A fascinating opinion dealing with email communications in real estate negotiations came out of one of our Superior courts recently. In Feldberg v. Coxall, a judge ruled that an email, one of many between the attorneys for a real estate buyer and seller, with an attached, unsigned offer to purchase could create a binding agreement.
How did that happen? Most of us know that the statute of frauds requires a signed writing for the purchase and sale of of real estate. In recent years, Massachusetts courts have held that even a signed Offer to Purchase can constitute an enforceable contract. Now at least one Massachusetts court has found that an email can create binding obligations.
The Judge applied the Massachusetts Uniform Electronic Transactions Act (UETA). The UETA allows binding legal transactions to be created using email or electronic signature technology. Although the UETA requires some form of “electronic signature,” the judge in the Feldberg case found that that an email signature block or even the portion of the email that indicates who the message is from may constitute a valid electronic signature.
It is not clear if this case, or a similar case applying the same reasoning, will stand up on appeal. However, attorneys and others negotiating real estate deals using emails and other technologies will certainly have to start using disclaimers making it clear the email in question does not create a contract or an acceptance in the absence of a signed written contract.