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Contract Law - Conversation by Email Counts as Contract?

Discussion in 'Commercial Law Forum' started by Orion Paz, 25 May 2016.

  1. Orion Paz

    Orion Paz Member

    25 May 2016
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    I would like to know how I can do business on the Internet and protect my ideas. If we do not sign a NDA but we speak about the confidentiality of the information by email first, is this counted as a contract under contract law because the email has all the information? (For example, if he said in the email that is my information and that he can’t do anything with this information without my permission).

    Thank you in advanced
  2. Rod

    Rod Well-Known Member

    27 May 2014
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    Contracts can be agreed to by email. Note that acceptance need to be clear and unequivocal.

    If your ideas though are worth a lot of money I recommend a written signature otherwise the burden of proving acceptance can be more difficult if it is by email alone. From a legal practical viewpoint it is easier with a written signature to prove the existence of a valid contract.

    Many people these days have access to a printer and scanner.
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  3. Victoria S

    Victoria S Well-Known Member

    9 April 2014
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    Hi Orion Paz,

    I agree with Rod, in that the best way to do this is to have a clear agreement in writing so that both parties know where they stand legally. Where there is ambiguity or uncertainty then legal proceedings will following - costing the parties time and money - no matter what the result.

    However, even if you don't have a contract, you would likely be able to establish at common law a breach of duty of confidence where you have made it clear that the information you are sharing is confidential. Even in the absence of a contract it is a settled principle of law that where someone acquires information from a relationship with another in circumstances which import a duty of confidence the confidant may not ordinarily divulge that information to a third party without the consent of the confider.

    In order to establish breach of confidence at common law in Australia you need to show that (1) the information that was transmitted was confidential, (2) the information was imparted in circumstances importing an obligation of confidence (i.e. where the confider imparts the information on the express or implied understanding that the information is only to be used for a restricted purpose); and (3) there has been an unauthorised use or threatened use of the information. All of these elements must be satisfied.

    The Court will restrain a confidant or hold them accountable for any breach of confidence.
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