok so a fax machine could be off or out of order, but then the sender is/was immediately informed by the fax send failure. In that case we the prospective sender would then often, using our wired telephone, call the recipient to say there was something wrong with their fax machine and typically they would fix it immediately. So fax is/was fixed location device direct to fixed location device, with immediate feedback. None of today’s devices are like that. They could be, but we would not know, and in an case they most probably are not. These days even fax send and receive can be using virtual fax machines that don’t exist in real life.

It seems technology cannot beat human delivery, hence process serving.