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Can you cancel a contract by email? Of course!

Some of the attorneys to whom I have sent correspondence by email have added me to their e-mailing list. To the (lucky) recipients on this list is sent what might pass as promotional or informative material of legal interest. The email will have a link to the attorney's website and to an article, ostensibly penned by the attorney in question...  The problem is that I send emails to more than one attorney (surprise), so it's a bit embarrassing when I receive promotional emails from different firms, linking to the same article (whoops). 

Anyhow, there are a number of points that arise:

  • First, I'm not really the target market for this kind of marketing (see point three below).
  • Second, please don't spam me.
  • Third, and most importantly, the material raises questions, but does not give the answers.

Is this the equivalent of click bait. What do we call this? Fee Bait - scaring clients in to coming to you for answers to all of the questions that your Fee Bait has raised.  

I recall the ignorance that attorneys preyed upon in 2010, instilling the fear of CIPC into the very hearts of their clients, telling them that their companies would implode, that they would breach their newly CODIFIED FIDUCIARY DUTIES and be precluded from being directors if they did not replace their articles and memorandum of association with the new MEMORANDUM OF INCORPORATION be THE CUT OFF DATE!!!! Preying on ignorance to generate fees.

The Fee Bait that I received relates to the SCA judgment in Spring Forest Trading CC v Wilberry (Pty) Ltd t/a Ecowash & Another, where the court found that the exchange of emails between parties to an agreement, with each of the parties typing their first names at the end of the emails, was sufficient to cancel an agreement, which could only be cancelled in writing and signed by both parties.

The court relied on the Electronic Communications and Transactions Act 25 of 2002 (“the Act”). The court found that the agreement had been cancelled in “writing” and that the requirement that the cancellation was “signed” was met inasmuch as the parties’ names at the end of the emails, constituted a signature in terms of the Act.

The Fee Bait concludes as follows:

If you are unsure of what your contract says or unsure as to how to incorporate/exclude the position regarding electronic signatures and electronic communication in/from your agreements, contact a commercial specialist that can assist you to address your concerns. The reality is, electronic communication cannot be ignored and it is prudent to ensure that you understand how to safely orientate yourself contractually within our digital age.(my emphasis)

I'll help you for free – use this clause in all your agreements:

The Electronic Communications and Transactions Act

For the purposes of this agreement:

  • any references to "signature", "writing" or "written" in this agreement shall not include writing in the form of a data message as defined in the Electronic Communications and Transactions Act; and
  • it shall not be competent to:
    • give any notice under and in terms of this agreement by way of electronic communication and/or a data message;
    • amend this agreement by way of electronic communication and/or a data message, and any amendment to this agreement shall be required to be in manuscript signed by all of the parties to this agreement.
Adam Pike
Author: Adam Pike
Adam Pike holds BA, LLB and LLM degrees from the University of Cape Town. His LLM, attained from the School of Advanced Legal Studies at the University of Cape Town, focused on commercial and corporate law, particularly corporate governance and securities. Adam specialises in the implementation of corporate actions and transactions.

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