In most cases, the conclusion of a legally binding agreement is preceded by a period of negotiation. The parties will say or write various things during the negotiations. If there are no written contractual terms, a court might examine the chains of e-mails (often written in fast moving trading situations) and any notes of meetings and conversations to establish whether or not a contract has been made and, if so, what are its terms.
- A contract can be made by means of the spoken word (face-to-face or via some communication medium such as the telephone), though a party may have difficulty in proving the terms of an oral contract if they are disputed;
- A contract may be made partly orally and partly in writing;
- A contract may be implied from the conduct of the parties. Offers can be made and accepted by behaviour, rather than by saying ‘yes’ or ‘no’;
- A contract can be made via e-mail, or by clicking a button on a website, provided the key elements are present.
It is important to ensure that any online contracting procedures are in accordance with long standing principles of contract law together with any specific regulatory requirements in the field in question.
The message for commercial clients, contract managers and sales teams is that a legally enforceable contract can be created more easily than you might think.